Conplete Text - Constitutional Law II LB401 CK 15-2-2019 PDF

Constitutional Law-II : : LB-401 BA LL.B./BBA LL.B.
IV Semester
Course Contents & Reading Materials

B.A./B.B.A. LL.B. (Hon.) III Term
Paper Code: LB.401 2018-19
Constitutional Law – II
(Course Contents Developed; Readings/Cases, Selected & Edited by)
Chanchal Kumar Singh

Santosh Kumar Sharma
Gurwinder Singh
Himachal Pradesh National Law University Shimla, P.O. Shakrah, Sub-Tehsil

Dhami District Shimla, Himachal Pradesh-171011
Ph. 0177-2779802, 0177-2779803, Fax: 0177-2779802
Website:http://hpnlu.ac.in
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For Private Circulation only HPNLU, Shimla

For Private Ciculation only Constitutional Law-II LB-401 HPNLU Shimla
Constitutional Law-II : : LB-401 BA LL.B./BBA LL.B. IV Semester
Important Notes for Students:

1. Students are compulsorily required to read and prepare, in advance, for active
participation in the classroom discussions, the respective
readings/cases/handouts, as directed by the teacher.
2. The respective readings/cases under different topics are largely indicative and
not exhaustive. The teacher(s) teaching the course shall be at liberty to add new
topics/cases/other readings.
3. Students are required to study the Constitution of India as amended up-to-date

and consult the latest editions of books. They are required to keep themselves
well-informed with the latest developments and study the entire course covered
in the class.
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Page 2 of 8 for private circulation only

HIMACHAL PRADESH NATIONAL LAW UNIVERSITY,

SHIMLA
SEMESTER- IV
B.A./B.B.A. LL.B. (Hons.) PAPER CODE: LLB -401
COURSE TITLE: Constitutional Law-II CREDITS-04
Objectives: The Constitution of India is an exhaustive document, laying the

foundation for governance and also empowers citizens conferring specific rights
called Fundamental Rights. In other words, the Constitution of India contains both
Governance texts and Rights-Justice texts. The former includes the state machinery at
the Union and State levels and the later covers, Fundamental Rights of the citizen’s
socio- economic objectives of the state in the form of Directive Principles of State
Policy.
The primary objectives of this course are: -

(i) To inculcate in-depth understanding of rights provisions and remedies
available under the Constitution, both by analyzing judicial decisions and
relevant legislative enactments
(ii) To orient students towards the said proposes and develop a critical ability
based on analysis of court’s decisions and other academic writings.
A- COURSE-CONTENT (subject to changes)

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Module- 1 : (24 Lectures)
Fundamental Rights (State and Code of Equality)

Topic::
1.1: ‘State’ under Article 12
1.2: ‘Law’ under Article 13
1.3: Right to Equality (Article 14-18): Concepts, Reasonable Classification and
non-Arbitrariness
1.4: Prohibition of Discrimination Under Article 15
1.5: Equality of Opportunity in Matters of Public Employment
Readings:
1) Seervai , H.M., Fundamental Rights-General Considerations: “the State” and
“Fundamental Rights”, [4th ed., Vol. 1 (1991), Constitutional Law of India.
PP. 349-399.
2) Som Prakash v. Union of India, AIR 1981 SC 212 : (1981) 1 SCC 449 … P.9-11
3) Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 111
p.12-21
4) Zee Telefilms Ltd. v. Union of India (2005) 4 SCC 649 p.22-28
5) Keshavan Madhava Menon v. State of Bombay, AIR 1955 SC 128 : 1951 SCR 228
p.28-30
6) State of Gujarat v. Sri Ambika Mills, AIR 1974 SC 1300: (1974) 4 SCC 656
p.31-43
7) Bhikaji Narain Dhhakras v. State of M. P. (1955) 2SCR 589 p.44-47
8) Common Couse v. UOI (March) 2018
9) RMDC v. Union of India, AIR 1957 SC 628
10) Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123 p.48-53
11) Indra Sawhney v. Union of India, AIR 1993 SC 477 p.54-88
12) Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1 p.89-122
13) M. Nagraj v. Union of India (2006) 8 SCC 212 p.123-139

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14) Jarnail Singh v. Lachhmi Narain Gupta [2018 SCC OnLine SC 1641, decided on
26-09-2018]
15) Pramati Educational & Cultural Trust v. Union of India (2014) 8 SCC 1 p.140-
143
16) Ram Singh v. Union of India (2015) 4SCC 697 p.144-150
17) Modern Dental College & Res. Cen v. State of Madhya Pradesh (2016) 7 SCC 353
18) State of Karnataka v. Appa Balu Ingale AIR 1993 SC 1126 p.151-154
19) Safai Karmachari Andolan v. Union of India, 27 March 2014 p.155-157
Module-2 : (18 Lectures)

Right to Freedoms (Articles 19 - 22)
Topic
2.1: Right to Freedoms (Article 19)
2.2: Protection in respect of conviction for offences (Article 20)
2.3: Protection of life and personal liberty (Article 21)
2.4: Right to Education (Article 21A)
2.5: Protection Against Arrest and Detention (Article 22)
Readings:
1) Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106 p.158-168
2) Secretary, Ministry of I & B, State of W. B v. Cricket Association(1995) 2 SCC

161 p.169-189
3) Shreya Singhal v. Union of India (2013)12 SCC 73 p.190-206
4) Smt. Selvi and Ors. v. State of Karnataka, AIR 2010 SC 1974
5) Maneka Gandhi v. Union of India, AIR 1978 SC 597 p.207-218
6) K. S. Puttaswamy v. Union of India (2017) 10 SCC 1 p. 219-244

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7) National Legal Services Authority v. Union of India, (2014) 5 SCC 438

p.245-2260
8) Animal Welfare Board Of India v. A. Nagaraja & Ors.(2014) 7 SCC 547

p.261-277
9) Pramati Educational and Cultural Trust v. Union of India 2014.

Right Against Exploitation, Freedom of Religion, and
Educational and Cultural Rights
Topic
3.1: Right Against Exploitation (Article 23-24)
3.2: Right to Freedom of Religion (Articles 25 – 28)
3.3: Right to Education (Article 21A)
3.4: Right to Constitutional Remedy, Article 32 (including PIL)
3.5: Constitutional Safeguards to Civil Servants (Articles 309-311)
Readings:
1) Seshammal v. State of Tamil Nadu (1972) 2 SCC 11 p.278-288
2) Adi Saiva Sivachariyargal Nala Sangam v. The Government of Tamil Nadu (2016)2 SCC
725 p.289-298
3) Shayara Bano v. Union of India (2017) 9 SCC 1 p.299-316
4) Rev. Stainislaus v. State of M.P., AIR 1977 SC 908
5) State of Gujarat v. Mirzapur Moti Qureshi Kasab Jamat, AIR 2006 SC 212 (Cow
slaughter) p.317-337
6) Islamic Academy of Education v. State of Karnataka, JT 2003 (7) SC 1
7) T.M.A. Pai Foundation v. State of Karnataka, AIR 2003 SC 355
8) P.A. Inamdar v. State of Maharashtra, AIR 2005 SC 3236 p.338-358

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Directive Principles of State Policy; Fundamental Rights and

Amendment to the Constitution; and Constitutional Safeguards to
Civil Servants
Topic
4.1: Directive Principles of State Policy (Art 36 - 51)
4.2: Fundamental Duties (Article 51A)
4.3: Amendment to the Constitution (Article 368)
4.4: Constitutional Right to Property
4.5: Articles 31A, 31B and 31C
Readings:
1) Hon’ble Justice (Retd.) Shri Rangnath Mishra v. Union of India JT 2003 (7) SC 206
p.359-360
2) I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861 : (2007) 2 SCC 1 p.361-381
3) Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
Important Legislations:
1) The Constitution of India, 1950
2) The Civil Rights Protection Act, 1955
3) The Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989
4) The Central Educational Institutions (Reservation in Admission) Act, 2006
5) The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995
6) The Right to Information Act, 2005
7) (Select state enactments concerning Prohibition of Forcible Conversion/ Freedom of
Religion).
8) (Select Prohibitory State laws on alcohol and cow slaughter).
9) Equal Opportunity Commission Bill, 2009.
Prescribed Books:
1) Singh, Mahendra P., (13th ed., 2017), V. N. Shukla’s Constitution of India
2) Seervai , H.M., [4th ed., Vol. 1 (1991), Vol. 2 (1993), Vol. 3 (1996)], Constitutional Law
of India
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3) Jain, M.P., (7th ed., 2017), Indian Constitutional Law

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4) Basu, D.D., (15th ed., 2018), Shorter Constitution of India


5) Hasan, Zoya, et al., eds., (2005), India's Living Constitution: Ideas, Practices,
Controversies
6) Granville Austin, (2003), Working of a Democratic Constitution: A History of the
Indian Experience.
7) Kripal, B. N. et al., (2004), Supreme but Not Infallible: Essays in Honour of the
Supreme Court of India.
Suggested Readings:
1) Navtej Singh Johar v. Union of India (2018) 1 SCC 791.
2) Indian Young Lawyers Association v. State of Kerala (2016) SCC Online SC 1783.
3) Charles L. Black Jr., The Supreme Court, 1966 Term -- Foreword: "State Action," Equal Protection, and
California's Proposition 14 81 Harv. L. Rev. 69 (1967-1968);
4) Gary Peller & Mark Tushnet, State Action and a New Birth of Freedom 92 Geo. L.J. 779 (2003-2004).
5) Concept of “Developmental Clause(s)”: Dennis M. Davis & Karl Clair, Transformative

Constitutionalism and the Common and Customary law South African Journal on Human Rights Pp.
408-413 (2010).
6) Does Article 13 contain a charter of Law Reform? Chhatrapati Singh, WATER RIGHTS AND PRINCIPLES
OF WATER RESOURCES MANAGEMENTS (1991).
7) B. Sivaramayya, Inequalities and the Law, Lucknow, Eastern Book Company, 1984, pp. 15-31,
8) P. K. Tripathi, Some Insights into Fundamental Rights (1972).

9) Marc Galanter, Competing Equalities: Law and the Backward Classes in India, Delhi, Oxford
University Press, 1984.
10) B. Sivaramayya, Inequalities and the Law, Lucknow, Eastern Book Company, 1984, pp. 15-31,
11) P.K. Tripathi, ‘Free Speech in the Indian Constitution: Background and Prospects’ in Spotlights on
Constitutional Interpretation, (1971).
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‘STATE’ UNDER ARTICLE 12
The Constitution of India, Article 12 : “In this part, unless the context otherwise requires, “the State”
includes the Government and Parliament of India and the Government and the Legislature of each of the States
and all local or other authorities within the territory of India or under the control of the Government of India.”
Tests to decide which “other authorities” could be considered as

agencies or instrumentalities of state
The cumulative effect of all the following factors has to be seen:
1. “If the entire share capital of the corporation is held by government, it would go a long way
towards indicating that the corporation is an instrumentality or agency of government.”
2. The existence of “deep and pervasive State control may afford an indication that the
Corporation is a State agency or instrumentality.”
3. “It may also be a relevant factor…whether the corporation enjoys monopoly status which is
State conferred or State protected.”
4. “If the functions of the corporation are of public importance and closely related to
governmental functions, it would be a relevant factor in classifying the corporation as an
instrumentality or agency of government.”
5. “Specifically, if a department of government is transferred to a corporation, it would be a strong
factor supportive of this inference” of the corporation being an instrumentality or agency of
government.
Som Prakash Rekhi v. Union of India

AIR 1981 SC 212 : (1981) 1 SCC 449
The petitioner was a clerk in the Burmah Shell Oil Storage Ltd. He retired at the age of 50 after qualifying
for a pension, on April 1, 1973. He was also covered by a scheme under the Employees’ Provident Funds and
Family Pension Fund Act, 1952. The employer undertaking was statutorily taken over by the Bharat Petroleum
Corporation Ltd. under the Burmah Shell (Acquisition of Undertakings in India) Act, 1976, and the
Corporation became the statutory successor of the petitioner employer. His pensionary rights, such as he had,
therefore, became claimable from the second respondent. The pensionary provision for the Burmah Shell
employees depended on the terms of a Trust Deed of 1950 under which a Pension Fund was set up and
regulations were made for its administration.
By virtue of Regulation 13, the petitioner was entitled to a pension of Rs. 165.99 subject to certain
deductions which formed the controversy in this case. He was also being paid Supplementary Retirement
Benefit of Rs. 86/- per month for a period of 13 months after his retirement which was stopped thereafter. By a
letter dated September 25, 1974, the employer (Burmah Shell) explained that from out of the pension of Rs.
165.99 two deductions were authorised by Regulation 16. One such deduction was based on Regulation 16(1)
because of Employees’ Provident Fund payment to the pensioner and the other rested on Regulation 16(3) on
account of payment of gratuity. Resultantly, the ‘pension payable’ was shown as Rs 40.05.
Further, the petitioner claimed and received his provident fund amount under the PF Act and recovered a
gratuity amount due under the Payment of Gratuity Act, 1972. The petitioner was intimated by the Burmah
Shell that consequent on his drawal of provident fund and gratuity benefits, the quantum of his pension would
suffer a pro tanto shrinkage, leaving a monthly pension of Rs 40/-. Since no superannuated soul can survive on
Rs. 40/- per month, the petitioner moved the court challenging the deductions from his original pension as
illegal and inhuman and demanding restoration of the full sum which he was originally drawing. According to
the petitioner, his right to property under Article 19 had been violated.
The first issue before the Supreme Court was whether a writ could be issued under Article 32 of the
Constitution against the BPCL, a government company.
V.R. KRISHNA IYER, J. – 18. A preliminary objection has been raised by Shri G.B. Pai (Counsel for
Respondent 2) that no writ will lie against the second respondent since it is neither a Government department
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nor a statutory corporation but just a company and so the court should reject out of hand this proceeding under
Article 32. We do see the force of this contention, notwithstanding the observations in the Airport Authority
case [Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628] that the
status of ‘State’ will attach to the Government companies like the second respondent.
19. Let us first look at the facts emerging from the Act and then superimpose the law in Article 12 which
conceptualises ‘State’ for the purposes of Part III. After all, cynicism apart, Mark Twain is good chewing-gum
for lawyers: “Get your facts first, and then you can distort them as much as you please.” It is common ground
that the present writ petition, invoking Article 32, is limited to issuing directions or orders or writs for the
enforcement of fundamental rights and the question is whether the addressee is the ‘State’ within the meaning
of Article 12 of the Constitution. We will examine this position more closely a little later, but granting that
Article 19 is aimed at State action the contours of ‘State’, conceptually speaking, are largely confined to
Article 12. We have to study the anatomy of the Corporation in the setting of the Act and decide whether it
comes within the scope of that Article. We have only an inclusive definition, not a conclusive definition. One
thing is clear. Any authority under the control of the Government of India comes within the definition. Before
expanding on this theme, we may scan the statutory scheme, the purpose of the legislative project and the
nature of the juristic instrument it has created for fulfillment of that purpose. Where constitutional
fundamentals, vital to the survival of human rights, are at stake functional realism, not facial cosmetics, must
be the diagnostic tool. Law, constitutional law, seeks the substance, not merely the form. For, one may look
like the innocent flower but be the serpent under it. The preamble, which ordinarily illumines the object of the
statute, makes it plain that what is intended and achieved is nationalisation of an undertaking of strategic
importance:
And whereas it is expedient in the public interest that the undertakings in India, of Burmah Shell Oil
Storage and Distributing Company of India Limited, should be acquired in order to ensure that the
ownership and control of the petroleum products distributed and marketed in India by the said
Company are vested in the State and thereby so distributed as best to subserve the common good;
It is true that what is nationalised is a private enterprise motivated, undoubtedly, by the need for
transferring the ownership and control of the company and its petroleum products distributed and marketed in
India. Section 3 is important from this angle.
On the appointed day, the right, title and interest of Burmah Shell, in relation to its undertakings in
India, shall stand transferred to, and shall vest in, the Central Government.
20. This provision lays bare the central object of making the Central Government the proprietor of the
Undertaking. It hardly needs argument to convince a court that by virtue of Section 3, the Central Government
is the transferee of the Undertaking. Had a writ proceeding been commenced during the period of vesting in
the Central Government, it could not have been resisted on the score that the employer is not “the State”. The
appointed day did arrive and the right, title and interest in Burmah Shell did vest in the Central Government.
21. A commercial undertaking although permitted to be run under our constitutional scheme by
government, may be better managed with professional skills and on business principles, guided, of course, by
social goals, if it were administered with commercial flexibility and clarity free from departmental rigidity,
slow motion procedures and hierarchy of officers. That is why a considerable part of the public undertakings is
in the corporate sector.
22. It is interesting that with the industrial expansion, economics was assisted by jurisprudence and law
invented or at least expanded the corporate concept to facilitate economic development consistently with the
rule of law. Said Woodrow Wilson, several decades back:
There was a time when corporations played a minor part in our business affairs, but now they play
the chief part, and most men are the servants of corporations.
This legal facility of corporate instrument came to be used by the State in many countries as a measure of
immense convenience especially in its commercial ventures. The trappings of personality, liberation from
governmental stiffness and capacity for mammoth growth, together with administrative elasticity, are the
attributes and advantages of corporations. A corporation is an artificial being, invisible, intangible, and
existing only in the contemplation of the law. Being the mere creature of the law, it possesses only those
properties which the charter of its creation confers on it, either expressly, or as incidental to its very existence.
Those are such as are supposed best calculated to effect the object for which it was created. Among the most
important are immortality, and, if the expression be allowed, individuality; properties by which a perpetual
succession of many persons are considered the same, and may act as a single individual.
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Although corporate personality is not a modern invention, its adaptation to embrace the wide range of
industry and commerce has a modern flavour. Welfare States like ours called upon to execute many economic
projects readily resort to this resourceful legal contrivance because of its practical advantages without a wee
bit of diminution in ownership and control of the Undertaking. The true owner is the State, the real operator is
the State and the effective controllerate is the State and accountability for its actions to the community and to
Parliament is of the State. Nevertheless, a distinct juristic person with a corporate structure conducts the
business, with the added facilities enjoyed by companies and keeping the quasi-autonomy which comes in
handy from the point of view of business management. Be it remembered though that while the formal
ownership is cast in the corporate mould, the reality reaches down to State control. With this background we
have to read Section 7 of the Act which runs thus
7. (1) Notwithstanding anything contained in Sections 3, 4 and 5, the Central Government may, if
satisfied that a Government company is willing to comply, or has complied with such terms and
conditions as that government may think fit to impose, direct by notification that the right, title and
interest and the liabilities of Burmah Shell in relation to any of its undertakings in India, shall instead
of continuing to vest in the Central Government, vest in the Government company…. (emphasis
added)
The core fact is that the Central Government, through this provision, chooses to make over, for better
management, its own property to its own offspring. A Government company is a mini-incarnation of
government itself, made up of its blood and bones and given corporate shape and status for defined objectives,
not beyond.
23. Nor is this any isolated experiment in government formally transferring ownership to a company.
There are a number of statutory takeovers in India as in other countries, where the initial vesting is in
government, followed by a later transfer to another instrumentality – may be an existing government company
or a corporation created by statute or even a society or other legal person. In the present case, a Government
company was created anteriorly and by virtue of a notification under Section 7 it became the transferee of the
right, title and interest as well as the liabilities of Burmah Shell.
24. The device is too obvious for deception that what is done is a formal transfer from government to a
Government company as the notification clearly spells out:
In exercise of the powers conferred by sub-section (1) of Section 7 of the Burmah Shell
(Acquisition of Undertakings in India) Act, 1976 (2 of 1976), the Central Government, being satisfied
that Burmah Shell Refineries Ltd., a Government company is willing to comply with such terms and
conditions as may be imposed by the Central Government, hereby directs that the right, title and
interest and the liabilities of Burmah Shell Oil Storage and Distributing Co. of India Ltd. in relation to
its undertakings in India, shall, instead of continuing to vest in the Central Government vest with
effect from the twenty-fourth day of January 1976, in Burmah Shell Refineries Ltd.
This is the well-worn legal strategy for government to run economic and like enterprises. We live in an era
of public sector corporations, the State being the reality behind. Law does not hoodwink itself and what is but
a strategy cannot be used as a stratagem.
25. These are the facts when we come to brass tacks. Facts form the raw material out of which the finished
product of judicial finding is fabricated after processing through established legal principles. Indeed, in life as
in law “it is as fatal as it is cowardly to blink facts because they are not to our taste”. What, then, are the basic
facts available from the Act? Constitutional law is not a game of hide and seek but practical real-life
conclusions. So viewed, we are constrained to hold that Burmah Shell, a Government company though, is but
the alter ego of the Central Government and must, therefore, be treated as definitionally caught in the net of
‘State’ since a juristic veil worn for certain legal purposes cannot obliterate the true character of the entity for
the purposes of constitutional law.
26. If we distil the essence of Article 12 textually and apprehend the expanded meaning of “State” as
interpreted precedentially, we may solve the dilemma as to whether the Bharat Petroleum is but a double of
Bharat Sarkar. Let us be clear that the jurisprudence bearing on corporations is not myth but reality. What we
mean is that corporate personality is a reality and not an illusion or fictitious construction of the law. It is a
legal person. Indeed, ‘a legal person’ is any subject-matter other than a human being to which the law
attributes personality. “This extension, for good and sufficient reasons, of the conception of personality … is
one of the most noteworthy feats of the legal imagination.” Corporations are one species of legal persons
invented by the law and invested with a variety of attributes so as to achieve certain purposes sanctioned by the
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law. For those purposes, a corporation or company has a legal existence all its own. The characteristics of
corporations, their rights and liabilities, functional autonomy and juristic status, are jurisprudentially
recognised as of a distinct entity even where such corporations are but State agencies or instrumentalities. For
purposes of the Companies Act, 1956, a Government company has a distinct personality which cannot be
confused with the State. Likewise, a statutory corporation constituted to carry on a commercial or other
activity is for many purposes a distinct juristic entity not drowned in the sea of State, although, in substance,
its existence may be but a projection of the State. What we wish to emphasise is that merely because a
company or other legal person has functional and jural individuality for certain purposes and in certain areas of
law, it does not necessarily follow that for the effective enforcement of fundamental rights under our
constitutional scheme, we should not scan the real character of that entity; and if it is found to be a mere agent
or surrogate of the State, in fact owned by the State, in truth controlled by the State and in effect an incarnation
of the State, constitutional lawyers must not blink at these facts and frustrate the enforcement of fundamental
rights despite the inclusive definition of Article 12 that any authority controlled by the Government of India is
itself State. Law has many dimensions and fundamental facts must govern the applicability of fundamental
rights in a given situation.
27. Control by government of the corporation is writ large in the Act and in the factum of being a
Government company. Moreover, here, Section 7 gives to the Government Company mentioned in it a
statutory recognition, a legislative sanction and status above a mere Government Company. If the entity is no
more than a company under the company law or society under the law relating to registered societies or
cooperative societies you cannot call it an authority. A ration shop run by a cooperative store financed by
government is not an authority, being a mere merchant, not a sharer of State power. ‘Authority’ in law belongs
to the province of power: “Authority (in Administrative Law) is a body having jurisdiction in certain matters
of a public nature.” Therefore, the “ability conferred upon a person by the law to alter, by his own will directed
to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons” must be
present ab extra to make a person an ‘authority’. When the person is an ‘agent or instrument of the functions
of the State’ the power is public. So the search here must be to see whether the Act vests authority, as agent or
instrument of the State, to affect the legal relations of oneself or others.
29. In the present instance, the source of both, read in the light of Sections 3 and 7, is saturated with State
functions. Avowedly, the statutory contemplation, as disclosed by Section 7, is that the company should step
into the shoes of the executive power of the State. The legislative milieu in which the second respondent came
to be the successor of Burmah Shell suggests that the former is more than a mere company registered under the
Companies Act. It has a statutory flavour acquired under Section 7. Moreover, everything about the second
respondent in the matter of employees, their provident, superannuation and welfare funds, is regulated
statutorily unlike in the case of ordinary companies. Sections 9 and 10 deal with these aspects. These two
provisions which regulate the conditions of service and even provide for adjudication of disputes relating to
employees indicate that some of the features of a statutory corporation attach to this Government Company.
Sections 9 and 10, in terms, create rights and duties vis-a-vis the Government Company itself apart from the
Companies Act. An ordinary company, even a Government company simpliciter has not the obligations cast
on the second respondent by Sections 9 and 10. And, Section 11 specifically gives the Act primacy vis-a-vis
other laws. Section 12, although it has no bearing on the specific dispute we are concerned with in this case, is
a clear pointer to the statutory character of the Government company and the vesting of an authority therein.
This provision clothes the Government company with power to take delivery of the property of Burmah Shell
from every person in whose possession, custody or control such property may be. There are other powers akin
to this one in Section 12. The provision for penalties if any person meddles with the property of the second
respondent emphasises the special character of this Government Company. Equally unique is the protection
conferred by Section 16 on the Government Company and its officers and employees “for anything which is,
in good faith, done or intended to be done under this Act”. Such an immunity does not attach to employees of
companies simpliciter, even if they happen to be Government companies. In the same strain is the indemnity
conferred by Section 18. This review, though skeletal, is sufficient strikingly to bring home the point that the
Corporation we are concerned with is more than a mere Government company. Whatever its character
antecedent to the Act, the provisions we have adverted to have transformed it into an instrumentality of the
Central Government with a strong statutory flavour superadded and clear indicia of power to make it an
“authority”. Although registered as a company under the Indian Companies Act, the second respondent is
clearly a creature of the statute, the Undertaking having vested in it by force of Section 7 of the Act. The
various provisions to which our attention was drawn, an elaboration of which is not called for, emphasise the
fact that the second respondent is not a mere company but much more than that and has a statutory flavour in
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its operations and functions, in its powers and duties, and in its personality itself, apart from being functionally
and administratively under the thumb of government. It is a limb of government, an agency of the State, a
vicarious creature of statute working on the wheels of the Acquisition Act. We do not mean to say that for
purposes of Article 309 or otherwise this Government Company is State but limit our holding to Article 12 and
Part III.
32. Let us dilate a little on the living essence of constitutional fundamentals if we are not to reduce
fundamental rights to paper hopes and people’s dupes! The judicial branch shall not commit breach of faith
with the bill of rights by interpretative exoneration of the State from observance of these founding faiths. The
higher values enacted into Part III of the Constitution certainly bind the State in its executive and legislative
branches. They are constitutional guarantees to the Indian people, not fleeting promises in common
enactments. So long as they last in the National Charter they should not be truncated in their application unless
a contra-indication is clearly written into the prescription, a la Articles 31A, 31B and 31C. Article 12 is a
special definition with a broader goal. Far from restricting the concept of State it enlarges the scope to embrace
all authorities under the control of government. The constitutional philosophy of a democratic, socialist
republic mandated to undertake a multitude of socio-economic operations inspires Part IV and so we must
envision the State entering the vast territory of industrial and commercial activity, competitively or
monopolistically, for ensuring the welfare of the people. This expansive role of the State under Part IV is not
played at the expense of the cherished rights of the people entrenched in Part III since both the sets of
imperatives are complementary and coexist harmoniously. Wherever the Constitution has felt the need to
subordinate Part III to Part IV it has specificated it and absent such express provision, both the Parts must and
can nourish happily together given benign judicial comprehension a la Kerala v. N.M. Thomas [AIR 1976 SC
490].There is no inherent conflict between the two parts if orchestrated humanely. We are at pains to
emphasise this perspective because the substance of Part III, save where the Constitution says so, shall not be
sacrificed at the altar of Part IV by the stratagem of incorporation. It is well known, and surely within the
erudite and experienced ken of our ‘founding fathers’, that government embarks on myriad modern
commercial activities by resort to the jurisprudential gift of personification through incorporation. This
contrivance of carrying on business activities by the State through statutory corporations, government
companies and other bodies with legal personality, simplifies and facilitates transactions and operations
beyond the traditional and tardy processes of governmental desks and cells noted for their red tape exercise
and drowsy dharma. But to use the corporate methodology is not to liberate the State from its basic obligation
to obey Part III. To don the mantle of company is to free the State from the inevitable constraints of
governmental slow motion, not to play truant with the great rights. Otherwise, a cunning plurality of
corporations taking over almost every State business - the post and the rail-road, the T.V. and the radio, every
economic ministry activity, why, even social welfare work - will cheat the people of Part III rights by the easy
plea: “No admission for the bill of rights; no State here”. From Indian Posts and Telegraphs Limited to Indian
Defence Manufacturers Limited, from Social Welfare Board to Backward Classes Corporation, the nation will
be told that 'the State has ceased to be, save for the non-negotiable sovereign functions; and fundamental rights
may suffer eclipse only to be viewed in museum glass cases. Such a situation will be a treachery on the
founding fathers, a mockery of the Constitution and a government by puppetry because the crowd of
corporations which have carved out all functions will still be controlled completely by the switchboards of
bureaucrats and political bosses from remote control rooms in Government Secretariats. The extended
definition of “the State” in Article 12 is not to be deadened but quickened by judicial construction. Before our
eyes the corporate phenomenon is becoming ubiquitous. What was archaically done yesterday by Government
departments is alertly executed today by Government companies, statutory corporations and like bodies and
this tribe may legitimately increase tomorrow. This efficiency is not to be purchased at the price of
fundamental rights.
33. This Court in Airport Authority pointed its unanimous finger on these events and portents:
Today with tremendous expansion of welfare and social service functions, increasing control of
material and economic resources and large scale assumption of industrial and commercial activities by
the State, the power of the executive Government to affect the lives of the people is steadily growing.
The attainment of socioeconomic justice being a conscious end of State policy, there is a vast and
inevitable increase in the frequency with which ordinary citizens came into relationship of direct
encounter with State power-holders. This renders it necessary to structure and restrict the power of the
executive Government so as to prevent its arbitrary application or exercise. . . .

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Today, the Government in a welfare State, is the regulator and dispenser of special services and
provider of a large number of benefits, including jobs, contracts, licences, quotas, mineral rights etc.
The government pours forth wealth, money, benefits, services, contracts, quotas and licences. The
valuables dispensed by government take many forms, but they all share one characteristic. They are
steadily taking the place of traditional forms of wealth. These valuables which derive from
relationships to government are of many kinds. They comprise social security benefits, cash grants for
political sufferers and the whole scheme of State and local welfare. Then again, thousands of people
are employed in the State and the Central Governments and local authorities. Licences are required
before one can engage in many kinds of businesses or work. The power of giving licences means
power to withhold them and this gives control to the government or to the agents of government on
the lives of many people. Many individuals and many more businesses enjoy largesse in the form of
Government contracts… All these mean growth in the government largesse and with the increasing
magnitude and range of governmental functions as we move closer to a welfare State, more and more
of our wealth consists of these new forms.
We do not suggest that there is any vice at all in government undertaking commercial or other activities
through the facile device of companies or other bodies. But to scuttle Part III through the alibi of ‘company,
not State’ - ‘ay, there’s the rub!’ The rationale of this proposition is well brought out by Bhagwati, J:
So far as India is concerned, the genesis of the emergence of corporations as instrumentalities or
agencies of government is to be found in the Government of India Resolution on Industrial Policy
dated April 6, 1948 where it was stated inter alia that “management of State enterprise will as a rule be
through the medium of public corporation under the statutory control of the Central Government who
will assume such powers as may be necessary to ensure this”. It was in pursuance of the policy
envisaged in this and subsequent resolutions on industrial policy that corporations were created by
government for setting up and management of public enterprises and carrying out other public
functions. Ordinarily these functions could have been carried out by government departmentally
through its service personnel, but the instrumentality or agency of the corporations was resorted to in
these cases having regard to the nature of the task to be performed. The corporations acting as
instrumentality or agency of government would obviously be subject to the same limitations in the
field of constitutional and administrative law as government itself, though in the eye of the law, they
would be distinct and independent legal entities. If government acting through its officers is subject to
certain constitutional and public law limitations, it must follow a fortiori that government acting
through the instrumentality or agency of corporations should equally be subject to the same
limitations, (emphasis added)
34. Article 12 gives the cue to forbid this plea. “Other authorities… under the control of the Government
of India” are comprehensive enough to take care of Part III without unduly stretching the meaning of “the
State” to rope in whatever any autonomous body which has some nexus with government. A wide expansion
coupled with a wise limitation may and must readily and rightly be read into the last words of Article 12.
35. Addressing itself to the question of identifying those bodies which are agencies of instrumentalities of
government, the court, in Airport Authority, observed:
A corporation may be created in one of two ways. It may be either established by statute or
incorporated under a law such as the Companies Act, 1956 or the Societies Registration Act, 1860.
Where a corporation is wholly controlled by government not only in its policy-making but also in
carrying out the functions entrusted to it by the law establishing it or by the charter of its
incorporation, there can be no doubt that it would be an instrumentality or agency of
government….When does such a corporation become an instrumentality or agency of government? Is
the holding of the entire share capital of the corporation by government enough or is it necessary that
in addition, there should be a certain amount of direct control exercised by government and, if so,
what should be the nature of such control? Should the functions which the corporation is charged to
carry out possess any particular characteristic or feature, or is the nature of the functions immaterial?
Now, one thing is clear that if the entire share capital of the corporation is held by government, it
would go a long way towards indicating that the corporation is an instrumentality or agency of
government….. What than are the tests to determine whether a corporation established by statute or
incorporated under law is an instrumentality or agency of government? It is not possible to formulate
an all-inclusive or exhaustive test which would adequately answer this question. There is no cut and

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dried formula which would provide the correct division of corporations into those which are
instrumentalities or agencies of government and those which are not. (emphasis added)
36. The court proceeded to crystallise the tests to determine the ‘State’ complexion of corporate bodies,
beyond furnishing the full share capital:
“But a finding of State financial support plus an unusual degree of control over the management
and policies might lead one to characterise an operation as State action”. [Vide Sukhdev v.
Bhagatram, (1975) 1 SCC 421]. So also the existence of deep and pervasive State control may afford
an indication that the Corporation is a State agency or instrumentality. It may also be a relevant factor
to consider whether the corporation enjoys monopoly status which is State conferred or State
protected. There can be little doubt that State conferred or State protected monopoly status would be
highly relevant in assessing the aggregate weight of the corporations’ ties to the State.
There is also another factor which may be regarded as having a bearing on this issue and it is
whether the operation of the corporation is an important public function. It has been held in the United
States in a number of cases that the concept of private action must yield to a conception of State action
where public functions are being performed…. If the functions of the corporation are of public
importance and closely related to governmental functions, it would be a relevant factor in classifying
the corporation as an instrumentality or agency of Government. This is precisely what was pointed out
by Mathew, J., in Sukhdev v. Bhagatram where the learned Judge said that ‘institutions engaged in
matters of high public interest or performing public functions are by virtue of the nature of the
functions performed by government agencies’. Activities which are too fundamental to the society are
by definition too important not to be considered government functions”
37. The conclusion is impeccable that if the corporate body is but an ‘instrumentality or agency’ of
government, then Part III will trammel its operations. It is a case of quasi-governmental beings, not of non
State entities. We have no hesitation to hold that where the chemistry of the corporate body answers the test of
‘State’ above outlined it comes within the definition in Article 12. In our constitutional scheme where the
commanding heights belong to the public sector of the national economy, to grant absolution to government
companies and their ilk from Part III may be perilous. The court cannot connive at a process which eventually
makes fundamental rights as rare as “roses in December, ice in June”. Article 12 uses the expression “other
authorities” and its connotation has to be clarified. On this facet also, the Airport Authority case supplies a
solution.
If a statutory corporation, body or other authority is an instrumentality or agency of the government, it
would be an “authority” and therefore ‘State’ within the meaning of that expression in Article 12.
38. The decisions are not uniform as to whether being an instrumentality or agency of government ipso
jure renders the company or other similar body ‘State’. This again involves a navigation through precedents
and Bhagwati, J. in Airport Authority has spoken for the court,
We may point out here that when we speak of a corporation being an instrumentality or agency of
government, we do not mean to suggest that the corporation should be an agent of the government in
the sense that whatever it does should be binding on the Government. It is not the relationship of
principal and agent which is relevant and material but whether the corporation is an instrumentality of
the government in the sense that a part of the governing power of the State is located in the
corporation and though the corporation is acting on its own behalf and not on behalf of the
government, its action is really in the nature of State action.
39. Let us cull out from Airport Authority the indicia of “other authorities … under the control of the
Government of India” bringing a corporation within the definition of “the State”. The following factors have
been emphasised in that ruling as telling, though not clinching. These characteristics convert a statutory
corporation, a Government company, a cooperative society and other registered society or body into a State
and they are not confined to statutory corporations alone.
40. The finale is reached when the cumulative effect of all the relevant factors above set out (see p. 1) is
assessed and once the body is found to be an instrumentality or agency of government, the further conclusion
emerges that it is ‘State’ and is subject to the same constitutional limitations as government.
41. This divagation explains the ratio of the Airport Authority in its full spectrum. There the main
contention was that the said authority, a statutory corporation, was not State and enforcement of fundamental
rights against such a body was impermissible. As is apparent from the extensive discussion above, the identical
issue confronting us as to what are the “other authorities” contemplated by Article 12 fell for consideration
7|Page
there. Most of the rulings relied on by either side received critical attention there and the guide-lines and
parameters spelt out there must ordinarily govern our decision. A careful study of the features of the Airport
Authority and a Government company covered by Sections 7, 9, 10 and 12 of the Act before us discloses a
close parallel except that the Airport Authority is created by a statute while Bharat Petroleum (notified under
Section 7 of the Act) is recognised by and clothed with rights and duties by the statute.
42. There is no doubt that Bhagwati, J. broadened the scope of State under Article 12 and according to Shri
G.B. Pai the observations spill over beyond the requirements of the case and must be dismissed as obiter. His
submission is that having regard to the fact that the International Airport Authority is a corporation created by
statute there was no occasion to go beyond the narrow needs of the situation and expand upon the theme of
State in Article 12 vis-a-vis Government companies, registered societies and what not.
44. Shri G.B. Pai hopefully took us through Sukhdev case at length to demolish the ratio in Airport
Authority. A majority of three judges spoke through Ray, C.J., while Mathew, J. ratiocinated differently to
reach the same conclusion. Alagiriswamy, J., struck a dissenting note. Whether certain statutory corporations
were ‘State’ under Article 12 was the question mooted there at the instance of the employees who invoked
Articles 14 and 16. The judgment of the learned Chief Justice sufficiently clinches the issue in favour of the
petitioner here. The problem was posed thus:
In short the question is whether these statutory corporations are authorities within the meaning of Article
12. The answer was phrased thus;
The employees of these statutory bodies have a statutory status and they are entitled to declaration of
being in employment when their dismissal or removal is in contravention of statutory provisions. By
way of abundant caution we state that these employees are not servants of the Union or the State.
These statutory bodies are “authorities” within the meaning of Article 12 of the Constitution.
Thus, the holding was that the legal persons involved there (three corporations, viz., the Oil and Natural
Gas Commission, the Industrial Finance Corporation and the Life Insurance Corporation) were ‘State’ under
Article 12. The reasoning adopted by Ray C.J. fortifies the argumentation in Airport Authority.
45. Repelling the State's plea that these bodies were not ‘other authorities’ under Article 12, Ray, C.J.
observed:
The State undertakes commercial functions in combination with governmental functions in a welfare
State. Governmental function must be authoritative. It must be able to impose decision by or under
law with authority. The element of authority is of a binding character. The rules and regulations are
authoritative because these rules and regulations direct and control not only the exercise of powers by
the corporations but also all persons who deal with these corporations….
The expression “other authorities” in Article 12 has been held by this Court in the Rajasthan State
Electricity Board case [Rajasthan Electricity Board v. Mohan Lal, AIR 1967 SC 1857] to be wide enough to
include within it every authority created by a statute and functioning within the territory of India, or under the
control of the Government of India. This Court further said referring to earlier decisions that the expression
“other authorities” in Article 12 will include all constitutional or statutory authorities on whom powers are
conferred by law. The State itself is envisaged under Article 298 as having the right to carry on trade and
business. The State as defined in Article 12 is comprehended to include bodies created for the purpose of
promoting economic interests of the people. The circumstance that the statutory body is required to carry on
some activities of the nature of trade or commerce does not indicate that the Board must be excluded from the
scope of the word ‘State’. The Electricity Supply Act showed that the Board had power to give directions, the
disobedience of which is punishable as a criminal offence. The power to issue directions and to enforce
compliance is an important aspect,
Dealing with governmental purposes and public authorities, the court clarified:
In the British Broadcasting Corporation v. Johns (Inspector of Taxes) [(1965) 1 Ch. 32], it was
said that persons who are created to carry out governmental purposes enjoy immunity like Crown
servants. Government purposes include the traditional provinces of government as well as non-
traditional provinces of government if the Crown has constitutionally asserted that they are to be
within the province of government. . . .
A public authority is a body which has public or statutory duties to perform and which performs
those duties and carries out its transactions for the benefit of the public and not for private profit,
(emphasis added)

8|Page
46. Taking up each statute and analysing its provisions the learned Chief Justice concluded:
The structure of the Life Insurance Corporation indicates that the Corporation is an agency of the
government carrying on the exclusive business of life insurance. Each and every provision shows in
no uncertain terms that the voice is that of the Central Government and the hands are also of the
Central Government.
These provisions of the Industrial Finance Corporation Act show that the Corporation is in effect
managed and controlled by the Central Government, (emphasis added)
The italicised portion pithily sums up the meat of the matter. If the voice is of the government and so also
the hands, the face will not hide the soul. There is nothing in this judgment which goes against a Government
company being regarded as ‘State’. On the contrary, the thrust of the logic and the generality of the law are far
from restrictive and apply to all bodies which fill the bill.
47. Mathew, J. is more positive in his conception of ‘State’ under Article 12:
The concept of State has undergone drastic changes in recent years. Today State cannot be
conceived of simply as a coercive machinery wielding the thunderbolt of authority. It has to be viewed
mainly as a service corporation:
If we clearly grasp the character of the state as a social agent, understanding it rationally as a form
of service and not mystically as an ultimate power, we shall differ only in respect of the limits of its
ability to render service.
A state is an abstract entity. It can only act through the instrumentality or agency of natural or
judicial persons. Therefore, there is nothing strange in the notion of the State acting through a
corporation and making it an agency or instrumentality of the State.
The tasks of government multiplied with the advent of the welfare State and consequently, the
framework of civil service administration became increasingly insufficient for handling the new tasks
which were often of a specialised and highly technical character. At the same time, ‘bureaucracy’
came under a cloud. The distrust of government by civil service, justified or not, was a powerful factor
in the development of a policy of public administration through separate corporations which would
operate largely according to business principles and be separately accountable.
The public corporation, therefore, became a third arm of the government. In Great Britain, the
conduct of basic industries through giant corporation is now a permanent feature of public life.
The Indian situation is an a fortiori case, what with Part IV of the Constitution and the Government of
India Resolution on Industrial Policy of 1956:
Accordingly, the State will progressively assume a predominant and direct responsibility for setting up
new industrial undertakings and for developing transport facilities. It will also undertake State trading
on an increasing scale.
48. Of course, mere State aid to a company will not make its actions State actions. Mathew, J. leaned to
the view that:
State financial support plus an unusual degree of control over the management and policies might lead
one to characterise an operation as state action.
Indeed, the learned Judge went much farther:
Another factor which might be considered is whether the operation is an important public
function. The combination of State aid and the furnishing of an important public service may result in
a conclusion that the operation should be classified as a State agency. If a given function is of such
public importance and so closely related to governmental functions as to be classified as a
governmental agency, then even the presence or absence of state financial aid might be irrelevant in
making a finding of state action If the function does not fall within such a description, then mere
addition of State money would not influence the conclusion.
It must be noticed that the emphasis is on functionality plus State control rather than on the statutory
character of the Corporation:
Institutions engaged in matters of high public interests or performing public functions are by
virtue of the nature of the function performed government agencies. Activities which are too
fundamental to the society are by definition too important not to be considered government functions.
49. We may read the ratio from the judgment of Mathew, J. where he says:

9|Page
It is clear from those provisions that the Central Government has contributed the original capital
of the corporation, that part of the profit of the corporation goes to that Government, that the Central
Government exercises control over the policy of the Corporation, that the Corporation carries on a
business having great public importance and that it enjoys a monopoly in the business. I would draw
the same conclusions from the relevant provisions of the Industrial Finance Corporation Act which
have also been referred to in the aforesaid judgment. In these circumstances, I think, these
corporations are agencies or instrumentalities of the ‘State’ and are, therefore, ‘State’ within the
meaning of Article 12. The fact that these corporations have independent personalities in the eye of
law does not mean that they are not subject to the control of government or that they are not
instrumentalities of the government. These corporations are instrumentalities or agencies of the State
for carrying on businesses which otherwise would have been run by the State departmentally. If the
State had chosen to carry on these businesses through the medium of Government Departments, there
would have been no question that actions of these departments would be ‘State actions’. Why then
should the actions be not State actions?
(M)erely because a corporation has legal personality of its own, it does not follow that the
corporation cannot be an agent or instrumentality of the State, if it is subject to control of government
in all important matters of policy. No doubt, there might be some distinction between the nature of
control exercised by principal over agent and the control exercised by government over public
corporation. That, I think is only a distinction in degree. The crux of the matter is that public
corporation is a new type of institution which has sprung from the new social and economic functions
of government and that it therefore does not neatly fit into old legal categories. Instead of forcing it
into them, the later should be adapted to the needs of changing times and conditions.
50. There is nothing in these observations to confine the concept of State to statutory corporations. Nay,
the tests are common to any agency or instrumentality, the key factor being the brooding presence of the State
behind the operations of the body, statutory or other.
51. A study of Sukhdev case yields the clear result that the preponderant considerations for pronouncing
an entity as State agency or instrumentality are financial resources of the State being the chief finding source,
functional character being governmental in essence, plenary control residing in government, prior history of
the same activity having been carried on by government and made over to the new body and some element of
authority or command. Whether the legal person is a corporation created by a statute, as distinguished from
under a statute, is not an important criterion although it may be an indicium. Applying the constellation of
criteria collected by us from Airport Authority, on a cumulative basis, to the given case, there is enough
material to hold that the Bharat Petroleum Corporation is ‘State’ within the enlarged meaning of Article 12.
52. The Rajasthan Electricity Board case (the majority judgment of Bhargava, J.) is perfectly compatible
with the view we take of Article 12 or has been expressed in Sukhdev and the Airport Authority. The short
question that fell for decision was as to whether the Electricity Board was ‘State’. There was no debate, no
discussion and no decision on the issue of excluding from the area of State under Article 12, units incorporated
under a statute as against those created by a statute. On the other hand, the controversy was over the exclusion
from the definition of State in Article 12 corporations engaged in commercial activities. This plea for a narrow
meaning was negatived by Bhargava, J. and in that context the learned Judge explained the signification of
“other authorities” in Article 12:
The meaning of the word “authority” given in WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY, which can be applicable, is “a public administrative agency or corporation having
quasi-governmental powers authorised to administer a revenue-producing public enterprise”. This
dictionary meaning of the word “authority” is clearly wide enough to include all bodies created by a
statute on which powers are conferred to carry out governmental or quasi-governmental functions.
The expression “other authorities” is wide enough to include within it every authority created by a
statute and functioning within the territory of India, or under the control of the Government of India;
and we do not see any reason to narrow down this meaning in the context in which the words “other
authorities” are used in Article 12 of the Constitution.
These decisions of the court support our view that the expression “other authorities” in Article 12
will include all constitutional or statutory authorities on whom powers conferred may be for the
purpose of carrying on commercial activities. Under the Constitution, the State is itself envisaged as
having the right to carry on trade or business as mentioned in Article 19(1)(g). In Part IV, the State
has been given the same meaning as in Article 12 and one of the directive principles laid down in

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Article 46 is that the State shall promote with special care the educational and economic interests of
the weaker sections of the people. The State, as defined in Article 12, is thus comprehended to include
bodies created for the purpose of promoting the educational and economic interests of the people. The
State, as constituted by our Constitution, is further specifically empowered under Article 298 to carry
on any trade or business. The circumstance that the Board under the Electricity Supply Act, is required
to carry on some activities of the nature of trade or commerce does not, therefore, give any indication
that the Board must be excluded from the scope of the word “State” as used in Article 12.
The meaning of the learned Judge is unmistakable that “the State” in Article 12 comprehends bodies
created for the purpose of promoting economic activities. These bodies may be statutory corporations,
registered societies, Government companies or other like entities. The court was not called upon to consider
this latter aspect, but to the extent to which the holding goes, it supports the stand of the petitioners.
54. Imagine the possible result of holding that a Government company, being just an entity created under a
statute, not by a statute, it is not ‘State’. Having regard to the directive in Article 38 and the amplitude of the
other Articles in Part IV government may appropriately embark upon almost any activity which in a non-
socialist republic may fall within the private sector. Any person’s employment, entertainment, travel, rest and
leisure, hospital facility and funeral service may be controlled by the State. And if all these enterprises are
executed through Government companies, bureaus, societies, councils, institutes and homes, the citizen may
forfeit his fundamental freedoms vis-a-vis these strange beings which are government in fact but corporate in
form. If only fundamental rights were forbidden access to corporations, companies, bureaus, institutes,
councils and kindred bodies which act as agencies of the Administration, there may be a breakdown of the rule
of law and the constitutional order in a large sector of governmental activity carried on under the guise of
‘jural persons’. It may pave the way for a new tyranny by arbitrary administrators operated from behind by
government but unaccountable to Part III of the Constitution. We cannot assent to an interpretation which
leads to such a disastrous conclusion unless the language of Article 12 offers no other alternative.
55. It is well known that “corporations have neither bodies to be kicked, nor souls to be damned” and
Government corporations are mammoth organisations
It is dangerous to exonerate corporations from the need to have constitutional conscience; and so, that
interpretation, language permitting, which makes governmental agencies, whatever their mien, amenable to
constitutional limitations must be adopted by the court as against the alternative of permitting them to flourish
as an imperium in imperio.
56. The common sense signification of the expression “other authorities under the control of the
Government of India” is plain and there is no reason to make exclusions on sophisticated grounds such as that
the legal person must be a statutory corporation, must have power to make laws, must be created by and not
under a statute and so on.
*****

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Pradeep Kumar Biswas v. Indian Institute of Chemical Biology
(2002) 5 SCC 111
RUMA PAL, J. - In 1972 Sabhajit Tewary, a Junior Stenographer with the Council of Scientific and
Industrial Research (CSIR) filed a writ petition under Article 32 of the Constitution claiming parity of
remuneration with the Stenographers who were newly recruited to CSIR. His claim was based on Article 14 of
the Constitution. A Bench of five Judges of this Court denied him the benefit of that article because they held
in Sabhajit Tewary v. Union of India [(1975) 1 SCC 485] that the writ application was not maintainable
against CSIR as it was not an “authority” within the meaning of Article 12 of the Constitution. The correctness
of the decision is before us for reconsideration.
2. The immediate cause for such reconsideration is a writ application filed by the appellants in the Calcutta
High Court challenging the termination of their services by Respondent 1 which is a unit of CSIR. They
prayed for an interim order before the learned Single Judge. That was refused by the Court on the prima facie
view that the writ application was itself not maintainable against Respondent 1. The appeal was also dismissed
in view of the decision of this Court in Sabhajit Tewary case.
3. Challenging the order of the Calcutta High Court, the appellants filed an appeal by way of special leave
before this Court. On 5-8-1986, a Bench of two Judges of this Court referred the matter to a Constitution
Bench being of the view that the decision in Sabhajit Tewary required reconsideration “having regard to the
pronouncement of this Court in several subsequent decisions in respect of several other institutes of similar
nature set up by the Union of India”.
4. The questions therefore before us are - is CSIR a State within the meaning of Article 12 of the
Constitution and if it is, should this Court reverse a decision which has stood for over a quarter of a century?
5. The Constitution has to an extent defined the word “State” in Article 12 itself as including
“the Government and Parliament of India and the Government and the Legislature of each of the
States and all local or other authorities within the territory of India or under the control of the
Government of India”.
6. That an “inclusive” definition is generally not exhaustive is a statement of the obvious and as far as
Article 12 is concerned, has been so held by this Court. The words “State” and “authority” used in Article 12
therefore remain, to use the words of Cardozo, among “the great generalities of the Constitution” the content
of which has been and continues to be supplied by courts from time to time.
7. It would be a practical impossibility and an unnecessary exercise to note each of the multitude of
decisions on the point. It is enough for our present purposes to merely note that the decisions may be
categorized broadly into those which express a narrow and those that express a more liberal view and to
consider some decisions of this Court as illustrative of this apparent divergence. In the ultimate analysis the
difference may perhaps be attributable to different stages in the history of the development of the law by
judicial decisions on the subject.
8. But before considering the decisions it must be emphasized that the significance of Article 12 lies in the
fact that it occurs in Part III of the Constitution which deals with fundamental rights. The various articles in
Part III have placed responsibilities and obligations on the “State” vis-à-vis the individual to ensure
constitutional protection of the individual’s rights against the State, including the right to equality under
Article 14 and equality of opportunity in matters of public employment under Article 16 and most importantly,
the right to enforce all or any of these fundamental rights against the “State” as defined in Article 12 either
under Article 32 by this Court or under Article 226 by the High Courts by issuance of writs or directions or
orders.

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9. The range and scope of Article 14 and consequently Article 16 have been widened by a process of
judicial interpretation so that the right to equality now not only means the right not to be discriminated against
but also protection against any arbitrary or irrational act of the State.
10. Keeping pace with this broad approach to the concept of equality under Articles 14 and 16, courts have
whenever possible, sought to curb an arbitrary exercise of power against individuals by “centres of power”,
and there was correspondingly an expansion in the judicial definition of “State” in Article 12.
11. Initially the definition of State was treated as exhaustive and confined to the authorities or those which
could be read ejusdem generis with the authorities mentioned in the definition of Article 12 itself. The next
stage was reached when the definition of “State” came to be understood with reference to the remedies
available against it. For example, historically, a writ of mandamus was available for enforcement of statutory
duties or duties of a public nature. Thus a statutory corporation, with regulations framed by such corporation
pursuant to statutory powers was considered a State, and the public duty was limited to those which were
created by statute.
12. The decision of the Constitution Bench of this Court in Rajasthan SEB v. Mohan Lal [(1969) 1 SCC
585] is illustrative of this. The question there was whether the Electricity Board - which was a corporation
constituted under a statute primarily for the purpose of carrying on commercial activities could come within
the definition of “State” in Article 12. After considering earlier decisions, it was said:
“These decisions of the Court support our view that the expression ‘other authorities’ in Article 12
will include all constitutional or statutory authorities on whom powers are conferred by law. It is not
at all material that some of the powers conferred may be for the purpose of carrying on commercial
activities.”
13. It followed that since a company incorporated under the Companies Act is not formed statutorily and is
not subject to any statutory duty vis-à-vis an individual, it was excluded from the purview of “State”. In Praga
Tools Corpn. v. C.A. Imanual [AIR 1967 SC 1857] where the question was whether an application under
Article 226 for issuance of a writ of mandamus would lie impugning an agreement arrived at between a
company and its workmen, the Court held that:
“[T]here was neither a statutory nor a public duty imposed on it by a statute in respect of which
enforcement could be sought by means of a mandamus, nor was there in its workmen any
corresponding legal right for enforcement of any such statutory or public duty. The High Court,
therefore, was right in holding that no writ petition for a mandamus or an order in the nature of
mandamus could lie against the company.”
14. By 1975, Mathew, J. in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi [(1975) 1 SCC
421] noted that the concept of “State” in Article 12 had undergone “drastic changes in recent years”. The
question in that case was whether the Oil and Natural Gas Commission, the Industrial Finance Corporation and
the Life Insurance Corporation, each of which were public corporations set up by statutes, were authorities and
therefore within the definition of State in Article 12. The Court affirmed the decision in Rajasthan SEB v.
Mohan Lal6 and held that the Court could compel compliance of statutory rules. But the majority view
expressed by A.N. Ray, C.J. also indicated that the concept would include a public authority which
“is a body which has public or statutory duties to perform and which performs those duties and carries
out its transactions for the benefit of the public and not for private profit. Such an authority is not
precluded from making a profit for the public benefit”. (emphasis added)
15. The use of the alternative is significant. The Court scrutinised the history of the formation of the three
Corporations, the financial support given by the Central Government, the utilization of the finances so
provided, the nature of service rendered and noted that despite the fact that each of the Corporations ran on
profits earned by it nevertheless the structure of each of the Corporations showed that the three Corporations
represented the “voice and hands” of the Central Government. The Court came to the conclusion that although
the employees of the three Corporations were not servants of the Union or the State, “these statutory bodies are
‘authorities’ within the meaning of Article 12 of the Constitution”.
16. Mathew, J. in his concurring judgment went further and propounded a view which presaged the
subsequent developments in the law. He said:
“A State is an abstract entity. It can only act through the instrumentality or agency of natural or
juridical persons. Therefore, there is nothing strange in the notion of the State acting through a
corporation and making it an agency or instrumentality of the State.”
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17. For identifying such an agency or instrumentality he propounded four indicia:
(1) “A finding of the State financial support plus an unusual degree of control over the management
and policies might lead one to characterize an operation as State action.”
(2) “Another factor which might be considered is whether the operation is an important public
function.”
(3) “The combination of State aid and the furnishing of an important public service may result in a
conclusion that the operation should be classified as a State agency. If a given function is of such public
importance and so closely related to governmental functions as to be classified as a governmental agency,
then even the presence or absence of State financial aid might be irrelevant in making a finding of State
action. If the function does not fall within such a description, then mere addition of State money would not
influence the conclusion.”
(4) “The ultimate question which is relevant for our purpose is whether such a corporation is an
agency or instrumentality of the Government for carrying on a business for the benefit of the public.
In other words, the question is, for whose benefit was the corporation carrying on the business?”
18. Sabhajit Tewary was decided by the same Bench on the same day as Sukhdev Singh. The contention
of the employee was that CSIR is an agency of the Central Government on the basis of the CSIR Rules which,
it was argued, showed that the Government controlled the functioning of CSIR in all its aspects. The
submission was somewhat cursorily negatived by this Court on the ground that all this
“will not establish anything more than the fact that the Government takes special care that the
promotion, guidance and cooperation of scientific and industrial research, the institution and financing
of specific researches, establishment or development and assistance to special institutions or
departments of the existing institutions for scientific study of problems affecting particular industry in
a trade, the utilisation of the result of the researches conducted under the auspices of the Council
towards the development of industries in the country are carried out in a responsible manner”.
19. Although the Court noted that it was the Government which was taking the “special care” nevertheless
the writ petition was dismissed ostensibly because the Court factored into its decision two premises:
(i) “The society does not have a statutory character like the Oil and Natural Gas Commission, or
the Life Insurance Corporation or Industrial Finance Corporation. It is a Society incorporated in
accordance with the provisions of the Societies Registration Act” and
(ii) “This Court has held in Praga Tools Corpn. v. C.A. Imanual [(1969) 1 SCC 585], Heavy
Engg. Mazdoor Union v. State of Bihar [(1969) 1 SCC 765] and in S.L. Agarwal (Dr) v. G.M.,
Hindustan Steel Ltd. [(1970) 1 SCC 177] that the Praga Tools Corporation, Heavy Engineering
Mazdoor Union and Hindustan Steel Ltd. are all companies incorporated under the Companies Act
and the employees of these companies do not enjoy the protection available to government servants as
contemplated in Article 311. The companies were held in these cases to have independent existence of
the Government and by the law relating to corporations. These could not be held to be departments of
the Government.”
20. With respect, we are of the view that both the premises were not really relevant and in fact contrary to
the “voice and hands” approach in Sukhdev Singh. Besides reliance by the Court on decisions pertaining to
Article 311 which is contained in Part XIV of the Constitution was inapposite. What was under consideration
was Article 12 which by definition is limited to Part III and by virtue of Article 36 to Part IV of the
Constitution. As said by another Constitution Bench later in this context:
“[M]erely because a juristic entity may be an ‘authority’ and therefore ‘State’ within the meaning
of Article 12, it may not be elevated to the position of ‘State’ for the purpose of Articles 309, 310 and
311 which find a place in Part XIV. The definition of ‘State’ in Article 12 which includes an
‘authority’ within the territory of India or under the control of the Government of India is limited in its
application only to Part III and by virtue of Article 36, to Part IV: it does not extend to the other
provisions of the Constitution and hence a juristic entity which may be ‘State’ for the purpose of Parts
III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution. This
is why the decisions of this Court in S.L. Agarwal v. Hindustan Steel Ltd and other cases involving
the applicability of Article 311 have no relevance to the issue before us.”
21. Normally, a precedent like Sabhajit Tewary which has stood for a length of time should not be
reversed, however erroneous the reasoning if it has stood unquestioned, without its reasoning being
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“distinguished” out of all recognition by subsequent decisions and if the principles enunciated in the earlier
decision can stand consistently and be reconciled with subsequent decisions of this Court, some equally
authoritative. In our view Sabhajit Tewary fulfils both conditions.
22. Sidestepping the majority approach in Sabhajit Tewary, the “drastic changes” in the perception of
“State” heralded in Sukhdev Singh by Mathew, J. and the tests formulated by him were affirmed and
amplified in Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489].
Although the International Airport Authority of India is a statutory corporation and therefore within the
accepted connotation of State, the Bench of three Judges developed the concept of State. The rationale for the
approach was the one adopted by Mathew, J. in Sukhdev Singh:
“In the early days, when the Government had limited functions, it could operate effectively
through natural persons constituting its civil service and they were found adequate to discharge
governmental functions, which were of traditional vintage. But as the tasks of the Government
multiplied with the advent of the welfare State, it began to be increasingly felt that the framework of
civil service was not sufficient to handle the new tasks which were often of specialised and highly
technical character. The inadequacy of the civil service to deal with these new problems came to be
realised and it became necessary to forge a new instrumentality or administrative device for handling
these new problems. It was in these circumstances and with a view to supplying this administrative
need that the public corporation came into being as the third arm of the Government.”
23. From this perspective, the logical sequitur is that it really does not matter what guise the State adopts
for this purpose, whether by a corporation established by statute or incorporated under a law such as the
Companies Act or formed under the Societies Registration Act, 1860. Neither the form of the corporation, nor
its ostensible autonomy would take away from its character as “State” and its constitutional accountability
under Part III vis-à-vis the individual if it were in fact acting as an instrumentality or agency of the
Government.
24. As far as Sabhajit Tewary was concerned, it was “explained” and distinguished in Ramana saying:
“The Court no doubt took the view on the basis of facts relevant to the constitution and
functioning of the Council that it was not an ‘authority’, but we do not find any discussion in this case
as to what are the features which must be present before a corporation can be regarded as an
‘authority’ within the meaning of Article 12. This decision does not lay down any principle or test for
the purpose of determining when a corporation can be said to be an ‘authority’. If at all any test can be
gleaned from the decision, it is whether the Corporation is ‘really an agency of the Government’. The
Court seemed to hold on the facts that the Council was not an agency of the Government and was,
therefore, not an ‘authority’.”
25. The tests propounded by Mathew, J. in Sukhdev Singh were elaborated in Ramana and were
reformulated two years later by a Constitution Bench in Ajay Hasia v. Khalid Mujib Sehravardi. What may
have been technically characterised as obiter dicta in Sukhdev Singh and Ramana (since in both cases the
“authority” in fact involved was a statutory corporation), formed the ratio decidendi of Ajay Hasia. The case
itself dealt with a challenge under Article 32 to admissions made to a college established and administered by
a society registered under the Jammu and Kashmir Registration of Societies Act, 1898. The contention of the
Society was that even if there were an arbitrary procedure followed for selecting candidates for admission, and
that this may have resulted in denial of equality to the petitioners in the matter of admission in violation of
Article 14, nevertheless Article 14 was not available to the petitioners because the Society was not a State
within Article 12.
26. The Court recognised that:
“Obviously the Society cannot be equated with the Government of India or the Government of
any State nor can it be said to be a local authority and therefore, it must come within the expression
‘other authorities’ if it is to fall within the definition of ‘State’.”
But it said that:
“The courts should be anxious to enlarge the scope and width of the Fundamental Rights by
bringing within their sweep every authority which is an instrumentality or agency of the Government
or through the corporate personality of which the Government is acting, so as to subject the
Government in all its myriad activities, whether through natural persons or through corporate entities,
to the basic obligation of the Fundamental Rights.”
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It was made clear that the genesis of the corporation was immaterial and that:
“The concept of instrumentality or agency of the Government is not limited to a corporation
created by a statute but is equally applicable to a company or society and in a given case it would have
to be decided, on a consideration of the relevant factors, whether the company or society is an
instrumentality or agency of the Government so as to come within the meaning of the expression
‘authority’ in Article 12.”
27. Ramana was noted and quoted with approval in extenso and the tests propounded for determining as to
when a corporation can be said to be an instrumentality or agency of the Government therein were culled out
and summarised as follows:
“(1) One thing is clear that if the entire share capital of the corporation is held by Government, it
would go a long way towards indicating that the corporation is an instrumentality or agency of
Government.
(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the
corporation, it would afford some indication of the corporation being impregnated with governmental
character.
(3) It may also be a relevant factor ... whether the corporation enjoys monopoly status which is State-
conferred or State-protected.
(4) Existence of deep and pervasive State control may afford an indication that the corporation is a
State agency or instrumentality.
(5) If the functions of the corporation are of public importance and closely related to governmental
functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of
Government.
(6) ‘Specifically, if a department of Government is transferred to a corporation, it would be a strong
factor supportive of this inference’ of the corporation being an instrumentality or agency of Government.”
28. In dealing with Sabhajit Tewary the Court in Ajay Hasia noted that since Sabhajit Tewary was a
decision given by a Bench of five Judges of this Court, it was undoubtedly binding. The Court read Sabhajit
Tewary as implicitly assenting to the proposition that CSIR could have been an instrumentality or agency of
the Government even though it was a registered society and limited the decision to the facts of the case. It held
that the Court in Sabhajit Tewary:
“did not rest its conclusion on the ground that the Council was a society registered under the Societies
Registration Act, 1860, but proceeded to consider various other features of the Council for arriving at
the conclusion that it was not an agency of the Government and therefore not an ‘authority’ ”.
29. The conclusion was then reached applying the tests formulated to the facts that the Society in Ajay
Hasia was an authority falling within the definition of “State” in Article 12.
30. On the same day that the decision in Ajay Hasia was pronounced came the decision of Som Prakash
Rekhi v. Union of India. Here too, the reasoning in Ramana was followed and Bharat Petroleum Corporation
was held to be a “State” within the “enlarged meaning of Article 12”. Sabhajit Tewary was criticised and
distinguished as being limited to the facts of the case. It was said:
“The rulings relied on are, unfortunately, in the province of Article 311 and it is clear that a body may
be ‘State’ under Part III but not under Part XIV. Ray, C.J., rejected the argument that merely because the
Prime Minister was the President or that the other members were appointed and removed by Government
did not make the Society a ‘State’. With great respect, we agree that in the absence of the other features
elaborated in Airport Authority case the composition of the governing body alone may not be decisive.
The laconic discussion and the limited ratio in Tewary hardly help either side here.”
31. The tests to determine whether a body falls within the definition of “State” in Article 12 laid down in
Ramana with the Constitution Bench imprimatur in Ajay Hasia form the keystone of the subsequent
jurisprudential superstructure judicially crafted on the subject which is apparent from a chronological
consideration of the authorities cited.
32. In P.K. Ramachandra Iyer v. Union of India [(1984) 2 SCC 141], it was held that both the Indian
Council of Agricultural Research (ICAR) and its affiliate the Indian Veterinary Research Institute were bodies
as would be comprehended in the expression “other authority” in Article 12 of the Constitution. Yet another
judicial blow was dealt to the decision in Sabhajit Tewary when it was said:
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“Much water has flown down the Jamuna since the dicta in Sabhajit Tewary case and conceding
that it is not specifically overruled in later decision, its ratio is considerably watered down so as to be
a decision confined to its own facts.”
33. B.S. Minhas v. Indian Statistical Institute [(1983) 4 SCC 582] held that the Indian Statistical Institute,
a registered society is an instrumentality of the Central Government and as such is an “authority” within the
meaning of Article 12 of the Constitution. The basis was that the composition of Respondent 1 is dominated by
the representatives appointed by the Central Government. The money required for running the Institute is
provided entirely by the Central Government and even if any other moneys are to be received by the Institute,
it can be done only with the approval of the Central Government, and the accounts of the Institute have also to
be submitted to the Central Government for its scrutiny and satisfaction. The Society has to comply with all
such directions as may be issued by the Central Government. It was held that the control of the Central
Government is deep and pervasive.
34. The decision in Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly [(1986) 3 SCC
156] held that the appellant Company was covered by Article 12 because it is financed entirely by three
Governments and is completely under the control of the Central Government and is managed by the Chairman
and Board of Directors appointed by the Central Government and removable by it and also that the activities
carried on by the Corporation are of vital national importance.
35. However, the tests propounded in Ajay Hasia were not applied in Tekraj Vasandi v. Union of India
[(1988) 1 SCC 236] where the Institute of Constitutional and Parliamentary Studies (ICPS), a society
registered under the Societies Registration Act, 1860 was held not be an “other authority” within the meaning
of Article 12. The reasoning is not very clear. All that was said was:
“Having given our anxious consideration to the facts of this case, we are not in a position to hold
that ICPS is either an agency or instrumentality of the State so as to come within the purview of ‘other
authorities’ in Article 12 of the Constitution.”
36. However, the Court was careful to say that “ICPS is a case of its type - typical in many ways and the
normal tests may perhaps not properly apply to test its character”
38. Perhaps this rather overenthusiastic application of the broad limits set by Ajay Hasia may have
persuaded this Court to curb the tendency in Chander Mohan Khanna v. National Council of Educational
Research and Training [(1991) 4 SCC 576]. The Court referred to the tests formulated in Sukhdev Singh,
Ramana, Ajay Hasia and Som Prakash Rekhi but striking a note of caution said that “these are merely
indicative indicia and are by no means conclusive or clinching in any case”. In that case, the question arose
whether the National Council of Educational Research (NCERT) was a “State” as defined under Article 12 of
the Constitution. NCERT is a society registered under the Societies Registration Act. After considering the
provisions of its memorandum of association as well as the rules of NCERT, this Court came to the conclusion
that since NCERT was largely an autonomous body and the activities of NCERT were not wholly related to
governmental functions and that the government control was confined only to the proper utilisation of the
grant and since its funding was not entirely from government resources, the case did not satisfy the
requirements of the State under Article 12 of the Constitution. The Court relied principally on the decision in
Tekraj Vasandi v. Union of India. However, as far as the decision in Sabhajit Tewary v. Union of India was
concerned, it was noted that the “decision has been distinguished and watered down in the subsequent
decisions”.
39. Fresh off the judicial anvil is the decision in Mysore Paper Mills Ltd. v. Mysore Paper Mills Officers’
Assn [(2002) 2 SCC 167] which fairly represents what we have seen as a continuity of thought commencing
from the decision in Rajasthan Electricity Board in 1967 up to the present time. It held that a company
substantially financed and financially controlled by the Government, managed by a Board of Directors
nominated and removable at the instance of the Government and carrying on important functions of public
interest under the control of the Government is “an authority” within the meaning of Article 12.
40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia010 are not a rigid set of
principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State
within the meaning of Article 12. The question in each case would be - whether in the light of the cumulative
facts as established, the body is financially, functionally and administratively dominated by or under the
control of the Government. Such control must be particular to the body in question and must be pervasive. If
this is found then the body is a State within Article 12. On the other hand, when the control is merely
regulatory whether under statute or otherwise, it would not serve to make the body a State.
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41. Coming now to the facts relating to CSIR, we have no doubt that it is well within the range of Article
12, a conclusion which is sustainable when judged according to the tests judicially evolved for the purpose.
The formation of CSIR
42. On 27-4-1940, the Board of Scientific and Industrial Research and on 1-2-1941, the Industrial
Research Utilisation Committee were set up by the Department of Commerce, Government of India with the
broad objective of promoting industrial growth in this country. On 14-11-1941, a Resolution was passed by the
Legislative Assembly and accepted by the Government of India.
43. For the purpose of coordinating and exercising administrative control over the working of the two
research bodies already set up by the Department of Commerce, and to oversee the proper utilisation of the
Industrial Research Fund, by a further Resolution dated 26-9-1942, the Government of India decided to set up
a Council of Industrial Research on a permanent footing which would be a registered society under the
Registration of Societies Act, 1860. Pursuant to the Resolution, on 12-3-1942 CSIR was duly registered. Bye-
laws and rules were framed by the Governing Body of the Society in 1942 which have been subsequently
revised and amended. Unquestionably this shows that CSIR was “created” by the Government to carry on in
an organized manner what was being done earlier by the Department of Commerce of the Central Government.
In fact the two research bodies which were part of the Department of Commerce have since been subsumed in
CSIR.
Objects and functions
44. The 26-9-1942 Resolution had provided that the functions of CSIR would be:
(a) to implement and give effect to the following resolution moved by the Hon’ble Dewan Bahadur Sir
A.R. Mudaliar and passed by the Legislative Assembly on 14-11-1941 and accepted by the Government of
India; … (quoted earlier in this judgment)
(b) the promotion, guidance and coordination of scientific and industrial research in India including
the institution and the financing of specific researches;
(c) the establishment or development and assistance to special institutions or department of existing
institutions for scientific study of problems affecting particular industries and trade;
(d) the establishment and award of research studentships and fellowships;
(e) the utilisation of the results of the researches conducted under the auspices of the Council towards
the development of industries in the country and the payment of a share of royalties arising out of the
development of the results of researches to those who are considered as having contributed towards the
pursuit of such researches;
(f) the establishment, maintenance and management of laboratories, workshops, institutes, and
organisation to further scientific and industrial research and utilise and exploit for purposes of experiment
or otherwise any discovery or invention likely to be of use to Indian industries;
(g) the collection and dissemination or information in regard not only to research but to industrial
matters generally;
(h) publication of scientific papers and a journal of industrial research and development; and
(i) any other activities to promote generally the objects of the resolution mentioned in (a) above.
45. These objects which have been incorporated in the memorandum of association of CSIR manifestly
demonstrate that CSIR was set up in the national interest to further the economic welfare of the society by
fostering planned industrial development in the country. That such a function is fundamental to the governance
of the country has already been held by a Constitution Bench of this Court as far back as in 1967 in Rajasthan
SEB v. Mohan Lal where it was said:
“The State, as defined in Article 12, is thus comprehended to include bodies created for the
purpose of promoting the educational and economic interests of the people.”
46. We are in respectful agreement with this statement of the law. The observations to the contrary in
Chander Mohan Khanna v. NCERT relied on by the learned Attorney-General in this context, do not
represent the correct legal position.
47. Incidentally, CSIR was and continues to be a non-profit-making organization and according to clause 4
of CSIR’s memorandum of association, all its income and property, however derived shall be applied only

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“towards the promotion of those objects subject nevertheless in respect of the expenditure to such limitations
as the Government of India may from time to time impose”.
Management and control
48. When the Government of India resolved to set up CSIR on 26-2-1942, it also decided that the
Governing Body would consist of the following members:
(1) The Honourable Member of the Council of His Excellency the Governor-General in charge of the
portfolio of Commerce (ex officio).
(2) A representative of the Commerce Department of the Government of India, appointed by the
Government of India.
(3) A representative of the Finance Department of the Government of India, appointed by the
Government of India.
(4) Two members of the Board of Scientific and Industrial Research elected by the said Board.
(5) Two members of the Industrial Research Utilisation Committee elected by the said Committee.
(6) The Director of Scientific and Industrial Research.
(7) One or more members to be nominated by the Government of India to represent interests not
otherwise represented.
49. The present Rules and Regulations, 1999 of CSIR provide that:
“(a) The Prime Minister of India shall be the ex officio President of the Society.
(b) The Minister in charge of the ministry or department, dealing with the Council of Scientific and
Industrial Research shall be the ex officio Vice-President of the Society:
Provided that during any period when the Prime Minister is also such Minister, any person nominated
in this behalf by the Prime Minister shall be the Vice-President.
(c) Minister in charge of Finance and Industry (ex officio).
(d) The members of the Governing Body.
(e) Chairman, Advisory Board.
(f) Any other person or persons appointed by the President, CSIR.”
The Governing Body of the Society is constituted by the:
(a) Director General;
(b) Member Finance;
(c) Directors of two national laboratories;
(d) Two eminent Scientists/Technologists, one of whom shall be from academia;
(e) Heads of two scientific departments/agencies of the Government of India.
50. The dominant role played by the Government of India in the Governing Body of CSIR is evident. The
Director General who is ex officio Secretary of the Society is appointed by the Government of India [Rule
2(iii)]. The submission of the learned Attorney-General that the Governing Body consisted of members, the
majority of whom were non-governmental members is, having regard to the facts on record, unacceptable.
Furthermore, the members of the Governing Body who are not there ex officio are nominated by the President
and their membership can also be terminated by him and the Prime Minister is the ex officio President of
CSIR. It was then said that although the Prime Minister was ex officio President of the Society but the power
being exercised by the Prime Minister is as President of the Society. This is also the reasoning in Sabhajit
Tewary. With respect, the reasoning was and the submission is erroneous. An ex officio appointment means
that the appointment is by virtue of the office; without any other warrant or appointment than that resulting
from the holding of a particular office. Powers may be exercised by an officer, in this case the Prime Minister,
which are not specifically conferred upon him, but are necessarily implied in his office (as Prime Minister),
these are ex officio.
51. The control of the Government in CSIR is ubiquitous. The Governing Body is required to administer,
direct and control the affairs and funds of the Society and shall, under Rule 43, have authority “to exercise all
the powers of the Society subject nevertheless in respect of expenditure to such limitations as the Government
of India may from time to time impose”. The aspect of financial control by the Government is not limited to
this and is considered separately. The Governing Body also has the power to frame, amend or repeal the bye-
laws of CSIR but only with the sanction of the Government of India. Bye-law 44 of the 1942 Bye-laws had
provided “any alteration in the bye-laws shall require the prior approval of the Governor-General-in-Council”.
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52. Rule 41 of the present Rules provides that:
“The President may review/amend/vary any of the decisions of the Governing Body and pass such
orders as considered necessary to be communicated to the Chairman of the Governing Body within a
month of the decision of the Governing Body and such order shall be binding on the Governing Body. The
Chairman may also refer any question which in his opinion is of sufficient importance to justify such a
reference for decision of the President, which shall be binding on the Governing Body.” (emphasis added)
53. Given the fact that the President of CSIR is the Prime Minister, under this Rule the subjugation of the
Governing Body to the will of the Central Government is complete.
54. As far as the employees of CSIR are concerned the Central Civil Services (Classification, Control and
Appeal) Rules and the Central Civil Services (Conduct) Rules, for the time being in force, are from the outset
applicable to them subject to the modification that references to the “President” and “government servant” in
the Conduct Rules would be construed as “President of the Society” and “officer and establishments in the
service of the Society” respectively (Bye-law 12). The scales of pay applicable to all the employees of CSIR
are those prescribed by the Government of India for similar personnel, save in the case of specialists (Bye-law
14) and in regard to all matters concerning service conditions of employees of CSIR, the Fundamental and
Supplementary Rules framed by the Government of India and such other rules and orders issued by the
Government of India from time to time are also, under Bye-law 15 applicable to the employees of CSIR. Apart
from this, the rules/orders issued by the Government of India regarding reservation of posts for SC/ST apply in
regard to appointments to posts to be made in CSIR (Bye-law 19). CSIR cannot lay down or change the terms
and conditions of service of its employees and any alteration in the bye-laws can be carried out only with the
approval of the Government of India (Bye-law 20).
Financial aid
55. The initial capital of CSIR was Rs 10 lakhs, made available pursuant to the Resolution of the
Legislative Assembly on 14-11-1941. Paragraph 5 of the 26-9-1942 Resolution of the Government of India
pursuant to which CSIR was formed reads:
“The Government of India have decided that a fund, viz., the Industrial Research Fund, should be
constituted by grants from the Central revenues to which additions are to be made from time to time as
moneys flow in from other sources. These ‘other sources’ will comprise grants, if any, by Provincial
Governments, by industrialists for special or general purposes, contributions from universities or local
bodies, donations or benefactions, royalties, etc., received from the development of the results of
industrial research, and miscellaneous receipts. The Council of Scientific and Industrial Research will
exercise full powers in regard to the expenditure to be met out of the Industrial Research Fund subject
to its observing the bye-laws framed by the Governing Body of the Council, from time to time, with
the approval of the Governor- General-in-Council, and to its annual budget being approved by the
Governor-General-in-Council.”
56. As already noted, the initial capital of Rs 10 lakhs was made available by the Central Government.
According to the statement handed up to the Court on behalf of CSIR the present financial position of CSIR is
that at least 70% of the funds of CSIR are available from grants made by the Government of India. For
example, out of the total funds available to CSIR for the years 1998-99, 1999-2000, 2000-01 of Rs
1023.68 crores, Rs 1136.69 crores and Rs 1219.04 crores respectively, the Government of India
has contributed Rs 713.32 crores, Rs 798.74 crores and Rs 877.88 crores. A major portion of the balance of the
funds available is generated from charges for rendering research and development works by CSIR for projects
such as the Rajiv Gandhi Drinking Water Mission, Technology Mission on oilseeds and pulses and maize or
grant-in-aid projects from other government departments. Funds are also received by CSIR from sale proceeds
of its products, publications, royalties etc. Funds are also received from investments but under Bye-law 6 of
CSIR, funds of the Society may be invested only in such manner as prescribed by the Government of India.
Some contributions are made by the State Governments and to a small extent by “individuals, institutions and
other agencies”. The non-governmental contributions are a pittance compared to the massive governmental
input.
57. As far as expenditure is concerned, under Bye-law 1 as it stands at present, the budget estimates of the
Society are to be prepared by the Governing Body “keeping in view the instructions issued by the Government
of India from time to time in this regard”. Apart from an internal audit, the accounts of CSIR are required to be
audited by the Comptroller and Auditor-General and placed before the table of both Houses of Parliament
(Rule 69).
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58. In the event of dissolution, unlike other registered societies which are governed by Section 14 of the
Societies Registration Act, 1860, the members of CSIR have no say in the distribution of its assets and under
clause 5 of the memorandum of association of CSIR, on the winding up or dissolution of CSIR any property
remaining after payment of all debts shall have to be dealt with “in such manner as the Government of India
may determine”. CSIR is therefore both historically and in its present operation subject to the financial control
of the Government of India. The assets and funds of CSIR though nominally owned by the Society are in the
ultimate analysis owned by the Government.
59. From whichever perspective the facts are considered, there can be no doubt that the conclusion reached
in Sabhajit Tewary was erroneous. If the decision of Sabhajit Tewary had sought to lay down as a legal
principle that a society registered under the Societies Act or a company incorporated under the Companies Act
is, by that reason alone, excluded from the concept of State under Article 12, it is a principle which has long
since been discredited. “Judges have made worthy, if shamefaced, efforts, while giving lip service to the rule,
to riddle it with exceptions and by distinctions reduce it to a shadow.”
60. In the assessment of the facts, the Court had assumed certain principles, and sought precedential
support from decisions which were irrelevant and had “followed a groove chased amidst a context which has
long since crumbled”. Had the facts been closely scrutinised in the proper perspective, it could have led and
can only lead to the conclusion that CSIR is a State within the meaning of Article 12.
61. Should Sabhajit Tewary still stand as an authority even on the facts merely because it has stood for 25
years? We think not. Parallels may be drawn even on the facts leading to an untenable interpretation of Article
12 and a consequential denial of the benefits of fundamental rights to individuals who would otherwise be
entitled to them and
“[t]here is nothing in our Constitution which prevents us from departing from a previous decision if we are
convinced of its error and its baneful effect on the general interests of the public”
Since on a re-examination of the question we have come to the conclusion that the decision was plainly
erroneous, it is our duty to say so and not perpetuate our mistake.
62. Besides a new fact relating to CSIR has come to light since the decision in Sabhajit Tewary which
unequivocally vindicates the conclusion reached by us and fortifies us in delivering the coup de grâce to the
already attenuated decision in Sabhajit Tewary. On 31-10-1986, in exercise of the powers conferred by sub-
section (2) of Section 14 of the Administrative Tribunals Act, 1985, the Central Government specified 17-11-
1986 as the date on and from which the provisions of sub-section (3) of Section 14 of the 1985 Act would
apply to CSIR “being the Society owned and controlled by Government”.
63. The learned Attorney-General contended that the notification was not conclusive of the fact that CSIR
was a State within the meaning of Article 12 and that even if an entity is not a State within the meaning of
Article 12, it is open to the Government to issue a notification for the purpose of ensuring the benefits of the
provisions of the Act to its employees.
64. We cannot accept this. Reading Article 323-A of the Constitution and Section 14 of the 1985 Act it is
clear that no notification under Section 14(2) of the Administrative Tribunals Act could have been issued by
the Central Government unless the employees of CSIR were either appointed to public services and posts in
connection with the affairs of the Union or of any State or of any local or other authority within the territory of
India or under the control of the Government of India or of any corporation owned or controlled by the
Government. Once such a notification has been issued in respect of CSIR, the consequence will be that an
application would lie at the instance of the appellants at least before the Administrative Tribunal. No new
jurisdiction was created in the Administrative Tribunal. The notification which was issued by the Central
Government merely served to shift the service disputes of the employees of CSIR from the constitutional
jurisdiction of the High Court under Article 226 to the Administrative Tribunals on the factual basis that CSIR
was amenable to the writ jurisdiction as a State or other authority under Article 12 of the Constitution.
65. Therefore, the notification issued in 1986 by the Central Government under Article 14(2) of the
Administrative Tribunals Act, 1985 serves in removing any residual doubt as to the nature of CSIR and
decisively concludes the issues before us against it.
66. Sabhajit Tewary decision must be and is in the circumstances overruled. Accordingly the matter is
remitted back to the appropriate Bench to be dealt with in the light of our decision.
*****
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Zee Telefilms Ltd. v. Union of India
(2005) 4 SCC 649
Zee Telefilms Ltd. (the first petitioner), is one of the largest vertically integrated media entertainment
groups in India. The Board of Control for Cricket in India (BCCI) (the second respondent), is a society
registered under the Tamil Nadu Societies Registration Act which is said to be recognised by the Union of
India, the Ministry of Youth Affairs and Sports. The third and fourth respondents are President and Secretary
respectively of the second respondent. “ESPN Star Sports”, known as “ESS” (the fifth respondent), is a
partnership firm of the United States of America having a branch office in Singapore. The sixth respondent is a
firm of Chartered Accountants which was engaged by the Board in relation to the tender floated on 7-8-2004.
In furtherance of a notice inviting tender for grant of exclusive television rights for a period of four years,
several entertainment groups including the petitioners and the fifth respondent gave their offers. Both the
petitioners and the said respondent were found eligible therefor. The first petitioner gave an offer for an
amount of US $ 260,756,756.76 [INR equivalent to Rs. 12,06,00,00,000] or US $ 281,189,189.19 [INR
equivalent to Rs 13,00,50,00,000]. Upon holding negotiations with the first petitioner as also the fifth
respondent, the Board decided to accept the offer of the former. Pursuant to and in furtherance of the same, a
sum of Rs. 92.50 crores equivalent to US $ 20 million was deposited by the first petitioner in the State Bank of
Travancore. The first petitioner agreed to abide by the terms and conditions of offer subject to the conditions
mentioned by the Board.
The fifth respondent in the meanwhile filed a writ petition before the Bombay High Court [Writ Petition
(L) No. 2462 of 2004]. In its affidavit, the Board justified its action in granting the contract in favour of the
first petitioner. The matter was taken up for hearing on a day-to-day basis. On 21-9-2004, the Board before
commencing its argument stated that it purported to have cancelled the entire tender process on the premise
that no concluded contract was reached between the parties as no letter of intent had therefor been issued. The
first petitioner, however, raised a contention that such a concluded contract in fact had been arrived at. The
fifth respondent, in view of the statements made by the counsel for the Board, prayed for withdrawal of the
22 | P a g e
writ petition, which was permitted. On the same day [21-9-2004] itself, the Board terminated the contract of
the first petitioner stating:
“In the larger interest of the game of cricket and due to the stalemate that has been created in the
grant of television rights for the ensuing test series owing to litigation and as informed before the
Hon’ble High Court at Bombay this day, the Board of Control for Cricket in India (BCCI) hereby
cancels the entire process of tender by invoking clauses 5.3, 5.4(c) and 5.4(d) of the invitation to
tender (ITT) dated 7-8-2004, the terms of which were accepted and acknowledged by you. The
security in the form of bank guarantee and/or money deposited by you is being returned immediately.”
The order of the Board dated 21-9-2004 terminating the contract was questioned in the writ petition
contending that the action on the part of the Board in terminating the contract was arbitrary and thus, violative
of Article 14 of the Constitution. The petitioners prayed for setting aside the above said communication as also
for issuance of a writ of or in the nature of mandamus commanding the Board to act in terms of the decision
arrived at on 5-9-2004.
The BCCI raised the issue of maintainability of the writ petition on the premise that it was not “State”
within the meaning of Article 12 of the Constitution.
N. SANTOSH HEGDE, J. [Majority view] – 8. A perusal of Article 12 shows that the definition of State in
the said article includes the Government of India, Parliament of India, Governments of the States, legislatures
of the States, local authorities as also “other authorities”. It is the argument of the Board that it does not come
under the term “other authorities”, hence is not a State for the purpose of Article 12. While the petitioner
contends to the contrary on the ground that the various activities of the Board are in the nature of public duties,
a literal reading of the definition of State under Article 12 would not bring the Board under the term “other
authorities” for the purpose of Article 12. However, the process of judicial interpretation has expanded the
scope of the term “other authorities” in its various judgments. It is on this basis that the petitioners contend that
the Board would come under the expanded meaning of the term “other authorities” in Article 12 because of its
activities which are those of a public body discharging public function.
9. Therefore, to understand the expanded meaning of the term “other authorities” in Article 12, it is
necessary to trace the origin and scope of Article 12 in the Indian Constitution. The present Article 12 was
introduced in the Draft Constitution as Article 7. While initiating a debate on this article in the Draft
Constitution in the Constituent Assembly, Dr. Ambedkar described the scope of this article and the reasons
why this article was placed in the chapter on fundamental rights as follows:
“The object of the fundamental rights is twofold. First, that every citizen must be in a position to
claim those rights. Secondly, they must be binding upon every authority - I shall presently explain
what the word ‘authority’ means - upon every authority which has got either the power to make laws
or the power to have discretion vested in it. Therefore, it is quite clear that if the fundamental rights
are to be clear, then they must be binding not only upon the Central Government, they must not only
be binding upon the Provincial Government, they must not only be binding upon the Governments
established in the Indian States, they must also be binding upon District Local Boards, Municipalities,
even Village Panchayats and Taluk Boards, in fact, every authority which has been created by law and
which has got certain power to make laws, to make rules, or make bye-laws .
If that proposition is accepted - and I do not see anyone who cares for fundamental rights can
object to such a universal obligation being imposed upon every authority created by law - then, what
are we to do to make our intention clear? There are two ways of doing it. One way is to use a
composite phrase such as ‘the State’, as we have done in Article 7; or, to keep on repeating every
time, ‘the Central Government, the Provincial Government, the State Government, the Municipality,
the Local Board, the Port Trust, or any other authority’. It seems to me not only most cumbersome but
stupid to keep on repeating this phraseology every time we have to make a reference to some authority
. The wisest course is to have this comprehensive phrase and to economise in words.” [VII CAD 610
(1948)] (emphasis supplied)
10. From the above, it is seen that the intention of the Constitution-framers in incorporating this article was
to treat such authority which has been created by law and which has got certain powers to make laws, to make
rules and regulations to be included in the term “other authorities” as found presently in Article 12.
11. Till about the year 1967 the courts in India had taken the view that even statutory bodies like
universities, Selection Committees for admission to government colleges were not “other authorities” for the
purpose of Article 12. In the year 1967 in the case of Rajasthan SEB v. Mohan Lal a Constitution Bench of
23 | P a g e
this Court held that the expression “other authorities” is wide enough to include within it every authority
created by a statute on which powers are conferred to carry out governmental or quasi-governmental
functions and functioning within the territory of India or under the control of the Government of India.
(emphasis supplied) Even while holding so Shah, J. in a separate but concurring judgment observed that every
constitutional or statutory authority on whom powers are conferred by law is not “other authority” within the
meaning of Article 12. He also observed further that it is only those authorities which are invested with
sovereign powers, that is, power to make rules or regulations and to administer or enforce them to the
detriment of citizens and others that fall within the definition of “State” in Article 12: but constitutional or
statutory bodies invested with power but not sharing the sovereign power of the State are not “State” within
the meaning of that article. (emphasis supplied)
12. Almost a decade later another Constitution Bench of this Court somewhat expanded this concept of
“other authority” in the case of Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi. In this case the
Court held that bodies like Oil and Natural Gas Commission, Industrial Finance Corporation and Life
Insurance Corporation which were created by statutes, because of the nature of their activities do come within
the term “other authorities” in Article 12 even though in reality they were really constituted for commercial
purposes.
13. From the above, it is to be noticed that because of the change in the socio-economic policies of the
Government this Court considered it necessary by judicial interpretation to give a wider meaning to the term
“other authorities” in Article 12 so as to include such bodies which were created by an Act of legislature to be
included in the said term “other authorities”.
14. This judicial expansion of the term “other authorities” came about primarily with a view to prevent the
Government from bypassing its constitutional obligations by creating companies, corporations, etc. to perform
its duties.
15. At this stage it is necessary to refer to the judgment of Sabhajit Tewary v. Union of India [AIR 1975
SC 1329] which was delivered by the very same Constitution Bench which delivered the judgment in Sukhdev
Singh on the very same day. In this judgment this Court noticing its judgment in Sukhdev Singh rejected the
contention of the petitioner therein that the Council for Scientific and Industrial Research, the respondent body
in the said writ petition which was only registered under the Societies Registration Act, would come under the
term “other authorities” in Article 12.
16. The distinction to be noticed between the two judgments referred to hereinabove namely Sukhdev
Singh and Sabhajit Tewary is that in the former the Court held that bodies which were creatures of statutes
having important State functions and where the State had pervasive control of activities of those bodies would
be State for the purpose of Article 12; while in Sabhajit Tewary case, the Court held that a body which was
registered under a statute and not performing important State functions and not functioning under the pervasive
control of the Government would not be a State for the purpose of Article 12.
17. Subsequent to the above judgments of the Constitution Bench a three-Judge Bench of this Court in
the case of Ramana Dayaram Shetty v. International Airport Authority of India placing reliance on the
judgment of this Court in Sukhdev Singh held that the International Airport Authority which was an
authority created by the International Airport Authority Act, 1971 was an instrumentality of the State,
hence, came within the term “other authorities” in Article 12.
18. It is in the above context that the Bench in Ramana Dayaram Shetty case laid down the parameters or
the guidelines for identifying a body as coming within the definition of “other authorities” in Article 12.
19. The above tests propounded for determining as to when a corporation can be said to be an
instrumentality or agency of the Government was subsequently accepted by a Constitution Bench of this Court
in the case of Ajay Hasia v. Khalid Mujib Sehravardi. But in the said case of Ajay Hasia, the Court went one
step further and held that a society registered under the Societies Registration Act could also be an instrument
of State for the purpose of the term “other authorities” in Article 12. This part of the judgment of the
Constitution Bench in Ajay Hasia was in direct conflict or was seen as being in direct conflict with the earlier
Constitution Bench of this Court in Sabhajit Tewary case which had held that a body registered under a statute
and which was not performing important State functions or which was not under the pervasive control of the
State cannot be considered as an instrumentality of the State for the purpose of Article 12.
20. The above conflict in the judgments of Sabhajit Tewary and Ajay Hasia of two coordinate Benches
was noticed by this Court in the case of Pradeep Kumar Biswas [(2002) 5 SCC 111] and hence the said case
of Pradeep Kumar Biswas came to be referred to a larger Bench of seven Judges and the said Bench, speaking
24 | P a g e
through Ruma Pal, J. held that the judgment in Sabhajit Tewary was delivered on the facts of that case, hence
could not be considered as having laid down any principle in law. The said larger Bench while accepting the
ratio laid down in Ajay Hasia case though cautiously had to say the following in regard to the said judgment of
this Court in Ajay Hasia (Pradeep Kumar Biswas case):
“38. Perhaps this rather overenthusiastic application of the broad limits set by Ajay Hasia may
have persuaded this Court to curb the tendency in Chander Mohan Khanna v. National Council of
Educational Research and Training. The Court referred to the tests formulated in Sukhdev Singh,
Ramana, Ajay Hasia and Som Prakash Rekhi but striking a note of caution said that ‘these are
merely indicative indicia and are by no means conclusive or clinching in any case’. In that case, the
question arose whether the National Council of Educational Research and Training (NCERT) was a
‘State’ as defined under Article 12 of the Constitution. NCERT is a society registered under the
Societies Registration Act. After considering the provisions of its memorandum of association as well
as the rules of NCERT, this Court came to the conclusion that since NCERT was largely an
autonomous body and the activities of NCERT were not wholly related to governmental functions and
that the government control was confined only to the proper utilisation of the grant and since its
funding was not entirely from government resources, the case did not satisfy the requirements of the
State under Article 12 of the Constitution. The Court relied principally on the decision in Tekraj
Vasandi v. Union of India. However, as far as the decision in Sabhajit Tewary v. Union of India was
concerned, it was noted that the ‘decision has been distinguished and watered down in the subsequent
decisions’.”
21. Thereafter the larger Bench of this Court in Pradeep Kumar Biswas after discussing the various case-
laws laid down the following parameters for gauging whether a particular body could be termed as State for
the purpose of Article 12:
“40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid
set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to
be a State within the meaning of Article 12. The question in each case would be - whether in the light
of the cumulative facts as established, the body is financially, functionally and administratively
dominated by or under the control of the Government. Such control must be particular to the body in
question and must be pervasive. If this is found then the body is a State within Article 12. On the other
hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to
make the body a State.”
22. Above is the ratio decidendi laid down by a seven-Judge Bench of this Court which is binding on this
Bench. The facts of the case in hand will have to be tested on the touchstone of the parameters laid down in
Pradeep Kumar Biswas case. Before doing so it would be worthwhile once again to recapitulate what are the
guidelines laid down in Pradeep Kumar Biswas case for a body to be a State under Article 12. They are:
(1) Principles laid down in Ajay Hasia are not a rigid set of principles so that if a body falls within
any one of them it must ex hypothesi, be considered to be a State within the meaning of Article 12.
(2) The question in each case will have to be considered on the basis of facts available as to
whether in the light of the cumulative facts as established, the body is financially, functionally,
administratively dominated, by or under the control of the Government.
(3) Such control must be particular to the body in question and must be pervasive.
(4) Mere regulatory control whether under statute or otherwise would not serve to make a body a
State.
23. The facts established in this case show the following:
1. The Board is not created by a statute.
2. No part of the share capital of the Board is held by the Government.
3. Practically no financial assistance is given by the Government to meet the whole or entire
expenditure of the Board.
4. The Board does enjoy a monopoly status in the field of cricket but such status is not State-
conferred or State-protected.
5. There is no existence of a deep and pervasive State control. The control if any is only
regulatory in nature as applicable to other similar bodies. This control is not specifically exercised
under any special statute applicable to the Board. All functions of the Board are not public functions
nor are they closely related to governmental functions.
25 | P a g e
6. The Board is not created by transfer of a government-owned corporation. It is an autonomous
body.
24. To these facts if we apply the principles laid down by the seven-Judge Bench in Pradeep Kumar
Biswas it would be clear that the facts established do not cumulatively show that the Board is financially,
functionally or administratively dominated by or is under the control of the Government. Thus the little control
that the Government may be said to have on the Board is not pervasive in nature. Such limited control is purely
regulatory control and nothing more.
25. Assuming for argument’s sake that some of the functions do partake the nature of public duties or State
actions, they being in a very limited area of the activities of the Board, would not fall within the parameters
laid down by this Court in Pradeep Kumar Biswas case. Even otherwise assuming that there is some element
of public duty involved in the discharge of the Board’s functions, even then, as per the judgment of this Court
in Pradeep Kumar Biswas, that by itself would not suffice for bringing the Board within the net of “other
authorities” for the purpose of Article 12.
26. The learned counsel appearing for the petitioners, however, contended that there are certain facets of
the activities of the Board which really did not come up for consideration in any one of the earlier cases
including in Pradeep Kumar Biswas case and those facts if considered would clearly go on to show that the
Board is an instrumentality of the State. In support of this argument, he contended that in the present-day
context cricket has become a profession and that cricketers have a fundamental right under Article 19(1)(g) to
pursue their professional career as cricketers. It was also submitted that the Board controls the said rights of a
citizen by its Rules and Regulations and since such a regulation can be done only by the State, the Board of
necessity must be regarded as an instrumentality of the State. It was also pointed out that under its
Memorandum of Association and the rules and regulations and due to its monopolistic control over the game
of cricket, the Board has all-pervasive powers to control a person’s cricketing career as it has the sole authority
to decide on his membership and affiliation to any particular cricket association, which in turn would affect his
right to play cricket at any level in India as well as abroad.
27. Assuming that these facts are correct the question then is, would it be sufficient to hold the Board to be
a State for the purpose of Article 12?
28. There is no doubt that Article 19(1)(g) guarantees to all citizens the fundamental right to practise any
profession or to carry on any trade, occupation or business and that such a right can only be regulated by the
State by virtue of Article 19(6). Hence, it follows as a logical corollary that any violation of this right will have
to be claimed only against the State and unlike the rights under Articles 17 or 21, which can be claimed against
non-State actors including individuals, the right under Article 19(1)(g) cannot be claimed against an individual
or a non-State entity. Thus, to argue that every entity, which validly or invalidly arrogates to itself the right to
regulate or for that matter even starts regulating the fundamental right of the citizen under Article 19(1)(g), is a
State within the meaning of Article 12 is to put the cart before the horse. If such logic were to be applied,
every employer who regulates the manner in which his employee works would also have to be treated as State.
The prerequisite for invoking the enforcement of a fundamental right under Article 32 is that the violator of
that right should be a State first. Therefore, if the argument of the learned counsel for the petitioner is to be
accepted then the petitioner will have to first establish that the Board is a State under Article 12 and it is
violating the fundamental rights of the petitioner. Unless this is done the petitioner cannot allege that the Board
violates fundamental rights and is therefore State within Article 12. In this petition under Article 32 we have
already held that the petitioner has failed to establish that the Board is State within the meaning of Article 12.
Therefore assuming there is violation of any fundamental right by the Board that will not make the Board a
“State” for the purpose of Article 12.
29. It was then argued that the Board discharges public duties which are in the nature of State functions.
Elaborating on this argument it was pointed out that the Board selects a team to represent India in international
matches. The Board makes rules that govern the activities of the cricket players, umpires and other persons
involved in the activities of cricket. These, according to the petitioner, are all in the nature of State functions
and an entity which discharges such functions can only be an instrumentality of State, therefore, the Board
falls within the definition of State for the purpose of Article 12. Assuming that the abovementioned functions
of the Board do amount to public duties or State functions, the question for our consideration is: would this be
sufficient to hold the Board to be a State for the purpose of Article 12? While considering this aspect of the
argument of the petitioner, it should be borne in mind that the State/Union has not chosen the Board to perform
these duties nor has it legally authorised the Board to carry out these functions under any law or agreement. It
has chosen to leave the activities of cricket to be controlled by private bodies out of such bodies’ own volition
26 | P a g e
(self-arrogated). In such circumstances when the actions of the Board are not actions as an authorised
representative of the State, can it be said that the Board is discharging State functions? The answer should be
no. In the absence of any authorisation, if a private body chooses to discharge any such function which is not
prohibited by law then it would be incorrect to hold that such action of the body would make it an
instrumentality of the State. The Union of India has tried to make out a case that the Board discharges these
functions because of the de facto recognition granted by it to the Board under the guidelines framed by it, but
the Board has denied the same. In this regard we must hold that the Union of India has failed to prove that
there is any recognition by the Union of India under the guidelines framed by it, and that the Board is
discharging these functions on its own as an autonomous body.
30. However, it is true that the Union of India has been exercising certain control over the activities of the
Board in regard to organising cricket matches and travel of the Indian team abroad as also granting of
permission to allow the foreign teams to come to India. But this control over the activities of the Board cannot
be construed as an administrative control. At best this is purely regulatory in nature and the same according to
this Court in Pradeep Kumar Biswas case is not a factor indicating a pervasive State control of the Board.
31. Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an
Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These
activities can be said to be akin to public duties or State functions and if there is any violation of any
constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by
way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free
merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for the
violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can
always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the
Constitution, which is much wider than Article 32.
33. Thus, it is clear that when a private body exercises its public functions even if it is not a State, the
aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a
writ petition under Article 226. Therefore, merely because a non-governmental body exercises some public
duty, that by itself would not suffice to make such body a State for the purpose of Article 12. In the instant
case the activities of the Board do not come under the guidelines laid down by this Court in Pradeep Kumar
Biswas case hence there is force in the contention of Mr Venugopal that this petition under Article 32 of the
Constitution is not maintainable.
34. At this stage, it is relevant to note another contention of Mr Venugopal that the effect of treating the
Board as State will have far-reaching consequences inasmuch as nearly 64 other National Sports Federations
as well as some other bodies which represent India in the international forum in the field of art, culture, beauty
pageants, cultural activities, music and dance, science and technology or other such competitions will also
have to be treated as a “State” within the meaning of Article 12, opening the floodgates of litigation under
Article 32. We do find sufficient force in this argument. Many of the abovementioned federations or bodies do
discharge functions and/or exercise powers which if not identical are at least similar to the functions
discharged by the Board. Many of the sportspersons and others who represent their respective bodies make a
livelihood out of it (for e.g. football, tennis, golf, beauty pageants, etc.). Therefore, if the Board which controls
the game of cricket is to be held to be a State for the purpose of Article 12, there is absolutely no reason why
other similarly placed bodies should not be treated as a State. The fact that the game of cricket is very popular
in India also cannot be a ground to differentiate these bodies from the Board. Any such differentiation
dependent upon popularity, finances and public opinion of the body concerned would definitely violate Article
14 of the Constitution, as any discrimination to be valid must be based on hard facts and not mere surmises.
Therefore, the Board in this case cannot be singly identified as an “other authority” for the purpose of Article
12. In our opinion, for the reasons stated above none of the other federations or bodies referred to hereinabove
including the Board can be considered as a “State” for the purpose of Article 12.
35. In conclusion, it should be noted that there can be no two views about the fact that the Constitution of
this country is a living organism and it is the duty of courts to interpret the same to fulfill the needs and
aspirations of the people depending on the needs of the time. It is noticed earlier in this judgment that in
Article 12 the term “other authorities” was introduced at the time of framing of the Constitution with a limited
objective of granting judicial review of actions of such authorities which are created under statute and which
discharge State functions. However, because of the need of the day this Court in Rajasthan SEB and Sukhdev
Singh noticing the socio-economic policy of the country thought it fit to expand the definition of the term
“other authorities” to include bodies other than statutory bodies. This development of law by judicial
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interpretation culminated in the judgment of the seven-Judge Bench in the case of Pradeep Kumar Biswas. It
is to be noted that in the meantime the socio-economic policy of the Government of India has changed and the
State is today distancing itself from commercial activities and concentrating on governance rather than on
business. Therefore, the situation prevailing at the time of Sukhdev Singh is not in existence at least for the
time being, hence, there seems to be no need to further expand the scope of “other authorities” in Article 12 by
judicial interpretation at least for the time being. It should also be borne in mind that as noticed above, in a
democracy there is a dividing line between a State enterprise and a non-State enterprise, which is distinct and
the judiciary should not be an instrument to erase the said dividing line unless, of course, the circumstances of
the day require it to do so.
36. In the above view of the matter, the second respondent Board cannot be held to be a State for the
purpose of Article 12. Consequently, this writ petition filed under Article 32 of the Constitution is not
maintainable and the same is dismissed.
*****
‘LAW’ UNDER ARTICLE 13
Keshavan Madhava Menon v. State of Bombay

AIR 1951 SC 128 : 1951 SCR 228
[On the 9th December, 1949, the appellant who was the secretary of the People’s Publishing House Ltd., Bombay was
arrested and a prosecution was started against him under Section 18(1) of the Indian Press (Emergency Powers) Act, 1931
in the Court of the Chief Presidency Magistrate at Bombay for publishing a pamphlet in Urdu entitled “Railway
Mazdoorun Ke Khilaf Nai Sazish.” The prosecution case was that the pamphlet was a news-sheet within the meaning of
Section 2(6) of the Act and that since it had been published without the authority required by section 15(1) of the Act, the
appellant had committed an offence punishable under Section 18(1) of the Act. While the prosecution was pending, the
Constitution of India came into force on the 26 January, 1950, and thereafter the appellant raised the contention that
sections 2(6), 15 and 18 of the Act were void, being inconsistent with Article 19(1)(a) of the Constitution and therefore
the case against him could not proceed. Having raised this contention, the appellant filed a petition in the High Court at
Bombay under Article 228 of the Constitution asking the High Court to send for the record of the case and declare that
Sections 15 and 18 of the Indian Press (Emergency Powers) Act read with section 2(6) and (10) thereof were void and
inoperative and the petitioner should be ordered to be acquitted. The High Court refused this application and held that the
proceedings instituted against the appellant before the commencement of the Constitution could not be affected by the
provisions of the Constitution that came into force on the 26 January, 1950. The Court further held that Article 13(1) had
virtually the effect of repealing such provisions of existing laws as were inconsistent with any of the fundamental rights
and that consequently under Section 6 of the General Clauses Act, which is made applicable for the interpretation of the
Constitution by Article 367, pending proceedings were not affected. Dissatisfied with this decision, the appellant referred
the present appeal to the Supreme Court].
DAS, J. - 10. Two questions were raised before the three-judge Bench of Bombay High Court, namely -

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(1) Whether Sections 15(1) and 18(1) read with the definitions contained in Sections 2(6) and
2(10) of the Indian Press (Emergency Powers) Act, 1931, were inconsistent with Article 19(1)(a) read
with clause (2) of that article? and
(2) Assuming that they were inconsistent, whether the proceedings commenced under Section
18(1) of that Act before the commencement of the Constitution could nevertheless be proceeded with?
11. The High Court considered it unnecessary to deal with or decide the first question and disposed of the
application only on the second question. The High Court took the view that the word “void” was used in
Article 13(1) in the sense of “repealed” and that consequently it attracted Section 6 of the General Clauses Act,
which Act by Article 367 was made applicable for the interpretation of the Constitution. The High Court,
therefore, reached the conclusion that proceedings under the Indian Press (Emergency Powers) Act, 1931,
which were pending at the date of the commencement of the Constitution were not affected, even if the Act
were inconsistent with the fundamental rights conferred by Article 19(1)(a) and as such became void under
Article 13(1) of the Constitution after January 26, 1950. The High Court accordingly answered the second
question in the affirmative and dismissed the petitioner’s application. The petitioner has now come up on
appeal before us on the strength of a certificate granted by the High Court under Article 132(1) of the
Constitution.
13. An argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it
has a powerful appeal to sentiment and emotion; but a court of law has to gather the spirit of the Constitution
from the language of the Constitution. What one may believe or think to be the spirit of the Constitution
cannot prevail if the language of the Constitution does not support that view. Article 372(2) gives power to the
President to adapt and modify existing laws by way of repeal or amendment. There is nothing to prevent the
President, in exercise of the powers conferred on him by that article, from repealing, say the whole or any part
of the Indian Press (Emergency Powers) Act, 1931. If the President does so, then such repeal will at once
attract Section 6 of the General Clauses Act. In such a situation all prosecutions under the Indian Press
(Emergency Powers) Act, 1931, which were pending at the date of its repeal by the President would be saved
and must be proceeded with notwithstanding the repeal of that Act unless an express provision was otherwise
made in the repealing Act. It is therefore clear that the idea of the preservation of past inchoate rights or
liabilities and pending proceedings to enforce the same is not foreign or abhorrent to the Constitution of India.
We are, therefore, unable to accept the contention about the spirit of the Constitution as invoked by the learned
counsel in aid of his plea that pending proceedings under a law which has become void cannot be proceeded
with. Further, if it is against the spirit of the Constitution to continue the pending prosecutions under such a
void law, surely it should be equally repugnant to that spirit that men who have already been convicted under
such repressive law before the Constitution of India came into force should continue to rot in jail. It is,
therefore, quite clear that the court should construe the language of Article 13(1) according to the established
rules of interpretation and arrive at its true meaning uninfluenced by any assumed spirit of the Constitution.
15. It will be noticed that all that this clause [(Art. 13(1)] declares is that all existing laws, insofar as they
are inconsistent with the provisions of Part III shall, to the extent of such inconsistency, be void. Every statute
is prima facie prospective unless it is expressly or by necessary implications made to have retrospective
operation. There is no reason why this rule of interpretation should not be applied for the purpose of
interpreting our Constitution. We find nothing in the language of Article 13(1) which may be read as
indicating an intention to give it retrospective operation. On the contrary, the language clearly points the other
way. The provisions of Part III guarantee what are called fundamental rights. Indeed, the heading of Part III is
“Fundamental Rights”. These rights are given, for the first time, by and under our Constitution. Before the
Constitution came into force there was no such thing as fundamental right. What Article 13(1) provides is that
all existing laws which clash with the exercise of the fundamental rights (which are for the first time created by
the Constitution) shall to that extent be void. As the fundamental rights became operative only on and from the
date of the Constitution the question of the inconsistency of the existing laws with those rights must
necessarily arise on and from the date those rights came into being. It must follow, therefore, that Article 13(1)
can have no retrospective effect but is wholly prospective in its operation. After this first point is noted, it
should further be seen that Article 13(1) does not in terms make the existing laws which are inconsistent with
the fundamental rights void ab initio or for all purposes. On the contrary, it provides that all existing laws,
insofar as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency.
They are not void for all purposes but they are void only to the extent they come into conflict with the
fundamental rights. In other words, on and after the commencement of the Constitution no existing law will be
permitted to stand in the way of the exercise of any of the fundamental rights. Therefore, the voidness of the
existing law is limited to the future exercise of the fundamental rights. Article 13(1) cannot be read as
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obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the statute book,
for to do so will be to give them retrospective effect which, we have said, they do not possess. Such laws exist
for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution.
Learned counsel for the appellant has drawn our attention to Articles 249(3), 250, 357, 358 and 369 where
express provision has been made for saving things done under the laws which expired. It will be noticed that
each of those articles was concerned with expiry of temporary statutes. It is well known that on the expiry of a
temporary statute no further proceedings can be taken under it, unless the statute itself saved pending
proceedings. If, therefore, an offence had been committed under a temporary statute and the proceedings were
initiated but the offender had not been prosecuted and punished before the expiry of the statute, then, in the
absence of any saving clause, the pending prosecution could not be proceeded with after the expiry of the
statute by efflux of time. It was on this principle that express provision was made in the several articles noted
above for saving things done or omitted to be done under the expiring laws referred to therein. As explained
above, Article 13(1) is entirely prospective in its operation and as it was not intended to have any retrospective
effect there was no necessity at all for inserting in that article any such saving clause. The effect of Article
13(1) is quite different from the effect of the expiry of a temporary statute or the repeal of a statute by a
subsequent statute. As already explained, Article 13(1) only has the effect of nullifying or rendering all
inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with
respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution. It
has no retrospective effect and if, therefore, an act was done before the commencement of the Constitution in
contravention of the provisions of any law which, after the Constitution, becomes void with respect to the
exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is
concerned, for, to say that it is, will be to give the law retrospective effect. There is no fundamental right that a
person shall not be prosecuted and punished for an offence committed before the Constitution came into force.
So far as the past acts are concerned the law exists, notwithstanding that it does not exist with respect to the
future exercise of fundamental rights. We, therefore, agree with the conclusion arrived at by the High Court on
the second question, although on different grounds. In our opinion, therefore, this appeal fails and is dismissed.
*****

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State of Gujarat v. Shri Ambica Mills Ltd.
(1974) 4 SCC 656 : AIR 1974 SC 1300
K.K. MATHEW, J. - 2. The first respondent, a company registered under the Companies Act, filed a Writ
Petition in the High Court of Gujarat. In that petition it impugned the provisions of Sections 3, 6A and 7 of the
Bombay Labour Welfare Fund Act, 1953 (the Act) and Section 13 of the Bombay Labour Welfare Fund
(Gujarat Extension and Amendment) Act, 1961 (the First Amendment Act) and Rules 3 and 4 of the Bombay
Labour Welfare Fund Rules, 1953 (the Rules) as unconstitutional and prayed for the issue of a writ in the
nature of mandamus or other appropriate writ or direction against the respondents in the writ petition to desist
from enforcing the direction in the notice dated August 2, 1962 of respondent No. 3 to the writ petition
requiring the petitioner - 1st respondent to pay the unpaid accumulations specified therein.
3. The High Court held that Section 3(1) of the Act in so far as it relates to unpaid accumulations specified
in Section 3(2)(b), Section 3(4) and Section 6A of the Act and Rules 3 and 4 of the Rules was unconstitutional
and void.
4. In order to appreciate the controversy, it is necessary to state the background of the amendment made by
the Legislature of Gujarat in the Act. The Act was passed by the legislature of the then State of Bombay in
1953 with a view to provide for the constitution of a fund for financing the activities for promoting the welfare
of labour in the State of Bombay. Section 2(10) of the Act defined “unpaid accumulation” as meaning all
payments due to the employees but not made to them within a period of three years from the date on which
they became due, whether before or after the commencement of the Act, including the wages and gratuity
legally payable, but not including the amount of contribution, if any, paid by any employer to a Provident Fund
established under the Employees’ Provident Fund Act, 1952. Section 3(1) provided that the State Government
shall constitute a fund called the Labour Welfare Fund and that notwithstanding anything contained in any
other law for the time being in force, the sums specified in sub-section (2) shall, subject to the provisions of
sub-section (4) and Section 6A be paid into the fund. Clause (b) of sub-section (2) of Section 3 provided that
the Fund shall consist of “all unpaid accumulations”. Section 7(1) provided that the fund shall vest in and be
applied by the Board of Trustees subject to the provisions and for the purposes of the Act. Section 19 gave
power to the State Government to make rules and in the exercise of that power, the State Government made
the Rules. Rules 3 and 4 were concerned with the machinery for enforcing the provisions of the Act in regard
to fines and unpaid accumulations.
5. In Bombay Dyeing & Manufacturing Co. Ltd. v. State of Bombay [AIR 1958 SC 328], this Court held
that the provisions of Sections 3(1) and 3(2) were invalid on the ground that they violated the fundamental
right of the employer under Article 19 (1)(f). The reasoning of the Court was that the effect of the relevant
provisions of the Act was to transfer to the Board the debts due by the employer to the employees free from the
bar of limitation without discharging the employer from his liability to the employees and that Section 3(1)
therefore operated to take away the moneys of the employer without releasing him from his liability to the
employees. The Court also found that there was no machinery provided for adjudication of the claim of the
employees when the amounts were required to be paid to the fund.
6. The State sought to justify the provisions of the Act as one relating to abandoned property and,
therefore, by their very nature, they could not be held to violate the rights of any person either under Article
19(1)(f) or Article 31(2). The Court did not accept the contention of the State but held that the purpose of a
legislation with respect to abandoned property being in the first instance to safeguard the property for the
benefit of the true owners and the State taking it over only in the absence of such claims, the law which vests

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the property absolutely in the State without regard to the claims of the true owners cannot be considered as one
relating to abandoned property.
7. On May 1, 1960, the State of Bombay was bifurcated into the States of Maharashtra and Gujarat. The
Legislature of Gujarat thereafter enacted the First Amendment Act making various amendments in the Act,
some of them with retrospective effect. The First Amendment Act was intended to remedy the defects pointed
out in the decision of this Court in the Bombay Dyeing case. The preamble to the First Amendment Act recites
that “it is expedient to constitute a Fund for the financing of activities to promote welfare of labour in the State
of Gujarat, for conducting such activities and for certain other purposes”. Section 2(2) defines ‘employee’.
Section 2(3) defines ‘employer’ as any person who employs either directly or through another person either on
behalf of himself or any other person, one or more employees in an establishment and includes certain other
persons. Section 2(4) defines ‘establishment’ and that sub-section as amended reads:
2(4) ‘Establishment’ means:
(i) A factory;
(ii) A Tramway or motor omnibus service; and
(iii Any establishment including a society registered under the Societies Registiation Act,
1960, and a charitable or other trust, whether registered under the Bombay Public Trusts Act,
1950, or not, which carries on any business or trade or any work in connection with or ancillary
thereto and which employs or on any working day during the preceding twelve months employed
more than fifty persons; but does not include an establishment (not being a factory) of the Central
or any State Government.
Sub-section (10) of Section 2 defines ‘unpaid accumulations’:
‘unpaid accumulations’ means all payments due to the employees but not made to them within a
period of three years from the date on which they became due whether before or after the
commencement of this Act including the wages and gratuity legally payable but not including the
amount of contribution if any, paid by an employer to a provident fund established under the
Employees’ Provident Funds Act, 1952.
Section 3 is retrospectively amended and the amended section in its material part provides that the State
Government shall constitute a fund called the Labour Welfare Fund and that the Fund shall consist of, among
other things, all unpaid accumulations. It provides that the sums specified shall be collected by such agencies
and in such manner and the accounts of the fund shall be maintained and audited in such manner as may be
prescribed. The section further provides that notwithstanding anything contained in any law for the time being
in force or any contract or instrument, all unpaid accumulations shall be collected by such agencies and in such
manner as may be prescribed and be paid in the first instance to the Board which shall keep a separate account
therefor until claims thereto have been decided in the manner provided in Section 6A. Section 6A is a new
section introduced retrospectively in the Act and sub-sections (1) and (2) of that section state that all unpaid
accumulations shall be deemed to be abandoned property and that any unpaid accumulations paid to the Board
in accordance with the provisions of Section 3 shall, on such payment, discharge an employer of the liability to
make payment to an employee in respect thereof, but to the extent only of the amount paid to the Board and
that the liability to make payment to the employee to the extent aforesaid shall, subject to the other provisions
of the section, be deemed to be transferred to the Board. Sub-section (3) provides that as soon as possible after
any unpaid accumulation is paid to the Board, the Board shall, by a public notice, call upon interested
employees to submit to the Board their claims for any payment due to them. Sub-section (4) provides that such
public notice - shall contain such particulars as may be prescribed and that it shall be affixed on the notice
board or in its absence on a conspicuous part of the premises, of each establishment in which the unpaid
accumulations were earned and shall be published in the Official Gazette and also in any two newspapers in
the language commonly understood in the area in which such establishment is situated, or in such other
manner as may be prescribed, regard being had to the amount of the claim. Sub-section (5) states that after the
notice is first affixed and published under sub-section (4) it shall be again affixed and published from time to
time for a period of three years from the date on which it was first affixed and published, in the manner
provided in that sub-section in the months of June and December each year. Sub-section (6) states that a
certificate of the Board to the effect that the provisions of sub-sections (4) and (5) were complied with shall be
conclusive evidence thereof. Sub-section (7) provides that any claim received whether in answer to the notice
or otherwise within a period “of four years from the date of the first publication of the notice in respect of such
claim, shall be transferred by the Board to the Authority appointed under Section 15 of the Payment of Wages
Act, 1936, having jurisdiction in the area in which the factory or establishment is situated, and the Authority
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shall proceed to adjudicate upon and decide such claim and that in hearing such claim the Authority shall have
the powers conferred by and shall follow the procedure (in so far as it is applicable) followed in giving effect
to the provisions of that Act. Sub-section (8) states that if in deciding any claim under sub-section (7), she
Authority allows the whole or part of such claim, it shall declare that the unpaid accumulation in relation to
which the claim is made shall, to the extent to which the claim is allowed ceases to be abandoned property and
shall order the Board to pay to the claimant the amount of the claim as allowed by it and the Board shall make
payment accordingly: provided that the Board shall not be liable to pay any sum in excess of that paid under
sub-section (4) of Section 3 to the Board as unpaid accumulations, in respect of the claim. Sub-section (9)
provides for an appeal against the decision rejecting any claim. Sub-section (10) provides that the Board shall
comply with any order made in appeal. Sub-section (11) makes the decision in appeal final and conclusive as
to the right to receive payment, the liability of the Board to pay and also as to the amount, if any; and sub-
section (12) states that if no claim is made within the time specified in sub-section (7) or a claim or part thereof
has been rejected, then the unpaid accumulations in respect of such claim shall accrue to and vest in the State
as bona vacantia and shall thereafter without further assurance be deemed to be transferred to and form part of
the Fund.
8. Section 7(1) provides that the Fund shall vest in and be held and applied by the Board as Trustees
subject to the provisions and for the purposes of the Act and the moneys in the Fund shall be utilized by the
Board to defray the cost of carrying out measures which may be specified by the State Government from time
to time to promote the welfare of labour and of their dependents. Sub-section (2) of Section 7 specifies various
measures for the benefit of employees in general on which the moneys in the Fund may be expended by the
Board.
12. During the pendency of the writ petition before the High Court, the Gujarat Legislature passed the
Bombay Labour Welfare Fund (Gujarat Amendment) Act, 1962 on January 5, 1963 (the Second Amendment
Act) introducing sub-section (13) in Section 6A with retrospective effect from the date of commencement of
the Act. That sub-section provides as follows:
(13) Nothing in the foregoing provisions of this section shall apply to unpaid accumulations not
already paid to the Board:
(a) in respect of which no separate accounts have been maintained so that the unpaid claims of
employees are not traceable, or
(b) which are proved to have been spent before the sixth day of December, 1961,
and accordingly such unpaid accumulations shall not be liable to be collected and paid under sub-
section (4) of Section 3.
13. The State Government, in the exercise of its rule-making power under Section 19 amended the Rules
by amending Rule 3 and adding a new Rule 3A setting out the particulars to be contained in the public notice
issued under Section 6A(3).
14. The first respondent raised several contentions before the High Court, but the Court rejected all except
two of them and they were: (1) that the impugned provisions violated the fundamental right of citizen-
employers and employees under Article 19(1)(f) and, therefore, the provisions were void under Article 13(2)
of the Constitution and hence there was no law, and so, the notice issued by the Welfare Commissioner was
without the authority of law; and (2) that discrimination was writ large in the definition of ‘establishment’ in
Section 2(4) and since the definition permeates through every part of the impugned provisions and is an
integral part of the impugned provisions, the impugned provisions were violative of Article 14 and were void.
15. So, the two questions in this appeal are, whether the first respondent was competent to challenge the
validity of the impugned provisions on the basis that they violated the fundamental right under Article 19(1)(f)
of citizen-employers or employees and thus show that the law was void and non-existent and, therefore, the
action taken against it was bad; and whether the definition of ‘establishment’ in Section 2(4) violated the
fundamental right of the respondent under Article 14 and the impugned provisions were void for that reason.
17. By Section 6A (1) it was declared that unpaid accumulations shall be deemed to be abandoned
property and that the Board shall take them over. As soon as the Board takes over the unpaid accumulations
treating them as abandoned property, notice as provided in Section 6A will have to be published and claims
invited. Sub-sections (3) to (6) of Section 6A provide for a public notice calling upon interested employees to
submit to the Board their claims for any payment due to them and sub-sections (7) to (11) of Section 6A lay
down the machinery for adjudication of claims which might be received in pursuance to the public notice. It is
only if no claim is made for a period of 4 years from the date of the publication of the first notice, or, if a claim
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is made but rejected wholly or in part, that the State appropriates the unpaid accumulations as bona vacantia. It
is not as if unpaid accumulations become bona vacantia on the expiration of three years. They are, no doubt,
deemed to be abandoned property under Section 6A(1), but they are not appropriated as bona vacantia until
after claims are invited in pursuance to public notice and disposed of.
18. At common law, abandoned personal property could not be the subject of escheat. It could only be
appropriated by the sovereign as bona vacantia. The Sovereign has a prerogative right to appropriate bona
vacantia. And abandoned property can be appropriated by the Sovereign as bona vacantia.
19. Unpaid accumulations represent the obligation of the ‘employers’ to the ‘employees’ and they are the
property of the employees. In other words, what is being treated as abandoned property is the obligation to the
employees owed by the employers and which is property from the stand-point of the employees. No doubt,
when we look at the scheme of the legislation from a practical point of view, what is being treated as
abandoned property is the money which the employees are entitled to get from the employers and what the
Board takes over is the obligation of the employers to pay the amount due to the employees in consideration of
the moneys paid by the employers to the Board. The State, after taking the money, becomes liable to make the
payment to the employees to the extent of the amount received. Whether the liability assumed by the State to
the employees is an altogether new liability or the old liability of the employers is more a matter of academic
interest than of practical consequence.
20. When the moneys representing the unpaid accumulations are paid to the Board, the liability of the
employers to make payment to the employees in respect of their claims against the employers would be
discharged to the extent of the amount paid to the Board and on such liability being transferred to the Board,
the debts or claims to that extent cannot thereafter be enforced against the employer.
21. We think that if unpaid accumulations are not claimed within a total period of 7 years, the inactivity on
the part of the employees would furnish adequate basis for the administration by State of the unasserted claims
or demands. We cannot say that the period of 7 years allowed to the employees for the purpose of claiming
unpaid accumulations is an unreasonably short one which will result in the infringement of any constitutional
rights of the employees. And, in the absence of some persuasive reason, which is lacking here, we see no
reason to think that the State will be, in fact, less able or less willing to pay the amounts when it has taken
them over. We cannot also assume that the mere substitution of the State as the debtor will deprive the
employees of their property or impose on them any unconstitutional burden. And, in the absence of a showing
of injury, actual or threatened, there can be no constitutional argument against the taking over of the unpaid
accumulations by the State. Since the employers are the debtors of the employees, they can interpose no
objection if the State is lawfully entitled to demand the payment, for, in that case, payment of the debt to the
State under the statute releases the employers of their liability to the employees. As regards notice, we are of
the view that all persons having property located within a State and subject to its dominion must take note of
its statutes affecting control and disposition of such property and the procedure prescribed for these purposes.
The various modes of notice prescribed in Section 6A are sufficient to give-reasonable information to the
employees to come forward and claim the amount if they really want to do so.
22. Be that as it may, we do not, however, think it necessary to consider whether the High Court was right
in its view that the impugned provisions violated the fundamental rights of the citizen-employers or
employees, for, it is a wise tradition with courts that they will not adjudge on the constitutionality of a statute
except when they are called upon to do so when legal rights of the litigants are in actual controversy and as
part of this rule is the principle that one to whom the application of a statute is constitutional will not be heard
to attack the statute on the ground that it must also be taken as applying to other persons or other situations in
which its application might be unconstitutional.
A person ordinarily is precluded from challenging the constitutionality of governmental action by invoking
the rights of others and it is not sufficient that the statute or administrative regulation is unconstitutional as to
other persons or classes of persons; it must affirmatively appear that the person attacking the statute comes
within the class of persons affected by it.
23. We, however, proceed on the assumption that the impugned provisions abridge the fundamental right
of citizen-employers and citizen-employees under Article 19(1)(f) in order to decide the further question and
that is, whether, on that assumption, the first respondent could claim that the law was void as against the non-
citizen employers or employees under Article 13(2) and further contend that the non-citizen employers have
been deprived of their “property without the authority of law, as, ex hypothesi a void law is a nullity.

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24. It is settled by the decisions of this Court that a Corporation is not a citizen for the purposes of Article
19 and has, therefore, no fundamental right under that Article.
25. As already stated, the High Court found that the impugned provisions, in so far as they abridged the
fundamental rights of the citizen-employers and employees under Article 19(1)(f) were void under Article
13(2) and even if the respondent-company had no fundamental right under Article l9(l)(f), it had the ordinary
right to hold and dispose of its property, and that the right cannot be taken away or even affected except under
the authority of a law. Expressed in another way, the reasoning of the Court was that since the impugned
provisions became void as they abridged the fundamental right under Article 19(1)(f) of the citizen-employers
and employees the law was void and non-est, and therefore, the first respondent was entitled to challenge the
notice issued by the Welfare Commissioner demanding the unpaid accumulation as unauthorised by any law.
26. The first respondent, no doubt, has the ordinary right of every person in the country to hold and
dispose of property and that right, if taken away or even affected by the Act of an Authority without the
authority of law, would be illegal. That would give rise to a justiciable issue which can be agitated in a
proceeding under Article 226.
27. The real question, therefore, is, even if a law takes away or abridges the fundamental right of citizens
under Article 19(1)(f), whether it would be void and therefore non-est as respects non-citizens?
28. In Keshava Madhava Menon v. State of Bombay [AIR 1951 SC 128], question was whether a
prosecution commenced before the coming into force of the Constitution could be continued after the
Constitution came into force as the Act in question there became void as violating Article 19(1)(a) and 19(2).
Das, J. who delivered the majority judgment was of the view that the prosecution could be continued on the
ground that the provisions of the Constitution including Article 13(1) were not retrospective. The learned
Judge said that after the commencement of the Constitution, no existing law could be allowed to stand in the
way of the exercise of fundamental rights, that such inconsistent laws were not wiped off or obliterated from
the statute book and that the statute would operate in respect of all matters or events which took place before
the Constitution came into force and that it also operated after the Constitution came into force and would
remain in the statute book as operative so far as non-citizens are concerned.
29. This decision is clear that even though a law which is inconsistent with fundamental rights under
Article 19 would become void after the commencement of the Constitution, the law would still continue in
force in so far as non-citizens are concerned. This decision takes the view that the word ‘void’ in Article 13(1)
would not have the effect of wiping out pre-Constitution laws from the statute book, that they will continue to
be operative so far as non-citizens are concerned, notwithstanding the fact that they are inconsistent with the
fundamental rights of citizens and therefore become void under Article 13(1).
30. In Behram Khurshed Pesikaka v. State of Bombay [AIR 1955 SC 123], the question was about the
scope of Article 13(1). This Court had held that certain provisions of the Bombay Prohibition Act, 1949 (a pre-
Constitution Act), in so far as they prohibited the possession, use and consumption of medicinal preparations
were void as violating Article 19(1)(f). The appellant was prosecuted under the said Act and he pleaded that he
had taken medicine containing alcohol. The controversy was whether the burden of proving that fact was on
him. It became necessary to consider the legal effect of the declaration made by this Court that Section 9(b) of
the said Act in so far as it affected liquid medicinal and toilet preparations containing alcohol was invalid as it
infringed Article 19(1)(d). At the first hearing all the judges were agreed that a declaration by a court that part
of a section was invalid did not repeal or amend that section. Venkatarama Aiyar, J. with whom
Jagannadhadas, J. was inclined to agree, held that a distinction must be made between unconstitutionality
arising from lack of legislative competence and that arising from a violation of constitutional limitations on
legislative power. According to him, if the law is made without legislative competence, it was a nullity; a law
violating a constitutional prohibition enacted for the benefit of the public generally was also a nullity; but a
law violating a constitutional prohibition enacted for individuals was not a nullity but was merely
unenforceable. At the second hearing of the case, Mahajan, C.J., after referring to Madhava Menon case, said
that for determining the rights and obligations of citizens, the part declared void should be notionally taken to
be obliterated from the section for all intents and purposes though it may remain written on the statute book
and be a good law when a question arises for determination of rights and obligations incurred prior to January
26, 1950, and also for the determination of rights of persons who have not been given fundamental rights by
the Constitution. Das, J., in his dissenting judgment held that to hold that the invalid part was obliterated
would be tantamount to saying covertly that the judicial declaration had to that extent amended the section.
Mahajan, C.J., rejected the distinction between a law void for lack of legislative power and a law void for
violating a constitutional fetter or limitation on legislative power. Both these declarations, according to the
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learned Chief Justice, of unconstitutionality go to the root of the power itself and there is no real distinction
between them and they represent but two aspects of want of legislative power.
31. In Bhikhaji Narain Dhakras v. State of M.P. [AIR 1955 SC 781], the question was whether the C.P.
and Berar Motor Vehicles (Amendment) Act, 1947, amended Section 43 of the Motor Vehicles Act, 1939, by
introducing provisions which authorised the Provincial Government to take up the entire motor transport
business in the Province and run it in competition with and even to the exclusion of motor transport operators.
These provisions, though valid when enacted, became void on the coming into force of the Constitution, as
they violated Article 19(1)(g). On June 18, 1951, the Constitution was amended so as to authorise the State to
carry on business “whether to the exclusion, complete or partial, of citizens or otherwise”. A notification was
issued after the amendment and the Court was concerned with the validity of the notification. The real question
before the Court was that although Section 43 was void between January 26, 1950, and June 18, 1951, the
amendments of the Article 19(6) had the effect of removing the constitutional invalidity of Section 43 which,
from the date of amendment, became valid and operative. After referring to the meaning given to the word
‘void’ in Keshava Madhava Menon case, Das, Acting CJ., said for the Court:
All laws, existing or future, which are inconsistent with the provisions of Part III of our
Constitution are, by the express provision of Article 13, rendered void ‘to the extent of such
inconsistency’. Such laws were not dead for all purposes. They existed for the purposes of pre-
Constitution rights and liabilities and they remained operative, even after the Constitution, as against
non-citizens. It is only as against the citizens that they remained in a dormant or moribund condition.
32. In M.P.V. Sundararamaier v. State of A.P. [AIR 1958 SC 468], Venkatarama Aiyer, J., said that a law
made without legislative competence and a law violative of constitutional limitations on legislative power
were both unconstitutional and both had the same reckoning in a court of law; and they were both
unenforceable but it did not follow from this that both laws were of the same quality and character and stood
on the same footing for all purposes. The proposition laid down by the learned Judge was that if a law is
enacted by a legislature on a topic not within its competence, the law was a nullity, but if the law was on topic
within its competence but if it violated some constitutional prohibition, the law was only unenforceable and
not a nullity. In other words, a law if it lacks legislative competence was absolutely null and void and a
subsequent cession of the legislative topic would not revive the law which was still-born and the law would
have to be re-enacted; but a law within the legislative competence but violative of constitutional limitation was
unenforceable but once the limitation was removed, the law became effective. The learned judge said that the
observations of Mahajan, J., in Pesikaka case that qua citizens that part of Section 13(b) of the Bombay
Prohibition Act, 1949, which had been declared invalid by this Court “had to be regarded as null and void”
could not in the context be construed as implying that the impugned law must be regarded as non-est so as to
be incapable of taking effect when the bar was removed. He summed up the result of the authorities as follows:
Where an enactment is unconstitutional in part but valid as to the rest, assuming of course that the two
portions are severable, it cannot be held to have been wiped out of the statute book as it admittedly
must remain there for the purpose of enforcement of the valid portion thereof, and being on the statute
book, even that portion which is unenforceable on the ground that it is unconstitutional will operate
proprio vigore when the Constitutional bar is removed, and there is no need for a fresh legislation.
33. In Deep Chand v. State of U.P. [AIR 1959 SC 648], it was held that a post-Constitution law is void
from its inception but that a pre-Constitution law having been validly enacted would continue in force so far as
non-citizens are concerned after the Constitution came into force. The Court further said that there is no
distinction in the meaning of the word ‘void’ in Article 13(1) and in 13(2) and that it connoted the same
concept but, since from its inception the post-Constitution law is void, the law cannot be resuscitated without
re-enactment. Subba Rao, J., who wrote the majority judgment said after citing the observations of Das, Acting
C.J., in Keshava Madhava Menon case:
The second part of the observation directly applies only to a case covered by Article 13(1), for the
learned Judges say that the laws exist for the purposes of pre-Constitution rights and liabilities and
they remain operative even after the Constitution as against non-citizens. The said observation could
not obviously apply to post-Constitution laws. Even so, it is said that by a parity of reasoning the post-
Constitution laws are also void to the extent of their repugnancy and therefore the law in respect of
non-citizens will be on the statute-book and by the application of the doctrine of eclipse, the same
result should flow in its case also. There is some plausibility in this argument, but it ignores one vital
principle, viz., the existence or the non-existence of legislative power or competency at the time the
law is made governs the situation.
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34. Das, C.J., dissented. He was of the view that a post-Constitution law may infringe either a fundamental
right conferred on citizens only or a fundamental right conferred on any person, citizen or non-citizen and that
in the first case the law will not stand in the way of the exercise by the citizens of that fundamental right and,
therefore, will not have any operation on the rights of the citizens, but it will be quite effective as regards non-
citizens.
35. In Maheidra Lal Jaini v. State of U.P. [AIR 1963 SC 1019], the Court was of the view that the
meaning of the word ‘void’ is the same both in Article 13(1) and Article 13(2) and that the application of the
doctrine of eclipse in the case of pre-Constitution laws and not in the case of post-Constitution laws does not
depend upon the two parts of Article 13: (at p. 940)
(T)hat it arises from the inherent difference between Article 13(1) and Article 13(2) arising from the
fact that one is dealing with pre-Constitution laws, and the other is dealing with post-Constitution
laws, with the result that in one use the laws being not still-born the doctrine of eclipse will apply
while in the other case the law being still-born there will be no scope for the application of the
doctrine of eclipse.
36. If the meaning of the word ‘void’ in Article 13(1) is the same as its meaning in Article 13(2), it is
difficult to understand why a pre-Constitution law which takes away or abridges the rights under Article 19
should remain operative even after the Constitution came into force as regards non-citizens and a post-
Constitution law which takes away or abridges them should not be operative as respects non-citizens. The fact
that pre-Constitution law was valid when enacted can afford no reason why it should remain operative as
respects non-citizens after the Constitution came into force as it became void on account of its inconsistency
with the provisions of Part III. Therefore, the real reason why it remains operative as against non-citizens is
that it is void only to the extent of its inconsistency with the rights conferred under Article 19 and that its
voidness is, therefore, confined to citizens, as, ex hypothesi, the law became inconsistent with their
fundamental rights alone. If that be so, we see no reason why a post-Constitution law which takes away or
abridges the rights conferred by Article 19 should not be operative in regard to non-citizens as it is void only to
the extent of the contravention of the rights conferred on citizens, namely, those under Article 19.
37. Article 13(2) is an injunction to the ‘state’ not to pass any law which takes away or abridges the
fundamental rights conferred by Part III and the consequence of the contravention of the injunction is that the
law would be void to the extent of the contravention. The expression ‘to the extent of the contravention’ in the
sub-article can only mean, to the extent of the contravention of the rights conferred under that part. Rights do
not exist in vacuum. They must always inhere in some person whether natural or juridical and, under Part III,
they inhere even in fluctuating bodies like linguistic or religious minorities or denominations. And, when the
sub-article says that the law would be void “to the extent of the contravention”, it can only mean to the extent
of the contravention of the rights conferred on persons, minorities or denominations, as the case may be. Just
as a pre-Constitution law taking away or abridging the fundamental rights under Article 19 remains operative
after the Constitution came into force as respects non-citizens as it is not inconsistent with their fundamental
rights, so also a post-Constitution law offending Article 19, remains operative as against non-citizens as it is
not in contravention of any of their fundamental rights. The same scheme permeates both the sub-articles,
namely, to make the law void in Article 13(1) to the extent of the inconsistency with the fundamental rights,
and in Article 13(2) to the extent of the contravention of those rights. In other words, the voidness is not in rem
but to the extent only of inconsistency or contravention, as the case may be of the rights conferred under Part
III. Therefore, when Article 13(2) uses the expression ‘void’, it can only mean, void as against persons whose
fundamental rights are taken away or abridged by a law. The law might be ‘still-born’ so far as the persons,
entities or denominations whose fundamental rights are taken away or abridged, but there is no reason why the
law should be void or ‘still-born’ as against those who have no fundamental rights.
38. It is said that the expression “to the extent of the contravention” in the Article means that the part of
the law which contravenes the fundamental right would alone be void and not the other parts which do not so
contravene. In other words, the argument was that the expression is intended to denote only the part of the law
that would become void and not to show that the law will be void only as regards the persons or entities whose
fundamental rights have been taken away or abridged.
39. The first part of the sub-article speaks of ‘any law’ and the second part refers to the same law by using
the same expression, namely, ‘any law’. We think that the expression ‘any law’ occurring in the latter part of
the sub-article must necessarily refer to the same expression in the former part and therefore, the Constitution-
makers have already made it clear that the law that would be void is only the law that contravenes the
fundamental rights conferred by Part III, and so, the phrase ‘to the extent of the contravention’ can mean only
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to the extent of the contravention of the rights conferred. For instance, if a section in a statute takes away or
abridges any of the rights conferred by Part III, it will be void because it is the law embodied in the section
which takes away or abridges the fundamental right. And this is precisely what the sub-article has said in
express terms by employing the expression ‘any law’ both in the former and the latter part of it. It is difficult to
see the reason why the Constitution-makers wanted to state that the other sections, which did not violate the
fundamental right, would not be void, and any such categorical statement would have been wrong, as the other
sections might be void if they are inseparably knitted to the void one. When we see that the latter part of the
sub-article is concerned with the effect of the violation of the injunction contained in the former part, the
words “to the extent of the contravention” can only refer to the rights conferred under Part III and denote only
the compass of voidness with respect to persons or entities resulting from the contravention of the rights
conferred upon them. Why is it that a law is void under Article 13(2)? It is only because the law takes away or
abridges a fundamental right. There are many fundamental rights and they inhere in diverse types of persons,
minorities or denominations. There is no conceivable reason why a law which takes away the fundamental
right of one class of persons, or minorities or denominations should be void as against others who have no
such fundamental rights as, ex hypofhesi the law cannot contravene their rights.
40. It was submitted that this Court has rejected the distinction drawn by Venkatarama Aiyar, J. in
Sundararamaier case between legislative incapacity arising from lack of power under the relevant legislative
entry and that arising from a check upon legislative power on account of constitutional provisions like
fundamental rights and that if the law enacted by a legislature having no capacity in the former sense would be
void in rem, there is no reason why a law passed by a legislature having no legislative capacity in the latter
sense is void only qua persons whose fundamental rights are taken away or abridged.
41. It was also urged that the expression “the State shall not make any law” in Article 13(2) is a clear
mandate of the fundamental law of the land and, therefore, it is a case of total incapacity and total want of
power. But the question is: what is the mandate? The mandate is that the State shall not make any law which
takes away or abridges the rights conferred by Part III, If no rights are conferred under Part III upon a person,
or, if rights are conferred, but they are not taken away or abridged by the law, where is the incapacity of the
legislature? It may be noted that both in Deep Chand case and Mahendra Lal Joini case, the decision in
Sundararamaier case was not adverted to. If on a textual reading of Article 13, the conclusion which we have
reached is the only reasonable one, we need not pause to consider whether that conclusion could be arrived at
except on the basis of the distinction drawn by Venkatarama Aiyar, J. in Sundararamier case. However, we
venture to think that there is nothing strange in the notion of a legislature having no inherent legislative
capacity or power to take away or abridge by a law the fundamental rights conferred on citizens and yet having
legislative power to pass the same law in respect of non-citizens who have no such fundamental rights to be
taken away or abridged. In other words, the legislative incapacity subjectwise with reference to Articles 245
and 246 in this context would be the taking away or abridging by law the fundamental rights under Article 19
of citizens.
43. In Jagannath v. Authorized Officer, Land Reforms [(1971) 2 SCC 893], this Court has said that a
post-Constitution Act which has been struck down for violating the fundamental rights conferred under Part III
and was therefore still-born, has still an existence without re-enactment, for being put in the Ninth Schedule.
That only illustrates that any statement that a law which takes away or abridges fundamental rights conferred
under Part III is still-born or null and void requires qualifications in certain situations. Although the general
rule is that a statute declared unconstitutional is void at all times and that its invalidity must be recognized and
acknowledged for all purposes and is no law and a nullity, this is neither universally nor absolutely true and
there are many exceptions to it. A realistic approach has been eroding the doctrine of absolute nullity in all
cases and for all purposes and it has been held that such broad statements must be taken with some
qualifications, that even an unconstitutional statute is an operative fact at least prior to a determination of
constitutionality and may have consequences which cannot be ignored.
The decision made by the competent authority that something that presents itself as a norm is null ab initio
because it fulfils the conditions of nullity determined by the legal order is a constitutive act; it has a definite
legal effect; without and prior to this act the phenomenon in question cannot be considered as null. Hence the
decision is not ‘declaratory’, that is to say, it is not, as it presents itself, a declaration of nullity; it is a true
annulment, an annulment with retroactive force. There must be something legally existing to which this
decision refers. Hence, the phenomenon in question cannot be something null ab initio, that is to say, legally
nothing. It has to be considered as a norm annulled with retroactive force by the decision declaring it null ab

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initio. Just as everything King Midas touched turned into gold, everything to which the law refers becomes
law, i.e., something legally existing.
45. We do not think it necessary to pursue this aspect further in this case. For our purpose it is enough to
say that if a law is otherwise good and does not contravene any of their fundamental rights, non-citizens cannot
take advantage of the voidness of the law for the reason that it contravenes the fundamental right of citizens
and claim that there is no law at all. Nor would this proposition violate any principle of equality before the law
because citizens, and non-citizens are not similarly situated as the citizens have certain fundamental rights
which non-citizens have not. Therefore, even assuming that under Article 226 of the Constitution, the first
respondent was entitled to move the High Court and seek a remedy for infringement of its ordinary right to
property, the impugned provisions were not non-est but were valid laws enacted by a competent legislature as
respects non-citizens and the first respondent cannot take the plea that its rights to property are being taken
away or abridged without the authority of law.
46. Now, let us see whether the definition of ‘establishment’ in Section 2(4) violates the right under
Article 14 and make the impugned provisions void.
47. The High Court held that there was no intelligible differentia to distinguish establishments grouped
together under the definition of ‘establishment’ in Section 2(4) and establishments left out of the group; and
that in any event, the differentia had no rational relation or nexus with the object sought to be achieved by the
Act and that the impugned provisions as they affected the rights and liabilities of employers and employees in
respect of the establishments defined in Section 2(4) were, therefore, violative of Article 14. The reasoning of
the High Court was that all factories falling within the meaning of Section 2(m) of the Factories Act, 1948,
were brought within the purview of the definition of ‘establishment’ while establishments carrying business or
trade and employing less than fifty persons were left out and that opt of this latter class of establishments an
exception was made and all establishments carrying on the business of tramways or motor omnibus services
were included without any fair reason and that, though Government establishments which were factories were
included within the definition of ‘establishment’ other Government establishments were excluded and,
therefore, the classification was unreasonable.
48. The definition of ‘establishment’ includes factories, tramway or motor omnibus services and any
establishment carrying on business or trade and employing more than 50 persons, but excludes all Government
establishments carrying on business or trade.
49. In the High Court, an affidavit was filed by Mr Brahmbhatt, Deputy Secretary to Education and Labour
Department, wherein it was stated that the differentiation between factories and commercial establishments
employing less than 50 persons was made for the reason that the turnover of labour is more in factories than in
commercial establishments other than factories on account of the fact that industrial labour frequently changes
employment for a variety of reasons.
50. The High Court was not prepared to accept this explanation. The High Court said:
It may be that in case of commercial establishments employing not more than 50 persons, the
turnover of labour in commercial establishments being less, the unpaid accumulations may be small.
But whether unpaid accumulations are small or large is an immaterial consideration for the purpose of
the enactment of the impugned provisions. The object of the impugned provisions being to get at the
unpaid accumulations and to utilize them for the benefit of labour, the extent of the unpaid
accumulations with any particular establishment can never be a relevant consideration.
51. According to the High Court, as an establishment carrying on tramway or motor omnibus service
would be within the definition of ‘establishment’ even if it employs less than 50 persons, or for that matter,
even less than 10 persons, the reason given in the affidavit of Mr Brahmbhatt for excluding all commercial
establishments employing less than 50 persons from the definition was not tenable. The Court was also of the
view that when Government factories were included in the definition of ‘establishment’ there was no reason
for excluding government establishments other than factories from the definition. The affidavit of Mr
Brahmbhatt made it clear that there were hardly any establishments of the Central or State Governments which
carried on business or trade or any work in connection with or ancillary thereto and, therefore, the legislature
did not think it fit to extend the provisions of the Act to such establishments. No affidavit in rejoinder was filed
on behalf of respondents to contradict this statement.
52. It would be an idle parade of familiar learning to review the multitudinous cases in which the
constitutional assurance of equality before the law has been applied.

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53. The equal protection of the laws is a pledge of the protection of equal laws. But laws may classify.
And the very idea of classification is that of inequality. In tackling this paradox the Court has neither
abandoned the demand for equality nor denied the legislative right to classify. It has taken a middle course. It
has resolved the contradictory demands of legislative specialisation and constitutional generality by a doctrine
of reasonable classification.
54. A reasonable classification is one which includes all who are similarly situated and none who are not.
The question then is: what does the phrase ‘similarly situated’ mean? The answer to the question is that we
must look beyond the classification to the purpose of the law. A reasonable classification is one which includes
all persons who are similarly situated with respect to the purpose of the law. The purpose of a law may be
either the elimination of a public mischief or the achievement of some positive public good.
55. A classification is under-inclusive when all who are included in the class are tainted with the mischief
but there are others also tainted whom the classification does not include. In other words, a classification is bad
as under-inclusive when a State benefits or burdens persons in a manner that furthers a legitimate purpose but
does not confer the same benefit or place the same burden on others who are similarly situated. A classification
is over-inclusive when it includes not only those who are similarly situated with respect to the purpose but
others who are not so situated as well. In other words, this type of classification imposes a burden upon a
wider range of individuals than are included in the class of those attended with mischief at which the law aims.
Herod ordering the death of all male children born on a particular day because one of them would some day
bring about his downfall employed such a classification.
56. The first question, therefore, is, whether the exclusion of establishments carrying on business or trade
and employing less than 50 persons makes the classification under-inclusive, when it is seen that all factories
employing 10 or 20 persons, as the case may be, have been included and that the purpose of the law is to get in
unpaid accumulations for the welfare of the labour. Since the classification does not include all who are
similarly situated with respect to the purpose of the law, the classification might appear, at first blush, to be
unreasonable. But the Court has recognized the very real difficulties under which legislatures operate -
difficulties arising out of both the nature of the legislative process and of the society which legislation attempts
perennially to re-shape and it has refused to strike down indiscriminately all legislation embodying
classificatory inequality here under consideration. Mr. Justice Holmes, in urging tolerance of under-inclusive
classifications, stated that such legislation should not be disturbed by the Court unless it can clearly see that
there is no fair reason for the law which would not require with equal force its extension to those whom it
leaves untouched. What, then, are the fair reasons for non-extension? What should a court do when it is faced
with a law making an under-inclusive classification in areas relating to economic and tax matters? Should it,
by its judgment, force the legislature to choose between inaction or perfection?
57. The legislature cannot be required to impose upon administrative agencies tasks which cannot be
carried out or which must be carried out on a large scale at single stroke.
If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other
instances to which it might have been applied. There is no doctrinaire requirement that the legislation should
be couched in all embracing terms
58. The piecemeal approach to a general problem permitted by under-inclusive classifications, appears
justified when it is considered that legislative dealing with such problems is usually an experimental matter. It
is impossible to tell how successful a particular approach may be, what dislocations might occur, what
evasions might develop, what new evils might be generated in the attempt. Administrative expedients must be
forged and tested. Legislators, recognizing these factors, may wish to proceed cautiously, and courts must
allow them to do so.
59. Administrative convenience in the collection of unpaid accumulations is a factor to be taken into
account in adjudging whether the classification is reasonable. A legislation may take one step at a time
addressing itself to the phase of the problem which seems most acute to the legislative mind. Therefore, a
legislature might select only one phase of one field for application of a remedy.
60. It may be remembered that Article 14 does not require that every regulatory statute apply to all in the
same business: where size is an index to the evil at which the law is directed, discriminations between the large
and small are permissible, and it is also permissible for reform to take one step at a time, addressing itself to
the phase of the problem which seems most acute to the legislative mind.

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61. A legislative authority acting within its field is not bound to extend its regulation to all cases which it
might possibly reach. The legislature is free to recognize degrees of harm and it may confine the restrictions to
those classes of cases where the need seemed to be clearest.
62. In short, the problem of legislative classification is a perennial one, admitting of no doctrinaire
definition. Evils in the same field may be of different dimensions and proportions requiring different remedies.
Or so the legislature may think.
63. Once an objective is decided to be within legislative competence, however, the working out of
classifications has been only infrequently impeded by judicial negatives. The Court’s attitude cannot be that
the State either has to regulate all businesses, or even all related businesses, and in the same way, or, not at all.
An effort to strike at a particular economic evil could not be hindered by the necessity of carrying in its wake a
train of vexatious, troublesome and expensive regulations covering the whole range of connected or similar
enterprises.
64. Laws regulating economic activity would be viewed differently from laws which touch and concern
freedom of speech and religion, voting, procreation, rights with respect to criminal procedure, etc. The
prominence given to the equal protection clause in many modem opinions and decisions in America all show
that the Court feels less constrained to give judicial deference to legislative judgment in the field of human and
civil rights than in that of economic regulation and that it is making a vigorous use of the equal protection
clause to strike down legislative action in the area of fundamental human rights. Equal protection clause rests
upon two largely subjective judgments: one as to the relative invidiousness of particular differentiation and the
other as to the relative importance of the subject with respect to which equality is sought.
65. The question whether, under Article 14, a classification is reasonable or unreasonable must, in the
ultimate analysis depends upon the judicial approach to the problem. The great divide in this area lies in the
difference between emphasizing the actualities or the abstractions of legislation. The more complicated society
becomes, the greater the diversity of its problems and the more does legislation direct itself to the diversities:
Statutes are directed to less than universal situations. Law reflects distinctions that exist in fact or
at least appear to exist in the judgment of legislators - those who have the responsibility for making
law fit fact. Legislation is essentially empirical. It addresses itself to the more or less crude outside
world and not to the neat, logical models of the mind. Classification is inherent in legislation. To
recognise marked differences that exist in fact is living law; to disregard practical differences and
concentrate on some abstract identities is lifeless logic.
66. That the legislation is directed to practical problems, that the economic mechanism is highly sensitive
and complex, that many problems are singular and contingent that laws are not abstract propositions and do
not relate to abstract units and are not to be measured by abstract symmetry, that exact wisdom and nice
adaptation of remedies cannot be required, that judgment is largely a prophecy based on meagre and un-
interpreted experience, should stand as reminder that in this area the Court does not take the equal protection
requirement in a pedagogic manner.
67. In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if
not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The
Courts have only the power to destroy, not to reconstruct. When these are added to the complexity of
economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts and the
number of times the judges have been overruled by events - self-limitation can be seen to be the path to
judicial wisdom and institutional prestige and stability.
69. The purpose ‘of the Act is to get unpaid accumulations for utilizing them for the welfare of labour in
general. The aim of any legislature would then be to get the unpaid accumulation from all concerns. So an
ideal classification should include all concerns which have ‘unpaid accumulations’. But then there are practical
problems. Administrative convenience as well as the apprehension whether the experiment, if undertaken as an
all-embracing one will be successful, are legitimate considerations in confining the realization of the objective
in the first instance to large concerns such as factories employing large amount of labour and with statutory
duty to keep register of wages, paid and unpaid, and the legislature has, in fact, brought all factories, whether
owned by Government or otherwise, within the purview of the definition of ‘establishment’. In other words, it
is from the factories that the greatest amount of unpaid accumulations could be collected and since the
factories are bound to maintain records from which the amount of unpaid accumulations could be easily
ascertained, the legislature brought all the factories within the definition of ‘establishment’. It then addressed
itself to other establishments but thought that establishments employing less than 50 persons need not be
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brought within the purview of the definition as unpaid accumulations in those establishments would be less
and might not be sufficient to meet the administrative expenses of collection and as many of them might not be
maintaining records from which the amount of unpaid accumulations could be ascertained. The affidavit of Mr
Brahmbhatt made it clear that unpaid accumulations in these establishments would be comparatively small.
The reason why government establishments other than factories were not included in the definition is also
stated in the affidavit of Mr. Brahmbhatt, namely, that there were hardly any establishments run by the Central
or State Government. This statement was not contradicted by any affidavit in rejoinder.
70. There remains then the further question whether there was any justification for including tramways and
motor omnibuses within the purview of the definition. So far as tramways and motor omnibuses are concerned,
the legislature of Bombay, when it enacted the Act in 1953, must have had reason to think that unpaid
accumulations in these concerns would be large as they usually employed large amount of labour force and
that they were bound to keep records of the wages earned and paid. Section 2(ii) (a) of the Payment of Wages
Act, 1936, before that section was amended in 1965 so far as it is material provided:
2. In this Act, unless there is anything repugnant in the subject or context,–
(ii) “industrial establishment” means any -
(a) tramway or motor omnibus service.
Rule 5 of the Bombay Payment of Wages Rules, 1937 provided:
5. Register of Wages.- A Register of Wages shall be maintained in every factory and industrial
establishment and may be kept in such form as the paymaster finds convenient but shall include the
following particulars:
(a) the gross wages earned by each person employed for each wage period;
(b) all deductions made from those wages, with an indication in each case of the clause of sub-
section (2) of Section 7 under which the deduction is made;
(c) the wages actually paid to each person employed for each wage period.
71. The Court must be aware of its own remoteness and lack of familiarity with local problems.
Classification is dependent on the peculiar needs and specific difficulties of the community. The needs and
difficulties of the community are constituted out of facts and opinions beyond the easy ken of the Court. It
depends to a great extent upon an assessment of the local condition of these concerns which the legislature
alone was competent to make.
72. Judicial deference to legislature in instances of economic regulation is sometimes explained by the
argument that rationality of a classification may depend upon ‘local conditions’ about which local legislative
or administrative body would be better informed than a court. Consequently, lacking the capacity to inform
itself fully about the peculiarities of a particular local situation, a court should hesitate to dub the legislative
classification irrational. Tax laws, for example, may respond closely to local needs and court’s familiarity with
these needs is likely to be limited.
73. Mr S.T. Desai for the appellants argued that, if it is held that the inclusion of tramways and motor
omnibuses in the category of ‘establishment’ is bad, the legislative intention to include factories and
establishments employing more than 50 persons should not be thwarted by striking down the whole definition.
He said that the doctrine of severability can be applied and that establishments running tramways and motor
omnibuses can be excluded from the definition without in the least sacrificing the legislative intention.
74. In Skinner v. Oklahoma ex rel Williamson [316 US 535], a statute providing for sterilization of
habitual criminals excluded embezzlers and certain other criminals from its coverage. The Supreme Court
found that the statutory classification denied equal protection and remanded the case to the State Court to
determine whether the sterilization provisions should be either invalidated or made to cover all habitual
criminals. Without elaboration, the State Court held the entire statute unconstitutional, declining to use the
severability clause to remove the exception that created the discrimination. In Skinner case the exception may
have suggested a particular legislative intent that one class should not be covered even if the result was that
none would be. But there is no necessary reason for choosing the intent to exclude one group over the intend to
include another. Courts may reason that without legislation none would be covered, and that invalidating the
exemption therefore amounts to illegitimate judicial legislation over the remaining class not previously
covered. The conclusion, then, is to invalidate the whole statute, no matter how narrow the exemption had
been. The reluctance to extend legislation may be particularly great if a statute defining a crime is before a
court, since extension would make behaviour criminal that had not been so before. But the consequences of
invalidation will be unacceptable if the legislation is necessary to an important public purpose. For example, a
42 | P a g e
statute requiring licensing of all doctors except those from a certain school could be found to deny equal
protection, but a court should be hesitant to choose invalidation of licensing as an appropriate remedy. Though
the test is imprecise, a court must weigh the general interest in retaining the statute against the court’s own
reluctance to extend legislation to those not previously covered. Such an inquiry may lead a court into
examination of legislative purpose, the overall statutory scheme, statutory arrangements in connected fields
and the needs of the public
75. This Court has, without articulating any reason, applied the doctrine of severability by deleting the
offending clause which made classification unreasonable.
76. Whether a court can remove the unreasonableness of a classification when it is under-inclusive by
extending the ambit of the legislation to cover the class omitted to be included, or, by applying the doctrine of
severability delete a clause which makes a classification over-inclusive are matters on which it is not necessary
to express any final opinion as we have held that the inclusion of tramway and motor omnibus service in the
definition of ‘establishment’ did not make the classification unreasonable having regard to the purpose of the
legislation.
77. In the result, we hold that the impugned sections are valid and allow the appeals.
*****

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Bhikaji Narain Dhakras v. State of M.P.
(1955) 2 SCR 589 : AIR 1955 SC 781
S.R. DAS, C.J. - This judgment will dispose of all the five petitions (Nos. 189 to 193 of 1955) which have
been heard together and which raise the same question as to the constitutional validity of the C. P. & Berar
Motor Vehicles (Amendment) Act, 1947.
2. The facts are short and simple. Each of the petitioners has been carrying on business as stage carriage
operator for a considerable number of years under permits granted under Section 58 of the Motor Vehicles
Act, 1939 as amended by the C. P. & Berar Motor Vehicles (Amendment) Act, 1947.
3. Prior to the amendment Section 58 of the Motor Vehicles Act, 1939 was in the following terms:
“58.(1) A permit other than a temporary permit issued under Section 62 shall be effective without
renewal for such period, not less than three years and not more than five years, as the Regional
Transport Authority may in its discretion specify in the permit.
Provided that in the case of a permit issued or renewed within two years of the commencement of
this Act, the permit shall be effective without renewal for such period of less than three years as the
Provincial Government may prescribe.
(2) A permit may be renewed on an application made and disposed of as if it were an application
for a permit:
Provided that, other conditions being equal, an application for renewal shall be given preference
over new applications for permits.”
It will be noticed that under the section as it originally stood the permit granted thereunder was for
a period of not less than 3 years and not more than 5 years and a permit-holder applying for renewal of
the permit had, other things being equal, preference over new applicants for permit over the same
route and would ordinarily get such renewal.
4. Very far reaching amendments were introduced by the C. P. & Berar Motor Vehicles (Amendment) Act,
1947 into the Motor Vehicles Act, 1939 in its application to Central Provinces and Berar. By Section 3 of the
amending Act, item (ii) of sub-Section (1) of Section 43 of the Central Act was replaced by the following
items:
“(ii) fix maximum, minimum or specified fares or freights for stage carriages and public carriers
to be applicable throughout the province or within any area or on any route within the province, or
(iii) notwithstanding anything contained in Section 58 or Section 60 cancel any permit granted
under the Act in respect of a transport vehicle or class of such permits either generally or in any area
specified in the notification:
Provided that no such notification shall be issued before the expiry of a period of three months
from the date of a notification declaring its intention to do so:
Provided further that when any such permit has been cancelled, the permit-holder shall be entitled
to such compensation as may be provided in the rules; or
(iv) declare that it will engage in the business of road transport service either generally or in
any area specified in the notification.”
The following sub-section (3) was added after sub-section (2) of Section 58 of the Central Act by Section
8 of the amending Act, namely:
“(3) Notwithstanding anything contained in sub-section (1), the Provincial Government may order
a Regional Transport Authority or the Provincial Transport Authority to limit the period for which any
permit or class of permits is issued to any period less than the minimum specified in the Act.”
Section 9 of the amending Act added after Section 58 a new section reading as follows:
“58-A. Notwithstanding anything hereinbefore contained the Provincial Government may by
order direct any Regional Transport Authority or the Provincial Transport Authority to grant a stage
carriage permit to the Provincial Government or any undertaking in which the Provincial Government
is financially interested or a permit-holder whose permit has been cancelled under Section 43 or any
local authority specified in the order.”
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The result of these amendments was that power was given to the Government (i) to fix fares or freights
throughout the Province or for any area or for any route, (ii) to cancel any permit after the expiry of three
months from the date of notification declaring its intention to do so and on payment of such compensation as
might be provided by the Rules, (iii) to declare its intention to engage in the business of road transport
generally or in any area specified in the notification, (iv) to limit the period of the license to a period less than
the minimum specified in the Act, and (v) to direct the specified Transport Authority to grant a permit, inter
alia, to the Government or any undertaking in which Government was financially interested. It may be
mentioned here that in the State of Madhya Pradesh there are two motor transport companies known as C. P.
Transport Services Ltd., and Provincial Transport Co. Ltd., in which, at the date of these writ petitions, the
State of Madhya Pradesh and the Union of India held about 85 per cent. of the share capital. Indeed, since the
filing of these petitions the entire undertakings of these companies have been purchased by the State of
Madhya Pradesh and the latter are now running the services on some routes for which permits had been
granted to them.
5. A cursory perusal of the new provisions introduced by the amending Act will show that very extensive
powers were conferred on the Provincial Government and the latter were authorised, in exercise of these
powers, not only to regulate or control the fares or freights but also to take up the entire motor transport
business in the province and run it in competition with and even to the exclusion of all motor transport
operators. It was in exercise of the powers under the newly added sub-section (3) of Section 58 that the period
of the permit was limited to four months at a time. It was in exercise of powers conferred on it by the new
Section 43(l)(iv) that the Notification hereinafter mentioned declaring the intention of the Government to take
up certain routes was issued. It is obvious that these extensive powers were given to the Provincial
Government to carry out and implement the policy of nationalisation of the road transport business adopted by
the Government. At the date of the passing of the amending Act, 1948 there was no such thing as fundamental
rights of the citizens and it was well within the legislative competency of the Provincial Legislature to enact
that law. It has been conceded that the amending Act was, at the date of its passing, a perfectly valid piece of
legislation.
6. Then came our Constitution on the 26-1-1950. Part III of the Constitution is headed “Fundamental
Rights” and consists of Articles 12 to 35. By Article 19(1) the Constitution guarantees to all citizens the right
to freedom under seven heads. Although in Article 19(1) all these rights are expressed in unqualified language,
none of them, however, is absolute, for each of them is cut down or limited by whichever of the several clauses
(2) to (6) of that Article is applicable to the particular right. Thus the right to practise any profession or to carry
on any occupation, trade or business conferred by Article 19(1)(g) was controlled by clause (6) which, prior to
its amendment to which reference will presently be made, ran as follows:
“(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so
far as it imposes, or prevent the State from making any law imposing, in the interests of the general
public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in
particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it
prescribes or empowers any authority to prescribe, or prevent the State from making any law
prescribing or empowering any authority to prescribe, the professional or technical qualifications
necessary for practising any profession or carrying on any occupation, trade or business.”
The fundamental rights conferred by Articles 14 to 35 are protected by the provisions of Article 13.
7. The amending Act (III of 1948) was, at the commencement of the Constitution, an existing law. The
new provisions introduced by the Act authorised the Provincial Government to exclude all private motor
transport operators from the field of transport business. Prima facie, therefore, it was an infraction of the
provisions of Article 19(1)(g) of the Constitution and would be void under Article 13(1), unless this invasion
by the Provincial Legislature of the fundamental right could be justified under the provisions of clause (6) of
Article 19 on the ground that it imposed reasonable restrictions on the exercise of the right under Article
19(1)(g) in the interests of the general public. In Shagir Ahmad v. The State of U.P.[(1955) 1 SCR 707], it
was held by this Court that if the word “restriction” was taken and read in the sense of limitation and not
extinction then clearly the law there under review which, like the amending Act now before us, sanctioned the
imposition of total prohibition on the right to carry on the business of a motor transport operator could not be
justified under Article 19(6). It was further held in that case that if the word “restriction” in clause (6) of
Article 19 of the Constitution, as in other clauses of that Article, were to be taken in certain circumstances to
include prohibition as well, even then, having regard to the nature of the trade which was perfectly innocuous
and to the number of persons who depended upon business of this kind for their livelihood, the impugned law
45 | P a g e
could not be justified as reasonable. In this view of the matter, there is no escape from the conclusion that the
amending Act, insofar as it was inconsistent with Article 19(1)(g) read with clause (6) of that Article, became,
under Article 13(1), void “to the extent of such inconsistency” and if there were nothing else in the case the
matter would have been completely covered by the decision of this Court in that case.
8. On the 18-6-1951, however, was passed the Constitution (First Amendment) Act, 1951. By Section 3(1)
of that Act for clause (2) of Article 19 a new sub-clause was substituted which was expressly made
retrospective. Clause (6) of Article 19 was also amended.
It will be noticed that clause (6), as amended, was not made retrospective as the amended clause (2) had
been made. The contention of the respondents before us is that although the amending Act, on the authority of
our decision in Shagir Ahmad case, became on and from the 26-1-1950 void as against the citizens to the
extent of its inconsistency with the provisions of Article 19(1)(g), nevertheless, after the 18-6-1951 when
clause (6) was amended by the Constitution (First Amendment) Act, 1951 the amending Act ceased to be
inconsistent with the fundamental right guaranteed by Article 19(1)(g) read with the amended clause (6) of that
Article, because that clause, as it now stands, permits the creation by law of State monopoly in respect, inter
alia, of motor transport business and it became operative again even as against the citizens. The petitioners, on
the other hand, contend that the law having become void for unconstitutionality was dead and could not be
vitalised by a subsequent amendment of the Constitution removing the constitutional objection, unless it was
re-enacted, and reference is made to Prof. Cooley’s work on Constitutional Limitations, Vol. I, p. 384 Note
referred to in our judgment in Shagir Ahmad case and to similar other authorities. The question thus raised by
the respondents, however, was not raised by the learned Advocate-General in that case, although the
notification was published by the U.P. Government on the 25-3-1953 and the proposed scheme was published
on the 7-4-1953, i.e., long after the Constitution (First Amendment) Act, 1951 had been passed. This question
was not considered by this Court in Shagir Ahmad case.
9. The meaning to be given to the word “void” in Article 13 is no longer res integra, for the matter stands
concluded by the majority decision of this Court in Keshavan Madhava Menon v. The State of Bombay [AIR
1955 SC 128]. We have to apply the ratio decidendi in that case to the facts of the present case. The impugned
Act was an existing law at the time when the Constitution came into force. That existing law imposed on the
exercise of the right guaranteed to the citizens of India by Article 19(1)(g) restrictions which could not be
justified as reasonable under clause (6) as it then stood and consequently under Article 13(1) that existing law
became void “to the extent of such inconsistency”. As explained in Keshavan Madhava Menon case the law
became void not in toto or for all purposes or for all times or for all persons but only “to the extent of such
inconsistency”, that is to say, to the extent it became inconsistent with the provisions of Part III which
conferred the fundamental rights on the citizens. It did not become void independently of the existence of the
rights guaranteed by Part III. In other words, on and after the commencement of the Constitution the existing
law, as a result of its becoming inconsistent with the provisions of Article 19(1)(g) read with clause (6) as it
then stood, could not be permitted to stand in the way of the exercise of that fundamental right. Article 13(1)
by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or
having wiped it out altogether from the statute book. Such law existed for all past transactions and for
enforcement of rights and liabilities accrued before the date of the Constitution, as was held in Keshavan
Madhava Menon case. The law continued in force, even after the commencement of the Constitution, with
respect to persons who were not citizens and could not claim the fundamental right. In short, Article 13(1) had
the effect of nullifying or rendering the existing law which had become inconsistent with Article 19(1)(g) read
with clause (6) as it then stood ineffectual, nugatory and devoid of any legal force or binding effect only with
respect to the exercise of the fundamental right on and after the date of the commencement of the Constitution.
Therefore, between the 26-1-1950 and the 18-6-1951 the impugned Act could not stand in the way of the
exercise of the fundamental right of a citizen under Article 19(1)(g). The true position is that the impugned law
became, as it were, eclipsed, for the time being, by the fundamental right. The effect of the Constitution (First
Amendment) Act, 1951 was to remove the shadow and to make the impugned Act free from all blemish or
infirmity. If that were not so, then it is not intelligible what “existing law” could have been sought to be saved
from the operation of Article 19(1)(g) by the amended clause (6) insofar as it sanctioned the creation of State
monopoly, for, ex hypothesi, all existing laws creating such monopoly had already become void at the date of
the commencement of the Constitution in view of clause (6) as it then stood. The American authorities refer
only to post-Constitution laws which were inconsistent with the provisions of the Constitution. Such laws
never came to life but were still born as it were. The American authorities, therefore, cannot fully apply to pre-
Constitution laws which were perfectly valid before the Constitution. But apart from this distinction between

46 | P a g e
pre-Constitution and post-Constitution laws on which, however, we need not rest our decision, it must be held
that these American authorities can have no application to our Constitution. All laws, existing or future, which
are inconsistent with the provisions of Part III of our Constitution are, by the express provision of Article 13,
rendered void “to the extent of such inconsistency”. Such laws were not dead for all purposes. They existed for
the purposes of pre-Constitution rights and liabilities and they remained operative, even after the Constitution,
as against non-citizens. It is only as against the citizens that they remained in a dormant or moribund
condition. In our judgment, after the amendment of clause (6) of Article 19 on the 18-6-1951, the impugned
Act ceased to be unconstitutional and became revivified and enforceable against citizens as well as against
non-citizens. It is true that as the amended clause (6) was not made retrospective the impugned Act could have
no operation as against citizens between the 26-1-1950 and the 18-6-1951 and no rights and obligations could
be founded on the provisions of the impugned Act during the said period whereas the amended clause (2) by
reason of its being expressly made retrospective had effect even during that period. But after the amendment of
clause (6) the impugned Act immediately became fully operative even as against the citizens. The notification
declaring the intention of the State to take over the bus routes to the exclusion of all other motor transport
operators was published on the 4-2-1955 when it was perfectly constitutional for the State to do so. In our
judgment the contentions put forward by the respondents as to the effect of the Constitution (First
Amendment) Act, 1951 are well-founded and the objections urged against them by the petitioners are
untenable and must be negatived.
10. The petitioners then contend that assuming that the impugned Act cannot be questioned on the ground
of infringement of their fundamental right under Article 19(1)(g) read with clause (6) of that Article, there has
been another infraction of their fundamental right in that they have been deprived of their property, namely,
the right to ply motor vehicles for gain which is an interest in a commercial undertaking and, therefore, the
impugned Act does conflict with the provisions of Article 31(2) of the Constitution and again they rely on our
decision in Shagir Ahmad case. Here, too, if there were nothing else in the case this contention may have been
unanswerable. But unfortunately for the petitioners there is the Constitution (Fourth Amendment) Act, 1955
which came into force on the 27-4-1955.
There can be no question that the amended provisions, if they apply, save the impugned law, for it does not
provide for the transfer of the ownership or right to possession of any property and cannot, therefore, be
deemed to provide for the compulsory acquisition or requisitioning of any property. But the petitioners
contend, as they did with regard to the Constitution (First Amendment) Act, 1951, that these amendments
which came into force on the 27-4-1955 are not retrospective and can have no application to the present case.
It is quite true that the impugned Act became inconsistent with Article 31 as soon as the Constitution came into
force on the 26-1-1950 as held by this Court in Shagir Ahmad case and continued to be so inconsistent right
up to the 27-4-1955 and, therefore, under Article 13(1) became void “to the extent of such inconsistency.”
Nevertheless, that inconsistency was removed on and from the 27-4-1955 by the Constitution (Fourth
Amendment) Act, 1955. The present writ petitions were filed on the 27-5-1955, exactly a month after the
Constitution (Fourth Amendment) Act, 1955 came into force, and, on a parity of reasoning hereinbefore
mentioned, the petitioners cannot be permitted to challenge the constitutionality of the impugned Act on and
from the 27-4-1955 and this objection also cannot prevail.
12. The result, therefore, is that these petitions must be dismissed.
*****

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RIGHT TO EQUALITY
Kathi Raning Rawat v. State of Saurashtra

1952 SCR 435 : AIR 1952 SC 123
[Section 11 of the Saurashtra State Public Safety Measures (Third Amendment) Ordinance (No. 66), 1949,
provided:
A Special Judge shall try such offences or classes of offences or such cases or classes of cases as the
Government of the United State of Saurashtra may, by general or special order in writing direct.
Compare the above provision with section 5(1) of the West Bengal Special Courts Act, 1950:
A Special Court shall try such offences or classes of offences or cases or classes of cases as the State
Government may, by general or special order in writing, direct.]
SAIYID FAZL ALI J. - This is an appeal by one Kathi Raning Rawat, who has been convicted under
Sections 302, 307 and 392 read with Section 34 of the Indian Penal Code and sentenced to death and to seven
years’ RI, the sentences to run concurrently. The appellant was tried by a Special Court constituted under the
Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949 (Ordinance 66 of 1949), which
was issued by the Rajpramukh of Saurashtra on 2nd November, 1949, and his conviction and sentence were
upheld on appeal by the State High Court. He has preferred an appeal to this Court against the decision of the
High Court.
12. The principal question which arises in this appeal is whether the Ordinance to which reference has
been made is void under Article 13(1) of the Constitution on the ground that it violates the provisions of
Article 14. It appears that on the 5th April, 1948, the Rajpramukh of Saurashtra State promulgated an
Ordinance called the Criminal Procedure Code, 1898 (Adaptation) Ordinance, 1948 by which “the Criminal
Procedure Code of the Dominion of India as in force in that Dominion on the 1st day of April, 1948” was made
applicable to the State of Saurashtra with certain modifications. In the same month, another Ordinance called
the Saurashtra State Public Safety Measures Ordinance (Ordinance 9 of 1948) was promulgated, which
provided among other things for the detention of persons acting in a manner prejudicial to public safety,
maintenance of public order and peace and tranquillity in the State. Subsequently, on 5 th November, 1949, the
Ordinance with which we are concerned, namely, the Saurashtra State Public Safety Measures (Third
Amendment) Ordinance, 1949, was promulgated, which purported to amend the previous Ordinance by
inserting in it certain provisions which may be summarised as follows:
13. Section 9 of the Ordinance empowers the State Government by notification in the Official Gazette to
constitute Special Courts of criminal jurisdiction for such area as may be specified in the notification. Section
11 provides that a Special Judge shall try such offences or class of offences or such cases or class of cases as
the State Government may, by general or special order in writing, direct. Sections 12 to 18 lay down the
procedure for the trial of cases by the Special Judge, the special features of which are as follows:
(1) The Special Judge may take cognizance of offences without the accused being committed to his
court for trial;
(2) There is to be no trial by jury or with the aid of assessors;
(3) The Special Judge should ordinarily record a memorandum only of the substance of the evidence
of each witness; and
(4) The person convicted has to appeal to the High Court within 15 days from the date of the sentence.
14. The Ordinance further provides that the provisions of Sections 491 and 526 of the Code of Criminal
Procedure shall not apply to any person or case triable by the Special Judge, and the High Court may call for
the record of the proceedings of any case tried by a Special Judge and may exercise any of the powers
conferred on an appellate court by Sections 423, 426, 427 and 428 of the Code.
15. From the foregoing summary of the provisions of the Ordinance, it will appear that the difference
between the procedure laid down in the Criminal Procedure Code and the procedure to be followed by the
Special Judge consists mainly in the following matters:
(1) Where a case is triable by a Court of Session, no commitment proceeding is necessary, and the
Special Judge may take cognizance without any commitment;
48 | P a g e
(2) The trial shall not be by jury or with the aid of assessors;
(3) Only a memorandum of the substance of the evidence of each witness is ordinarily to be
recorded;
(4) The period of limitation for appeal to the High Court is curtailed; and
(5) No court has jurisdiction to transfer any case from any Special Judge, or to make an order
under Section 491 of the Criminal Procedure Code.
16. It appears that pursuant to the provisions contained in Sections 9, 10 and 11 of the Ordinance, the State
Government issued a Notification H/35-5-C, dated the 9/11th February, 1951, directing the constitution of a
Special Court for certain areas mentioned in a schedule attached to the Notification and empowering such
court to try the following offences, namely, offences under Sections 183, 189, 190, 212, 216, 224, 302, 304,
307, 323 335, 341-344, 379-382, 384-389 and 392-402 of the Indian Penal Code, 1860, as adapted and applied
to the State of Saurashtra, and most of the offences under the Ordinance of 1948.
17. In the course of the hearing, an affidavit was filed by the Assistant Secretary in the Home Department
of the Saurashtra Government, stating that since the integration of different States in Kathiawar in the
beginning of 1948 there had been a series of crimes against public peace and that had led to the promulgation
of Ordinance 9 of 1948, which provided among other things for detention of persons acting in a manner
prejudicial to public safety and maintenance of public order in the State. Notwithstanding this Ordinance, the
crimes went on increasing and there occurred numerous cases of dacoity, murder, nose-cutting, ear-cutting,
etc. for some of which certain notorious gangs were responsible, and hence Ordinance LXVI of 1949 was
promulgated to amend the earlier Ordinance and to constitute Special Courts for the speedy trial of cases
arising out of the activities of the dacoits and other criminals guilty of violent crimes.
18. As has been already indicated, the main contention advanced before us on behalf of the appellant is
that the Ordinance of 1949 violates the provisions of Article 14 of the Constitution, by laying down a
procedure which is different from and less advantageous to the accused than the ordinary procedure laid down
in the Criminal Procedure Code, and thereby discriminating between persons who are to be tried under the
special procedure and those tried under the normal procedure. In support of this argument, reliance is placed
on the decision of this Court in State of West Bengal v. Anwar Ali Sarkar and Gajen Mali, in which certain
provisions of the West Bengal Special Courts Act, 1949, have been held to be unconstitutional on grounds
similar to those urged on behalf of the appellant in the present case. A comparison of the provisions of the
Ordinance in question with those of the West Bengal Act will show that several of the objectionable features in
the latter enactment do not appear in the Ordinance, but, on the whole, I am inclined to think that that
circumstance by itself will not afford justification for upholding the Ordinance. There is however one very
important difference between the West Bengal Act and the present Ordinance which, in my opinion, does
afford such justification, and I shall try to refer to it as briefly as possible.
19. I think that a distinction should be drawn between “discrimination without reason” and “discrimination
with reason”. The whole doctrine of classification is based on this distinction and on the well-known fact that
the circumstances which govern one set of persons or objects may not necessarily be the same as those
governing another set of persons or objects, so that the question of unequal treatment does not really arise as
between persons governed by different conditions and different sets of circumstances. The main objection to
the West Bengal Act was that it permitted discrimination “without reason” or without any rational basis.
Having laid down a procedure which was materially different from and less advantageous to the accused than
the ordinary procedure, that Act gave uncontrolled and unguided authority to the State Government to put that
procedure into operation in the trial of any case or class of cases or any offence or class of offences. There was
no principle to be found in that Act to control the application of the discriminatory provisions or to correlate
those provisions to some tangible and rational objective, in such a way as to enable anyone reading the Act to
say: If that is the objective, the provisions as to special treatment of the offences seem to be quite suitable and
there can be no objection to dealing with a particular type of offences on a special footing. The mere mention
of speedier trial as the object of the Act did not cure the defect, because the expression “speedier trial”
standing by itself provided no rational basis of classification. It was merely a description of the result sought to
be achieved by the application of the special procedure laid down in the Act and afforded no help in
determining what cases required speedier trial.
20. As regards the present Ordinance, we can discover a guiding principle within its four corners, which
cannot but have the effect of limiting the application of the special procedure to a particular category of
offences only and establish such a nexus (which was missing in the West Bengal Act) between offences of a
particular category and the object with which the Ordinance was promulgated, as should suffice to repel the
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charge of discrimination and furnish some justification for the special treatment of those offences. The
Ordinance, as I have already stated, purported to amend another Ordinance, the object of which was to provide
for public safety, maintenance of public order and preservation of peace and tranquility in the State. It was not
disputed before us that the preamble of the original Ordinance would govern the amending Ordinance also, and
the object of promulgating the subsequent Ordinance was the same as the object of promulgating the original
Ordinance. Once this is appreciated, it is easy to see that there is something in the Ordinance itself to guide the
State Government to apply the special procedure not to any and every case but only to those cases or offences
which have a rational relation to or connection with the main object and purpose of the Ordinance and which
for that reason become a class by themselves requiring to be dealt with on a special footing. The clear recital of
a definite objective furnishes a tangible and rational basis of classification to the State Government for the
purpose of applying the provisions of the Ordinance and for choosing only such offences or cases as affect
public safety, maintenance of public order and preservation of peace and tranquility. Thus, under Section 11,
the State Government is expected to select only such offences or class of offences or class of cases for being
tried by the Special Court in accordance with the special procedure, as are calculated to affect public safety,
maintenance of public order, etc., and under Section 9, the use of the special procedure must necessarily be
confined to only disturbed areas or those areas where adoption of public safety measures is necessary. That
this is how the Ordinance was intended to be understood and was in fact understood, is confirmed by the
Notification issued on the 9/11th February by the State Government in pursuance of the Ordinance. That
Notification sets out 49 offences under the Indian Penal Code as adapted and applied to the State and certain
other offences punishable under the Ordinance, and one can see at once that all these offences directly affect
the maintenance of public order and peace and tranquility.
The Notification also specifies certain areas in the State over which only the Special Court is to exercise
jurisdiction. There can be no dispute that if the State Legislature finds that lawlessness and crime are rampant
and there is a direct threat to peace and tranquility in certain areas within the State, it is competent to deal with
offences which affect the maintenance of public order and preservation of peace and tranquility in those areas
as a class by themselves and to provide that such offences shall be tried as expeditiously as possible in
accordance with a special procedure devised for the purpose. This, in my opinion, is in plain language the
rationale of the Ordinance, and it will be going too far to say that in no case and under no circumstances can a
legislature lay down a special procedure for the trial of a particular class of offences, and that recourse to a
simplified and less cumbrous procedure for the trial of those offences, even when abnormal conditions prevail,
will amount to a violation of Article 14 of the Constitution. I am satisfied that this case is distinguishable from
the case relating to the West Bengal Act, but I also feel that the legislatures should have recourse to legislation
such as the present only in very special circumstances. In the result, I would hold that the Saurashtra State
Public Safety Measures (Third Amendment) Ordinance is not unconstitutional, and accordingly overrule the
objection as to the jurisdiction of the Special Court to try the appellant.
BIJAN KUMAR MUKHERJEA, J. - 26. It was set down for hearing on certain preliminary points of law
raised by the learned counsel for the appellant attacking the legality of the entire trial on the ground that
Section 11 of the Saurashtra Public Safety Measures Ordinance 66 of 1949 passed by the Rajpramukh of
Saurashtra as well as the Notification issued by the State Government on 9/11 th February, 1951, under which
the Special Court was constituted and the trial held, were void and inoperative. The first and the main ground
upon which the constitutional validity of the section and the notification has been assailed is that they are in
conflict with the provision of Article 14 of the Constitution.
28. It is not disputed that the language of Section 11 of the Saurashtra Ordinance, with which we are now
concerned, is identically the same as that of Section 5(1) of the West Bengal Special Courts Act.
29. In the West Bengal Act there is a further provision embodied in clause (2) of Section 5 which lays
down that no such direction as is contemplated by clause (1) could be given in respect of cases pending before
ordinary criminal courts at the date when the Act came into force. No such exception has been made in the
Saurashtra Ordinance. In the Calcutta cases referred to above, the notification under Section 5(1) of the West
Bengal Act directed certain individual cases in which specified persons were involved to be tried by the
Special Court and it was held by the High Court of Calcutta that Section 5(1) of the West Bengal Special
Courts Act to the extent that it empowers the State Government to direct any case to be tried by Special Courts
was void as offending against the provision of the equal protection clause in Article 14 of the Constitution; and
this view was affirmed in appeal by a majority of this court. With regard to the remaining part of Section 5(1),
which authorises the State Government to direct, “offences, classes of offences...or classes of cases” for trial
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by Special Courts, the majority of the Judges of the Calcutta High Court were of opinion that it was not
obnoxious to Article 14 of the Constitution. In the present case the notification, that was issued by the
Saurashtra State Government on 9/11th February, 1951, did not relate to individual cases. The notification
constituted in the first place a Special Court in the areas specified in the schedule. It appointed in the next
place a judge to preside over the Special Court and finally gave a list of offences with reference to appropriate
sections of the Indian Penal Code which were to be tried by the Special Judge. If the view taken by the Chief
Justice of the Calcutta High Court and the majority of his colleagues is right, such notification and that part of
Section 11 of the Ordinance, under which it was issued, could not be challenged as being in conflict with
Article 14 of the Constitution. This point did come up for consideration before us in the appeals against the
Calcutta decision with reference to the corresponding part of Section 5(1) of the West Bengal Act, but
although a majority of this court concurred in dismissing the appeals, there was no such majority in the
pronouncement of any final opinion on this particular point.
30. In my judgment in the Calcutta appeals I was sceptical about the correctness of the view taken upon
this point by the learned Chief Justice of the Calcutta High Court and the majority of his colleagues. The
consideration that weighed with me was that as the learned Judges were definitely of opinion that the necessity
of speedier trial, as set out in the preamble, was too elusive and uncertain a criterion to form the basis of a
proper classification, the authority given by Section 5(1) of the Special Courts Act to the State Government to
direct any class of cases or offences to be tried by the Special Court would be an unguided authority and the
propriety of the classification made by the State Government that is said to be implied in the direction could
not be tested with reference to any definite legislative policy or standard. Mr Sen, appearing for the State of
Saurashtra, has argued before us that in this respect the Saurashtra Ordinance stands on a different footing and
he has referred in this connection to the preamble to the original ordinance as well as the circumstances which
necessitated the present one. As the question is an important one and is not concluded by our previous
decision, it merits, in my opinion, a careful consideration.
31. It may be stated at the outset that the Criminal Procedure Code of India as such has no application to
the State of Saurashtra. After the State acceded to the Indian Union, there was an Ordinance promulgated by
the Rajpramukh on 5th of April, 1948, which introduced the provisions of the Criminal Procedure Code of
India (Act 5 of 1898) with certain modifications into the Saurashtra State. Another ordinance, known as the
Public Safety Measures Ordinance, was passed on the 2nd of April, 1948, and this ordinance, like similar other
public safety measures obtaining in other States, provided for preventive detention, imposition of collective
fines, control of essential supplies and similar other matters. On 11th of November, 1949, the present
Ordinance was passed by way of amendment of the Public Safety Measures Ordinance and inter alia it made
provisions for the establishment of Special Courts. Section 9 of this Ordinance empowers the State
Government to constitute Special Courts of criminal jurisdiction for such areas as may be specified in the
notification. Section 10 relates to appointment of Special Judges who are to preside over such courts and
Section 11 lays down that the Special Judge shall try “such offences or classes of offences... or classes of cases
as the Government of United State of Saurashtra may by general or special order in writing, direct.” The
procedure to be followed by the Special Judges is set out in Sections 12 to 18 of the Ordinance. In substance
the Special Court is given the status of a sessions court, although committal proceeding is eliminated and so
also is trial by jury or with the aid of assessors. The Special Judge has only to make a memorandum of the
evidence and he can refuse to summon any witness if he is satisfied after examination of the accused that the
evidence of such witness would not be material. Section 16(1) curtails the period of limitation within which an
accused convicted by the Special Judge has to file his appeal before the High Court and clause (3) of the
section provides that no court shall have jurisdiction to transfer any case from any Special Judge or make any
order under Section 491 of the Criminal Procedure Code.
The ordinance certainly lacks some of the most objectionable features of the West Bengal Act. Thus it has
not taken away the High Court’s power of revision, nor does it expose the accused to the chance of being
convicted of a major offence though he stood charged with a minor one. There is also no provision in the
ordinance similar to that in the West Bengal Act which enables the court to proceed with the trial in the
absence of the accused. But although the ordinance in certain respects compares favourably with the West
Bengal Act, the procedure which it lays down for the Special Judge to follow does differ on material points
from the normal procedure prescribed in the Criminal Procedure Code; and as these differences abridge the
rights of the accused who are to be tried by the Special Court, and deprive them of certain benefits to which
they would otherwise have been entitled under the general law, the ordinance prima facie makes
discrimination and the question has got to be answered whether such discrimination brings it in conflict with
Article 14 of the Constitution.
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32. The nature and scope of the guarantee that is implied in the equal protection clause of our Constitution
have been explained and discussed in more than one decision of this court and do not require repetition. It is
well settled that a legislature for the purpose of dealing with the complex problems that arise out of an infinite
variety of human relations, cannot but proceed upon some sort of selection or classification of persons upon
whom the legislation is to operate. The consequence of such classification would undoubtedly be to
differentiate the persons belonging to that class from others, but that by itself would not make the legislation
obnoxious to the equal protection clause. Equality prescribed by the Constitution would not be violated if the
statute operates equally on all persons who are included in the group, and the classification is not arbitrary or
capricious, but bears a reasonable relation to the objective which the legislation has in view. The legislature is
given the utmost latitude in making the classification and it is only when there is a palpable abuse of power
and the differences made have no rational relation to the objectives of the legislation, that necessity of judicial
interference arises.
33. Section 11 of the Saurashtra Ordinance so far as it is material for our present purpose lays down that a
Special Court shall try “such offences or classes of offences...or classes of cases as the State Government
may...direct”. This part of the section undoubtedly contemplates a classification to be made of offences and
cases but no classification appears on the terms of the statute itself which merely gives an authority to the State
Government to determine what classes of cases or offences are to be tried by the Special Tribunal. The
question arises at the outset as to whether such statute is not on the face of it discriminatory as it commits to
the discretion of an administrative body or officials the duty of making selection or classification for purposes
of the legislation; and there is a still further question, namely, by what tests, if any, is the propriety of the
administrative action to be adjudged and what would be the remedy of the aggrieved person if the
classification made by the administrative body is arbitrary or capricious?
35. As has been stated already, Section 11 of the Saurashtra Ordinance is worded in exactly the same
manner as Section 5(1) of the West Bengal Special Courts Act; and that part of it, with which we are here
concerned, authorises the State Government to direct any classes of offences or cases to be tried by the Special
Tribunal. The State Government, therefore, has got to make a classification of cases or offences before it
issues its directions to the Special Court. The question is, on what basis is the classification to be made? If it
depends entirely upon the pleasure of the State Government to make any classification it likes, without any
guiding principle at all, it cannot certainly be a proper classification, which requires that a reasonable relation
must exist between the classification and the objective that the legislation has in view. On the other hand, if the
legislature indicates a definite objective and the discretion has been vested in the State Government as a means
of achieving that object, the law itself, as I have said above, cannot be held to be discriminatory, though the
action of the State Government may be condemned if it offends against the equal protection clause, by making
an arbitrary selection. Now, the earlier ordinance, to which the present one is a subsequent addition by way of
amendment, was passed by the Rajpramukh of Saurashtra on 2nd April, 1948. It is described as an ordinance to
provide for the security of the State, maintenance of public order and maintenance of supplies and services
essential to the community in the State of Saurashtra. The preamble to the ordinance sets out the objective of
the ordinance in identical terms. It is to be noted that the integration of several States in Kathiawar which now
form the State of Saurashtra, was completed some time in February, 1948. It appears from the affidavit of an
officer of the Home Government of the Saurashtra State that soon after the integration took place, an alarming
state of lawlessness prevailed in some of the districts within the State. There were gangs of dacoits operating at
different places and their number began to increase gradually. As ordinary law was deemed insufficient to
cope with the nefarious activities of those criminal gangs, the Saurashtra Public Safety Measures Ordinance
was promulgated by the Rajpramukh on 2nd April, 1948. The ordinance, as stated already, provided principally
for preventive detention and imposition of collective fines; and it was hoped that armed with these
extraordinary powers the State Government would be able to bring the situation under control. These hopes,
however, were belied, and the affidavit gives a long list of offences in which murder and nose-cutting figure
conspicuously in addition to looting and dacoity, which were committed by the dacoits during the years 1948
and 1949.
In view of this ugly situation in the State, the new Ordinance was passed on 11th of November, 1949, and
this ordinance provides inter alia for the establishment of Special Courts which are to try offenders under a
special procedure. Acting under Section 11 of the Ordinance, the Government issued a notification on 9/11 th
February, 1950, which constituted a Special Court for areas specified in the schedule, and here again the
affidavit shows that all these areas are included in the districts of Gohilwad, Madhya Saurashtra and Sorath,
where the tribe of marauders principally flourished. The object of passing this new ordinance is identically the
same for which the earlier Ordinance was passed, and the preamble to the latter, taken along with the
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surrounding circumstances, discloses a definite legislative policy which has been sought to be effectuated by
the different provisions contained in the enactment. If Special Courts were considered necessary to cope with
an abnormal situation, it cannot be said that the vesting of authority in the State Government to select offences
for trial by such courts is in any way unreasonable.
36. In the light of the principles stated already, I am unable to hold that Section 11 of the Ordinance
insofar as it authorises the State Government to direct classes of offences or cases to be tried by the Special
Court offends against the provision of the equal protection clause in our Constitution. If the notification that
has been issued by the State Government proceeds on any arbitrary or unreasonable basis, obviously that could
be challenged as unconstitutional. It is necessary, therefore, to examine the terms of the notification and the list
of offences it has prescribed.
37. The notification, as said above, constitutes a Special Court for the areas mentioned in the Schedule and
appoints Mr P.P. Anand as a Special Judge to preside over the Special Court. The offences triable by the
Special Court are then set out with reference to the specific sections of the Indian Penal Code. Mr. Chibber
attacks the classification of offences made in this list primarily on the ground that while it mentions offences
of a particular character, it excludes at the same time other offences of a cognate character in reference to
which no difference in treatment is justifiable. It is pointed out that while Section 183 of the Indian Penal Code
is mentioned in the list, Sections 184, 186 and 188 which deal with similar offences are excluded. Similarly the
list does not mention Section 308 of the Indian Penal Code, though it mentions Section 307. The learned
counsel relies in this connection upon the decision of the Supreme Court of America in Skinner v. Oklahoma
[316 US 535]. In that case the question for consideration related to the constitutionality of a certain statute of
Oklahoma which provided for sterilization of certain habitual criminals who were convicted two or more times
in any State of felony involving moral turpitude. The statute applied to persons guilty of larceny, which was a
felony, but not to embezzlement, and it was held that the legislation violated the equal protection clause. It is
undoubtedly a sound and reasonable proposition that when the nature of two offences is intrinsically the same
and they are punishable in the same manner, a person accused of one should not be treated differently from a
person accused of the other, because it is an essential principle underlying the equal protection clause that all
persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. At
the same time it is to be noted as Douglas, J., observed in the very case that in determining the reach and scope
of particular legislation it is not necessary for the legislature to provide abstract symmetry. “It may mark and
set apart the classes and types of problems according to the needs and as dictated or suggested by experience.”
A too rigid instance therefore on a thing like scientific classification is neither practicable nor desirable. It
is true that the notification mentions Section 183 of the Indian Penal Code, though it omits Section 184; but I
am unable to hold that the two are identically of the same nature. Section 183 deals with resistance to the
taking of property by the lawful authority of public servant; while Section 184 relates to obstructing sale of
property offered for sale by authority of public servant. Section 186 on the other hand does not relate to the
taking of property at all, but is concerned with obstructing a public servant in the discharge of his public
duties. Then again I am not sure that it was incumbent upon the State Government to include Section 308 of
the Indian Penal Code in the list simply because they included Section 307. It is true that culpable homicide as
well as attempt to murder are specified in the list; but an attempt to commit culpable homicide is certainly a
less heinous offence and the State Government might think it proper, having regard to all the facts known to
them, that an offence of attempt to commit culpable homicide does not require a special treatment.
38. Be that as it may, I do not think that a meticulous examination of the various offences specified in the
list with regard to their nature and punishment is necessary for purposes of this case. The appellant before us
was accused of murder punishable under Section 302 of the Indian Penal Code. There is no other offence, I
believe, described in the Indian Penal Code, which can be placed on an identical footing as murder. Even
culpable homicide not amounting to murder is something less heinous than murder, although it finds a place in
the list. In my opinion, the appellant can have no right to complain if he has not been aggrieved in any way by
any unjust or arbitrary classification. As he is accused of murder and dacoity and no offences of a similar
nature are excluded from the list, I do not think that it is open to him to complain of any violation of equal
protection clause in the notification. There are quite a number of offences specified in the notification and they
are capable of being grouped under various heads. Simply because certain offences which could have been
mentioned along with similar other in a particular group have been omitted therefrom, it cannot be said that the
whole list is bad. The question of inequality on the ground of such omission can be raised only by the person
who is directed to be tried under the special procedure for a certain offence, whereas for commission of a
similar offence not mentioned in the list another person has still the advantages of the ordinary procedure open
to him. In my opinion, therefore, the first point raised on behalf of the appellant cannot succeed.
53 | P a g e
Constitutional Validity of Reservations for OBCs in
Public Employment
Indra Sawhney v. Union of India

AIR 1993 SC 477
B.P. JEEVAN REDDY, J. - 659. By an Order made by the President of India, in the year 1979, under
Article 340 of the Constitution, a Backward Class Commission was appointed to investigate the conditions of
socially and educationally backward classes within the territory of India, which Commission is popularly
known as Mandal Commission. The terms of reference of the Commission were:
“(i) to determine the criteria for defining the socially and educationally backward classes;
(ii) to recommend steps to be taken for the advancement of the socially and educationally
backward classes of citizens so identified;
(iii) to examine the desirability or otherwise of making provision for the reservation of
appointments or posts in favour of such backward classes of citizens which are not adequately
represented in public services and posts in connection with the affairs of the Union or of any State;
and
(iv) present to the President a report setting out the facts as found by them and making such
recommendations as they think proper.”
667. In para 11.23 the Commission sets out the eleven Indicators/Criteria evolved by it for determining
social and educational backwardness. Paras 11.23, 11.24 and 11.25 are relevant and may be set out in full:
“11.23. As a result of the above exercise, the Commission evolved eleven ‘Indicators’ or ‘criteria’
for determining social and educational backwardness. These 11 ‘Indicators’ were grouped under three
broad heads, i.e., Social, Educational and Economic. They are:
A. Social
(i) Castes/Classes considered as socially backward by others.
(ii) Castes/Classes which mainly depend on manual labour for their livelihood.
(iii) Castes/Classes where at least 25% females and 10% males above the State average get married at
an age below 17 years in rural areas and at least 10% females and 5% males do so in urban areas.
(iv) Castes/Classes where participation of females in work is at least 25% above the State average.
B. Educational
(v) Castes/Classes where the number of children in the age group of 5-15 years who never attended
school is at least 25% above the State average.
(vi) Castes/Classes where the rate of student drop-out in the age group of 5-15 years is at least 25%
above the State average.
(vii) Castes/Classes amongst whom the proportion of matriculates is at least 25% below the State
average.
C. Economic
(viii) Castes/Classes where the average value of family assets is at least 25% below the State average.
(ix) Castes/Classes where the number of families living in Kutcha houses is at least 25% above the
State average.
(x) Castes/Classes where the source of drinking water is beyond half a kilometre for more than 50%
of the households.
(xi) Castes/Classes where the number of households having taken consumption loan is at least 25%
above the State average.
11.24 As the above three groups are not of equal importance for our purpose, separate weightage
was given to ‘Indicators’ in each group. All the Social ‘Indicators’ were given a weightage of 3 points
each. Educational ‘Indicators’ a weightage of 2 points each and Economic ‘Indicators’ a weightage of
one point each. Economic, in addition to Social and Educational Indicators, were considered important
as they directly flowed from social and educational backwardness. This also helped to highlight the
fact that socially and educationally backward classes are economically backward also.

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11.25 It will be seen that from the values given to each Indicator, the total score adds up to 22. All
these 11 Indicators were applied to all the castes covered by the survey for a particular State. As a
result of this application, all castes which had a score of 50% (i.e., 11 points) or above were listed as
socially and educationally backward and the rest were treated as ‘advanced’. (It is a sheer coincidence
that the number of indicators and minimum point score for backwardness, both happen to be eleven).
Further, in case the number of households covered by the survey for any particular caste were below
20, it was left out of consideration, as the sample was considered too small for any dependable
inference.”
668. Chapter XII deals with “Identification of OBCs”. In the first instance, the Commission deals with
OBCs among Hindu communities. It says that it applied several tests for determining the SEBCs like stigmas
of low-occupation, criminality, nomadism, beggary and untouchability besides inadequate representation in
public services. The multiple approach adopted by the Commission is set out in para 12.7 which reads:
“12.7 Thus, the Commission has adopted a multiple approach for the preparation of
comprehensive lists of Other Backward Classes for all the States and Union Territories. The main
sources examined for the preparation of these lists are:
(i) Socio-educational field survey;
(ii) Census Report of 1961 (particularly for the identification of primitive tribes, aboriginal tribes,
hill tribes, forest tribes and indigenous tribes);
(iii) Personal knowledge gained through extensive touring of the country and receipt of
voluminous public evidences as described in Chapter X of this Report; and
(iv) Lists of OBCs notified by various State Governments.”
669. The Commission next deals with OBCs among non-Hindu communities. In paragraphs 12.11 to 12.16
the Commission refers to the fact that even among Christian, Muslim and Sikh religions, which do not
recognise caste, the caste system is prevailing though without religious sanction. After giving a good deal of
thought to several difficulties in the way of identifying OBCs among non-Hindus, the Commission says, it has
evolved a rough and ready criteria, viz., (1) all untouchables converted to any non-Hindu religion and (2) such
occupational communities which are known by the name of their traditional hereditary occupation and whose
Hindu counterparts have been included in the list of Hindu OBCs - ought to be treated as SEBCs. The
Commission then sought to work out the estimated population of the OBCs in the country and arrived at the
figure of 52%. Paras 12.19 and 12.22 may be set out in full in view of their relevancy:
“12.19 Systematic caste-wise enumeration of population was introduced by the Registrar General
of India in 1881 and discontinued in 1931. In view of this, figures of caste-wise population beyond
1931 are not available. But assuming that the inter se rate of growth of population of various castes,
communities and religious groups over the last half a century has remained more or less the same, it is
possible to work out the percentage that all these groups constitute of the total population of the
country. “
“12.22 From the foregoing it will be seen that excluding Scheduled Castes and Scheduled Tribes,
Other Backward Classes constitute nearly 52% of the Indian population.
Percentage Distribution of Indian Population by Caste and Religious Groups
S. No. Group Name Percentage of total
population
I. Scheduled Castes and Scheduled Tribes
A-1 Scheduled Castes 15.05
A-2 Scheduled Tribes 07.51
Total of ‘A’ 22.56
II. Non-Hindu Communities, Religious Groups, etc
B-1 Muslims (other than STs) 11.19 (0.02)†
B-2 Christians (other than STs) 02.16 (0.44) †
B-3 Sikhs (other than SCs &
01.67 (0.22) †
STs)
B-4 Budhists (other than STs) 00.67 (0.03) †
B-5 Jains 00.47
Total of ‘B’ 16.16

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III. Forward Hindu Castes & Communities 05.52
C-1 Brahmins (including 03.90
Bhumihars) 02.21
C-2 Rajputs 01.00
C-3 Marathas 01.07
C-4 Jats 01.88
C-5 Vaishyas-Bania, etc. 02.00
C-6 Kayasthas Total of ‘C’ 17.58
C-7 Other forward Hindu castes,
groups
TOTAL OF ‘A’, ‘B’ & ‘C’ 56.30

IV. Backward Hindu Castes & Communities 43.70‡
D. Remaining Hindu castes/groups which come
in the category of “Other Backward Classes”
V. Backward Non-Hindu Communities

E. 52% of religious groups under Section B may 08.40
also be treated as OBCs
F. The approximate derived population of Other 52% (Aggregate of D and E,
Backward Classes including non-Hindu rounded)”
communities
† Figures in brackets give these population of SC & ST among the non-Hindu communities.
‡ This is a derived figure.
670. Chapter XIII contains various recommendations including reservations in services. In view of the
decisions of the Supreme Court limiting the total reservation to 50%, the Commission recommended 27%
reservation in favour of OBCs (in addition to 22.5% already existing in favour of SCs and STs). It
recommended several measures for improving the condition of these backward classes. Chapter XIV contains
a summary of the report.
The Office Memorandum dated August 13, 1990
674. No action was, however, taken on the basis of the Mandal Commission Report until the issuance of
the Office Memorandum on August 13, 1990. On that day, the then Prime Minister, Shri V.P. Singh made a
statement in the Parliament in which he stated inter alia as follows:
“After all, if you take the strength of the whole of the government employees as a proportion of
the population, it will be 1% or 1 1/2. I do not know exactly, it may be less than 1%. We are under no
illusion that this 1% of the population, or a fraction of it will resolve the economic problems of the
whole section of 52%. No. We consciously want to give them a position in the decision-making of the
country, a share in the power structure. We talk about merit. What is the merit of the system itself?
That the section which has 52% of the population gets 12.55% in government employment. What is
the merit of the system? That in Class I employees of the government it gets only 4.69%, for 52% of
the population in decision-making at the top echelons it is not even one-tenth of the population of the
country; in the power structure it is hardly 4.69%. I want to challenge first the merit of the system
itself before we come and question on the merit, whether on merit to reject this individual or that. And
we want to change the structure basically, consciously, with open eyes. And I know when changing
the structures comes, there will be resistance . . . .
What I want to convey is that treating unequals as equals is the greatest injustice.
And, correction of this injustice is very important and that is what I want to convey. Here, the
National Front Government’s commitment for not only change of government, but also change of the
social order, is something of great significance to all of us; it is a matter of great significance. Merely
making programmes of economic benefit to various sections of the society will not do . . . .
There is a very big force in the argument to involve the poorest in the power structure. For a lot of
time we have acted on behalf of the poor. We represent the poor . . . .
Let us forget that the poor are begging for some crumbs. They have suffered it for thousands of
years. Now they are fighting for their honour as a human being . . . .
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A point was made by Mahajanji that if there are different lists in different States how will the
Union List harmonise? It is so today in the case of the Scheduled Castes and the Scheduled Tribes.
That has not caused a problem. On the same pattern, this will be there and there will be no problem.”
675. The Office Memorandum dated August 13, 1990 reads as follows:
OFFICE MEMORANDUM
Subject: Recommendations of the Second Backward Classes Commission (Mandal Report) -
Reservation for Socially and Educationally Backward Classes in Services under the Government of
India.
In a multiple undulating society like ours, early achievement of the objective of social justice as
enshrined in the Constitution is a must. The Second Backward Classes Commission called the Mandal
Commission was established by the then Government with this purpose in view, which submitted its
report to the Government of India on December 31, 1980.
2. Government have carefully considered the report and the recommendations of the Commission
in the present context regarding the benefits to be extended to the socially and educationally backward
classes as opined by the Commission and are of the clear view that at the outset certain weightage has
to be provided to such classes in the services of the Union and their public undertakings. Accordingly
orders are issued as follows:
(i) 27% of the vacancies in civil posts and services under the Government of India shall be
reserved for SEBC.
(ii) The aforesaid reservation shall apply to vacancies to be filled by direct recruitment. Detailed
instructions relating to the procedures to be followed for enforcing reservation will be issued
separately.
(iii) Candidates belonging to SEBC recruited on the basis of merit in an open competition on the
same standards prescribed for the general candidates shall not be adjusted against the reservation
quota of 27%.
(iv) The SEBC would comprise in the first phase the castes and communities which are common
to both the lists in the report of the Mandal Commission and the State Governments’ lists. A list of
such castes/communities is being issued separately.
(v) The aforesaid reservation shall take effect from 7-8-1990. However, this will not apply to
vacancies where the recruitment process has already been initiated prior to the issue of these orders.
3. Similar instructions in respect of public sector undertakings and financial institutions including
public sector banks will be issued by the Department of Public Enterprises and Ministry of Finance
respectively.
Sd/- (Smt Krishna Singh)
Joint Secretary to the Govt. of India”
676. Writ petitions were filed in this Court questioning the said Memorandum along with applications for
staying the operation of the Memorandum. It was stayed by this Court.
677. After the change of the government at the Centre following the general election held in the first-half
of 1991, another Office Memorandum was issued on September 25, 1991 modifying the earlier Memorandum
dated August 13, 1990. The later Memorandum reads as follows:
The Office Memorandum dated September 25, 1991
Subject: Recommendation of the Second Backward Classes Commission (Mandal Report) -
Reservation for Socially and Educationally Backward Classes in Services under the Government of
India.
The undersigned is directed to invite the attention to O.M. of even number dated the 13th August
1990, on the above-mentioned subject and to say that in order to enable the poorer sections of the
SEBCs to receive the benefits of reservation on a preferential basis and to provide reservation for
other economically backward sections of the people not covered by any of the existing schemes of
reservation, Government have decided to amend the said memorandum with immediate effect as
follows:
(i) Within the 27% of the vacancies in civil posts and services under the Government of India
reserved for SEBCs, preference shall be given to candidates belonging to the poorer sections of the
SEBCs. In case sufficient number of such candidates are not available, unfilled vacancies shall be
filled by the other SEBC candidates.
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(ii) 10% of the vacancies in civil posts and services under the Government of India shall be
reserved for other economically backward sections of the people who are not covered by any of the
existing schemes of reservation.
(iii) The criteria for determining the poorer sections of the SEBCs or the other economically
backward sections of the people who are not covered by any of the existing schemes of reservations
are being issued separately.
The O.M. of even number dated the 13th August 1990, shall be deemed to have been amended to
the extent specified above.
Sd/- (A.K. Harit)
Dy. Secretary to the Government of India”
678. Till now, the Central Government has not evolved the economic criteria as contemplated by the later
Memorandum, though the hearing of these writ petitions was adjourned on more than one occasion for the
purpose. Some of the writ petitions have meanwhile been amended challenging the later Memorandum as well.
Let us notice at this stage what do the two memorandums say, read together. The first provision made is: 27%
of vacancies to be filled up by direct recruitment in civil posts and services under the Government of India are
reserved for backward classes. Among the members of the backward classes preference has to be given to
candidates belonging to the poorer sections. Only in case sufficient number of such candidates are not
available, will the unfilled vacancies be filled by other backward class candidates. The second provision made
is: Backward class candidates recruited on the basis of merit in open competition along with general
candidates shall not be adjusted against the quota of 27% reserved for them. Thirdly, it is provided that
backward classes shall mean those castes and communities which are common to the list in the report of the
Mandal Commission and the respective State Government’s list. It may be remembered that Mandal
Commission has prepared the list of backward classes State-wise. Lastly, it is provided that 10% of the
vacancies shall be reserved for other economically backward sections of the people who are not covered by
any of the existing schemes of reservations. As stated above, the criteria for determining the poorer sections
among the backward classes or for determining the other economically backward sections among the non-
reserved category has so far not been evolved. Though the first Memorandum stated that the orders made
therein shall take effect from August 7, 1990, they were not in fact acted upon on account of the orders made
by this Court.
Issues for Consideration
682. [The court re-framed the questions posed on behalf of the parties]. The re-framed questions are:
1. (a) Whether the ‘provision’ contemplated by Article 16(4) must necessarily be made by the legislative
wing of the State?
(b) If the answer to clause (a) is in the negative, whether an executive order making such a provision is
enforceable without incorporating it into a rule made under the proviso to Article 309?
2. (a) Whether clause (4) of Article 16 is an exception to clause (1) of Article 16?
(b) Whether clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour
of ‘backward class of citizens’? Whether it is exhaustive of the special provisions that can be made in favour
of all sections, classes or groups?
(c) Whether reservations can be made under clause (1) of Article 16 or whether it permits only
extending of preferences/concessions?
3. (a) What does the expression ‘backward class of citizens’ in Article 16(4) means?
(b) Whether backward classes can be identified on the basis and with reference to caste alone?
(c) Whether a class, to be designated as a backward class, should be situated similarly to the SCs/STs?
(d) Whether the ‘means’ test can be applied in the course of identification of backward classes? And if
the answer is yes, whether providing such a test is obligatory?
4. (a) Whether the backward classes can be identified only and exclusively with references to economic
criteria?
(b) Whether a criteria like occupation-cum-income without reference to caste altogether, can be evolved
for identifying the backward classes?
5. Whether the backward classes can be further categorised into backward and more backward categories?

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6. To what extent can the reservation be made?
(a) Whether the 50% rule enunciated in Balaji is a binding rule or only a rule of caution or rule of
prudence?
(b) Whether the 50% rule, if any, is confined to reservations made under clause (4) of Article 16 or
whether it takes in all types of reservations that can be provided under Article 16?
(c) Further while applying 50% rule, if any, whether an year should be taken as a unit or whether the
total strength of the cadre should be looked to?
(d) Whether Devadasan was correctly decided?
7. Whether Article 16 permits reservations being provided in the matter of promotions?
8. Whether reservations are anti-meritarian? To what extent are Articles 335, 38(2) and 46 of the
Constitution relevant in the matter of construing Article 16?
9. Whether the extent of judicial review is restricted with regard to the identification of Backward Classes
and the percentage of reservations made for such classes to a demonstrably perverse identification or a
demonstrably unreasonable percentage?
10. Whether the distinction made in the second Memorandum between ‘poorer sections’ of the backward
classes and others permissible under Article 16?
11. Whether the reservation of 10% of the posts in favour of ‘other economically backward sections of the
people who are not covered by any of the existing schemes of the reservations’ made by the Office
Memorandum dated September 25, 1991permissible under Article 16?
Decisions of this Court on Articles 16 and 15
695. Soon after the enforcement of the Constitution two cases reached this Court from the State of Madras
- one under Article 15 and the other under Article 16. Both the cases were decided on the same date and by the
same Bench. The one arising under Article 15 is State of Madras v. Champakam Dorairajan [AIR 1951 SC
226] and the other arising under Article 16 is Venkataramana v. State of Madras. By virtue of certain orders
issued prior to coming into force of the Constitution, - popularly known as ‘Communal G.O.’ - seats in the
Medical and Engineering Colleges in the State of Madras were apportioned in the following manner: Non-
Brahmin (Hindus) - 6, Backward Hindus - 2, Brahmin - 2, Harijan - 2, Anglo-Indians and Indian Christians - 1,
Muslims - 1. Even after the advent of the Constitution, the G.O. was being acted upon which was challenged
by Smt Champakam as violative of the fundamental rights guaranteed to her by Article 15(1) and 29(2) of the
Constitution of India. A full Bench of Madras High Court declared the said G.O. as void and unenforceable
with the advent of the Constitution. The State of Madras brought the matter in appeal to this Court. A Special
Bench of seven Judges heard the matter and came to the unanimous conclusion that the allocation of seats in
the manner aforesaid is violative of Articles 15(1) and 29(2) inasmuch as the refusal to admit the respondent
(writ petitioner) notwithstanding her higher marks, was based only on the ground of caste. The State of Madras
sought to sustain the G.O. with reference to Article 46 of the Constitution. Indeed the argument was that
Article 46 overrides Articles 29(2). This argument was rejected. The Court pointed out that while in the case of
employment under the State, clause (4) of Article 16 provides for reservations in favour of backward class of
citizens, no such provision was made in Article 15.
696. In the matter of appointment to public services too, a similar Communal G.O. was in force in the
State of Madras since prior to the Constitution. In December, 1949, the Madras Public Service Commission
invited applications for 83 posts of District Munsifs, specifying at the same time that the selection of the
candidates would be made from the various castes, religions and communities as specified in the Communal
G.O. The 83 vacancies were distributed in the following manner: Harijans - 19, Muslims - 5, Christians - 6,
Backward Hindus - 10, Non-Brahmin (Hindus) - 32 and Brahmins - 11. The petitioner Venkataraman (it was a
petition under Article 32 of the Constitution) applied for and appeared at the interview and the admitted
position was that if the provisions of the Communal G.O. were to be disregarded, he would have been selected.
Because of the G.O., he was not selected (he belonged to Brahmin community). Whereupon he approached
this Court. S.R. Das, J speaking for the Special Bench referred to Article 16 and in particular to clause (4)
thereof and observed:
“Reservation of posts in favour of any backward class of citizens cannot, therefore, be regarded as
unconstitutional.”
He proceeded to hold:
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“The Communal G.O. itself makes an express reservation of seats for Harijans and Backward
Hindus. The other categories, namely, Muslims, Christians, non-Brahmin Hindus and Brahmins must
be taken to have been treated as other than Harijans and Backward Hindus. Our attention was drawn
to a schedule of Backward Classes set out in Sch. III to Part I of the Madras Provincial and
Subordinate Service Rules. It was, therefore, argued that Backward Hindus would mean Hindus of
any of the communities mentioned in that Schedule. It is, in the circumstances, impossible to say that
classes of people other than Harijans and Backward Hindus can be called Backward Classes. As
regards the posts reserved for Harijans and Backward Hindus it may be said that the petitioner who
does not belong to those two classes is regarded as ineligible for those reserved posts not on the
ground of religion, race, caste etc. but because of the necessity for making a provision for reservation
of such posts in favour of the backward class of citizens, but the ineligibility of the petitioner for any
of the posts reserved for communities other than Harijans and Backward Hindus cannot but be
regarded as founded on the ground only of his being a Brahmin. For instance, the petitioner may be far
better qualified than a Muslim or a Christian or a non-Brahmin candidate and if all the posts reserved
for those communities were open to him, he would be eligible for appointment, as is conceded by the
learned Advocate-General of Madras, but, nevertheless, he cannot expect to get any of those posts
reserved for those different categories only because he happens to be a Brahmin. His ineligibility for
any of the posts reserved for the other communities, although he may have far better qualifications
than those possessed by members falling within those categories, is brought about only because he is a
Brahmin and does not belong to any of those categories. This ineligibility created by the Communal
G.O. does not appear to us to be sanctioned by clause (4) of Article 16 and it is an infringement of the
fundamental right guaranteed to the petitioner as an individual citizen under Article 16(1) and (2). The
Communal G.O., in our opinion, is repugnant to the provisions of Article 16 and is as such void and
illegal.”
697. Shri Ram Jethmalani, the learned counsel appearing for the respondent State of Bihar placed strong
reliance on the above passage. He placed before us an extract of the Schedule of the backward classes
appended to the Madras Provincial and Subordinate Services Rule, 1942. He pointed out that clause (3)(a) in
Rule 2 defined the expression backward classes to mean “the communities mentioned in Schedule III to this
part”, and that Schedule III is exclusively based upon caste. The Schedule describes the communities
mentioned therein under the heading “Race, Tribe or Caste”. It is pointed out that when the said Schedule was
substituted in 1947, the basis of classification still remained the caste, though the heading “Race, Tribe or
Caste” was removed. Mr Jethmalani points out that the Special Bench took note of the fact that Schedule III
was nothing but a collection of certain ‘communities’, notified as backward classes and yet upheld the
reservation in their favour. According to him, the decision in Venkataramana clearly supports the
identification of backward classes on the basis of caste. The Communal G.O. was struck down, he submits,
only in so far as it apportioned the remaining vacancies between sections other than Harijans and backward
classes.
698. Soon after the said two decisions were rendered Parliament intervened and in exercise of its
constituent power, amended Article 15 by inserting clause (4), which reads:
“Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any
special provision for the advancement of any socially and educationally backward classes of citizens
or for the Scheduled Castes and Scheduled Tribes.”
699. It is worthy of notice that the Parliament, which enacted the First Amendment to the Constitution,
was in fact the very same Constituent Assembly which had framed the Constitution. The speech of Dr
Ambedkar on the occasion is again instructive. He said:
“Then with regard to Article 16, clause (4), my submission is this that it is really impossible to
make any reservation which would not result in excluding somebody who has a caste. I think it has to
be borne in mind and it is one of the fundamental principles which I believe is stated in Mulla’s
edition on the very first page that there is no Hindu who has not a caste. Every Hindu has a caste - he
is either a Brahmin or a Mahratta or a Kundby or a Kumbhar or a carpenter. There is no Hindu - that is
the fundamental proposition - who has not a caste. Consequently, if you make a reservation in favour
of what are called backward classes which are nothing else but a collection of certain castes, those
who are excluded are persons who belong to certain castes. Therefore, in the circumstances of this
country, it is impossible to avoid reservation without excluding some people who have got a caste.”

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700. After the enactment of the First Amendment the first case that came up before this Court is Balaji v.
State of Mysore [AIR 1963 SC 649]. (In the year 1961, this Court decided the General Manager, Southern
Railway v. Rangachari AIR 1962 SC 36, but that related to reservations in favour of the Scheduled Castes and
Scheduled Tribes in the matter of promotion in the Railways. Rangachari will be referred to at an appropriate
stage later.) In the State of Karnataka, reservations were in force since a few decades prior to the advent of the
Constitution and were being continued even thereafter. On July 26, 1958 the State of Mysore issued an order
under Article 15(4) of the Constitution declaring all the communities excepting the Brahmin community as
socially and educationally backward and reserving a total of 75% seats in educational institutions in favour of
SEBCs and SCs/STs. Such orders were being issued every year, with minor variation in the percentage of
reservations. On July 13, 1962, a similar order was issued wherein 68% of the seats in all Engineering and
Medical Colleges and Technical Institutions in the State were reserved in the favour of the SEBCs, SCs and
STs. SEBCs were again divided into two categories - backward classes and more backward classes. The
validity of this order was questioned under Article 32 of the Constitution. While striking down the said order
this Court enunciated the following principles:
(1) Clause (4) of Article 15 is a proviso or an exception to clause (1) of Article 15 and to clause (2) of
Article 29;
(2) For the purpose of Article 15(4), backwardness must be both social and educational. Though caste
in relation to Hindus may be a relevant factor to consider in determining the social backwardness of a class
of citizens, it cannot be made the sole and dominant test. Christians, Jains and Muslims do not believe in
caste system; the test of caste cannot be applied to them. Inasmuch as identification of all backward classes
under the impugned order has been made solely on the basis of caste, it is bad.
(3) The reservation made under clause (4) of Article 15 should be reasonable. It should not be such as
to defeat or nullify the main rule of equality contained in clause (1). While it is not possible to predicate
the exact permissible percentage of reservations, it can be stated in a general and broad way that they
should be less than 50%.
(4) A provision under Article 15(4) need not be in the form of legislation; it can be made by an
executive order.
(5) The further categorisation of backward classes into backward and more backward is not warranted
by Article 15(4).
701. It must be remembered that Balaji was a decision rendered under and with reference to Article 15
though it contains certain observations with respect to Article 16 as well.
702. Soon after the decision in Balaji this Court was confronted with a case arising under Article 16 -
Devadasan v. Union of India [AIR 1964 SC 179]. This was also a petition under Article 32 of the
Constitution. It related to the validity of the ‘carry-forward’ rule obtaining in Central Secretariat Service. The
reservation in favour of Scheduled Castes was twelve and half per cent while the reservation in favour of
Scheduled Tribes was five per cent. The ‘carry-forward’ rule considered in the said decision was in the
following terms:
“If a sufficient number of candidates considered suitable by the recruiting authorities, are not
available from the communities for whom reservations are made in a particular year, the unfilled
vacancies should be treated as unreserved and filled by the best available candidates. The number of
reserved vacancies, thus, treated as unreserved will be added as an additional quota to the number that
would be reserved in the following year in the normal course; and to the extent to which approved
candidates are not available in that year against this additional quota, a corresponding addition should
be made to the number of reserved vacancies in the second following year.”
Because sufficient number of SC/ST candidates were not available during the earlier years the unfilled
vacancies meant for them were carried forward as contemplated by the said rule and filled up in the third year -
that is in the year 1961. Out of 45 appointments made, 29 went to Scheduled Castes and Scheduled Tribes. In
other words, the extent of reservation in the third year came to 65%. The rule was declared unconstitutional by
the Constitution Bench, with Subba Rao, J dissenting. The majority held that the carry-forward rule which
resulted in more than 50% of the vacancies being reserved in a particular year, is bad. The principle enunciated
in Balaji regarding 50% was followed. Subba Rao, J in his dissenting opinion, however, upheld the said rule.
The learned Judge observed:
“The expression, ‘nothing in this article’ is a legislative device to express its intention in a most
emphatic way that the power conferred thereunder is not limited in any way by the main provision but

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falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by
the other provisions of the Article.”
The learned Judge opined that once a class is a backward class, the question whether it is adequately
represented or not is left to the subjective satisfaction of the State and is not a matter for this Court to
prescribe.
703. We must, at this stage, clarify that a ‘carry-forward’ rule may be in a form different than the one
considered in Devadasan. The rule may provide that the vacancies reserved for Scheduled Castes or Scheduled
Tribes shall not be filled up by general (open competition) candidates in case of non-availability of SC/ST
candidates and that such vacancies shall be carried forward.
704. In the year 1964 another case from Mysore arose, again under Article 15. The Mysore Government
had by an order defined backward classes on the basis of occupation and income, unrelated to caste. Thirty per
cent of seats in professional and technical institutions were reserved for them in addition to eighteen per cent
in favour of SCs and STs. One of the arguments urged was that the identification done without taking the caste
into consideration is impermissible. The majority speaking through Subba Rao, J, held that the identification or
classification of backward classes on the basis of occupation-cum-income, without reference to caste, is not
bad and does not offend Article 15(4).
705. During the years 1968 to 1971, this Court had to consider the validity of identification of backward
classes made by Madras and Andhra Pradesh Governments. P. Rajendran v. State of Madras [AIR 1968 SC
1012] related to specification of socially and educationally backward classes with reference to castes. The
question was whether such an identification infringes Article 15. Wanchoo, CJ, speaking for the Constitution
Bench dealt with the contention in the following words:
“The contention is that the list of socially and educationally backward classes for whom
reservation is made under Rule 5 is nothing but a list of certain castes. Therefore, reservation in favour
of certain castes based only on caste considerations violates Article 15(1), which prohibits
discrimination on the ground of caste only. Now if the reservation in question had been based only on
caste and had not taken into account the social and educational backwardness of the caste in question,
it would be violative of Article 15(1). But it must not be forgotten that a caste is also a class of citizens
and if the caste as a whole is socially and educationally backward reservation can be made in favour
of such a caste on the ground that it is a socially and educationally backward class of citizens within
the meaning of Article 15(4) . . . . It is true that in the present cases the list of socially and
educationally backward classes has been specified by caste. But that does not necessarily mean that
caste was the sole consideration and that persons belonging to these castes are also not a class of
socially and educationally backward citizens .. .. As it was found that members of these castes as a
whole were educationally and socially backward, the list which had been coming on from as far back
as 1906 was finally adopted for purposes of Article 15(4) ….
In view however of the explanation given by the State of Madras, which has not been controverted
by any rejoinder, it must be accepted that though the list shows certain castes, the members of those
castes are really classes of educationally and socially backward citizens. No attempt was made on
behalf of the petitioners/appellant to show that any caste mentioned in this list was not educationally
and socially backward. In this state of the pleadings, we must come to the conclusion that though the
list is prepared caste-wise, the castes included therein are as a whole educationally and socially
backward and therefore the list is not violative of Article 15. The challenge to Rule 5 must therefore
fail.”
706. The shift in approach and emphasis is obvious. The Court now held that a caste is a class of citizens
and that if a caste as a whole is socially and educationally backward, reservation can be made in favour of such
a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of
Article 15(4). Moreover the burden of proving that the specification/identification was bad, was placed upon
the petitioners. In case of failure to discharge that burden, the identification made by the State was upheld. The
identification made on the basis of caste was upheld inasmuch as the petitioner failed to prove that any caste
mentioned in the list was not socially and educationally backward.
713. Thomas marks the beginning of a new thinking on Article 16, though the seed of this thought is to be
found in the dissenting opinion of Subba Rao, J in Devadasan. The Kerala Government had, by amending
Kerala State and Subordinate Service Rules empowered the Government to exempt, by order, for a specified
period, any member or members belonging to Scheduled Castes or Scheduled Tribes and already in service,
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from passing the test which an employee had to pass as a precondition for promotion to next higher post.
Exercising the said power, the Government of Kerala issued a notification granting “temporary exemption to
members already in service belonging to any of the Scheduled Castes or Scheduled Tribes from passing all
tests (unified, special or departmental test) for a period of two years”. On the basis of the said exemption, a
large number of employees belonging to Scheduled Castes and Scheduled Tribes, who had been stagnating in
their respective posts for want of passing the departmental tests, were promoted. They were now required to
pass the tests within the period of exemption. Out of 51 vacancies which arose in the category of Upper
Division Clerks in the year 1972, 34 were filled up by members of Scheduled Castes leaving only 17 for
others. This was questioned by Thomas, a member belonging to non-reserved category. His grievance was: but
for the said concession/exemption given to members of Scheduled Castes/Scheduled Tribes he would have
been promoted to one of those posts in view of his passing the relevant tests. He contended that Article 16(4)
permits only reservations in favour of backward classes but not such an exemption. This argument was
accepted by the Kerala High Court. It also upheld the further contention that inasmuch as more than 50%
vacancies in the year had gone to the members of Scheduled Castes as a result of the said exemption, it is bad
for violating the 50% rule in Balaji. The State of Kerala carried the matter in appeal to this Court which was
allowed by a majority of 5:2. All the seven Judges wrote separate opinions. The headnote to the decision in
Supreme Court Reports succinctly sets out the principles enunciated in each of the judgments. We do not wish
to burden this judgment by reproducing them here. We would rest content with delineating the broad features
emerging from these opinions. Ray, CJ held that Article 16(1), being a facet of Article 14, permits reasonable
classification. Article 16(4) clarifies and explains that classification on the basis of backwardness.
Classification of Scheduled Castes does not fall within the mischief of Article 16(2) since Scheduled Castes
historically oppressed and backward, are not castes. The concession granted to them is permissible under and
legitimate for the purposes of Article 16(1). The rule giving preference to an un-represented or under-
represented backward community does not contravene Article 14, 16(1) or 16(2). Any doubt on this score is
removed by Article 16(4). He opined further that for determining whether a reservation is excessive or not one
must have to look to the total number of posts in a given unit of department, as the case may be. Mathew, J
agreed that Article 16(4) is not an exception to Article 16(1), that Article 16(1) permits reasonable
classification and that Scheduled Castes are not ‘castes’ within the meaning of Article 16(2). He espoused the
theory of ‘proportional equality’ evolved in certain American decisions. He does not refer to the decisions in
Balaji or Devadasan in his opinion nor does he express any opinion on the extent of permissible reservation.
Beg, J adopted a different reasoning. According to him, the rule and the orders issued thereunder was “a kind
of reservation” falling under Article 16(4) itself. Krishna Iyer, J was also of the opinion that Article 16(1)
being a facet of Article 16 permits reasonable classification, that Article 16(4) is not an exception but an
emphatic statement of what is inherent in Article 16(1) and further that Scheduled Castes are not ‘castes’
within the meaning of Article 16(2) but a collection of castes, races and groups. Article 16(4) is one mode of
reconciling the claims of backward people and the opportunity for free competition the forward sections are
ordinarily entitled to, held the learned Judge. He approved the dissenting opinion of Subba Rao, J. in
Devadasan. Fazal Ali, J. too adopted a similar approach. The learned Judge pointed out:
“[I]f we read Article 16(4) as an exception to Article 16(1) then the inescapable conclusion would
be that Article 16(1) does not permit any classification at all because an express provision has been
made for this in clause (4). This is, however, contrary to the basic concept of equality contained in
Article 14 which implicitly permits classification in any form provided certain conditions are fulfilled.
Furthermore, if no classification can be made under Article 16(1) except reservation contained in
clause (4) then the mandate contained in Article 335 would be defeated.”
He held that the rule and the orders impugned are referable to and sustainable under Article 16. The learned
Judge went further and held that the rule of 50% evolved in Balaji is a mere rule of caution and was not meant
to be exhaustive of all categories. He expressed the opinion that the extent of reservation depends upon the
proportion of the backward classes to the total population and their representation in public services. He
expressed a doubt as to the correctness of the majority view in Devadasan. Among the minority Khanna, J.
preferred the view taken in Balaji and other cases to the effect that Article 16(4) is an exception to Article
16(1). He opined that no preference can be provided in favour of backward classes outside clause (4). A.C.
Gupta, J concurred with this view.
714. The last decision of this Court on this subject is in K.C. Vasanth Kumar v. State of Karnataka [1985
Supp SCC 714]. The five Judges constituting the Bench wrote separate opinions, each treading a path of his
own. Chandrachud, C.J., opined that the present reservations should continue for a further period of 15 years

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making a total of 50 years from the date of commencement of the Constitution. He added that the means-test
must be applied to ensure that the benefit of reservations actually reaches the deserving sections. Desai, J was
of the opinion that the only basis upon which backward classes should be identified is the economic one and
that a time has come to discard all other bases. Chinnappa Reddy, J. was of the view that identification of
backward classes on the basis of caste cannot be taken exception to for the reason that in the Indian context
caste is a class. Caste, the learned Judge said, is the primary index of social backwardness, so that social
backwardness is often readily identifiable with reference to a person’s caste. If it is found in the case of a given
caste that a few members have progressed far enough so as to compare favourably with the forward classes in
social, economic and educational fields, an upper income ceiling can perhaps be prescribed to ensure that the
benefit of reservation reaches the really deserving. He opined that identification of SEBCs in the Indian milieu
is a difficult and complex exercise, which does not admit of any rigid or universal tests. It is not a matter for
the courts. The ‘backward class of citizens’, he held, are the very same SEBCs referred to in Article 15(4). The
learned Judge condemned the argument that reservations are likely to lead to deterioration in efficiency or that
they are anti-meritarian. He disagreed with the view that for being identified as SEBCs, the relevant groups
should be comparable to SCs/STs in social and educational backwardness. The learned Judge agreed with the
opinion of Fazal Ali, J. in Thomas [AIR 1976 SC 490] that the rule of 50% in Balaji is a rule of
caution and not an inflexible rule. At any rate, he said, it is not for the court to lay down any such hard and fast
rule. A.P. Sen, J. was of the opinion that the predominant and only factor for making special provision under
Article 15(4) or 16(4) should be poverty and that caste should be used only for the purpose of identification of
groups comparable to Scheduled Castes/Scheduled Tribes. The reservation should continue only till such time
as the backward classes attain a state of enlightenment. Venkataramiah, J. agreed with Chinnappa Reddy, J.
that identification of backward classes can be made on the basis of caste. He cited the Constituent Assembly
and Parliamentary debates in support of this view. According to the learned Judge, equality of opportunity
revolves around two dominant principles viz., (i) the traditional value of equality of opportunity and (ii) the
newly appreciated - though not newly conceived - idea of equality of results. He too did not agree with the
argument of ‘merit’. Application of the principle of individual merit, unmitigated by other consideration, may
quite often lead to inhuman results, he pointed out. He supported the imposition of the ‘means’ test but
disagreed with the view that the extent of reservations can exceed 50%. Periodic review of this list of SEBCs
and extension of other facilities to them was stressed.
733. At this stage, we wish to clarify one particular aspect. Article 16(1) is a facet of Article 14. Just as
Article 14 permits reasonable classification, so does Article 16(1). A classification may involve reservation of
seats or vacancies, as the case may be. In other words, under clause (1) of Article 16, appointments and/or
posts can be reserved in favour of a class.
(Questions 1 and 2)
Question 1 (a):: Whether the ‘provision’ in Article 16(4) must necessarily be made by the
Parliament/Legislature?
735. Shri K.K. Venugopal submits that the “provision” contemplated by clause (4) of Article 16 can be
made only by and should necessarily be made by the legislative wing of the State and not by the executive or
any other authority. He disputes the correctness of the holding in Balaji negativing an identical contention. He
submits that since the provision made under Article 16(4) affects the fundamental rights of other citizens, such
a provision can be made only by the Parliament/Legislature. He submits that if the power of making the
“provision” is given to the executive, it will give room for any amount of abuse. According to the learned
counsel, the political executive, owing to the degeneration of the electoral process, normally acts out of
political and electoral compulsions, for which reason it may not act fairly and independently. If, on the other
hand, the provision is to be made by the legislative wing of the State, it will not only provide an opportunity
for debate and discussion in the legislature where several shades of opinion are represented but a balanced and
unbiased decision free from the allurements of electoral gains is more likely to emerge from such a
deliberating body. Shri Venugopal cites the example of Tamil Nadu where, according to him, before every
general election a few communities are added to the list of backward classes, only with a view to winning
them over to the ruling party. The use of the expression ‘provision’ in clause (4) of Article 16 appears to us to
be not without design. According to the definition of ‘State’ in Article 12, it includes not merely the
Government and Parliament of India and Government and Legislature of each of the States but all local
authorities and other authorities within the territory of India or under the control of the Government of India
which means that such a measure of reservation can be provided not only in the matter of services under the
Central and State Governments but also in the services of local and other authorities referred to in Article 12.
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The expression ‘Local Authority’ is defined in Section 3(31) of the General Clauses Act. It takes in all
municipalities, Panchayats and other similar bodies. The expression ‘other authorities’ has received extensive
attention from the court. It includes all statutory authorities and other agencies and instrumentalities of the
State Government/Central Government. Now, would it be reasonable, possible or practicable to say that the
Parliament or the Legislature of the State should provide for reservation of posts/appointments in the services
of all such bodies besides providing for in respect of services under the Central/State Government? This aspect
would become clearer if we notice the definition of “Law” in Article 13(3)(a). It reads:
“13(3) In this article, unless the context otherwise requires,–
(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage
having in the territory of India the force of law; ...”
736. The words “order”, “bye-law”, “rule” and “regulation” in this definition are significant. Reading the
definition of “State” in Article 12 and of “law” in Article 13(3)(a), it becomes clear that a measure of the
nature contemplated by Article 16(4) can be provided not only by the Parliament/Legislature but also by the
executive in respect of Central/State services and by the local bodies and “other authorities” contemplated by
Article 12, in respect of their respective services. Some of the local bodies and some of the statutory
corporations like universities may have their own legislative wings. In such a situation, it would be
unreasonable and inappropriate to insist that reservation in all these services should be provided by
Parliament/Legislature. The situation and circumstances of each of these bodies may vary. The rule regarding
reservation has to be framed to suit the particular situations. All this cannot reasonably be done by
Parliament/Legislature.
737. Even textually speaking, the contention cannot be accepted. The very use of the word “provision” in
Article 16(4) is significant. Whereas clauses (3) and (5) of Article 16 - and clauses (2) to (6) of Article 19 - use
the word “law”, Article 16(4) uses the word “provision”. Regulation of service conditions by orders and rules
made by the executive was a well-known feature at the time of the framing of the Constitution. Probably for
this reason, a deliberate departure has been made in the case of clause (4). Accordingly, we hold, agreeing with
Balaji, that the “provision” contemplated by Article 16(4) can also be made by the executive wing of the
Union or of the State, as the case may be, as has been done in the present case. With respect to the argument of
abuse of power by the political executive, we may say that there is adequate safeguard against misuse by the
political executive of the power under Article 16(4) in the provision itself. Any determination of backwardness
is not a subjective exercise nor a matter of subjective satisfaction. As held herein - as also by earlier judgments
- the exercise is an objective one. Certain objective social and other criteria have to be satisfied before any
group or class of citizens could be treated as backward. If the executive includes, for collateral reasons, groups
or classes not satisfying the relevant criteria, it would be a clear case of fraud on power.
Question 1(b) : Whether an executive order making a ‘provision’ under Article 16(4) is enforceable
forthwith?
738. A question is raised whether an executive order made in terms of Article 16(4) is effective and
enforceable by itself or whether it is necessary that the said “provision” is enacted into a law made by the
appropriate legislature under Article 309 or is incorporated into and issued as a Rule by the
President/Governor under the proviso to Article 309 for it to become enforceable? Mr Ram Jethmalani
submits that Article 16(4) is merely declaratory in nature, that it is an enabling provision and that it is not a
source of power by itself. He submits that unless made into a law by the appropriate legislature or issued as a
rule in terms of the proviso to Article 309, the “provision” so made by the executive does not become
enforceable. At the same time, he submits that the impugned Memorandums must be deemed to be and must
be treated as Rules made and issued under the proviso to Article 309 of the Constitution. We find it difficult to
agree with Shri Jethmalani. Once we hold that a provision under Article 16(4) can be made by the executive, it
must necessarily follow that such a provision is effective the moment it is made.
739. Be that as it may, there is yet another reason, why we cannot agree that the impugned Memorandums
are not effective and enforceable the moment they are issued. It is well settled by the decisions of this Court
that the appropriate government is empowered to prescribe the conditions of service of its employees by an
executive order in the absence of the rules made under the proviso to Article 309. It is further held by this
Court that even where Rules under the proviso to Article 309 are made, the Government can issue
orders/instructions with respect to matters upon which the Rules are silent.
740. It would, therefore, follow that until a law is made or rules are issued under Article 309 with respect
to reservation in favour of backward classes, it would always be open to the Executive Government to provide
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for reservation of appointments/posts in favour of Backward Classes by an executive order. We cannot also
agree with Shri Jethmalani that the impugned Memorandums should be treated as Rules made under the
proviso to Article 309. There is nothing in them suggesting even distantly that they were issued under the
proviso to Article 309. They were never intended to be so, nor is that the stand of the Union Government
before us. They are executive orders issued under Article 73 of the Constitution read with clause (4) of Article
16. The mere omission of a recital “in the name and by order of the President of India” does not affect the
validity or enforceability of the orders, as held by this Court repeatedly.
Question 2(a) : Whether clause (4) of Article 16 is an exception to clause (1)?

741. In Balaji it was held - “there is no doubt that Article 15(4) has to be read as a proviso or an exception
to Articles 15(1) and 29(2)”. It was observed that Article 15(4) was inserted by the First Amendment in the
light of the decision in Champakam, with a view to remove the defect pointed out by this court namely, the
absence of a provision in Article 15 corresponding to clause (4) of Article 16. Following Balaji it was held by
another Constitution Bench (by majority) in Devadasan - “further this Court has already held that clause (4) of
Article 16 is by way of a proviso or an exception to clause (1)”. Subba Rao, J, however, opined in his
dissenting opinion that Article 16(4) is not an exception to Article 16(1) but that it is only an emphatic way of
stating the principle inherent in the main provision itself. Be that as it may, since the decision in Devadasan, it
was assumed by this Court that Article 16(4) is an exception to Article 16(1). This view, however, received a
severe setback from the majority decision in State of Kerala v. N.M. Thomas. Though the minority (H.R.
Khanna and A.C. Gupta, JJ) stuck to the view that Article 16(4) is an exception, the majority (Ray, CJ,
Mathew, Krishna Iyer and Fazal Ali, JJ) held that Article 16(4) is not an exception to Article 16(1) but that it
was merely an emphatic way of stating a principle implicit in Article 16(1). (Beg, J took a slightly different
view which it is not necessary to mention here.) The said four learned Judges - whose views have been
referred to in para 713 - held that Article 16(1) being a facet of the doctrine of equality enshrined in Article 14
permits reasonable classification just as Article 14 does. In our respectful opinion, the view taken by the
majority in Thomas is the correct one. We too believe that Article 16(1) does permit reasonable classification
for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it
may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would
perpetuate and accentuate inequality. Article 16(4) is an instance of such classification, put in to place the
matter beyond controversy. The “backward class of citizens” are classified as a separate category deserving a
special treatment in the nature of reservation of appointments/posts in the services of the State. Accordingly,
we hold that clause (4) of Article 16 is not exception to clause (1) of Article 16. It is an instance of
classification implicit in and permitted by clause (1). The speech of Dr Ambedkar during the debate on draft
Article 10(3) [corresponding to Article 16(4)] in the Constituent Assembly shows that a substantial number of
members of the Constituent Assembly insisted upon a “provision (being) made for the entry of certain
communities which have so far been outside the administration”, and that draft clause (3) was put in in
recognition and acceptance of the said demand. It is a provision which must be read along with and in
harmony with clause (1). Indeed, even without clause (4), it would have been permissible for the State to have
evolved such a classification and made a provision for reservation of appointments/posts in their favour.
Clause (4) merely puts the matter beyond any doubt in specific terms.
742. Regarding the view expressed in Balaji and Devadasan, it must be remembered that at that time it
was not yet recognised by this Court that Article 16(1) being a facet of Article 14 does implicitly permit
classification. Once this feature was recognised the theory of clause (4) being an exception to clause (1)
became untenable. It had to be accepted that clause (4) is an instance of classification inherent in clause (1).
Now, just as Article 16(1) is a facet or an elaboration of the principle underlying Article 14, clause (2) of
Article 16 is also an elaboration of a facet of clause (1). If clause (4) is an exception to clause (1) then it is
equally an exception to clause (2). Question then arises, in what respect if clause (4) an exception to clause (2),
if ‘class’ does not mean ‘caste’. Neither clause (1) nor clause (2) speaks of class. Does the contention mean
that clause (1) does not permit classification and therefore clause (4) is an exception to it. Thus, from any point
of view, the contention of the petitioners has no merit.
Question 2(b) : Whether Article 16(4) is exhaustive of the concept of reservations in favour of backward
classes?

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743. The question then arises whether clause (4) of Article 16 is exhaustive of the topic of reservations in
favour of backward classes. Before we answer this question it is well to examine the meaning and content of
the expression “reservation”. Its meaning has to be ascertained having regard to the context in which it occurs.
The relevant words are “any provision for the reservation of appointments or posts”. The question is whether
the said words contemplate only one form of provision namely reservation simpliciter, or do they take in other
forms of special provisions like preferences, concessions and exemptions. In our opinion, reservation is the
highest form of special provision, while preference, concession and exemption are lesser forms. The
constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of
reservations takes within its sweep all supplemental and ancillary provisions as also lesser types of special
provisions like exemptions, concessions and relaxations, consistent no doubt with the requirement of
maintenance of efficiency of administration - the admonition of Article 335. The several concessions,
exemptions and other measures issued by the Railway Administration and noticed in Karamchari Sangh are
instances of supplementary, incidental and ancillary provisions made with a view to make the main provision
of reservation effective i.e., to ensure that the members of the reserved class fully avail of the provision for
reservation in their favour. The other type of measure is the one in Thomas. There was no provision for
reservation in favour of Scheduled Castes/Scheduled Tribes in the matter of promotion to the category of
Upper Division Clerks. Certain tests were required to be passed before a Lower Division Clerk could be
promoted as Upper Division Clerk. A large number of Lower Division Clerks belonging to SC/ST were not
able to pass those tests, with the result they were stagnating in the category of LDCs. Rule 13-AA was
accordingly made empowering the Government to grant exemption to members of SC/ST from passing those
tests and the Government did exempt them, not absolutely, but only for a limited period. This provision for
exemption was a lesser form of special treatment than reservation. There is no reason why such a special
provision should not be held to be included within the larger concept of reservation. It is in this context that the
words “any provision for the reservation of appointments and posts” assume significance. The word “any” and
the associated words must be given their due meaning. They are not a mere surplusage. It is true that in
Thomas it was assumed by the majority that clause (4) permits only one form of provision namely reservation
of appointments/posts and that if any concessions or exemptions are to be extended to backward classes it can
be done only under clause (1) of Article 16. In fact the argument of the writ petitioners (who succeeded before
the Kerala High Court) was that the only type of provision that the State can make in favour of the backward
classes is reservation of appointments/posts provided by clause (4) and that the said clause does not
contemplate or permit granting of any exemptions or concessions to the backward classes.
In our opinion, therefore, where the State finds it necessary - for the purpose of giving full effect to the
provision of reservation to provide certain exemptions, concessions or preferences to members of backward
classes, it can extend the same under clause (4) itself. In other words, all supplemental and ancillary provisions
to ensure full availment of provisions for reservation can be provided as part of concept of reservation itself.
Similarly, in a given situation, the State may think that in the case of a particular backward class it is not
necessary to provide reservation of appointments/posts and that it would be sufficient if a certain preference or
a concession is provided in their favour. This can be done under clause (4) itself. In this sense, clause (4) of
Article 16 is exhaustive of the special provisions that can be made in favour of “the backward class of
citizens”. Backward Classes having been classified by the Constitution itself as a class deserving special
treatment and the Constitution having itself specified the nature of special treatment, it should be presumed
that no further classification or special treatment is permissible in their favour apart from or outside of clause
(4) of Article 16.
Question 2(c) : Whether Article 16(4) is exhaustive of the very concept of reservations?
744. The aspect next to be considered is whether clause (4) is exhaustive of the very concept of
reservations? In other words, the question is whether any reservations can be provided outside clause (4) i.e.,
under clause (1) of Article 16. There are two views on this aspect. On a fuller consideration of the matter, we
are of the opinion that clause (4) is not, and cannot be held to be, exhaustive of the concept of reservations; it
is exhaustive of reservations in favour of backward classes alone. Merely because, one form of classification is
stated as a specific clause, it does not follow that the very concept and power of classification implicit in
clause (1) is exhausted thereby. To say so would not be correct in principle. But, at the same time, one thing is
clear. It is in very exceptional situations, - and not for all and sundry reasons - that any further reservations, of
whatever kind, should be provided under clause (1). In such cases, the State has to satisfy, if called upon, that
making such a provision was necessary (in public interest) to redress a specific situation. The very presence of
clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The

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reason for saying so is very simple. If reservations are made both under clause (4) as well as under clause (1),
the vacancies available for free competition as well as reserved categories would be a correspondingly whittled
down and that is not a reasonable thing to do.
Whether clause (1) of Article 16 does not permit any reservations?
745. For the reasons given in the preceding paragraphs, we must reject the argument that clause (1) of
Article 16 permits only extending of preference, concessions and exemptions, but does not permit reservation
of appointments/posts. As pointed out in para 733 the argument that no reservations can be made under Article
16(1) is really inspired by the opinion of Powell, J in Bakke. But in the very same paragraph we had pointed
out that it is not the unanimous opinion of the Court. In principle, we see no basis for acceding to the said
contention. What kind of special provision should be made in favour of a particular class is a matter for the
State to decide, having regard to the facts and circumstances of a given situation – subject, of course, to the
observations in the preceding paragraph.
(Questions 3, 4 and 5)
Question 3 : (a) Meaning of the expression “backward class of citizens” in Article 16(4).
746. What does the expression “backward class of citizens” in Article 16(4) signify and how should they
be identified? This has been the single most difficult question tormenting this nation. The expression is not
defined in the Constitution. What does it mean then? The arguments before us mainly revolved round this
question. Several shades of opinion have been presented to us ranging from one extreme to the other. Indeed, it
may be difficult to set out in full the reasoning presented before us orally and in several written propositions
submitted by various counsel. We can mention only the substance of and the broad features emerging from
those submissions. At one end of the spectrum stands Shri N.A. Palkhivala (supported by several other
counsel) whose submissions may briefly be summarised in the following words: a secular, unified and
casteless society is a basic feature of the Constitution. Caste is a prohibited ground of distinction under the
Constitution. It ought be erased altogether from the Indian society. It can never be the basis for determining
backward classes referred to in Article 16(4). The Report of the Mandal Commission, which is the basis of the
impugned Memorandums, has treated the expression “backward classes” as synonymous with backward castes
and has proceeded to identify backward classes solely and exclusively on the basis of caste, ignoring all other
considerations including poverty. It has indeed invented castes for non-Hindus where none exist. The Report
has divided the nation into two sections, backward and forward, placing 52% of the population in the former
section. Acceptance of the Report would spell disaster to the unity and integrity of the nation. If half of the
posts are reserved for backward classes, it would seriously jeopardise the efficiency of the administration,
educational system, and all other services resulting in backwardness of the entire nation. Merit will disappear
by defying backwardness. Article 16(4) is broader than Article 15(4). The expression “backward class of
citizens” in Article 16(4) is not limited to “socially and educationally backward classes” in Article 15(4). The
impugned Memorandum, based on the said report must necessarily fall to the ground along with the Report. In
fact the main thrust of Shri Palkhivala’s argument has been against the Mandal Commission Report.
756. In Venkataramana case, a seven-Judge Bench of this Court noticed the list of backward classes
mentioned in Schedule III to the Madras Provincial and Subordinate Service Rules, 1942, as also the fact that
backward classes were enumerated on the basis of caste/race. It found no objection thereto though in
Champakam, rendered by the same Bench and on the same day it found such a classification bad under Article
15 on the ground that Article 15 did not contain a clause corresponding to clause (4) of Article 16. In
Venkataramana case this Court observed that in respect of the vacancies reserved for backward classes of
Hindus, the petitioner (a Brahmin) cannot have any claim inasmuch as “those reserved posts (were reserved)
not on the ground of religion, race, caste etc. but because of the necessity for making a provision for
reservation of such post in favour of a backward class of citizens”. The writ petition was allowed on the
ground that the allocation of vacancies to and among communities other than Harijans and backward classes of
Hindus cannot be sustained in view of clauses (1) and (2) of Article 16.
757. Though Balaji was not a case arising under Article 16(4), what it said about Article 15(4) came to be
accepted as equally good and valid for the purpose of Article 16(4). The formulations enunciated with respect
to Article 15(4) were, without question, applied and adopted in cases arising under Article 16(4). It is,
therefore, necessary to notice precisely the formulations in Balaji relevant in this behalf. Gajendragadkar, J
speaking for the Constitution Bench found, on an examination of the Nagangowda Committee Report, “that
the Committee virtually equated the class with the castes”.

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758. The criticism of the respondents’ counsel against the judgment runs thus: While it recognises the
relevance and significance of the caste and the integral connection between caste, poverty and social
backwardness, it yet refuses to accept caste as the sole basis of identifying socially backward classes, partly for
the reason that castes do not exist among non-Hindus. The judgment does not examine whether caste can or
cannot form the starting point of process of identification of socially backward classes. Nor does it consider
the aspect – how does the non-existence of castes among non-Hindus (assuming that the said premise is
factually true) makes it irrelevant in the case of Hindus, who constitute the bulk of the country’s population.
There is no rule of law that a test or basis adopted must be uniformly applicable to the entire population in the
country as such.
759. Before proceeding further it may be noticed that Balaji was dealing with Article 15(4) which clause
contains the qualifying words “socially and educationally” preceding the expression “backward classes”.
Accordingly, it was held that the backwardness contemplated by Article 15(4) is both social and educational.
Though, clause (4) of Article 16 did not contain any such qualifying words, yet they came to be read into it. In
Janki Prasad Parimoo, Palekar, J., speaking for a Constitution Bench, took it as “well-settled that the
expression ‘backward classes’ in Article 16(4) means the same thing as the expression ‘any socially and
educationally backward class of citizens’ in Article 15(4)”.
765. The above opinions emphasise the integral connection between caste, occupation, poverty and social
backwardness. They recognise that in the Indian context, lower castes are and ought to be treated as backward
classes. Rajendran and Vasanth Kumar (opinions of Chinnappa Reddy and Venkataramiah, JJ) constitute
important milestones on the road to recognition of relevance and significance of caste in the context of Article
16(4) and Article 15(4).
774. In our opinion too, the words “class of citizens - not adequately represented in the services under the
State” would have been a vague and uncertain description. By adding the word “backward” and by the
speeches of Dr Ambedkar and Shri K.M. Munshi, it was made clear that the “class of citizens ... not adequately
represented in the services under the State” meant only those classes of citizens who were not so represented
on account of their social backwardness.
776. It must be remembered that the Parliament which enacted the First Amendment was the very same
Constituent Assembly which framed the Constitution and Dr Ambedkar as the Minister of Law was piloting
the Bill. He said that backward classes “are nothing else but a collection of certain castes”. (The relevant
portion of his speech is referred to in para 699) and that it was for those backward classes that Article 15(4)
was being enacted.
778. Indeed, there are very good reasons why the Constitution could not have used the expression “castes”
or “caste” in Article 16(4) and why the word “class” was the natural choice in the context. The Constitution
was meant for the entire country and for all time to come. Non-Hindu religions like Islam, Christianity and
Sikh did not recognise caste as such though, as pointed out hereinabove, castes did exist even among these
religions to a varying degree. Further, a Constitution is supposed to be a permanent document expected to last
several centuries. It must surely have been envisaged that in future many classes may spring up answering the
test of backwardness, requiring the protection of Article 16(4). It, therefore, follows that from the use of the
word “class” in Article 16(4), it cannot be concluded either that “class” is antithetical to “caste” or that a caste
cannot be a class or that a caste as such can never be taken as a backward class of citizens. The word “class” in
Article 16(4), in our opinion, is used in the sense of social class - and not in the sense it is understood in
Marxist jargon.
779. The above material makes it amply clear that a caste is nothing but a social class - a socially
homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary.
One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he
remains and continues a member of that group. To repeat, it is a socially and occupationally homogeneous
class. Endogamy is its main characteristic. Its social status and standing depends upon the nature of the
occupation followed by it. Lowlier the occupation, lowlier the social standing of the class in the graded
hierarchy. In rural India, occupation-caste nexus is true even today. A few members may have gone to cities or
even abroad but when they return - they do, barring a few exceptions - they go into the same fold again. It
doesn’t matter if he has earned money. He may not follow that particular occupation. Still, the label remains.
His identity is not changed. For the purposes of marriage, death and all other social functions, it is his social
class - the caste - that is relevant. It is a matter of common knowledge that an overwhelming majority of
doctors, engineers and other highly qualified people who go abroad for higher studies or employment, return to
India and marry a girl from their own caste. Even those who are settled abroad come to India in search of
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brides and bridegrooms for their sons and daughters from among their own caste or community. As observed
by Dr Ambedkar, a caste is an enclosed class and it was mainly these classes the Constituent Assembly had in
mind - though not exclusively - while enacting Article 16(4). Urbanisation has to some extent broken this
caste-occupation nexus but not wholly. If one sees around himself, even in towns and cities, a barber by caste
continues to do the same job - may be, in a shop (hair dressing saloon). A washerman ordinarily carries on the
same job though he may have a laundry of his own. May be some others too carry on the profession of barber
or washerman but that does not detract from the fact that in the case of an overwhelming majority, the caste-
occupation nexus subsists. In a rural context, of course, a member of barber caste carrying on the occupation of
a washerman or vice versa would indeed be a rarity - it is simply not done. There, one is supposed to follow
his caste-occupation, ordained for him by his birth. There may be exceptions here and there, but we are
concerned with generality of the scene and not with exceptions or aberrations. Lowly occupation results not
only in low social position but also in poverty; it generates poverty. ‘Caste-occupation-poverty’ cycle is thus
an ever present reality. In rural India, it is strikingly apparent; in urban centres, there may be some dilution.
But since rural India and rural population is still the overwhelmingly predominant fact of life in India, the
reality remains. All the decisions since Balaji speak of this ‘caste-occupation-poverty’ nexus. The language
and emphasis may vary but the theme remains the same. This is the stark reality notwithstanding all our
protestations and abhorrence and all attempts at weeding out this phenomenon. We are not saying it ought to
be encouraged. It should not be. It must be eradicated. That is the ideal - the goal. But any programme towards
betterment of these sections/classes of society and any programme designed to eradicate this evil must
recognise this ground reality and attune its programme accordingly. Merely burying our heads in the sand -
ostrich-like - wouldn’t help. One cannot fight his enemy without recognising him. The U.S. Supreme Court
has said repeatedly, if race be the basis of discrimination - past and present - race must also form the basis of
redressal programmes though in our constitutional scheme, it is not necessary to go that far. Without a doubt
an extensive restructuring of the socio-economic system is the answer. That is indeed the goal, as would be
evident from the Preamble and Part IV (Directive Principles). But we are concerned here with a limited aspect
of equality emphasised in Article 16(4) - equality of opportunity in public employment and a special provision
in favour of backward class of citizens to enable them to achieve it.
(b) Identification of “backward class of citizens”
780. Now, we may turn to the identification of “backward class of citizens”. How do you go about it?
Where do you begin? Is the method to vary from State to State, region to region and from rural to urban? What
do you do in the case of religions where caste-system is not prevailing? What about other classes, groups and
communities which do not wear the label of caste? Are the people living adjacent to cease-fire line (in Jammu
and Kashmir) or hilly or inaccessible regions to be surveyed and identified as backward classes for the purpose
of Article 16(4)? And so on and so forth are the many questions asked of us. We shall answer them. But our
answers will necessarily deal with generalities of the situation and not with problems or issues of a peripheral
nature which are peculiar to a particular State, district or region. Each and every situation cannot be visualised
and answered. That must be left to the appropriate authorities appointed to identify. We can lay down only
general guidelines.
782. Coming back to the question of identification, the fact remains that one has to begin somewhere -
with some group, class or section. There is no set or recognised method. There is no law or other statutory
instrument prescribing the methodology. The ultimate idea is to survey the entire populace. If so, one can well
begin with castes, which represent explicit identifiable social classes/groupings, more particularly when
Article 16(4) seeks to ameliorate social backwardness. What is unconstitutional with it, more so when caste,
occupation poverty and social backwardness are so closely intertwined in our society? [Individual survey is out
of question, since Article 16(4) speaks of class protection and not individual protection]. This does not mean
that one can wind up the process of identification with the castes. Besides castes (whether found among
Hindus or others) there may be other communities, groups, classes and denominations which may qualify as
backward class of citizens. For example, in a particular State, Muslim community as a whole may be found
socially backward. (As a matter of fact, they are so treated in the State of Karnataka as well as in the State of
Kerala by their respective State Governments). Similarly, certain sections and denominations among
Christians in Kerala who were included among backward communities notified in the former princely State of
Travancore as far back as in 1935 may also be surveyed and so on and so forth. Any authority entrusted with
the task of identifying backward classes may well start with the castes. It can take caste ‘A’, apply the criteria
of backwardness evolved by it to that caste and determine whether it qualifies as a backward class or not. If it
does qualify, what emerges is a backward class, for the purposes of clause (4) of Article 16. The concept of

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‘caste’ in this behalf is not confined to castes among Hindus. It extends to castes, wherever they obtain as a
fact, irrespective of religious sanction for such practice. Having exhausted the castes or simultaneously with it,
the authority may take up for consideration other occupational groups, communities and classes. For example,
it may take up the Muslim community (after excluding those sections, castes and groups, if any, who have
already been considered) and find out whether it can be characterised as a backward class in that State or
region, as the case may be. The approach may differ from State to State since the conditions in each State may
differ. Nay, even within a State, conditions may differ from region to region. Similarly, Christians may also be
considered. If in a given place, like Kerala, there are several denominations, sections or divisions, each of
these groups may separately be considered.
784. The only basis for saying that caste should be excluded from consideration altogether while
identifying the backward class of citizens for the purpose of Article 16(4) is clause (2) of Article 16. This
argument, however, overlooks and ignores the true purport of clause (2). It prohibits discrimination on any or
all of the grounds mentioned therein. The significance of the word “any” cannot be minimised. Reservation is
not being made under clause (4) in favour of a ‘caste’ but a backward class. Once a caste satisfies the criteria
of backwardness, it becomes a backward class for the purposes of Article 16(4). Even that is not enough. It
must be further found that that backward class is not adequately represented in the services of the State. In
such a situation, the bar of clause (2) of Article 16 has no application whatsoever. Similarly, the argument
based upon secular nature of the Constitution is too vague to be accepted. It has been repeatedly held by the
U.S. Supreme Court in school desegregation cases that if race be the basis of discrimination, race can equally
form the basis of redressal. In any event, in the present context, it is not necessary to go to that extent. It is
sufficient to say that the classification is not on the basis of the caste but on the ground that that caste is found
to be a backward class not adequately represented in the services of the State. Born heathen, by baptism, it
becomes a Christian - to use a simile. Baptism here means passing the test of backwardness.
(c) Whether the backwardness in Article 16(4) should be both social and educational?
786. The other aspect to be considered is whether the backwardness contemplated in Article 16(4) is social
backwardness or educational backwardness or whether it is both social and educational backwardness. Since
the decision in Balaji it has been assumed that the backward class of citizens contemplated by Article 16(4) is
the same as the socially and educationally backward classes, Scheduled Castes and Scheduled Tribes
mentioned in Article 15(4). Though Article 15(4) came into existence later in 1951 and Article 16(4) does not
contain the qualifying words “socially and educationally” preceding the words “backward class of citizens” the
same meaning came to be attached to them.
787. It is true that no decision earlier to it specifically said so, yet such an impression gained currency and
it is that impression which finds expression in the above observation. In our respectful opinion, however, the
said assumption has no basis. Clause (4) of Article 16 does not contain the qualifying words “socially and
educationally” as does clause (4) of Article 15. It may be remembered that Article 340 (which has remained
unamended) does employ the expression ‘socially and educationally backward classes’ and yet that expression
does not find place in Article 16(4). The reason is obvious: “backward class of citizens” in Article 16(4) takes
in Scheduled Tribes, Scheduled Castes and all other backward classes of citizens including the socially and
educationally backward classes. Thus, certain classes which may not qualify for Article 15(4) may qualify for
Article 16(4). They may not qualify for Article 15(4) but they may qualify as backward class of citizens for the
purposes of Article 16(4). It is equally relevant to notice that Article 340 does not expressly refer to services or
to reservations in services under the State, though it may be that the Commission appointed thereunder may
recommend reservation in appointments/posts in the services of the State as one of the steps for removing the
difficulties under which SEBCs are labouring and for improving their conditions. Thus, SEBCs referred to in
Article 340 is only of the categories for whom Article 16(4) was enacted: Article 16(4) applies to a much
larger class than the one contemplated by Article 340. It would, thus, be not correct to say that ‘backward class
of citizens’ in Article 16(4) are the same as the socially and educationally backward classes in Article 15(4).
Saying so would mean and imply reading a limitation into a beneficial provision like Article 16(4). Moreover,
when speaking of reservation in appointments/posts in the State services – which may mean, at any level
whatsoever – insisting upon educational backwardness may not be quite appropriate.
788. Further, if one keeps in mind the context in which Article 16(4) was enacted it would be clear that the
accent was upon social backwardness. It goes without saying that in the Indian context, social backwardness
leads to educational backwardness and both of them together lead to poverty - which in turn breeds and
perpetuates the social and educational backwardness. They feed upon each other constituting a vicious circle.
It is a well-known fact that till independence the administrative apparatus was manned almost exclusively by
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members of the ‘upper’ castes. The Shudras, the Scheduled Castes and the Scheduled Tribes and other similar
backward social groups among Muslims and Christians had practically no entry into the administrative
apparatus. It was this imbalance which was sought to be redressed by providing for reservations in favour of
such backward classes. In this sense Dr Rajeev Dhavan may be right when he says that the object of Article
16(4) was “empowerment” of the backward classes. The idea was to enable them to share the state power. We
are, accordingly, of the opinion that the backwardness contemplated by Article 16(4) is mainly social
backwardness. It would not be correct to say that the backwardness under Article 16(4) should be both social
and educational. The Scheduled Tribes and the Scheduled Castes are without a doubt backward for the
purposes of the clause; no one has suggested that they should satisfy the test of social and educational
backwardness. It is necessary to state at this stage that the Mandal Commission appointed under Article 340
was concerned only with the socially and educationally backward classes contemplated by the said article.
Even so, it is evident that social backwardness has been given precedence over others by the Mandal
Commission - 12 out of 22 total points. Social backwardness - it may be reiterated - leads to educational and
economic backwardness. No objection can be, nor is taken, to the validity and relevancy of the criteria adopted
by the Mandal Commission. For a proper appreciation of the criteria adopted by the Mandal Commission and
the difficulties in the way of evolving the criteria of backwardness, one must read closely Chapters III and XI
of Volume I along with Appendixes XII and XXI in Volume II. Appendix XII is the Report of the Research
Planning Team of the Sociologists while Appendix XXI is the ‘Final List of Tables’ adopted in the course of
socio-educational survey.
11.20. In Balaji case the Supreme Court held that if a particular community is to be treated as
educationally backward, the divergence between its educational level and that of the State average should
not be marginal but substantial. The Court considered 50% divergence to be satisfactory. Now, 80% of the
population of Bihar (1971 Census) is illiterate. To beat this percentage figure by a margin of 50% will
mean that 120% members of a caste/class should be illiterates. In fact it will be seen that in this case even
25% divergence will stretch us to the maximum saturation point of 100%.
11.21. In the Indian situation where vast majority of the people are illiterate, poor or backward, one
has to be very careful in setting deviations from the norms as, in our conditions, norms themselves are very
low. For example, Per Capita Consumer Expenditure for 1977-78 at current prices was Rs 991 per annum.
For the same period, the poverty line for urban areas was at Rs 900 per annum and for rural areas at Rs
780. It will be seen that this poverty line is quite close to the Per Capita Consumer Expenditure of an
average Indian. Now following the dictum of Balaji case, if 50% deviation from this average Per Capita
Consumer Expenditure was to be accepted to identify ‘economically backward’ classes, their income level
will have to be 50% below the Per Capita Consumer Expenditure i.e., less than Rs 495.5 per year. This
figure is so much below the poverty line both in urban and rural areas that most of the people may die of
starvation before they qualify for such a distinction.
11.22. In view of the above, ‘Indicators for Backwardness’ were tested against various cut-off points.
For doing so, about a dozen castes well-known for their social and educational backwardness were
selected from amongst the castes covered by our survey in a particular State. These were treated as
‘Control’ and validation checks were carried out by testing them against ‘Indicators’ at various cut-off
points. For instance, one of the ‘Indicators’ for social backwardness is the rate of student drop-outs in the
age group 5-15 years as compared to the State average. As a result of the above tests, it was seen that in
educationally backward castes this rate is at least 25% above the State average. Further, it was also noticed
that this deviation of 25% from the State average in the case of most of the ‘Indicators’ gave satisfactory
results. In view of this, wherever an ‘Indicator’ was based on deviation from the State average, it was fixed
at 25%, because a deviation of 50% was seen to give wholly unsatisfactory results and, at times, to create
anomalous situations.”
789. The SEBCs referred to by the impugned Memorandums are undoubtedly ‘backward class of citizens’
within the meaning of Article 16(4).
(d) ‘Means-test’ and ‘creamy layer’:

790. ‘Means-test’ in this discussion signifies imposition of an income limit, for the purpose of excluding
persons (from the backward class) whose income is above the said limit. This submission is very often referred
to as the “creamy layer” argument.

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792. In our opinion, it is not a question of permissibility or desirability of such test but one of proper and
more appropriate identification of a class - a backward class. The very concept of a class denotes a number of
persons having certain common traits which distinguish them from the others. In a backward class under
clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a
given class. If some of the members are far too advanced socially (which in the context, necessarily means
economically and, may also mean educationally) the connecting thread between them and the remaining class
snaps. They would be misfits in the class. After excluding them alone, would the class be a compact class. In
fact, such exclusion benefits the truly backward. Difficulty, however, really lies in drawing the line - how and
where to draw the line? For, while drawing the line, it should be ensured that it does not result in taking away
with one hand what is given by the other. The basis of exclusion should not merely be economic, unless, of
course, the economic advancement is so high that it necessarily means social advancement. Let us illustrate the
point. A member of backward class, say a member of carpenter caste, goes to Middle East and works there as a
carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be
excluded from the Backward Class? Are his children in India to be deprived of the benefit of Article 16(4)?
Situation may, however, be different, if he rises so high economically as to become - say a factory owner
himself. In such a situation, his social status also rises. He himself would be in a position to provide
employment to others. In such a case, his income is merely a measure of his social status. Even otherwise there
are several practical difficulties too in imposing an income ceiling. For example, annual income of Rs 36,000
may not count for much in a city like Bombay, Delhi or Calcutta whereas it may be a handsome income in
rural India anywhere. The line to be drawn must be a realistic one. Another question would be, should such a
line be uniform for the entire country or a given State or should it differ from rural to urban areas and so on.
Further, income from agriculture may be difficult to assess and, therefore, in the case of agriculturists, the line
may have to be drawn with reference to the extent of holding. While the income of a person can be taken as a
measure of his social advancement, the limit to be prescribed should not be such as to result in taking away
with one hand what is given with the other. The income limit must be such as to mean and signify social
advancement. At the same time, it must be recognised that there are certain positions, the occupants of which
can be treated as socially advanced without any further enquiry. For example, if a member of a designated
backward class becomes a member of IAS or IPS or any other All India Service, his status in society (social
status) rises; he is no longer socially disadvantaged. His children get full opportunity to realise their potential.
They are in no way handicapped in the race of life. His salary is also such that he is above want. It is but
logical that in such a situation, his children are not given the benefit of reservation. For by giving them the
benefit of reservation, other disadvantaged members of that backward class may be deprived of that benefit. It
is then argued for the respondents that ‘one swallow doesn’t make the summer’, and that merely because a few
members of a caste or class become socially advanced, the class/caste as such does not cease to be backward.
It is pointed out that clause (4) of Article 16 aims at group backwardness and not individual backwardness.
While we agree that clause (4) aims at group backwardness, we feel that exclusion of such socially advanced
members will make the ‘class’ a truly backward class and would more appropriately serve the purpose and
object of clause (4). (This discussion is confined to Other Backward Classes only and has no relevance in the
case of Scheduled Tribes and Scheduled Castes).
793. Keeping in mind all these considerations, we direct the Government of India to specify the basis of
exclusion - whether on the basis of income, extent of holding or otherwise - of ‘creamy layer’. This shall be
done as early as possible, but not exceeding four months. On such specification persons falling within the net
of exclusionary rule shall cease to be the members of the Other Backward Classes (covered by the expression
‘backward class of citizens’) for the purpose of Article 16(4). The impugned Office Memorandums dated
August 13, 1990 and September 25, 1991 shall be implemented subject only to such specification and
exclusion of socially advanced persons from the backward classes contemplated by the said O.M. In other
words, after the expiry of four months from today, the implementation of the said O.M. shall be subject to the
exclusion of the ‘creamy layer’ in accordance with the criteria to be specified by the Government of India and
not otherwise.
(e) Whether a class should be situated similarly to the Scheduled Castes/Scheduled Tribes for being
qualified as a Backward Class?
794. In Balaji it was held “that the Backward Classes for whose improvement special provision is
contemplated by Article 15(4) are in the matter of their backwardness comparable to Scheduled Castes and
Scheduled Tribes”. (emphasis supplied) The correctness of this observation is questioned by the counsel for
the respondents.

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795. We see no reason to qualify or restrict the meaning of the expression “backward class of citizens” by
saying that it means those other backward classes who are situated similarly to Scheduled Castes and/or
Scheduled Tribes. As pointed out in para 786, the relevant language employed in both the clauses is different.
Article 16(4) does not expressly refer to Scheduled Castes or Scheduled Tribes; if so, there is no reason why
we should treat their backwardness as the standard backwardness for all those claiming its protection. As a
matter of fact, neither the several castes/groups/tribes within the Scheduled Castes and Scheduled Tribes are
similarly situated nor are the Scheduled Castes and Scheduled Tribes similarly situated. If any group or class is
situated similarly to the Scheduled Castes, they may have a case for inclusion in that class but there seems to
be no basis either in fact or in principle for holding that other classes/groups must be situated similarly to them
for qualifying as backward classes. There is no warrant to import any such a priori notions into the concept of
Other Backward Classes. At the same time, we think it appropriate to clarify that backwardness, being a
relative term, must in the context be judged by the general level of advancement of the entire population of the
country or the State, as the case may be. More than this, it is difficult to say. How difficult is the process of
ascertainment of backwardness would be known if one peruses Chapters III and XI of Volume I of the Mandal
Commission Report along with Appendixes XII and XXI in Volume II. It must be left to the
Commission/Authority appointed to identify the backward classes to evolve a proper and relevant criteria and
test the several groups, castes, classes and sections of people against that criteria. If, in any case, a particular
caste or class is wrongly designated or not designated as a backward class, it can always be questioned before
a court of law as well. We may add that relevancy of the criteria evolved by Mandal Commission (Chapter XI)
has not been questioned by any of the counsel before us. Actual identification is a different matter, which we
shall deal with elsewhere.
796-797. We may now summarise our discussion under Question No. 3. (a) A caste can be and quite often
is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article
16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for
historical reasons are socially backward. They too represent backward social collectivities for the purposes of
Article 16(4). (b) Neither the constitution nor the law prescribe the procedure or method of identification of
backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It
must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient
and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the
backward classes can certainly be done with reference to castes among, and along with, other groups, classes
and sections of people. One can start the process with the castes, wherever they are found, apply the criteria
(evolved for determining backwardness) and find out whether it satisfies the criteria. If it does – what emerges
is a “backward class of citizens” within the meaning of and for the purposes of Article 16(4). Similar process
can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire
populace. The central idea and overall objective should be to consider all available groups, sections and classes
in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming
majority of the country’s population, one can well begin with it and then go to other groups, sections and
classes. (c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the
Scheduled Castes/Scheduled Tribes. (d) ‘Creamy layer’ can be, and must be, excluded. (e) It is not correct to
say that the backward class contemplated by Article 16(4) is limited to the socially and educationally
backward classes referred to in Article 15(4) and Article 340. It is much wider. The test or requirement of
social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who
indubitably fall within the expression “backward class of citizens”. The accent in Article 16(4) appears to be
on social backwardness. Of course, social, educational and economic backwardness are closely intertwined in
the Indian context. The classes contemplated by Article 16(4) may be wider than those contemplated by
Article 15(4).
(f) Adequacy of Representation in the Services under the State
798. Not only should a class be a backward class for meriting reservations, it should also be inadequately
represented in the services under the State. The language of clause (4) makes it clear that the question whether
a backward class of citizens is not adequately represented in the services under the State is a matter within the
subjective satisfaction of the State. This is evident from the fact that the said requirement is preceded by the
words “in the opinion of the State”. This opinion can be formed by the State on its own, i.e., on the basis of the
material it has in its possession already or it may gather such material through a Commission/ Committee,
person or authority. All that is required is, there must be some material upon which the opinion is formed.
Indeed, in this matter the court should show due deference to the opinion of the State, which in the present

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context means the executive. The executive is supposed to know the existing conditions in the society, drawn
as it is from among the representatives of the people in Parliament/Legislature. It does not, however, mean that
the opinion formed is beyond judicial scrutiny altogether.
Question 4 : (a) Whether backward classes can be identified only and exclusively with reference to the
economic criterion?
799. It follows from the discussion under Question No. 3 that a backward class cannot be determined only
and exclusively with reference to economic criterion. It may be a consideration or basis along with and in
addition to social backwardness, but it can never be the sole criterion. This is the view uniformly taken by this
Court and we respectfully agree with the same.
(b) Whether a backward class can be identified on the basis of occupation-cum-income without reference to
caste?
800. In Chitralekha, this court held that such an identification is permissible. We see no reason to differ
with the said view inasmuch as this is but another method to find socially backward classes. Indeed, this test in
the Indian context is broadly the same as the one adopted by the Mandal Commission. While answering
Question 3(b), we said that identification of backward classes can be done with reference to castes along with
other occupational groups, communities and classes. We did not say that that is the only permissible method.
Indeed, there may be some groups or classes in whose case caste may not be relevant to all. For example,
agricultural labourers, rickshaw-pullers/drivers, street-hawkers etc. may well qualify for being designated as
Backward Classes.
Question No. 5 : Whether Backward Classes can be further divided into backward and more backward
categories?
802. We are of the opinion that there is no constitutional or legal bar to a State categorising the backward
classes as backward and more backward. We are not saying that it ought to be done. We are concerned with
the question if a State makes such a categorisation, whether it would be invalid? We think not. Let us take the
criteria evolved by Mandal Commission. Any caste, group or class which scored eleven or more points was
treated as a backward class. Now, it is not as if all the several thousands of castes/groups/classes scored
identical points. There may be some castes/groups/classes which have scored points between 20 to 22 and
there may be some who have scored points between eleven and thirteen. It cannot reasonably be denied that
there is no difference between these two sets of castes/groups/classes. To give an illustration, take two
occupational groups viz., goldsmiths and vaddes (traditional stone-cutters in Andhra Pradesh) both included
within Other Backward Classes. None can deny that goldsmiths are far less backward than vaddes. If both of
them are grouped together and reservation provided, the inevitable result would be that goldsmiths would take
away all the reserved posts leaving none for vaddes. In such a situation, a State may think it advisable to make
a categorisation even among other backward classes so as to ensure that the more backward among the
backward classes obtain the benefits intended for them. Where to draw the line and how to effect the sub-
classification is, however, a matter for the Commission and the State - and so long as it is reasonably done, the
Court may not intervene. In this connection, reference may be made to the categorisation obtaining in Andhra
Pradesh. The Backward Classes have been divided into four categories. Group A comprises “Aboriginal tribes,
Vimukta jatis, nomadic and semi-nomadic tribes etc.” Group B comprises professional group like tappers,
weavers, carpenters, ironsmiths, goldsmiths, kamsalins, etc. Group C pertains to “Scheduled Castes converts to
Christianity and their progeny”, while Group D comprises all other classes/communities/groups, which are not
included in Groups A, B and C. The 25% vacancies reserved for backward classes are sub-divided between
them in proportion to their respective population. This is merely to show that even among backward classes,
there can be a sub-classification on a reasonable basis.
803. There is another way of looking at this issue. Article 16(4) recognises only one class viz., “backward
class of citizens”. It does not speak separately of Scheduled Castes and Scheduled Tribes, as does Article
15(4). Even so, it is beyond controversy that Scheduled Castes and Scheduled Tribes are also included in the
expression “backward class of citizens” and that separate reservations can be provided in their favour. It is a
well-accepted phenomenon throughout the country. What is the logic behind it? It is that if Scheduled Tribes,
Scheduled Castes and Other Backward Classes are lumped together, OBCs will take away all the vacancies
leaving Scheduled Castes and Scheduled Tribes high and dry. The same logic also warrants categorisation as
between more backward and backward. We do not mean to say that this should be done. We are only saying
that if a State chooses to do it, it is not impermissible in law.
(Question Nos. 6, 7 and 8)
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Question 6:
To what extent can the reservation be made?
(a) Whether the 50% rule enunciated in Balaji a binding rule or only a rule of caution or rule of
prudence?
(b) Whether the 50% rule, if any, is confined to reservations made under clause (4) of Article 16 or
whether it takes in all types of reservations that can be provided under Article 16?
(c) Further, while applying 50% rule, if any, whether a year should be taken as a unit or whether the
total strength of the cadre should be looked to?
(d) Was Devadasan correctly decided?
804. In Balaji, a Constitution Bench of this Court rejected the argument that in the absence of a limitation
contained in Article 15(4), no limitation can be prescribed by the Court on the extent of reservation. It
observed that a provision under Article 15(4) being a “special provision” must be within reasonable limits. It
may be appropriate to quote the relevant holding from the judgment:
“When Article 15(4) refers to the special provision for the advancement of certain classes or
Scheduled Castes and Scheduled Tribes, it must not be ignored that the provision which is authorised
to be made is a special provision; it is not a provision which is exclusive in character, so that in
looking after the advancement of those classes, the State would be justified in ignoring altogether the
advancement of the rest of the society. It is because the interests of the society at large would be
served by promoting the advancement of the weaker elements in the society that Article 15(4)
authorises special provision to be made. But if a provision which is in the nature of an exception
completely excludes the rest of the society, that clearly is outside the scope of Article 15(4). It would
be extremely unreasonable to assume that in enacting Article 15(4) the Parliament intended to provide
that where the advancement of the Backward Classes or the Scheduled Castes and Tribes was
concerned, the fundamental rights of the citizens constituting the rest of the society were to be
completely and absolutely ignored… A special provision contemplated by Article 15(4) like
reservation of posts and appointments contemplated by Article 16(4) must be within reasonable limits.
The interests of weaker sections of society which are a first charge on the States and the Centre have
to be adjusted with the interests of the community as a whole. The adjustment of these competing
claims is undoubtedly a difficult matter, but if under the guise of making a special provision, a State
reserves practically all the seats available in all the colleges, that clearly would be subverting the
object of Article 15(4). In this matter again, we are reluctant to say definitely what would be a proper
provision to make. Speaking generally and in a broad way, a special provision should be less than
50%; how much less than 50% would depend upon the relevant prevailing circumstances in each
case.”
In Devadasan this rule of 50% was applied to a case arising under Article 16(4) and on that basis the carry-
forward rule was struck down.
807. We must, however, point out that clause (4) speaks of adequate representation and not proportionate
representation. Adequate representation cannot be read as proportionate representation. Principle of
proportionate representation is accepted only in Articles 330 and 332 of the Constitution and that too for a
limited period. These articles speak of reservation of seats in Lok Sabha and the State legislatures in favour of
Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and
special provisions. It is therefore not possible to accept the theory of proportionate representation though the
proportion of population of backward classes to the total population would certainly be relevant. Just as every
power must be exercised reasonably and fairly, the power conferred by clause (4) of Article 16 should also be
exercised in a fair manner and within reasonable limits – and what is more reasonable than to say that
reservation under clause (4) shall not exceed 50% of the appointments or posts, barring certain extraordinary
situations as explained hereinafter. From this point of view, the 27% reservation provided by the impugned
Memorandums in favour of backward classes is well within the reasonable limits. Together with reservation in
favour of Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5%.
808. It needs no emphasis to say that the principal aim of Articles 14 and 16 is equality and equality of
opportunity and that clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is
a special provision - though not an exception to clause (1). Both the provisions have to be harmonised keeping
in mind the fact that both are but the re-statements of the principle of equality enshrined in Article 14. The
provision under Article 16(4) - conceived in the interest of certain sections of society - should be balanced
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against the guarantee of equality enshrined in clause (1) of Article 16 which is a guarantee held out to every
citizen and to the entire society. It is relevant to point out that Dr Ambedkar himself contemplated reservation
being “confined to a minority of seats”. No other member of the Constituent Assembly suggested otherwise. It
is, thus, clear that reservation of a majority of seats was never envisaged by the Founding Fathers. Nor are we
satisfied that the present context requires us to depart from that concept.
809. From the above discussion, the irresistible conclusion that follows is that the reservations
contemplated in clause (4) of Article 16 should not exceed 50%.
810. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary
situations inherent in the great diversity of this country and the people. It might happen that in farflung and
remote areas the population inhabiting those areas might, on account of their being out of the mainstream of
national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different
way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised
and a special case made out.
811. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a
communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get
selected in the open competition field on the basis of their own merit; they will not be counted against the
quota reserved for Scheduled Castes; they will be treated as open competition candidates.
812. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward
classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the
same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as
‘vertical reservations’ and ‘horizontal reservations’. The reservations in favour of Scheduled Castes,
Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas
reservations in favour of physically handicapped [under clause (1) of Article 16] can be referred to as
horizontal reservations. Horizontal reservations cut across the vertical reservations - what is called interlocking
reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically
handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected
against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in
that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he
will be placed in that category by making necessary adjustments. Even after providing for these horizontal
reservations, the percentage of reservations in favour of backward class of citizens remains - and should
remain - the same. This is how these reservations are worked out in several States and there is no reason not to
continue that procedure.
813. It is, however, made clear that the rule of 50% shall be applicable only to reservations proper; they
shall not be - indeed cannot be - applicable to exemptions, concessions or relaxations, if any, provided to
‘Backward Class of Citizens’ under Article 16(4).
814. The next aspect of this question is whether a year should be taken as the unit or the total strength of
the cadre, for the purpose of applying the 50% rule. Balaji does not deal with this aspect but Devadasan
(majority opinion) does. Mudholkar, J speaking for the majority says:
“We would like to emphasise that the guarantee contained in Article 16(1) is for ensuring equality
of opportunity for all citizens relating to employment, and to appointments to any office under the
State. This means that on every occasion for recruitment the State should see that all citizens are
treated equally. The guarantee is to each individual citizen and, therefore, every citizen who is seeking
employment or appointment to an office under the State is entitled to be afforded an opportunity for
seeking such employment or appointment whenever it is intended to be filled. In order to effectuate
the guarantee each year of recruitment will have to be considered by itself and the reservation for
backward communities should not be so excessive as to create a monopoly or to disturb unduly the
legitimate claims of other communities.”
On the other hand is the approach adopted by Ray, CJ in Thomas. While not disputing the correctness of the
50% rule he seems to apply it to the entire service as such. In our opinion, the approach adopted by Ray, CJ
would not be consistent with Article 16. True it is that the backward classes, who are victims of historical
social injustice, which has not ceased fully as yet, are not properly represented in the services under the State
but it may not be possible to redress this imbalance in one go i.e., in a year or two. The position can be better
explained by taking an illustration. Take a unit/service/cadre comprising 1000 posts. The reservation in favour
of Scheduled Tribes, Scheduled Castes and Other Backward Classes is 50% which means that out of the 1000
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posts 500 must be held by the members of these classes i.e., 270 by Other Backward Classes, 150 by
Scheduled Castes and 80 by Scheduled Tribes. At a given point of time, let us say, the number of members of
OBCs in the unit/service/category is only 50, a short fall of 220. Similarly the number of members of
Scheduled Castes and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire
service/cadre is taken as a unit and the backlog is sought to be made up, then the open competition channel has
to be choked altogether for a number of years until the number of members of all backward classes reaches
500 i.e., till the quota meant for each of them is filled up. This may take quite a number of years because the
number vacancies arising each year are not many. Meanwhile, the members of open competition category
would become age barred and ineligible. Equality of opportunity in their case would become a mere mirage. It
must be remembered that the equality of opportunity guaranteed by clause (1) is to each individual citizen of
the country while clause (4) contemplates special provision being made in favour of socially disadvantaged
classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the
above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and
not the entire strength of the cadre, service or the unit, as the case may be.
(d) Was Devadasan correctly decided?

815. The rule (providing for carry-forward of unfilled reserved vacancies as modified in 1955) struck
down in Devadasan reads as follows:
“3(a) If a sufficient number of candidates considered suitable by the recruiting authorities, are not
available from the communities for whom reservations are made in a particular year, the unfilled
vacancies should be treated as unreserved and filled by the best available candidates. The number of
reserved vacancies thus treated as unreserved will be added as an additional quota to the number that
would be reserved in the following year in the normal course; and to the extent to which approved
candidates are not available in that year against this additional quota, a corresponding addition should
be made to the number of reserved vacancies in the second following year.”
The facts of the case relevant for our purpose are the following:
(i) Reservation in favour of Scheduled Castes and Scheduled Tribes was 12.5% and 5%
respectively;
(ii) In 1960, UPSC issued a notification proposing to hold a limited competitive examination for
promotion to the category of Assistant Superintendents in Central Secretariat Services. 48 vacancies
were to be filled, out of which 16 were unreserved while 32 were reserved for Scheduled Castes/
Scheduled Tribes, because of the operation of the carry-forward rule; 28 vacancies were actually
carried forward;
(iii) UPSC recommended 16 for unreserved and 30 for reserved vacancies – a total of 46;
(iv) The Government however appointed in all 45 persons, out of whom 29 belonged to
Scheduled Castes/Scheduled Tribes.
The said rule and the appointments made on that basis were questioned mainly on the ground that they violated
the 50% rule enunciated in Balaji. It was submitted that by virtue of the carry-forward rule, 65% of the
vacancies for the year in question came to be reserved for Scheduled Castes/Scheduled Tribes.
816. The majority, speaking through Mudholkar, J. upheld the contention of the petitioners and struck
down the rule purporting to apply the principle of Balaji.
817. We are of the respectful opinion that on its own reasoning, the decision insofar as it strikes down the
rule is not sustainable. The most that could have been done in that case was to quash the appointments in
excess of 50%, inasmuch as, as a matter of fact, more than 50% of the vacancies for the year 1960 came to be
reserved by virtue of the said rule. But it would not be correct to presume that that is the necessary and the
only consequence of that rule. Let us take the very illustration given at pp. 691-92, - namely 100 vacancies
arising in three successive years and 18% being the reservation quota - and examine. Take a case, where in the
first year, out of 18 reserved vacancies 9 are filled up and 9 are carried-forward. Similarly, in the second year
again, 9 are filled up and another 9 are carried-forward. Result would be that in the third year, 9 + 9 + 18 = 36
(out of a total of 100) would be reserved which would be far less than 50%; the rule in Balaji is not violated.
But by striking down the rule itself, carrying forward of vacancies even in such a situation has become
impermissible, which appears to us indefensible in principle. We may also point out that the premise made in
Balaji and reiterated in Devadasan to the effect that clause (4) is an exception to clause (1) is no longer

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acceptable, having been given up in Thomas. It is for this reason that in Karamchari Sangh Krishna Iyer, J
explained Devadasan in the following words:
“In Devadasan case the Court went into the actuals, not into the hypotheticals. This is most
important. The Court actually verified the degree of deprivation of the ‘equal opportunity’ right ....
What is striking is that the Court did not take an academic view or make a notional evaluation but
checked up to satisfy itself about the seriousness of the infraction of the right…Mathematical
calculations, departing from realities of the case, may startle us without justification, the apprehension
being misplaced. All that we need say is that the Railway Board shall take care to issue instructions to
see that in no year shall SC and ST candidates be actually appointed to substantially more than 50% of
the promotional posts. Some excess will not affect as mathematical precision is difficult in human
affairs, but substantial excess will void the selection. Subject to this rider or condition that the ‘carry-
forward’ rule shall not result, in any given year, in the selection or appointments of SC and ST
candidates considerably in excess of 50% we uphold Annexure I.”
We are in respectful agreement with the above statement of law. Accordingly, we overrule the decision in
Devadasan. We have already discussed and explained the 50% rule. The same position would apply in the
case of carry-forward rule as well. We, however, agree that a year should be taken as the unit or basis, as the
case may be, for applying the rule of 50% and not the entire cadre strength.
Question No. 7 : Whether clause (4) of Article 16 provides reservation only in the matter of initial
appointments/direct recruitment or does it contemplate and provide for reservations being made in the
matter of promotion as well?
819. The petitioners’ submission is that the reservation of appointments or posts contemplated by clause
(4) is only at the stage of entry into State service, i.e., direct recruitment. It is submitted that providing for
reservation thereafter in the matter of promotion amounts to a double reservation and if such a provision is
made at each successive stage of promotion it would be a case of reservation being provided that many times.
It is also submitted that by providing reservation in the matter of promotion, the member of a reserved
category is enabled to leap-frog over his compatriots, which is bound to generate acute heart-burning and may
well lead to inefficiency in administration. The members of the open competition category would come to
think that whatever be their record and performance, the members of reserved categories would steal a march
over them, irrespective of their performance and competence. Examples are given how two persons (A) and
(B), one belonging to O.C. category and the other belonging to reserved category, having been appointed at the
same time, the member of the reserved category gets promoted earlier and how even in the promoted category
he jumps over the members of the O.C. category already there and gains a further promotion and so on. This
would generate, it is submitted, a feeling of disheartening which kills the spirit of competition and develops a
sense of disinterestedness among the members of O.C. category. It is pointed out that once persons coming
from different sources join a category or class, they must be treated alike thereafter in all matters including
promotions and that no distinction is permissible on the basis of their “birth-mark”. It is also pointed out that
even the Constituent Assembly debates on draft Article 10(3) do not indicate in any manner that it was
supposed to extend to promotions as well. It is further submitted that if Article 16(4) is construed as warranting
reservation even in the matter of promotion it would be contrary to the mandate of Article 335 viz.,
maintenance of efficiency in administration. It is submitted that such a provision would amount to putting a
premium upon inefficiency. The members of the reserved category would not work hard since they do not
have to compete with all their colleagues but only within the reserved category and further because they are
assured of promotion whether they work hard and efficiently or not. Such a course would also militate against
the goal of excellence referred to in clause (j) of Article 51-A (Fundamental Duties).
822. Reservation in the case of promotion is normally provided only where the promotion is by selection
i.e., on the basis of merit. For, if the promotion is on the basis of seniority, such a rule may not be called for; in
such a case the position obtaining in the lower category gets reflected in the higher category (promotion
category) also. Where, however, promotion is based on merit, it may happen that members of backward
classes may not get selected in the same proportion as is obtaining in the lower category. With a view to ensure
similar representation in the higher category also, reservation is thought of even in the matter of promotion
based on selection. This is, of course, in addition to the provision for reservation at the entry (direct
recruitment) level.
This was the position in Rangachari. Secondly, there may be a service/class/category, to which
appointment is made partly by direct recruitment and partly by promotion (i.e., promotion on the basis of
merit). If no provision is made for reservation in promotions, the backward class members may not be
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represented in this category to the extent prescribed. We may give an illustration to explain what we are
saying. Take the category of Assistant Engineers in a particular service where 50% of the vacancies arising in
a year are filled up by direct recruitment and 50% by promotion (by selection i.e., on merit basis) from among
Junior Engineers. If provision for reservation is made only in the matter of direct recruitment but not in
promotions, the result may be that members of backward classes (where quota, let us say, is 25%) would get in
to that extent only in the 50% direct recruitment quota but may not get in to that extent in the balance 50%
promotion quota. It is for this reason that reservation is thought of even in the matter of promotions,
particularly where promotions are on the basis of merit. The question for our consideration, however, is
whether Article 16(4) contemplates and permits reservation only in the matter of direct recruitment or whether
it also warrants provision being made for reservation in the matter of promotions as well.
825. Validity of a number of circulars issued by the Railway Administration was questioned in
Karamchari Sangh - a petition under Article 32. The experience gained over the years disclosed that
reservation of appointments/posts in favour of SC/STs, though made both at the stage of initial recruitment and
promotion was not achieving the intended results, inasmuch as several posts meant for them remained unfilled
by them. Accordingly, the Administration issued several circulars from time to time extending further
concessions and other measures to ensure that members of these categories avail of the posts reserved for them
fully. These circulars contemplated (i) giving one grade higher to SC/ST candidates than is assignable to an
employee, (ii) carrying forward vacancies for a period of three years and (iii) provision for in-service training
and coaching (after promotion) to raise the level of efficiency of SC/ST employees who were directed to be
promoted on a temporary basis for a specified period, even if they did not obtain the requisite places. The
contention of the writ petitioners was that these circulars, being inconsistent with the mandate of Article 335,
are bad. Rangachari was sought to be reopened by arguing that Article 16(4) does not take in reservation in
the matter of promotion. The carry-forward rule was also upheld subject to the condition that the operation of
the rule shall not result, in any given year, in selection/appointment of Scheduled Caste/Scheduled Tribe
candidates in excess of 50%.
827. We find it difficult to agree with the view in Rangachari that Article 16(4) contemplates or permits
reservation in promotions as well. It is true that the expression “appointment” takes in appointment by direct
recruitment, appointment by promotion and appointment by transfer. It may also be that Article 16(4)
contemplates not merely quantitative but also qualitative support to backward class of citizens. But this
question has not to be answered on a reading of Article 16(4) alone but on a combined reading of Article 16(4)
and Article 335.
828. We see no justification to multiply ‘the risk’, which would be the consequence of holding that
reservation can be provided even in the matter of promotion. While it is certainly just to say that a handicap
should be given to backward class of citizens at the stage of initial appointment, it would be a serious and
unacceptable inroad into the rule of equality of opportunity to say that such a handicap should be provided at
every stage of promotion throughout their career. That would mean creation of a permanent separate category
apart from the mainstream - a vertical division of the administrative apparatus. The members of reserved
categories need not have to compete with others but only among themselves. There would be no will to work,
compete and excel among them. Whether they work or not, they tend to think, their promotion is assured. This
in turn is bound to generate a feeling of despondence and ‘heart-burning’ among open competition members.
All this is bound to affect the efficiency of administration. Putting the members of backward classes on a fast-
track would necessarily result in leap-frogging and the deleterious effects of “leap-frogging” need no
illustration at our hands. At the initial stage of recruitment reservation can be made in favour of backward class
of citizens but once they enter the service, efficiency of administration demands that these members too
compete with others and earn promotion like all others; no further distinction can be made thereafter with
reference to their “birth-mark”, as one of the learned Judges of this Court has said in another connection. They
are expected to operate on equal footing with others. Crutches cannot be provided throughout one’s career.
That would not be in the interest of efficiency of administration nor in the larger interest of the nation. It is
wrong to think that by holding so, we are confining the backward class of citizens to the lowest cadres. It is
well-known that direct recruitment takes place at several higher levels of administration and not merely at the
level of Class IV and Class III. Direct recruitment is provided even at the level of All India Services. Direct
recruitment is provided at the level of District Judges, to give an example nearer home. It may also be noted
that during the debates in the Constituent Assembly, none referred to reservation in promotions; it does not
appear to have been within their contemplation.

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829. It is true that Rangachari has been the law for more than 30 years and that attempts to re-open the
issue were repelled in Karamchari Sangh. It may equally be true that on the basis of that decision, reservation
may have been provided in the matter of promotion in some of the Central and State services but we are
convinced that the majority opinion in Rangachari to the extent it holds, that Article 16(4) permits reservation
even in the matter of promotion, is not sustainable in principle and ought to be departed from. However, taking
into consideration all the circumstances, we direct that our decision on this question shall operate only
prospectively and shall not affect promotions already made, whether on temporary, officiating or
regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of
promotion - be it Central Services or State Services, or for that matter services under any corporation, authority
or body falling under the definition of ‘State’ in Article 12 - such reservations shall continue in operation for a
period of five years from this day. Within this period, it would be open to the appropriate authorities to revise,
modify or re-issue the relevant Rules to ensure the achievement of the objective of Article 16(4). If any
authority thinks that for ensuring adequate representation of ‘backward class of citizens’ in any service, class
or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so.
831. We must also make it clear that it would not be impermissible for the State to extend concessions and
relaxations to members of reserved categories in the matter of promotion without compromising the efficiency
of the administration. The relaxation concerned in Thomas and the concessions namely carrying forward of
vacancies and provisions for in-service coaching/training in Karamchari Sangh are instances of such
concessions and relaxations. However, it would not be permissible to prescribe lower qualifying marks or a
lesser level of evaluation for the members of reserved categories since that would compromise the efficiency
of administration. We reiterate that while it may be permissible to prescribe a reasonably lesser qualifying
marks or evaluation for the OBCs, SCs and STs - consistent with the efficiency of administration and the
nature of duties attaching to the office concerned - in the matter of direct recruitment, such a course would not
be permissible in the matter of promotions for the reasons recorded hereinabove.
Question No. 8 : Whether Reservations are anti-meritarian?
832. In Balaji and other cases, it was assumed that reservations are necessarily anti-meritarian. For
example, in Janki Prasad Parimoo it was observed, “it is implicit in the idea of reservation that a less
meritorious person be preferred to another who is more meritorious”. To the same effect is the opinion of
Khanna, J in Thomas, though it is a minority opinion. Even Subba Rao, J who did not agree with this view did
recognize some force in it. In his dissenting opinion in Devadasan while holding that there is no conflict
between Article 16(4) and Article 335, he did say, “it is inevitable in the nature of reservation that there will
be a lowering of standards to some extent”, but, he said, on that account the provision cannot be said to be
bad, inasmuch as in that case, the State had, as a matter of fact, prescribed minimum qualifications, and only
those possessing such minimum qualifications were appointed.
834. It is submitted by the learned counsel for petitioners that reservation necessarily means appointment
of less meritorious persons, which in turn leads to lowering of efficiency of administration. The submission,
therefore, is that reservation should be confined to a small minority of appointments/posts, - in any event, to
not more than 30%, the figure referred to in the speech of Dr Ambedkar in the Constituent Assembly. The
mandate of Article 335, it is argued, implies that reservations should be so operated as not to affect the
efficiency of administration. Even Article 16 and the directive of Article 46, it is said, should be read subject to
the aforesaid mandate of Article 335.
836. We do not think it necessary to express ourselves at any length on the correctness or otherwise of the
opposing points of view referred to above. (It is, however, necessary to point out that the mandate of Article
335 is to take the claims of members of SC/ST into consideration, consistent with the maintenance of
efficiency of administration. It would be a misreading of the article to say that the mandate is maintenance of
efficiency of administration.) Maybe, efficiency, competence and merit are not synonymous concepts; maybe,
it is wrong to treat merit as synonymous with efficiency in administration and that merit is but a component of
the efficiency of an administrator. Even so, the relevance and significance of merit at the stage of initial
recruitment cannot be ignored. It cannot also be ignored that the very idea of reservation implies selection of a
less meritorious person. At the same time, we recognise that this much cost has to be paid, if the constitutional
promise of social justice is to be redeemed. We also firmly believe that given an opportunity, members of
these classes are bound to overcome their initial disadvantages and would compete with - and may, in some
cases, excel - members of open competition. It is undeniable that nature has endowed merit upon members of
backward classes as much as it has endowed upon members of other classes and that what is required is an
opportunity to prove it. It may not, therefore, be said that reservations are anti-meritarian. Merit there is even
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among the reserved candidates and the small difference, that may be allowed at the stage of initial recruitment
is bound to disappear in course of time. These members too will compete with and improve their efficiency
along with others.
837. Having said this, we must append a note of clarification. In some cases arising under Article 15, this
Court has upheld the removal of minimum qualifying marks, in the case of Scheduled Caste/Scheduled Tribe
candidates, in the matter of admission to medical courses. For example, in State of M.P. v. Nivedita Jain
[(1982) 1 SCR 759], admission to medical course was regulated by an entrance test (called Pre-Medical Test).
For general candidates, the minimum qualifying marks were 50% in the aggregate and 33% in each subject.
For Scheduled Caste/Scheduled Tribe candidates, however, it was 40% and 30% respectively. On finding that
Scheduled Caste/Scheduled Tribe candidates equal to the number of the seats reserved for them did not qualify
on the above standard, the Government did away with the said minimum standard altogether. The
Government’s action was challenged in this Court but was upheld. Since it was a case under Article 15, Article
335 had no relevance and was not applied. But in the case of Article 16, Article 335 would be relevant and any
order on the lines of the order of the Government of Madhya Pradesh (in Nivedita Jain) would not be
permissible, being inconsistent with the efficiency of administration. To wit, in the matter of appointment of
Medical Officers, the Government or the Public Service Commission cannot say that there shall be no
minimum qualifying marks for Scheduled Caste/Scheduled Tribe candidates, while prescribing a minimum for
others. It may be permissible for the Government to prescribe a reasonably lower standard for Scheduled
Castes/Scheduled Tribes/Backward Classes - consistent with the requirements of efficiency of administration -
it would not be permissible not to prescribe any such minimum standard at all. While prescribing the lower
minimum standard for reserved category, the nature of duties attached to the post and the interest of the
general public should also be kept in mind.
838. While on Article 335, we are of the opinion that there are certain services and positions where either
on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as
explained hereinabove, alone counts. In such situations, it may not be advisable to provide for reservations.
For example, technical posts in research and development organisations/departments/institutions, in
specialities and super-specialities in medicine, engineering and other such courses in physical sciences and
mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts
at the higher echelons e.g., Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and
Technicians in nuclear and space application, provision for reservation would not be advisable.
839. As a matter of fact, the impugned Memorandum dated August 13, 1990 applies the rule of reservation
to “civil posts and services under the Government of India” only, which means that defence forces are
excluded from the operation of the rule of reservation though it may yet apply to civil posts in defence
services. Be that as it may, we are of the opinion that in certain services and in respect of certain posts,
application of the rule of reservation may not be advisable for the reason indicated hereinbefore. Some of them
are: (1) Defence Services including all technical posts therein but excluding civil posts. (2) All technical posts
in establishments engaged in Research and Development including those connected with atomic energy and
space and establishments engaged in production of defence equipment. (3) Teaching posts of Professors - and
above, if any. (4) Posts in super-specialities in Medicine, engineering and other scientific and technical
subjects. (5) Posts of pilots (and co-pilots) in Indian Airlines and Air India. The list given above is merely
illustrative and not exhaustive. It is for the Government of India to consider and specify the service and posts
to which the rule of reservation shall not apply but on that account the implementation of the impugned Office
Memorandum dated August 13, 1990 cannot be stayed or withheld.
840. We may point out that the services/posts enumerated above, on account of their nature and duties
attached, are such as call for highest level of intelligence, skill and excellence. Some of them are second level
and third level posts in the ascending order. Hence, they form a category apart. Reservation therein may not be
consistent with “efficiency of administration” contemplated by Article 335.
841. We may add that we see no particular relevance of Article 38(2) in this context. Article 16(4) is also a
measure to ensure equality of status besides equality of opportunity.
(Questions 9, 10 & 11 and Other Miscellaneous Questions)

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Question No. 9 : Will the extent of judicial review be limited or restricted in regard to the identification of
Backward Classes and the percentage of reservations made for such classes, to a demonstrably perverse
identification or a demonstrably unreasonable percentage?
842. It is enough to say on this question that there is no particular or special standard of judicial scrutiny in
matters arising under Article 16(4) or for that matter, under Article 15(4). The extent and scope of judicial
scrutiny depends upon the nature of the subject-matter, the nature of the right affected, the character of the
legal and constitutional provisions applicable and so on. The acts and orders of the State made under Article
16(4) do not enjoy any particular kind of immunity. At the same time, we must say that court would normally
extend due deference to the judgment and discretion of the executive – a co-equal wing –in these matters. The
political executive, drawn as it is from the people and represent as it does the majority will of the people, is
presumed to know the conditions and the needs of the people and hence its judgment in matters within its
judgment and discretion will be entitled to due weight. More than this, it is neither possible nor desirable to
say. It is not necessary to answer the question as framed.
Questions No. 10 : Whether the distinction made in the second Memorandum between ‘poorer sections’ of
the backward classes and others permissible under Article 16?
843. While dealing with Question No. 3(d), we held that that exclusion of ‘creamy layer’ must be on the
basis of social advancement (such advancement as renders them misfits in the backward classes) and not on
the basis of mere economic criteria. At the same time, we held that income or the extent of property held by a
person can be taken as a measure of social advancement and on that basis ‘creamy layer’ of a given
caste/community/occupational group can be excluded to arrive at a true backward class. Under Question No. 5,
we held that it is not impermissible for the State to categorise backward classes into backward and more
backward on the basis of their relative social backwardness. We had also given the illustration of two
occupational groups, viz., goldsmiths and vaddes (traditional stone-cutters in Andhra Pradesh); both are
included within ‘other backward classes’. If these two groups are lumped together and a common reservation
is made, the goldsmiths would walk away with all the vacancies leaving none for vaddes. From the said point
of view, it was observed, such classification among the designated backwards classes may indeed serve to help
the more backward among them to get their due. But the question now is whether clause (i) of the Office
Memorandum dated September 25, 1991 is sustainable in law. The said clause provides for preference in
favour of “poorer sections” of the backward classes over other members of the backward classes. On first
impression, it may appear that backward classes are classified into two sub-groups on the basis of economic
criteria alone and a preference provided in favour of the poorer sections of the backward classes. In our
considered opinion, however, such an interpretation would not be consistent with context in which the said
expression is used and the spirit underlying the clause nor would it further the objective it seeks to achieve.
The object of the clause is to provide a preference in favour of more backward among the “socially and
educationally backward classes”. In other words, the expression ‘poorer sections’ was meant to refer to those
who are socially and economically more backward. The use of the word ‘poorer’, in the context, is meant only
as a measure of social backwardness. (Of course, the Government is yet to notify which classes among the
designated backward classes are more socially backward, i.e., ‘poorer sections’). Understood in this sense, the
said classification is not and cannot be termed as invalid either constitutionally speaking or in law. The next
question that arises is: what is the meaning and context of the expression ‘preference’? Having regard to the
fact the backward classes are sought to be divided into two sub-categories, viz., backward and more backward,
the expression ‘preference’ must be read down to mean an equitable apportionment of the vacancies reserved
(for backward classes) among them. The object evidently could not have been to deprive the ‘backward’
altogether from benefit of reservation, which could be the result if word ‘preference’ is read literally - if the
‘more backward’ take away all the available vacancies/posts reserved for OBCs, none would remain for
‘backward’ among the OBCs. It is for this reason that we are inclined to read down the expression to mean an
equitable apportionment. This, in our opinion, is the proper and reasonable way of understanding the
expression ‘preference’ in the context in which it occurs. By giving the above interpretation, we would be
effectuating the underlying purpose and the true intention behind the clause.
844. It shall be open to the Government to notify which classes among the several designated other
backward classes are more backward for the purposes of this clause and the apportionment of reserved
vacancies/posts among ‘backward’ and “more backward”. On such notification, the clause will become
operational.

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Questions No. 11 : Whether the reservation of 10% of the posts in favour of ‘other economically backward
sections of the people who are not covered by any of the existing schemes of the reservations’ made by the
Office Memorandum dated September 25, 1991 permissible under Article 16?
845. This clause provides for a 10% reservation (in appointments/posts) in favour of economically
backward sections among the open competition (non-reserved) category. Though the criteria is not yet evolved
by the Government of India, it is obvious that the basis is either the income of a person and/or the extent of
property held by him. The impugned Memorandum does not say whether this classification is made under
clause (4) or clause (1) of Article 16. Evidently, this classification among a category outside clause (4) of
Article 16 is not and cannot be related to clause (4) of Article 16. If at all, it is relatable to clause (1). Even so,
we find it difficult to sustain. Reservation of 10% of the vacancies among open competition candidates on the
basis of income/property-holding means exclusion of those above the demarcating line from those 10% seats.
The question is whether this is constitutionally permissible? We think not. It may not be permissible to debar a
citizen from being considered for appointment to an office under the State solely on the basis of his income or
property-holding. Since the employment under the State is really conceived to serve the people (that it may
also be a source of livelihood is secondary) no such bar can be created. Any such bar would be inconsistent
with the guarantee of equal opportunity held out by clause (1) of Article 16. On this ground alone, the said
clause in the Office Memorandum dated May 25, 1991 fails and is accordingly declared as such.
846. Dr Rajeev Dhavan describes Article 15(4) as a provision envisaging programmes of positive action
and Article 16(4) as a provision warranting programmes of positive discrimination. We are afraid we may not
be able to fit these provisions into this kind of compartmentalisation in the context and scheme of our
constitutional provisions. By now, it is well settled that reservations in educational institutions and other walks
of life can be provided under Article 15(4) just as reservations can be provided in services under Article 16(4).
If so, it would not be correct to confine Article 15(4) to programmes of positive action alone. Article 15(4) is
wider than Article 16(4) inasmuch as several kinds of positive action programmes can also be evolved and
implemented thereunder (in addition to reservations) to improve the conditions of SEBCs, Scheduled Castes
and Scheduled Tribes, whereas Article 16(4) speaks only of one type of remedial measure, namely, reservation
of appointments/ posts. But it may not be entirely right to say that Article 15(4) is a provision envisaging
programmes of positive action. Indeed, even programmes of positive action may sometimes involve a degree
of discrimination. For example, if a special residential school is established for Scheduled Tribes or Scheduled
Castes at State expense, it is a discrimination against other students, upon whose education a far lesser amount
is being spent by the State. Or for that matter, take the very American cases, can it be said that they do not
involve any discrimination? They do. It is another matter that such discrimination is not unconstitutional for
the reason that it is designed to achieve an important government objective.
Desirability of a Permanent Statutory Body to Examine Complaints of Over-inclusion/Under-inclusion
847. We are of the considered view that there ought to be a permanent body, in the nature of a
Commission or Tribunal, to which complaints of wrong inclusion or non-inclusion of groups, classes and
sections in the lists of Other Backward Classes can be made. Such body must be empowered to examine
complaints of the said nature and pass appropriate orders. Its advice/opinion should ordinarily be binding upon
the Government. Where, however, the Government does not agree with its recommendation, it must record its
reasons therefor. Even if any new class/group is proposed to be included among the other backward classes,
such matter must also be referred to the said body in the first instance and action taken on the basis of its
recommendation. The body must be composed of experts in the field, both official and non-official, and must
be vested with the necessary powers to make a proper and effective inquiry. It is equally desirable that each
State constitutes such a body, which step would go a long way in redressing genuine grievances. Such a body
can be created under clause (4) of Article 16 itself - or under Article 16(4) read with Article 340 - as a
concomitant of the power to identify and specify backward class of citizens, in whose favour reservations are
to be provided. We direct that such a body be constituted both at Central level and at the level of the States
within four months from today. They should become immediately operational and be in a position to entertain
and examine forthwith complaints and matters of the nature aforementioned, if any, received. It should be open
to the Government of India and the respective State Governments to devise the procedure to be followed by
such body. The body or bodies so created can also be consulted in the matter of periodic revision of lists of
OBCs. As suggested by Chandrachud, CJ in Vasanth Kumar there should be a periodic revision of these lists
to exclude those who have ceased to be backward or for inclusion of new classes, as the case my be.
859. We may summarise our answers to the various questions dealt with and answered hereinabove:

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(1) (a) It is not necessary that the ‘provision’ under Article 16(4) should necessarily be made by the
Parliament/Legislature. Such a provision can be made by the Executive also. Local bodies, Statutory
Corporations and other instrumentalities of the State falling under Article 12 of the Constitution are
themselves competent to make such a provision, if so advised.
(b) An executive order making a provision under Article 16(4) is enforceable the moment it is
made and issued.
(2) (a) Clause (4) of Article 16 is not an exception to clause (1). It is an instance and an illustration of
the classification inherent in clause (1).
(b) Article 16(4) is exhaustive of the subject of reservation in favour of backward class of citizens,
as explained in this judgment.
(c) Reservations can also be provided under clause (1) of Article 16. It is not confined to extending
of preferences, concessions or exemptions alone. These reservations, if any, made under clause (1) have to
be so adjusted and implemented as not to exceed the level of representation prescribed for ‘backward class
of citizens’ - as explained in this Judgment.
(3) (a) A caste can be and quite often is a social class in India. If it is backward socially, it would be a
backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational
groups, sects and denominations, which for historical reasons, are socially backward. They too represent
backward social collectivities for the purposes of Article 16(4).
(b) Neither the Constitution nor the law prescribes the procedure or method of identification of
backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method.
It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks
convenient and so long as its survey covers the entire populace, no objection can be taken to it.
Identification of the backward classes can certainly be done with reference to castes among, and along
with, other occupational groups, classes and sections of people. One can start the process either with
occupational groups or with castes or with some other groups. Thus one can start the process with the
castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out
whether it satisfies the criteria. If it does –what emerges is a “backward class of citizens” within the
meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other
occupational groups, communities and classes, so as to cover the entire populace. The central idea and
overall objective should be to consider all available groups, sections and classes in society. Since caste
represents an existing, identifiable social group/class encompassing an overwhelming minority of the
country’s population, one can well begin with it and then go to other groups, sections and classes.
(c) It is not correct to say that the backward class of citizens contemplated in Article 16(4) is the
same as the socially and educationally backward classes referred to in Article 15(4). It is much wider. The
accent in Article 16(4) is on social backwardness. Of course, social, educational and economic
backwardness are closely intertwined in the Indian context.
(d) ‘Creamy layer’ can be, and must be excluded.
(e) It is not necessary for a class to be designated as a backward class that it is situated similarly to
the Scheduled Castes/Scheduled Tribes.
(f) The adequacy of representation of a particular class in the services under the State is a matter
within the subjective satisfaction of the appropriate Government. The judicial scrutiny in that behalf is the
same as in other matters within the subjective satisfaction of an authority.
(4) (a) A backward class of citizens cannot be identified only and exclusively with reference to
economic criteria.
(b) It is, of course, permissible for the Government or other authority to identify a backward class
of citizens on the basis of occupation-cum-income, without reference to caste, if it is so advised.
(5) There is no constitutional bar to classify the backward classes of citizens into backward and more
backward categories.
(6) (a) and (b) The reservations contemplated in clause (4) of Article 16 should not exceed 50%.
While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations
inherent in the great diversity of this country and the people. It might happen that in far-flung and remote
areas the population inhabiting those areas might, on account of their being out of the mainstream of
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national life and in view of the conditions peculiar to and characteristic of them need to be treated in a
different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to
be exercised and a special case made out.
(c) The rule of 50% should be applied to each year. It cannot be related to the total strength of the
class, category, service or cadre, as the case may be.
(d) Devadasan was wrongly decided and is accordingly over-ruled to the extent it is inconsistent
with this judgment.
(7) Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall,
however, have only prospective operation and shall not affect the promotions already made, whether made
on regular basis or on any other basis. We direct that our decision on this question shall operate only
prospectively and shall not affect promotions already made, whether on temporary, officiating or
regular/permanent basis. It is further directed that wherever reservations are already provided in the matter
of promotion - be it Central Services or State Services, or for that matter services under any Corporation,
authority or body falling under the definition of ‘State’ in Article 12 - such reservations may continue in
operation for a period of five years from this day. Within this period, it would be open to the appropriate
authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of
Article 16(4). If any authority thinks that for ensuring adequate representation of ‘backward class of
citizens’ in any service, class or category, it is necessary to provide for direct recruitment therein, it shall
be open to it to do so. It would not be impermissible for the State to extend concessions and relaxations to
members of reserved categories in the matter of promotion without compromising the efficiency of the
administration.
(8) While the rule of reservation cannot be called anti-meritarian, there are certain services and posts
to which it may not be advisable to apply the rule of reservation.
(9) There is no particular or special standard of judicial scrutiny applicable to matters arising under
Article 16(4).
(10) The distinction made in the impugned Office Memorandum dated September 25, 1991 between
‘poorer sections’ and others among the backward classes is not invalid, if the classification is understood
and operated as based upon relative backwardness among the several classes identified as Other Backward
Classes, as explained in paras 843-844 of this Judgment.
(11) The reservation of 10% of the posts in favour of ‘other economically backward sections of the
people who are not covered by any of the existing schemes of the reservation’ made in the impugned
Office Memorandum dated September 25, 1991 is constitutionally invalid and is accordingly struck down.
(13) The Government of India and the State Governments have the power to, and ought to, create a
permanent mechanism - in the nature of a Commission - for examining requests of inclusion and
complaints of over-inclusion or non-inclusion in the list of OBCs and to advise the Government, which
advice shall ordinarily be binding upon the Government. Where, however, the Government does not
accept the advice, it must record its reasons therefor.
(14) In view of the answers given by us herein and the directions issued herewith, it is not necessary
to express any opinion on the correctness and adequacy of the exercise done by the Mandal Commission.
It is equally unnecessary to send the matters back to the Constitution Bench of five Judges.
860. For the sake of ready reference, we also record our answers to questions as framed by the counsel
for the parties and set out in para 681. Our answers question-wise are:
(1) Article 16(4) is not an exception to Article 16(1). It is an instance of classification inherent in
Article 16(1). Article 16(4) is exhaustive of the subject of reservation in favour of backward classes,
though it may not be exhaustive of the very concept of reservation. Reservations for other classes can be
provided under clause (1) of Article 16.
(2) The expression ‘backward class’ in Article 16(4) takes in ‘Other Backward Classes’, SCs, STs and
may be some other backward classes as well. The accent in Article 16(4) is upon social backwardness.
Social backwardness leads to educational backwardness and economic backwardness. They are mutually
contributory to each other and are intertwined with low occupations in the Indian society. A caste can be
and quite often is a social class in India. Economic criterion cannot be the sole basis for determining the
backward class of citizens contemplated by Article 16(4). The weaker sections referred to in Article 46 do
include SEBCs referred to in Article 340 and covered by Article 16(4).
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(3) Even under Article 16(1), reservations cannot be made on the basis of economic criteria alone.
(4) The reservations contemplated in clause (4) of Article 16 should not exceed 50%. While 50% shall
be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the
great diversity of this country and the people. It might happen that in far-flung and remote areas the
population inhabiting those areas might, on account of their being out of the mainstream of national life
and in view of the conditions peculiar to and characteristic of them need to be treated in a different way,
some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised
and a special case made out.
For applying this rule, the reservations should not exceed 50% of the appointments in a grade, cadre or
service in any given year. Reservation can be made in a service or category only when the State is satisfied
that representation of backward class of citizens therein is not adequate.
To the extent, Devadasan is inconsistent herewith, it is over-ruled.
(5) There is no constitutional bar to classification of backward classes into more backward and
backward classes for the purposes of Article 16(4). The distinction should be on the basis of degrees of
social backwardness. In case of such classification, however, it would be advisable - nay, necessary - to
ensure equitable distribution amongst the various backward classes to avoid lumping so that one or two
such classes do not eat away the entire quota leaving the other backward classes high and dry.
For excluding ‘creamy layer’, an economic criterion can be adopted as measure of social
advancement.
(6) A ‘provision’ under Article 16(4) can be made by an executive order. It is not necessary that it
should be made by Parliament/Legislature.
(7) No special standard of judicial scrutiny can be predicated in matters arising under Article 16(4). It
is not possible or necessary to say more than this under this question.
(8) Reservation of appointments or posts under Article 16(4) is confined to initial appointment only
and cannot extend to providing reservation in the matter of promotion. We direct that our decision on this
question shall operate only prospectively and shall not affect promotions already made, whether on
temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are
already provided in the matter of promotion - be it Central Services or State Services, or for that matter
services under any Corporation, authority or body falling under the definition of ‘State’ in Article 12 –such
reservations may continue in operation for a period of five years from this day. Within this period, it would
be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the
achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate
representation of ‘backward class of citizens’ in any service, class or category, it is necessary to provide
for direct recruitment therein, it shall be open to it to do so.
The following Directions are given to the Government of India, the State Governments and the
Administration of Union Territories
861. (A) The Government of India, each of the State Governments and the Administrations of Union
Territories shall, within four months from today, constitute a permanent body for entertaining, examining and
recommending upon requests for inclusion and complaints of over-inclusion and under-inclusion in the lists of
other backward classes of citizens. The advice tendered by such body shall ordinarily be binding upon the
Government.
(B) Within four months from today the Government of India shall specify the bases, applying the relevant
and requisite socio-economic criteria to exclude socially advanced persons/sections (‘creamy layer’) from
‘Other Backward Classes’. The implementation of the impugned O.M. dated August 13, 1990 shall be subject
to exclusion of such socially advanced persons (‘creamy layer’).
This direction shall not however apply to States where the reservations in favour of backward classes are
already in operation. They can continue to operate them. Such States shall however evolve the said criteria
within six months from today and apply the same to exclude the socially advanced persons/sections from the
designated ‘Other Backward Classes’.
(C) It is clarified and directed that any and all objections to the criteria that may be evolved by the
Government of India and the State Governments in pursuance of the direction contained in clause (B) of para
861 as well as to the classification among backward classes and equitable distribution of the benefits of
reservations among them that may be made in terms of and as contemplated by clause (i) of the Office
Memorandum dated September 25, 1991, as explained herein, shall be preferred only before this Court and not
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before or in any other High Court or other Court or Tribunal. Similarly, any petition or proceeding questioning
the validity, operation or implementation of the two impugned Office Memorandums, on any grounds
whatsoever, shall be filed or instituted only before this Court and not before any High Court or other Court or
Tribunal.
862. The Office Memorandum dated August 13, 1990 impugned in these writ petitions is accordingly held
valid and enforceable subject to the exclusion of the socially advanced members/sections from the notified
‘Other Backward Classes’, as explained in para 861(B).
863. Clause (i) of the Office Memorandum dated September 25, 1991 requires - to uphold its validity - to
be read, interpreted and understood as intending a distinction between backward and more backward classes
on the basis of degrees of social backwardness and a rational and equitable distribution of the benefits of the
reservations amongst them. To be valid, the said clause will have to be read, understood and implemented
accordingly.
864. Clause (ii) of the Office Memorandum dated September 25, 1991 is held invalid and inoperative.

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Constitutional Validity of Reservations for OBCs for Admissions in Educational
Institutions
Ashoka Kumar Thakur v. Union of India

(2008) 6 SCC 1
K.G. BALAKRISHNAN, C.J. – (Majority) 6. Reservation is one of the many tools that are used to
preserve and promote the essence of equality, so that disadvantaged groups can be brought to the forefront
of civil life. It is also the duty of the State to promote positive measures to remove barriers of inequality
and enable diverse communities to enjoy the freedoms and share the benefits guaranteed by the
Constitution. In the context of education, any measure that promotes the sharing of knowledge,
information and ideas, and encourages and improves learning, among India's vastly diverse classes
deserves encouragement. To cope with the modern world and its complexities and turbulent problems,
education is a must and it cannot remain cloistered for the benefit of a privileged few. Reservations
provide that extra advantage to those persons who, without such support, can forever only dream of
university, education, without ever being able to realize it. This advantage is necessary.
7. Dr. Rajendra Prasad, at the concluding address of the Constituent Assembly, stated in the following
words:
To all we give the assurance that it will be our endeavour to end poverty and squalor and its
companions, hunger and disease; to abolish distinction and exploitation and to ensure decent
conditions of living. We are embarking on a great task. We hope that in this we shall have the
unstinted service and co-operation of all our people and the sympathy and support of all the
communities....
8. It must also be borne in mind that many other democracies face similar problems and grapple with
issues of discrimination, in their own societal context. Though their social structure may be markedly different
from ours, the problem of inequality in the larger context and the tools used to combat it may be common.
9. We are conscious of the fact that any reservation or preference shall not lead to reverse discrimination.
The Constitution (Ninety- Third) Amendment Act, 2005 and the enactment of Act 5 of 2007 giving reservation
to Other Backward Classes (OBCs), Scheduled Castes (SCs) and Scheduled Tribes (STs) created mixed
reactions in the society. Though the reservation in favour of SC and ST is not opposed by the petitioners, the
reservation of 27% in favour of Other Backward Classes/Socially and educationally backward classes is
strongly opposed by various petitioners in these cases. Eminent Counsel appeared both for the petitioners and
respondents. The learned Solicitor General and Additional Solicitor General appeared and expressed their
views. We have tried to address, with utmost care and attention, the various arguments advanced by the
learned Counsel and we are greatly beholden to all of them for the manner in which they have analysed and
presented the case before us which is of great importance, affecting large sections of the community.
10. By the Constitution (Ninety-Third Amendment) Act, 2005, Clause (5) was inserted in Article 15 of the
Constitution which reads as under:
Nothing in this article or in Sub-clause (g) of Clause (1) of Article 19 shall prevent the State from
making any special provision, by law, for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such
special provisions relate to their admission to the educational institutions including private educational
institutions, whether aided or unaided by the State, other than the minority educational institutions
referred to in Clause (1) of Article 30.
11. In Unni Krishnan, J.P. v. State of Andhra Pradesh [1993 (1) SCC 645], it was held that right to
establish educational institutions can neither be a trade or business nor can it be a profession within the
meaning of Article 19(1)(g). This was overruled in T.M.A. Pai Foundation v. State of Karnataka [(2002) 8
SCC 481], wherein it was held that all citizens have the fundamental right to establish and administer
educational institutions under Article 19(1)(g) and the term “occupation” in Article 19(1)(g) comprehends the
establishment and running of educational institutions and State regulation of admissions in such institutions
would not be regarded as an unreasonable restriction on that fundamental right to carry on business under
Article 19(6) of the Constitution. Education is primarily the responsibility of the State Governments. The
Union Government also has certain responsibility specified in the Constitution on matters relating to
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institutions of national importance and certain other specified institutions of higher education and promotion of
educational opportunities for the weaker sections of society. The Parliament introduced Article 15(5) by The
Constitution (Ninety-Third Amendment) Act, 2005 to enable the State to make such provision for the
advancement of SC, ST and Socially and Educationally Backward Classes (SEBC) of citizens in relation to a
specific subject, namely, admission to educational institutions including private educational institutions
whether aided or unaided by the State notwithstanding the provisions of Article 19(1)(g). In the Statement of
Objects and Reasons of the Constitution (Ninety-Third Amendment) Act, 2005 it has been stated that:
At present, the number of seats available in aided or State maintained institutions, particularly in
respect of professional education, is limited in comparison to those in private unaided institutions.
To promote the educational advancement of the socially and educationally backward classes of
citizens, i.e., the OBCs or the Scheduled Castes ad Scheduled Tribes in matters of admission of
students belonging to these categories in unaided educational institutions other than the minority
educational institutions referred to Clause (1) of Article 30 of the Constitution, it is proposed to
amplify Article 15. The new Clause (5) shall enable the Parliament as well as the State Legislatures to
make appropriate laws for the purposes mentioned above.
12. After the above Constitution (Ninety-Third Amendment) Act, 2005, the Parliament passed The Central
Educational Institutions (Reservation in Admission) Act, 2006 (Act 5 of 2007).
13. Section 3 of Act 5 of 2007 provides for reservation of 15% seats for Scheduled Castes, 7% seats for
Scheduled Tribes and 27% for Other Backward Classes in Central Educational Institutions. The said section is
extracted below:
3. The reservation of seats in admission and its extent in a Central Educational Institution shall
be provided in the following manner, namely:
(i) out of the annual permitted strength in each branch of study or faculty, fifteen per cent seats
shall be reserved for the Scheduled Castes;
(ii) out of the annual permitted strength in each branch of study or faculty, seven and one-half
per cent seats shall be reserved for the Scheduled Tribes;
(iii) out of the annual permitted strength in each branch of study or faculty, twenty-seven per
cent seats shall be reserved for the Other Backward Classes.
14. “Central Educational Institution” has been defined under Section 2(d) of the Act as follows:
2(d) “Central Educational Institution” means -
(i) a university established or incorporated by or under a Central Act;
(ii) an institution of national importance set up by an Act of Parliament;
(iii) an institution, declared as a deemed University under section 3 of the University Grants
Commission Act, 1956, and maintained by or receiving aid from the Central Government;
(iv) an institution maintained by or receiving aid from the Central Government, whether directly
or indirectly, and affiliated to an institution referred to in Clause (i) or Clause (ii), or a constituent unit
of an institution, referred to in Clause (iii);
(v) an educational institution set up by the Central Government under the Societies Registration
Act, 1860.
15. The percentage of reservation to various groups such as Scheduled Castes, Scheduled Tribes and Other
Backward Classes are with reference to the annual permitted strength of the Central Educational Institutions
and the "annual permitted strength" is defined under Section 2(b) of the Act as follows:
2(b) “annual permitted strength” means the number of seats, in a course or programme for
teaching or instruction in each branch of study or faculty authorized by an appropriate authority for
admission of students to a Central Educational Institution.
16. Section 4 of the Act specifically says that the provisions of Section 3 shall apply to certain institutions.
Section 4 reads as under:
4. The provisions of Section 3 of this Act shall not apply to -
(a) a Central Educational Institution established in the tribal areas referred to in the Sixth
Schedule to the Constitution;
(b) the institutions of excellence, research institutions, institutions of national and strategic
importance specified in the Schedule to this Act;
Provided that the Central Government may, as and when considered necessary, by notification in
the Official Gazette, amend the Schedule;
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(c) a Minority Educational Institution as defined in this Act;
(d) a course or programme at high levels of specialization, including at the post-doctoral level,
within any branch or study or faculty, which the Central Government may, in consultation with the
appropriate authority, specify.
17. “Minority Educational Institution” is defined in Section 2(f) of the Act as follows:
“Minority Educational Institution” means an institution established and administered by the
minorities under Clause (1) of article 30 of the Constitution and so declared by an Act of Parliament
or by the Central Government or declared as a Minority Educational Institution under the National
Commission for Minority Educational Institutions Act, 2004.
18. Section 2(g) defines “Other Backward Classes” as under:
“Other Backward Classes” means the class or classes of citizens who are socially and
educationally backward, and are so determined by the Central Government.
19. Clause 2(h) defines “Scheduled Castes” and Clause 2(i) defines "Scheduled Tribes" as under:
“Scheduled Castes” means the Scheduled Castes notified under Article 341 of the Constitution;
“Scheduled Tribes” means the Scheduled Tribes notified under Article 342 of the Constitution.
20. Section 5 of the Act mandates the increase of seats in the Central Educational Institutions by providing
reservation to Scheduled Castes, Scheduled Tribes and Other Backward Classes. Section 5 reads as follows:
5 (1) Notwithstanding anything contained in Clause (iii) of section 3 and in any other law for the
time being in force, every Central Educational Institution shall, with the prior approval of the
appropriate authority, increase the number of seats in a branch of study or faculty over and above its
annual permitted strength so that the number of seats, excluding those reserved for the persons
belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes, is not less
than the number of such seats available for the academic session immediately preceding the date of
the coming into force of this Act.
(2) Where, on a representation by any Central Educational Institution, the Central Government, in
consultation with the appropriate authority, is satisfied that for reasons of financial, physical or
academic limitations or in order to maintain the standards of education, the annual permitted strength
in any branch of study or faculty of such institution cannot be increased for the academic session
following the commencement of this Act, it may permit by notification in the Official Gazette, such
institution to increase the annual permitted strength over a maximum period of three years beginning
with the academic session following the commencement of this Act; and then, the extent of
reservation for the Other Backward Classes as provided in Clause (iii) of section 3 shall be limited for
that academic session in such manner that the number of seats available to the Other Backward
Classes for each academic session are commensurate with the increase in the permitted strength for
each year.
21. By virtue of definition of the “Central Educational Institutions” under Clause (d)(iv) of Section 2 of the
Act, all institutions maintained by or receiving aid from the Central Government whether directly or indirectly,
and affiliated to any university or deemed university or institution of national importance, in addition to
universities which are established or incorporated under a Central Act, institutions of national importance set
up by Acts of Parliament, deemed universities maintained or receiving aid from Central Government and
institutions set up by the Central Government with the Societies Registration Act, 1960, are brought under the
purview of reservation under Section 3 of the Act. The object of the Act is to introduce in reservation in only
such institutions which are defined as “Central Educational Institutions” and not any other private unaided
institutions.
22. The Statement of Objects and Reasons for the Act gives the object of the Act thus:
Greater access to higher education including professional education, to a large number of students
belonging to the socially and educationally backward classes of citizens or for the Scheduled Castes
and Scheduled Tribes, has been a matter of major concern. The reservation of seats for the Scheduled
Castes, the Scheduled Tribes and the Other Backward Classes of citizens (OBCs) in admission to
educational institutions is derived from the provisions of Clause (4) of Article 15. At present, the
number of seats available in aided or State maintained institutions, particularly in respect of
professional education, is limited in comparison to those in private unaided institutions.

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2. It is laid down in Article 46, as a directive principle of State policy, that the State shall promote
with special care the educational and economic interests of the weaker sections of the people and
protect them from social injustice. Access to education is important in order to ensure advancement of
persons belonging to the Scheduled Castes, the Scheduled Tribes and the socially and educationally
backward classes also referred to as the OBCs.
3. Clause (1) of Article 30 provides the right to all minorities to establish and administer
educational institutions of their choice. It is essential that the rights available to minorities are
protected in regard to institutions established and administered by them. Accordingly, institutions
declared by the State to be minority institutions under Clause (1) of Article 30 are omitted from the
operation of the proposal.
4. To promote the educational advancement of the socially and educationally backward classes of
citizens i.e., the OBCs or of the Scheduled Castes and Scheduled Tribes in matters of admission of
students belonging to these categories in unaided educational institutions, other than the minority
educational institutions referred to in Clause (1) of Article 30 of the Constitution, it is proposed to
amplify Article 15. The new Clause (5) shall enable the Parliament as well as the State Legislatures to
make appropriate laws for the purposes mentioned above.
23. The Constitution (Ninety-Third Amendment) Act, 2005, by which Article 15(5) was inserted in the
Constitution, is challenged in these petitions, on various grounds. In some of the writ petitions which have
been filed after the passing of Act 5 of 2007, the challenge is directed against the various provisions of the Act
5 of 2007. Initially, these writ petitions were heard by a Bench of two Judges. Considering the constitutional
importance of these questions, all these writ petitions were referred to a Constitution Bench.
27. The validity of Constitution (Ninety-Third Amendment) Act, 2005 was seriously challenged by
arguing that the amendment is destructive of basic structure of the Constitution. The learned Counsel was of
the view that both the Act as well as the Constitution (Ninety-Third Amendment) Act, 2005 have to be
declared ultra vires the Constitution.
39. Fundamental Rights and Directive Principles are both complementary and supplementary to each
other. Preamble is a part of the Constitution and the edifice of our Constitution is built upon the concepts
crystallized in the Preamble. Reference was made to the observations made by Chief Justice Sikri in
Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], wherein it was argued that the Constitution
should be read and interpreted in the light of the grand and noble vision expressed in the Preamble. The
Preamble secures and assures to all citizens justice, social, economic and political and it assures the equality of
status and of opportunity. Education and the economic well-being of an individual give a status in society.
When a large number of OBCs, SCs and STs get better educated and get into Parliament, legislative
assemblies, public employment, professions and into other walks of public life, the attitude that they are
inferior will disappear. This will promote fraternity assuring the dignity of the individual and the unity and
integrity of the nation. The single most powerful tool for the upliftment and progress of such diverse
communities is education.
40. The Fundamental Rights in Part III are not to be read in isolation. All rights conferred in Part III of the
Constitution are subject to at least other provisions of the said Part III. The Directive Principles of State Policy
in Part IV of the Constitution are equally as important as Fundamental Rights. Part IV is made not enforceable
by Court for the reason inter alia as to financial implications and priorities. Principles of Part IV have to be
gradually transformed into fundamental rights depending upon the economic capacity of the State. Article 45
is being transformed into a fundamental right by 86th Amendment of the Constitution by inserting Article 21A.
Clause 2 of Article 38 says that, "the State shall, in particular, strive to minimize the inequalities in income
and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but
also amongst groups of people residing in different areas or engaged in different vocations". Under Article 46,
"the State shall promote with special care the educational and economic interests of the weaker sections of the
people and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from
social injustice and all forms of exploitation". It is submitted that the Ninety-Third Constitutional Amendment
was brought into force to bring about economic and social regeneration of the teeming millions who are
steeped in poverty, ignorance and social backwardness. Shri K. Parasaran, learned Senior Counsel, contended
that the concept of basic structure is not a vague concept and it was illustrated in the judgment in Kesavananda
Bharati case. It was pointed out that the supremacy of the Constitution, republican and democratic form of
Government and sovereignty of the country, secular and federal character of the Constitution, demarcation of
power between the legislature, the executive and the judiciary, the dignity of the individual (secured by the
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various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV), the
unity and the integrity of the nation are some of the principles of basic structure of the Constitution. It was
contended that when the constitutional validity of a statute is considered, the cardinal rule to be followed is to
look at the Preamble to the Constitution as the guiding light and the Directive Principles of State Policy as a
book of interpretation. On a harmonious reading of the Preamble, Part III and Part IV, it is manifest that there
is a Constitutional promise to the weaker sections / SEBCs and this solemn duty has to be fulfilled.
41. It was pointed out that the observations in Champakam Dorairajan that the Directive Principles are
subordinate to the Fundamental Rights is no longer good law after the decision of the Kesavanda Bharati case
and other decisions of this Court. It was pointed out that the de facto inequalities which exist in the society are
to be taken into account and affirmative action by way of giving preference to the socially and economically
disadvantaged persons or inflicting handicaps on those more advantageously placed is to be made in order to
bring about real equality. It is submitted that special provision for advancement of any socially and
educationally backward citizens may be made by determining the socially and educationally backward classes
on the basis of caste. Article 15(4) neutralized the decision in Champakam Dorairajan case. It was enacted by
the Provisional Parliament which consisted of the very same Members who constituted the Constituent
Assembly. Our Constitution is not caste blind and the Constitution prohibits discrimination based 'only on
caste' and not 'caste and something else'.
42. In Unni Krishnan case it was held that Article 19(1)(g) is not attracted for establishing and running
educational institutions. But this decision was overruled in T.M.A. Pai Foundation and it was held that
establishing and running an educational institution is an "occupation" within the meaning of Article 19(1)(g).
In P.A. Inamdar case, it was held that the private educational institutions, including minority institutions, are
free to admit students of their own choice and the State by regulatory measures cannot control the admission. It
was held that the State cannot impose reservation policy to unaided institutions. The above ruling disabled the
State to resort to its enabling power under Article 15(4) of the Constitution. It was argued by Shri Parasaran
that the above rulings necessitated the enactment of The Constitution (Ninety-Third Amendment) Act, 2005 by
inserting Article 15(5) through which enabling power was conferred on the Parliament and the State
Legislatures, so that they would have the legislative competence to pass a law providing for reservation in
educational institutions which will not be hit by Article 19(1)(g). But rights of minorities under Article 30 are
not touched by Article 15(5).
43. In Kesavananda Bharati it was held that the fundamental rights may not be abrogated but they can be
abridged. The validity of the 24th Amendment of the Constitution abridging the fundamental rights was upheld
by the Court. The right under Article 19(1)(f) has been completely abrogated by the 44th Amendment of the
Constitution which is permissible for the constituent power to abridge the Fundamental Rights especially for
reaching the goal of the Preamble of the Constitution. It is an instance of transforming the principles of Part IV
into Part III whereby it becomes enforceable. All rights conferred in Part III of the Constitution are subject to
other provisions in the same Part. Article 15(4) introduced by the 1st Amendment to the Constitution is a
similar instance of abridging of Fundamental Rights of the general category of citizens to ensure the
Fundamental Rights of OBCs, SCs and STs. Article 15(5) is a similar provision and is well within the
Constituent power of amendment. Article 15(5) is an enabling provision and vests power in the Parliament and
the State legislatures.
44. There is vital distinction between the vesting of a power and the exercise of power and the manner of
its exercise. It would only enable the Parliament and the State legislatures to make special provisions by law
for enforcement of any socially and educationally backward class of citizens or for Scheduled Castes and
Scheduled Tribes relating to their admission to educational institutions including private educational
institutions.
45. As regards exemption of minority educational institutions in Article 15(5), it was contended that this
was done to conform with the Constitutional mandate of additional protection for minorities under Article 30.
It was argued that Article 15(5) does not override Article 15(4). They have to be read together as
supplementary to each other and Article 15(5) being an additional provision, there is no conflict between
Article 15(4) and Article 15(5). Article 15(4), 15(5), 29(2), 30(1), and 30(2) all together constitute a Code in
relation to admission to educational institutions. They have to be harmoniously construed in the light of the
Preamble and Part IV of the Constitution. It was also contended that the Article 15(5) does not interfere with
the executive power of the State and there is no violation of the proviso to Article 368.
46. The Ninety-Third Constitutional Amendment does not specifically or impliedly make any change in
Article 162. Article 15(5) does not seek to make any change in Article 162 either directly or indirectly. The
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field of legislation as to "education" was in Entry 11 of List II. By virtue of the 42 nd Amendment of the
Constitution, "education", which was in Entry 11 in List II, was deleted and inserted as Entry 25 in List III.
The executive power of the State is not touched by the present Constitutional Amendment.
47. Article 15(5) does not abrogate the fundamental right enshrined under Article 19(1)(g). If at all there is
an abridgement of Fundamental Right, it is in a limited area of admission to educational institutions and such
abridgement does not violate the basic structure of the Constitution. In any way, Constitutional Amendments
giving effect to Directive Principles of the State Policy would not offend the basic structure of the
Constitution.
48. The Right to Equality enshrined in our Constitution is not merely a formal right or a vacuous
declaration. Affirmative action though apparently discriminatory is calculated to produce equality on a broader
basis. By eliminating de facto inequalities and placing the weaker sections of the community on a footing of
equality with the stronger and more powerful sections so that each member of the community whatever is his
birth, occupation or social position may be, enjoys equal opportunity of using to the full, his natural
endowments of physique, of character and of intelligence.
54. It was held in E.V. Chinnaiah v. State of Andhra Pradesh [(2005) 1 SCC 394] that the SCs and STs
form a single class. The observations in Nagaraj case cannot be construed as requiring exclusion of creamy
layer in SCs and STs. Creamy layer principle was applied for the identification of backward classes of citizens.
And it was specifically held in Indra Sawhney case, that the above discussion was confined to Other
Backward Classes and has no relevance in the case of Scheduled Tribes and Scheduled Castes. The
observations of the Supreme Court in Nagaraj case should not be read as conflicting with the decision in
Indra Sawhney case. The observations in Nagaraj case as regards SCs and STs are obiter. In regard to SCs
and STs, there can be no concept of creamy layer.
55. Once the President of India has determined the list of Scheduled Castes and Scheduled Tribes, it is
only by a law made by the Parliament that there can be exclusion from the list of Scheduled Castes or
Scheduled Tribes. As far as OBCs are concerned, the principle of exclusion of creamy lawyer is applicable
only for Article 16(4). It has no application to Article 15(4) or 15(5) as education stands on a different footing.
56. Equality of opportunity of education is a must for every citizen and the doctrine of “creamy layer” is
inapplicable and inappropriate in the context of giving opportunity for education. In the matter of education
there cannot be any exclusion on the ground of creamy layer. Such exclusion would only be counter
productive and would retard the development and progress of the groups and communities and their eventual
integration with the rest of the society.
57. It was further argued that Article 15(4) and 15(5) are provisions of power coupled with duty. It is the
constitutional duty to apply these principles in the governance of the country and in making law for the reason
that it is a constitutional promise of social justice which has to be redeemed.
Un-touchability is abolished and its practice thereof is punishable by the law of the Union.
74. The Constitution never prohibits the practice of caste and casteism. Every activity in Hindu society,
from cradle to grave is carried on solely on the basis of one's caste. Even after death, a Hindu is not allowed to
be cremated in the crematorium which is maintained for the exclusive use of the other caste or community.
Dalits are not permitted to be buried in graves or cremated in crematoriums where upper caste people bury or
cremate their dead. Christians have their own graveyards. Muslims are not allowed to be buried in the Hindu
crematoriums and vice-versa. Thus, caste rules the roost in the life of a Hindu and even after his death. In such
circumstances, it is entirely fallacious to advance this argument on the ground that the Constitution has
prohibited the use of caste. It was argued what the Constitution aims at is achievement of equality between the
castes and not elimination of castes.
75. The learned Senior Counsel points out that it would be utopian to expect that by ignoring caste, the
castes will perish. And the Counsel contended the Constitution has not abolished the caste system much less
has it prohibited its use. The Counsel pointed out that the Constitutional Amendment under the impugned Act
in favour of backward classes is an unprecedented leap taking the higher education in the country forward,
without depriving a single seat to the forward castes. And the advanced castes, with a population of less than
20% would still be able to get 50% of the seats in the name of merit disproportionate to their known proportion
of their population. It is contended that without the advancement of SCs, STs and OBCs constituting over 80%
population and mainly living in rural areas, it will not be possible to take the nation forward. And the students
who are admitted under the reserved quota have performed much better than the students admitted on the basis
of merit. The learned Counsel also placed reliance on the Moily Report - Case studies from four States.
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76. The main challenge in these writ petitions is the constitutional validity of the Act 5 of 2007. This
legislation was passed by Parliament consequent upon The Constitution (Ninety-Third Amendment) Act,
2005, by which Sub-article (5) was inserted in Article 15 of the Constitution. The constitutionality of this
amendment has also been challenged in the various writ petitions filed by the petitioners. As the Act itself is
based on the Constitution (Ninety-Third Amendment) Act, 2005, the validity of the Act depends on the fact
whether the Constitution (Ninety-Third Amendment) Act, 2005 itself is valid or not.
77. T.M.A. Pai Foundation held that a private unaided educational institution has the fundamental right
under Article 19(1)(g) of the Constitution as the running of an educational institution was treated as an
"occupation" and further that the State's regulation in such institutions would not be regarded as a reasonable
restriction on that fundamental right to carry on business under Article 19(6). This decision necessitated the
Ninety-Third Amendment to the Constitution since as a result of T.M.A. Pai Foundation the State would not
be in a position to control or regulate the admission in private educational institutions. At the outset, it may
have to be stated that no educational institution has come up to challenge the Constitution (Ninety-Third
Amendment) Act, 2005. The challenge about the constitutionality of the Constitution (Ninety-Third
Amendment) Act, 2005 has been advanced by the petitioners, who based their contentions on the equality
principles enunciated in Articles 14, 15 and 16 of the Constitution.
78. The Constitution (Ninety-Third Amendment) Act, 2005 is challenged on many grounds. The first
ground of attack is that if the Constitution (Ninety-Third Amendment) Act, 2005 is allowed to stand it would
be against the "basic structure" of the Constitution itself and this Amendment seriously abridges the equality
principles guaranteed under Article 15 and other provisions of the Constitution. Another contention raised by
the petitioners' Counsel is that the Golden Triangle of Articles 14, 19 and 21 is not to be altered and the
balance and structure of these constitutional provisions has been ousted by the Constitution (Ninety-Third
Amendment) Act, 2005. Yet another contention urged by Shri K.K. Venugopal, learned Senior Counsel, is that
Article 15(4) and 15(5) are mutually exclusive and under Article 15(5) the minority educational institutions are
excluded. According to him, this is a clear contravention of the secular and equality principles. The learned
Senior Counsel also pointed out that minority institutions are not severable from the purview of Article 15(5)
and therefore, the whole Constitution (Ninety-Third Amendment) Act, 2005 is to be declared illegal. Another
argument advanced by the learned Senior Counsel is that there is inconsistency between Article 15(4) and
Article 15(5) and by virtue of the Constitution (Ninety-Third Amendment) Act, 2005, the States are devoid of
their wide power under Article 15(5) to make reservation in minority educational institutions which are getting
aid from the States and thus it is violative of the very essence of equality. He further argued that the
Constitution (Ninety-Third Amendment) Act, 2005 could control the legislative and executive power of the
State and, therefore, it is not constitutionally valid. The learned Counsel had further challenged the validity of
Act 5 of 2007, with which we will deal separately.
1. Whether Ninety-Third Amendment of the Constitution is against the "basic structure" of the
Constitution?
79. The Constitution (Ninety-Third Amendment) Act, 2005, by which Clause (5) was added to Article 15
of the Constitution, is an enabling provision which states that nothing in Article 15 or in Sub-clause (g) of
Clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the
advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the
Scheduled Tribes in so far as such special provisions relate to their admission to the educational institutions
including private educational institutions, whether aided or unaided by the State. Of course, minority
educational institutions referred to in Clause (1) of Article 30 are excluded. Thus, the newly added Clause (5)
of Article 15 is sought to be applied to educational institutions whether aided or unaided. In other words, this
newly added constitutional provision would enable the State to make any special provision by law for
admission in private educational institutions whether aided or unaided. In all the petitions which have been
filed before us the main challenge is against Act 5 of 2007. Act 5 of 2007 has been enacted to provide
reservation of seats for Scheduled Castes, Scheduled Tribes and SEBCs of citizens in Central Educational
Institutions. The “Central Educational Institution” has been defined under Section 2(d) of the Act. They are
institutions established or incorporated by or under the Central Act or set up by an Act of Parliament or
deemed Universities maintained by or receiving aid from the Central Government or institutions maintained by
or receiving aid from the Central Government or educational institutions set up by the Central Government
under the Societies Registration Act, 1860. Act 5 of 2007 is not intended to provide reservation in "private
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unaided" educational institutions. None of the private unaided educational institutions have filed petitions
before us challenging the Ninety-Third Constitutional Amendment. Though the learned Counsel appearing for
the petitioners have challenged the Ninety-Third Constitutional Amendment on various grounds, they were
vis-a-vis the challenge to Act 5 of 2007. The counter to the challenge by the learned Solicitor General as well
as by Shri K. Parasaran, learned Senior Counsel was also in that context. We do not want to enter a finding as
to whether the Ninety-Third Constitutional Amendment is violative of the "basic structure" of the Constitution
so far as it relates to “private unaided” educational institutions. In the absence of challenge by private unaided
educational institutions, it would not be proper to pronounce upon the constitutional validity of that part of the
Constitutional Amendment. As the main challenge in these various petitions was only regarding the provisions
of Act 5 of 2007, which related to state maintained institutions, the challenge to the Ninety-Third
Constitutional Amendment so far as it relates to private unaided educational institutions, does not strictly arise
in these proceedings. In the absence of challenge by private unaided institutions, it may not be proper for this
Court to decide whether the Ninety-Third Constitutional Amendment is violative of the "basic structure" of the
Constitution so far as it relates to private unaided educational institutions merely because we are considering
its validity in the context of Act 5 of 2007. We feel that such questions could be decided as the main questions
that are involved in these petitions are specific regarding Act 5 of 2007, we leave open the question as to
whether the Ninety-Third Amendment to the Constitution by which Sub-clause (5) was inserted is violative of
the basic structure doctrine or not so far as it relates to "private unaided" educational institutions to be decided
in other appropriate cases. We deal only with the question of whether the Ninety-Third Constitutional
Amendment is constitutionally valid so far as it relates to the state maintained institutions and aided
educational institutions.
80. Several contentions have been advanced by the petitioners' Counsel challenging the constitutional
validity of the Constitution (Ninety-Third Amendment) Act, 2005. The main argument was on the ground that
this amendment is against the "basic structure" of the Constitution. In order to appreciate the contention of the
petitioners' Counsel, it is necessary to understand the “basic structure” theory that has been propounded in the
celebrated case of Kesavananda Bharati. This case was a decision of 13 Judge Bench of this Court. Though
the Judges were not unanimous about what the “basic structure” of the Constitution be, however, Shelat J. (at
page 280) in his judgment had indicated the following basic features of the Constitution:
The basic structure of the Constitution is not a vague concept and the apprehensions expressed on
behalf of the respondents that neither the citizen nor the Parliament would be able to understand it are
unfounded. If the historical background, the Preamble, the entire scheme of the Constitution, the
relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in
discerning that the following can be regarded as the basic elements of the constitutional structure.
(These cannot be catalogued but can only be illustrated):
1. The supremacy of the Constitution.
2. Republican and Democratic form of Government and sovereignty of the country.
3. Secular and federal character of the Constitution.
4. Demarcation of power between the legislature, the executive and the judiciary.
5. The dignity of the individual secured by the various freedoms and basic rights in Part III and
the mandate to build a welfare State contained in Part IV.
6. The unity and the integrity of the nation.
81. Sikri, CJ (at page 165-166) held that:
The true position is that every provision of the Constitution can be amended provided in the result
the basic foundation and structure of the constitution remains the same. The basic structure may be
said to consist of the following features:
(1) Supremacy of the Constitution.
(2) Republication and Democratic form of Government.
(3) Secular character of the Constitution.
(4) Separation of powers between the Legislature, the executive and the judiciary.
(5) Federal character of the Constitution.
82. The power of Parliament to amend the Constitution also was dealt with in detail and majority of the
Judges held that the fundamental rights can be amended, altered or abridged. The majority decision in
Kesavananda Bharati case overruled the decision in Golak Nath v. State of Punjab. Kesavananda Bharati
indicates the extent to which amendment of the Constitution could be carried out and lays down that the
legality of an amendment is no more open to attack than the Constitution itself. It was held that the validity of
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an ordinary law can be questioned and when it is questioned it must be justified by reference to a higher law.
In the case of the Constitution the validity is inherent and lies within itself. The Constitution generates its own
validity. The validity of the Constitution lies in the social fact of its acceptance by the community. There is a
clear demarcation between an ordinary law made in exercise of the legislative power and the constituent law
made in exercise of constitutional power. Therefore, the power to amend the Constitution is different from the
power to amend ordinary law. The distinction between the legislative power and the constitutional power is
vital in a rigid or controlled Constitution because it is that distinction which brings in the doctrine that a law
ultra vires the Constitution is void. When the Parliament is engaged in the amending process it is not
legislating, it is exercising a particular power bestowed upon it sui-generis by the amending clause in the
Constitution. Sikri, CJ, held that the expression “amendment of this Constitution” does not enable Parliament
to abrogate or take away fundamental rights or to completely change the fundamental features of the
Constitution so as to destroy its identity. Within these limits Parliament can amend every article. Shelat &
Grover JJ. (at p 291) concluded that:
Though the power to amend cannot be narrowly construed and extends to all the Articles it is not
unlimited so as to include the power to abrogate or change the identity of the Constitution or its basic
features.
83. Hegde & Mukherjee, JJ., finally concluded (at p 355) that:
The power to amend the Constitution under Article 368 as it stood before its amendment
empowered the Parliament by following the form and manner laid down in that Article, to amend each
and every Article and each and every Part of the Constitution.... Though the power to amend the
Constitution under Article 368 is a very wide power, it does not yet include the power to destroy or
emasculate the basic elements or the fundamental features of the Constitution.
84. Ray J. (as he then was) (at p 461) held that:
The Constitution is the supreme law. Third, an amendment of the Constitution is an exercise of
the constituent power. The majority view in Golak Nath case is with respect wrong. Fourth, there are
no express limitations to the power of amendment. Fifth, there are no implied and inherent limitations
on the power of amendment. Neither the Preamble nor Article 13(2) is at all a limitation on the power
of amendment. Sixth, the power to amend is wide and unlimited. The power to amend means the
power to add, alter or repeal any provision of the Constitution. There can be or is no distinction
between essential and in-essential features of the Constitution to raise any impediment to amendment
of alleged essential features.
85. Palekar, J. (at p. 632) concluded that:
The power and the procedure for the amendment of the Constitution were contained in the
unamended Article 368. An Amendment of the Constitution in accordance with the procedure
prescribed in that Article is not a 'law' within the meaning of Article 13. An amendment of the
Constitution abridging or taking away a fundamental right conferred by Part III of the Constitution is
not void as contravening the provisions of Article 13(2). There were no implied or inherent limitations
on the amending power under the unamended Article 368 in its operation over the fundamental rights.
There can be none after its amendment.
86. Khanna, J. (at p. 758, 759) concluded that:
The power to amendment under Article 368 does not include power to abrogate the Constitution
nor does it include the power to alter the basic structure or framework of the Constitution. Subject to
the retention of the basic structure or framework of the Constitution, the power of amendment is
plenary and includes within itself the power to amend the various articles of the Constitution,
including those relating to fundamental rights as well as those which may be said to relate to essential
features. No part of a fundamental right can claim immunity from amendatory process by being
described as the essence or core of that right. The power of amendment would also include within
itself the power to add, alter or repeal the various articles.
87. Mathew, J. (at p. 857) held that:
The only limitation is that the Constitution cannot be repealed or abrogated in the exercise of the
power of amendment without substituting a mechanism by which the State is constituted and
organized. That limitation flows from the language of the article itself.
88. Beg, J. (at p. 886) held that:
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The majority view in Golak Nath case, holding that Article 13 operated as a limitation upon the
powers of Constitutional amendment found in Article 368, was erroneous.
He upheld the 24th Amendment and the 25th Amendment Act including addition of Article 31C.
89. Dwivedi, J finally concluded that:
The word "amendment" in Article 368 is broad enough to authorize the varying or abridging each
and every provision of the Constitution, including Part III. There are no inherent and implied
limitations of the amendment power in Article 368.
90. Finally, Chandrachud, J. (at p. 1000) held that:
The power of amendment of the Constitution conferred by the then Article 368 was wide and
unfettered. It reached every part and provision of the Constitution.
91. A survey of the conclusions reached by the learned Judges in Kesavananda Bharati case clearly shows
that the power of amendment was very wide and even the fundamental rights could be amended or altered. It is
also important to note that the decision in RE : The Berubari Union and Exchange of Enclaves, Reference
under Article 143(1) of the Constitution of India [AIR 1960 SC 845], to the effect that preamble to the
Constitution was not part of the Constitution was disapproved in Kesavananda Bharati case and it was held
that it is a part of the Constitution and the Preamble to the Constitution is of extreme importance and the
Constitution should be read and interpreted in the light of the grand and noble visions envisaged in the
Preamble. A close analysis of the decisions in Kesavananda Bharati case shows that all the provisions of the
Constitution, including the fundamental rights, could be amended or altered and the only limitation placed is
that the basic structure of the Constitution shall not be altered. The judgment in Kesavananda Bharati case
clearly indicates what is the basic structure of the Constitution. It is not any single idea or principle like
equality or any other constitutional principles that are subject to variation, but the principles of equality cannot
be completely taken away so as to leave the citizens in this country in a state of lawlessness. But the facets of
the principle of equality could always be altered especially to carry out the Directive Principles of the State
Policy envisaged in Part IV of the Constitution. The Constitution (Ninety-Third Amendment) Act, 2005 is to
be examined in the light of the above position.
92. The basic structure of the Constitution is to be taken as a larger principle on which the Constitution
itself is framed and some of the illustrations given as to what constitutes the basic structure of the Constitution
would show that they are not confined to the alteration or modification of any of the Fundamental Rights alone
or any of the provisions of the Constitution. Of course, if any of the basic rights enshrined in the Constitution
are completely taken out, it may be argued that it amounts to alteration of the Basic Structure of the
Constitution. For example, the federal character of the Constitution is considered to be the basic structure of
the Constitution. There are large number of provisions in the Constitution dealing with the federal character of
the Constitution. If any one of the provisions is altered or modified, that does not amount to the alteration of
the basic structure of the Constitution. Various fundamental rights are given in the Constitution dealing with
various aspects of human life. The Constitution itself sets out principles for an expanding future and is
obligated to endure for future ages to come and consequently it has to be adapted to the various changes that
may take place in human affairs.
93. For determining whether a particular feature of the Constitution is part of the basic structure or not, it
has to be examined in each individual case keeping in mind the scheme of the Constitution, its objects and
purpose and the integrity of the Constitution as a fundamental instrument for the country's governance. It may
be noticed that it is not open to challenge the ordinary legislations on the basis of the basic structure principle.
State legislation can be challenged on the question whether it is violative of the provisions of the Constitution.
But as regards constitutional amendments, if any challenge is made on the basis of basic structure, it has to be
examined based on the basic features of the Constitution. It may be noticed that the majority in Kesavananda
Bharati case did not hold that all facets of Article 14 or any of the fundamental rights would form part of the
basic structure of the Constitution. The majority upheld the validity of the first part of Article 30(1)(c) which
would show that the constitutional amendment which takes away or abridges the right to challenge the validity
of an arbitrary law or violating a fundamental right under that Article would not destroy or damage the basic
structure. Equality is a multi-coloured concept incapable of a single definition as is also the fundamental right
under Article 19(1)(g). The principle of equality is a delicate, vulnerable and supremely precious concept for
our society. It is true that it has embraced a critical and essential component of constitutional identity. The
larger principles of equality as stated in Article 14, 15 and 16 may be understood as an element of the “basic
structure” of the Constitution and may not be subject to amendment, although, these provisions, intended to
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configure these rights in a particular way, may be changed within the constraints of the broader principle. The
variability of changing conditions may necessitate the modifications in the structure and design of these rights,
but the transient characters of formal arrangements must reflect the larger purpose and principles that are the
continuous and unalterable thread of constitutional identity. It is not the introduction of significant and far-
reaching change that is objectionable, rather it is the content of this change in so far as it implicates the
question of constitutional identity.
95. If any Constitutional amendment is made which moderately abridges or alters the equality principle or
the principles under Article 19(1)(g), it cannot be said that it violates the basic structure of the Constitution. If
such a principle is accepted, our Constitution would not be able to adapt itself to the changing conditions of a
dynamic human society. Therefore, the plea raised by the Petitioners' that the present Constitutional Ninety-
Third Amendment Act, 2005 alters the basic structure of the constitution is of no force. Moreover, the
interpretation of the Constitution shall not be in a narrow pedantic way. The observations made by the
Constitution Bench in Nagaraj case at page 240 are relevant:
Constitution is not an ephermal legal document embodying a set of legal rules for the passing
hour. It sets out principles for an expanding future and is intended to endure for ages to come and
consequently to be adapted to the various crisis of human affairs. Therefore, a purposive rather than a
strict literal approach to the interpretation should be adopted. A Constitutional provision must be
construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate
and take account of changing conditions and purposes so that constitutional provision does not get
fossilized but remains flexible enough to meet the newly emerging problems and challenges.
96. It has been held in many decisions that when a constitutional provision is interpreted, the cardinal rule
is to look to the Preamble to the Constitution as the guiding star and the Directive Principles of State Policy as
the 'Book of Interpretation'. The Preamble embodies the hopes and aspirations of the people and Directive
Principles set out the proximate grounds in the governance of this country.
97. Therefore, we hold that the Ninety-Third Amendment to the Constitution does not violate the “basic
structure” of the Constitution so far as it relates to aided educational institutions. Question whether reservation
could be made for SCs, STs or SEBCs in private unaided educational institutions on the basis of the Ninety-
Third Constitutional Amendment; or whether reservation could be given in such institutions; or whether any
such legislation would be violative of Article 19(1)(g) or Article 14 of the Constitution; or whether the Ninety-
Third Constitutional Amendment which enables the State Legislatures or Parliament to make such legislation -
are all questions to be decided in a properly constituted lis between the affected parties and others who support
such legislation.
2. Whether Articles 15(4) and 15(5) are mutually contradictory, hence Article 15(5) is to be held ultra vires?
98. The next contention raised by the petitioner's Counsel is that Article 15(4) and 15(5) are mutually
exclusive and contradictory. The Counsel for the petitioner, particularly the petitioner in Writ Petition (C) No.
598 of 2006, submitted that Article 15(4) was a provision and a source of legislative power for the purpose of
making reservation for Scheduled Castes (SCs) and Scheduled Tribes (STs) as well as for Socially and
Educationally Backward Classes (SEBCs) of citizens in aided minority educational institutions. And Article
15(4) was inserted after the decision of this Court in Champakam Dorairajan and Article 15(5) provides for
reservation of seats for SCs, STs and SEBCs in aided or unaided educational institutions but expressly
excludes all such reservation being made in minority educational institutions covered by Article 30(1) of the
Constitution. This, according to the Petitioner's learned Counsel, will lead to a situation where the State would
not be in a position to give reservation to SCs, STs and SEBCs even in aided minority institutions which have
got protection under Article 30(1) of the Constitution. It is argued that in view of the express provision
contained in Article 15(5), the State would no more be able to give the reservation and this according to the
petitioner's Counsel would result in annulling the endeavour of the founding fathers and the various provisions
for neutralizing the exclusion of SCs & STs from the mainstream of society and development for centuries.
99. It is argued by petitioners' learned Counsel that Article 15(4) and 15(5) both commence with an
exclusionary clause excluding the operation of the rest of the Article 15, and hence would result in a conflict to
the extent of inconsistency. According to the petitioners', Article 15(5) is a special provision relating to
educational institutions and being a later amendment, it would prevail over Article 15(4), thus in substance and
effect resulting in an amendment of Article 15(4) of the Constitution. According to the petitioner's Counsel,
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“nothing in this Article” in Article 15(5) would include Article 15(4) also and in view of this inconsistent
provision, Article 15(5) has to be held to be inconsistent with 15(4) and thus non-operative.
100. Both Article 15(4) and 15(5) are enabling provisions. Article 15(4) was introduced when the
“Communal G.O.” in the State of Madras was struck down by this Court in Champakam Dorairajan case. In
Unni Krishnan, this Court held that Article 19(1)(g) is not attracted for establishing and running educational
institutions. However, in T.M.A. Pai Foundation case, it was held that the right to establish and running
educational institutions is an occupation within the meaning of Article 19(1)(g). The scope of the decision in
T.M.A. Pai Foundation case was later explained in P.A. Inamdar case. It was held that as regards unaided
institutions, the State has no control and such institutions are free to admit students of their own choice. The
said decision necessitated the enactment of the Constitution Ninety-Third Amendment Act, 2005. Thus, both
Article 15(4) and 15(5) operate in different areas. The “nothing in this Article” [mentioned at the beginning of
Article 15(5)] would only mean that the nothing in this Article which prohibit the State on grounds which are
mentioned in Article 15(1) alone be given importance. Article 15(5) does not exclude 15(4) of the
Constitution. It is a well settled principle of constitutional interpretation that while interpreting the provisions
of Constitution, effect shall be given to all the provisions of the Constitution and no provision shall be
interpreted in a manner as to make any other provision in the Constitution inoperative or otiose. If the intention
of the Parliament was to exclude Article 15(4), they could have very well deleted Article 15(4) of the
Constitution. Minority institutions are also entitled to the exercise of fundamental rights under Article 19(1)(g)
of the Constitution, whether they be aided or unaided. But in the case of Article 15(5), the minority educational
institutions, whether aided or unaided, are excluded from the purview of Article 15(5) of the Constitution.
Both, being enabling provisions, would operate in their own field and the validity of any legislation made on
the basis of Article 15(4) and 15(5) have to be examined on the basis of provisions contained in such
legislation or the special provision that may be made under Article 15(4) and 15(5). It may also be noticed that
no educational institutions or any aggrieved party have come before us challenging the constitutional
amendment on these grounds. The challenge is made by petitioners objecting to the reservations made under
Act 5 of 2007. Therefore, the plea that Article 15(4) and 15(5) are mutually contradictory and, therefore,
Article 15(5) is not constitutionally valid cannot be accepted. As has been held in N.M. Thomas case and
Indra Sawhney case, Article 15(4) and 16(4) are not exceptions to Article 15(1) and Article 16(1) but
independent enabling provision. Article 15(5) also to be taken as an enabling provision to carry out certain
constitutional mandate and thus it is constitutionally valid and the contentions raised on these grounds are
rejected.
3. Whether exclusion of minority educational institutions from Article 15(5) is violative of Article 14 of
Constitution?
101. Another contention raised by the petitioner’s Counsel is that the exclusion of minority institutions
under Article 15(5) itself is violative of Article 14 of the Constitution. It was contended that the exclusion by
itself is not severable from the rest of the provision. This plea also is not tenable because the minority
institutions have been given a separate treatment in view of Article 30 of Constitution. Such classification has
been held to be in accordance with the provisions of the Constitution. The exemption of minority educational
institutions has been allowed to conform Article 15(5) with the mandate of Article 30 of the Constitution.
Moreover, both Article 15(4) and 15(5) are operative and the plea of non-severability is not applicable.
102. Learned Senior Counsel Dr. Rajeev Dhavan and learned Counsel Shri Sushil Kumar Jain appearing
for the petitioners contended that the Ninety-Third Constitutional Amendment would violate the equality
principles enshrined in Articles 14, 19 and 21 and thereby the “Golden Triangle” of these three Articles could
be seriously violated. The learned Counsel also contended that exclusion of minorities from the operation of
Article 15(5) is also violative of Article 14 of the Constitution. We do not find much force in this contention. It
has been held that Article 15(4) and Article 16(4) are not exceptions to Article 15(1) and Article 16(1)
respectively. It may also be noted that if at all there is any violation of Article 14 or any other equality
principle, the affected educational institution should have approached this Court to vindicate their rights. No
such petition has been filed before this Court. Therefore, we hold that the exclusion of minority educational
institutions from Article 15(5) is not violative of Article 14 of the Constitution as the minority educational
institutions, by themselves, are a separate class and their rights are protected by other constitutional provisions.
4. Whether the Constitutional Amendment followed the procedure prescribed under Article 368 of the
Constitution?
103. Another contention raised by the petitioner's Counsel is that the Ninety-Third Constitutional
Amendment is invalid as it violates the proviso to Article 368 of the Constitution. According to the petitioner's
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Counsel, the procedure prescribed under the proviso to Article 368 was not followed in the case of the Ninety-
Third Amendment. According to the petitioner's Counsel, Article 15(5) of the Constitution interferes with the
executive power of the States as it impliedly takes away the power of the State Government under Article 162
of the Constitution.
104. This contention of the petitioner's Counsel has no force. The powers of the Parliament and the State
legislatures to legislate are provided for under Article 245-255 of the Constitution. Under the proviso to Article
162, any matter with respect to which the legislature of the State and the Parliament have power to make laws,
the executive power of the State shall be subject to and limited by the executive power expressly conferred by
the Constitution or by any law made by Parliament upon the Union authorities thereof. The Ninety-Third
Constitutional Amendment does not expressly or impliedly take away any such power conferred by Article
162. It may also be noticed that by virtue of the 42nd Amendment to the Constitution, "education" which was
previously in Entry No. 11 in List II was deleted and inserted in List III as Entry No. 25 as the field of
legislation in List III. Article 245 will operate and by reasons of proviso to Article 162, the executive power of
the State be subject to, limited by, the executive power expressly conferred by the Constitution or by any law
made by Parliament upon the Union authorities thereof. Subject to restrictions imposed under the Constitution,
it has been in existence. Such power of the State is not limited or curtailed by the Ninety-Third Constitutional
Amendment as it does not interfere with the power of the State under Article 162. The Ninety-Third
Constitutional Amendment does not fall within the scope of proviso to Article 368. Therefore, the plea raised
by the petitioner's Counsel that the Ninety-Third Constitutional Amendment did not follow the prescribed
procedure of Article 368 is not correct and the plea is only to be rejected.
5. Whether the Act 5 of 2007 is constitutionally invalid in view of definition of “Backward Class” and
whether the identification of such “Backward Class” based on “caste” is constitutionally valid?
105. The next important plea raised by the petitioner's Counsel is regarding the validity of the Act 5 of
2007. The several contentions have been raised regarding the validity of the Act 5 of 2007. The first contention
which was raised by the petitioner's Counsel that this Act is ex-facie unconstitutional and is a suspect
legislation and violative of the Article 14, 15 and 19(1)(g) of the Constitution. The main attack against the Act
was that the socially and educationally backward classes of citizens were not properly identified and the
delegation of power to identify the socially and educationally backward classes of citizens to the Central
Government itself is illegal and the delegation of such powers by itself without laying down any guidelines is
arbitrarily illegal. Elaborate arguments were made by the petitioner's Counsel and the first and foremost
contention was that “caste” is the sole basis on which the socially and educationally backward classes of
citizens were determined. And this, according to the petitioner's Counsel, is illegal. Reference was made to a
series of decisions of this Court on this issue.
106. There is a long jurisprudential history as to whether caste can play any role in determining the
socially and educationally backward classes of citizens. In Indra Sawhney case, which is a Nine Judge Bench
decision, it was held that the “caste” could be a beginning point and a determinative factor in identifying the
socially and educationally backward classes of citizens. But nevertheless, a brief survey of various decisions
on this question would give a history of the jurisprudential development on this subject.
107. Reference to the earlier decisions is necessary because serious doubt has been raised as to whether
“caste” could be the basis for recognizing backwardness. Some of the earlier decisions have stated that caste
should not be a basis for recognizing backwardness and gradually there was a shift in the views and finally, in
Indra Sawhney case, it was held that caste could be the starting point for determining the socially and
educationally backward classes of citizen.
108. In Champakam Dorairajan, this Court struck down the classification made in the Communal G.O. of
the then State of Madras. The G.O. was founded on the basis of religion and castes and was struck down on the
ground that it is opposed to the Constitution and is in violation of the fundamental rights guaranteed to the
citizens. The court held that Article 46 cannot override the provisions of Article 29(2) because of the Directive
Principles of State Policy which were then taken subsidiary to fundamental rights. This decision led to the first
constitutional amendment by which Article 15(4) was added to the Constitution.
109. The next important case is M.R. Balaji v. State of Mysore. In this case, the State of Mysore issued an
order that all the communities except the Brahmin community would fall within the definition of socially and
educationally backward class and Scheduled Castes and Scheduled Tribes and 75% of the seats in educational
institutions were reserved for them. It was observed that though caste in relation to Hindus may be a relevant
factor to consider while determining social backwardness of groups or classes of citizens, it cannot be made
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the sole or dominant test. It was held that the classes of citizens who are deplorably poor automatically become
socially backward. Moreover, the occupation of citizens and the place of their habitation also result in social
backwardness. The problem of determining who are socially backward classes is undoubtedly very complex,
but the classification of socially backward citizens on the basis of their caste alone is not permissible under
Article 15(4). Learned Senior Counsel Shri Harish Salve drew our attention to the various passages in the
judgment. Gajendragadkar, J. speaking for the majority of the Judges, said:
The Problem of determining who are socially backward classes is undoubtedly very complex.
Sociological, social and economic considerations come into play in solving the problem and evolving
proper criteria for determining which classes are socially backward is obviously a very difficult task;
it will need an elaborate investigation and collection of data and examining the said data in a rational
and scientific way. That is the function of the State which purports to act under Article 15(4).
110. The court drew a clear distinction between 'caste' and 'class' and tried to make an attempt to
find a new basis for ascertaining social and educational backwardness in place of caste and in this
decision a majority of Judges held that in a broad way, a special provision of reservation should be
less than 50%; how much less than 50% would depend upon the relevant and prevailing circumstances
in each case.
111. In R. Chitralekha case, the Government of Mysore, by an order defining backward classes directed
that 30% of the seats in professional and technical colleges and institutions shall be reserved for them and 18%
to the SCs and STs. It was laid down that classification of socially and educationally backward classes should
be made on the basis of economic condition and occupation. Suba Rao, J. (as he then was), speaking for the
majority, held that a classification of backward classes based on economic conditions and occupations is not
bad in law and does not offend Article 15(4). The caste of a group of citizens may be a relevant circumstance
in ascertaining their social backwardness and though it is a relevant factor to determine social backwardness of
a class, it cannot be the sole or dominant test in that behalf. If, in a given situation, caste is excluded in
ascertaining a class within the meaning of Article 15(4), it does not vitiate the classification if it satisfies other
tests. The Court observed that various provisions of the Constitution which recognized the factual existence of
backwardness in the country and which make a sincere attempt to promote the welfare of the weaker sections
thereof should be construed to effectuate that policy and not to give weightage to progressive sections of the
society under the false colour of caste to which they happen to belong. The Court held that under no
circumstance a 'class' can be equated to a 'caste' though the caste of an individual or group of individuals may
be a relevant factor in putting him in a particular class.
112. P. Rajendran v. State of Madras [(1971) 1 SCC 38] is another Constitution Bench decision wherein
the order of the State Government providing reservation of seats for various categories of candidates namely
Scheduled Tribes, Scheduled Castes and SEBCs was challenged on various grounds. The main challenge was
that the reservation was based entirely on consideration of caste and therefore it violates Article 15. Justice
Wanchoo, held that:
Now if the reservation in question had been based only on caste and had not taken into account
the social and educational backwardness of the castes in question, it would be violative of Article
15(1). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is
socially and educationally backward reservation can be made in favour of such a caste on the ground
that it is a socially and educationally backward class of citizens within the meaning of Article 15(4).
Reference in this connection may be made to the observations of this Court in M.R. Balaji v. State of
Mysore to the effect that it was not irrelevant to consider the caste of a class of citizens in determining
their social and educational backwardness. It was further observed that though the caste of a class of
citizens may be relevant its importance should not be exaggerated; and if classification of backward
classes of citizens was based solely on the caste of the citizen, it might be open to objection.
113. It may be noticed that the list prepared by the State showed certain castes, and members of those
castes according to the State were really classes of socially and educationally backward citizens. It was
observed in that case that the petitioners therein did not make any attempt to show that any caste mentioned in
the list of educationally and socially backward classes of citizens was not educationally and socially backward
and the list based on caste was upheld by the Constitution Bench and held to be not violative of Article 15(1).
114. In Triloki Nath Tiku v. State of J & K (I) [AIR 1969 SC 1], 50% of the gazetted posts were to be
filled up by promotion in favour of the Muslims of Jammu & Kashmir. The Court held that inadequate
representation in State services would not be decisive for determining the backwardness of a section. The
Court accordingly gave directions for collecting further material relevant to the subject. And in a subsequent
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decision, Triloki Nath(II), the court observed that the expression "backward class" is not used as synonymous
with “backward caste”.
115. In A. Peerikaruppan v. State of Tamil Nadu this Court made reference to the earlier decisions
especially in M.R. Balaji case and R. Chitralekha case Hegde, J., at paragraph 29, observed:
There is no gainsaying the fact that there are numerous castes in this country which are socially
and educationally backward. To ignore their existence is to ignore the facts of life. Hence we are
unable to uphold the contention that the impugned reservation is not in accordance with Article 15(4).
But all the same the Government should not proceed on the basis that once a class is considered as a
backward class it should continue to be backward class for all times. Such an approach would defeat
the very purpose of the reservation because once a class reaches a stage of progress which some
modern writers call as take off stage then competition is necessary for their future progress. The
Government should always keep under review the question of reservation of seats and only the classes
which are really socially and educationally backward should be allowed to have the benefit of
reservation.
116. The learned Counsel for the petitioners also made reference to State of Uttar Pradesh v. Pradip
Tandon [(1975) 1 SCC 267] wherein Chief Justice Ray observed at paragraph 14:
Socially and educationally backward classes of citizens in Article 15(4) could not be equated with
castes. In M.R. Balaji v. State of Mysore and State of A.P. v. Sagar this Court held that classification
of backwardness on the basis of castes would violate both Articles 15(1) and 15(4).
117. Another important decision is that of State of Kerala v. N.M. Thomas, wherein the constitutional
validity of Rule 13-AA of the Kerala State & Subordinate Services Rules was under challenge. The Rule gave
exemption of 2 years to members belonging to Scheduled Castes and Scheduled Tribes in services, from
passing the departmental test. The High Court of Kerala struck down the Rule and in an appeal by the State the
question of reservation was elaborately considered. Mathew, J. in his concurring judgment, held that in order
to give equality of opportunity for employment to the members of Scheduled Castes and Scheduled Tribes, it
is necessary to take note of their social, educational and economic backwardness. Not only is the Directive
Principle embodied in Article 46 binding on the law-makers as ordinarily understood, but it should equally
inform and illuminate the approach of the court when it makes a decision, as the court is also a “State” within
the meaning of Article 12 and makes law even though interstitially. Existence of equality depends not merely
on the absence of disabilities but on the presence of disabilities. To achieve it, differential treatment of persons
who are unequal is permissible. This is what is styled as compensatory discrimination or affirmative action.
118. In K.C. Vasanth Kumar v. State of Karnataka the question of identifying socially and educationally
backward class came up for consideration. Desai, J., elaborately considered this question in paragraph 20 and
observed:
By its existence over thousands of years, more or less it was assumed that caste should be the
criterion for determining social and educational backwardness. In other words, it was said, look at the
caste, its traditional functions, its position in relation to upper castes by the standard of purity and
pollution, pure and not so pure occupation, once these questions are satisfactorily answered without
anything more, those who belong to that caste must be labeled socially and educationally backward.
This over- simplified approach ignored a very realistic situation existing in each caste that in every
such caste whose members claim to be socially and educationally backward, had an economically
well-placed segments.
119. Chinnappa Reddy, J., also dealt with the question elaborately and observed:
However we look at the question of ‘backwardness’, whether from the angle of class, status or
power, we find the economic factor at the bottom of it all and we find poverty, the culprit-cause and
the dominant characteristic. Poverty, the economic factor brands all backwardness just as the erect
posture brands the homosapiens and distinguishes him from all other animals, in the eyes of the
beholder from Mars. But, whether his racial stock is Caucasian, Mongoloid, Negroid, etc., further
investigation will have to be made. So too the further question of social and educational backwardness
requires further scrutiny. In India, the matter is further aggravated, complicated and pitilessly
tyrannized by the ubiquitous caste system, a unique and devastating system of gradation and
degradation which has divided the entire Indian and particularly Hindu society horizontally into such
distinct layers as to be destructive of mobility, a system which has penetrated and corrupted the mind
and soul of every Indian citizen. It is a notorious fact that there is an upper crust of rural society
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consisting of the superior castes, generally the priestly, the landlord and the merchant castes, there is a
bottom strata consisting of the 'out-castes' of Indian Rural Society, namely the Scheduled Castes, and,
in between the highest and the lowest, there are large segments of population who because of the low
gradation of the caste to which they belong in the rural society hierarchy, because of the humble
occupation which they pursue, because of their poverty and ignorance are also condemned to
backwardness, social and educational, backwardness which prevents them from competing on equal
terms to catch up with the upper crust.
120. Reference was also made to other decisions, namely, State of Andhra Pradesh v. P. Sagar [AIR
1968 SC 1379] and T. Devadasan v. The Union of India [AIR 1964 SC 179]. The earlier decisions took the
view that caste shall not be a basis for determining the socially and educationally backward class of citizens.
But from the later decisions, we find a slight shift in the approach of the court. If the classification of SEBCs is
done exclusively on the basis of caste, it would fly in the face of Article 15(1) of the Constitution as it
expressly prohibits any discrimination on the grounds of religion, race, caste, sex, place of birth or any of
them. After a careful examination of the various previous decisions of this Court, in Indra Sawhney, while
examining the validity of the 'Backward Class List' prepared by the Mandal Commisson, Jeevan Reddy. J.,
speaking for the majority, held as under:
705. During the years 1968 to 1971, this Court had to consider the validity of identification of backward
classes made by Madras and Andhra Pradesh Governments. P. Rajendran v. State of Madras 3 13 related to
specification of socially and educationally backward classes with reference to castes. The question was
whether such an identification infringes Article 15. Wanchoo, CJ, speaking for the Constitution Bench dealt
with the contention in the following words:
The contention is that the list of socially and educationally backward classes for whom reservation
is made under Rule 5 is nothing but a list of certain castes. Therefore, reservation in favour of certain
castes based only on caste considerations violates Article 15(1), which prohibits discrimination on the
ground of caste only. Now if the reservation in question had been based only on caste and had not
taken into account the social and educational backwardness of the caste in question, it would be
violative of Article 15(1). But it must not be forgotten that a caste is also a class of citizens and if the
caste as a whole is socially and educationally backward reservation can be made in favour of such a
caste on the ground that is a socially and educationally backward class of citizens within the meaning
of Article 15(4).... It is true that in the present cases the list of socially and educationally backward
classes has been specified by caste. But that does not necessarily mean that caste was the sole
consideration and that persons belonging to these castes are also not a class of socially and
educationally backward citizens....As it was found that members of these castes as a whole were
educationally and socially backward, the list which had been coming on from as far back as 1906 was
finally adopted for purposes of Article 15(4)....
In view however of the explanation given by the State of Madras, which has not been controverted
by any rejoinder, it must be accepted that though the list shows certain castes, the members of those
castes are really classes of educationally and socially backward citizens. No attempt was made on
behalf of the petitioners/appellant to show that any caste mentioned in this list was not educationally
and socially backward. In this state of the pleadings, we must come to the conclusion that though the
list is prepared caste-wise, the castes included therein are as a whole educationally and socially
backward and therefore the list is not violative of Article 15. The challenge to Rule 5 must therefore
fail.
121. In that decision it was further held that “Backward Class” in Article 16(4) cannot be read as
“Backward Caste”. And under Article 340 of the Constitution, the President may by order appoint a
Commission consisting of such persons as he thinks fit to investigate the conditions of socially and
educationally backward classes of citizens within the territory of India and the difficulties under which they
labour and to make recommendations as to the steps that should be taken by the Union or any State to remove
the difficulties and to improve their condition. The object of this provision is to empower the President to
appoint a Commission to ascertain the difficulties and problems of socially and educationally backward classes
of citizens. And in Indra Sawhney case, the majority held that the ideal and wise method would be to mark out
various occupations which on the lower level in many cases amongst Hindus would be their caste itself and
find out their social acceptability and educational standard, weigh them in the balance of economic conditions
and, the result would be backward class of citizens needing a genuine protective umbrella. And after having
adopted occupation as the starting point, the next point should be to ascertain their social acceptability. A
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person carrying on scavenging becomes an untouchable whereas others who were as law in the social strata as
untouchables became depressed. The Court has cautioned that the backwardness should be traditional. Mere
educational or social backwardness would not have been sufficient as it would enlarge the field thus frustrating
the very purpose of the constitutional goal. It was pointed out that after applying these tests, the economic
criteria or the means-test should be applied since poverty is the prime cause of all backwardness as it generates
social and educational backwardness.
122. The learned Counsel for the petitioner contended that caste cannot be used even as one of the criteria
for identifying the SEBCs as many persons have shifted their traditional occupations and have become doctors,
engineers and lawyers. But these are only a few cases and even such persons continue to suffer social
segregation based on caste. In Pradip Tandon case it was held at para 17 that:
The expression ‘classes of citizens’ indicates a homogenous section of the people who are
grouped together because of certain likenesses and common traits and who are identifiable by some
common attributes. The homogeneity of the class of citizens is social and educational backwardness.
Neither caste nor religion nor place of birth will be the uniform element of common attributes to make
them a class of citizens.
123. The above statement is not fully correct. Caste plays an important role in determining the
backwardness of the individual. In society, social status and standing depend upon the nature of the occupation
followed. In paragraph 779 of Indra Sawhney's case, it is stated:
Lowlier the occupation, lowlier the social standing of the class in the graded hierarchy. In rural
India, occupation-caste nexus is true even today. A few members may have gone to cities or even
abroad but when they return - they do, barring a few exceptions - they go into the same fold again. It
does not matter if he has earned money. He may not follow that particular occupation. Still, the label
remains. His identity is not changed for the purpose of marriage, death and all other social functions, it
is his social class - the caste - that is relevant.
124. “Caste” is often used interchangeably with “class” and can be called as the basic unit in social
stratification. The most characteristic thing about a caste group is its autonomy in caste related matters. One of
the universal codes enforced by all castes is the requirement of endogamy. Other rules have to do with the
regulations pertaining to religious purity or cleanliness. Sometimes it restricts occupational choices as well. It
is not necessary that these rules be enforced in particular classes as well, and as such a “class” may be
distinguished from the broader realm of “caste” on these grounds. Castes were often rated, on a purity scale,
and not on a social scale.
125. The observations made by Venkataramaiah J. in K.C. Vasanth Kumar case are relevant in this regard:
We are aware of the meanings of the words caste, race, or tribe or religious minorities in India. A
caste is an association of families which practise the custom of endogamy i.e., which permits
marriages amongst the members belonging to such families only. Caste rules prohibit its members
from marrying outside their caste. There are sub-groups amongst the castes which sometimes inter-
marry and sometimes do not. A caste is based on various factors, sometimes it may be a class, a race
or a racial unit. A caste has nothing to do with wealth. The caste of a person is governed by his birth in
a family. Certain ideas of ceremonial purity are peculiar to each caste. Sometimes caste practices even
led to segregation of same castes in the villages. Even the choice of occupation of members of castes
was predetermined in many cases, and the members of a particular caste were prohibited from
engaging themselves in other types of callings, professions or occupations. Certain occupations were
considered to be degrading or impure. A certain amount of rigidity developed in several matters and
many who belonged to castes which were lower in social order were made to suffer many restrictions,
privations and humiliations. Untouchability was practised against members belonging to certain
castes. Inter-dining was prohibited in some cases. None of these rules governing a caste had anything
to do with either the individual merit of a person or his capacity. The wealth owned by him would not
save him from many social discriminations practised by members belonging to higher castes. Children
who grew in this caste ridden atmosphere naturally suffered from many social disadvantages apart
from the denial of opportunity to live in the same kind of environment in which persons of higher
castes lived. Many social reformers have tried in the last two centuries to remove the stigma of caste
from which people born in lower castes were suffering. Many laws were also passed prohibiting some
of the inhuman caste practices. (p. 110)

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134. On the other hand, it is possible that within a caste group there is a marked inequality of status,
opportunity, or social standing – which then defines the “class” within that particular “caste” system. For
example, all the Brahmins are not engaged in highly respectable employment, nor are all very wealthy. It may
even be that some Brahmins may be servants of members of a lower caste, or it may also be so that the
personal servant of a rich Brahmin may be a poor Brahmin.
135. Hence, there is every reason to believe that within a single caste group there are some classes or
groups of people to whom good fortune or perseverance has brought more dignity, social influence and social
esteem than it has to others.
136. In India, caste, in a socio-organizational manner would mean that it is not characterized merely by the
physical or occupational characteristics of the individuals who make it up; rather, it is characterized by its
codes and its close-knit social controls. In the case of classes, however, there may not exist such close-knit unit
social controls, and there may exist great disparity in occupational characteristics.
137. A social class is therefore a homogeneous unit, from the point of view of status and mutual
recognition; whereas a caste is a homogeneous unit from the point of view of common ancestry, religious rites
and strict organizational control. Thus the manner in which the caste is closed both in the organizational and
biological sense causes it to differ from social class. Moreover, its emphasis upon ritual and regulations
pertaining to cleanliness and purity differs radically from the secular nature and informality of social class
rules. In a social class, the exclusiveness would be based primarily on status. Social classes divide
homogeneous populations into layers of prestige and esteem, and the members of each layer are able to
circulate freely with it.
138. In a caste, however, the social distance between members is due to the fact that they belong to
entirely different organizations. It may be said, therefore, that a caste is a horizontal division and a class, a
vertical division.
139. The Solicitor General, Mr. G.E. Vahanvati, pointed out that for the purpose of reservation under
Article 16(4) of the Constitution, the Central List has been in operation for the past 14 years and not a single
person has challenged any inclusion in the Central List as void or illegal.
140. It was pointed out that the National Commission for the Backward Classes and the State Commission
for Backward Classes have prepared a list based on elaborate guidelines and these guidelines have been
framed after studying the criteria/indicators framed by the Mandal Commission and the Commissions set up in
the past by different State Governments. Various Commissions held public hearings at various places and the
National Commission held 236 public hearings before it finalized the list. It is also pointed out that during the
period of its functioning, the National Commission had recommended 297 requests for inclusion and at the
same time rejected 288 requests for inclusion of the main castes. It is further pointed out that the Commission
took into consideration detailed data with regard to social, educational and economic criteria. The Commission
has also looked into whether there has been any improvement or deterioration in the condition of the caste or
community being considered for inclusion during the past twenty years.
141. It is pointed out that an elaborate questionnaire was prepared by the Commission and the answers in
this questionnaire were considered in detail for inclusion/rejection in the list. It is clear that the lists of socially
and educationally backward classes of citizens are being prepared not solely on the basis of the caste and if
caste and other considerations are taken into account for determining backwardness, it cannot be said that it
would be violative of Article 15(1) of the Constitution.
142. We hold that the determination of SEBCs is done not solely based on caste and hence, the
identification of SEBCs is not violative of Article 15(1) of the Constitution.
6. Whether Creamy Layer is to be excluded from SEBCs?
143. The SEBCs have been identified by applying various criteria. Though for the purpose of convenience,
the list is based on caste, it cannot be said that 'Backward Class' has been identified solely on the basis of caste.
All the castes which suffered the social and educational backwardness have been included in the list.
Therefore, it is not violative of Article 15(1). The only possible objection that could be agitated is that in many
of the castes included in this list, there may be an affluent section (Creamy Layer) which cannot be included in
the list of SEBCs.
144. When socially and educationally backward classes are determined by giving importance to caste, it
shall not be forgotten that a segment of that caste is economically advanced and they do not require the
protection of reservation. It was argued on behalf of the petitioners that the principle of ‘Creamy Layer’ should
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be strictly applied to SEBCs while giving affirmative action and the principles of exclusion of ‘Creamy Layer’
applied in Indra Sawhney case should be equally applied to any of the legislations that may be passed as per
Article 15(5) of the Constitution. The Counsel for the petitioners submitted that SEBCs have been defined
under section 2 (g) of the Act and the Central Government has been delegated with the power to determine
Other Backward Classes. The Counsel for the petitioners have pointed out that the definition given in section
2(g) of the Act should be judicially interpreted. That the backward class so stated therein should mean to
exclude the ‘Creamy Layer’. The learned Senior Counsel appearing for Pattali Makkal Katchi (PMK) stated
that exclusion of ‘Creamy Layer’ shall not apply for reservation in educational institutions. He pointed out that
in case the ‘creamy layer’ is excluded, the other members of the backward class community would not be in a
position to avail the benefit of reservation and the fee structure in many of these centrally administered
institutions is exorbitantly high and the ordinary citizen would not be in a position to afford the payment of
fees and thus the very purpose of the reservation would be frustrated.
145. According to the learned Counsel for the respondents, the creamy layer elimination will only
perpetuate caste inequalities. It would enable the advanced castes to eliminate any challenge or competition to
their leadership in the professions and services and that they will gain by eliminating all possible beneficiaries
of reservation in the name of creamy layer especially in the institutions of higher learning. It was argued that
the analogy of Creamy Layer applied in reservations to jobs cannot be applied in reservations to educational
institutions of higher learning. The position of a student getting admission to an institution of higher learning is
totally different and can never be compared to that of backward class person to get a job by virtue of
reservation. The study in any educational institution of higher learning is very expensive and the non-creamy
layer backward class parent cannot afford his son or his daughter incurring such a huge expenditure.
Eliminating them from the Creamy Layer will frustrate the very object of providing reservation. Therefore, it
is wholly impracticable and highly counter productive to import the policy of Creamy Layer for reservation in
these institutions. And according to the learned Counsel there is a difference between services and education
and that under the purview of Act 5 of 2007, around 3 lakh seats would be filled up every year. Whereas the
jobs are limited and they will not become vacant every year.
146. The learned Counsel pointed out that grouping of all castes together may enable a less backward caste
among the backward classes to corner more seats than it deserves. It is also possible that more backward
classes cannot afford to compete with the less backward classes. The only way to solve the said problem is by
categorization of Backward Classes and sub classifying them so as to ensure that under each category only
similarly circumstanced castes are grouped together. The categorization of backward class has successfully
worked in State of Tamil Nadu where most backward class is provided 20% reservation and the most
backward castes and denotified tribes are grouped together and the backward classes are provided 30%
reservation. In the State of Karnataka, backward classes are divided into 5 categories and separate reservations
have been provided. And in the State of Andhra Pradesh, Backward Classes have been divided into 4 divisions
and separate percentage of reservation has been provided.
147. As noticed earlier, determination of backward class cannot be exclusively based on caste. Poverty,
social backwardness, economic backwardness, all are criteria for determination of backwardness. It has been
noticed in Indra Sawhney case that among the backward class, a section of the backward class is a member of
the affluent section of society. They do not deserve any sort of reservation for further progress in life. They are
socially and educationally advanced enough to compete for the general seats along with other candidates.
148. In Indra Sawhney case, Jeevan Reddy, J., has observed:
In our opinion, it is not a question of permissibility or desirability of such test but one of proper
and more appropriate identification of a class - a backward class. The very concept of a class denotes a
number of persons having certain common traits which distinguish them from the others. In a
backward class under Clause (4) of Article 16, if the connecting link is the social backwardness, it
should broadly be the same in a given class. If some of the members are far too advanced socially
(which in the context, necessarily means economically and, may also mean educationally) the
connecting thread between them and the remaining class snaps. They would be misfits in the class.
After excluding them alone, would the class be a compact class. In fact, such exclusion benefits the
truly backward.
149. It is to be understood that “creamy layer” principle is introduced merely to exclude a section of a
particular caste on the ground that they are economically advanced or educationally forward. They are
excluded because unless this segment of caste is excluded from that caste group, there cannot be proper
identification of the backward class. If the “Creamy Layer” principle is not applied, it could easily be said that
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all the castes that have been included among the socially and educationally backward classes have been
included exclusively on the basis of caste. Identification of SEBC for the purpose of either Article 15(4), 15(5)
or 16(4) solely on the basis of caste is expressly prohibited by various decisions of this Court and it is also
against Article 15(1) and Article 16(1) of the Constitution. To fulfil the conditions and to find out truly what is
socially and educationally backward class, the exclusion of “creamy layer” is essential.
150. It may be noted that the “creamy layer” principle is applied not as a general principle of reservation.
It is applied for the purpose of identifying the socially and educationally backward class. One of the main
criteria for determining the SEBC is poverty. If that be so, the principle of exclusion of “creamy layer” is
necessary. Moreover, the majority in Indra Sawhney case upheld the exclusion of “creamy layer” for the
purpose of reservation in Article 16(4). Therefore, we are bound by the larger Bench decision of this Court in
Indra Sawhney case, and it cannot be said that the “creamy layer” principle cannot be applied for identifying
SEBCs. Moreover, Articles 15(4) and 15(5) are designed to provide opportunities in education thereby raising
educational, social and economical levels of those who are lagging behind and once this progress is achieved
by this section, any legislation passed thereunder should be deemed to have served its purpose. By excluding
those who have already attained economic well being or educational advancement, the special benefits
provided under these clauses cannot be further extended to them and, if done so, it would be unreasonable,
discriminatory or arbitrary, resulting in reverse discrimination.
151. Sawant, J. also made observation in Indra Sawhney case to ensure removal of 'creamy layer'. He
observed:
(A)t least some individuals and families in the backward classes - gaining sufficient means to develop
their capacities to compete with others in every field.... Legally, therefore, they are not entitled to be
any longer called as part of the backward classes whatever their original birth mark - to continue to
confer upon such advanced sections from the backward classes the special benefits, would amount to
treating equals unequally violating the equality provisions of the Constitution. Secondly, to rank them
with the rest of the backward classes would equally violate the right to equality of the rest in those
classes, since it would amount to treating the unequals equally....It will lead to perverting the
objectives of the special constitutional provisions since the forwards among the backward classes will
thereby be enabled to tap up all the special benefits to the exclusion and to the cost of the rest in those
classes, thus keeping the rest in perpetual backwardness.
152. All these reasonings are equally applicable to the reservation or any special action contemplated
under Article 15(5). Therefore, we are unable to agree with the contention raised by the respondent's learned
Counsel that if 'creamy layer' is excluded, there may be practically no representation for a particular backward
class in educational institutions because the remaining members, namely, the non-creamy layer, may not have
risen to the level or standard necessary to qualify to get admission even within the reserved quota. If the
creamy layer is not excluded, the identification of SEBC will not be complete and any SEBC without the
exclusion of 'creamy layer' may not be in accordance with Article 15(1) of the Constitution.
7. What should be the para-meters for determining the "creamy layer" group?
153. After the decision in Indra Sawhney case, the Government of India, Ministry of Personnel, Public
Grievances and Pensions (Department of Personnel and Training) issued an Office Memorandum dated
08.09.1993 providing for 27% reservation for Other Backward Classes. The Memorandum reads as follows:
OFFICE MEMORANDUM
Subject : Reservation for Other Backward Classes in Civil Posts and Services Under the
Government of India – regarding.
The undersigned is directed to refer to this Department's OM No. 36012/31/90-Estt. (SCT), dated
the 13th August, 1990 and 25th September, 1991 regarding reservation for Socially and Educationally
Backward Classes in Civil Posts and Services under the Government of India and to say that following
the Supreme Court judgment in the Indra Sawhney v. Union of India [1992 Supp (3) SCC 217] the
Government of India appointed an Expert Committee to recommend the criteria for exclusion of the
socially advanced persons/sections from the benefits of reservations for Other Backward Classes in
Civil Posts and Services under the Government of India.
2. Consequent to the consideration of the Expert Committee's recommendations this Department's
Office Memorandum No. 36012/31/90-Estt. (SCT), dated 13.8.1990 referred to in para (1) above is
hereby modified to provide as follows:
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(a) 27% (twenty-seven per cent) of the vacancies in Civil Posts and Services under the
Government of India, to be filled through direct recruitment, shall be reserved for the Other Backward
Classes. Detailed instructions relating to the procedure to be followed for enforcing reservation will be
issued separately.
(c) (i) The aforesaid reservation shall not apply to persons/sections mentioned in Column 3 of the
Schedule to this office memorandum.
(ii) The rule of exclusion will not apply to persons working as artisans or engaged in hereditary
occupations, callings. A list of such occupations, callings will be issued separately by the Ministry of
Welfare.
SCHEDULE
Description of category To whom rule of exclusion will apply
I. Constitutional Posts Son(s) and daughter(s) of
(a) President of India;
(b) Vice-President of India;
(c) Judges of the Supreme Court and of the High
Courts;
(d) Chairman and Members of UPSC and of the State Public
Service Commission; Chief Election Commissioner;
Comptroller and Auditor General of India;
(e) persons holding constitutional positions of like nature
II. Service Category Son(s) and daughter(s) of

A. Group A/Class I (a) parents, both of whom are Class I Officers
Officers of the All India (b) parents, either of whom is a Class I officer;
Central and State Services
(Direct Recruits) (c) parents, both of whom are Class I Officers, but one of them dies
or suffers permanent incapacitation;
(d) parents, either of whom is a Class I officer and such parent dies
or suffers permanent incapacitation and before such death or
such incapacitation has had the benefit of employment in any
International Page 1479 Organisation like UN, IMF, World
Bank, etc. for a period of not less than five years;
(e) parents, both of whom are Class I officers die or suffer
permanent incapacitation and before such death or such
incapacitation of the both, either of them has had the benefit of
employment in any International Organisation like UN, IMF,
World Bank, etc. for a period of not less than 5 years.
Provided that the rule of exclusion shall not apply in the
following cases:
(a) Son(s) and daughter(s) of parents either of whom or both
of whom are class I officers and such parent(s) dies/die or suffer
permanent incapacitation;
(b) A lady belonging to OBC category has got married to a
Class I officer, and may herself like to apply for a job.
Son(s) and daughter(s) of

(a) Parents both of whom are Class II officers;
(b) parents of whom only the husband is a Class II officer and he

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get into Class I at the age of 40 or earlier;
(c) parents, both of whom are Class II officers and one of them dies
or suffers permanent incapacitation and either one of them has
had the benefit of employment in any International Organisation
B. Group B/Class II like UN, IMF, World Bank etc. for a period of not less than five
officers of the Central years before such death or permanent incapacitation;
and State Services (d) parents of whom the husband is a Class I officer (direct recruit
(Direct Recruitment) or pre-forty promoted) and the wife is a Class II officer and the
wife dies; or suffers permanent incapacitation; and
(e) parents, of whom the wife is a Class I officer (direct recruit or
preforty promoted) and the husband is a Class II officer and the
husband dies or suffers permanent incapacitation:
Provided that the rule of exclusion shall not apply in the
following cases:
Son(s) and daughter(s) of:
(a) parents both of whom are Class II officers and one of them
dies or suffers permanent incapacitation;
(b) parents, both of whom are Class II officers and both of
them die or suffer permanent incapacitation, even though either
of them has had the benefit of employment in any International
Organisation like UN, IMF, World Bank etc. for a period of not
less than five years before their death or permanent
incapacitation.
The criteria enumerated in A and B above in this category will

apply mutatis mutandis to officers holding equivalent or
comparable posts in PSUs, Banks, Insurance Organisations,
Universities, etc. and also to equivalent or comparable posts and
positions under private employment, pending the evaluation of
the posts on equivalent or comparable basis in these institutions,
the criteria specified in Category VI below will apply to the
officers in these institutions.
C. Employees in Public
Sector Undertakings etc.

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III. Armed Forces Son(s) and daughter(s) of
Including Paramilitary Parents either or both of whom is or are in the rank of Colonel
Forces (Persons holding and above in the Army and to equivalent posts in the Navy and
civil posts are not the Air Force and the Paramilitary Forces:
included)
Provided that:
(i) If the wife of an Armed Forces officer is herself in the
Armed Forces (i.e., the category under consideration) the rule of
exclusion will apply only when she herself has reached the rank
of Colonel;
(ii) The service ranks below Colonel of husband and wife
shall not be clubbed together;
(iii) If the wife of an officer in the Armed Forces is in civil
employment, this will not be taken into account for applying the
rule of exclusion unless she falls in the service category under
Item No. II in which case the criteria and conditions enumerated
therein will apply to her independently.
IV. Professional Class Criteria specified against Category VI will apply-
and Those Engaged in
Trade and Industry
(i) Persons engaged in
profession as a Doctor,
Lawyer, Chartered
Accountant, Income Tax
consultant, financial or
Hmanagement consultant,
dental surgeon, engineer,
architect, computer
specialist, film artists and
other film professional,
author, playwright, sports
persons, sports
professional, media
professional or any other
vocations of like status.
(ii) Persons engaged in

trade, business and Criteria specified against Category VI will apply-
industry. Explanation:
(i) Where the husband is in same profession and the wife is
in a Class II or lower grade employment, the income/wealth test
will apply only on the basis of the husband's income;
(ii) If the wife is in any profession and the husband is in
employment in a Class II or lower rank post, then the
income/wealth criterion will apply only on the basis of the wife's
income and the husband's income will not be clubbed with it.
V. Property Owners
A. Agricultural holdings Son(s) and daughter(s) of
persons belonging to a family (father, mother and minor
children) which owns
(a) only irrigated land which is equal to or more than 85 per
cent of the statutory Area; or

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(b) both irrigated and unirrigated land, as follows:-
(i) The rule of exclusion will apply where the
precondition exists that the irrigated area (having been brought
to a single type under a common denominator) 40 per cent or
more of the statutory ceiling limit for irrigated land (this being
calculated by excluding the unirrigated portion). If this
precondition of not less than 40 per cent exists, then only the
area of unirrigated land will be taken into account. This will be
done by converting the unirrigated land on the basis of the
conversion formula existing, into the irrigated type. The irrigated
area so computed from unirrigated land shall be added to the
actual area of irrigated land and if after such clubbing together
the total area in terms of irrigated land is 80 per cent or more of
the statutory ceiling limit for irrigated land, then the rule of
exclusion will apply and disentitlement will occur;
(ii) The rule of exclusion will not apply if the land
holding of a family is exclusively unirrigated.
Criteria of income/wealth specified in Category VI below will

apply.
Deemed as agricultural holding and hence, criteria at A above
under this category will apply. Criteria specified in Category VI
below will apply.
Criteria specified in Category VI below will apply.
Explanation: Building may be used for residential, industrial
or commercial purpose and the like two or more such purposes.
B. Plantations
(i) Coffee, tea, rubber
etc.
(ii) Mango, citrus, apple
plantations, etc.
C. Vacant land and/or

buildings, in urban
areas or urban
agglomerations
VI. Income/Wealth Test Son(s) and daughter(s) of-
(a) persons having gross annual income of Rs. 1 lakh or above or
possessing wealth above the exemption limit as prescribed in the
Wealth Tax Act for a period of three consecutive years;
(b) persons in Categories I, II, III and V-A who are not disentitled
to the benefit of reservation but have income from other sources
of wealth which will bring them within the income/wealth
criteria mentioned in (a) above.
Explanation.-
(i) Income from salaries or agricultural land shall not be
clubbed;
(ii) The income criteria in terms of rupee will be modified
taking into account the change in its value every three years; If
the situation, however, so demands, the interregnum may be less.

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Explanation: Wherever the expression ‘permanent incapacitation’ occurs in this Schedule, it shall
mean incapacitation which results in putting an officer out of service.
[In Ashoka Kumar Thakur v. State of Bihar (1995) 5 SCC 403, 417, para 10, it was held that the above
Office Memorandum conforms to the law laid down in Indra Sawhney case.]
154. We make it clear that same principle of determining the creamy layer for providing 27% reservation
for backward classes for appointment need not be strictly followed in case of reservation envisaged under
Article 15(5) of the Constitution. As pointed by Shri Ravivarma Kumar, learned Senior Counsel, if a strict
income restriction is made for identifying the “creamy layer”, those who are left in the particular caste may not
be able to have a sufficient number of candidates for getting admission in the central institutions as per Act 5
of 2007. Government can make a relaxation to some extent so that sufficient number of candidates may be
available for the purpose of filling up the 27% reservation. It is for the Union Government and the State
Governments to issue appropriate guidelines to identify the “creamy layer” so that SEBC are properly
determined in accordance with the guidelines given by this Court. If, even by applying this principle, still the
candidates are not available, the State can issue appropriate guidelines to effectuate the implementation of the
reservation purposefully.
155. As noticed earlier, “backward class” defined in Section 2(g) does not exclude “creamy layer”.
Therefore, we make it clear that backward class as defined in Section 2(g) of Act 5 of 2007 must be deemed to
have been such backward class by applying the principle of exclusion of “creamy layer”.
8. Whether the “creamy layer” principle is applicable to Scheduled Tribes and Scheduled Castes?
157. N.M. Thomas case does not state that “creamy layer” principle should apply to SCs and STs. In K.C.
Vasanth Kumar case the “creamy layer” was used in the case of backward caste or class.
158. In Nagaraj case in paragraph 80, it is stated that while “applying the ‘creamy layer’ test, this Court
held that if roster-point promotees are given consequential seniority, it will violate the equality principle
which is part of the basic structure of the Constitution and in which even Article 16(4-A) cannot be of any
help to the reserved category candidates.” This was with reference to the observations made in Indra Sawhney
case and earlier in M.G. Badappanavar v. State of Karnataka [(2001) 2 SCC 666]; Ajit Singh (II) v. State of
Punjab [(1999) 7 SCC 209] and Union of India v. Virpal Singh Chauhan [(1995) 6 SCC 684]. Virpal Singh
Chauhan case dealt with reservation of railway employees wherein it is held that once the number of posts
reserved for being filled by reserved category candidates in a cadre, category or grade (unit for application of
rule of reservation) are filled by the operation of roster, the object of the rule of reservation should be deemed
to have been achieved. Ajit Singh II case dealt with consequential seniority on promotion and held that roster
points fixed at Level 1 are not intended to determine any seniority at Level 1 between general candidates and
the reserved candidates and the roster point merely becomes operative whenever a vacancy reserved at Level 2
becomes available. Thereby holding that if promotion is obtained by way of reservation, the consequential
seniority will not be counted. M.G. Badappanavar case followed the cases of Ajit Singh II and Virpal Singh.
159. In none of these decisions it is stated that the “creamy layer” principle would apply to SCs and STs.
In Indra Sawhney case, it is specifically stated that the "creamy layer" principle will not apply to STs and SCs.
In Nagaraj case, in paragraphs 110 and 120 and finally in paragraphs 121, 122 and 123, it is only stated that
when considering questions of affirmative action, the larger principle of equality such as 50% ceiling
(quantitative limitation) and “creamy layer” (quantitative exclusion) may be kept in mind. In Nagaraj case it
has not been discussed or decided that the creamy layer principle would be applicable to SCs/STs. Therefore, it
cannot be said that the observations made in Nagaraj case are contrary to the decision in Indra Sawhney's
case.
160. Moreover, the “creamy layer” principle is not yet applied as a principle of equality or as a general
principle to apply for all affirmative actions. The observations made by Chinnappa Reddy, J. in K.C. Vasanth
Kumar case are relevant in this regard.
161. So far, this Court has not applied the “creamy layer” principle to the general principle of equality for
the purpose of reservation. The “creamy layer” so far has been applied only to identify the backward class, as
it required certain parameters to determine the backward classes. “Creamy layer” principle is one of the
parameters to identify backward classes. Therefore, principally, the "creamy layer" principle cannot be applied
to STs and SCs, as SCs and STs are separate classes by themselves. Ray, CJ., in an earlier decisions, stated
that “Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste”. And they
are so identified by virtue of the Notification issued by the President of India under Articles 341 and 342 of the
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Constitution. The President may, after consultation with the Governor, by public notification, specify the
castes, races or tribes or parts of or groups within castes, races or tribes which for the purpose of the
Constitution shall be deemed to be Scheduled Castes or Scheduled Tribes. Once the Notification is issued, they
are deemed to be the members of Scheduled Castes or Scheduled Tribes, whichever is applicable. In E.V.
Chinnaiah, concurring with the majority judgment, S.B. Sinha, J. said:
The Scheduled Castes and Scheduled Tribes occupy a special place in our Constitution. The
President of India is the sole repository of the power to specify the castes, races or tribes or parts of or
groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be
Scheduled Castes. The Constitution (Scheduled Castes) Order, 1950 made in terms of Article 341(1)
is exhaustive. The object of Articles 341 and 342 is to provide for grant of protection to the backward
class of citizens who are specified in the Scheduled Castes Order and Scheduled Tribes Order having
regard to the economic and education backwardness wherefrom they suffer. Any legislation which
would bring them out of the purview thereof or tinker with the order issued by the President of India
would be unconstitutional. (Paras 52, 111 and 84). (emphasis supplied)
162. A plea was raised by the respondent-State that categorization of Scheduled Castes could be justified
by applying the “creamy layer” test as used in Indra Sawhney case which was specifically rejected in
paragraph 96 of the E.V. Chinnaiah case. It is observed:
But we must state that whenever such a situation arises in respect of Scheduled Caste, it will be
Parliament alone to take the necessary legislative steps in terms of Clause (2) of Article 341 of the
Constitution. The States concededly do not have the legislative competence therefor.
163. Moreover, right from the beginning, the Scheduled Castes and Scheduled Tribes were treated as a
separate category and nobody ever disputed identification of such classes. So long as “creamy layer” is not
applied as one of the principles of equality, it cannot be applied to Scheduled Castes and Scheduled Tribes. So
far, it is applied only to identify the socially and educationally backward classes. We make it clear that for the
purpose of reservation, the principles of "creamy layer" are not applicable for Scheduled Castes and Scheduled
Tribes.
9. Whether the principles laid down by the United States Supreme Court for affirmative action such as
“suspect legislation”, “strict scrutiny” and “compelling State necessity” are applicable to principles of
reservation or other affirmative action contemplated under Article 15(5) of the Constitution of India?
164. Based on the Ninety-Third Constitutional Amendment Act, Act 5 of 2007 has been enacted.
According to the petitioner’s Counsel, this is a “suspect legislation” and therefore, it is to be subjected to
“strict scrutiny” as laid by the United States Supreme Court and only by passing this test of “strict scrutiny”,
such legislation could be put into practice.
165. At the outset, it must be stated that the decisions of the United States Supreme Court were not applied
in the Indian context as it was felt that the structure of the provisions under the two Constitutions and the
social conditions as well as other factors are widely different in both the countries. Reference may be made to
Bhikaji Narain Dhakras v. The State of Madhya Pradesh [(1955) 2 SCC 589] and A.S. Krishna v. State of
Madras [(1957) SCR 399] wherein this Court specifically held that the due process clause in the Constitution
of the United States of America is not applicable to India.
166. In Kesavananda Bharati [(1973) 4 SCC 225] case also, while considering the extent and scope of the
power of amendment under Article 368 of the Constitution of India, the Constitution of the United States of
America was extensively referred to and Ray, J., held:
The American decisions which have been copiously cited before us, were rendered in the context
of the history of the struggle against colonialism of the American people, sovereignty of several States
which came together to form a Confederation, the strains and pressures which induced them to frame
a Constitution for a Federal Government and the underlying concepts of law and judicial approach
over a period of nearly 200 years, cannot be used to persuade this Court to apply their approach in
determining the cases arising under our Constitution.
167. It may also be noticed that there are structural differences in the Constitution of India and the
Constitution of the United States of America. Reference may be made to the 14th Amendment to the U.S.
Constitution. Some of the relevant portions thereof are as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State shall make or enforce any
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law which shall abridge the privileges and immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty or property without due process of law nor deny to any person
within its jurisdiction the equal protection of the laws.
168. Whereas in India, Articles 14 and 18 are differently structured and contain express provisions for
special provision for the advancement of SEBCs, STs and SCs. Moreover, in our Constitution there is a
specific provision under the Directive Principles of State Policy in Part IV of the Constitution requiring the
State to strive for justice 'social, economic and political' and to minimize the inequalities of income and
endeavour to eliminate inequalities in status, facilities and opportunities (Article 38). Earlier, there was a view
that Articles 16(4) and 15(5) are exceptions to Article 16(1) and 15(1) respectively.
169. In T. Devadasan at 700, Subba Rao J., gave a dissenting opinion wherein he held that Article 16(4)
was not an exception to Article 16(1). He observed:
The expression ‘nothing in this article’ is a legislative device to express its intention in a most
emphatic way that the power conferred thereunder is not limited in any way by the main provision but
falls outside it. It has not really carved out an exception, but has preserved a power untrammeled by
the other provisions of the Article.
170. In two other subsequent decisions, i.e., in Triloki Nath (I) at 104 and T. Devadasan case, it was held
that article 15(4) and 16(4) are exceptions to Article 15(1) and 16(1) respectively. But a 7-Judge Bench in
State of Kerala v. N.M. Thomas held that Article 15(4) and 16(4) are not exceptions to Article 15(1) and 16(1)
respectively. Fazal Ali J., said:
This form of classification which is referred to as reservation, is in my opinion, clearly covered by
Article 16(4) of the Constitution which is completely exhaustive on this point. That is to say Clause
(4) of Article 16 is not an exception to Article 14 in the sense that whatever classification can be
made, can be done only through Clause (4) of Article 16. Clause (4) of Article 16, however, is an
explanation containing an exhaustive and exclusive provision regarding reservation which is one of
the forms of classification.
171. This brought out a drastic change in the view of this Court. In K.C. Vasanth Kumar v. State of
Karnataka, Venkatramaiah J. observed:
Article 14 of the Constitution consists of two parts. It asks the State not to deny to any person
equality before law. It also asks the State not to deny the equal protection of the laws. Equality before
law connotes absence of any discrimination in law. The concept of equal protection required the State
to mete out differential treatment to persons in different situations in order to establish an equilibrium
amongst all. This is the basis of the rule that equals should be treated equally and unequals must be
treated unequally if the doctrine of equality which is one of the corner-stone of our Constitution is to
be duly implemented. In order to do justice amongst unequals, the State has to resort to compensatory
or protective discrimination. Article 15(4) and Article 16(4) of the Constitution were enacted as
measures of compensatory or protective discrimination to grant relief to persons belonging to socially
oppressed castes and minorities.
172. The amendment to Article 15 by inserting Article 15(5) and the new Act (Act 5 of 2007) are to be
viewed in the background of these constitutional provisions. It may also be recalled that the Preamble to the
Constitution and the Directive Principles of State Policy give a positive mandate to the State and the State is
obliged to remove inequalities and backwardness from society. While considering the constitutionality of a
social justice legislation, it is worthwhile to note the objectives which have been incorporated by the
Constitution makers in the Preamble of the Constitution and how they are sought to be secured by enacting
fundamental rights in Part III and Directives Principles of State Policy in Part IV of the Constitution. The
Fundamental Rights represent the civil and political rights and the Directive Principles embody social and
economic rights. Together they are intended to carry out the objectives set out in the Preamble of the
Constitution. Granville Austin, in his book15, states:
Both types of rights have developed as a common demand, products of the national and social
revolutions, of their almost inseparable intertwining, and of the character of Indian politics itself.
173. From the constitutional history of India, it can be seen that from the point of view of importance and
significance, no distinction can be made between the two sets of rights, namely, Fundamental Rights which are
made justiciable and the Directives Principles which are made non-justiciable. The Directive Principles of
State Policy are made non-justiciable for the reason that the implementation of many of these rights would
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depend on the financial capability of the State. Non-justiciable clause was provided for the reason that an
infant State shall not be made accountable immediately for not fulfilling these obligations. Merely because the
Directive Principles are non-justiciable by the judicial process does not mean that they are of subordinate
importance. In Champakam Dorairajan case, it was observed that “the Directive Principles have to conform
to and run subsidiary to the Chapter of Fundamental Rights.” But this view did not hold for a long time and
was later changed in a series of subsequent decisions.
174. In Minerva Mills [(1980) 3 SCC 625], Bhagwati, J observed:
The Fundamental Rights are no doubt important and valuable in a democracy, but there can be no
real democracy without social and economic justice to the common man and to create socio-economic
conditions in which there can be social and economic justice to every one, is the theme of the
Directive Principles. It is the Directive Principles which nourish the roots of our democracy, provide
strength and vigour to it and attempt to make it a real participatory democracy which does not remain
merely a political democracy with Fundamental Rights available to all irrespective of their power,
position or wealth. The dynamic provisions of the Directive Principles fertilise the static provisions of
the Fundamental Rights. The object of the Fundamental Rights is to protect individual liberty, but can
individual liberty be considered in isolation from the socio-economic structure in which it is to
operate. There is a real connection between individual liberty and the shape and form of the social and
economic structure of the society. Can there be any individual liberty at all for the large masses of
people who are suffering from want and privation and who are cheated out of their individual rights
by the exploitative economic system? Would their individual liberty not come in conflict with the
liberty of the socially and economically more powerful class and in the process, get mutilated or
destroyed? It is exiomatic that the real controversies in the present day society are not between power
and freedom but between one form of liberty and another. Under the present socio- economic system,
it is the liberty of the few which is in conflict with the liberty of the many. The Directive Principles
therefore, impose an obligation on the State to take positive action for creating socio- economic
conditions in which there will be an egalitarian social order with social and economic justice to all, so
that individual liberty will become a cherished value and the dignity of the individual a living reality,
not only for a few privileged persons but for the entire people of the country. It will thus be seen that
the Directive Principles enjoy a very high place in the constitutional scheme and it is only in the
framework of the socio-economic structure envisaged in the Directive Principles that the Fundamental
Rights are intended to operate, for it is only then they can become meaningful and significant for the
millions of our poor and deprived people who do not have been the bare necessities of life and who
are living below the poverty level.
175. Article 46 enjoins upon the State to promote with special care the educational and economic interests
of the weaker sections of the people and to protect them from social injustice and all forms of exploitation
whereas under the Constitution of the United States of America, we get an entirely different picture. Though
equality was one of the solemn affirmations of the American Declaration of Independence, slavery continued
unabatedly and it was, to some extent, legally recognized. In Dred Scott v. Saunders [60 US 393 (1856)]
wherein Chief Justice Taney held that [African-Americans] were not entitled to get citizenship. He was of the
view that 'once a slave always a slave', and one slave never would become the citizen of America. This view
held by the Chief Justice Taney continued for a long time and after the Civil War, the 14 th amendment was
enacted in 1868 and this amendment gave (equal protection of laws to all persons). In Plassy v. Ferguson [163
US 537 (1896)] which involved a challenge to a Louisiana statute that provided for equal but separate
accommodations for black and white passengers in trains, the United States Supreme Court was of the view
that racial segregation was a reasonable exercise of State police power for the promotion of the public good
and upheld the law. Several affirmative actions were challenged and the landmark decision of Brown v. Board
of Education [347 US 483] was delivered in 1954. In many cases, the strict scrutiny doctrine was being
applied to all laws of racial classifications. The learned Counsel for the petitioner made reference to Gratz v.
Bollinger and some of the earlier decisions of the United States Supreme Court. During the past two decades,
the Court has become sceptical of race-based affirmative action practiced or ordered by the State. The
Supreme Court of the US is of the view that affirmative action plans must rest upon a sufficient showing or
predicate of past discrimination which must go beyond the effects of societal discrimination.
176. The 14th Amendment to the Constitution of the United States of America and Title VI of the 1964
Civil Rights Act, prohibit universities to discriminate on the basis of classifications such as race, colour,
national origin and the like in all their operations. In a number of decisions of the United States Supreme Court
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spanning decades of jurisprudence, a heavy burden has been placed on institutions whose affirmative action
programmes are challenged before the United States Supreme Court on grounds that have been recognized as
suspect or unconstitutional. According to the United States Supreme Court, all such programmes are inherently
suspect since they rely on suspect forms of classification (such as race). Therefore, because such forms of
classification are inherently suspect, the courts have subjected all affirmative action programmes relying on
them to a very high standard of scrutiny, wherein those practicing these affirmative action programmes have to
adhere to a very high standard of proof, which we know as the “strict scrutiny” test.
177. The case of Regents of the University of California v. Bakke [438 US 265 (1978)] provided a
starting point and from this case onwards, affirmative action programmes can be justified only on two distinct
grounds, and only these grounds have been recognized as compelling enough so as to satisfy the “strict
scrutiny” test, as developed by the United States Supreme Court. The two grounds are as follows:
1. Remedial Justification – All efforts aimed at remedying past injustices against certain identified
groups of people, who were unlawfully discriminated against in the past, serve as adequate
justifications and all affirmative action programmes that are implemented with this aim serve the
compelling institutional interest in removing all vestiges of discrimination that occurred in the past. In
the case of City of Richmond v. J A Croson Co. [488 U.S. 469 (1989)], the United States Supreme
Court held that if a university is able to show “some showing of prior discrimination” in its existing
affirmative action program furthering racial exclusion then the university may take “affirmative steps
to dismantle such a system”. However, it is to be noted that the US Supreme Court also attached a
warning with the above observation. While scrutinizing such programmes, it was held that the Court
would make "searching judicial inquiry into the justification for such race-based measures... [and to]
identify that discrimination...with some specificity before they may use race - conscious relief".
(Croson's case p. 492-93)
2. Diversity – All affirmative action programmes aimed at bringing about racial diversity among
the scholarship of the institution(s) may be said to in furtherance of compelling institutional interest.
The starting point for this ground is Justice Powell's detailed opinion regarding the issue of diversity
in the case of Regents of the University of California v. Bakke. In this case, according to Justice
Powell, “[T]he attainment of a diverse student body is clearly a constitutionally permissible goal for
an institution of higher education”. He quoted from two of the Supreme Court’s decisions regarding
academic freedom [Sweezy v. New Hampshire [(1957) 354 US 234, 263] and Keyishian v. Board of
Regents [(1967) 385 US 589, 603] and observed:
[I]t is the business of a university to provide that atmosphere which is most conducive to
speculation, experiment and creation.... The atmosphere of speculation, experiment and creation - so
essential to the quality of higher education - is widely believed to be promoted by a diverse student
body.... [I]t is not too much to say that the nation's future depends upon leaders trained through wide
exposure to the ideas and mores of students as diverse as this Nation of many peoples.
178. The other part of the “strict scrutiny” test is the “narrow tailoring” test. The University, whose
affirmative action programme is in question before the United States Supreme Court, is required to prove that
its affirmative action programme has been designed in the narrowest possible manner, in order to benefit only
those specific people who are to be benefited, thus serving the “compelling purposes” of the affirmative action
programme. The program cannot be made in a broad manner to encompass a large group of people, and it has
to serve the minimum possible requirement, in order to achieve its goal. Otherwise, it may be possible that the
rights of other people may be infringed upon, which would make the affirmative action programme
unconstitutional.
179. Thus, the first limb of the strict scrutiny test that elucidates the “compelling institutional interest” is
focused on the objectives that affirmative action programmes are designed to achieve. The second limb, that of
“narrow tailoring”, focuses on the details of specific affirmative action programmes and on the specific people
it aims to benefit.
180. The United States Supreme Court has held that race may be one of the many factors that can be taken
into account while structuring an affirmative action programme. At this stage, an analogy may be drawn with
the Indian situation wherein the Supreme Court of India, in various cases, has held that caste may be one of the
factors that can be taken into account, while providing for reservations for the socially and educationally
backward classes. However, caste cannot be the “only” factor, just as race alone cannot be the only factor in
the United States, while structuring reservation or affirmative action programmes.

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181. Furthermore, the courts, both in India as well as in the United States of America, have looked with
extreme caution and care at any legislation that aims to discriminate on the basis of race in the US and caste in
India. As the US Supreme Court elucidated in the case of Grutter v. Bollinger, “Because the Fourteenth
Amendment “protect[s] persons, not group” all governmental action based on race ought to be subjected to a
very detailed and careful judicial inquiry and scrutiny so as to ensure that the personal right to equal protection
of the laws has not been infringed.
182. It therefore follows that the government may treat people differently because of their race but only for
those reasons that serve what is known as “compelling government interest”.
183. Furthermore, for any affirmative action programme to survive the strict standard of judicial scrutiny,
the Courts want “compelling evidence”, that proves without any doubt that the affirmative action program is
narrowly tailored and serves only the most compelling of interests. Thus, the bar for the State or institution that
practices affirmative action programmes based of suspect classifications has been effectively raised. Therefore,
in cases where a compelling interest is found, race-based methods may be used only after all other methods
have been considered and found deficient, and that too only to that limited extent which is required to remedy
a discrimination that has been identified, and only when it has been shown that the identified beneficiaries
have suffered previously in the past, and lastly, only if all undue burdens that may impinge upon the rights of
other non-beneficiaries are avoided.
184. The aforesaid principles applied by the Supreme Court of the United States of America cannot be
applied directly to India as the gamut of affirmative action in India is fully supported by constitutional
provisions and we have not applied the principles of “suspect legislation” and we have been following the
doctrine that every legislation passed by the Parliament is presumed to be constitutionally valid unless
otherwise proved. We have repeatedly held that the American decisions are not strictly applicable to us and the
very same principles of strict scrutiny and suspect legislation were sought to be applied and this Court rejected
the same in Saurabh Chaudhari v. Union of India [(2003) 11 SCC 146]. Speaking for the bench, V.N. Khare,
CJI, said:
The strict scrutiny test or the intermediate scrutiny test applicable in the United States of America
as argued by Shri Salve cannot be applied in this case. Such a test is not applied in Indian Courts. In
any event, such a test may be applied in a case where a legislation ex facie is found to be
unreasonable. Such a test may also be applied in a case where by reason of a statute the life and liberty
of a citizen is put in jeopardy. This Court since its inception apart from a few cases where the
legislation was found to be ex facie wholly unreasonable proceeded on the doctrine that
constitutionality of a statute is to be presumed and the burden to prove contra is on him who asserts
the same.
185. Learned Counsel Shri Sushil Kumar Jain contended that the classification of OBCs was not properly
done and it is not clear as to whose benefit the legislation itself is made therefore, it is a suspect legislation.
This contention cannot be accepted. We are of the view that the challenge of Act 5 of 2007 on the ground that
it does not stand the “strict scrutiny” test and there was no “compellable State necessity” to enact this
legislation cannot be accepted.
10. Whether delegation of power to the Union Government to determine as to who shall be the backward
class is constitutionally valid?
186. The learned Counsel for the petitioners contended that though “Backward Class” is defined under
Section 2(g) of Act 5 of 2007, it is not stated in the Act how the “Backward Class” would be identified and the
delegation of such power to the Union of India to determine as to who shall be the “backward class” without
their being proper guidelines is illegal as it amounts to excessive delegation. According to the learned Counsel
for the petitioners, the Parliament itself should have laid down the guidelines and decided that who shall be
included in the backward class as defined under Section 2(g) of the Act 5 of 2007. “Backward class” is not a
new word. Going by the Constitution, there are sufficient constitutional provisions to have an idea as to what
“backward class” is. Article 340 of the Constitution specifically empowers the President of India to appoint a
Commission to investigate the conditions of the socially and educationally backward classes within the
territory of India. Socially and educationally backward classes of citizens are mentioned in Article 15(4) of the
Constitution, which formed the First Amendment to the Constitution. Backward class citizens are also
mentioned in Article 16(4) of the Constitution. It is only for the purpose of Act 5 of 2007 that the Union of
India has been entrusted with the task of determining the backward class. There is already a National
Commission and also various State Commissions dealing with the affairs of the backward class of citizens in
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this country. For the purpose of enforcement of the legislation passed under Article 16(4), the backward class
of citizens have already been identified and has been in practice since the past 14 years. It is in this background
that the Union of India has been given the task of determining the backward classes. The determination of
backward classes itself is a laborious task and the Parliament cannot do it by itself. It is incorrect to say that
there are no sufficient guidelines to determine the backward classes. Various parameters have been used and it
may also be noticed that if any undeserving caste or group of persons are included in the backward class, it is
open to any person to challenge the same through judicial review. Therefore, it is incorrect to say that the
Union of India has been given wide powers to determine the backward classes. The challenge of Act 5 of 2007
on that ground fails.
11. Whether the Act is invalid as there is no time limit prescribed for its operation and no periodical review
is contemplated?
187. The learned Counsel for the petitioners contended that the reservation of 27% provided for the
backward classes in the educational institutions contemplated under the Act does not prescribe any time limit
and this is opposed to the principle of equality. According to learned Counsel for the petitioners, this
affirmative action that is to bring about equality is calculated to produce equality on a broader basis by
eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality
with the stronger and more power section so that each member of the community, whatever is his birth,
occupation or social position may enjoy equal opportunity of using to the full, his natural endowments of
physique, of character and of intelligence. This compensatory state action can be continued only for a period
till that inequality is wiped off. Therefore, the petitioners have contended that unless the period is prescribed,
this affirmative action will continue for an indefinite period and would ultimately result in reverse
discrimination. It is true that there is some force in the contention advanced by the learned Counsel for the
petitioners but that may happen in future if the reservation policy as contemplated under the Act is successfully
implemented. But at the outset, it may not be possible to fix a time limit or a period of time. Depending upon
the result of the measures and improvements that have taken place in the status and educational advancement
of the socially and educationally backward classes of citizens, the matter could be examined by the Parliament
at a future time but that cannot be a ground for striking down a legislation. After some period, if it so happens
that any section of the community gets an undue advantage of the affirmative action, then such community can
very well be excluded from such affirmative action programme. The Parliament can certainly review the
situation and even though a specific class of citizens is in the legislation, it is the constitutional duty of the
Parliament to review such affirmative action as and when the social conditions are required. There is also the
safeguard of judicial review and the court can exercise its powers of judicial review and say that the
affirmative action has carried out its mission and is thus no longer required. In the case of reservation of 27%
for backward classes, there could be a periodic review after a period of 10 years and the Parliament could
examine whether the reservation has worked for the good of the country. Therefore, the legislation cannot be
held to be invalid on that ground but a review can be made after a period of 10 years.
12. What shall be the educational standard to be prescribed to find out whether any class is educationally
backward?
188. Learned Senior Counsel Shri P.P. Rao contended that under Article 15(5) of the Constitution, the
reservation or any other affirmative action could be made for the advancement of only socially and
educationally backward classes of citizens or Scheduled Castes or Scheduled Tribes and the educational
standard to be assessed shall be matriculation or 10+2 and not more than that. It was argued that many castes
included in the backward class list have got a fairly good number of members who have passed 10+2 and thus
such castes are to be treated as educationally forward and the present legislation, namely, Act 5 of 2007, is
intended to give reservation to students in higher institutions of learning and the same is not permissible under
Article 15(5) of the Constitution. He contended that the Parliament should not have made this legislation for
reservation in the higher institutions of learning as it is not part of the duty of the State under Article 46 of the
Constitution. According to the learned Counsel, education contemplated under Article 46 is only giving
education upto the standard of 10+2. The learned Counsel argued that this was the desire of the Founding
Fathers of the Constitution. The learned Counsel contended further that the State is not taking adequate steps
to improve primary education.
189. In reply to Shri P.P. Rao's arguments, learned Solicitor General Shri G. E. Vahanvati drew our
attention to various steps taken by the Union Government to improve the primary school education and also
the upper primary school education. It is incorrect to suggest that there have been no efforts on the part of
successive Governments to concentrate on level of education towards universal elementary education. “Sarva
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Shiksha Abhiyanm” (SSA) had been launched by the Government in 2001-2002. The major components of
SSA include opening of new schools, distribution of teaching equipments, school grant for teachers and
maintenance for schools, community participation & training, carrying out civil works in school buildings,
additional class rooms, distribution of free text books for ST students and girls. It was pointed out that in the
year 2006-2007, nearly Rs. 15,000 crores had been spent for such education. The Integrated Child
Development Services (ICDS) scheme was started in 1975. Latest figures show that progress has been made in
the field of education. It is pointed out that the primary school coverage has increased from 86.96% (2002) to
96% and that of Upper Primary School has increased from 78.11% to 85.3% with the opening of 1.34 Lakh
Primary Schools and 1.01 lakh Upper Primary Schools. The gross enrolment has also increased at the primary
as well as upper primary stage. Drop out rate has fallen by 11.3%. It is also pointed out that girls enrolment has
increased from 43.7% (2001) to 46.7% (2004) at primary and from 40.9% to 44% at upper primary stage. The
Union of India has granted funds to various states for the purpose of meeting the education requirements. The
entire details were furnished to the Court and we do not think it necessary to go into these details. Though at
the time of attaining Independence, the basic idea was to improve primary and secondary level education, but
now, after a period of more than 50 years, it is idle to contend that the backward classes shall be determined on
the basis of their attaining education only to the level of 10+2 stage. In India there are a large number of arts,
science and professional colleges and in the field of education, it is anachronistic to contend that primary
education or secondary education shall be the index for fixing backward class of citizens. We find no force in
the contention advanced by the learned Counsel for the petitioners and it is only to be rejected.
13. Whether the quantum of reservation provided for in the Act is valid and whether 27% of seats for SEBC
was required to be reserved?
190. The main contention of the petitioner's Counsel especially that of Shri Sushil Kumar Jain is that the
entire Act is liable to be set aside as there was no necessity to provide any reservation to socially and
educationally backward classes and according to him most of the castes included in the list which is prepared
in accordance with the Mandal Commission are educationally very much advanced and the population of such
group is not scientifically collected and the population ratio of backward classes is projected only on the basis
of the 1931 census and the entire legislation is an attempt to please a section of the society as part of a vote
catching mechanism.
191. A legislation passed by the Parliament can be challenged only on constitutionally recognized grounds.
Ordinarily, grounds of attack of a legislation is whether the legislature has legislative competence or whether
the legislation is ultra vires of the provisions of the Constitution. If any of the provisions of the legislation
violates fundamental rights or any other provisions of the Constitution, it could certainly be a valid ground to
set aside the legislation by invoking the power of judicial review. A legislation could also be challenged as
unreasonable if it violates the principles of equality adumbrated in our Constitution or it unreasonably restricts
the fundamental rights under Article 19 of the Constitution. A legislation cannot be challenged simply on the
ground of unreasonableness because that by itself does not constitute a ground. The validity of a constitutional
amendment and the validity of plenary legislation have to be decided purely as questions of constitutional law.
This Court in State of Rajasthan v. Union of India [(1977) SCC 592, 660] said:
(I)f a question brought before the Court is purely a politically question not involving
determination of any legal or constitutional right or obligation, the court would not entertain it, since
the Court is concerned only with adjudication of legal rights and liabilities.
192. Therefore, the plea of the Petitioner that the legislation itself was intended to please a section of the
community as part of the vote catching mechanism is not a legally acceptable plea and it is only to be rejected.
193. The quantum of reservation provided under the Act 5 of 2007 is based on the detailed facts available
with the Parliament. Various commissions have been in operation determining as to who shall form the
SEBCs. Though a caste-wise census is not available, several other data and statistics are available. In the case
of Indra Sawhney, the Mandal Commission was accepted in principle though the details and findings of the
commissions were not fully accepted by this Court. 27% of reservation in the matter of employment was
accepted by this Court. Petitioners have not produced any documents to show that the backward class citizens
are less than 27%, vis-a-vis, the total population of this country or that there was no requirement of 27%
reservation for them. The Parliament is invested with the power of legislation and must be deemed to have
taken into consideration all relevant circumstances when passing a legislation of this nature. It is futile to
contend whether Parliament was not aware of the statistical details of the population of this country and,
therefore, we do not think that 27% reservation provided in the Act is illegal or on that account, the Act itself
is liable to be struck down.
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Questions:
1. Whether the Ninety-Third Amendment of the Constitution is against the “basic
structure” of the Constitution?
The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the “basic structure” of
the Constitution so far as it relates to the state maintained institutions and aided educational
institutions. Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be
constitutionally valid or not so far as “private unaided” educational institutions are concerned, is left
open to be decided in an appropriate case.
2. Whether Articles 15(4) and 15(5) are mutually contradictory, hence Article 15(5) is to be
held ultra vires?
Article 15(5) is constitutionally valid and Articles 15(4) and 15(5) are not mutually
contradictory.
3. Whether exclusion of minority educational institutions from Article 15(5) is violative of
Article 14 of Constitution?
Exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of
the Constitution as the minority educational institutions, by themselves, are a separate class and their
rights are protected by other constitutional provisions.
4. Whether the Constitutional Amendment followed the procedure prescribed under
Article 368 of the Constitution?
The Ninety-Third Amendment of the Constitution does not affect the executive power of the
State under Article 162 of the Constitution and hence, procedure prescribed under Proviso to Article
368(2) is not required to be followed.
5. Whether the Act 5 of 2007 is constitutionally invalid in view of definition of “Backward
Class” and whether the identification of such “Backward Class” based on “caste” is
constitutionally valid?
Identification of “backward class” is not done solely based on caste. Other parameters are
followed in identifying the backward class. Therefore, Act 5 of 2007 is not invalid for this reason.
6. Whether “Creamy Layer” is to be excluded from SEBCs?
“Creamy Layer” is to be excluded from SEBCs. The identification of SEBCs will not be
complete and without the exclusion of “creamy layer” such identification may not be valid under
Article 15(1) of the Constitution.
7. What should be the para-meters for determining the “creamy layer” group?
The parameters contained in the Office Memorandum issued by the Government of India,
Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) on
08.09.1993 may be applied. And the definition of “Other Backward Classes” under Section 2(g) of
the Act 5 of 2007 should be deemed to mean class or classes of citizens who are socially and
educationally backward, and so determined by the Central Government; and if the determination is
with reference to caste, then the backward class shall be after excluding the creamy layer.
8. Whether the “creamy layer” principle is applicable to Scheduled Tribes and Scheduled
Castes?
“Creamy Layer” principle is not applicable to Scheduled Castes and Scheduled Tribes.
9. Whether the principles laid down by the United States Supreme Court for affirmative
action such as “suspect legislation”, “strict scrutiny” and “compelling State necessity” are
applicable to principles of reservation or other affirmative action contemplated under Article
15(5) of the Constitution?
The principles laid down by the United States Supreme Court such as “suspect legislation”,
“strict scrutiny” and “compelling State necessity” are not applicable for challenging the validity of
Act 5 of 2007 or reservations or other affirmative action contemplated under Article 15(5) of the
Constitution.

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10. Whether delegation of power to the Union Government to determine as to who shall be
the backward class is constitutionally valid?
The delegation of power to the Union Government to determine as to who shall be the “other
backward classes” is not excessive delegation. Such delegation is constitutionally valid.
11. Whether the Act is invalid as there is no time limit prescribed for its operation and no
periodical review is contemplated?
The Act 5 of 2007 is not invalid for the reason that there is no time limit prescribed for its
operation, but a review can be made after a period of 10 years.
12. What shall be the educational standard to be prescribed to find out whether any class is
educationally backward?
The contention that educational standard of matriculation or (10+2) should be the benchmark to
find out whether any class is educationally backward is rejected.
13. Whether the quantum of reservation provided for in the Act is valid and whether 27%
of seats for SEBC was required to be reserved?
27% of seats for other backward classes is not illegal and the Parliament must be deemed to have taken
into consideration all relevant circumstances when fixing the 27% reservation.
These Writ Petitions are disposed off in light of the above findings, and the “Other Backward Classes”
defined in Section 2(g) of Act 5 of 2007 is to be read as “Socially and Educationally Backward Classes” other
than Scheduled Castes and Scheduled Tribes, determined as ‘Other Backward Classes’ by the Central
Government and if such determination is with reference to caste, it shall exclude “Creamy Layer” from among
such caste.
*****

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Constitutional Validity of Reservations in Promotions
M. Nagaraj v. Union of India

(2006) 8 SCC 212
The petitioners invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash the
Constitution (Eighty-fifth Amendment) Act, 2001 inserting Article 16(4-A) of the Constitution retrospectively
from 17-6-1995 providing reservation in promotion with consequential seniority as being unconstitutional and
violative of the basic structure. The petitioners argued that:
 Parliament has appropriated the judicial power to itself and has acted as an Appellate Authority by
reversing the judicial pronouncements of the Court by the use of power of amendment as done by the
impugned amendment and is, therefore, violative of the basic structure of the Constitution. The said
amendment is, therefore, constitutionally invalid and is liable to be set aside.
 The amendment also sought to alter the fundamental right of equality which is part of the basic structure of
the Constitution. The equality in the context of Article 16(1) connotes “accelerated promotion” so as not to
include consequential seniority.
 By attaching consequential seniority to the accelerated promotion, the impugned amendment violated
equality in Article 14 read with Article 16(1).
 By providing reservation in the matter of promotion with consequential seniority, there is impairment of
efficiency.
In Indra Sawhney [1992 Supp (3) SCC 217] decided on 16-11-1992, the Supreme Court had held that
under Article 16(4), reservation to the Backward Classes is permissible only at the time of initial
recruitment and not in promotion. According to the petitioners contrary to the said judgment, Parliament
enacted the Constitution (Seventy-seventh Amendment) Act, 1995. By the said amendment, Article
16(4A) was inserted, which reintroduced reservation in promotion.
 The Constitution (Seventy-seventh Amendment) Act, 1995 was also challenged by some of the petitioners.
According to them if accelerated seniority is given to the roster-point promotees, the consequences would
be disastrous. A roster-point promotee in the graduate stream would reach the 4th level by the time he
attains the age of 45 years. At the age of 49, he would reach the highest level and stay there for nine years.
On the other hand, the general merit promotee would reach the 3rd level out of 6 levels at the age of 56 and
by the time, he gets eligibility to the 4th level, he would have retired from service. The petitioners say that
the consequences of the impugned 85th Amendment which provides for reservation in promotion, with
consequential seniority, would result in reverse discrimination in the percentage of representation of the
reserved category officers in the higher cadre.
The Constitution (Seventy-seventh Amendment) Act, 1995: Clause (4A) to article 16 was inserted:
“(4-A) Nothing in this article shall prevent the State from making any provision for reservation in
matters of promotion to any class or classes of posts in the services under the State in favour of the
Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately
represented in the services under the State.”
The Constitution (Eighty-first Amendment) Act, 2000: Clause (4B) to article 16 was inserted:
“(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year
which are reserved for being filled up in that year in accordance with any provision of reservation
made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding
year or years and such class of vacancies shall not be considered together with the vacancies of the
year in which they are being filled up for determining the ceiling of fifty per cent reservation on total
number of vacancies of that year.
The Constitution (Eighty-second Amendment) Act, 2000: A proviso was inserted at the end of Article 335
of the Constitution which reads:
“Provided that nothing in this article shall prevent in making of any provision in favour of the
members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any
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examination or lowering the standards of evaluation, for reservation in matters of promotion to any
class or classes of services or posts in connection with the affairs of the Union or of a State.”
The Constitution (Eighty-fifth Amendment) Act, 2001:
“(4-A) Nothing in this article shall prevent the State from making any provision for reservation in
matters of promotion, with consequential seniority, to any class to any class or classes of posts in the
services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the
opinion of the State, are not adequately represented in the services under the State.”
Broad issues in Writ Petition No. 527 of 2002:
The broad issues that arise for determination in this case related to: 1. Validity; 2. Interpretation; 3.
Implementation, of (i) the Constitution (Seventy-seventh Amendment) Act, 1995, the Constitution (Eighty-
first Amendment) Act, 2000, the Constitution (Eighty-second Amendment) Act, 2000, and the Constitution
(Eighty-fifth Amendment) Act, 2001; and, (ii) action taken in pursuance thereof which seek to reverse
decisions of the Supreme Court in matters relating to promotion and their application with retrospective effect.
S.H. KAPADIA, J. - The width and amplitude of the right to equal opportunity in public employment, in the
context of reservation, broadly falls for consideration in these writ petitions under Article 32 of the
Constitution.
Standards of judicial review of constitutional amendments
22. The question which arises before us is regarding the nature of the standards of judicial review required
to be applied in judging the validity of the constitutional amendments in the context of the doctrine of basic
structure. The concept of a basic structure giving coherence and durability to a Constitution has a certain
intrinsic force. This doctrine has essentially developed from the German Constitution. This development is the
emergence of the constitutional principles in their own right. It is not based on literal wordings.
25. For a constitutional principle to qualify as an essential feature, it must be established that the said
principle is a part of the constitutional law binding on the legislature. Only thereafter, is the second step to be
taken, namely, whether the principle is so fundamental as to bind even the amending power of Parliament i.e.,
to form a part of the basic structure. The basic structure concept accordingly limits the amending power of
Parliament. To sum up: in order to qualify as an essential feature, a principle is to be first established as part of
the constitutional law and as such binding on the legislature. Only then, can it be examined whether it is so
fundamental as to bind even the amending power of Parliament i.e., to form part of the basic structure of the
Constitution. This is the standard of judicial review of constitutional amendments in the context of the doctrine
of basic structure.
26. As stated above, the doctrine of basic structure has essentially emanated from the German
Constitution. Therefore, we may have a look at common constitutional provisions under German law which
deal with rights, such as, freedom of press or religion which are not mere values, they are justiciable and
capable of interpretation. The values impose a positive duty on the State to ensure their attainment as far as
practicable. The rights, liberties and freedoms of the individual are not only to be protected against the State,
they should be facilitated by it. They are to be informed. Overarching and informing of these rights and values
is the principle of human dignity under the German basic law. Similarly, secularism is the principle which is
the overarching principle of several rights and values under the Indian Constitution. Therefore, axioms like
secularism, democracy, reasonableness, social justice, etc., are overarching principles which provide linking
factor for principle of fundamental rights like Articles 14, 19 and 21. These principles are beyond the
amending power of Parliament. They pervade all enacted laws and they stand at the pinnacle of the hierarchy
of constitutional values. For example, under the German constitutional law, human dignity under Article 1 is
inviolable. It is the duty of the State not only to protect the human dignity but to facilitate it by taking positive
steps in that direction. No exact definition of human dignity exists. It refers to the intrinsic value of every
human being, which is to be respected. It cannot be taken away. It cannot give (sic be given). It simply is.
Every human being has dignity by virtue of his existence. The constitutional courts in Germany, therefore, see
human dignity as a fundamental principle within the system of the basic rights. This is how the doctrine of
basic structure stands evolved under the German Constitution and by interpretation given to the concept by the
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constitutional courts.
27. Under the Indian Constitution, the word “federalism” does not exist in the Preamble. However, its
principle (not in the strict sense as in USA) is delineated over various provisions of the Constitution. In
particular, one finds this concept in separation of powers under Articles 245 and 246 read with the three lists in
the Seventh Schedule to the Constitution.
28. To conclude, the theory of basic structure is based on the concept of constitutional identity. The basic
structure jurisprudence is a preoccupation with constitutional identity. In Kesavananda Bharati v. State of
Kerala it has been observed that “one cannot legally use the Constitution to destroy itself”. It is further
observed “the personality of the Constitution must remain unchanged”. Therefore, this Court in Kesavananda
Bharati while propounding the theory of basic structure, has relied upon the doctrine of constitutional identity.
The word “amendment” postulates that the old Constitution survives without loss of its identity despite the
change and it continues even though it has been subjected to alteration. This is the constant theme of the
opinions in the majority decision in Kesavananda Bharati. To destroy its identity is to abrogate the basic
structure of the Constitution. This is the principle of constitutional sovereignty. Secularism in India has acted
as a balance between socio-economic reforms which limits religious options and communal developments.
The main object behind the theory of the constitutional identity is continuity and within that continuity of
identity, changes are admissible depending upon the situation and circumstances of the day.
29. Lastly, constitutionalism is about limits and aspirations. According to Justice Brennan, interpretation
of the Constitution as a written text is concerned with aspirations and fundamental principles. In his article
titled “Challenge to the Living Constitution” by Herman Belz, the author says that the Constitution embodies
aspiration to social justice, brotherhood and human dignity. It is a text which contains fundamental principles.
Fidelity to the text qua fundamental principles did not limit judicial decision-making. The tradition of the
written constitutionalism makes it possible to apply concepts and doctrines not recoverable under the doctrine
of unwritten living Constitution.
30. Constitutional adjudication is like no other decision-making. There is a moral dimension to every
major constitutional case; the language of the text is not necessarily a controlling factor. Our Constitution
works because of its generalities, and because of the good sense of the judges when interpreting it. It is that
informed freedom of action of the judges that helps to preserve and protect our basic document of governance.
Is equality a part of the fundamental features or the basic structure of the Constitution?
31. At the outset, it may be noted that equality, rule of law, judicial review and separation of powers are
distinct concepts. They have to be treated separately, though they are intimately connected. There can be no
rule of law if there is no equality before the law; and rule of law and equality before the law would be empty
words if their violation was not a matter of judicial scrutiny or judicial review and judicial relief and all these
features would lose their significance if judicial, executive and legislative functions were united in only one
authority, whose dictates had the force of law. The rule of law and equality before the law are designed to
secure among other things, justice both social and economic. Secondly, a federal Constitution with its
distribution of legislative powers between Parliament and the State Legislatures involves a limitation on
legislative powers and this requires an authority other than Parliament and the State Legislatures to ascertain
whether the limits are transgressed and to prevent such violation and transgression. As far back as 1872, Lord
Selbourne said that the duty to decide whether the limits are transgressed must be discharged by the courts of
justice. Judicial review of legislation enacted by Parliament within limited powers under the controlled
Constitution which we have, has been a feature of our law and this is on the ground that any law passed by a
legislature with limited powers is ultra vires if the limits are transgressed. The framers conferred on the
Supreme Court the power to issue writs for the speedy enforcement of those rights and made the right to
approach the Supreme Court for such enforcement itself a fundamental right. Thus, judicial review is an
essential feature of our Constitution because it is necessary to give effect to the distribution of legislative
power between Parliament and the State Legislatures, and is also necessary to give practicable content to the
objectives of the Constitution embodied in Part III and in several other articles of our Constitution.
32. In Minerva Mills Chandrachud, C.J., speaking for the majority, observed that Articles 14 and 19 do
not confer any fanciful rights. They confer rights which are elementary for the proper and effective
functioning of democracy. They are universally regarded by the Universal Declaration of Human Rights. If
Articles 14 and 19 are put out of operation, Article 32 will be rendered nugatory.
33. From these observations, which are binding on us, the principle which emerges is that “equality” is the
essence of democracy and, accordingly a basic feature of the Constitution. This test is very important. Free and
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fair elections per se may not constitute a basic feature of the Constitution. On their own, they do not constitute
basic feature. However, free and fair election as a part of representative democracy is an essential feature as
held in Indira Nehru Gandhi v. Raj Narain (Election case). Similarly, federalism is an important principle of
constitutional law. The word “federalism” is not in the Preamble. However, as stated above, its features are
delineated over various provisions of the Constitution like Articles 245, 246 and 301 and the three lists in the
Seventh Schedule to the Constitution.
34. However, there is a difference between formal equality and egalitarian equality which will be
discussed later on.
35. The theory of basic structure is based on the principle that a change in a thing does not involve its
destruction and destruction of a thing is a matter of substance and not of form. Therefore, one has to apply the
test of overarching principle to be gathered from the scheme and the placement and the structure of an article
in the Constitution. For example, the placement of Article 14 in the equality code; the placement of Article 19
in the freedom code; the placement of Article 32 in the code giving access to the Supreme Court. Therefore,
the theory of basic structure is the only theory by which the validity of impugned amendments to the
Constitution is to be judged.
Working test in the matter of application of the doctrine of basic structure:
36. Once it is held that fundamental rights could be abridged but not destroyed and once it is further held
that several features of the Constitution cannot be destroyed, the concept of “express limitation” on the
amending power loses its force for a precise formulation of the basic features of the Constitution and for the
courts to pronounce on the validity of a constitutional amendment.
37. A working test has been evolved by Chandrachud, J. (as he then was) in the Election case in which the
learned Judge has rightly enunciated, with respect, that:
“For determining whether a particular feature of the Constitution is a part of its basic structure,
one has perforce to examine in each individual case the place of the particular feature in the scheme of
our Constitution, its object and purpose, and the consequences of its denial on the integrity of the
Constitution as a fundamental instrument of country’s governance.”
38. Applying the above test to the facts of the present case, it is relevant to note that the concept of
“equality” like the concept of “representative democracy” or “secularism” is delineated over various articles.
Basically, Part III of the Constitution consists of the equality code, the freedom code and the right to move the
courts. It is true that equality has several facets. However, each case has to be seen in the context of the
placement of an article which embodies the foundational value of equality.
Concept of reservation
39. Reservation as a concept is very wide. Different people understand reservation to mean different
things. One view of reservation as a generic concept is that reservation is an anti-poverty measure. There is a
different view which says that reservation is merely providing a right of access and that it is not a right to
redressal. Similarly, affirmative action as a generic concept has a different connotation. Some say that
reservation is not a part of affirmative action whereas others say that it is a part of affirmative action.
40. Our Constitution has, however, incorporated the word “reservation” in Article 16(4) which word is not
there in Article 15(4). Therefore, the word “reservation” as a subject of Article 16(4) is different from the word
“reservation” as a general concept.
41. Applying the above test, we have to consider the word “reservation” in the context of Article 16(4) and
it is in that context that Article 335 of the Constitution which provides for relaxation of the standards of
evaluation has to be seen. We have to go by what the Constitution-framers intended originally and not by
general concepts or principles. Therefore, schematic interpretation of the Constitution has to be applied and
this is the basis of the working test evolved by Chandrachud, J. in the Election case.
Justice, social, economic and political is provided not only in Part IV (directive principles) but also in Part
III (fundamental rights)
42. India is constituted into a sovereign, democratic republic to secure to all its citizens, fraternity assuring
the dignity of the individual and the unity of the nation. The sovereign, democratic republic exists to promote
fraternity and the dignity of the individual citizen and to secure to the citizens certain rights. This is because
the objectives of the State can be realised only in and through the individuals. Therefore, rights conferred on
citizens and non-citizens are not merely individual or personal rights. They have a large social and political
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content, because the objectives of the Constitution cannot be otherwise realised. Fundamental rights represent
the claims of the individual and the restrictions thereon are the claims of the society. Article 38 in Part IV is
the only article which refers to justice, social, economic and political. However, the concept of justice is not
limited only to directive principles. There can be no justice without equality. Article 14 guarantees the
fundamental right to equality before the law on all persons. Great social injustice resulted from treating
sections of the Hindu community as “untouchable” and, therefore, Article 17 abolished untouchability and
Article 25 permitted the State to make any law providing for throwing open all public Hindu religious temples
to untouchables. Therefore, provisions of Part III also provide for political and social justice.
43. This discussion is important because in the present case, we are concerned with reservation. Balancing
a fundamental right to property vis-à-vis Articles 39(b) and 39(c) as in Kesavananda Bharati and Minerva
Mills cannot be equated with the facts of the present case. In the present case, we are concerned with the right
of an individual to equal opportunity on one hand and preferential treatment to an individual belonging to a
Backward Class in order to bring about an equal level-playing field in the matter of public employment.
Therefore, in the present case, we are concerned with conflicting claims within the concept of “justice, social,
economic and political”, which concept as stated above exists both in Part III and Part IV of the Constitution.
Public employment is a scarce commodity in economic terms. As the supply is scarce, demand is chasing that
commodity. This is reality of life. The concept of “public employment” unlike the right to property is
socialistic and, therefore, falls within the Preamble to the Constitution which states that WE, THE PEOPLE
OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC. Similarly, the Preamble mentions the objective to be achieved, namely, justice,
social, economic and political. Therefore, the concept of “equality of opportunity” in public employment
concerns an individual, whether that individual belongs to the general category or Backward Class. The
conflicting claim of individual right under Article 16(1) and the preferential treatment given to a Backward
Class has to be balanced. Both the claims have a particular object to be achieved. The question is of
optimisation of these conflicting interests and claims.
Equity, justice and merit
44. The above three concepts are independent variable concepts. The application of these concepts in
public employment depends upon quantifiable data in each case. Equality in law is different from equality in
fact. When we construe Article 16(4), it is equality in fact which plays the dominant role. Backward Classes
seek justice. General class in public employment seeks equity. The difficulty comes in when the third variable
comes in, namely, efficiency in service. In the issue of reservation, we are being asked to find a stable
equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system.
Equity and justice in the above context are hard concepts. However, if you add efficiency to equity and justice,
the problem arises in the context of the reservation. This problem has to be examined, therefore, on the facts of
each case. Therefore, Article 16(4) has to be construed in the light of Article 335 of the Constitution.
Inadequacy in representation and backwardness of the Scheduled Castes and Scheduled Tribes are
circumstances which enable the State Government to act under Article 16(4) of the Constitution. However, as
held by this Court the limitations on the discretion of the Government in the matter of reservation under
Article 16(4) as well as Article 16(4-A) come in the form of Article 335 of the Constitution.
Reservation and affirmative action
47. Equality of opportunity has two different and distinct concepts. There is a conceptual distinction
between a non-discrimination principle and affirmative action under which the State is obliged to provide a
level-playing field to the oppressed classes. Affirmative action in the above sense seeks to move beyond the
concept of non-discrimination towards equalising results with respect to various groups. Both the conceptions
constitute “equality of opportunity”.
48. It is the equality “in fact” which has to be decided looking at the ground reality. Balancing comes in
where the question concerns the extent of reservation. If the extent of reservation goes beyond cut-off point
then it results in reverse discrimination. Anti-discrimination legislation has a tendency of pushing towards de
facto reservation. Therefore, a numerical benchmark is the surest immunity against charges of discrimination.
49. Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used
in a limited sense otherwise it will perpetuate casteism in the country. Reservation is underwritten by a special
justification. Equality in Article 16(1) is individual-specific whereas reservation in Article 16(4) and Article
16(4-A) is enabling. The discretion of the State is, however, subject to the existence of “backwardness” and
“inadequacy of representation” in public employment. Backwardness has to be based on objective factors
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whereas inadequacy has to factually exist. This is where judicial review comes in. However, whether
reservation in a given case is desirable or not, as a policy, is not for us to decide as long as the parameters
mentioned in Articles 16(4) and 16(4-A) are maintained. As stated above, equity, justice and merit (Article
335)/efficiency are variables which can only be identified and measured by the State. Therefore, in each case,
a contextual case has to be made out depending upon different circumstances which may exist Statewise.
Extent of reservation
53. The question of extent of reservation involves two questions:
1. Whether there is any upper-limit beyond which reservation is not permissible?
2. Whether there is any limit to which seats can be reserved in a particular year; in other words the
issue is whether the percentage limit applies only on the total number of posts in the cadre or to the
percentage of posts advertised every year as well?
54. The question of extent of reservation is closely linked to the issue whether Article 16(4) is an
exception to Article 16(1) or is Article 16(4) an application of Article 16(1). If Article 16(4) is an exception to
Article 16(1) then it needs to be given a limited application so as not to eclipse the general rule in Article
16(1). But if Article 16(4) is taken as an application of Article 16(1) then the two articles have to be
harmonised keeping in view the interests of certain sections of the society as against the interest of the
individual citizens of the society.
Maximum limit of reservation possible
55. Word of caution against excess reservation was first pointed out in G.M., S. Rly. v. Rangachari.
Gajendragadkar, J. giving the majority judgment said that reservation under Article 16(4) is intended merely to
give adequate representation to backward communities. It cannot be used for creating monopolies or for
unduly or illegitimately disturbing the legitimate interests of other employees. A reasonable balance must be
struck between the claims of Backward Classes and claims of other employees as well as the requirement of
efficiency of administration.
56. However, the question of extent of reservation was not directly involved in Rangachari. It was directly
involved in M.R. Balaji v. State of Mysore with reference to Article 15(4). In this case, 60% reservation under
Article 15(4) was struck down as excessive and unconstitutional. Gajendragadkar, J. observed that special
provision should be less than 50 per cent, how much less would depend on the relevant prevailing
circumstances of each case.
57. But in State of Kerala v. N.M. Thomas Krishna Iyer, J. expressed his concurrence with the views of
Fazal Ali, J. who said that although reservation cannot be so excessive as to destroy the principle of equality of
opportunity under clause (1) of Article 16, yet it should be noted that the Constitution itself does not put any
bar on the power of the Government under Article 16(4). If a State has 80% population which is backward
then it would be meaningless to say that reservation should not cross 50%.
58. However, in Indra Sawhney the majority held that the rule of 50% laid down in Balaji was a binding
rule and not a mere rule of prudence.
59. Giving the judgment of the Court in Indra Sawhney, Jeevan Reddy, J. stated that Article 16(4) speaks
of adequate representation not proportionate representation although proportion of population of Backward
Classes to the total population would certainly be relevant. He further pointed out that Article 16(4) which
protects interests of certain sections of society has to be balanced against Article 16(1) which protects the
interests of every citizen of the entire society. They should be harmonised because they are restatements of the
principle of equality under Article 14. (emphasis added)
Are reserved category candidates free to contest for vacancies in general category?
60. In Indra Sawhney, Jeevan Reddy, J. noted that reservation under Article 16(4) does not operate on
communal ground. Therefore, if a member from reserved category gets selected in general category, his
selection will not be counted against the quota limit provided to his class. Similarly, in R.K. Sabharwal, the
Supreme Court held that while general category candidates are not entitled to fill the reserved posts, reserved
category candidates are entitled to compete for the general category posts. The fact that considerable number
of members of Backward Class have been appointed/promoted against general seats in the State services may
be a relevant factor for the State Government to review the question of continuing reservation for the said
class.
Number of vacancies that could be reserved
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61. Wanchoo, J. who had given dissenting judgment in Rangachari observed that the requirement of
Article 16(4) is only to give adequate representation and since the Constitution-makers intended it to be a
short-term measure it may happen that all the posts in a year may be reserved. He opined that reserving a fixed
percentage of seats every year may take a long time before inadequacy of representation is overcome.
Therefore, the Government can decide to reserve the posts. After having reserved a fixed number of posts the
Government may decide that till those posts are filled up by the Backward Classes all appointments will go to
them if they fulfil the minimum qualification. Once this number is reached the Government is deprived of its
power to make further reservations. Thus, according to Wanchoo, J. the adequacy of representation has to be
judged considering the total number of posts even if in a single year or for few years all seats are reserved,
provided the scheme is short-term.
62. The idea given by Wanchoo, J. in Rangachari did not work out in practice because most of the time
even for limited number of reservations, every year qualified Backward Class candidates were not available.
This compelled the Government to adopt carry-forward rule. This carry-forward rule came in conflict with the
Balaji ruling. In cases where the availability of reserved category candidates is less than the vacancies set
aside for them, the Government has to adopt either of the two alternatives:
(1) the State may provide for carrying over the unfilled vacancies for the next year or next to the next
year, or
(2) instead of providing for carrying over the unfilled vacancies to the coming years, it may provide
for filling of the vacancies from the general quota candidates and carry forward the unfilled posts by
Backward Classes to the next year quota.
63. But the problem arises when in a particular year due to carry-forward rule more than 50% of vacancies
are reserved. In T. Devadasan v. Union of India, this was the issue. The Union Public Service Commission
had provided for 17½% reservation for the Scheduled Castes and Scheduled Tribes. In case of non-availability
of reserved category candidates in a particular year the posts had to be filled by general category candidates
and the number of such vacancies were to be carried forward to be filled by the reserved category candidates
next year. Due to this, the rule of carry-forward reservation in a particular year amounted to 65% of the total
vacancies. The petitioner contended that reservation was excessive which destroyed his right under Article
16(1) and Article 14. The Court on the basis of decision in Balaji held the reservation excessive and, therefore,
unconstitutional. It further stated that the guarantee of equality under Article 16(1) is to each individual citizen
and to appointments to any office under the State. It means that on every occasion for recruitment the State
should see that all citizens are treated equally. In order to effectuate the guarantee, each year of recruitment
will have to be considered by itself.
64. Thus, the majority differed from Wanchoo, J’s. decision in Rangachari holding that a cent per cent
reservation in a particular year would be unconstitutional in view of Balaji decision.
65. Subba Rao, J. gave a dissenting judgment. He relied on Wanchoo, J.’s judgment in Rangachari and
held that Article 16(4) provides for adequate representation taking into consideration the entire cadre strength.
According to him, if it is within the power of the State to make reservations then reservation made in one
selection or spread over many selections is only a convenient method of implementing the provision of
reservation. Unless it is established that an unreasonably disproportionate part of the cadre strength is filled up
with the said Castes and Tribes, it is not possible to contend that the provision is not one of reservation but
amounts to an extinction of the fundamental right.
66. In Thomas under the Kerala State and Subordinate Services Rules, 1950 certain relaxation was given
to the Scheduled Caste and Scheduled Tribe candidates passing departmental tests for promotions. For
promotion to Upper Division Clerks from Lower Division Clerks the criterion of seniority-cum-merit was
adopted. Due to relaxation in merit qualification in 1972, 34 out of 51 vacancies in Upper Division Clerks
went to the Scheduled Caste candidates. It appeared that the 34 members of SC/ST had become senior-most in
the lower grade. The High Court quashed the promotions on the ground that it was excessive. The Supreme
Court upheld the promotions. Ray, C.J. held that the promotions made in services as a whole were nowhere
near 50% of the total number of the posts. Thus, the majority differed from the ruling of the Court in
Devadasan basically on the ground that the strength of the cadre as a whole should be taken into account.
Khanna, J. in his dissenting opinion made a reference to it on the ground that such excessive concession would
impair efficiency in administration.
67. In Indra Sawhney the majority held that 50% rule should be applied to each year otherwise it may
happen that (if entire cadre strength is taken as a unit) the open competition channel gets choked for some
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years and meanwhile the general category candidates may become age-barred and ineligible. The equality of
opportunity under Article 16(1) is for each individual citizen while special provision under Article 16(4) is for
socially disadvantaged classes. Both should be balanced and neither should be allowed to eclipse the other.
68. However, in R.K. Sabharwal which was a case of promotion and the issue in this case was operation
of roster system, the Court stated that the entire cadre strength should be taken into account to determine
whether reservation up to the required limit had been reached. With regard to ruling in Indra Sawhney case
that reservation in a year should not go beyond 50% the Court held that it applied to initial appointments. The
operation of a roster, for filling the cadre strength, by itself ensures that the reservation remains within the 50%
limit. In substance the Court said that presuming that 100% of the vacancies have been filled, each post gets
marked for the particular category of candidate to be appointed against it and any subsequent vacancy has to
be filled by that category candidate. The Court was concerned with the possibility that reservation in the entire
cadre may exceed 50% limit if every year half of the seats are reserved. The Constitution (Eighty-first
Amendment) Act, 2000 added Article 16(4-B) which in substance gives legislative assent to the judgment in
R.K. Sabharwal.
Catch-up rule – Is the said rule a constitutional requirement under Article 16(4)?
69. One of the contentions advanced on behalf of the petitioners is that the impugned amendments,
particularly, the Constitution (Seventy-seventh Amendment) and (Eighty-fifth Amendment) Acts, obliterate all
constitutional limitations on the amending power of Parliament. That the width of these impugned
amendments is so wide that it violates the basic structure of equality enshrined in the Constitution.
70. The key issue which arises for determination is – whether the above “catch-up” rule and the concept of
“consequential seniority” are constitutional requirements of Article 16 and of equality, so as to be beyond the
constitutional amendatory process. In other words, whether obliteration of the “catch-up” rule or insertion of
the concept of “consequential seniority code”, would violate the basic structure of the equality code enshrined
in Articles 14, 15 and 16.
71. The concept of “catch-up” rule appears for the first time in Virpal Singh Chauhan. In the category of
Guards in the Railways, there were four categories, namely, Grade C, Grade B, Grade A and Grade A Special.
The initial recruitment was made to Grade C. Promotion from one grade to another was by seniority-cum-
suitability. The rule of reservation was applied not only at the initial stage of appointment to Grade C but at
every stage of promotion. The percentage reserved for SCs was 15% and for STs, it was 7.5%. To give effect
to the rule of reservation, a forty-point roster was prepared in which certain points were reserved for SCs and
STs respectively. Subsequently, a hundred-point roster was prepared reflecting the same percentages. In 1986,
general candidates and members of SCs/STs came within Grade A in Northern Railway. On 1-8-1986, the
Chief Controller promoted certain general candidates on ad hoc basis to Grade A Special. Within three
months, they were reverted and SCs and STs were promoted. This action was challenged by general candidates
as arbitrary and unconstitutional before the Tribunal. The general candidates asked for three reliefs, namely,
(a) to restrain the Railways from filling up the posts in higher grades in the category of Guards by applying the
rule of reservation; (b) to restrain the Railways from acting upon the seniority list prepared by them; and (c) to
declare that the general candidates were alone entitled to be promoted and confirmed in Grade A Special on
the strength of their seniority earlier to the reserved category employees. The contention of the general
candidates was that once the quota prescribed for the reserved group is satisfied, the forty-point roster cannot
be applied because that roster was prepared to give effect to the rule of reservation. It was contended by the
general candidates that accelerated promotion may be given but the Railways cannot give consequential
seniority to reserved category candidates in the promoted category. In this connection, the general category
candidates relied upon decisions of the Allahabad and Madhya Pradesh High Courts. It was contended by the
general candidates that giving consequential seniority in addition to accelerated promotion constituted
conferment of double benefit upon the members of the reserved category and, therefore, violated the rule of
equality in Article 16(1). It was further urged that accelerated promotion-cum-accelerated seniority is
destructive of the efficiency of administration inasmuch as by this means the higher echelons of administration
would be occupied entirely by members of reserved categories. This was opposed by the reserved category
candidates who submitted that for the purposes of promotion to Grade A Special, the seniority list pertaining to
Grade A alone should be followed that, the administration should not follow the seniority lists maintained by
the administration pertaining to Grade C as urged by the general candidates and since SCs and STs were senior
to the general candidates in Grade A, the seniority in Grade A alone should apply. In short, the general
candidates relied upon the “catch-up” rule, which was opposed by the members of SCs/STs. They also relied
upon the judgment of this Court in R.K. Sabharwal.
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72. This Court gave the following reasons for upholding the decision of the Tribunal. Firstly, it was held
that a rule of reservation as such does not violate Article 16(4). Secondly, this Court opined that there is no
uniform method of providing reservation. The extent and nature of reservation is a matter for the State to
decide having regard to the facts and requirements of each case. It is open to the State, if so advised, to say that
while the rule of reservation shall be applied, the candidate promoted earlier by virtue of rule of
reservation/roster shall not be entitled to seniority over seniors in the feeder category and that it is open to the
State to interpret the “catch-up” rule in the service conditions governing the promotions. Thirdly, this Court
did not agree with the view expressed by the Tribunal that a harmonious reading of clauses (1) to (4) of Article
16 should mean that a reserved category candidate promoted earlier than his senior general category candidates
in the feeder grade shall necessarily be junior in the promoted category to such general category. This Court
categorically ruled, that such catch-up principle cannot be said to be implicit in clauses (1) to (4) of Article
16. Lastly, this Court found on facts that for 11 vacancies, 33 candidates were considered and they were all
SC/ST candidates. Not a single candidate belonged to general category. It was argued on behalf of the general
candidates that all top grades stood occupied exclusively by the reserved category members, which violated
the rule of equality underlying Articles 16(1), 16(4) and 14. This Court opined that the above situation arose
on account of faulty implementation of the rule of reservation, as the Railways did not observe the principle
that reservation must be in relation to “posts” and not “vacancies” and also for applying the roster even after
the attainment of the requisite percentage reserved for SCs/STs. In other words, this Court based its decision
only on the faulty implementation of the rule by the Railways which the Court ordered to be rectified.
73. The point which we need to emphasise is that the Court has categorically ruled in Virpal Singh
Chauhan that the “catch-up” rule is not implicit in clauses (1) to (4) of Article 16. Hence, the said rule cannot
bind the amending power of Parliament. It is not beyond the amending power of Parliament.
74. In Ajit Singh (I) the controversy which arose for determination was – whether after the members of
SCs/STs for whom specific percentage of posts stood reserved having been promoted against those posts, was
it open to the administration to grant consequential seniority against general category posts in the higher grade.
The appellant took a clear stand that he had no objection if members of SCs/STs get accelerated promotions.
The appellant objected only to the grant of consequential seniority. Relying on the circulars issued by the
administration dated 19-7-1969 and 8-9-1969, the High Court held that the members of SCs/STs can be
promoted against general category posts on the basis of seniority. This was challenged in appeal before this
Court. The High Court’s ruling was set aside by this Court on the ground that if the “catch-up” rule is not
applied then the equality principle embodied in Article 16(1) would stand violated. This Court observed that
the “catch-up” rule was a process adopted while making appointments through direct recruitment or promotion
because merit cannot be ignored. This Court held that for attracting meritorious candidates a balance has to be
struck while making provisions for reservation. It was held that the promotion is an incident of service. It was
observed that seniority is one of the important factors in making promotion. It was held that the right to
equality is to be preserved by preventing reverse discrimination. Further, it was held that the equality principle
requires exclusion of extra weightage of roster-point promotion to a reserved category candidate. (emphasis
supplied) This Court opined that without “catch-up” rule, giving weightage to earlier promotion secured by
roster-point promotee would result in reverse discrimination and would violate equality under Articles 14, 15
and 16. Accordingly, this Court took the view that the seniority between the reserved category candidates and
general candidates in the promoted category shall be governed by their panel position. Therefore, this Court set
aside the factor of extra weightage of earlier promotion to a reserved category candidate as violative of
Articles 14 and 16(1) of the Constitution.
75. Therefore, in Virpal Singh Chauhan this Court has said that the “catch-up” rule insisted upon by the
Railways though not implicit in Articles 16(1) and 16(4), is constitutionally valid as the said practice/process
was made to maintain efficiency. On the other hand, in Ajit Singh (I) this Court has held that the equality
principle excludes the extra weightage given by the Government to roster-point promotees as such weightage
is against merit and efficiency of the administration and that the Punjab Government had erred in not taking
into account the said merit and efficiency factors.
76. In Ajit Singh (II) three interlocutory applications were filed by the State of Punjab for clarification of
the judgment of this Court in Ajit Singh (I). The limited question was– whether there was any conflict between
the judgments of this Court in Virpal Singh Chauhan and Ajit Singh (I) on one hand and vis-à-vis the
judgment of this Court in Jagdish Lal v. State of Haryana. The former cases were decided in favour of
general candidates whereas the latter was a decision against the general candidates. Briefly, the facts for
moving the interlocutory applications were as follows: the Indian Railways following the law laid down in
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Virpal Singh Chauhan issued a circular on 28-2-1997 to the effect that the reserved candidates promoted on
roster-points could not claim seniority over the senior general candidates promoted later on. The State of
Punjab after following Ajit Singh (I) revised their seniority list and made further promotions of the senior
general candidates following the “catch-up” rule. Therefore, both the judgments were against the reserved
candidates. However, in the later judgment of this Court in Jagdish Lal another three-Judge Bench took the
view that under the general rule of service jurisprudence relating to seniority, the date of continuous officiation
has to be taken into account and if so, the roster-point promotees were entitled to the benefit of continuous
officiation. In Jagdish Lal the Bench observed that the right to promotion was a statutory right while the rights
of the reserved candidates under Article 16(4) and Article 16(4-A) were fundamental rights of the reserved
candidates and, therefore, the reserved candidates were entitled to the benefit of continuous officiation.
77. Accordingly, in Ajit Singh (II) three points arose for consideration:
(i) Can the roster-point promotees count their seniority in the promoted category from the date of their
continuous officiation vis-à-vis general candidates, who were senior to them in the lower category and who
were later promoted to the same level?
(ii) Have Virpal and Ajit Singh (I) been correctly decided and has Jagdish Lal been correctly
decided?
(iii) Whether the catch-up principles are tenable?
78. At the outset, this Court stated that it was not concerned with the validity of constitutional amendments
and, therefore, it proceeded on the assumption that Article 16(4-A) is valid and not unconstitutional. Basically,
the question decided was whether the “catch-up” principle was tenable in the context of Article 16(4). It was
held that the primary purpose of Article 16(4) and Article 16(4-A) is to give due representation to certain
classes in certain posts keeping in mind Articles 14, 16(1) and 335; that, Articles 14 and 16(1) have prescribed
permissive limits to affirmative action by way of reservation under Articles 16(4) and 16(4-A) of the
Constitution; that, Article 335 is incorporated so that efficiency of administration is not jeopardised and that
Articles 14 and 16(1) are closely connected as they deal with individual rights of the persons. They give a
positive command to the State that there shall be equality of opportunity to all citizens in public employment.
It was further held that Article 16(1) flows from Article 14. It was held that the word “employment” in Article
16(1) is wide enough to include promotions to posts at the stage of initial level of recruitment. It was observed
that Article 16(1) provides to every employee otherwise eligible for promotion fundamental right to be
considered for promotion. It was held that equal opportunity means the right to be considered for promotion.
The right to be considered for promotion was not a statutory right. It was held that Articles 16(4) and 16(4-A)
did not confer any fundamental right to reservation. That they are only enabling provisions. Accordingly, in
Ajit Singh (II) the judgment of this Court in Jagdish Lal case was overruled. However, in the context of
balancing of fundamental rights under Article 16(1) and the rights of reserved candidates under Articles 16(4)
and 16(4-A), this Court opined that Article 16(1) deals with a fundamental right whereas Articles 16(4) and
16(4-A) are only enabling provisions and, therefore, the interests of the reserved classes must be balanced
against the interests of other segments of society. As a remedial measure, the Court held that in matters
relating to affirmative action by the State, the rights under Articles 14 and 16 are required to be protected and a
reasonable balance should be struck so that the affirmative action by the State does not lead to reverse
discrimination.
79. Reading the above judgments, we are of the view that the concept of “catch-up” rule and
“consequential seniority” are judicially evolved concepts to control the extent of reservation. The source of
these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like
secularism, constitutional sovereignty, etc. It cannot be said that by insertion of the concept of “consequential
seniority” the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that “equality code”
under Articles 14, 15 and 16 is violated by deletion of the “catch-up” rule. These concepts are based on
practices. However, such practices cannot be elevated to the status of a constitutional principle so as to be
beyond the amending power of Parliament. Principles of service jurisprudence are different from constitutional
limitations. Therefore, in our view neither the “catch-up” rule nor the concept of “consequential seniority” is
implicit in clauses (1) and (4) of Article 16 as correctly held in Virpal Singh Chauhan.
80. Before concluding, we may refer to the judgment of this Court in M.G. Badappanavar. In that case the
facts were as follows: the appellants were general candidates. They contended that when they and the reserved
candidates were appointed at Level 1 and junior reserved candidates got promoted earlier on the basis of roster
points to Level 2 and again by way of roster points to Level 3, and when the senior general candidate got
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promoted to Level 3, then the general candidate would become senior to the reserved candidate at Level 3. At
Level 3, the reserved candidate should have been considered along with the senior general candidate for
promotion to Level 4. In support of their contention, the appellants relied upon the judgment of the
Constitution Bench in Ajit Singh (II). The above contentions raised by the appellants were rejected by the
Tribunal. Therefore, the general candidates came to this Court in appeal. This Court found on the facts that the
service rule concerned did not contemplate computation of seniority in respect of roster promotions. Placing
reliance on the judgments of this Court in Ajit Singh (I) and in Virpal Singh this Court held that roster
promotions were meant only for the limited purpose of due representation of Backward Classes at various
levels of service and, therefore, such roster promotions did not confer consequential seniority to the roster-
point promotee. In Ajit Singh (II) the circular which gave seniority to the roster-point promotees was held to
be violative of Articles 14 and 16. It was further held in M.G. Badappanavar that equality is the basic feature
of the Constitution and any treatment of equals as unequals or any treatment of unequals as equals violated the
basic structure of the Constitution. For this proposition, this Court placed reliance on the judgment in Indra
Sawhney while holding that if creamy layer among Backward Classes were given some benefits as Backward
Classes, it will amount to equals being treated unequals. Applying the creamy layer test, this Court held that if
roster-point promotees are given consequential seniority, it will violate the equality principle which is part of
the basic structure of the Constitution and in which event, even Article 16(4-A) cannot be of any help to the
reserved category candidates. This is the only judgment of this Court delivered by a three-Judge Bench saying
that if roster-point promotees are given the benefit of consequential seniority, it will result in violation of
equality principle which is a part of the basic structure of the Constitution. Accordingly, the judgment of the
Tribunal was set aside.
81. The judgment in M.G. Badappanavar was mainly based on the judgment in Ajit Singh (I) which had
taken the view that the departmental circular which gave consequential seniority to the “roster-point
promotee”, violated Articles 14 and 16 of the Constitution. In none of the above cases, was the question of the
validity of the constitutional amendments involved. Ajit Singh (I), Ajit Singh (II) and M.G. Badappanavar
were essentially concerned with the question of “weightage”. Whether weightage of earlier accelerated
promotion with consequential seniority should be given or not to be given are matters which would fall within
the discretion of the appropriate Government, keeping in mind the backwardness, inadequacy and
representation in public employment and overall efficiency of services. The above judgments, therefore, did
not touch the questions which are involved in the present case.
Scope of the impugned amendments
82. Before dealing with the scope of the constitutional amendments we need to recap the judgments in
Indra Sawhney and R.K. Sabharwal. In the former case the majority held that 50% rule should be applied to
each year otherwise it may happen that the open competition channel may get choked if the entire cadre
strength is taken as a unit. However, in R.K. Sabharwal this Court stated that the entire cadre strength should
be taken into account to determine whether the reservation up to the quota limit has been reached. It was
clarified that the judgment in Indra Sawhney was confined to initial appointments and not to promotions. The
operation of the roster for filling the cadre strength, by itself, ensures that the reservation remains within the
ceiling limit of 50%.
83. In our view, the appropriate Government has to apply the cadre strength as a unit in the operation of
the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre
strength as a unit also ensures that upper ceiling limit of 50% is not violated. Further, roster has to be post-
specific and not vacancy based.
84. With these introductory facts, we may examine the scope of the impugned constitutional amendments.
85. The Supreme Court in its judgment dated 16-11-1992 in Indra Sawhney stated that reservation in
appointments or posts under Article 16(4) is confined to initial appointment and cannot extend to reservation
in the matter of promotion. Prior to the judgment in Indra Sawhney reservation in promotion existed. The
Government felt that the judgment of this Court in Indra Sawhney adversely affected the interests of SCs and
STs in services, as they had not reached the required level. Therefore, the Government felt that it was
necessary to continue the existing policy of providing reservation in promotion confined to SCs and STs alone.
The Constitution (Seventy-seventh Amendment) Act, 1995 introduced clause (4-A) in Article 16 of the
Constitution. The said clause (4-A) was inserted after clause (4) of Article 16 to say that nothing in the said
article shall prevent the State from making any provision for reservation in matters of promotion to any
class(es) of posts in the services under the State in favour of SCs and STs which, in the opinion of the States,
are not adequately represented in the services under the State.
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86. Clause (4-A) follows the pattern specified in clauses (3) and (4) of Article 16. Clause (4-A) of Article
16 emphasises the opinion of the States in the matter of adequacy of representation. It gives freedom to the
State in an appropriate case depending upon the ground reality to provide for reservation in matters of
promotion to any class or classes of posts in the services. The State has to form its opinion on the quantifiable
data regarding adequacy of representation. Clause (4-A) of Article 16 is an enabling provision. It gives
freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article 16 applies only
to SCs and STs. The said clause is carved out of Article 16(4). Therefore, clause (4-A) will be governed by the
two compelling reasons - “backwardness” and “inadequacy of representation”, as mentioned in Article 16(4).
If the said two reasons do not exist then the enabling provision cannot come into force. The State can make
provision for reservation only if the above two circumstances exist. Further, in Ajit Singh (II) this Court has
held that apart from “backwardness” and “inadequacy of representation” the State shall also keep in mind
“overall efficiency” (Article 335). Therefore, all the three factors have to be kept in mind by the appropriate
Government in providing for reservation in promotion for SCs and STs.
87. After the Constitution (Seventy-seventh Amendment) Act, 1995 this Court stepped in to balance the
conflicting interests. This was in Virpal Singh Chauhan in which it was held that a roster-point promotee
getting the benefit of accelerated promotion would not get consequential seniority. As such, consequential
seniority constituted additional benefit and, therefore, his seniority will be governed by the panel position.
According to the Government, the decisions in Virpal Singh and Ajit Singh (I) bringing in the concept of
“catch-up” rule adversely affected the interests of SCs and STs in the matter of seniority on promotion to the
next higher grade.
88. In the circumstances, clause (4-A) of Article 16 was once again amended and the benefit of
consequential seniority was given in addition to accelerated promotion to the roster-point promotees. Suffice it
to state that the Constitution (Eighty-fifth Amendment) Act, 2001 was an extension of clause (4-A) of Article
16. Therefore, the Constitution (Seventy-seventh Amendment) Act, 1995 has to be read with the Constitution
(Eighty-fifth Amendment) Act, 2001.
91. The question in the present case concerns the width of the amending powers of Parliament. The key
issue is - whether any constitutional limitation mentioned in Article 16(4) and Article 335 stands obliterated by
the above constitutional amendments.
92. In R.K. Sabharwal the issue was concerning operation of roster system. This Court stated that the
entire cadre strength should be taken into account to determine whether reservation up to the required limit has
been reached. It was held that if the roster is prepared on the basis of the cadre strength, that by itself would
ensure that the reservation would remain within the ceiling limit of 50%. In substance, the Court said that in
the case of hundred-point roster each post gets marked for the category of candidate to be appointed against it
and any subsequent vacancy has to be filled up by that category candidate alone (replacement theory).
93. The question which remained in controversy, however, was concerning the rule of “carry-forward”. In
Indra Sawhney this Court held that the number of vacancies to be filled up on the basis of reservation in a year
including the “carry-forward” reservations should in no case exceed the ceiling limit of 50%.
94. However, the Government found that total reservation in a year for SCs, STs and OBCs combined
together had already reached 49½% and if the judgment of this Court in Indra Sawhney had to be applied it
became difficult to fill “backlog vacancies”. According to the Government, in some cases the total of the
current and backlog vacancies was likely to exceed the ceiling limit of 50%. Therefore, the Government
inserted clause (4-B) after clause (4-A) in Article 16 vide the Constitution (Eighty-first Amendment) Act,
2000.
95. By clause (4-B) the “carry-forward”/“unfilled vacancies” of a year are kept out and excluded from the
overall ceiling limit of 50% reservation. The clubbing of the backlog vacancies with the current vacancies
stands segregated by the Constitution (Eighty-first Amendment) Act, 2000. Quoted hereinbelow is the
Statement of Objects and Reasons with the text of the Constitution (Eighty-first Amendment) Act, 2000:
96. The Constitution (Eighty-first Amendment) Act, 2000 gives, in substance, legislative assent to the
judgment of this Court in R.K. Sabharwal. Once it is held that each point in the roster indicates a post which
on falling vacant has to be filled up by the particular category of candidate to be appointed against it and any
subsequent vacancy has to be filled up by that category candidate alone then the question of clubbing the
unfilled vacancies with current vacancies does not arise. Therefore, in effect, Article 16(4-B) grants legislative
assent to the judgment in R.K. Sabharwal. If it is within the power of the State to make reservation then
whether it is made in one selection or deferred selections, is only a convenient method of implementation as
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long as it is post based, subject to replacement theory and within the limitations indicated hereinafter.
97. As stated above, clause (4-A) of Article 16 is carved out of clause (4) of Article 16. Clause (4-A)
provides benefit of reservation in promotion only to SCs and STs. In S. Vinod Kumar v. Union of India this
Court held that relaxation of qualifying marks and standards of evaluation in matters of reservation in
promotion was not permissible under Article 16(4) in view of Article 335 of the Constitution. This was also
the view in Indra Sawhney.
98. By the Constitution (Eighty-second Amendment) Act, 2000 a proviso was inserted at the end of
Article 335 of the Constitution.
99. This proviso was added following the benefit of reservation in promotion conferred upon SCs and STs
alone. This proviso was inserted keeping in mind the judgment of this Court in Vinod Kumar which took the
view that relaxation in matters of reservation in promotion was not permissible under Article 16(4) in view of
the command contained in Article 335. Once a separate category is carved out of clause (4) of Article 16 then
that category is being given relaxation in matters of reservation in promotion. The proviso is confined to SCs
and STs alone. The said proviso is compatible with the scheme of Article 16(4-A).
Introduction of “time” factor in view of Article 16(4-B)
100. As stated above, Article 16(4-B) lifts the 50% cap on carry-over vacancies (backlog vacancies). The
ceiling limit of 50% on current vacancies continues to remain. In working out the carry-forward rule, two
factors are required to be kept in mind, namely, unfilled vacancies and the time factor. This position needs to
be explained. On one hand of the spectrum, we have unfilled vacancies; on the other hand, we have a time
spread over a number of years over which unfilled vacancies are sought to be carried over. These two are
alternating factors and, therefore, if the ceiling limit on the carry over of unfilled vacancies is removed, the
other alternative time factor comes in and in that event, the time-scale has to be imposed in the interest of
efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to
remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the
appropriate Government will now have to introduce the time-cap depending upon the fact situation. What is
stated hereinabove is borne out by the service rules in some of the States where the carry-over rule does not
extend beyond three years.
Whether the impugned constitutional amendments violate the principle of basic structure?
101. The key question which arises in the matter of the challenge to the constitutional validity of the
impugned amending Acts is - whether the constitutional limitations on the amending power of Parliament are
obliterated by the impugned amendments so as to violate the basic structure of the Constitution.
102. In the matter of application of the principle of basic structure, twin tests have to be satisfied, namely,
the “width test” and the test of “identity”. As stated hereinabove, the concept of the “catch-up” rule and
“consequential seniority” are not constitutional requirements. They are not implicit in clauses (1) and (4) of
Article 16. They are not constitutional limitations. They are concepts derived from service jurisprudence. They
are not constitutional principles. They are not axioms like, secularism, federalism, etc. Obliteration of these
concepts or insertion of these concepts does not change the equality code indicated by Articles 14, 15 and 16
of the Constitution. Clause (1) of Article 16 cannot prevent the State from taking cognizance of the compelling
interests of Backward Classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle
of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause
(4) of Article 16, however, states that the appropriate Government is free to provide for reservation in cases
where it is satisfied on the basis of quantifiable data that Backward Class is inadequately represented in the
services. Therefore, in every case where the State decides to provide for reservation there must exist two
circumstances, namely, “backwardness” and “inadequacy of representation”. As stated above, equity, justice
and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify
and measure these three factors, it will depend on the facts and circumstances of each case. These are the
limitations on the mode of the exercise of power by the State. None of these limitations have been removed by
the impugned amendments. If the State concerned fails to identify and measure backwardness, inadequacy and
overall administrative efficiency then in that event the provision for reservation would be invalid. These
amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in
Article 16(4) are retained. Clause (4-A) is derived from clause (4) of Article 16. Clause (4-A) is confined to
SCs and STs alone. Therefore, the present case does not change the identity of the Constitution. The word
“amendment” connotes change. The question is - whether the impugned amendments discard the original
Constitution. It was vehemently urged on behalf of the petitioners that the Statement of Objects and Reasons
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indicates that the impugned amendments have been promulgated by Parliament to overrule the decisions of
this Court. We do not find any merit in this argument. Under Article 141 of the Constitution the
pronouncement of this Court is the law of the land. The judgments of this Court in Virpal Singh, Ajit Singh
(I), Ajit Singh (II) and Indra Sawhney were judgments delivered by this Court which enunciated the law of
the land. It is that law which is sought to be changed by the impugned constitutional amendments. The
impugned constitutional amendments are enabling in nature. They leave it to the States to provide for
reservation. It is well settled that Parliament while enacting a law does not provide content to the “right”. The
content is provided by the judgments of the Supreme Court. If the appropriate Government enacts a law
providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this
Court will certainly set aside and strike down such legislation. Applying the “width test”, we do not find
obliteration of any of the constitutional limitations. Applying the test of “identity”, we do not find any
alteration in the existing structure of the equality code. As stated above, none of the axioms like secularism,
federalism, etc. which are overarching principles have been violated by the impugned constitutional
amendments. Equality has two facets - “formal equality” and “proportional equality”. Proportional equality is
equality “in fact” whereas formal equality is equality “in law”. Formal equality exists in the rule of law. In the
case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections
of the society within the framework of liberal democracy. Egalitarian equality is proportional equality.
103. The criterion for determining the validity of a law is the competence of the law-making authority. The
competence of the law-making authority would depend on the ambit of the legislative power, and the
limitations imposed thereon as also the limitations on the mode of exercise of the power. Though the amending
power in the Constitution is in the nature of a constituent power and differs in content from the legislative
power, the limitations imposed on the constituent power may be substantive as well as procedural. Substantive
limitations are those which restrict the field of the exercise of the amending power. Procedural limitations on
the other hand are those which impose restrictions with regard to the mode of exercise of the amending power.
Both these limitations touch and affect the constituent power itself, disregard of which invalidates its exercise.
104. Applying the above tests to the present case, there is no violation of the basic structure by any of the
impugned amendments, including the Constitution (Eighty-second) Amendment Act, 2000. The constitutional
limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation,
excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will
depend on the facts of each case. In our view, the field of exercise of the amending power is retained by the
impugned amendments, as the impugned amendments have introduced merely enabling provisions because, as
stated above, merit, efficiency, backwardness and inadequacy cannot be identified and measured in vacuum.
Moreover, Article 16(4-A) and Article 16(4-B) fall in the pattern of Article 16(4) and as long as the parameters
mentioned in those articles are complied with by the States, the provision of reservation cannot be faulted.
Articles 16(4-A) and 16(4-B) are classifications within the principle of equality under Article 16(4).
Role of enabling provisions in the context of Article 14
106. The gravamen of Article 14 is equality of treatment. Article 14 confers a personal right by enacting a
prohibition which is absolute. By judicial decisions, the doctrine of classification is read into Article 14.
Equality of treatment under Article 14 is an objective test. It is not the test of intention. Therefore, the basic
principle underlying Article 14 is that the law must operate equally on all persons under like circumstances.
Every discretionary power is not necessarily discriminatory. According to the Constitutional Law of India, by
H.M. Seervai, 4th Edn., p. 546, equality is not violated by mere conferment of discretionary power. It is
violated by arbitrary exercise by those on whom it is conferred. This is the theory of “guided power”. This
theory is based on the assumption that in the event of arbitrary exercise by those on whom the power is
conferred, would be corrected by the courts. This is the basic principle behind the enabling provisions which
are incorporated in Articles 16(4-A) and 16(4-B). Enabling provisions are permissive in nature. They are
enacted to balance equality with positive discrimination. The constitutional law is the law of evolving
concepts. Some of them are generic, others have to be identified and valued. The enabling provisions deal with
the concept, which has to be identified and valued as in the case of access vis-à-vis efficiency which depends
on the fact situation only and not abstract principle of equality in Article 14 as spelt out in detail in Articles 15
and 16. Equality before the law, guaranteed by the first part of Article 14, is a negative concept while the
second part is a positive concept which is enough to validate equalising measures depending upon the fact
situation.
107. It is important to bear in mind the nature of constitutional amendments. They are curative by nature.
Article 16(4) provides for reservation for Backward Classes in cases of inadequate representation in public
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employment. Article 16(4) is enacted as a remedy for the past historical discriminations against a social class.
The object in enacting the enabling provisions like Articles 16(4), 16(4-A) and 16(4-B) is that the State is
empowered to identify and recognise the compelling interests. If the State has quantifiable data to show
backwardness and inadequacy then the State can make reservations in promotions keeping in mind
maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in
making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness,
inadequacy of representation are required to be identified and measured. That exercise depends on availability
of data. That exercise depends on numerous factors. It is for this reason that enabling provisions are required to
be made because each competing claim seeks to achieve certain goals. How best one should optimise these
conflicting claims can only be done by the administration in the context of local prevailing conditions in public
employment. This is amply demonstrated by the various decisions of this Court discussed hereinabove.
Therefore, there is a basic difference between “equality in law” and “equality in fact”. If Articles 16(4-A) and
16(4-B) flow from Article 16(4) and if Article 16(4) is an enabling provision then Articles 16(4-A) and 16(4-
B) are also enabling provisions. As long as the boundaries mentioned in Article 16(4), namely, backwardness,
inadequacy and efficiency of administration are retained in Articles 16(4-A) and 16(4-B) as controlling factors,
we cannot attribute constitutional invalidity to these enabling provisions. However, when the State fails to
identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts
of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine
individual cases and decide the matter in accordance with law. This is the theory of “guided power”. We may
once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary
exercise of the power conferred.
Application of the doctrine of “guided power”– Article 335
108. Applying the above tests to the proviso to Article 335 inserted by the Constitution (Eighty-second
Amendment) Act, 2000 we find that the said proviso has a nexus with Articles 16(4-A) and 16(4-B).
Efficiency in administration is held to be a constitutional limitation on the discretion vested in the State to
provide for reservation in public employment. Under the proviso to Article 335, it is stated that nothing in
Article 335 shall prevent the State to relax qualifying marks or standards of evaluation for reservation in
promotion. This proviso is also confined only to members of SCs and STs. This proviso is also conferring
discretionary power on the State to relax qualifying marks or standards of evaluation. Therefore, the question
before us is – whether the State could be empowered to relax qualifying marks or standards for reservation in
matters of promotion. In our view, even after insertion of this proviso, the limitation of overall efficiency in
Article 335 is not obliterated. Reason is that “efficiency” is a variable factor. It is for the State concerned to
decide in a given case, whether the overall efficiency of the system is affected by such relaxation. If the
relaxation is so excessive that it ceases to be qualifying marks then certainly in a given case, as in the past, the
State is free not to relax such standards. In other cases, the State may evolve a mechanism under which
efficiency, equity and justice, all three variables, could be accommodated. Moreover, Article 335 is to be read
with Article 46 which provides that the State shall promote with special care the educational and economic
interests of the weaker sections of the people, and in particular, of the Scheduled Castes and Scheduled Tribes,
and shall protect them from social injustice. Therefore, where the State finds compelling interests of
backwardness and inadequacy, it may relax the qualifying marks for SCs/STs. These compelling interests
however have to be identified by weighty and comparable data.
109. In conclusion, we reiterate that the object behind the impugned constitutional amendments is to
confer discretion on the State to make reservations for SCs/STs in promotions subject to the circumstances and
the constitutional limitations indicated above.
Tests to judge the validity of the impugned State Acts
110. As stated above, the boundaries of the width of the power, namely, the ceiling limit of 50% (the
numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness,
inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned
amendments. At the appropriate time, we have to consider the law as enacted by various States providing for
reservation if challenged. At that time we have to see whether limitations on the exercise of power are
violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely,
that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s)
keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to
make reservation, as stated above, if the impugned law violates any of the above substantive limits on the
width of the power the same would be liable to be set aside.
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Are the impugned amendments making an inroad into the balance struck by the judgment of this Court in
Indra Sawhney?
111. The petitioners submitted that equality has been recognised to be a basic feature of our Constitution.
To preserve equality, a balance was struck in Indra Sawhney so as to ensure that the basic structure of
Articles 14, 15 and 16 remains intact and at the same time social upliftment, as envisaged by the Constitution,
stood achieved. In order to balance and structure the equality, a ceiling limit on reservation was fixed at 50%
of the cadre strength, reservation was confined to initial recruitment and was not extended to promotion. The
petitioners further submitted that in Indra Sawhney this Court has held that reservation in promotion was not
sustainable in principle. Accordingly, the petitioners submitted that the impugned constitutional amendments
make a serious inroad into the said balance struck in Indra Sawhney which protected equality as a basic
feature of our Constitution.
112. What are the outer boundaries of the amendment process in the context of Article 16 is the question
which needs to be answered. Equality is the basic feature of the Constitution as held in Indra Sawhney. The
content of Article 14 was originally interpreted by this Court as a concept of equality confined to the aspects of
discrimination and classification. It is only after the rulings of this Court in Maneka Gandhi and Ajay Hasia v.
Khalid Mujib Sehravardi that the content of Article 14 got expanded conceptually so as to comprehend the
doctrine of promissory estoppel, non-arbitrariness, compliance with rules of natural justice, eschewing
irrationality, etc. There is a difference between “formal equality” and “egalitarian equality”. At one point of
time Article 16(4) was read by the Supreme Court as an exception to Article 16(1). That controversy got
settled in Indra Sawhney. The words “nothing in this article” in Article 16(4) represent a legal device allowing
positive discrimination in favour of a class. Therefore, Article 16(4) relates to “a class apart”. Article 16(4),
therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of
a Class and inadequacy of representation in employment. These are compelling reasons. They do not exist in
Article 16(1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in
matters of employment. Therefore, Article 16(1) and Article 16(4) operate in different fields. Backwardness
and inadequacy of representation, therefore, operate as justifications in the sense that the State gets the power
to make reservation only if backwardness and inadequacy of representation exist. These factors are not
obliterated by the impugned amendments.
113. The question still remains as to whether any of the constitutional limitations are obliterated by way of
the impugned constitutional amendments. Articles 16(4-A) and 16(4-B) have been introduced by way of the
impugned amendments.
114. In Indra Sawhney the equality which was protected by the rule of 50%, was by balancing the rights
of the general category vis-à-vis the rights of BCs en bloc consisting of OBCs, SCs and STs. On the other
hand, in the present case the question which we are required to answer is: whether within the egalitarian
equality, indicated by Article 16(4), the sub-classification in favour of SCs and STs is in principle
constitutionally valid. Article 16(4-A) is inspired by the observations in Indra Sawhney in which this Court
has unequivocally observed that in order to avoid lumping of OBCs, SCs and STs which would make OBCs
take away all the vacancies leaving SCs and STs high and dry, the State concerned was entitled to categorise
and sub-classify SCs and STs on one hand vis-à-vis OBCs on the other hand.
115. Therefore, while judging the width and the ambit of Article 16(4-A) we must ascertain whether such
sub-classification is permissible under the Constitution. The sub-classification between “OBCs” on one hand
and “SCs and STs” on the other hand is held to be constitutionally permissible in Indra Sawhney. In the said
judgment it has been held that the State could make such sub-classification between SCs and STs vis-à-vis
OBCs. It refers to sub-classification within the egalitarian equality. Therefore, Article 16(4-A) follows the line
suggested by this Court in Indra Sawhney. In Indra Sawhney on the other hand vide para 829 this Court has
struck a balance between formal equality and egalitarian equality by laying down the rule of 50% (ceiling
limit) for the entire BCs as “a class apart” vis-à-vis GC. Therefore, in our view, equality as a concept is
retained even under Article 16(4-A) which is carved out of Article 16(4).
116. As stated above, Article 14 enables classification. A classification must be founded on intelligible
differentia which distinguishes those that are grouped together from others. The differentia must have a
rational relation to the object sought to be achieved by the law under challenge. In Indra Sawhney an opinion
was expressed by this Court vide para 802 that there is no constitutional or legal bar to the making of
classification. Article 16(4-B) is also an enabling provision. It seeks to make classification on the basis of the
differentia between current vacancies and carry-forward vacancies. In the case of Article 16(4-B) we must
keep in mind that following the judgment in R.K. Sabharwal, the concept of post-based roster is introduced.
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Consequently, specific slots for OBCs, SCs and STs as well as GC have to be maintained in the roster. For
want of a candidate in a particular category the post may remain unfilled. Nonetheless, that slot has to be filled
only by the specified category. Therefore, by Article 16(4-B) a classification is made between current
vacancies on one hand and carry-forward/backlog vacancies on the other hand. Article 16(4-B) is a direct
consequence of the judgment of this Court in R.K. Sabharwal by which the concept of post-based roster is
introduced. Therefore, in our view Articles 16(4-A) and 16(4-B) form a composite part of the scheme
envisaged. Therefore, in our view Articles 16(4), 16(4-A) and 16(4-B) together form part of the same scheme.
As stated above, Articles 16(4-A) and 16(4-B) are both inspired by observations of the Supreme Court in
Indra Sawhney and R.K. Sabharwal. They have nexus with Articles 17 and 46 of the Constitution. Therefore,
we uphold the classification envisaged by Articles 16(4-A) and 16(4-B). The impugned constitutional
amendments, therefore, do not obliterate equality.
Conclusion
121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted
flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or
the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to
provide for reservation keeping in mind the overall efficiency of the State administration under Article 335.
These impugned amendments are confined only to SCs and STs. They do not obliterate any of the
constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer
(qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand
as held in Indra Sawhney, the concept of post-based roster with inbuilt concept of replacement as held in R.K.
Sabharwal.
122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons,
namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional
requirements without which the structure of equality of opportunity in Article 16 would collapse.
123. However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this
regard the State concerned will have to show in each case the existence of the compelling reasons, namely,
backwardness, inadequacy of representation and overall administrative efficiency before making provision for
reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make
reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make
such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of
representation of that class in public employment in addition to compliance with Article 335. It is made clear
that even if the State has compelling reasons, as stated above, the State will have to see that its reservation
provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer
or extend the reservation indefinitely.
124. Subject to the above, we uphold the constitutional validity of the Constitution (Seventy-seventh
Amendment) Act, 1995; the Constitution (Eighty-first Amendment) Act, 2000; the Constitution (Eighty-
second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001.

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Pramati Educational & Cultural Trust v.Union of India
WRIT PETITION (C) No.136 OF 2014.
(Supreme Court has upheld Article 21A as valid, it has simultaneously weakened it by making it
subject to Article 30)
Validity of Article 21A of the Constitution Contention of the learned counsel for the petitioners:
The second substantial question of law which we are called upon to decide is whether by inserting
Article 21A by the Constitution (Eighty-Sixth Amendment) Act, 2002, the Parliament has altered the basic
structure or framework of the Constitution. Before we refer to the contentions of the learned counsel for the
petitioners, we must reiterate some facts. Article 21A is titled ‘Right to Education’ and it provides that the
State shall provide free and compulsory education to all children of the age of six to fourteen years in such
manner as the State may, by law, determine. Accordingly, the 2009 Act was enacted by Parliament to provide
free and compulsory education to all children of the age of six to fourteen years. The validity of the 2009 Act
was challenged and considered in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr.
(supra) by a three-Judge Bench of this Court. Two learned Judges S.H. Kapadia C.J. and Swatanter Kumar J.
held that the 2009 Act is constitutionally valid and shall apply to the following:
(i) a school established, owned or controlled by the appropriate Government or a local authority;
(ii) an aided school including aided minority school(s) receiving aid or grants to meet whole or part of its
expenses from the appropriate Government or the local authority;
(iii) a school belonging to specified category; and (iv) an unaided non-minority school not receiving any
kind of aid or grants to meet its expenses from the appropriate Government or the local authority.
The two learned Judges, however, held that the 2009 Act, in particular Sections 12(1)(c) and Section
18(3), infringe the fundamental rights guaranteed to unaided minority schools under Article 30(1) of the
Constitution and therefore the 2009 Act shall not apply to such unaided minority schools. Differing from the
majority opinion expressed by the two learned Judges, Radhakrishnan J. held that Article 21A casts an
obligation on the State and not on unaided non-minority and unaided minority schools to provide free and
compulsory education to children of the age of six to fourteen years. After the aforesaid judgment of this Court
in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra), the 2009 Act was
amended by the Right of Children to Free And Compulsory Education Act, 2009 (Amendment Act, 2012) and
by the amendment, it was provided in subsection (4) of Section 1 of the 2009 Act that subject to theprovisions
of Articles 29 and 30 of the Constitution, the provisions of the 2009 Act shall apply to conferment of rights on
children to free and compulsory education. 31.Mr. Rohatgi, learned senior counsel for the petitioners in Writ
Petition (C) No.416 of 2012, submitted that Article 21A of the Constitution creates obligation only upon the
State and its instrumentalities as defined in Article 12 of the Constitution and does not cast any obligation on a
private unaided educational institution. He submitted that the minority opinion of Radhakrishnan J. in Society
for Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra) is,therefore, a correct interpretation
of Article 21A. He submitted that if Article 21A is interpreted to include the private unaided educational
institutions within its sweep then it would abrogate the right under Article 19(1)(g) of the Constitution to
establish and administer private educational institutions which is a basic feature of the Constitution.
32. Mr. Nariman, learned senior counsel for the petitioners in Writ Petition (C) No.128 of 2014,
submitted that word “State” used in Article 21A of the Constitution would mean the State as defined in Article
12 of the Constitution and therefore would include the Government and Parliament of India and the
Government and the Legislature of each of the States and all local or other authorities within the territory of
India or under the control of the Government of India. He submitted that this Court has held in P.D.
Shamdasani v. The Central Bank of India Ltd. (AIR 1952 SC 1952) that the language and structure of Article
19 and its setting in Part III of the Constitution clearly show that the Article was intended to protect those
freedoms against State action only and hence violation of rights of property by individuals is not within the
purview of Article 19 of the Constitution. He submitted that this Court has also held in Smt. Vidya Verma v.
Dr. Shiv Narain Verma (AIR 1956 SC 108) that the fundamental right of personal liberty under Article 21 of
the Constitution is available against only the State and not against private individuals. He submitted that,
therefore, the word “State” in Article 21A of the Constitution would not include private unaided educational
institutions or private individuals.
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.Mr. Nariman submitted that before the Constitution (Eighty-Sixth Amendment) Act, 2002, Article 45
provided that the State shall endeavour to provide, within a period of ten years from the commencement of the
Constitution, “for” free and compulsory education for all children until they complete the age of fourteen
years. He submitted that what Article 45 therefore meant was that the State alone shall endeavour to provide
“for” free and compulsory education to all children upto the age of fourteen years. He submitted that by the
Constitution (Eighty- Sixth Amendment) Act, 2002, Article 45 was deleted and in its place Article 21A was
inserted in the Constitution. He submitted that in Article 21A of the Constitution, the word “for” is missing but
this does not mean that the obligation of the State to fund free and compulsory education to all children upto
the age of 14 years could be passed on by the State to private unaided educational institutions. He submitted
that Article 21A, if construed to mean that the State could by law pass on its obligation under Article 21A to
provide free and compulsory education to all children upto the age of fourteen years to private unaided
schools, Article 21A of the Constitution would abrogate the right of private educational schools under Article
19(1)(g) of the Constitution as interpreted by this Court in T.M.A. Pai Foundation (supra).
34. Mr. Nariman submitted that the Objects and Reasons of th e Bill which became the 2009 Act
explicitly stated that the 2009 Act is pursuant to Article 21A of the Constitution but did not make any
reference to clause (5) of Article 15 of the Constitution. He submitted that the validity of the provisions of the
2009 Act will, therefore, have to be tested only by reference to Article 21A of the Constitution and not by
reference to clause (5) of Article 15 of the Constitution. According to both Mr. Rohatgi and Mr. Nariman,
Section 12(1(c) of the 2009 Act insofar as it provides that a private unaided school shall admit in Class I to the
extent of at least 25% of the total strength of the class, children belonging to weaker sections and
disadvantaged group in the neighborhood and provide free and compulsory education till its completion is
violative of the right of private unaided schools under Article 19(1)(g) of the Constitution as interpreted by
this Court in T.M.A. Pai Foundation (supra) and P.A. Inamdar (supra). They submitted that the majority
opinion of the three-Judge Bench in Society for Unaided Private Schools of Rajasthan v. Union of India &
Anr. (supra) is, therefore, not correct.
35. Mr. Ajmal Khan, learned senior counsel appearing for the petitioners in Writ Petition (C) No.1081 of
2013 (Muslim Minority Schools Managers’ Association) and Mr. T.R. Andhyarujina, learned senior counsel
appearing for intervener in Writ Petition (C) No.60 of 2014 (La Martineire Schools) that under Article 30(1) of
the Constitution all minorities, whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice. They submitted that the State while making the law to
provide free and compulsory education to all children of the age of six to fourteen years cannot be allowed to
encroach on this right of the minority institutions under Article 30(1) of the Constitution. They referred to the
decisions of this Court right from the Kerala Educational Bill case to the T.M.A. Pai case (supra) to argue that
admitting children other than those of the minority community which establish the school cannot be forced
upon the minority institutions, whether aided or unaided. They submitted that 2009 Act, if made applicable to
minority schools, aided or unaided, will be ultra vires Article 30(1) of the Constitution. They submitted that
the majority judgment of this Court in Society for Unaided Private Schools of Rajasthan v. Union of India &
Anr. (supra), has taken a view that the 2009 Act will not apply to unaided minority schools but will apply to
aided minority schools. They submitted that accordingly sub-section (4) of Section 1 of the 2009 Act provides
that subject to the provisions of articles 29 and 30 of the Constitution, the provisions of the Act shall apply to
conferment of rights on children to free and compulsory education. They submitted that this sub-section (4) of
Section 1 of the 2009 Act should be declared as ultra vires Article 30(1) of the Constitution.
36. In reply, Mr. K.V. Vishwanathan, learned Additional Solicitor General, submitted that the Statement
of Objects and Reasons of the Bill, which was enacted as the Constitution (Eighty-Sixth Amendment) Act,
2002, stated that the goal set out in Article 45 of the Constitution of providing free and compulsory education
for children upto the age of 14 years could not be achieved even after 50 years of adoption of the provision and
in order to fulfill this goal, it was felt that a new provision in the Constitution should be inserted as Article 21A
providing that the State shall provide free and compulsory education to all children of the age of six to fourteen
years in such manner as the State may, by law, determine. He submitted that in accordance with Article 21A of
the Constitution, the 2009 Act has been enacted which provides the manner in which such free and compulsory
education for children upto the age of 14 years shall be provided by the State and it provides in Section
12(1)(c) that private unaided schools shall admit in Class I from amongst weaker sections of society and from
disadvantaged groups at least twenty-five per cent of the strength of the class and provide free and compulsory
education.

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37. Mr. Vishwanathan submitted that private educational institutions cannot have any grievance in this
regard because they are performing a function akin to the function of the State. He submitted that applying the
functional test private educational institutions are also State within the meaning of Article 12 of the
Constitution and, therefore, the argument of Mr. Nariman that the obligation of providing free and compulsory
education to all children of the age of six to fourteen years cannot be passed on by the State toprivate
educational institutions has no substance. Mr. Vishwanathan submitted that in paragraph 53 of the judgment in
T.M.A. Pai Foundation (supra) this Court has held that while private unaided educational institutions have the
right to admit students of their choice, admission of a small percentage of students belonging to weaker
sections of the society by granting them freeships or scholarships, if not granted by the Government should
also be done. He submitted that in paragraph 68 of T.M.A. Pai Foundation (supra), this Court has also held that
a small percentage of seats may also be filled up to take care of poorer and backward sections of the society.
He submitted that the 2009 Act, therefore, has provided in Section 12(1) (c) that an unaided private school
shall admit in Class I, to the extent of at least twenty-five per cent of the strength of that class, children
belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory
elementary education till its completion and this provision of the 2009 Act, therefore, is not ultra vires Article
19(1)(g) of the Constitution.
38. Regarding minority institutions, Mr. Vishwanathan submitted that under Article 3)(1) of the
Constitution they have equal status and accordingly this Court has held in Society for Unaided Private Schools
of Rajasthan v.Union of India & Anr. (supra) the 2009 Act will not apply to unaided minority schools but will
apply to aided minority schools. He submitted that accordingly the 2009 Act was amended by the Right of
Children to Free And Compulsory Education (Amendment) Act, 2012, so as to provide in subsection (4) of
Section 1 of the 2009 Act that subject to the provisions of Articles 29 and 30 of the Constitution, the
provisions of the 2009 Act shall apply to conferment of rights on children to free and compulsory education.
It will, thus, be clear from the Statement of Objects and Reasons extracted above that although the
Directive Principle in Article 45 contemplated that the State will provide free and compulsory education for all
children up to the age of fourteen years within ten years of promulgation of the Constitution, this goal could
not be achieved even after 50 years and, therefore, a constitutional amendment was proposed to insert Article
21A in Part III of the Constitution. Bearing in mind this object of the Constitution (Eight-Sixth Amendment)
Act, 2002 inserting Article 21A of the Constitution, we may now proceed to consider the submissions of
learned counsel for the parties.
40. Article 21A of the Constitution, as we have noticed, states that the State shall provide free and
compulsory education to all children of the age of six to fourteen years in such manner as the State may, by
law, determine. The word ‘State’ in Article 21A can only mean the ‘State’ which can make the law. Hence,
Mr. Rohatgi and Mr. Nariman are right in their submission that the constitutional obligation under Article 21A
of the Constitution is on the State to provide free and compulsory education to all children of the age of 6 to 14
years and not on private unaided educational institutions. Article 21A, however, states that the State shall by
law determine the “manner” in which it will discharge its constitutional obligation under Article 21A. Thus, a
new power was vested in the State to enable the State to discharge this constitutional obligation by making a
law. However, Article 21A has to be harmoniously construed with Article 19(1)(g) and Article 30(1) of the
Constitution. As has been held by this Court in Venkataramana Devaru v. State of Mysore (AIR 1958 SC 255):
“The rule of construction is well settled that when there are in an enactment two provisions which cannot
be reconciled with each other, they should be so interpreted that, if possible, effect could be given to both. This
is what is known as the rule of harmonious construction.”
We do not find anything in Article 21A which conflicts with either the right of private unaided schools
under Article 19(1)(g) or the right of minority schools under Article 30(1) of the Constitution, but the law
made under Article 21A may affect these rights under Articles 19(1)(g) and 30(1). The law made by the State
to provide free and compulsory education to the children of the age of 6 to 14 years should not, therefore, be
such as to abrogate the right of unaided private educational schools under Article 19(1)(g) of the Constitution
or the right of the minority schools, aided or unaided, under Article 30(1) of the Constitution.
42. In our considered opinion, therefore, by the Constitution (Eighty-Sixth Amendment) Act, a new
power was made available to the State under Article 21A of the Constitution to make a law determining the
manner in which it will provide free and compulsory education to the children of the age of six to fourteen
years as this goal contemplated in the Directive Principles in Article 45 before this constitutional amendment
could not be achieved for fifty years. This additional power vested by the Constitution (Eighty-Sixth
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Amendment) Act, 2002 in the State is independent and different from the power of the State under clause (6)
of Article 19 of the Constitution and has affected the voluntariness of the right under Article 19(1)(g) of the
Constitution. By exercising this additional power, the State can by law impose admissions on private unaided
schools and so long as the law made by the State in exercise of this power under Article 21A of the
Constitution is for the purpose of providing free and compulsory education to the children of the age of 6 to 14
years and so long as such law forces admission of children of poorer, weaker and backward sections of the
society to a small percentage of the seats in private educational institutions to achieve the constitutional goals
of equality of opportunity and social justice set out in the Preamble of the Constitution, such a law would not
be destructive of the right of the private unaided educational institutions under Article 19(1)(g) of the
Constitution.
45. Under Article 30(1) of the Constitution, all minorities, whether based on religion or language, shall
have the right to establish and administer educational institutions of their choice. Religious and linguistic
minorities, therefore, have a special constitutional right to establish and administer educational schools of their
choice and this Court has repeatedly held that the State has no power to interfere with the administration of
minority institutions and can make only regulatory measures and has no power to force admission of students
from amongst non-minority communities, particularly in minority schools, so as to affect the minority
character of the institutions. Moreover, in Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr.
(supra) Sikri, CJ., has even gone to the extent of saying that Parliament cannot in exercise of its amending
power abrogate the rights of minorities.
46. When we look at the 2009 Act, we find that Section 12(1)(b) read with Section 2(n) (iii) provides
that an aided school receiving aid and grants, whole or part, of its expenses from the appropriate Government
or the local authority has to provide free and compulsory education to such proportion of children admitted
therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a
minimum of twenty-five per cent. Thus, a minority aided school is put under a legal obligation to provide free
and compulsory elementary education to children who need not be children of members of the minority
community which has established the school. We also find that under Section 12(1)(c) read with Section
2(n)(iv), an unaided school has to admit into twenty-five per cent of the strength of class Ichildren belonging to
weaker sections and disadvantaged groups in the neighbourhood. Hence, unaided minority schools will have a
legal obligation to admit children belonging to weaker sections and disadvantaged groups in the
neighbourhood who need not be children of the members of the minority community which has established the
school. While discussing the validity of clause (5) of Article 15 of the Constitution, we have held that
members of communities other than the minority community which has established the school cannot be
forced upon a minority institution because that may destroy the minority character of the school. In our view,
if the 2009 Act is made applicable to minority schools, aided or unaided, the right of the minorities under
Article 30(1) of the Constitution will be abrogated. Therefore, the 2009 Act insofar it is made applicable to
minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires the Constitution. We are
thus of the view that the majority judgment of this Court in Society for Unaided Private Schools of Rajasthan
v. Union of India & Anr. (supra) insofar as it holds that the 2009 Act is applicable to aided minority schools is
not correct.
47. In the result, we hold that the Constitution (Ninetythird Amendment) Act, 2005 inserting clause (5)
of Article 15 of the Constitution and the Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article
21A of the Constitution do not alter the basic structure or framework of the Constitution and are
constitutionally valid. We also hold that the 2009 Act is not ultra vires Article 19(1)(g) of the Constitution.
We, however, hold that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered under
clause (1) of Article 30 of the Constitution is ultra vires the Constitution. Accordingly, Writ Petition (C)
No.1081 of 2013 filed on behalf of Muslim Minority Schools Managers’ Association is allowed and Writ
Petition (C) Nos.416 of 2012, 152 of 2013, 60 of 2014, 95 of 2014, 106 of 2014, 128 of 2014, 144 of 2014,
145 of 2014, 160 of 2014 and 136 of 2014 filed on behalf of non-minority private unaided educational
institutions are dismissed.

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Ram Singh v. Union of India
(2015 )4SCC 697
Coram: Ranjan Gogoi, Rohinton Fali Nariman JJ.
Judgment: Ranjan Gogoi J. - The challenge in the present group of writ petitions is to a
Notification published in the Gazette of India dated 04.03.2014 by which the Jat Community has
been included in the Central List of Backward Classes for the States of Bihar, Gujarat, Haryana,
Himachal Pradesh, Madhya Pradesh, NCT of Delhi, Bharatpur and Dholpur districts of Rajasthan,
Uttar Pradesh and Uttarakhand. The said Notification was issued pursuant to the decision taken by
the Union Cabinet on 02.03.2014 to reject the advice tendered by the National Commission for
Backward Classes (NCBC) to the contrary on the ground that the said advice "did not adequately take
into account the ground realities".
RESUME OF THE CORE FACTS: 2. Pursuant to several requests received from individuals,
organisations and associations for inclusion of Jats in the Central List of Backward Classes for the
States of Haryana, Rajasthan, Madhya Pradesh and Uttar Pradesh, the National Commission for
Backward Classes (NCBC) studied their claims and submitted a report on 28.11.1997. It
recommended inclusion in the Central List only of the Jats of Rajasthan, except the Bharatpur and
Dhaulpur districts.
3. The NCBC also examined the claim for inclusion of Jats in the Central List for the State of Delhi,
and tendered its advice rejecting their claim on 25.11.2010.
4. The significant developments that took place after submission of the aforesaid two reports may be
relevant to be taken note of at this stage.
On 03.05.2011 the National Commission for Backward Classes (Power to Review Advice) Rules, 2011 was notified by the Ministry
of Social Justice and Empowerment. By virtue of the aforesaid Rules, the NCBC was empowered to review its advice tendered to the
Central Government under Section 9 (1) of the Act. Rule 4 of the Rules provides that the "provision of Section 11447 Code of Civil
Procedure, 1908 shall mutatis mutandis apply to a review undertaken by the Commission."
11. Thereafter, the Union Cabinet in a meeting held on 02.03.2014 decided that the advice tendered
by the NCBC did not adequately take into account the "ground realities." The Cabinet, therefore,
resolved not to accept the said advice and instead to include the Jat Community in the Central List of
Backward Classes for the States of Bihar, Gujarat, Haryana, Himachal Pradesh and NCT of Delhi,
Bharatpur and Dholpur districts of Rajasthan, Uttar Pradesh and Uttarakhand. Thereafter, the
impugned notification came to be issued on 04.03.2014.
12. At this stage it may be relevant to notice the dates on which the Jat Community was included in
the List of OBCs in the States in question which are set out herein:
"(1) 03.11.1999 State of Rajasthan
(2) 10.03.2000 State of Uttar Pradesh
(3) 31.05.2000 NCT of Delhi
(4) 06.11.2000 State of Bihar
(5) 24.01.2002 State of Madhya Pradesh
(6) 16.11.2002 State of Himachal Pradesh
(7) 22.03.2010 State of Uttarakhand
(8) 24.01.2013 State of Haryana-As special
OBC
(9) Gujarat Not included"
Relevant Constitutional and Statutory Provisions
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13. The relevant Constitutional and Statutory provisions in the light of which the issues arising will
have to be determined may be taken note of at the outset:
Article 15 of the Constitution prohibits discrimination on ground of religion, race, caste, sex or place
of birth. Clause 1 of Article 15 provides that "nothing in this article or in clause (2) of article 29 shall
prevent the State from making any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes" .
Article 16 which provides for equality of opportunity in matters of public employment provides in
Clause (4) thereof that "nothing in this article shall prevent the State from making any provision for
the reservation of appointments or posts in favour of any backwardclassofcitizens which, in the
opinion of the State, is not adequately represented in the services under the State".
14. Reference to the provisions of Article 38 and 46 of in Part IV of the Constitution may also be
made. Article 38 of the Constitution enjoins a duty on the State to endeavour to promote the welfare
of the people by securing and protecting as effectively as it may a social order by, inter alia,
eliminating inequalities in status, facilities and opportunities not only amongst individuals but also
amongst groups of people either residing in different areas or engaged in different vocations. Article
46 casts upon the State a duty to promote the educational and economic interests of the weaker
sections of the population particularly of the Scheduled Castes and Scheduled Tribes and to protect
such citizens from social injustice and exploitation. Article 340 of the Constitution envisages the
creation of a Commission, inter alia, to investigate the conditions of the socially and educationally
backward classes and the difficulties under which such classes labour; and to make recommendations
as to the steps that should be taken to remove such difficulties and improve their conditions etc.
16.The National Commission for Backward Classes Act, 1993 (for short "the Act ") contain
provisions for the constitution of the National Commission For Backward Classes (NCBC), its
powers and functions and other allied matters. The salient features of the Act which will require to be
specifically noticed may be set out hereunder.
Section 2 (a) and 2 (c) provides as follows : "2 (a) - "backward classes" means such backward
classes of citizens other than the Scheduled Castes and Scheduled Tribes as may be specified by the
Central Government in the lists;
2 (c) - "lists" means lists prepared by the Government of India from time to time for purposes of
making provision for the reservation of appointments or posts in favour of backward classes of
citizens which, in the opinion of that Government, are not adequately represented in the services
under the Government of India and any local or other authority within the territory of India or under
the control of the Government of India".
Sections 9 and 11 of the Act read as under: " 9. Functions of the Commission
1 The Commission shall examine requests for inclusion of any class of citizens as a backward
class in the lists and hear complaints of over-inclusion or under- inclusion of any backward
class in such lists and tender such advice to the Central Government as it deems appropriate.
2 The advice of the commission shall ordinarily be binding upon the Central Government.
11. Periodic Revision of Lists by the Central Government

1 The Central Government may at any time, and shall, at the expiration of ten years from the
coming into force of this Act and every succeeding period of ten years thereafter, undertake
revision of the lists with a view to excluding from such lists those classes who have ceased to be
backward classes or for including in such lists new backward classes.
2 The Central Government shall, while undertaking any revision referred to in sub- section (1),
consult the Commission."
Arguments on Behalf of Petitioners
19. It is contended that the impugned notification dated 04.03.2014 has been issued in derogation of
the provisions of Section 9 (2) of the Act which provides that "advice of the Commission shall
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ordinarily be binding upon the Central Government". Even in a situation contemplated by Section 11
of the Act the views of the NCBC would be equally compulsive and binding and should commend for
acceptance of the Central Government except in situations where there are strong compelling and
overwhelming reasons not to do so. None of the aforesaid situations do exist in the present case, it is
claimed on behalf of the petitioners.
21. The decisions in Barium Chemicals Ltd. Vs. Company Law Board2 ; Rohtas Industries Ltd.
Vs.S.D. Agarwal & Ors.3 ; Shri Sitaram Sugar Co. Ltd. & Anr. Vs. Union of India & Ors.4 and Gazi
Saduddin Vs. State of Maharashtra & Anr.5 have been relied upon to contend that the satisfaction of
the Central Government is open to challenge and within the reach of the judicial scrutiny both on
grounds of its legal fragility and ex facie unreasonableness. Learned counsel for the petitioners has
very elaborately taken us through the advice/report of the NCBC dated 26.02.2014 to contend that the
exhaustive report of the said body contain a detailed analysis of the facts recorded in the reports of
the various State Commissions. The said exercise clearly demonstrates that the Jats are a forward
community in all the States in question. The contrary view of the Union Government is wholly
unsupported by any adequate, reasonable and relevant grounds or basis. The decision of the Union
Government is also not based on any relevant quantifiable data or material to enable recognition of
the Jat Community as backward within the meaning of Article 16 (4) of the Constitution. Learned
counsel for the petitioners has elaborately placed the relevant materials on record in respect of each of
the States under consideration and has contended that the said materials cannot reasonably sustain the
decision to include Jats in the Central lists of other Backward Classes of the concerned States.
22. In reply, the learned Attorney General has argued that the power to make provisions for
reservation by inclusion of the eligible classes in the Central lists flow from Article 16 (4) of the
Constitution. The advice of the NCBC, according to the learned Attorney General, would not be very
material inasmuch as even dehors the provisions of the NCBC Act the Union Government would not
be denuded of its powers to add or subtract from the Central Lists of Other Backward Classes. The
learned Attorney has alternatively contended that the present exercise of inclusion of Jats in the list of
Other Backward Classes is not pursuant to any exercise undertaken under, Section 9 of the, NCBC
Act so as to bind the Union to the advice tendered by the NCBC. It is also argued that the inclusion of
classes or groups in the State OBC Lists will be a strong and compelling factor for inclusion of such
classes in the Central Lists also inasmuch as the considerations which had weighed with the State
Government to include a particular class as another backward class would always be relevant for
being taken into account for inclusion of the said class in the Central List of Other Backward Classes.
Such a course, according to the learned Attorney, is necessary for purposes of consistency and
uniformity of act ion by the Union and the States.
23. Pointing out the facts antecedent to the submission of the report/advice of the NCBC on
26.2.2014, the learned Attorney General has drawn the attention of the Court to the fact that the
process of tendering such advice had really commenced in the year 2011 and the delay that has
occurred is attributable to the NCBC. The NCBC has been vacillating from time to time as would be
evident from its decisions, firstly, to defer consideration of the matter till finalization of the Caste
Census Survey conducted by the Registrar General of India and thereafter in deciding to approach the
ICSSR for a full survey in the six States and subsequently its decision to opt for a 2% sample survey.
It is pointed out that even after the decision to go for a sample survey, nothing had happened for over
a year. It is only in December 2013 after the Central Government had reminded the NCBC of the
matter that the NCBC had decided to entrust the ICSSR to carry out a study based on the available
literature, books/documents. There was no undue haste in the process claims the learned Attorney
General who also points out that timing of the notification i.e. on the eve of the commencement of the
General Elections would not, by itself, be sufficient to hold the decision taken to be vitiated in law or
by legal malice.
24. The learned Attorney General has taken us through the exhaustive materials on record i.e. the
report dated 26.2.2014 of the NCBC; the reports of the various State Commissions; and report of the
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ICSSR including the report of the IIPA relied upon by the ICSSR. It is submitted, on the basis of the
said materials, that there is overwhelming evidence to permit a conclusion to be reached that the Jat
Community should be included in the Central Lists of Other Backward Classes in the States in
question. It is only after such consideration that the impugned notification dated 04.03.2014 came to
be issued. The conduct of the NCBC in entrusting the responsibility of carrying out a literature survey
to the Expert Body i.e. ICSSR on the ground that the NCBC itself is not equipped to perform the task
and, thereafter, in acting as an Appellate Body sitting in judgment over the views of the said Expert
Body has come in for sharp criticism by the learned Attorney General. By referring to the specific
conclusions of the NCBC recorded in its report dated
26.02.2014, it has been contended that the conclusions reached are wholly untenable and
unacceptable being contrary to specific findings recorded by the ICSSR or in the reports of the State
Commissions with regard to the social, economic as well as educational status of the Jats.
25. The above submission advanced by the learned Attorney General have been echoed by the
learned counsels appearing on behalf of the other respondents in the writ petitions i.e. Akhil
Bharatvarshiya Jat Mahasabha, Jat Aarakshan Sangharsh Samiti and the Jat Sabha Zila, Meerut. The
limited scope of judicial review that will be available to this Court to scrutinise the decision taken by
the Union Government has been particularly urged by Shri Mohan Parasaran, learned senior counsel
appearing for the Akhil Bharatvarshiya Jat Mahasabha. In so far as Jat Sabha Zila, Meerut is
concerned, Shri Jayant Bhushan, learned senior counsel has further urged that the test for determining
social, educational and economic backwardness laid down in Indra Sawhney case (supra) are fully
satisfied by the Jat Community so as to make its members eligible for inclusion in the Central lists of
OBCs.
26. What weight-age the advice/recommendation tendered by the NCBC should receive in the
decision making by the Union Government is a crucial determination that this Court is required to
make in the present case. The observations in Indra Sawhney(extracted above) and the expressed
provisions contained in Section 9 of the , NCBC Act clearly indicate that the advice tendered by the
NCBC is ordinarily binding on the Government meaning thereby that the same can be
overruled/ignored only for strong and compelling reasons which reasons would be expected to be
available in writing. As the constitution of the NCBC is traceable to the opinion rendered inIndra
Sawhney (extracted above) there can be no doubt that even when the exercise undertaken by the
Central Government is one under Section 11 of the Act, the views expressed by the NCBC in the
process of the consultation mandated by Section 11, would have a binding effect in the normal
course.
27. It will, therefore, be necessary to note what had prevailed with the NCBC in tendering its advice
in the instant case not to include the Jat community in the Central Lists of other backward classes in
the nine States in respect of which the reference was made to the Commission. A lengthy narration is
unavoidable for it is only upon setting out the relevant facts and circumstances in their proper
conspectus that the intrinsic merit of the advice tendered by the NCBC can be determined.
28. The NCBC had entrusted the task of the survey of the relevant literature to an Expert Committee
constituted by the ICSSR. On completion of the task the said Committee had submitted its report in
the matter to the NCBC. The State-wise summary of the findings of the Expert Body of the ICSSR
may be extracted below:
46. Undoubtedly, the report dated 26.02.2014 of the NCBC was made on a detailed consideration of
the various reports of the State Backward Classes Commissions; other available literature on the
subject and also upon consideration of the findings of the Expert Committee constituted by the
ICSSR to examine the matter. The decision not to recommend the Jats for inclusion in the Central
List of OBCs of the States in question cannot be said to be based on no materials or unsupported by
reasons or characterized as decisions arrived at on consideration of matters that are, in any way,
extraneous and irrelevant. Having requested the ICSSR to go into the matter and upon receipt of the
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report of the Expert Committee constituted in this regard, the NCBC was under a duty and obligation
to consider the same and arrive at its own independent decision in the matter, a duty cast upon it by
the Act in question. Consideration of the report of the Expert Body and disagreement with the views
expressed by the said body cannot, therefore, amount to sitting in judgment over the views of the
experts as has been sought to be contended on behalf of the Union. In fact, as noticed earlier, the
Expert Body of the ICSSR did not take any particular stand in the matter and did not come up with
any positive recommendation either in favour or against the inclusion of the Jats in the Central List of
OBCs. The report of the said Body merely recited the facts as found upon the survey undertaken,
leaving the eventual conclusion to be drawn by the NCBC. It may be possible that the NCBC upon
consideration of the various materials documented before it had underplayed and/or overstressed
parts of the said material. That is bound to happen in any process of consideration by any Body or
Authority of voluminous information that may have been laid before it for the purpose of taking of a
decision. Such an approach, by itself, would not make either the decision-making process or the
decision taken legally infirm or unsustainable. Something more would be required in order to bypass
the advice tendered by the NCBC which judicially (Indra Sawhney ) and statutorily (NCBC Act )
would be binding on the Union Government in the ordinary course. An impossible or perverse view
would justify exclusion of the advice tendered but that had, by no means, happened in the present
case. The mere possibility of a different opinion or view would not detract from the binding nature of
the advice tendered by the NCBC.
47. Of relevance, at this stage, would be one of the arguments advanced on behalf of the Union
claiming a power to itself to bypass the NCBC and to include groups of citizens in the Central List of
OBCs on the basis of Article 16 (4) itself. Undoubtedly, Article 16 (4) confers such a power on the
Union but what cannot be overlooked is the enactment of the specific statutory provisions
constituting a Commission (NCBC) whose recommendations in the matter are required to be
adequately considered by the Union Government before taking its final decision. Surely, the Union
cannot be permitted to discard its self-professed norms which in the present case are statutory in
character.
48. Certain other issues arising may be conveniently considered at this stage. One such issue arises
from the contentions advanced on behalf of the respondents, particularly on behalf of the Union
Government, that the OBC lists of the concerned States, by themselves, can furnish a reasonable
basis for the exercise of inclusion in the Central Lists. The above contention is sought to be
countenanced by the further argument that the Union and the State Governments under the
constitutional scheme have to work in tandem and not at cross purposes. While there can be no doubt
that in the matter of inclusion in the Central Lists of other backward classes, the exercise undertaken
by the State Governments in respect of the State Lists may be relevant what cannot be ignored in the
present case is the very significant fact that in respect of all the States (except Haryana) the inclusion
of Jats in the OBC Lists was made over a decade back. A decision as grave and important as involved
in the present case which impacts the rights of many under Articles 14 and 16 of the Constitution
must be taken on the basis of contemporaneous inputs and not outdated and antiquated data. In fact,
under Section 11 of the Act revision of the Central Lists is contemplated every ten years. The said
provision further illuminates on the necessity and the relevance of contemporaneous data to the
decision making process.
49. The backwardness contemplated by Article 16 (4) is social backwardness. This is implicit in the
judgment in Indra Sawhney (supra), as will be noticed in a later part of the present order. Educational
and economic backwardness may contribute to social backwardness. But social backwardness is a
distinct concept having its own connotations. The extracts of the Minutes of the Meeting of the
Cabinet held on 2nd March, 2014 which had preceded the impugned notification dated 4th March,
2014 tends to overlook the fact that crucial test for determination of the entitlement of the Jats to be
included in the Central Lists is social backwardness. This would be evident from Para 3 of the
Minutes of the Cabinet Meeting dated 2nd March, 2014 which is extracted below :
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3. "The ICSSR has observed that Jats in Haryana are a land owning community and while their share
in Class I & II Government services is closer to their population, they lag behind both in school and
higher educational enrolment. In the National Capital Territory of Delhi, in terms of social and
educational standing, Jats lag behind as compared to Gujars, who have been included as OBC in the
Central List. Similarly, in Uttar Pradesh and Uttarakhand, in the enrolment in higher and technical
education, Jats lag behind Ahirs/Yadavs. In Himachal Pradesh, the State Commission has come to
the conclusion that the Jat Community is socially, educationally and economically backward and is
fit for inclusion in the State list of OBCs. In Rajasthan, too, as regards literacy rate, enrolment in
graduation level courses and representation in Government services, Jats lag behind."
50. In so far as Haryana is concerned, the test adopted appears to be educational backwardness.
Similarly for the NCT of Delhi also, educational backwardness has been taken into account as the
determining factor for inclusion of Jats along with the fact that the Jats are behind the Gujars who are
already included in the Central Lists of OBCs. Similarly, in Uttar Pradesh and Uttarakhand, the test
appears to be educational backwardness; same is the position with regard to Rajasthan. Though the
States of M.P., Gujarat and Bihar have also been included in the Central Lists of OBCs by impugned
notification, no apparent consideration of the cases of these States is reflected in the Minutes of the
Cabinet Meeting dated 2nd March, 2014. Of course, the Cabinet is not expected to record the manner
of its consideration of each of the States but when it is done so for some of the States, the absence of
any mention of the other States would be a strong basis to conclude that the States that do not find
any mention in the Minutes, in fact, did not receive the consideration of the Cabinet, at all.
51. A very fundamental and basic test to determine the authority of the Governments decision in the
matter would be to assume the advice of the NCBC against the inclusion of the Jats in the Central
List of Other Backward Classes to be wrong and thereafter by examining, in that light, whether the
decision of the Union Government to the contrary would pass the required scrutiny. Proceeding on
that basis what is clear is that save and except the State Commission Report in the case of Haryana
(Justice K.C. Gupta Commission Report) which was submitted in the year 2012, all the other reports
as well as the literature on the subject would be at least a decade old. The necessary data on which the
exercise has to be made, as already observed by us, has to be contemporaneous. Outdated statistics
cannot provide accurate parameters for measuring backwardness for the purpose of inclusion in the
list of Other Backward Classes. This is because one may legitimately presume progressive
advancement of all citizens on every front i.e. social, economic and education. Any other view would
amount to retrograde governance. Yet, surprisingly the facts that stare at us indicate a governmental
affirmation of such negative governance inasmuch as decade old decisions not to treat the Jats as
backward, arrived at on due consideration of the existing ground realities, have been reopened,
inspite of perceptible all-round development of the nation. This is the basic fallacy inherent in the
impugned governmental decision that has been challenged in the present proceedings. The percentage
of the OBC population estimated at "not less than 52%" (Indra Sawhney ) certainly must have gone
up considerably as over the last two decades there has been only inclusions in the Central as well as
State OBC Lists and hardly any exclusion therefrom. This is certainly not what has been envisaged in
our Constitutional Scheme.
52. In so far as the contemporaneous report for the State of Haryana is concerned, the discussion that
has preceded indicate adequate and good reasons for the view taken by the NCBC in respect of the
said Report and not to accept the findings contained therein. The same would hardly require any
further reiteration.
53. Past decisions of this Court in M.R. Balaji Vs. State of Mysore6 and Janaki Prasad Vs. State of
Jammu & Kashmir7 had conflated the two expressions used in Articles 15 (4) and 16 (4) and read
them synonymously. It is in Indra Sawhneys case (supra) that this Court held that the terms
"backward class" and "socially and educationally backward classes" are not equivalent and further
that in Article 16 (4) the backwardness contemplated is mainly social. The above interpretation of
backwardness in Indra Sawhney (supra) would be binding on numerically smaller Benches. We
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may, therefore, understand a social class as an identifiable section of society which may be internally
homogenous (based on caste or occupation) or heterogeneous (based on disability or gender e.g.
transgender). Backwardness is a manifestation caused by the presence of several independent
circumstances which may be social, cultural, economic, educational or even political. Owing to
historical conditions, particularly in Hindu society, recognition of backwardness has been associated
with caste. Though caste may be a prominent and distinguishing factor for easy determination of
backwardness of a social group, this Court has been routinely discouraging the identification of a
group as backward solely on the basis of caste. Article 16 (4) as also Article 15 (4) lays the
foundation for affirmative action by the State to reach out the most deserving. Social groups who
would be most deserving must necessarily be a matter of continuous evolution. New practices,
methods and yardsticks have to be continuously evolved moving away from caste centric definition
of backwardness. This alone can enable recognition of newly emerging groups in society which
would require palliative act ion. The recognition of the third gender as a socially and educationally
backward class of citizens entitled to affirmative action of the State under the Constitution in
National Legal Services Authority vs. Union of India8 is too significant a development to be ignored.
In fact it is a path finder, if not a path-breaker. It is an important reminder to the State of the high
degree of vigilance it must exercise to discover emerging forms of backwardness. The State,
therefore, cannot blind itself to the existence of other forms and instances of backwardness. An
affirmative action policy that keeps in mind only historical injustice would certainly result in under-
protection of the most deserving backward class of citizens, which is constitutionally mandated. It is
the identification of these new emerging groups that must engage the attention of the State and the
constitutional power and duty must be concentrated to discover such groups rather than to enable
groups of citizens to recover "lost ground" in claiming preference and benefits on the basis of
historical prejudice.
54. The perception of a self-proclaimed socially backward class of citizens or even the perception of
the "advanced classes" as to the social status of the "less fortunates" cannot continue to be a
constitutionally permissible yardstick for determination of backwardness, both in the context of
Articles 15 (4) and 16 (4) of the Constitution. Neither can any longer backwardness be a matter of
determination on the basis of mathematical formulae evolved by taking into account social, economic
and educational indicators. Determination of backwardness must also cease to be relative; possible
wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to
permit entry of the most distressed. Any other inclusion would be a serious abdication of the
constitutional duty of the State. Judged by the aforesaid standards we must hold that inclusion of the
politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the
basis that on same parameters other groups who have fared better have been so included cannot be
affirmed.
55. For the various reasons indicated above, we cannot agree with the view taken by the Union
Government that Jats in the 9 (nine) States in question is a backward community so as to be entitled
to inclusion in the Central Lists of Other Backward Classes for the States concerned. The view taken
by the NCBC to the contrary is adequately supported by good and acceptable reasons which
furnished a sound and reasonable basis for further consequential action on the part of the Union
Government. In the above situation we cannot hold the notification dated 4.3.2014 to be justified.
Accordingly the aforesaid notification bearing No. 63 dated 4.3.2014 including the Jats in the Central
List of Other Backward Classes for the States of Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya
Pradesh, NCT of Delhi, Bharatpur and Dholpur Districts of Rajasthan, Uttar Pradesh and Uttarakhand
is set aside and quashed. The writ petitions are accordingly allowed.
************

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State of Karnataka v. Appa Balu Ingale
AIR 1993 SC 1126
(Appa Balu Ingale and four others were tried for the offences under Sections 4 and 7 of the Protection of
Civil Rights Act, 1955 (The Act). The trial court convicted all of them which was upheld by the Supreme
Court)
K. Ramaswamy, J.
7. In 1852 Frederick Douglass, a leading Black abolitionist of slavery described his agony on the eve of
America's Independence Day thus:
This Fourth of July is yours, not mine. You may rejoice, I must mourn. To drag a man in fetters to the
grand illuminated temple of liberty, and call upon him to join you in joyous anthems, were inhuman mockery
and sacrilegious irony... I say it with a sad sense of the disparity between us. I am not included within the pale
of this glorious anniversary.... the blessings in which you, this day, rejoice, are not enjoyed in common. The
rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers, is shared by you,
not by me. The sunlight that brought light and healing to you, has brought stripes and death to me.
8. Same was the poignant agony of the Indian Scheduled Castes, Untouchables, for short 'Dalits' on the
eve of August 15, 1947, Indian Independence Day.
10. The preamble of the Indian Constitution imbued among its people with pride of being its citizens in
an intergrated Bharat with fraternity, dignity of person and equality of status. But castism; sectional and
religious diversities and parochialism are disintegrating the people. Social stratification need restructure.
Democracy meant fundamental changes in the social and economic life of the people, absence of inequitous
conditions, inequalities and discrimination. There can be no dignity of person without equality of status and
opportunity. Denial of equal opportunities in any walk of social life is denial of equal status and amounts to
prevent equal participation in social intercourse and deprivation of equal access to social means. Humane
relations based on equality, equal protection of laws without discrimination would alone generate amity and
affinity among the heterogeneous sections of the Indian society and a feeling of equal participants in the
democratic polity. Adoption of new ethos and environment are, therefore, imperatives to transform the
diffracted society into high degree of mobility for establishing an egalitarian social order in Secular Socialist
Democratic Bharat Republic. "Untouchability" of the Dalits stands an impediment for its transition and is a
bane and blot on civilised society.
11. Article 17 of the Constitution of India, in Part III, a Fundamental Right, made an epoch making
declaration that "untouchability" is abolished and its practice in any form is forbidden. The enforcement of any
disability arising out of "untouchability" shall be an offence punishable in accordance with law. In exercise of
the power in second part of Article 17 and Article 35(a)(ii), the Untouchability (Offences) Act 1955 was made,
which was renamed in 1976 as "Protection of Civil Rights Act", for short 'the Act'. Abolition of untouchability
in itself is complete and its effect is all pervading applicable to state actions as well as acts of omission by
individuals, institutions, juristic or body of persons. Despite its abolition it is being practised with impunity
more in breach. More than 75% of the cases under the Act are ending in acquittal at all levels. Apathy and lack
of proper perspectives even by the courts in tackling the naughty problem is obvious. For the first time after 42
years of the Constitution came into force this first case has come up to this Court to consider the problem. The
Act is not a penal law simpliciter but bears behind it monstrous untouchability relentlessly practised for
centuries dehumanising the Dalits, constitution's animation to have it eradicated and to assimilate 1/5th of
Nation's population in the main stream of national life. Therefore, I feel that it would be imperative to broach
the problem not merely from the perspectives of criminal jurisprudence, but more also from sociological and
constitutional angulations. While respectfully agreeing with my learned brother Kuldip Singh, J. on his
reasoning, conclusions and conviction, it is expedient, therefore, to have the case considered from the above
back drop and address ourselves to the questions that arose for decision.
16. Poverty and penury made the Dalits as dependants and became vulnerable to oppression. The
slightest attempt to assert equality or its perceived exercise receives the ire of the dominent sections of the
society and the Dalits would become the object of atrocities and oppression. The lack of resources made the
Dalits vulnerable to economic and social boycott. Their abject poverty and dependence on the upper classes in
Rural Indian for livelihood stands a constant constraint to exercise their rights - social, legal or constitutional,
though guaranteed. Thus they have neither money capacity, influence nor means to vindicate their rights
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except occasional collective action which would be deceased or flittered away by pressures through diverse
forms. Consequently most of the Dalits are continuing to languish under the yoke of the practice of
untouchability. The State has the duty to protect them and render social justice to them.
18. Neither the Constitution nor the Act defined 'Untouchability'. Reasons are obvious. It is not capable
of precise definition. It encompasses acts/practices committed against Dalits in diverse forms. Mahatama
Gandhiji in his 'My philosophy of Life' edited by A.T. Hingorani 1961 Edn. at p. 146, stated that
"untouchability means pollution by the touch of certain person by reason of their birth in a particular state of
family. It is a phenomenon peculiar to Hinduism and has got no warrant in reasons or sastras". According to
Dr. Ambedkar, "the untouchability is the notion of defilement, pollution, contamination and the ways and
means of getting rid of that defilement. It is a permanent hereditary stain which nothing can cleanse". The
Parliamentary Committee on Untouchability headed by L. Elayaperumal in their 1969 report stated that
'untouchability' is a basic and unique feature and inseparably linked up with the caste system and social set up
based upon it. It does not require much research to realise that the phenomenon of untouchability in this
country is fundamentally of a religious or political origin. Untouchability is not a separate institution by itself,
it is a corollary of the institution of the caste system of Hindu Society. It is an attitude on the part of a whole
group of people. It is a spirit of social aggression that underlies this attitude.
20. In Shastri Yagnapurushdasji and Ors. v. Muldas Bhundardas Vaishya and Anr. , this Court speaking
through Gajendragadkar, C.J. held that 'untouchability is founded by superstition, ignorance, complete
misunderstanding of the true teachings of Hindu religion'. Sardar Vallabh Bhai Patel, during the course of the
discussion on the floor of the Constituent Assembly stated that, removal of untouchability is the main idea. If
abolition of untouchability is provided as a fundamental right, as an offence, necessary adjustment will be
made in the law that can be passed by the legislature, vide C.A.D. Vol. 3, pages 434-35.
21. Thus it could be concluded that the untouchability has been grown as an integral facet of socio-
religious practices being observed for over centuries; kept the Dalits away from the main-stream of the Society
on diverse grounds, be it of religious, customary, unfounded beliefs of pollution etc. It is an attitude and way
of behaviour of the general public of the Indian social order towards Dalits. Though it has grown as an integral
part of caste system, it became an institution by itself and it enforces disabilities, restrictions, conditions and
prohibitions on Dalits for access to and the use of places of public resort, public means, roads, temples, water
sources, tanks, bathing ghats, etc., entry into educational institutions or pursuits of avocation or profession
which are open to all and by reason of birth they suffer from social stigma. Untouchability and birth as a
scheduled caste are thus intertwine root causes. Untouchability, therefore, is founded upon prejudicial hatred
towards Dalits as in independent institution. It is an attitude to regard Dalits as pollutants, inferiors and out-
castes. It is not founded on mense rea. The practice of untouchability in any form is, therefore, a crime against
the Constitution. The Act also protects civil rights of Dalits. The abolition of untouchability is the arch of the
Constitution to make its preamble meaningful and to integrate the Dalits in the national main-stream.
22. In furtherance thereof Article 15(2) removed disabilities that no citizen shall, on grounds only of
religion, race, caste, sex, place of birth or any of them, be subjected to any disability, liability, restriction or
condition with regard to - (a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of
State funds or dedicated to the use of the general public. Article 23(1) prohibits begar and other similar forms
of forced labour, (bonded labour). Article 23 also prohibits traffic in woman (Jogins and Devadasi system
thrive on cruel monster of custom). Article 29(2) prohibits denial of admission into an educational institution
maintained by the State or receiving aid out of State funds on grounds only of...caste or any of them. Article 25
guarantees freedom of religion and its exercise thereof is made available to Dalits. Sub-clause (2) thereof
envisages that nothing in that article shall affect the operation of the existing law or prevent the State from
making any law to provide for social welfare and reform or to throw open Hindu religious institutions of a
public character to all classes and sections of Hindus.
24. The above provisions seeks to serve three-fold purposes; (i) outlawed the disabilities to which Dalits
are subjected to; (ii) they are made an offence under the Act; and (in) provided rights enforceable as civil
rights. Untouchability is the root cause and consequently any religious, social, customary or moral grounds to
enforce untouchability no longer subsists nor is valid after January 26, 1950. Enforcement of any disability is a
crime against human rights and the Constitution entails the wrong doer with punishment. All customs, usages,
practices directly or indirectly recognising or encouraging the practice of untouchability in any form is void,
being opposed to public policy. Even a contract, covenant or any private transaction tending to recognise,
encourage or effectuate untouchability in any form is, therefore, void ab initio.
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26. Article 51A Fundamental duties in Chapter IVA brought by the Constitution 42nd Amendment Act,
1976 enjoins as a fundamental duty every citizen to promote harmony, spirit of brotherhood amongst all the
people transcending sectional diversities etc. to develop scientific temper, humanism, the spirit of inquiry,
reform and to strive towards excellence in all spheres of individual and collective activity so that the nation
constantly rises to higher levels of endeavour and achievement. Poverty, illiteracy and caste system are
positive dangers to democracy. Democracy is essentially a form of society. Political democracy without social
democracy cannot last long. Elevation of the less privileged to the level of other sections of society is essential,
otherwise democracy would be in danger. Political and economic democracy would be of no avail unless
social inequalities are removed. The Act is an instrument to effectuate civil, social, cultural, economic and
constitutional rights of the Dalits.
29. It is worth bearing in mind a stark lesson that the doctrine of "separate but equal" profounder in
plassey v. Ferguson 41 Lawyers' Edition 356 (163 US 537), depleted the glorious contents of 14th Amendment
to integrate the Negroes into the main-stream of American Society till it was buried fathom deep in Oliver
Brown v. Board of Education of Topeka 98 Lawyers' Edition 873 (347 US 483) 1964.
33. When the mandate of Article 17 was being breached with impunity, and commission of atrocities on
Dalits and Tribes continued unabated, to stamp out the evil, the Parliament stepped in and made Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 with stringent provisions to eradicate those
offences with speedy trial. Relief and rehabilitation of the victims of such offence and related matters. The
details thereof are not germane for discussion.
34. Judiciary acts as a bastion of the freedom and of the rights of the people. Jawaharlal Nehru, the
Architect of Modern India as early as in 1944 stated that the spirit of the age is in favour of equality though the
practice denies it almost everywhere, yet the spirit of the age trumphs. The judge must be atone with the spirit
of his/her times. Power of judicial review, a constituent power has, therefore, been conferred upon the
judiciary which constitutes one of the most important and potent weapons to protect the citizens against
violation of social, legal or constitutional rights. The judges are participants in the living stream of national
life, steering the law between the dangers of rigidity on the one hand and formlessness on the other hand in the
seamless web of life. The great tides and currents which engulf the rest of the men do not turn aside in their
course and pass the judges idly bye. Law should subserve social purpose. Judge must be a jurist endowing with
the legislator's wisdom, historian's search for truth, prophet's vision, capacity to respond to the needs of the
present, resilience to cope with the demands of the future and to decide objectively disengaging himself/herself
from every personal influence or predilictions. Therefore, the Judges would adopt purposive interpretation of
the dynamic concepts of the Constitution and the Act with its interpretative armoury to articulate the felt
necessities of the time. The Judge must also bear in mind that social legislation is not a document for fastidious
dialects but means of ordering in the life of the people. To construe law one must enter into its spirit, its setting
and history. Law should be capable of expanding freedoms of the people and the legal order can, weighed with
utmost equal care, be made to provide the underpinning of the highly inequitable social order. The power of
judicial review must, therefore, be exercised with insight into social values to supplement the changing social
needs. The existing social inequalities or imbalances are to be removed and social order readjusted through
rule of law, lest the force of violent cult gain ugly triumph. Judges are summoned to the duty of shaping the
progress of the law to consolidate society and grant access to the Dalits and Tribes to public means or places
dedicated to public use or places of amenities open to public etc. The law which is the resultant product is not
found but made. Public policy of law, as determined by new conditions, would enable the courts to recast the
changing conceptions of social values of yester years yielding place to the changed conditions and
environment to the common good. The courts are to search for light from among the social elements of every
kind that are the living forces behind the factors they deal with. By judicial review, the glorious contents and
the trite realisation in the constitutional words of width must be made vocal and audible giving them continuity
of life, expression and force when they might otherwise be forgotten or ignored in the heat of moment or under
sway of passions of emotion remain aroused, that the rational faculties get befogged and the people are
addicted to take immediate for eternal, the transitory for the permanent and the ephemeral for the timeless. It is
in such surging situation the presence and consciousness and the restraining external force by judicial review
ensures stability and progress of the Society. Judiciary does not forsake the ideals enshrined in he constitution,
but make them meaningful and make the people realise and enjoy the rights.
35. The Judges, therefore, should respond to the human situations to meet the felt necessities of the time
and social needs, make meaningful the right to life and give effect to the Constitution and the will of the
Legislature. This court as the vehicle of transforming the nations life should respond to the nation's needs and
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to interpret the law with pragmatism to further public welfare to make the constitutional animations a reality.
Common sense is always served in the court's ceaseless striving as a voice of reason to maintain the blend of
change and continuity of order which is sine quo non for stability in the process of change in a parliamentary
democracy. In interpreting the Act, the judge should be cognizant to and always keep at the back of his/her
mind the constitutional goals and the purpose of the Act and interpret the provisions of the Act in the light thus
shed to annihilate untouchability; to accord to the Dalits and the Tribes right to equality, social integration a
fruition and make fraternity a reality.
36. The thrust of Article 17 and the Act is to liberate the society from blind and ritualistic adherence and
traditional beliefs which lost all legal or moral base. It seeks to establish new ideal for society - equality to the
Dalits, at par with general public, absence of disabilities, restrictions or prohibitions on grounds of caste or
religion, availability of opportunities and a sense of being a participant in the main stream of national life.
37. While the court, therefore, is to adopt the psychological approach, reasonable doubt does not mean
the mind of a doubting Thomas, nor vacillation, nor pusillanimity, nor deep seated prejudices or predilections
covertly found in other walks of life. The application of the test of a reasonable man acting in similar
circumstances and reasonable doubt of a reasonable man is the rule.
39. Before concluding it is apposite to abstract the immortal speech which bears all time relevance and to
the judiciary also by Dr. B.R. Ambedkar in the Constituent Assembly on November 25, 1949 thus:
What we must do is not to be content with mere political democrary. We must make our political
democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it a
social democracy. What does social democracy mean? It means a way of life which recognizes liberty equality
and fraternity as the principles of life. These principles - liberty, equality and fraternity are not to be treated as
separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to
defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced
from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce
the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without
fraternity, liberty and equality could not become a natural course of things. It would require a constable to
enforce them. We must begin by acknowledging the fact that there is complete absence of two things in Indian
society. One of these is equality. On the social plane, we have in India a society based on the principle of
graded inequality, which means elevation for some and degradation for others. On the economic plane, we
have a society in which there are some who have immense wealth as against many who live in abject poverty.
On 26th January, 1950, we are going to enter into a life of contradictions. In politics we will have
equality and in social and economic life we will have inequality. In politics we will be recognizing the
principle of one man, one vote and one vote, one value, In our social and economic life we shall, by reason of
our social and economic structure, continue to deny the principle of one man, one value. How long shall we
continue to life this life of contradictions? How long shall we continue to deny equality in our social and
economic life? If we continue to deny it for long, we will do so only by putting our political democracy in
peril. We must remove this contradiction at the earliest possible moment or else those who suffer from
inequality will blow up the structure of political democracy which we have so laboriously built up.
40. Accordingly, I agree with my brother on the conviction and sentences imposed on the respondents
and the appeal is accordingly allowed.

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Safai Karamchari Andolan v. Union of India
P.Sathasivam, CJI
1) The above writ petition has been filed by the petitioners as a Public Interest Litigation under
Article 32 of the Constitution of India praying for issuance of a writ of mandamus to the respondent-
Union of India, State Governments and Union Territories to strictly enforce the implementation of the
Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (in
short ‘the Act’), inter alia, seeking for enforcement of fundamental rights guaranteed under Articles
14, 17, 21 and 47 of the Constitution of India.
(ii) The sub-Committee of the Task Force constituted by the Planning Commission in 1989
estimated that there were 72.05 lakhs dry latrines in the country. These dry latrines have not only
continued to exist till date in several States but have increased to 96 lakhs and are still being cleaned
manually by scavengers belonging to the Scheduled Castes.
(iii) National Scheduled Castes and Scheduled Tribes Finance and Development Corporation
was set up in February, 1989 as a Government company to provide financial assistance to all the
Scheduled Castes and Scheduled Tribes including Safai Karamcharis for their economic
development.
(v) With a view to eliminate manual scavenging, a Scheme known as National Scheme of
Liberation and Rehabilitation of Scavengers and their Dependents was launched in March 1992 for
identification, liberation and rehabilitation of scavengers and their dependents by providing
alternative employment after giving the requisite training.
(vii) In the year 1993, the Parliament enacted the Employment of Manual Scavengers and
Construction of Dry Latrines (Prohibition) Act, 1993 and it received the assent of the President on 5th
June, 1993. The long title of the Act describes it as an Act to provide for the prohibition of
employment of manual scavengers as well as construction or continuance of dry latrines and for the
regulation of construction and maintenance of water-seal latrines and for matters connected therewith
or incidental thereto.
(viii) The Act, which was enacted in June 1993, remained inoperative for about 3½ years. It was
finally brought into force in the year 1997. In the first instance, the Act applied to the States of
Andhra Pradesh, Goa, Karnataka, Maharashta, Tripura and West Bengal and to all the Union
Territories. It was expected that the remaining States would adopt the Act subsequently by passing
appropriate resolution under Article 252 of the Constitution. However, as noted by the National
Commission for Safai Karamcharis-a statutory body, set up under the National Commission for Safai
Karamcharis Act, 1993, in its 3rd and 4th Reports (combined) submitted to the Parliament, noted that
the 1993 Act was not being implemented effectively and further noted that the estimated number of
dry latrines in the country is 96 lakhs and the estimated number of manual scavengers identified is
5,77,228. It further noted that manual scavengers were being employed in the military engineering
works, the army, public sector undertakings, Indian Railways etc.
(ix) In 2003, a report was submitted by the Comptroller and Auditor General (CAG) which
evaluated the National Scheme for Liberation and Rehabilitation of Scavengers and their Dependents.
The conclusion of the report was that this Scheme has failed to achieve its objectives even after 10
years of implementation involving investment of more than Rs. 600 crores. It further pointed out that
although funds were available for implementation of the Scheme, much of it were unspent or
underutilized. The Committees set up for monitoring the Scheme were non-functional. It further
noted that there was lack of correspondence between liberation and rehabilitation and that there was
no evidence to suggest if those liberated were in fact rehabilitated. It concluded that the most serious

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lapse in the conceptualization and operationalization of the Scheme was its failure to employ the law
that prohibited the occupation the law was rarely used.
5) The practice of untouchability in general and of manual scavenging in particular was
deprecated in no uncertain terms by Dr. B.R. Ambedkar, Chairman of the Drafting Committee of the
Constitution of India. Accordingly, in Chapter III of the Constitution, Article 17 abolished
untouchability which states as follows:
Abolition of Untouchability: Untouchability is abolished and its practice in any form is
forbidden. The enforcement of any disability arising out of Untouchability shall be an offence
punishable in accordance with law.
6) Article 17 of the Constitution was initially implemented through the enactment of the
Protection of Civil Rights Act, 1955 (formerly known as the Untouchability (Offences) Act, 1955).
Section 7A of the said Act provides that whoever compels any person on the ground of
untouchability to do any scavenging shall be deemed to have enforced a disability arising out of
untouchability which is punishable with imprisonment. While these constitutional and statutory
provisions were path breaking in themselves, they were found to be inadequate in addressing the
continuation of the obnoxious practice of manual scavenging across the country, a practice squarely
rooted in the concept of the caste-system and untouchability.
7) Apart from the provisions of the Constitution, there are various international conventions and
covenants to which India is a party, which prescribe the inhuman practice of manual scavenging.
These are the Universal Declaration of Human Rights (UDHR), Convention on Elimination of Racial
Discrimination (CERD) and the Convention for Elimination of all Forms of Discrimination Against
Women (CEDAW).
12) For over a decade, this Court issued various directions and sought for compliance from all
the States and Union Territories. Due to effective intervention and directions of this Court, the
Government of India brought an Act called The Prohibition of Employment as Manual
Scavengers and their Rehabilitation Act, 2013 for abolition of this evil and for the welfare of
manual scavengers. The Act got the assent of the President on 18.09.2013. The enactment of the
aforesaid Act, in no way, neither dilutes the constitutional mandate of Article 17 nor does it condone
the inaction on the part of Union and State Governments under the 1993 Act. What the 2013 Act does
in addition is to expressly acknowledge Article 17 and Article 21 rights of the persons engaged in
sewage cleaning and cleaning tanks as well persons cleaning human excreta on railway tracks.
5 - Prohibition of insanitary latrines and employment and engagement of manual scavenger (1)
Notwithstanding anything inconsistent therewith contained in the Employment of Manual Scavengers
and Construction of Dry Latrines (Prohibition) Act, 1993(46 of 1993), no person, local authority or
any agency shall, after the date of commencement of this Act,--
(a) construct an insanitary latrine; or
(b) engage or employ, either directly or indirectly, a manual scavenger, and every person so
engaged or employed shall stand discharged immediately from any obligation, express or implied, to
do manual scavenging.
(2) Every insanitary latrine existing on the date of commencement of this Act, shall either be
demolished or be converted into a sanitary latrine, by the occupier at his own cost, before the expiry
of the period so specified in clause (b) of sub-section (1) of section 4: Provided that where there are
several occupiers in relation to an insanitary latrine, the liability to demolish or convert it shall lie
with,--
(a) the owner of the premises, in case one of the occupiers happens to be the owner; and

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(b) all the occupiers, jointly and severally, in all other cases: Provided that the State
Government may give assistance for conversion of insanitary latrines into sanitary latrines to
occupiers from such categories of persons and on such scale, as it may, by notification, specify:
Provided further that non-receipt of State assistance shall not be a valid ground to maintain or
use an insanitary latrine, beyond the said period of nine months.
(3) If any occupier fails to demolish an insanitary latrine or convert it into a sanitary latrine
within the period specified in sub-section (2), the local authority having jurisdiction over the area in
which such insanitary latrine is situated, shall, after giving notice of not less than twenty one days to
the occupier, either convert such latrine into a sanitary latrine, or demolish such insanitary latrine,
and shall be entitled to recover the cost of such conversion or, as the case may be, of demolition,
from such occupier in such manner as may be prescribed.
6 - Contract, agreement, etc., to be void (1) Any contract, agreement or other instrument entered
into or executed before the date of commencement of this Act, engaging or employing a person for
the purpose of manual scavenging shall, on the date of commencement of this Act, be terminated and
such contract, agreement or other instrument shall be void and inoperative and no compensation shall
be payable therefor.
(2) Notwithstanding anything contained in sub-section (1), no person employed or engaged as a
manual scavenger on a full-time basis shall be retrenched by his employer, but shall be retained,
subject to his willingness, in employment on at least the same emoluments, and shall be assigned
work other than manual scavenging.
7 - Prohibition of persons from engagement or employment for hazardous cleaning of sewers
and septic tanks No person, local authority or any agency shall, from such date as the State
Government may notify, which shall not be later than one year from the date of commencement of
this Act, engage or employ, either directly or indirectly, any person for hazardous cleaning of a sewer
or a septic tank.
(2) The District Magistrate of the district concerned shall be responsible for rehabilitation of
each manual scavenger in accordance with the provisions of sub-section (1) and the State
Government or the District Magistrate concerned may, in addition, assign responsibilities in his
behalf to officers subordinate to the District Magistrate and to officers of the concerned Municipality.
The National Commission for Safai Karamcharis shall perform the following functions,
namely:-
(a) to monitor the implementation of this Act;
(b) to enquire into complaints regarding contravention of the provisions of this Act, and to
convey its findings to the concerned authorities with recommendations requiring further action; and
(c) to advise the Central and the State Governments for effective implementation of the
provisions of this Act.
(d) to take suo motu notice of matter relating to non-implementation of this Act.

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RIGHT TO FREEDOMS
Freedom of Speech and Expression – Freedom of Press
Bennett Coleman & Co. v. Union of India

(1972) 2 SCC 788 : AIR 1973 SC 106
A.N. RAY J. - These petitions challenge the Import Policy for Newsprint for the year April, 1972 to March,
1973. The Newsprint Policy is impeached as an infringement of fundamental rights to freedom of speech and
expression in Article 19(1)(a) and right to equality in Article 14 of the Constitution. Some provisions of the
Newsprint Control Order, 1962, are challenged as violative of Article 19(1)(a) and Article 14 of the
Constitution.
3. The Newsprint Control Order, 1962 (1962 Newsprint Order) is made in exercise of powers conferred by
Section 3 of the Essential Commodities Act, 1955. Section 3 of the Act enacts that if the Central Government
is of opinion that it is necessary or expedient so to do for maintaining or increasing supply of essential
commodities or for securing their equitable distribution and availability at fair prices, it may, by order, provide
for regulating or prohibiting production, supply and distribution and trade and commerce therein. Section 2 of
the 1955 Act defines “essential commodity”. Paper including newsprint, paper board and straw board is
defined in Section 2 (a)(vii) of the 1955 Act to be an essential commodity.
4. The 1962 Newsprint Order in Clause 3 mentions restrictions on acquisition, sale and consumption of
newsprint. Sub-clause 3 of Clause 3 of the 1962 Newsprint Order states that no consumer of newsprint shall, in
any licensing period, consume or use newsprint in excess of the quantity authorised by the Controller from
time to time. Sub-clause 3-A of Clause 3 of the 1962 Newsprint Order states that no consumer of newsprint,
other than a publisher of text-books or books of general interest, shall use any kind of paper other than
newsprint except with the permission, in writing, of the Controller. Sub-clause 5 of Clause 3 of the 1962
Newsprint Order states that in issuing an authorisation under this clause, the Controller shall have regard to the
principles laid down in the Import Control Policy with respect to newsprint announced by the Central
Government from time to time. Sub-clauses 3 and 3-A of Clause 3 of the 1962 Newsprint Order are challenged
in these petitions on the ground that these clauses affect the volume of circulation, the size and growth of a
newspaper and thereby directly infringe Article 19(1) (a) of the Constitution. The restrictions mentioned in
these sub-clauses of Clause 3 of the 1962 Newsprint Order are also said to be not reasonable restrictions within
the ambit of Article 19(2) of the Constitution.
5. Sub-clauses 3 and 3-A of Clause3 of the 1962 Newsprint Order are further impeached on the ground
that they offend Article 14 of the Constitution. Sub-clause 3-A is said to confer unfettered and unregulated
power and uncontrolled discretion to the Controller in the matter of granting of authorisation. It is said that
there are no provisions for redress of grievances by way of appeal or revision of the Controller decision in the
matter of grant or renewal of authorisation. The restrictions are said to be not reasonable or justified in the
interest of general public. The distinction between publishers of text-books and books of general interest on the
one hand and -other consumers of newsprint on the other in sub-clause 3-A is said to be discriminatory and
without any rational basis. Again, the disability imposed by sub-clause 3-A on newspapers preventing them
from using printing and writing paper while permitting all other consumers to do so, is said to be irrational
discrimination between newspaper and periodicals as the latter are permitted to use unlimited quantity of
printing and writing paper in addition to their allocation of newsprint.
6. The Newsprint Policy of 1972-73 deals with white printing paper (including water-lined newsprint
which contained mechanical wood pulp amounting to not less than 78 per cent. of the fibre content). Licences
are issued for newsprint. The validity of licences is for 12 months. The Newsprint Policy defines “common
ownership unit” to mean newspaper establishment or concern owning two or more news interest newspapers
including at least one daily irrespective of the centre of publication and language of such newspapers. Four
features of the Newsprint Policy are called in question. These restrictions imposed by the Newsprint Policy are
said to infringe rights of freedom of speech and expression guaranteed in Article 19(1) (a) of the Constitution.
First, no new paper or new edition can be started by a common ownership unit even within the authorised
quota of newsprint. Secondly, there is a limitation on the maximum number of pages to 10. No adjustment is
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permitted between circulation and the pages so as to increase the pages. Thirdly, no interchangeability is
permitted between different papers of common ownership unit or different editions of the same paper.
Fourthly, allowance of 20 per cent. increase in page level up to a maximum of 10 has been given to
newspapers with less than 10 pages. It is said that the objectionable and irrational feature of the Newsprint
Policy is that a big daily newspaper is prohibited and prevented from increasing the number of pages, page
area and periodicity by reducing circulation to meet its requirement even within its admissible quota. In the
Newsprint Policy for the year 1971-72 and the earlier periods the newspapers and periodicals were permitted
to increase the number of pages, page area and periodicity by reducing circulation. The current policy prohibits
the same. The restrictions are, therefore, said to be irrational, arbitrary and unreasonable. Big daily newspapers
having large circulation contend that this discrimination is bound to have adverse effects on the big daily
newspapers.
7. The Newsprint Policy is said to be discriminatory and violative of Article 14 because common
ownership units alone are prohibited from starting a new paper or a new edition of the same paper while other
newspapers with only one daily are permitted to do so. The prohibition against interchangeability between
different papers of the same unit and different editions of the said paper is said to be arbitrary and irrational,
because it treats all-common ownership units as equal and ignores pertinent and material differences between
some common ownership units as compared to others. The 10 page limit imposed by the policy is said to
violate Article 14 because it equates newspapers which are unequal and provides the same permissible page
limit for newspapers which are essentially local in their character and newspapers which reach larger sections
of people by giving world news and covering larger fields. The 20 per cent. increase allowed for newspapers,
whose number of pages was less than 10 is also challenged as violative of Article 14 by discriminating against
newspapers having more than 10 pages. The difference in entitlement between newspapers with an average of
more than 10 pages as compared with newspapers of 10 or less than 10 pages is said to be discriminatory
because the differentia is not based on rational incidence of classification.
10. The Additional Solicitor-General raised the plea that the petitioners were companies and therefore,
they could not invoke fundamental rights.
11. This Court in State Trading Corporation of India Ltd. v. The Commercial Tax Officer,
Visakhapatnam [(1964) 4 SCR 99] and Tata Engineering and Locomotive Co. v. State of Bihar [AIR 1965
SC 40] expressed the view that a corporation was not a citizen within the. meaning of Article 19 and,
therefore, could not invoke that article. The majority held that nationality and citizenship were distinct and
separate concepts. The view of this Court was that the word “citizen” in Part II and in Article 19 of the
Constitution meant the same thing. The result was that an incorporated company could not -be a citizen so as
to invoke fundamental rights. In the State Trading Corporation case the Court was not invited to “tear the
corporate veil”. In the Tata Engineering and Locomotive Co. case this Court said that a company was distinct
and separate entity from shareholders. The corporate veil it was said could be lifted in cases where the
company is charged with trading with the enemy or perpetrating fraud on the Revenue authorities.
12. There are however decisions of this Court where relief has been granted to the petitioners claiming
fundamental rights as shareholders or editors of newspaper companies.
13. In Express Newspapers case, the Express Newspapers (Private) Ltd. was the petitioner in a writ
petition under Article 32. The Press Trust of India Limited was another petitioner in a similar writ petition.
The Indian National Press (Bombay) Private Ltd. otherwise known as the “Free Press Group” was a petitioner
in the third writ petition. The Saurashtra Trust was petitioner for a chain of newspapers in another writ
petition. The Hindustan Times Limited was another petitioner. These petitions in the Express Newspapers
case challenged the vires of the Working Journalists (Conditions of Service) and Miscellaneous Provisions
Act, 1955. The petitioners contended that the provisions of the Act violated Articles 19(l)(a), 19(1)(g) and 14
of the Constitution.
16. In the Express Newspaper case, this Court held that freedom of speech and expression includes within
its scope the freedom of the Press. This Court referred to the earlier decisions in Romesh Thappar v. State of
Madras [1950 SCR 594] and Brij Bhushan v. State of Delhi [AIR 1950 SC 129]. Romesh Thappar case
related to a ban on the entry and circulation of Thapper’s journal in the State of Madras under the provisions of
the Madras Maintenance of Public Order Act, 1949. Patanjali Sastri, J. speaking for the Court said in Romesh
Thappar case that “there can be no doubt that the freedom of speech and expression includes freedom of
propagation of ideas and that freedom is ensured by the freedom of circulation. Liberty of circulation is as
essential to that freedom as the liberty of publication. Indeed, without circulation publication would be of little
value”. In Brij Bhusan case Patanjali Sastri, J. speaking for the majority judgment again said that “every free
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man has undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the
freedom of the press”. Bhagwati, J. in the Express Newspapers case speaking for the Court said that the
freedom of speech and expression includes freedom of propagation of ideas which freedom is ensured by the
freedom of circulation and that the liberty of the press is an essential part of the right to freedom of speech and
expression and that the liberty of the press consists in allowing no previous restraint upon publication.
17. Describing the impugned Act in the Express Newspapers case as a measure which could be
legitimately characterised to affect the press this Court said that if the intention or the proximate effect and
operation of the Act was such as to bring it within the mischief of Article 19(1)(a) it would certainly be liable
to be struck-down. But the Court found in the Express Newspapers case that the impugned measures were
enacted for the benefit of the working journalists and it was, therefore, neither the intention nor the effect and
operation of the impugned Act to take away or abridge the right of freedom of speech and expression enjoyed
by the petitioners. There are ample observations of this Court in the Express Newspapers case to support the
right of the petitioner companies there to invoke fundamental right in aid of freedom of speech and expression
enshrined in the freedom of the press. This Court said that if the impugned measure in that case fell within the
vice of Article 19(1)(a) it would be struck down. This observation is an illustration of the manner in which the
truth and spirit of the freedom of press is preserved and protected.
19. In the present case, the petitioners in each case are in addition to the company the shareholders, the
editors and the publishers. In the Bennett Coleman group of cases one shareholder, a reader of the publication
and three editors of the three dailies published by the Bennett Coleman Group are the petitioners. In the
Hindustan Times case a shareholder who happens to be a Deputy Director, a shareholder, a Deputy Editor of
one of the publications, the printer and the publisher of the publications and a reader are the petitioners. In the
Express Newspapers case the company and the Chief Editor of the dailies are the petitioners. In the Hindu
case a shareholder, the Managing Editor, the publisher of the company are the petitioners. One of the
important questions in these petitions is whether the shareholder, the editor, the printer, the Deputy Director
who are all citizens and have the right to freedom under. Article 19(i) can invoke those rights for freedom of
speech and expression, claimed by them for freedom of the press in their daily publication. The petitioners
contend that as a result of the Newsprint Control Policy of 1972-73 their freedom of speech and expression
exercised through their editorial staff and through the medium of the publications is infringed. The petitioners
also challenge the fixation of 10-page ceiling and the restriction on circulation and growth on their
publications to be not only violative of but also to abridge and take away the freedom of speech and expression
of the shareholders and the editors. The shareholders, individually and in association with one another
represent the medium of newspapers through which they disseminate and circulate their views and news. The
newsprint policy exposes them to heavy financial loss and impairs their right to carry on the business of
printing and publishing of the dailies through the medium of the companies.
20. In R. C. Cooper v. Union of India [(1970) 3 SCR 530], which is referred to as the Bank
Nationalisation case, Shah, J., speaking for the majority dealt with the contention raised about the
maintainability of the petition. The petitioner there was a shareholder, a Director and holder of deposit of
current accounts in the Bank. The locus standi of the petitioner was challenged on the ground that no
fundamental right of the petitioner there was directly impaired by the enactment of the Ordinance and the Act
or any action taken thereunder. The petitioner in the Bank Nationalisation case claimed that the rights
guaranteed to him under Articles 14, 19 and 31 of the Constitution were impaired. The petitioners grievances
were these. The Act and the Ordinance were without legislative competence. The Act and the Ordinance
interfered with the guarantee of freedom of trade. They were not made in public interest. The President had no
power to promulgate the Ordinance. His right to receive dividends ceased. He suffered financial loss. He was
deprived of the right as a shareholder to carry on business through the agency of the company.
21. The ruling of this Court in Bank Nationalisation case was this:
“A measure executive or legislative may impair the rights of the company alone, and not of its
shareholders; it may impair the rights of the shareholders and not of the Company; it may impair the
rights of the shareholders as well as of the company. Jurisdiction of the Court to grant relief cannot be
denied, when by State action the rights of the individual shareholder are impaired, if that action,
impairs the rights of the Company as well. The test in determining whether the shareholder’s right is
impaired is not formal; it is essentially qualitative; if the State action impairs the right of the
shareholders as well as of the Company, the Court will not, concentrating merely upon the technical
operation of the action, deny itself jurisdiction to grant relief.”

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22. In the Bank Nationalisation case, this Court held the statute to be void for infringing the rights under
Articles 19(1)(f) and 19(1)(g) of the Constitution. In the Bank Nationalistion case, the petitioner was a
shareholder and a director of the company which was acquired under the statute. As a result of the Bank
Nationalisation case, it follows that the Court finds out whether the legislative measure directly touches the
company of which the petitioner is a shareholder. A shareholder is entitled to protection of Article 19. That
individual right is not lost by reason of the fact that he is a shareholder of the company. The Bank
Nationalisation case has established the view that the fundamental rights of shareholders as citizens are not
lost when they associate to form a company. When their fundamental rights as shareholders are impaired by
State action their rights as shareholders are protected. The reason is that the shareholders’ rights are equally
and necessarily affected if the rights of the company are affected. The rights of shareholders with regard to
Article 19(1)(a) are projected and manifested by the newspapers owned and controlled by the shareholders
through the medium of the corporation. In the present case, the individual rights of freedom of speech and
expression of editors. Directors and shareholders are all exercised through their newspapers through which
they speak. The press reaches the public through the newspapers. The shareholders speak through their editors.
The fact that the companies are the petitioners does not prevent this Court from giving relief to the
shareholders, editors, printers who have asked for protection of their fundamental rights by reason of the effect
of the law and of the action upon their rights. The locus standi of the shareholder petitioners is beyond
challenge after the ruling of the Supreme Court in the Bank Nationalisation case. The presence of the
company is on the same ruling not a bar to the grant of relief.
26. The petitioners challenged the validity of the 1972-73 newsprint policy.
29. The power of the Government to import newsprint cannot be denied. The power of the Government to
control the distribution of newsprint cannot equally be denied. It has, of course, to be borne in mind that the
distribution must be fair and equitable. The interests of the big, the medium and the small newspapers are all to
be taken into consideration at the time of allotment of quotas. In the present case, there was some dispute
raised as to whether there should be more import of newsprint. That is a matter of Government policy. This
Court cannot adjudicate on such policy measures unless the policy is alleged to be mala fide. Equally, there
was a dispute as to the quantity of indigenous newsprint available for newspapers. This Court cannot go into
such disputes.
31. Article 19(1)(a) provides that all citizens shall have the right to freedom of speech and expression.
Article 19(2) states that nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law,
‘Or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise
of the right conferred by the said sub-clause in the interests of the security of the State; friendly relations with
foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement
to an offence. Although Article 19(l)(a) does not mention the freedom of the Press, it is the settled view of this
Court that freedom of speech and expression includes freedom of the Press and circulation.
32. In the Express Newspapers case, it is said that there can be no doubt that liberty of the Press is an
essential part of the freedom of speech and expression guaranteed by Article 19(1) (a). The Press has the right
of free propagation and free circulation without any previous restraint on publication. If a law were to single
out the Press for laying down prohibitive burdens on it that would restrict the circulation, penalise its freedom
of choice as to personnel, prevent newspapers from being started and compel the press to Government aid.
This would violate Article 19(1)(a) and would fall outside the protection afforded by Article 19(2).
33. In Sakal Papers case, it is said that the freedom of speech and expression guaranteed by Article
19(1)(a) gives a citizen the right to propagate and publish his ideas to disseminate them, to circulate them
either by words of mouth or by writing. This right extends not merely to the matter it is entitled to circulate but
also to the volume of circulation. In Sakal Papers case the Newspaper (Price and Page) Act, 1956 empowered
the Government to regulate the prices of newspapers in relation to their pages and sizes and to regulate the
allocation of space for advertisement matter. The Government fixed the maximum number of pages that might
be published by a newspaper according to the price charged. The Government prescribed the number ‘of
supplements that would be issued. This Court held that the Act and the Order placed restraints on the freedom
of the press to circulate. This Court also held that the freedom of speech could not be restricted for the purpose
of regulating the commercial aspects of activities of the newspapers.
34. Publication means dissemination and circulation. The press has to carry on its activity by keeping in
view the class of readers, the conditions of labour, price of material, availability of advertisements, size of
paper and the different kinds of news comments and views and advertisements which are to be published and
circulated. The law which lays excessive and prohibitive burden which would restrict the circulation of a
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newspaper will not be saved by Article 19(2). If the area of advertisement is restricted, price of paper goes up.
If the price goes up circulation will go down. This was held in Sakal Papers case to be the direct consequence
of curtailment of advertisement. The freedom of a newspaper to publish any number of pages or to circulate it
to any number of persons has been held by this Court to be an integral part of the freedom of speech and
expression. This freedom is violated by placing restraints upon it or by placing restraints upon something
which is an essential part of that freedom. A restraint on the number of pages, a restraint on circulation and a
restraint on advertisements would affect the fundamental rights under Article 19(1)(a) on the aspects of
propagation, publication and circulation.
36. The Additional Solicitor-General contended that the newsprint policy did not violate Article 19(1)(a).
The reasons advanced were these. The newsprint policy does not directly and immediately deal with the right
mentioned in Article 19(1)(a). The test of violation is the subject-matter and not the effect or result of the
legislation. If the direct object of the impugned law or action is other than freedom of speech and expression
Article 19(1)(a) is not attracted though the right to freedom of speech and expression may be consequentially
or incidentally abridged. The rulings of this Court in Express Newspapers case and Hamdard Dawakhana
case were referred to. In the Express Newspapers case, the Act was said to be a beneficent legislation intended
to regulate the conditions of service of the working journalists. It was held that the direct and inevitable result
of the Act could not be said to be taking away or abridging the freedom of speech and expression of the
petitioners. In the Hamdard Dawakhana case the scope and object of the Act and its true nature and character
were found to be not interference with the right of freedom of speech but to deal with trade or business. The
subject-matter of the import policy in the present case was rationing of imported commodity and equitable
distribution of newsprint. The restrictions in fixing the page level and circulation were permissible as
directions, which were considered necessary in order to see that the imported newsprint was properly utilised
for the purpose for which the import was considered necessary. Article 369 of the Constitution shows that
rationing of and distribution of quota of newsprint’ and regulation of supply is not a direct infringement of
Article 19(1)(a). The scarcity of newspapers (sic) justifies the regulation and the direction in the manner of
use.
41. This Court in the Bank Nationalisation case laid down two tests. First it is not the object of the
authority making the law impairing the right of the citizen nor the form of action that determines the invasion
of the right. Secondly, it is the effect of the law and the action upon the right which attracts the jurisdiction of
the court to grant relief. The direct operation of the Act upon the rights forms the real test.
43. The various provisions of the newsprint import policy have been examined to indicate as to how the
petitioners fundamental rights have been infringed by the restrictions on page limit, prohibition against new
newspapers and new editions. The effect and consequence of the impugned policy upon the newspapers is
directly controlling the growth and circulation of newspapers. The direct effect is the restriction upon
circulation of newspapers. The direct effect is upon growth of newspapers through pages. The direct effect is
that newspapers are deprived of their area of advertisement. The direct effect is that they are exposed to
financial loss. The direct effect is that freedom of speech and expression is infringed.
44. The Additional Solicitor-General contended that a law which merely regulates even directly the
freedom of the press is permissible so long as there is no abridgement or taking away of the fundamental rights
of citizens. He leaned heavily on American decisions in support of the submission that the right of the press of
free expression is of all citizens speaking, publishing and printing in all languages and the grave concern for
freedom of expression which permitted the inclusion of Article 19(1) (a) is not to be read as a command that
the Government or Parliament is without power to protect that freedom. The Constitutional guarantees of
freedom of speech and expression are said by the Additional Solicitor-General to be not so much for the
benefit of the press as for the benefit of all people. In freedom of speech, according to the Additional Solicitor-
General, is included the right of the people to read and the freedom of the press assures maintenance of an
open society. What was emphasised on behalf of the Government was that the freedom of the press did not
countenance the monopolies of the market.
45. It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and
express their views. The freedom of the press embodies the right of the people to read. The freedom of the
press is not antithetical to the right of the people to speak and express.
46. Article 13 of our Constitution states that the State is prohibited from making any law which abridges or
takes away any fundamental rights. Again, Article 19(2) speaks of reasonable restrictions on the exercise of
fundamental rights to freedom of speech and expression. Our Constitution does not speak of laws regulating
fundamental rights. But there is no bar on legislating on the subject of newspapers as long as legislation does
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not impose unreasonable restrictions within the meaning of Article 19(2). Its also important to notice as was
done in earlier decisions of this Court that our Article 19(l)(a) and the First Amendment of the American
Constitution are different. The First Amendment of the American Constitution enacts that the Congress shall
make no law ... abridging the freedom of speech of the press. The American First Amendment contains no
exceptions like our Article 19(1) and (2) of the Constitution. Therefore, American decisions have evolved their
own exceptions. Our Article 19(2) speaks of reasonable restrictions. Our Article 13 states that the State shall
not make laws which abridge or take away fundamental rights in Part III of the Constitution.
50. At this stage it is necessary to appreciate the petitioners’ contentions that the newsprint policy of 1972-
73 violates Articles 19(l)(a) and 14 of the Constitution.
51. The first grievance is about Remark V in the newsprint policy. Remark V deals with dailies which are
not above 10 pages and dailies over 10 pages. With regard to dailies which are not above 10 pages the policy is
that the computation of entitlement to newsprint is on the basis of the actual newsprint consumption in 1970-
71 or 1971-72 whichever is less. The average circulation, the average number of pages and the average page
area actually published are all taken into consideration. The petitioners and in particular the Bennett Coleman
Group illustrated the vice of this feature in Remark V by referring to their publications Maharashtra. Times,
Nav Bharat Times and Economic Times. The average circulation of these three publications in 1971-72 was
higher than the average circulation in 1970-71. It is, therefore, said that Remark V which shows the basis of
consumption to be the lesser of the’ two years will affect their quota. The Government version is that the
figure of consumption in 1971-72 did not represent a realistic picture because of three principal events during
that year. These were the Bangladesh Crisis, the Indo-Pak War in 1971 and the Elections. The petitioners say
that the quota for 1971-72 was determined in April 1971 which was prior to the occurrence of all the three
events. Again, in the past when there was the Sino-Indian Conflict in 1962 and the Indo-Pak War in 1965 the
performance of the newspapers during the years preceding those events was not ignored as was done in the
impugned policy for 1972-73. With regard to elections, the petitioners say that a separate additional quota has
been given. In the policies prior to 1971-72 the growth achieved in circulation as a result of the grant of the
additional quota for elections was taken into consideration in determining the quota for the following year. The
petitioners, therefore, contend that the policy in Remark V instead of increasing circulation will result in the
reduction of circulation. The petitioners are, in our judgment, right in their submission that this policy
negatives the claim of the Government that this policy is based on circulation.
52. With regard to dailies over 10 pages Remark V proceeds on the calculation of the basic entitlement to
be on an average of 10 pages and either the average circulation in 1970-71 or the admissible circulation in
terms of 1971-72 Newsprint Policy plus increases admissible in terms of Remark VII whichever is more.
53. The dominant direction in the newsprint policy particularly in Remarks V and VIII is that the page
limit of newspapers is fixed at 10. The petitioners who had been operating on a page level of over 10 challenge
this feature as an infringement of the freedom of speech and expression.
54. Remark V is therefore impeached first on the ground of fixation of 10 page ceiling and secondly on the
basis of allotment of quota.
57. In our view shortage of newsprint can stop with allotment. If the Government rests content with
granting consumers of newsprint a quantity equitably and fairly, the consumers will not quarrel with the
policy. The consumers of newsprint are gravely concerned with the other features.
62. The maximum page level fixed at 10 and the prohibition against the adjustability between pages and
circulation are strongly impeached by the petitioners. These seven dailies except Bombay Samachar are
common ownership units. Some of them publish other leading language dailies also. The maximum number of
pages at 10 will, according to the petitioners, not only adversely affect their profits but also deprive them If
expressing and publishing the quality of writings and fulfillment of the role to be played by the newspaper in
regard to their freedom of speech and expression. While it must be admitted that the language dailies should be
allowed to grow, the English dailies should not be forced to languish under a policy of regimentation. It is
therefore correct that the compulsory reduction to 10 pages offends article 19(1)(a) and infringes the rights of
freedom of speech and expression.
63. It is further urged that the Government has fixed the quota on the basis of circulation multiplied by
pages. The Government has on the one hand compared the circulation of the big dailies with the circulation of
medium and small dailies and on the other has ignored the difference in the number of pages of big dailies as
compared to the number of pages of the medium and the small dailies. The difference in pages coupled with
the difference in circulation affords a reason for difference in the percentage of total allocation given to the big
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dailies as compared to the medium and the small dailies. The average number of pages for the big dailies is
10.3, for the medium dailies 8.3, and for the small dailies 4.4. The percentage of allocation for the big dailies
reflects really the large number of pages they publish. The big dailies therefore have not only larger
requirements but also they render larger services to the readers. The Newsprint Policy of fixing the page level
at 10 is seeking to make unequals equal and also to benefit one type of daily at the expense of another.
64. The historical reason given by the Government for fixing the maximum number of pages at 10 is that
the affect of the policy on allowing any page increase and circulation increase from time to time has been to
help the growth of the press. This is how newspapers like Ananda Bazar Patrika, Jugantar and Deccan Herald
are said to have come up. The Government also relies on the recommendation of the newspaper proprietors in
the year 1971 that eight pages should be considered the national minimum requirement for medium of
information. The big English dailies had the number of pages over 12 in 1957. Because of adjustability
between pages and circulation they had an actual page level which was higher than the permissible page level
of 1957. The petitioners say that this has not impeded the growth of other papers.
65. The Government has sought to justify the reduction in the page level to 10 not only on the ground of
shortage of newsprint but also on the grounds that these big dailies devote high percentage of space to
advertisements and therefore the cut in pages will not be felt by them if they adjusted their advertisement
space. In our judgment the policy of the Government to limit all papers at 10 pages is arbitrary. It tends to treat
unequals as equals and discriminates against those who by virtue of their efficiency, standard and service and
because of their All-India statute acquired a higher page level in 1957. The main source of income for the
newspapers is from advertisements. The loss of revenue because of the cut in page level is said to be over
several lakhs of rupees. Even if there is a saving in raw material by cut in page level there would be a revenue
gap of a large sum of money. This gap could have .been partly recouped by increasing the page level. The
newspaper has a built-in mechanism. Advertisements are not only the sources of revenue but also ‘one of the
factors for circulation. Once circulation is lost it will be very difficult to regain the old level. The
advertisement rate has undergone slight increase since 1972. As a result of the cut in page level the area for
advertisements is also reduced.
67. The estimated loss on account of reduction of page limit is Rs 39 lakhs in the case of Bennett Coleman
group, Rs 44 lakhs in the case of Hindustan Times and Rs 38 lakhs in the case of the Hindu. If as a result of
reduction in pages the newspapers will have to depend on advertisements as their main source of income, they
will be denied dissemination of news and views. That will also deprive them of their freedom of speech and
expression. On the other hand, if as a result of restriction on page limit the newspaper will have to sacrifice
advertisements and thus weaken the link of financial strength, the organisation may crumble. The loss on
advertisements may not only entail the closing down but also affect the circulation and thereby impinge on
freedom of speech and expression.
70. The impeached policy violates Article 14 because it treats newspapers which are not equal equally in
assessing the needs and requirements of newsprint. The Government case is that out of 35 newspapers which
were operating on a quota calculated on a higher page level than 10 pages 28 newspapers will benefit by the
impeached policy of 1972-73. But seven newspapers out .of 22 which were operating above 10 page level are
placed at a disadvantage by the fixation of 10 page limit and entitlement to quota on that basis. There is no
intelligible differentia. Nor has this distinction any relation to equitable distribution of newsprint. The
impeached policy also offends Article 19(1)(a) of the Constitution. Newspapers like 19 language dailies
reduced their pages in order to increase circulation though such language dailies had prior to 1972-73 been
given quota to increase pages. Under the impeached policy these language dailies are given additional quota to
increase their pages against to 10.
71. The basic entitlement in Remark V to quota for newspapers operating above 10 page level violates
Article 19(1)(a) because the quota is hedged in by direction not to increase the page number above 10. The
reduction of page limit to 10 for the aforesaid reasons violates Article 19(1)(a) and Article 14 of the
Constitution.
72. The other features in the newsprint policy complained of are those in Remark VII (c) read with
Remark VIII of the impeached policy. Remark VII (c) allows 20 per cent. increase to daily newspapers in the
number of pages within the ceiling of 10 over the average number of pages on which the basic entitlement is
fixed under Remark V. In other words, dailies with less than 10 pages are prevented from adjusting the quota
for 20 per .cent. increase for increase in circulation. The Bennett Coleman group says that their Nav Bharat
Times, Maharashtra Times and Economic Times would prefer to increase their circulation. Under Remark V
they are entitled to quota on the basis of consumption in 1970-71 or 1971-72 whichever is less. This feature
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also indicates that the newsprint policy is not based on circulation. Under Remark VII, these newspapers
within the ceiling of 10 can get 20 per cent. increase in the number of pages. They require circulation more
than the number of pages. They are denied circulation as a result of this policy. The big English dailies which
.need to increase their pages are not permitted to do so. Other dailies which do not need increase in pages are
permitted quota for increase, but they are denied the right of circulation. In our view, these features were
rightly said by counsel for the petitioners to be not newsprint control but newspaper control in the guise of
equitable distribution of newsprint. The object of the impeached policy is on the one hand said to increase
circulation and on the other to provide for growth in pages for others. Freedom of speech and expression is not
only in the volume of circulation but also in the volume of news and views.
73. Remark VIII in the Newsprint Policy of 1972-73 imposes two types of restrictions. First, a daily is not
permitted to increase its number of pages by reducing circulation to meet its individual requirements.
Secondly, dailies belonging to a common ownership unit are not permitted interchangeability between them of
the quota allotted to each even when the publications are different editions of the same daily published from
different places.
74. The first prohibition in Remark VIII against increase in pages by reducing circulation has been
introduced for the first time in the policy for 1972-73. The reason given by the Government for this feature is
that newspapers would obtain a quota on the basis of a certain stated circulation and they should not be
allowed to reduce circulation. The petitioners say -that quota is not granted on the basis of actual circulation
but is granted on the basis of notional circulation which means the actual circulation of 1961-62 with
permissible increases year after year even though the actual circulation does not correspond to the permissible
circulation on which the quota was based year after year. The Times of India Bombay in 1971-72 demanded
quota on the basis of 20 pages and a circulation of 1,70,000. The Times of India was allowed quota on the
basis of 13.13 pages and a circulation of 2,02,817. The actual performance was average page number of 18.25
and circulation of 1,54, 904. In the past, adjustability between pages and circulation was permitted. In our
judgment, the petitioners correctly say that the individual requirements of the different dailies render it
eminently desirable in some cases to increase the number of pages than circulation. Such adjustment is
necessary to maintain the quality and the range of the readers in question. The denial of this flexibility or
adjustment is in our view rightly said to hamper the quality, range and standard of the dailies and to affect the
freedom of the press.
75. The restriction on the petitioners that they can use their quota to increase circulation but not the page
number violates Article 19(1)(a) as also Article 14. Big dailies are treated to be equal with newspapers who are
not equal to them. Again, the policy of 1972-73 permits dailies with large circulation to increase their
circulation. Dailies operating below 10 page level are allowed increase in pages. This page increase quota
cannot be used for circulation increase. Previously, the big dailies were allowed quota for circulation growth.
The present policy has decreased the quantity for circulation growth. In our view counsel for the petitioners
rightly said that the Government could not determine thus which newspapers should grow in page and
circulation and which newspapers should grow only in circulation and not in pages. Freedom of press entitles
newspapers to achieve any volume of circulation. Though requirements of newspapers as to page, circulation
are both taken into consideration for fixing their quota but the newspapers should be thereafter left free to
adjust their page number and circulation as they wish in accordance with the dictates of Article 19(1)(a) of the
Constitution.
76. Counsel for the petitioners contended that the second prohibition in Remark VIII in the Newsprint
Policy prevented common ownership units from adjusting between them the newsprint quota allotted to each
of them. The prohibition is to use the newsprint quota of one newspaper belonging to a common ownership
unit for other newspaper belonging to that unit. On behalf of the petitioners it was said that from 1963-64 till
1966-67 interchangeability was permitted between different editions of the same publication to the extent of 20
per cent. In 1967-68 and 1968-69 complete interchangeability between different editions of the same
newspaper and between different newspapers and periodicals was permitted. In 1969-70 and 1970-71 the total
entitlement was given as an aggregate quota, though there was a separate calculation made for each
newspaper. The present policy does not permit interchangeability. Interchangeability by using the quota for a
new newspaper or a new edition or for another newspaper of the same unit will put common ownership unit in
an advantageous position. Newsprint is allotted to each newspaper. The newspaper is considered to be the
recipient. A single newspaper will suffer if common ownership units are allowed to adjust quota within their
group.

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77. The petitioners impeach Remark X in the Newsprint Policy for 1971-72 on the ground that a common
ownership unit cannot bring out a new newspaper or start a new edition of an existing newspaper even from
their allotted quota. Counsel on behalf of the petitioners rightly characterised this feature as irrational and
irrelevant to the availability of newsprint. By way of illustration it was said that the Economic Times is sent by
air to Calcutta and Delhi but the common ownership unit is not permitted to reduce the number of copies
printed at Bombay and print copies out of the authorised quota circulation at Calcutta and Delhi. Similarly, it
was said that there was no reason to support the policy in Remark X preventing a common ownership unit
from publishing a new daily though a person who brought out one daily was allowed to start a second daily.
This was challenged as discriminatory. It is an abridgement of the freedom of expression to prevent a common
ownership unit from starting a new edition or a new newspaper. A common ownership unit should be free to
start a new edition out of their allotted quota and it would be logical to say that such a unit can use its allotted
quota for changing the page structure and circulation of different editions of the same paper. It is made clear
that newspapers cannot be permitted to use allotted quota for starting a newspaper. Newspapers will have to
make necessary application for allotement of quota in that behalf. It will be open to the appropriate authorities
to deal with the application in accordance with law.
78. Until 1968-69 big dailies were treated alike but thereafter from 1970-71 onwards dailies with
circulation of more than 1,00,000 copies have been put in a different category and given a lesser increase than
those with a circulation of 50,000 to 1,00,000 copies though both are big dailies. The policy of the
Government is to level all papers at 10 pages. It tends to treat unequals as equals. It discriminates against those
who by virtue of their standing status and service on all India basis acquired a higher page level in the past.
The discrimination is apparent from Remark VII in the Newsprint Policy for 1972-73 by which newspapers
with less than 1,00,000 circulation have been given 10 per cent. increase in circulation whereas those with
more than 1,00,000 circulation have been given only 3 per cent. increase in circulation.
79. Mr Palkhivala said the policy worked admirably in the past because adjustability between pages and
circulation was permitted. In our view the Newsprint Control has now been subverted to newspaper control.
The growth of circulation does not mean that there should not be growth in pages. A newspaper expands with
the news and views. A newspaper reaches different sections. It has to be left to the newspapers as to how they
will adjust their newsprint. At one stage the Additional Solicitor-General said that if a certain quantity of steel
was allotted the Government could insist as to how it was going to be used. It was said that the out-put could
be controlled. In our view, newsprint does not stand on the same footing as steel. It has been said that freedom
of the press indispensable to proper working of popular Government. Patanjali Sastri, J., speaking for this
Court in Romesh Thappar case said that “Thus, every narrow and stringent limits have been set to permissible
legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation
that freedom of speech and of the .press lay at the foundation of all democratic organisations, for without free
political discussion no public education, so essential for the proper functioning of the processes of popular
Government, is possible”. It is appropriate to refer to what William Blackstone said in his commentaries:
“Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid
this is to destroy the freedom of the press; put if he publishes what is improper, mischievous or illegal,
he must take the consequence of his own temerity.”
80. The faith of a citizen is that political wisdom and virtue will sustain themselves in the free market of
ideas so long as the channels of communication are left open. The faith in the popular Government rests on the
old dictum, “let the people have the truth and the freedom to discuss it and all will go well.” The liberty of the
press remains an “Arc of the Covenant” in every democracy. Steel will yield products of steel. Newsprint will
manifest whatever is thought of by man. The newspapers give ideas. The newspapers give the people the
freedom to find out what ideas are correct. Therefore, the freedom of the press is to be enriched by removing
the restrictions on page limit and allowing them to have new editions or new papers. It need not be stressed
that if the quantity of newsprint available does not permit grant of additional quota for new papers that is a
different matter. The restrictions are to be removed. Newspapers have to be left free to determine their pages,
their circulation and their new editions within their quota of that has been fixed fairly.
81. Clauses 3 and 3-A of the 1962 Newsprint Order prevent the petitioners from using white paper and
writing paper. The Additional Solicitor- General at one stage said that it was open to any-newspaper to an
unrestricted use of any form of paper so long as newspapers do not apply for newsprint. This argument
exposes grave errors. In the first place, it shows that there is no shortage of white printing paper. Secondly, it
will show that there is no justification for rationing of newsprint. The cost of indigenous white paper is double
the cost of the imported newsprint. This high price of white printing paper is a deterrent to any newspaper to
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use it. The periodicals are permitted the use of white printing paper. That is because of Public Notice No. 4-
ITC(PN)/63, dated January 11, 1963. That may be one of the reasons why periodicals have not complained of
the policy. The periodicals can supplement their newsprint quota. Further, the clientele of the periodicals is
different. The prices of periodicals are also different. In any event, it cannot be said that the newspapers can
buy white printing paper to meet their requirements. Nor can such plea be an answer to the violation of
fundamental rights in Article 19(1)(a) or infraction of Article 14 by the provisions of the impeached Newsprint
Policy.
82. In the present case, it cannot be said that the newsprint policy is a reasonable restriction within the
ambit of Article 19(2). The newsprint policy abridges the fundamental rights of the petitioners in regard to
freedom of speech and expression. The newspapers are not allowed their right of circulation. The newspapers
are not allowed right of page growth. The common ownership units of newspapers cannot bring out new
papers or new editions. The newspapers operating above 10 page level and newspapers operating below 10
page ^ level have been treated equally for assessing the needs and requirements of newspapers with
newspapers which are not their equal. Once the quota is fixed and direction to use the quota in accordance
with the newsprint policy is made applicable the big newspapers are prevented any increase in page number.
Both page numbers and circulation are relevant for calculating the basic quota and allowance for increases. In
the garb of distribution of newsprint the Government has tended to control the growth and circulation of
newspapers. Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation and in
content. The newsprint policy which permits newspapers to increase circulation by reducing the number of
pages, page area and periodicity, prohibits them to increase the number of pages, page area and periodicity by
reducing circulation. These restrictions constrict the newspapers in adjusting their page number and
circulation.
84. This Court in Sakal Papers case dealt with measures empowering the Government to regulate
allocation of space to be allotted for advertising matter. This Court held that the measure had the direct effect
of curtailing the circulation of the newspaper and thus to be violation of Article 19(1)(a). It was said on behalf
of the Government that regulation of space for advertisement was to prevent unfair competition. This Court
held that the State could help or protect newly started newspapers but there could not be an abridgement of the
right in Article 19(1) (a) on the ground of conferring right on the public in general or upon a section of the
public.
87. Clause 3 of the Newsprint Control Order, 1962, was contended to confer unfettered and unregulated
power on an executive officer. Clause 3 (3-A) of the Order of 1962 was also said to confer naked and arbitrary
power. The disability imposed on newspapers from using printing and writing paper was said to be
discriminatory. The Additional Solicitor-General contended that it is open to an unrestricted use of any form of
paper so long as newspapers do not apply for newsprint. This would establish that there is no shortage of white
printing paper. The error in the Government contention is thereby exposed. The periodicals were permitted in
terms of Public Notice 4-ITC(PN)/63, dated January 11, 1963, unrestricted use of white printing paper to
supplement their quota of newsprint. That again shows that the Government contention is wrong because there
is restriction with regard to use of white printing paper. The cost of white printing paper is high. It is said that
the cost is Rs 2,750 per metric tonne for white printing paper compared to Rs 1,274 of imported newsprint and
Rs 1,362 of Nepal newsprint. Clause 3 (3-A) of the Order provides that no consumer of newsprint other than a
publisher of text books or books of general interest shall use any kind of paper other than newsprint except
with the permission in writing of the Controller. .White printing paper like newsprint can be rationed. The
distribution is to be fair and equitable. It is necessary also to point out-that text books and books of general
interest require facilities for using white printing paper. Such measures with regard to rationing are defensible.
It is true that no guidelines are to be found in Clause 3 (3-A) as to the circumstances under which a particular
consumer of newsprint or class of consumers of newsprint other than a publisher or text books or books of
general interest should or should not be allowed to use white printing paper. The Public Notice allowing’
periodicals permission to use white printing paper is not challenged. Periodicals were not before this Court. It
is therefore not necessary to express any opinion on Clause 3(3) and Clause 3(3-A) of the Control Order.
88. For the foregoing reasons the newsprint policy for 1972-73 violates Articles 19(l)(a) and 14 of the
Constitution. The restrictions by fixing 10 page limit in Remarks V and VIII of the policy infringe Articles
19(1)(a) and 14 of the Constitution and are, therefore, declared unconstitutional and struck-down. The policy
of basic entitlement to quota in Remark V is violative of Articles 19(1) (a) and 14 of the Constitution and is
therefore struck down. The measure in Remark VII(a) is violative of Articles 14 and 19(1)(f) of the
Constitution and is struck-down.

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89. The measures in Remark VII(c) read with Remark VIII are violative of Articles 19(1) (a) and 14 of the
Constitution and are struck-down. The prohibition in Remark X against common ownership unit from starting
a new newspaper/periodical or a new edition is declared unconstitutional and struck-down as violative of
Article 19(1)(a) of the Constitution.
90. For these reasons the petitioners succeed. The import policy for newsprint for the year 1972-73 in regard to
Remarks V, VII(a), VII(c), VIII and X as indicated above is struck down.

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Secy., Ministry of Information & Broadcasting, Govt. of India v. Cricket Association
of Bengal
(1995) 2 SCC 161
P.B. SAWANT, J. - 2. It will be convenient to answer the questions of law that arise in the present case,
before we advert to the factual controversy between the parties. The questions of law are:
(1) Has an organiser or producer of any event a right to get the event telecast through an agency
of his choice whether national or foreign?
(2) Has such organiser a choice of the agency of telecasting, particularly when the exercise of his
right, does not make demand on any of the frequencies owned, commanded or controlled by the
Government or the government agencies like the Videsh Sanchar Nigam Limited (VSNL) or
Doordarshan (DD)?
(3) Can such an organiser be prevented from creating the terrestrial signal and denied the facility
of merely uplinking the terrestrial signal to the satellite owned by another agency whether foreign or
national?
(4) What, if any, are the conditions which can be imposed by the Government Department which
in the present case is the Ministry of Information and Broadcasting (MIB) for (a) creating terrestrial
signal of the event, and (b) granting facilities of uplinking to a satellite not owned or controlled by the
Government or its agencies?
3. On answers to these questions depend the answers to the incidental questions such as (i) whether the
Government or the government agencies like DD in the present case, have a monopoly of creating terrestrial
signals and of telecasting them or refusing to telecast them, (ii) whether the Government or government
agencies like DD can claim to be the host broadcaster for all events whether produced or organised by it or by
anybody else in the country and can insist upon the organiser or the agency for telecasting engaged by him, to
take the signal only from the Government or government agency and telecast it only with its permission or
jointly with it.
4. To appreciate the thrust of the above questions and the answers to them, it is necessary first to have a
proper understanding of what ‘telecasting’ means and what its legal dimensions and consequences are.
Telecasting is a system of communication either audio or visual or both. We are concerned in the present case
with audio-visual telecommunication. The first stage in telecasting is to generate the audio-visual signals of the
events or of the information which is sought to be communicated. When the event to be telecast takes place on
the earth, necessarily the signal is generated on the earth by the requisite electronic mechanism such as the
audio-visual recorder. This stage may be described as the recording stage. The events may be spontaneous,
accidental, natural or organised. The spontaneous, accidental and natural events are by their nature
uncontrollable. But the organised events can be controlled by the law of the land. In our country, since the
organisation of an event is an aspect of the fundamental right to freedom of speech and expression protected
by Article 19(1)(a), the law can be made to control the organisation of such events only for the purposes of
imposing reasonable restrictions in the interest of the sovereignty and integrity of the country, the security of
the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of
court, defamation or incitement to an offence as laid down under Article 19(2) of the Constitution. Although,
therefore, it is not possible to make law for prohibiting the recording of spontaneous, accidental or natural
events, it is possible for the reasons mentioned in Article 19(2), to restrict their telecasting. As regards the
organised events, a law can be made for restricting or prohibiting the organisation of the event itself, and also
for telecasting it, on the same grounds as are mentioned in Article 19(2). There cannot, however, be
restrictions on producing and recording the event on grounds not permitted by Article 19(2). It, therefore,
follows that the organisation or production of an event and its recording cannot be prevented except by law
permitted by Article 19(2). For the same reasons, the publication or communication of the recorded event
through the mode of cassettes cannot be restricted or prevented except under such law. All those who have got
the apparatus of video cassette recorder (VCR) and the television screen can, therefore, view and listen to such
recorded event (hereinafter referred to, for the sake of convenience, as ‘viewers’). In this process, there is no
demand on any frequency or channel since there is no live telecast of the event. The only additional restriction
on telecasting or live telecasting of such event will be the lack of availability of the frequency or channel.
5. Since in the present case, what is involved is the right to live telecast the event, viz., the cricket matches
organised by the Cricket Association of Bengal, it is necessary to understand the various issues involved in
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live telecasting. It may be made clear at the outset, that there may as well be a file telecast (i.e., telecasting of
the events which are already recorded by the cassette). The issues involved in file telecasting will also be more
or less the same and therefore, that subject is not dealt with separately. Telecasting live or file necessarily
involves the use of a frequency or a channel.
6. The telecasting is of three types, - (a) terrestrial, (b) cable and (c) satellite. In the first case, the signal is
generated by the camera stationed at the spot of the event and the signal is then sent to the earthly telecasting
station such as the TV centre which in turn relays it through its own frequencies to all the viewers who have
TV screens/sets. In the second case, viz., cable telecasting, the cable operator receives the signals from the
satellite by means of the parabolic dish antenna and relays them to all those TV screens which are linked to his
cable. He also relays the recorded file programmes or cassettes through the cable to the cable-linked viewers.
In this case, there is no restriction on his receiving the signals from any satellite to which his antenna is
adjusted. There is no demand made by him on any frequency or channel owned or controlled by the national
Government or governmental agencies. The cable operator can show any event occurring in any part of the
country or the world live through the frequencies if his dish antenna can receive the same. The only limitation
from which the cable TV suffers is that the programmes relayed by it can be received only by those viewers
who are linked to the dish antenna concerned. The last type, viz., satellite TV operation involves the use of a
frequency generated, owned or controlled by the national Government or the governmental agencies, or those
generated, owned and controlled by other agencies. It is necessary to bear in mind the distinction between the
frequencies generated, owned and controlled by the Government or governmental agency and those generated
and owned by the other agencies. This is so because generally, as in the present case, one of the contentions
against the right to access to telecasting is that there are a limited number of frequencies and hence there is the
need to utilise the limited resources for the benefit of all sections of the society and to promote all social
interests by giving them priority as determined by some central authority. It follows, therefore, that where the
resources are unlimited or the right to telecast need not suffer for want of a frequency, objection on the said
ground would be misplaced. It may be stated here that in the present case, the contention of the MIB and DD
against the right to telecast claimed by the Cricket Association of Bengal (CAB)/Board of Control for Cricket
in India (BCCI) was raised only on the ground of the limitation of frequencies, ignoring the fact that the
CAB/BCCI had not made demand on any of the frequencies generated or owned by the MIB/DD. It desired to
telecast the cricket matches organised by it through a frequency not owned or controlled by the Government
but owned by some other agency. The only permission that the CAB/BCCI sought was to uplink to the foreign
satellite the signals created by its own cameras and the earth station or the cameras and the earth station of its
agency to a foreign satellite. This permission was sought by the CAB/BCCI from VSNL which is the
government agency controlling the frequencies. The permission again cannot be refused except under law
made in pursuance of the provisions of Article 19(2) of the Constitution. Hence, as stated above, one of the
important questions to be answered in the present case is whether the permission to uplink to the foreign
satellite, the signal created by the CAB/BCCI either by itself or through its agency can be refused except on
the ground stated in the law made under Article 19(2).
43. We may now summarise the law on the freedom of speech and expression under Article 19(1)(a) as
restricted by Article 19(2). The freedom of speech and expression includes right to acquire information and to
disseminate it. Freedom of speech and expression is necessary, for self- expression which is an important
means of free conscience and self-fulfilment. It enables people to contribute to debates on social and moral
issues. It is the best way to find a truest model of anything, since it is only through it that the widest possible
range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy. Equally
important is the role it plays in facilitating artistic and scholarly endeavours of all sorts. The right to
communicate, therefore, includes right to communicate through any media that is available whether print or
electronic or audio-visual such as advertisement, movie, article, speech etc. That is why freedom of speech and
expression includes freedom of the press. The freedom of the press in terms includes right to circulate and also
to determine the volume of such circulation. This freedom includes the freedom to communicate or circulate
one’s opinion without interference to as large a population in the country, as well as abroad, as is possible to
reach.
44. This fundamental right can be limited only by reasonable restrictions under a law made for the
purposes mentioned in Article 19(2) of the Constitution.
45. The burden is on the authority to justify the restrictions. Public order is not the same thing as public
safety and hence no restrictions can be placed on the right to freedom of speech and expression on the ground
that public safety is endangered. Unlike in the American Constitution, limitations on fundamental rights are
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specifically spelt out under Article 19(2) of our Constitution. Hence no restrictions can be placed on the right
to freedom of speech and expression on grounds other than those specified under Article 19(2).
46. What distinguishes the electronic media like the television from the print media or other media is that
it has both audio and visual appeal and has a more pervasive presence. It has a greater impact on the minds of
the viewers and is also more readily accessible to all including children at home. Unlike the print media,
however, there is a built-in limitation on the use of electronic media because the airwaves are a public property
and hence are owned or controlled by the Government or a central national authority or they are not available
on account of the scarcity, costs and competition.
47. The next question to be answered in this connection is whether there can be a monopoly in
broadcasting/telecasting. Broadcasting is a means of communication and, therefore, a medium of speech and
expression. Hence in a democratic polity, neither any private individual, institution or organisation nor any
Government or government organisation can claim exclusive right over it. Our Constitution also forbids
monopoly either in the print or electronic media. The monopoly permitted by our Constitution is only in
respect of carrying on a trade, business, industry or service under Article 19(6) to subserve the interests of the
general public. However, the monopoly in broadcasting and telecasting is often claimed by the Government to
utilise the public resources in the form of the limited frequencies available for the benefit of the society at
large. It is justified by the Government to prevent the concentration of the frequencies in the hands of the rich
few who can monopolise the dissemination of views and information to suit their interests and thus in fact to
control and manipulate public opinion in effect smothering the right to freedom of speech and expression and
freedom of information of others. The claim to monopoly made on this ground may, however, lose all its
raison d’être if either any section of the society is unreasonably denied an access to broadcasting or the
governmental agency claims exclusive right to prepare and relay programmes. The ground is further not
available when those claiming an access either do not make a demand on the limited frequencies controlled by
the Government or claim the frequency which is not utilised and is available for transmission. The
Government sometimes claims monopoly also on the ground that having regard to all pervasive presence and
impact of the electronic media, it may be utilised for purposes not permitted by law and the damage done by
private broadcasters may be irreparable. There is much to be said in favour of this view and it is for this reason
that the regulatory provisions including those for granting licences to private broadcasting where it is
permitted, are enacted. On the other hand, if the Government is vested with an unbridled discretion to grant or
refuse to grant the licence or access to the media, the reason for creating monopoly will lose its validity. For
then it is the Government which will be enabled to effectively suppress the freedom of speech and expression
instead of protecting it and utilising the licensing power strictly for the purposes for which it is conferred. It is
for this reason that in most of the democratic countries an independent autonomous broadcasting authority is
created to control all aspects of the operation of the electronic media. Such authority is representative of all
sections of the society and is free from control of the political and administrative executive of the State.
48. In this country, unlike in the United States and some European countries, there has been a monopoly of
broadcasting/telecasting in the Government. The Indian Telegraph Act, 1885 (“Telegraph Act”) creates this
monopoly and vests the power of regulating and licensing broadcasting in the Government. Further, the
Cinematograph Act, 1952 and the Rules made thereunder empower the Government to pre-censor films.
However, the power given to the Government to licence and to pre-censor under the respective legislations has
to be read in the context of Article 19(2) of the Constitution which sets the parameters of reasonable
restrictions which can be placed on the right to freedom of speech and expression. Needless to emphasise that
the power to pre-censor films and to grant licences for access to telecasting, has to be exercised in conformity
with the provisions of Article 19(2). It is in this context that we have to examine the provisions of Section 4(1)
of the Telegraph Act and the action of the MIB/DD in refusing access to telecast the cricket matches in the
present case.
49. The relevant Section 4 of the Telegraph Act reads as follows:
“4. (1) Within India the Central Government shall have the exclusive privilege of establishing,
maintaining and working telegraphs:
Provided that the Central Government may grant a licence, on such conditions and in
consideration of such payments as it thinks fit, to any person to establish, maintain or work a telegraph
within any part of India:
Provided further that the Central Government may, by rules made under this Act and published in
the Official Gazette, permit, subject to such restrictions and conditions as it thinks fit, the
establishment, maintenance and working–
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(a) of wireless telegraphs on ships within Indian territorial waters and on aircraft within or
above India, or Indian territorial waters, and
(b) of telegraphs other than wireless telegraph within any part of India.
(2) The Central Government may, by notification in the Official Gazette, delegate to the telegraph
authority all or any of its powers under the first proviso to sub-section (1).
The exercise by the telegraph authority of any power so delegated shall be subject to such
restrictions and conditions as the Central Government may, by the notification, think fit to impose.”
Section 3(1) of the Act defines ‘telegraph’ as under:
“3. (1) ‘telegraph’ means any appliance, instrument, material or apparatus used or capable of use
for transmission or reception of signs, signals, writing, images, and sounds or intelligence of any
nature by wire, visual or other electromagnetic emissions, radio waves or Hertzian waves, galvanic,
electric or magnetic means;
Explanation. - ‘Radio waves’ or ‘Hertzian waves’ means electromagnetic waves of frequencies
lower than 3000 giga-cycles per second propagated in space without artificial guide.”
It is clear from a reading of the provisions of Sections 4(1) and 3(1) together that the Central Government has
the exclusive privilege of establishing, maintaining and working appliances, instruments, material or apparatus
used or capable of use for transmission or reception of signs, signals, images and sounds or intelligence of any
nature by wire, visual or other electromagnetic emissions, radio waves or Hertzian waves, galvanic, electric or
magnetic means. Since in the present case the controversy centres round the use of airwaves or Hertzian waves
(hereinafter will be called as “electromagnetic waves”), as is made clear by Explanation to Section 3(1), the
Central Government can have monopoly over the use of the electromagnetic waves only of frequencies lower
than 3000 giga-cycles per second which are propagated in space with or without artificial guide. In other
words, if the electromagnetic waves of frequencies of 3000 or more giga-cycles per second are propagated in
space with or without artificial guide, or if the electromagnetic waves of frequencies of less than 3000 giga-
cycles per second are propagated with an artificial guide, the Central Government cannot claim an exclusive
right to use them or deny its user by others. Since no arguments were advanced on this subject after the closure
of the arguments and pending the decision, we had directed the parties to give their written submissions on the
point. The submissions sent by them disclosed a wide conflict which would have necessitated further oral
arguments. Since we are of the view that the present matter can be decided without going into the controversy
on the subject, we keep the point open for decision in an appropriate case. We will presume that in the present
case the dispute is with regard to the use of electromagnetic waves of frequencies lower than 3000 giga-cycles
per second which are propagated in space without artificial guide.
50. The first proviso to Section 4(1) states that the Central Government may grant licence on such
conditions and in consideration of such payment as it thinks fit, to any person, to establish, maintain or work a
telegraph within any part of India. We are not concerned here with the permission to establish or maintain a
telegraph because in the present case the permission is sought only for operating a telegraph and that too for a
limited time and for a limited and specified purpose. The purpose again is non-commercial. It is to relay the
specific number of cricket matches. It is only incidentally that the CAB will earn some revenue by selling its
right to relay the matches organised by it. The CAB is obviously not a business or a commercial organisation
nor can it be said that it is organising matches for earning profits as a business proposition. As will be pointed
out later, it is a sporting organisation devoted to the cause of cricket and has been organising cricket matches
both of internal and international cricket teams for the benefit of the sport, the cricketers, the sportsmen present
and prospective and of the viewers of the matches. The restrictions and conditions that the Central Government
is authorised to place under Section 4(1) while permitting non-wireless telegraphing can, as stated earlier, only
be those which are warranted by the purposes mentioned in Article 19(2) and none else. It is not and cannot be
the case of the Government that by granting the permission in question, the sovereignty and integrity of India,
the security of the State, friendly relations with foreign States, public order, decency or morality or either of
them will be in jeopardy or that the permission will lead to the contempt of court, defamation or incitement to
an offence. On the other hand, the arguments advanced are specious and with them we will deal a little later.
51. It is then necessary to understand the nature of the respondent organisation, namely, CAB. It cannot be
disputed that the BCCI is a non-profit-making organisation which controls officially organised game of cricket
in India. Similarly, Cricket Association of Bengal (CAB) is also non-profit-making organisation which
controls officially organised game of cricket in the State of West Bengal. The CAB is one of the Founder
Members of BCCI. Office-bearers and Members of the Working Committees of both BCCI and CAB are all
citizens of India. The primary object of both the organisations, amongst others, is to promote the game of
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cricket, to foster the spirit of sportsmanship and the ideals of cricket, and to impart education through the
media of cricket, and for achieving the said objects, to organise and stage tournaments and matches either with
the members of International Cricket Council (ICC) or other organisations. According to CAB, BCCI is
perhaps the only sports organisation in India which earns foreign exchange and is neither controlled by any
governmental agency nor receives any financial assistance or grants, of whatsoever nature.
52. It cannot be disputed further that to arrange any international cricket tournament or series, it is
necessary and a condition-precedent, to pay to the participating member-countries or teams, a minimum
guaranteed amount in foreign exchange and to bear the expenses incurred for travelling, boarding, lodging and
other daily expenses of the participating cricketers and the accompanying visiting officials concerned. A huge
amount of expenses has also to be incurred for organising the matches. In addition, both BCCI and CAB
annually incur large amount of expenses for giving subsidies and grants to its members to maintain, develop
and upgrade the infrastructure, to coach and train players and umpires and to pay to them when the series and
matches are played.
53. Against this background, we may now examine the questions of law raised by the parties. The
contention of the Ministry of Information and Broadcasting (MIB) is that there is a difference between the
implications of the right conferred under Article 19(1)(a) upon (i) the broadcaster i.e., the person operating the
media, (ii) the person desiring access to the media to project his views including the organiser of an event, (iii)
the viewer, and (iv) a person seeking uplinking of frequencies so as to telecast signals generated in India to
other countries. The contention of CAB that denial of a licence to telecast through a media of its choice, based
(according to MIB) upon the commercial interests, infringes viewers’ right under Article 19(1)(a) is untenable.
It is further contended that the commercial interests of the organiser are not protected by Article 19(1)(a).
However, the contention of the CAB results indirectly in such protection being sought by resort to the
following steps of reasoning : (a) the Board has a right to commercially exploit the event to the maximum, (b)
the viewer has a right to access to the event through the television. Hence the Board has the right to telecast
through an appropriate channel and also the right to insist that a private agency, including a foreign agency,
should be allowed all the sanctions and permissions as may be necessary therefor.
54. According to MIB the aforesaid contention is untenable because even if it is assumed that
entertainment is a part of free speech, the analogy of the right of the press under Article 19(1)(a) vis-à-vis the
right under Article 19(1)(g), cannot be extended to the right of sports associations. The basic premise
underlying the recognition of the rights of the press under Article 19(1)(a) is that the economic strength is
vitally necessary to ensure independence of the press, and thus even the ‘business’ elements of a newspaper
have to some extent a “free speech” protection. In other words the commercial element of the press exists to
subserve the basic object of the press, namely, free dissemination of news and views which enjoys the
protection of free speech. However, free speech element in telecast of sports is incidental. According to the
MIB, the primary object of the telecast by the CAB is to raise funds and hence the activities are essentially of
trade. The fact that the profits are deployed for promotion of sports is immaterial for the purpose.
55. It is further urged that a broadcaster does not have a right as such to access to the airwaves without a
licence either for the purposes of telecast or for the purposes of uplinking. Secondly, there is no general right
to a licence to use airwaves which being a scarce resource, have to be used in a manner that the interests of the
largest number are best served. The paramount interest is that of the viewers. The grant of a licence does not
confer any special right inasmuch as the refusal of a licence does not result in the denial of a right to free
speech. Lastly, the nature of the electronic media is such that it necessarily involves the marshalling of the
resources for the largest public good. State monopoly created as a device to use the resource is not per se
violative of the right of free speech as long as the paramount interests of the viewers are subserved and access
to the media is governed by the fairness doctrine. According to the MIB, the width of the rights under Article
19(1)(a) has never been considered to be wider than that conferred by the First Amendment to the US
Constitution. It is also urged that the licensing of frequencies and consequent regulation of telecast/broadcast
would not be a matter covered by Article 19(2). The right to telecast/broadcast has certain inherent limitations
imposed by nature, whereas Article 19(2) applies to restrictions imposed by the State. The object of licensing
is not to cast restrictions on the expression of ideas, but to regulate and marshal scarce resources to ensure their
optimum enjoyment by all including those who are not affluent enough to dominate the media.
56. It is next urged that the rights of an organiser to use airwaves as a medium to telecast and thereby
propagate his views, are distinct from his right to commercially exploit the event. Although it is conceded that
an organiser cannot be denied access on impermissible grounds, it is urged that he cannot further claim a right
to use an agency of his choice as a part of his right of free speech. In any event no person can claim to exercise
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his right under Article 19(1)(a) in a manner which makes it a device for a non-citizen to assert rights which are
denied by the Constitution. According to MIB, it is the case of the BCCI that to promote its commercial
interest, it is entitled to demand that the Government grants all the necessary licences and permissions to any
foreign agency of its choice and a refusal to do so would violate Article 19(1)(a). According to MIB, this is an
indirect method to seek protection of Article 19(1)(a) to the non-citizens.
57. It is then contended that a free-speech right of a viewer has been recognised as that having paramount
importance by the US Supreme Court and this view is all the more significant in a country like ours. While
accepting that the electronic media is undoubtedly the most powerful media of communication both from the
perspective of its reach as well as its impact, transcending all barriers including that of illiteracy, it is
contended that it is very cost-intensive. Unless, therefore, the rights of the viewers are given primacy, it will in
practice result in the affluent having the sole right to air their views completely eroding the right of the
viewers. The right of viewer can only be safeguarded by the regulatory agency by controlling the frequencies
of broadcast as it is otherwise impossible for viewers to exercise their right to free speech qua the electronic
media in any meaningful way.
58. Lastly, dealing with the contention raised on behalf of the CAB and BCCI that the monopoly conferred
upon DD is violative of Article 19(1)(a), while objecting to the contention on the ground that the issue does
not arise in the present proceedings and is not raised in the pleadings, it is submitted on behalf of MIB that the
principal contentions of the CAB/BCCI are that they are entitled to market their right to telecast an event at the
highest possible value it may command and if Doordarshan is unwilling to pay as much as the highest bidder,
the CAB/BCCI has the right not only to market the event but to demand as of right, all the necessary licences
and permissions for the agency including foreign agency which has purchased its rights. According to MIB
these contentions do not raise any free-speech issues, but impinge purely on the right to trade. As far as Article
19(1)(g) is concerned, the validity of the monopoly in favour of the Government is beyond question. Secondly,
in the present case, Doordarshan did not refuse to telecast the event per se. It is then submitted that the
CAB/BCCI are not telecasters. They are only organisers of the events sought to be telecast and when the
agency like DD which has access to the largest number of viewers agrees to telecast the events, their right as
well as the viewers’ right under Article 19(1)(a) is satisfied. No organiser, it is contended, can insist that his
event be telecast on terms dictated by him and refusal to agree to his term constitutes breach of his right under
Article 19(1)(a). If it is accepted that the Government has not only the right but the duty to regulate the
distribution of frequencies, then the only way it can be done is by creating a monopoly. A mere creation of the
monopoly agency to telecast does not per se violate Article 19(1)(a) as long as the access is not denied to the
media either absolutely or by imposition of terms which are unreasonable. Article 19(1)(a) proscribes
monopoly in ideas and as long as this is not done, the mere fact that the access to the media is through the
Government-controlled agency, is not per se violative of Article 19(1)(a). It is further urged that no material
has been placed before the Court to show that the functioning of Doordarshan is such as to deny generally an
access to the media and the control exercised by the Government is in substance over the content on the
grounds other than those specified in Article 19(2) or a general permission to all those who seek frequencies to
telecast would better subserve the principle underlying Article 19(1)(a) in the socio-economic scenario of this
country and will not result in passing the control of the media from the Government to private agencies
affluent enough to buy access.
59. As against these contentions of the MIB, it is urged on behalf of CAB and BCCI as follows: The right
to organise a sports event inheres in the entity to which the right belongs and that entity in this case is the
BCCI and its members which include the CAB. The right to produce an event includes the right to deal with
such event in all manner and mode which the entity chooses. This includes the right to telecast or not to
telecast the event, and by or through whom, and on what terms and conditions. No other entity, not even a
department of the Government can coerce or influence this decision or obstruct the same except on reasonable
grounds mentioned under Article 19(2) of the Constitution. In the event the entity chooses to televise its own
events, the terms and conditions for televising such events are to be negotiated by it with any party with whom
it wishes to negotiate. There is no law, bye-law, rule or regulation to regulate the conduct of the BCCI or CAB
in this behalf. In the event, BCCI chooses to enter into an agreement with an agency having necessary
expertise and infrastructure to produce signals, and transmit and televise the event of the quality that
BCCI/CAB desires, the terms and conditions to be negotiated with such an entity, are the exclusive privilege
of BCCI/CAB. No department of the Government and least of all, the MIB or DD is concerned with the same
and can deny the BCCI or CAB the benefit of such right or claim, much less can the MIB or DD insist that
such negotiation and finalisation only be done with it or not otherwise.

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60. In the event the BCCI or CAB wishes to have the event televised outside India, what is required is that
the required cameras and equipments in the field send signals to the earth station which in turn transmits the
same to the appointed satellite. From the satellite, the picture is beamed back which can be viewed live by any
person who has a TV set and has appropriate access to receive footprints within the beaming zone. In such
case Doordarshan or the Ministry of Communications is not to provide any assistance either in the form of
equipments or personnel or for that matter, in granting uplinking facility for televising the event.
61. It is further contended that the right to disseminate information is a part of the fundamental right to
freedom of expression. BCCI/CAB have the fundamental right to televise the game of cricket organised and
conducted by them for the benefit of public at large and in particular citizens of India who are either interested
in cricket or desire to be educated and/or entertained. The said right is subject only to the regulations and
restrictions as provided by Article 19(2) of the Constitution.
62. At no other stage either DD or MIB stated that reasonable restrictions as enumerated in Article 19(2)
are being sought to be imposed apart from the fact that such plea could not have been taken by them in the
case of telecasting sports events like cricket matches. It is urged that the sole ground on which DD/MIB is
seeking to obstruct and/or refuse the said fundamental right is that DD has the exclusive privilege and
monopoly to broadcast such an event and that unless the event is produced, transmitted and telecast either by
DD itself or in collaboration with it on its own terms and conditions and after taking signals from it on the
terms and conditions it may impose, the event cannot be permitted to be produced, transmitted and telecast at
all by anybody else.
63. It is also urged that there is no exclusive privilege or monopoly in relation to production, transmission
or telecasting and such an exclusivity or monopoly, if claimed, is violative of Article 19(1)(a).
64. The BCCI and CAB have a right under Article 19(1)(a) to produce, transmit, telecast and broadcast
their event directly or through its agent. The right to circulate information is a part of the right guaranteed
under Article 19(1)(a). Even otherwise, the viewers and persons interested in sports by way of education,
information, record and entertainment have a right to such information, knowledge and entertainment. The
content of the right under Article 19(1)(a) reaches out to protect the information of the viewers also. In the
present case, there is a right of the viewers and also the right of the producer to telecast the event and in view
of these two rights, there is an obligation on the part of the Department of Telecommunication to allow the
telecasting of the event.
65. It is then contended that the grant of a licence under Section 4 of the Act is a regulatory measure and
does not entitle MIB either to deny a licence to BCCI/CAB for the purposes of production, transmission and
telecasting sports events or to impose any condition unrelated to Article 19(2). If such denial or imposition is
made, it would amount to a prohibition. Hence the MIB is obliged and duty-bound in law to grant licence
against payment of fees related to and calculated on the basis of user of time only, as has been standardized
and not otherwise. Any other method applied by MIB/DD would be violative of Article 19(1)(a). The grant of
licence under Section 4 of the Act has thus to be harmoniously read with the right of the citizen under Article
19(1)(a). The Constitution does not visualize any monopoly in Article 19(1)(a). Hence DD cannot claim the
same nor can the commercial interest of DD or claim of exclusivity by it of generation of signals be a ground
for declining permission under Section 4 of the Act. Hence the following restrictions sought to be imposed fall
outside the ambit of Article 19(2) and are unconstitutional. The restrictions are:
(a) That unless BCCI or CAB televises the matches in collaboration with DD, a licence shall not
be granted.
(b) DD alone will be the host broadcaster of the signals and BCCI/CAB or its agency must take
the signal from DD alone; and
(c) Unless the BCCI or CAB accepts the terms and conditions imposed by DD, the production of
signal and transmission and telecast thereof shall not be permitted.
66. It is further contended that there is no monopoly in relation to what viewer must today view and the
American decisions relied upon on behalf of MIB have no bearing on the present state of affairs. Satellite can
beam directly on to television sets through dish antenna all programmes whose footprints are receivable in the
country. Further, anyone can record a programme in India and then telecast it by sending the cassette out as is
being done in the case of several private TV channels. Various foreign news organisations such as the BBC
and the CNN record directly Indian events and then transmit their own signals after a while to be telecast by
their organisations.

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67. Further, the non-availability of channel is of no consequence in the present days of technological
development. Any person intending to telecast/broadcast an event can do so directly even without routing the
signals through the channels of DD or MIB. What is required to ensure is that the secured channels are not
interfered with or overlapped. On account of the availability of innumerable satellites in the geo-stationary
orbit of the Hemisphere, the signals can directly be uplinked through any of the available transponders of
satellite whose footprints can be received back through appropriate electronic device. As a matter of fact,
beaming zone of only 3 satellites parked 3000 kms above the surface of the earth can cover the entire
Hemisphere. Moreover, due to technological developments, frequency is becoming thinner and thinner and as
a result, availability of frequencies has increased enormously and at present there are millions of frequencies
available. In order to ensure that none of the footprints of any satellite overlaps the footprint of other satellite,
each and every satellite is parked at a different degree and angle. Hence, there is no resource crunch or inbuilt
restriction on the availability of electronic media, as contended by MIB. In this connection it is also pointed
out that there is a difference in the right spelt out by Article 19(1)(a) of our Constitution and that spelt out by
the First Amendment of the American Constitution.
68. It is also contended that in no other country the right to televise or broadcast is in the exclusive domain
of any particular body. In this connection, a reference is made to various instances in other countries where the
host broadcaster has been other than the domestic network, which instances are not controverted. It is also
urged that there is no policy of the Government of India as urged on behalf of the MIB that telecasting of
sporting events would be within the exclusive domain and purview of DD/MIB who alone would market their
rights to other authorities in whole or in part. It is pointed out that the extract from the minutes of the meeting
of the Committee of Secretaries held on 12-11-1993 relied upon by the MIB for the purpose is not a proof of
such policy. The said minutes are “executive decision” of a few Secretaries of the various departments of the
Government.
69. It is also urged that even public interest or interest of general public cannot be a ground for refusal or
for the imposition of restrictions or for claiming exclusivity in any manner whatsoever. Such restriction, if
imposed will be violative of Article 19(1)(a). To suggest that power to grant a licence shall not be exercised
under any circumstances because of the policy of the Government, is arbitrary inasmuch as the power
conferred is not being used for the purpose for which it has been conferred.
70. It is then contended that both BCCI and CAB are non-profit-making organisations and their sole object
is to promote the game of cricket in this country and for that purpose not only proper and adequate
infrastructures are required to be erected, built and maintained, but also huge expenses have to be incurred to
improve the game which includes, amongst others, grant of subsidies and grants to the Member Associations,
upgradation of infrastructure, training of cricketers from school level, payments to the cricketers, insurance
and benevolent funds for the cricketers, training of umpires, payments to foreign participants, including
guarantee money etc. The quantum of amount to be spent for all these purposes has increased during the
course of time. These expenses are met from the amounts earned by the BCCI and CAB since they have no
other continuous source of income. The earnings of BCCI and CAB are basically from arranging various
tournaments, in-stadia advertisements and licence fee for permitting telecast and censorship. At least 70 per
cent of the income earned through the advertisements and generated by the TV network while telecasting of
the matches, is paid to the organiser apart from the minimum guaranteed money as is apparent from the
various agreements entered by and between BCCI/CAB as well as by DD with other networks. DD in effect
desires to snatch away the right of telecast for its own commercial interest through advertisement, and at the
same time also demand money from the organisers as and by way of production fee.
71. Merely because an organisation may earn profit from an activity whose character is predominantly
covered under Article 19(1)(a), it would not convert the activity into one involving Article 19(1)(g). The test
of predominant character of the activity has to be applied. It has also to be ascertained as to who is the person
who is utilising the activity. If a businessman were to put in an advertisement for simpliciter commercial
activity, it may render the activity, the one covered by Article 19(1)(g). But even newspapers or a film telecast
or sports event telecast will be protected by Article 19(1)(a) and will not become an activity under Article
19(1)(g) merely because it earns money from advertisements in the process. Similarly, if the cricket match is
telecast and profit is earned by the licensing of telecasting right and receipts from advertisements, it will be an
essential element for utilisation and fulfilment of its object. The said object cannot be achieved without such
revenue.
74. It will be apparent from the contentions advanced on behalf of MIB that their main thrust is that the
right claimed by the BCCI/CAB is not the right of freedom of speech under Article 19(1)(a), but a commercial
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right or the right to trade under Article 19(1)(g). The contention is based mainly on two grounds, viz., there is
no free-speech element in the telecast of sports and secondly, the primary object of the BCCI/CAB in seeking
to telecast the cricket matches is not to educate and entertain the viewer but to make money.
75. It can hardly be denied that sport is an expression of self. In an athletic or individual event, the
individual expresses himself through his individual feat. In a team event such as cricket, football, hockey etc.,
there is both individual and collective expression. It may be true that what is protected by Article 19(1)(a) is an
expression of thought and feeling and not of the physical or intellectual prowess or skill. It is also true that a
person desiring to telecast sports events when he is not himself a participant in the game, does not seek to
exercise his right of self-expression. However, the right to freedom of speech and expression also includes the
right to educate, to inform and to entertain and also the right to be educated, informed and entertained. The
former is the right of the telecaster and the latter that of the viewers. The right to telecast sporting event will
therefore also include the right to educate and inform the present and the prospective sportsmen interested in
the particular game and also to inform and entertain the lovers of the game. Hence, when a telecaster desires to
telecast a sporting event, it is incorrect to say that the free-speech element is absent from his right. The degree
of the element will depend upon the character of the telecaster who claims the right. An organiser such as the
BCCI or CAB in the present case which are indisputably devoted to the promotion of the game of cricket,
cannot be placed in the same scale as the business organisations whose only intention is to make as large a
profit as can be made by telecasting the game. Whereas it can be said that there is hardly any free-speech
element in the right to telecast when it is asserted by the latter, it will be a warped and cussed view to take
when the former claim the same right and contend that in claiming the right to telecast the cricket matches
organised by them, they are asserting the right to make business out of it. The sporting organisations such as
BCCI/CAB which are interested in promoting the sport or sports are under an obligation to organise the sports
events and can legitimately be accused of failing in their duty to do so. The promotion of sports also includes
its popularization through all legitimate means. For this purpose, they are duty-bound to select the best means
and methods to reach the maximum number of listeners and viewers. Since at present, radio and TV are the
most efficacious methods, thanks to the technological development, the sports organisations like BCCI/CAB
will be neglecting their duty in not exploring the said media and in not employing the best means available to
them to popularize the game. That while pursuing their objective of popularizing the sports by selecting the
best available means of doing so, they incidentally earn some revenue, will not convert either them into
commercial organisations or the right claimed by them to explore the said means, into a commercial right or
interest. It must further be remembered that sporting organisations such as BCCI/CAB in the present case,
have not been established only to organise the sports events or to broadcast or telecast them.
The organisation of sporting events is only a part of their various objects, as pointed out earlier and even
when they organise the events, they are primarily to educate the sportsmen, to promote and popularize the
sports and also to inform and entertain the viewers. The organisation of such events involves huge costs.
Whatever surplus is left after defraying all the expenses is ploughed back by them in the organisation itself. It
will be taking a deliberately distorted view of the right claimed by such organisations to telecast the sporting
event to call it an assertion of a commercial right. Yet the MIB has chosen to advance such contention which
can only be described as most unfortunate. It is needless to state that we are, in the circumstances, unable to
accept the ill-advised argument. It does no credit to the Ministry or to the Government as a whole to denigrate
the sporting organisations such as BCCI/CAB by placing them on a par with business organisations sponsoring
sporting events for profit and the access claimed by them to telecasting as assertion of commercial interest.
76. The second contention of MIB is based upon the propositions laid down by the US Supreme Court,
viz., there are inherent limitations imposed on the right to telecast/broadcast as there is scarcity of resources,
i.e., of frequencies and therefore the need to use them in the interest of the largest number. There is also a
pervasive presence of electronic media such as TV. It has a greater impact on the minds of the people of all
ages and strata of the society necessitating the prerequisite of licensing of the programmes. It is also contended
on that account that the licensing of frequencies and consequent regulation of telecasting/ broadcasting would
not be a matter governed by Article 19(2). Whereas Article 19(2) applies to restrictions imposed by the State,
the inherent limitations on the right to telecast/broadcast are imposed by nature.
77. In the first instance, it must be remembered that all the decisions of the US Supreme Court relied upon
in support of this contention, are on the right of the private broadcasters to establish their own broadcasting
stations by claiming a share in or access to the airwaves or frequencies. In the United States, there is no
Central Government-owned or controlled broadcasting centre. There is only a Federal Commission to regulate
broadcasting stations which are all owned by private broadcasters. Secondly, the American Constitution does
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not explicitly state the restrictions on the right of freedom of speech and expression as our Constitution does.
Hence, the decisions in question have done no more than impliedly reading such restrictions. The decisions of
the US Supreme Court, therefore, in the context of the right claimed by the private broadcasters are irrelevant
for our present purpose. In the present case what is claimed is a right to an access to telecasting specific events
for a limited duration and during limited hours of the day. There is no demand for owning or controlling a
frequency. Secondly, unlike in the cases in the US which came for consideration before the US Supreme
Court, the right to share in the frequency is not claimed without a licence. Thirdly, the right to use a frequency
for a limited duration is not claimed by a business organisation to make profit, and lastly – and this is an
important aspect of the present case, to which no reply has been given by the MIB - there is no claim to any
frequency owned and controlled by the Government. What is claimed is a permission to uplink the signal
created by the organiser of the events to a foreign satellite.
78. There is no doubt that since the airwaves/frequencies are a public property and are also limited, they
have to be used in the best interest of the society and this can be done either by a central authority by
establishing its own broadcasting network or regulating the grant of licences to other agencies, including the
private agencies. What is further, the electronic media is the most powerful media both because of its audio-
visual impact and its widest reach covering the section of the society where the print media does not reach.
The right to use the airwaves and the content of the programmes, therefore, needs regulation for balancing it
and as well as to prevent monopoly of information and views relayed, which is a potential danger flowing from
the concentration of the right to broadcast/telecast in the hands either of a central agency or of few private
affluent broadcasters. That is why the need to have a central agency representative of all sections of the society
free from controls both of the Government and the dominant influential sections of the society. This is not
disputed. But to contend that on that account the restrictions to be imposed on the right under Article 19(1)(a)
should be in addition to those permissible under Article 19(2) and dictated by the use of public resources in the
best interests of the society at large, is to misconceive both the content of the freedom of speech and
expression and the problems posed by the element of public property in, and the alleged scarcity of, the
frequencies as well as by the wider reach of the media.
If the right to freedom of speech and expression includes the right to disseminate information to as wide a
section of the population as is possible, the access which enables the right to be so exercised is also an integral
part of the said right. The wider range of circulation of information or its greater impact cannot restrict the
content of the right nor can it justify its denial. The virtues of the electronic media cannot become its enemies.
It may warrant a greater regulation over licensing and control and vigilance on the content of the programme
telecast. However, this control can only be exercised within the framework of Article 19(2) and the dictates of
public interests. To plead for other grounds is to plead for unconstitutional measures. It is further difficult to
appreciate such contention on the part of the Government in this country when they have a complete control
over the frequencies and the content of the programme to be telecast. They control the sole agency of
telecasting. They are also armed with the provisions of Article 19(2) and the powers of pre-censorship under
the Cinematograph Act and Rules. The only limitation on the said right is, therefore, the limitation of resources
and the need to use them for the benefit of all. When, however, there are surplus or unlimited resources and the
public interests so demand or in any case do not prevent telecasting, the validity of the argument based on
limitation of resources disappears. It is true that to own a frequency for the purposes of broadcasting is a costly
affair and even when there are surplus or unlimited frequencies, only the affluent few will own them and will
be in a position to use it to subserve their own interest by manipulating news and views. That also poses a
danger to the freedom of speech and expression of the have-nots by denying them the truthful information on
all sides of an issue which is so necessary to form a sound view on any subject. That is why the doctrine of
fairness has been evolved in the US in the context of the private broadcasters licensed to share the limited
frequencies with the central agency like the FCC to regulate the programming. But this phenomenon occurs
even in the case of the print media of all the countries. Hence the body like the Press Council of India which is
empowered to enforce, however imperfectly, the right to reply. The print media further enjoys as in our
country, freedom from pre-censorship unlike the electronic media.
80. The third contention advanced on behalf of the MIB is only an extended aspect of the first contention.
It is based on the same distorted interpretation of the right claimed. It proceeds on the footing that the
BCCI/CAB is claiming a commercial right to exploit the sporting event when they assert that they have a right
to telecast the event through an agency of their choice. It is even contended on behalf of the MIB that this
amounts to a device for a non-citizen to assert rights under Article 19(1)(a) which are not available to him.
82. The fourth contention is that, as held by the US Supreme Court, the freedom of speech has to be
viewed also as a right of the viewers which has paramount importance, and the said view has significance in a
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country like ours. To safeguard the rights of the viewers in this country, it is necessary to regulate and restrict
the right to access to telecasting. There cannot be any dispute with this proposition. We have in fact referred to
this right of the viewers in another context earlier. True democracy cannot exist unless all citizens have a right
to participate in the affairs of the polity of the country. The right to participate in the affairs of the country is
meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called
upon to express their views. One-sided information, disinformation, misinformation and non-information all
equally create an uninformed citizenry which makes democracy a farce when medium of information is
monopolised either by a partisan central authority or by private individuals or oligarchic organisations. This is
particularly so in a country like ours where about 65 per cent of the population is illiterate and hardly 1 ½ per
cent of the population has an access to the print media which is not subject to pre-censorship. When,
therefore, the electronic media is controlled by one central agency or few private agencies of the rich, there is a
need to have a central agency, as stated earlier, representing all sections of the society. Hence to have a
representative central agency to ensure the viewers’ right to be informed adequately and truthfully is a part of
the right of the viewers under Article 19(1)(a). We are, however, unable to appreciate this contention in the
present context since the viewers’ rights are not at all affected by the BCCI/CAB, by claiming a right to
telecast the cricket matches. On the other hand, the facts on record show that their rights would very much be
trampled if the cricket matches are not telecast through Doordarshan, which has the monopoly of the national
telecasting network. Although, there is no statistical data available (and this is not a deficiency felt only in this
arena), it cannot be denied that a vast section of the people in this country is interested in viewing the cricket
matches. The game of cricket is by far the most popular in all parts of the country. This is evident from the
overflowing stadia at the venues wherever the matches are played and they are played all over the country. It
will not be an exaggeration to say that at least one in three persons, if not more, is interested in viewing the
cricket matches. Almost all television sets are switched on to view the matches. Those who do not have a TV
set of their own crowd around TV sets of others when the matches are on. This is not to mention the number of
transistors and radios which are on during the match-hours. In the face of these revealing facts, it is difficult to
understand why the present contention with regard to the viewers’ right is raised in this case when the grant of
access to BCCI/CAB to telecast cricket matches was in the interest of the viewers and would have also
contributed to promote their rights as well.
83. The last argument on behalf of the MIB is that since in the present case, DD has not refused to telecast
the event, its monopoly to telecast cannot be challenged and in fact no such contention was raised by the
BCCI/CAB. We are afraid that this will not be a proper reading of the contentions raised by BCCI/CAB in
their pleadings both before the High Court and this Court. Undisputed facts on record show that Doordarshan
claimed exclusive right to create host broadcasting signal and to telecast it on the terms and conditions
stipulated by it or not at all. MIB even refused to grant uplinking facilities when the terrestrial signal was being
created by the CAB with their own apparatus, i.e., the apparatus of the agency which they had engaged and
when the use of any of the frequencies owned, controlled or commanded by DD or the Government, was not
involved. Since BCCI/CAB were the organisers of the events, they had every right to create terrestrial signals
of their event and to sell it to whomsoever they thought best so long as such creation of the signals and the sale
thereof was not violative of any law made under Article 19(2) and was not an abuse of the frequencies which
are a public property. Neither DD nor any other agency could impose their terms for creating signals or for
telecasting them unless it was sought through their frequencies. When Doordarshan refused to telecast cricket
matches except on their terms, the BCCI/CAB turned to another agency, in the present case a foreign agency,
for creating the terrestrial signal and telecasting it through the frequencies belonging to that agency. When
Doordarshan refused to telecast the matches, the rights of the viewers to view the matches were in jeopardy.
Only the viewers in this country who could receive foreign frequencies on their TV sets, could have viewed
the said matches. Hence it is not correct to say that Doordarshan had not refused to telecast the events. To
insist on telecasting events only on one’s unreasonable terms and conditions and not otherwise when one has
the monopoly of telecasting, is nothing but refusal to telecast the same. DD could not do it except for reasons
of non-availability of frequencies or for grounds available under Article 19(2) of the Constitution or for
considerations of public interest involved in the use of the frequencies as public property. The fact that
Doordarshan was prepared to telecast the events only on its terms shows that the frequency was available.
Hence, scarcity of frequencies or public interests cannot be pressed as grounds for refusing to telecast or
denying access to BCCI/CAB to telecasting. Nor can Doordarshan plead encroachment on the right of viewers
as a ground since the telecasting of events on the terms of Doordarshan cannot alone be said to safeguard the
right of viewers in such a case and in fact it was not so.
122. We, therefore, hold as follows:
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(i) The airwaves or frequencies are a public property. Their use has to be controlled and regulated by
a public authority in the interests of the public and to prevent the invasion of their rights. Since the
electronic media involves the use of the airwaves, this factor creates an inbuilt restriction on its use as in
the case of any other public property.
(ii) The right to impart and receive information is a species of the right of freedom of speech and
expression guaranteed by Article 19(1)(a) of the Constitution. A citizen has a fundamental right to use the
best means of imparting and receiving information and as such to have an access to telecasting for the
purpose. However, this right to have an access to telecasting has limitations on account of the use of the
public property, viz., the airwaves, involved in the exercise of the right and can be controlled and regulated
by the public authority. This limitation imposed by the nature of the public property involved in the use of
the electronic media is in addition to the restrictions imposed on the right to freedom of speech and
expression under Article 19(2) of the Constitution.
(iii) The Central Government shall take immediate steps to establish an independent autonomous
public authority representative of all sections and interests in the society to control and regulate the use of
the airwaves.
(iv) Since the matches have been telecast pursuant to the impugned order of the High Court, it is not
necessary to decide the correctness of the said order.
(v) The High Court will now apportion between the CAB and DD the revenues generated by the
advertisements on TV during the telecasting of both the series of the cricket matches, viz., the Hero Cup, and
the International Cricket Matches played in India from October to December 1994, after hearing the parties on
the subject. Smt. Selvi and Ors. v. State of Karnataka
AIR 2010 SC 1974
1. The legal questions in this batch of criminal appeals relate to the involuntary administration of certain
scientific techniques, namely narcoanalysis, polygraph examination and the Brain Electrical Activation Profile
(BEAP) test for the purpose of improving investigation efforts in criminal cases. This issue has received
considerable attention since it involves tensions between the desirability of efficient investigation and the
preservation of individual liberties. Ordinarily the judicial task is that of evaluating the rival contentions in
order to arrive at a sound conclusion. However, the present case is not an ordinary dispute between private
parties. It raises pertinent questions about the meaning and scope of fundamental rights which are available to
all citizens. Therefore, we must examine the implications of permitting the use of the impugned techniques in a
variety of settings.
3. The involuntary administration of the impugned techniques prompts questions about the protective scope of
the `right against self-incrimination' which finds place in Article 20(3) of our Constitution. In one of the
impugned judgments, it has been held that the information extracted through methods such as `polygraph
examination' and the `Brain Electrical Activation Profile (BEAP) test' cannot be equated with `testimonial
compulsion' because the test subject is not required to give verbal answers, thereby falling outside the
protective scope of Article 20(3). It was further ruled that the verbal revelations made during a narcoanalysis
test do not attract the bar of Article 20(3) since the inculpatory or exculpatory nature of these revelations is not
known at the time of conducting the test. To address these questions among others, it is necessary to inquire
into the historical origins and rationale behind the `right against self-incrimination'. The principal questions are
whether this right extends to the investigation stage and whether the test results are of a `testimonial' character,
thereby attracting the protection of Article20(3). Furthermore, we must examine whether relying on the test
results or materials discovered with the help of the same creates a reasonable likelihood of incrimination for
the test subject. At this stage, it will be useful to frame the questions of law and outline the relevant sub-
questions in the following manner:
I. Whether the involuntary administration of the impugned techniques violates the `right against
self-incrimination' enumerated in Article 20(3) of the Constitution?
I-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination
for the subject?
I-B. Whether the results derived from the impugned techniques amount to `testimonial compulsion'
thereby attracting the bar of Article 20(3)?
1-Whether the involuntary administration of the impugned techniques violates the `right against self-
incrimination' enumerated in Article 20(3)of the Constitution?

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81. The interrelationship between the `right against self- incrimination' and the `right to fair trial' has been
recognised in most jurisdictions as well as international human rights instruments. For example, the U.S.
Constitution incorporates the `privilege against self-incrimination' in the text of its Fifth Amendment. The
meaning and scope of this privilege has been judicially moulded by recognising it's interrelationship with
other constitutional rights such as the protection against ùnreasonable search and seizure' (Fourth
amendment) and the guarantee of `due process of law' (Fourteenth amendment). In the International
Covenant on Civil and Political Rights (ICCPR), Article 14(3)(g) enumerates the minimum guarantees that
are to be accorded during a trial and state that everyone has a right not to be compelled to testify against
himself or to confess guilt. In the European Convention for the Protection of Human Rights and
Fundamental Freedoms, Article 6(1) states that every person charged with an offence has a right to a fair
trial and Article 6(2) provides that Èverybody charged with a criminal offence shall be presumed innocent
until proved guilty according to law'. The guarantee of `presumption of innocence' bears a direct link to the
`right against self- incrimination' since compelling the accused person to testify would place the burden of
proving innocence on the accused instead of requiring the prosecution to prove guilt.
82. In the Indian context, Article 20(3) should be construed with due regard for the inter-relationship
between rights, since this approach was recognised in Maneka Gandhi's case, (1978) 1 SCC 248. Hence,
we must examine the `right against self-incrimination' in respect of its relationship with the multiple
dimensions of `personal liberty' under Article 21, which include guarantees such as the `right to fair trial'
and `substantive due process'. It must also be emphasized that Articles 20 and 21 have a non-derogable
status within Part III of our Constitution because the Constitution (Fourty-Fourth amendment) Act, 1978
mandated that the right to move any court for the enforcement of these rights cannot be suspended even
during the operation of a proclamation of emergency. In this regard, Article 359(1) of the Constitution of
India reads as follows: Suspension of the enforcement of the rights conferred by Part III during
emergencies. - (1) Where a Proclamation of Emergency is in operation, the President may by order declare
that the right to move any court for the enforcement of such of the rights conferred by Part III (except
Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the
enforcement of the rights so mentioned shall remain suspended for the period during which the
Proclamation is in force or for such shorter period as may be specified in the order....
83. Undoubtedly, Article 20(3) has an exalted status in our Constitution and questions about its meaning
and scope deserve thorough scrutiny. In one of the impugned judgments, it was reasoned that all citizens
have an obligation to cooperate with ongoing investigations. For instance reliance has been placed on
Section 39, CrPC which places a duty on citizens to inform the nearest magistrate or police officer if they
are aware of the commission of, or of the intention of any other person to commit the crimes enumerated in
the section. Attention has also been drawn to the language of Section 156(1), CrPC which states that a
police officer in charge of a police station is empowered to investigate cognizable offences even without an
order from the jurisdictional magistrate. Likewise, our attention was drawn to Section 161(1), CrPC which
empowers the police officer investigating a case to orally examine any person who is supposed to be
acquainted with the facts and circumstances of the case. While the overall intent of these provisions is to
ensure the citizens' cooperation during the course of investigation, they cannot override the constitutional
protections given to accused persons. The scheme of the CrPC itself acknowledges this hierarchy between
constitutional and statutory provisions in this regard. For instance, Section 161(2), CrPC prescribes that
when a person is being examined by a police officer, he is not bound to answer such questions, the answers
of which would have a tendency to expose him to a criminal charge or a penalty or forfeiture.
90. The judgment in Nandini Satpathy v. P.L. Dani (1978) 2 SCC 424, at pp. 438-439, referred to the
following extract from a decision of the US Supreme Court in Brown v. Walker 161 US 591 (1896), which
had later been approvingly cited by Warren, C.J. in Miranda v. Arizona 384 US 436 (1966):
The maxim nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly
unjust methods of interrogating accused persons, which have long obtained in the continental system, and,
until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the
protection of the people against the exercise of arbitrary power, were not uncommon even in England. While
the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in
the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a
crime under investigation, the case with which the questions put to him may assume an inquisitorial character,
the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a
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corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the
earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the
system so odious as to give rise to a demand for its total abolition. The change in the English criminal
procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general
and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly
embedded in English, as well as in American jurisprudence. So deeply did the inequities of the ancient system
impress themselves upon the minds of the American colonists that the State, with one accord, made a denial of
the right to question an accused person a part of their fundamental law, so that a maxim, which in England was
a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.
95. V.R. Krishna Iyer, J. echoed similar concerns in Nandini Satpathy's case (1978) 2 SCC 424, at p. 442:
...And Article 20(3) is a human article, a guarantee of dignity and integrity and of inviolability of the person
and refusal to convert an adversary system into an inquisitorial scheme in the antagonistic ante-chamber of a
police station. And in the long run, that investigation is best which uses stratagems least, that policeman
deserves respect who gives his fists rest and his wits restlessness. The police are part of us and must rise in
people's esteem through firm and friendly, not foul and sneaky strategy.
1-A-Whether the investigative use of the impugned techniques creates a likelihood of incrimination
for the subject?
99. The respondents have submitted that the compulsory administration of the impugned tests will only be
sought to boost investigation efforts and that the test results by themselves will not be admissible as
evidence. The next prong of this position is that if the test results enable the investigators to discover
independent materials that are relevant to the case, such subsequently discovered materials should be
admissible during trial. In order to evaluate this position, we must answer the following questions:• Firstly,
we should clarify the scope of the `right against self-incrimination' - i.e. whether it should be construed as a
broad protection that extends to the investigation stage or should it be viewed as a narrower right confined
to the trial stage?
• Secondly, we must examine the ambit of the words àccused of any offence' in Article 20(3) - i.e.
whether the protection is available only to persons who are formally accused in criminal cases, or
does it extend to include suspects and witnesses as well as those who apprehend incrimination in
cases other than the one being investigated?
• Thirdly, we must evaluate the evidentiary value of independent materials that are subsequently
discovered with the help of the test results. In light of the `theory of confirmation by subsequent
facts' incorporated in Section 27 of the Indian Evidence Act, 1872 we need to examine the
compatibility between this section and Article 20(3). Of special concern are situations when
persons could be compelled to reveal information which leads to the discovery of independent
materials. To answer this question, we must clarify what constitutes ìncrimination' for the purpose
of invoking Article 20(3).
100. The question of whether Article 20(3) should be narrowly construed as a trial right or a broad
protection that extends to the stage of investigation has been conclusively answered by our Courts. In M.P.
Sharma v. Satish Chandra [1954] SCR 1077, it was held:
“Broadly stated, the guarantee in Article 20(3) is against `testimonial compulsion'. It is suggested
that this is confined to the oral evidence of a person standing his trial for an offence when called to
the witness-stand. We can see no reason to confine the content of the constitutional guarantee to
this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and
to miss the substance for the sound as stated in certain American decisions...."
"Indeed, every positive volitional act which furnished evidence is testimony, and testimonial
compulsion connotes coercion which procures the positive volitional evidentiary acts of the person,
as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to
think that the protection in respect of the evidence so procured is confined to what transpires at the
trial in the court room. The phrase used in Article 20(3) is `to be a witness' and not to àppear as a
witness': It follows that the protection afforded to an accused in so far as it is related to the phrase
`to be a witness' is not merely in respect of testimonial compulsion in the court room but may well
extend to compelled testimony previously obtained from him. It is available therefore to a person
against whom a formal accusation relating to the commission of an offence has been levelled which
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in the normal course may result in prosecution. Whether it is available to other persons in other
situations does not call for decision in this case."
101. These observations were cited with approval by B.P. Sinha, C.J. in State of Bombay v. Kathi Kalu
Oghad and Ors. [1962] 3 SCR 10, at pp. 26-28. In the minority opinion, Das Gupta, J. affirmed the same
position:...If the protection was intended to be confined to being a witness in Court then really it would have
been an idle protection. It would be completely defeated by compelling a person to give all the evidence
outside court and then, having what he was so compelled to do proved in court through other witnesses. An
interpretation which so completely defeats the constitutional guarantee cannot, of course, be correct. The
contention that the protection afforded by Article 20(3) is limited to the stage of trial must therefore be
rejected.
102. The broader view of Article 20(3) was consolidated in Nandini Satpathy v. P.L. Dani (1978) 2 SCC
424:
...Any giving of evidence, any furnishing of information, if likely to have an incriminating impact, answers the
description of being a witness against oneself. Not being limited to the forensic stage by express words in
Article 20(3), we have to construe the expression to apply to every stage where furnishing of information and
collection of materials takes place. That is to say, even the investigation at the police level is embraced by
Article 20(3).This is precisely what Section 161(2) means. That Sub-section relates to oral examination by
police officers and grants immunity at that stage. Briefly, the Constitution and the Code are coterminous in the
protective area. While the code may be changed, the Constitution is more enduring. Therefore, we have to
base our conclusion not merely upon Section 161(2) but on the more fundamental protection, although equal
in ambit, contained in Article 20(3)."
"If the police can interrogate to the point of self- accusation, the subsequent exclusion of that
evidence at the trial hardly helps because the harm has already been done. The police will prove
through other evidence what they have procured through forced confession. So it is that the
foresight of the framers has pre-empted self- incrimination at the incipient stages by not expressly
restricting it to the trial stage in court. True, compelled testimony previously obtained is excluded.
But the preventive blow falls also on pre-court testimonial compulsion. The condition, as the
decisions now go, is that the person compelled must be an accused. Both precedent procurement
and subsequent exhibition of self-incriminating testimony are obviated by intelligent constitutional
anticipation.”
103. In upholding this broad view of Article 20(3), V.R. Krishna Iyer, J. relied heavily on the decision of
the US Supreme Court in Ernesto Miranda v. Arizona384 US 436 (1966). The majority opinion (by Earl
Warren, C.J.) laid down that custodial statements could not be used as evidence unless the police officers
had administered warnings about the accused's right to remain silent. The decision also recognised the right
to consult a lawyer prior to and during the course of custodial interrogations. The practice promoted by this
case is that it is only after a person has `knowingly and intelligently' waived of these rights after receiving a
warning that the statements made thereafter can be admitted as evidence. The safeguards were prescribed in
the following manner:
...the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action
in any significant way. [...] As for the procedural safeguards to be employed, unless other fully effective means
are devised to inform accused persons of their right of silence and to assure a continuous opportunity to
exercise it, the following measures are required. Prior to any questioning, the person must be warned that he
has a right to remain silent, that any statement he does make may be used as evidence against him, and that he
has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation
of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates
in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there
can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to
be interrogated, the police may not question him. The mere fact that he may have answered some questions or
volunteered some statements on his own does not deprive him of the right to refrain from answering any
further inquiries until he has consulted with an attorney and thereafter consents to be questioned.
104. These safeguards were designed to mitigate the disadvantages faced by a suspect in a custodial
environment. This was done in recognition of the fact that methods involving deception and psychological
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pressure were routinely used and often encouraged in police interrogations. Emphasis was placed on the
ability of the person being questioned to fully comprehend and understand the content of the stipulated
warning.
107. The decision in Nandini Satpathy's case, (supra.) also touched on the question of who is an àccused'
for the purpose of invoking Article 20(3). This question had been left open in M.P.Sharma's case.
Subsequently, it was addressed in Kathi Kalu Oghad.
“To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood
in the character of an accused person at the time he made the statement. It is not enough that he should
become an accused, anytime after the statement has been made.”
108. While there is a requirement of formal accusation for a person to invoke Article 20(3) it must be noted
that the protection contemplated by Section 161(2), CrPC is wider. Section 161(2) read with 161(1) protects
àny person supposed to be acquainted with the facts and circumstances of the case' in the course of
examination by the police.
109. Therefore the `right against self-incrimination' protects persons who have been formally accused as
well as those who are examined as suspects in criminal cases. It also extends to cover witnesses who
apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in
cases other than the one being investigated.
110. Even though Section 161(2) of the CrPC casts a wide protective net to protect the formally accused
persons as well as suspects and witnesses during the investigative stage, Section 132 of the Evidence Act
limits the applicability of this protection to witnesses during the trial stage. The latter provision provides
that witnesses cannot refuse to answer questions during a trial on the ground that the answers could
incriminate them. However, the proviso to this section stipulates that the content of such answers cannot
expose the witness to arrest or prosecution, except for a prosecution for giving false evidence. Therefore,
the protection accorded to witnesses at the stage of trial is not as wide as the one accorded to the accused,
suspects and witnesses during investigation [under Section 161(2), CrPC]. Furthermore, it is narrower than
the protection given to the accused during the trial stage [under Section 313(3) and Proviso (b) to
Section 315(1), CrPC]. The legislative intent is to preserve the fact- finding function of a criminal trial.
111. Since the extension of the `right against self- incrimination' to suspects and witnesses has its basis in
Section 161(2), CrPC it is not readily available to persons who are examined during proceedings that are
not governed by the code. There is a distinction between proceedings of a purely criminal nature and those
proceedings which can culminate in punitive remedies and yet cannot be characterised as criminal
proceedings. The consistent position has been that ordinarily Article 20(3) cannot be invoked by witnesses
during proceedings that cannot be characterised as criminal proceedings. In administrative and quasi-
criminal proceedings, the protection of Article 20(3) becomes available only after a person has been
formally accused of committing an offence. For instance in Raja Narayanlal Bansilal v. Maneck Phiroz
Mistry [1961] 1 SCR 417, the contention related to the admissibility of a statement made before an
inspector who was appointed under the Companies Act, 1923to investigate the affairs of a company and
report thereon. It had to be decided whether the persons who were examined by the concerned inspector
could claim the protection of Article 20(3).
The scheme of the relevant sections is that the investigation begins broadly with a view to examine the
management of the affairs of the company to find out whether any irregularities have been committed or not.
In such a case there is no accusation, either formal or otherwise, against any specified individual; there may be
a general allegation that the affairs are irregularly, improperly or illegally managed ; but who would be
responsible for the affairs which are reported to be irregularly managed is a matter which would be determined
at the end of the enquiry. At the commencement of the enquiry and indeed throughout its proceedings there is
no accused person, no accuser, and no accusation against anyone that he has committed an offence. In our
opinion a general enquiry and investigation into the affairs of the company thus contemplated cannot be
regarded as an investigation which starts with an accusation contemplated in Article 20(3) of the
Constitution....
114. We can now examine the various circumstances that could èxpose a person to criminal charges'. The
scenario under consideration is one where a person in custody is compelled to reveal information which
aids the investigation efforts. The information so revealed can prove to be incriminatory in the following
ways:

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• The statements made in custody could be directly relied upon by the prosecution to strengthen
their case. However, if it is shown that such statements were made under circumstances of
compulsion, they will be excluded from the evidence.
• Another possibility is that of `derivative use', i.e. when information revealed during questioning
leads to the discovery of independent materials, thereby furnishing a link in the chain of evidence
gathered by the investigators.
• Yet another possibility is that of `transactional use', i.e. when the information revealed can prove
to be helpful for the investigation and prosecution in cases other than the one being investigated.
• A common practice is that of extracting materials or information, which are then compared with
materials that are already in the possession of the investigators. For instance, handwriting samples
and specimen signatures are routinely obtained for the purpose of identification or corroboration.
115. The decision in Nandini Satpathy's case sheds light on what constitutes incrimination for the purpose
of Article 20(3). Krishna Iyer, J. observed:In this sense, answers that would in themselves support a
conviction are confessions but answers which have a reasonable tendency strongly to point out to the guilt
of the accused are incriminatory. Relevant replies which furnish a real and clear link in the chain of
evidence indeed to bind down the accused with the crime become incriminatory and offend Article 20(3) if
elicited by pressure from the mouth of the accused....
An answer acquires confessional status only if, in terms or substantially, all the facts which
constitute the offence are admitted by the offender. If his statement also contains self-exculpatory
matter it ceases to be a confession. Article 20(3) strikes at confessions and self- incriminations but
leaves untouched other relevant facts.
117. However, Krishna Iyer, J. also cautioned against including in the prohibition even those answers which
might be used as a step towards obtaining evidence against the accused. It was stated Nandini Satpathyv.
P.L. Dani and Anr. (1978) 2 SCC 424, at p. 451:The policy behind the privilege, under our scheme, does
not swing so wide as to sweep out of admissibility statements neither confessional per se nor guilty in
tendency but merely relevant facts which, viewed in any setting, does not have a sinister import. To spread
the net so wide is to make a mockery of the examination of the suspect, so necessitous in the search for
truth. Over breadth undermines, and we demur to such morbid exaggeration of a wholesome protection....
In Kathi Kalu Oghad's case, this Court authoritatively observed, on the bounds between
constitutional proscription and testimonial permission:'In order that a testimony by an accused
person may be said to have been self-incriminatory, the compulsion of which comes within the
prohibition of the constitutional provisions, it must be of such a character that by itself it should
have the tendency of incriminating the accused, if not also of actually doing so. In other words, it
should be a statement which makes the case against the accused at least probable, considered by
itself.' Kathi Kalu Oghad's case [1962] 3 SCR 10, 32
Again the Court indicated that Article 20(3) could be invoked only against statements which had a material
bearing on the criminality of the maker of the statement'. `By itself' does not exclude the setting or other
integral circumstances but means something in the fact disclosed a guilt element. Blood on clothes, gold bars
with notorious marks and presence on the scene or possession of the lethal weapon or corrupt currency have a
tale to tell, beyond red fluid, precious metal, gazing at the stars or testing sharpness or value of the rupee. The
setting of the case is an implied component of the statement.
118. In light of these observations, we must examine the permissibility of extracting statements which may
furnish a link in the chain of evidence and hence create a risk of exposure to criminal charges. The crucial
question is whether such derivative use of information extracted in a custodial environment is compatible
with Article 20(3). It is a settled principle that statements made in custody are considered to be unreliable
unless they have been subjected to cross- examination or judicial scrutiny. The scheme created by the Code
of Criminal Procedure and the Indian Evidence Act also mandates that confessions made before police
officers are ordinarily not admissible as evidence and it is only the statements made in the presence of a
judicial magistrate which can be given weightage. The doctrine of excluding the `fruits of a poisonous tree'
has been incorporated in Sections 24, 25 and 26 of the Indian Evidence Act, 1872.
120. The relationship between Section 27 of the Evidence Act and Article 20(3) of the Constitution was
clarified inKathi Kalu Oghad (supra.). It was observed in the majority opinion by Jagannadhadas, J., The
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information given by an accused person to a police officer leading to the discovery of a fact which may or
may not prove incriminatory has been made admissible in evidence by that Section. If it is not incriminatory
of the person giving the information, the question does not arise. It can arise only when it is of an
incriminatory character so far as the giver of the information is concerned. If the self-incriminatory
information has been given by an accused person without any threat, that will be admissible in evidence
and that will not be hit by the provisions of Clause (3) of Article 20 of the Constitution for the reason that
there has been no compulsion. It must, therefore, be held that the provisions of Section 27 of the Evidence
Act are not within the prohibition aforesaid, unless compulsion has been used in obtaining the
information….
Hence, the mere fact that the accused person, when he made the statement in question was in police custody
would not, by itself, be the foundation for an inference of law that the accused was compelled to make the
statement. Of course, it is open to an accused person to show that while he was in police custody at the
relevant time, he was subjected to treatment which, in the circumstances of the case, would lend itself to the
inference that compulsion was, in fact, exercised. In other words, it will be a question of fact in each case to be
determined by the Court on weighing the facts and circumstances disclosed in the evidence before it.
124. However, it is conceivable that in some circumstances the testimony extracted through compulsion
may not actually lead to exposure to criminal charges or penalties. For example this is a possibility when
the investigators make an offer of immunity against the direct use, derivative use or transactional use of the
testimony. Immunity against direct use entails that a witness will not be prosecuted on the basis of the
statements made to the investigators. A protection against derivative use implies that a person will not be
prosecuted on the basis of the fruits of such testimony. Immunity against transactional use will shield a
witness from criminal charges in cases other than the one being investigated. It is of course entirely up to
the investigating agencies to decide whether to offer immunity and in what form. Even though this is
distinctly possible, it is difficult to conceive of such a situation in the context of the present case. A person
who is given an offer of immunity against prosecution is far more likely to voluntarily cooperate with the
investigation efforts. This could be in the form of giving testimony or helping in the discovery of material
evidence. If a person is freely willing to cooperate with the investigation efforts, it would be redundant to
compel such a person to undergo the impugned tests. If reliance on such tests is sought for refreshing a
cooperating witness' memory, the person will in all probability give his/her consent to undergo these tests..
126. At this juncture, it must be reiterated that Indian law incorporates the `rule against adverse inferences
from silence' which is operative at the trial stage. As mentioned earlier, this position is embodied in a
conjunctive reading of Article 20(3) of the Constitution and Sections 161(2), 313(3) and Proviso (b) of
Section 315(1) of the CrPC. The gist of this position is that even though an accused is a competent witness
in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to
incrimination and the trial judge cannot draw adverse inferences from the refusal to do so. This position is
cemented by prohibiting any of the parties from commenting on the failure of the accused to give evidence.
1-B-Whether the results derived from the impugned techniques amount to `testimonial compulsion'
thereby attracting the bar of Article 20(3)?
129. The next issue is whether the results gathered from the impugned tests amount to `testimonial
compulsion', thereby attracting the prohibition of Article 20(3). For this purpose, it is necessary to survey
the precedents which deal with what constitutes `testimonial compulsion' and how testimonial acts are
distinguished from the collection of physical evidence. Apart from the apparent distinction between
evidence of a testimonial and physical nature, some forms of testimonial acts lie outside the scope of
Article 20(3). For instance, even though acts such as compulsorily obtaining specimen signatures and
handwriting samples are testimonial in nature, they are not incriminating by themselves if they are used for
the purpose of identification or corroboration with facts or materials that the investigators are already
acquainted with. The relevant consideration for extending the protection of Article 20(3) is whether the
materials are likely to lead to incrimination by themselves or `furnish a link in the chain of evidence' which
could lead to the same result. Hence, reliance on the contents of compelled testimony comes within the
prohibition of Article 20(3) but its use for the purpose of identification or corroboration with facts already
known to the investigators is not barred.
130. It is quite evident that the narcoanalysis technique involves a testimonial act. A subject is encouraged
to speak in a drug-induced state, and there is no reason why such an act should be treated any differently
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from verbal answers during an ordinary interrogation. In one of the impugned judgments, the compulsory
administration of the narcoanalysis technique was defended on the ground that at the time of conducting the
test, it is not known whether the results will eventually prove to be inculpatory or exculpatory. We have
already rejected this reasoning. We see no other obstruction to the proposition that the compulsory
administration of the narcoanalysis technique amounts to `testimonial compulsion' and thereby triggers the
protection of Article 20(3).
131. However, an unresolved question is whether the results obtained through polygraph examination and
the BEAP test are of a testimonial nature. In both these tests, inferences are drawn from the physiological
responses of the subject and no direct reliance is placed on verbal responses. In some forms of polygraph
examination, the subject may be required to offer verbal answers such as `Yes' or `No', but the results are
based on the measurement of changes in several physiological characteristics rather than these verbal
responses. In the BEAP test, the subject is not required to give any verbal responses at all and inferences are
drawn from the measurement of electrical activity in the brain. In the impugned judgments, it has been held
that the results obtained from both the Polygraph examination and the BEAP test do not amount to
`testimony' thereby lying outside the protective scope of Article 20(3). The same assertion has been
reiterated before us by the counsel for the respondents. In order to evaluate this position, we must examine
the contours of the expression `testimonial compulsion'.
132. The question of what constitutes `testimonial compulsion' for the purpose of Article 20(3) was
addressed in M.P. Sharma's case (supra.). In that case, the Court considered whether the issuance of search
warrants in the course of an investigation into the affairs of a company (following allegations of
misappropriation and embezzlement) amounted to an infringement of Article 20(3). The search warrants
issued under Section 96 of the erstwhile Code of Criminal Procedure, 1898 authorised the investigating
agencies to search the premises and seize the documents maintained by the said company. The relevant
observations were made by Jagannadhadas, J., at pp. 1087-1088:
...The phrase used in Article 20(3) is `to be a witness'. A person can `be a witness' not merely by giving oral
evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness
[see Section 119 of the Evidence Act or the like]. `To be a witness' is nothing more than `to furnish
evidence', and such evidence can be furnished through the lips or by production of a thing or of a document
or in other modes....
Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion
connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the
negative attitude of silence or submission on his part....
133. These observations suggest that the phrase `to be a witness' is not confined to oral testimony for the
purpose of invoking Article 20(3) and that it includes certain non-verbal forms of conduct such as the
production of documents and the making of intelligible gestures. However, in Kathi Kalu Oghad , there
was a disagreement between the majority and minority opinions on whether the expression `to be a witness'
was the same as `to furnish evidence'. Since the majority decision in Kathi Kalu Oghad (supra.) is the
controlling precedent, it will be useful to re-state the two main premises for understanding the scope of
`testimonial compulsion'. The first is that ordinarily it is the oral or written statements which convey the
personal knowledge of a person in respect of relevant facts that amount to `personal testimony' thereby
coming within the prohibition contemplated by Article 20(3). In most cases, such `personal testimony' can
be readily distinguished from material evidence such as bodily substances and other physical objects. The
second premise is that in some cases, oral or written statements can be relied upon but only for the purpose
of identification or comparison with facts and materials that are already in the possession of the
investigators. The bar of Article 20(3) can be invoked when the statements are likely to lead to
incrimination by themselves or `furnish a link in the chain of evidence' needed to do so. We must emphasize
that a situation where a testimonial response is used for comparison with facts already known to
investigators is inherently different from a situation where a testimonial response helps the investigators to
subsequently discover fresh facts or materials that could be relevant to the ongoing investigation.
137. The recognition of the distinction between testimonial acts and physical evidence for the purpose of
invoking Article 20(3) of the Constitution finds a close parallel in some foreign decisions. In Armando
Schmerber v. California 384 US 757 (1966), the U.S. Supreme Court had to determine whether an
involuntary blood test of a defendant had violated the Fifth Amendment. The defendant was undergoing
treatment at a hospital following an automobile accident. A blood sample was taken against his will at the
direction of a police officer. Analysis of the same revealed that Schmerber had been intoxicated and these
results were admitted into evidence, thereby leading to his conviction for drunk driving. An objection was
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raised on the basis of the Fifth Amendment and the majority opinion (Brennan, J.) relied on a distinction
between evidence of a `testimonial' or `communicative' nature as opposed to evidence of a `physical' or
`real nature', concluding that the privilege against self-incrimination applied to the former but not to the
latter. In arriving at this decision, reference was made to several precedents with a prominent one
being United States v. Holt 218 US 245 (1910). In that case, a defendant was forced to try on an article of
clothing during the course of investigation. It had been ruled that the privilege against self-incrimination
prohibited the use of compulsion to èxtort communications' from the defendant, but not the use of the
defendant's body as evidence.
217. Even though the main task of constitutional adjudication is to safeguard the core organising principles
of our polity, we must also highlight some practical concerns that strengthen the case against the
involuntary administration of the tests in question. Firstly, the claim that the results obtained from these
techniques will help in extraordinary situations is questionable. All of the tests in question are those which
need to be patiently administered and the forensic psychologist or the examiner has to be very skilful and
thorough while interpreting the results. In a narcoanalysis test the subject is likely to divulge a lot of
irrelevant and incoherent information. The subject is as likely to divulge false information as he/she is likely
to reveal useful facts. Sometimes the revelations may begin to make sense only when compared with the
testimony of several other individuals or through the discovery of fresh materials. In a polygraph test,
interpreting the results is a complex process that involves accounting for distortions such as
`countermeasures' used by the subject and weather conditions among others. In a BEAP test, there is always
the possibility of the subject having had prior exposure to the `probes' that are used as stimuli. All of this is
a gradually unfolding process and it is not appropriate to argue that the test results will always prove to be
crucial in times of exigency. It is evident that both the tasks of preparing for these tests and interpreting
their results need considerable time and expertise.
218. Secondly, if we were to permit the forcible administration of these techniques, it could be the first step
on a very slippery-slope as far as the standards of police behaviour are concerned. In some of the impugned
judgments, it has been suggested that the promotion of these techniques could reduce the regrettably high
incidence of `third degree methods' that are being used by policemen all over the country. This is a circular
line of reasoning since one form of improper behaviour is sought to be replaced by another. What this will
result in is that investigators will increasingly seek reliance on the impugned techniques rather than
engaging in a thorough investigation. The widespread use of `third-degree' interrogation methods so as to
speak is a separate problem and needs to be tackled through long-term solutions such as more emphasis on
the protection of human rights during police training, providing adequate resources for investigators and
stronger accountability measures when such abuses do take place.
219. Thirdly, the claim that the use of these techniques will only be sought in cases involving heinous
offences rings hollow since there will no principled basis for restricting their use once the investigators are
given the discretion to do so. From the statistics presented before us as well as the charges filed against the
parties in the impugned judgments, it is obvious that investigators have sought reliance on the impugned
tests to expedite investigations, unmindful of the nature of offences involved. In this regard, we do not have
the authority to permit the qualified use of these techniques by way of enumerating the offences which
warrant their use. By itself, permitting such qualified use would amount to a law- making function which is
clearly outside the judicial domain.
220. One of the main functions of constitutionally prescribed rights is to safeguard the interests of citizens
in their interactions with the government. As the guardians of these rights, we will be failing in our duty if
we permit any citizen to be forcibly subjected to the tests in question. One could argue that some of the
parties who will benefit from this decision are hardened criminals who have no regard for societal values.
However, it must be borne in mind that in constitutional adjudication our concerns are not confined to the
facts at hand but extend to the implications of our decision for the whole population as well as the future
generations. Sometimes there are apprehensions about judges imposing their personal sensibilities through
broadly worded terms such as `substantive due process', but in this case our inquiry has been based on a
faithful understanding of principles entrenched in our Constitution.
CONCLUSION
221. In our considered opinion, the compulsory administration of the impugned techniques violates the
`right against self- incrimination'. This is because the underlying rationale of the said right is to ensure the
reliability as well as voluntariness of statements that are admitted as evidence. This Court has recognised
that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read
with Section 161(2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well
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as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if
they have been obtained through the use of compulsion. Article 20(3) protects an individual's choice
between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be
inculpatory or exculpatory. Article 20(3) aims to prevent the forcible `conveyance of personal knowledge
that is relevant to the facts in issue'. The results obtained from each of the impugned tests bear a
`testimonial' character and they cannot be categorised as material evidence.
222. We are also of the view that forcing an individual to undergo any of the impugned techniques violates
the standard of `substantive due process' which is required for restraining personal liberty. Such a violation
will occur irrespective of whether these techniques are forcibly administered during the course of an
investigation or for any other purpose since the test results could also expose a person to adverse
consequences of a non-penal nature. The impugned techniques cannot be read into the statutory provisions
which enable medical examination during investigation in criminal cases, i.e. the Explanation to
Sections 53, 53A and54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not
feasible in light of the rule of èjusdem generis' and the considerations which govern the interpretation of
statutes in relation to scientific advancements. We have also elaborated how the compulsory administration
of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also
amount to `cruel, inhuman or degrading treatment' with regard to the language of evolving international
human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into
conflict with the `right to fair trial'. Invocations of a compelling public interest cannot justify the dilution of
constitutional rights such as the `right against self-incrimination'.
223. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the
techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so
would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the
voluntary administration of the impugned techniques in the context of criminal justice, provided that certain
safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test
results by themselves cannot be admitted as evidence because the subject does not exercise conscious
control over the responses during the administration of the test. However, any information or material that
is subsequently discovered with the help of voluntary administered test results can be admitted, in
accordance with Section 27 of the Evidence Act, 1872. The National Human Rights Commission had
published`Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused' in 2000.
These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the
`Narcoanalysis technique' and the `Brain Electrical Activation Profile' test. The text of these guidelines has
been reproduced below:
(i) No Lie Detector Tests should be administered except on the basis of consent of the accused. An option
should be given to the accused whether he wishes to avail such test.
(ii) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical,
emotional and legal implication of such a test should be explained to him by the police and his lawyer.
(iii) The consent should be recorded before a Judicial Magistrate.
(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a
lawyer.
(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall
not be a `confessional' statement to the Magistrate but will have the status of a statement made to the police.
(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the
nature of the interrogation.
(vii) The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital)
and conducted in the presence of a lawyer.
(viii) A full medical and factual narration of the manner of the information received must be taken on record.
224. The present batch of appeals is disposed of accordingly.

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Shreya Singhal v. Union of India
(Writ Petition (Cr.) No.167 Of 2012, SC, Judgement delivered on March 24, 2015)
Corum:5::
Judgment: R.F. Nariman. J. for himself & Chelameswar J.

1. This batch of writ petitions filed under Article 32 of the Constitution of India raises very important and far-reaching
questions relatable primarily to the fundamental right of free speech and expression guaranteed by Article 19(1)(a) of
the Constitution of India. The immediate cause for concern in these petitions is Section 66A of the Information
Technology Act of 2000. This Section was not in the Act as originally enacted, but came into force by virtue of an
Amendment Act of 2009 with effect from 27.10.2009. Since all the arguments raised by several counsel for the
petitioners deal with the unconstitutionality of this Section it is set out hereinbelow:
“66-A. Punishment for sending offensive messages through communication service, etc.
—Any person who sends, by means of a computer resource or a communication device,—
(a) any information that is grossly offensive or has menacing character; or
(b) a
ny information which he knows to be false, but for the purpose of causing
annoyance, inconvenience, (danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred or ill will, persistently by making use of such
computer resource or a communication device; or
(c)any electronic mail or electronic mail message for the purpose of
causing annoyance or inconvenience or to deceive or to mislead the
addressee or recipient about the origin of such messages,
shall be punishable with imprisonment for a term which may extend to three years and with
fine.
Explanation.— For the purposes of this section, terms “electronic mail” and “electronic mail
message” means a message or information created or transmitted or received on a computer,
computer system, computer resource or communication device including attachments in text,
image, audio, video and any other electronic record, which may be transmitted with the
message.”
2. A related challenge is also made to Section 69A introduced by the same amendment which reads as follows:-
“69-A. Power to issue directions for blocking for public access of
any information through any computer resource.—(1) Where the Central
Government or any of its officers specially authorised by it in this behalf is satisfied that it is
necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India,
security of the State, friendly relations with foreign States or public order or for preventing
incitement to the commission of any cognizable offence relating to above, it may subject to the
provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the
Government or intermediary to block for access by the public or cause to be blocked for access by
the public any information generated, transmitted, received, stored or hosted in any computer
resource.
(2) The procedure and safeguards subject to which such blocking for access by the public may be
carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be
punished with an imprisonment for a term which may extend to seven years and shall also be liable
to fine.”
3. The Statement of Objects and Reasons appended to the Bill which introduced the Amendment Act stated in
paragraph 3 that:
“3. A rapid increase in the use of computer and internet has given rise to new forms of crimes like
publishing sexually explicit materials in electronic form, video voyeurism and breach of
confidentiality and leakage of data by intermediary, e-commerce frauds like personation commonly
known as Phishing, identity theft and offensive messages through communication services. So, penal
provisions are required to be included in the Information Technology Act, the Indian Penal code, the
Indian Evidence Act and the code of Criminal Procedure to prevent such crimes.”
4. The petitioners contend that the very basis of Section 66A - that it has given rise to new forms of crimes - is
incorrect, and that Sections 66B to 67C and various Sections of the Indian Penal Code (which will be referred to
hereinafter) are good enough to deal with all these crimes.
5. The petitioners’ various counsel raised a large number of points as to the constitutionality of Section 66A. According
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to them, first and foremost Section 66A infringes the fundamental right to free speech and expression and is not
saved by any of the eight subjects covered in Article 19(2). According to them, the causing of annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will are all outside the
purview of Article 19(2). Further, in creating an offence, Section 66A suffers from the vice of vagueness because
unlike the offence created by Section 66 of the same Act, none of the aforesaid terms are even attempted to be
defined and cannot be defined, the result being that innocent persons are roped in as well as those who are not. Such
persons are not told clearly on which side of the line they fall; and it would be open to the authorities to be as
arbitrary and whimsical as they like in booking such persons under the said Section. In fact, a large number of
innocent persons have been booked and many instances have been given in the form of a note to the Court. The
enforcement of the said Section would really be an insidious form of censorship which impairs a core value contained
in Article 19(1)(a). In addition, the said Section has a chilling effect on the freedom of speech and expression. Also,
the right of viewers is infringed as such chilling effect would not give them the benefit of many shades of grey in
terms of various points of view that could be viewed over the internet.
The petitioners also contend that their rights under Articles 14 and 21 are breached inasmuch there is no intelligible
differentia between those who use the internet and those who by words spoken or written use other mediums of
communication. To punish somebody because he uses a particular medium of communication is itself a
discriminatory object and would fall foul of Article 14 in any case.
6. In reply, Mr. Tushar Mehta, learned Additional Solicitor General defended the constitutionality of Section 66A. He
argued that the legislature is in the best position to understand and appreciate the needs of the people. The Court will,
therefore, interfere with the legislative process only when a statute is clearly violative of the rights conferred on the
citizen under Part-III of the Constitution. There is a presumption in favour of the constitutionality of an enactment.
Further, the Court would so construe a statute to make it workable and in doing so can read into it or read down the
provisions that are impugned. The Constitution does not impose impossible standards of determining validity. Mere
possibility of abuse of a provision cannot be a ground to declare a provision invalid. Loose language may have been
used in Section 66A to deal with novel methods of disturbing other people’s rights by using the internet as a tool to
do so. Further, vagueness is not a ground to declare a statute unconstitutional if the statute is otherwise legislatively
competent and non-arbitrary. He cited a large number of judgments before us both from this Court and from overseas
to buttress his submissions.
Freedom of Speech and Expression

Article 19(1) &(2) quoted…
9. Various judgments of this Court have referred to the importance of freedom of speech and expression both
from the point of view of the liberty of the individual and from the point of view of our democratic form of
government. For example, in the early case of Romesh Thappar v. State of Madras, [1950]
S.C.R. 594 at 602, this Court stated that freedom of speech lay at the foundation of all democratic
organizations. In Sakal Papers (P) Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. 842 at
866, a Constitution Bench of this Court said freedom of speech and expression of opinion is of paramount
importance under a democratic constitution which envisages changes in the composition of legislatures and
governments and must be preserved. In a separate concurring judgment Beg,J. said, in Bennett
Coleman & Co. & Ors. v. Union of India & Ors., [1973] 2 S.C.R. 757 at 829, that the
freedom of speech and of the press is the Ark of the Covenant of Democracy because public criticism is
essential to the working of its institutions.
10. Equally, in S. Khushboo v. Kanniamal & Anr., (2010) 5 SCC 600 this Court stated, in
paragraph 45 that the importance of freedom of speech and expression though not absolute was necessary as
we need to tolerate unpopular views. This right requires the free flow of opinions and ideas essential to
sustain the collective life of the citizenry. While an informed citizenry is a pre-condition for meaningful
governance, the culture of open dialogue is generally of great societal importance.
11. This last judgment is important in that it refers to the “market place of ideas” concept that has permeated
American Law. This was put in the felicitous words of Justice Holmes in his famous dissent in Abrams v.
United States, 250 US 616 (1919), thus:
“But when men have realized that time has upset many fighting faiths, they may come to believe
even more than they believe the very foundations of their own conduct that the ultimate good
desired is better reached by free trade in ideas-that the best test of truth is the power of thought to
get itself accepted in the competition of the market, and that truth is the only ground upon which
their wishes safely can be carried out. That at any rate is the theory of our Constitution.”
12. Justice Brandeis in his famous concurring judgment in Whitney v. California, 71 L. Ed. 1095 said:
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“Those who won our independence believed that the final end of the state was to make men free to
develop their faculties, and that in its government the deliberative forces should prevail over the
arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the
secret of happiness and courage to be the secret of liberty. They believed that freedom to think as
you will and to speak as you think are means indispensable to the discovery and spread of
political truth; that without free speech and assembly discussion would be futile; that with them,
discussion affords ordinarily adequate protection against the dissemination of noxious doctrine;
that the greatest menace to freedom is an inert people; that public discussion is a political duty;
and that this should be a fundamental principle of the American government. They recognized the
risks to which all human institutions are subject. But they knew that order cannot be secured
merely through fear of punishment for its infraction; that it is hazardous to discourage thought,
hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces
stable government; that the path of safety lies in the opportunity to discuss freely supposed
grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.
Believing in the power of reason as applied through public discussion, they eschewed silence
coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of
governing majorities, they amended the Constitution so that free speech and assembly should be
guaranteed.
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared
witches and burnt women. It is the function of speech to free men from the bondage of irrational
fears. To justify suppression of free speech there must be reasonable ground to fear that serious
evil will result if free speech is practiced. There must be reasonable ground to believe that the
danger apprehended is imminent. There must be reasonable ground to believe that the evil to be
prevented is a serious one. Every denunciation of existing law tends in some measure to increase
the probability that there will be violation of it. Condonation of a breach enhances the probability.
Expressions of approval add to the probability. Propagation of the criminal state of mind by
teaching syndicalism increases it. Advocacy of lawbreaking heightens it still further. But even
advocacy of violation, however reprehensible morally, is not a justification for denying free
speech where the advocacy falls short of incitement and there is nothing to indicate that the
advocacy would be immediately acted on. The wide difference between advocacy and incitement,
between preparation and attempt, between assembling and conspiracy, must be borne in mind. In
order to support a finding of clear and present danger it must be shown either that immediate
serious violence was to be expected or was advocated, or that the past conduct furnished reason to
believe that such advocacy was then contemplated.” (at page 1105, 1106) .
13. This leads us to a discussion of what is the content of the expression “freedom of speech and
expression”. There are three concepts which are fundamental in understanding the reach of this most basic of
human rights. The first is discussion, the second is advocacy, and the third is incitement.
Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is
only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage
that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder
or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations
with foreign States, etc. Why it is important to have these three concepts in mind is because most of the arguments of
both petitioners and respondents tended to veer around the expression “public order”.
14. It is at this point that a word needs to be said about the use of American judgments in the
context of Article 19(1)(a). In virtually every significant judgment of this Court, reference has been
made to judgments from across the Atlantic. Is it safe to do so?
15. It is significant to notice first the differences between the US First Amendment and Article
19(1)(a) read with Article 19(2). The first important difference is the absoluteness of the U.S. first
Amendment - Congress shall make no law which abridges the freedom of speech. Second, whereas the
U.S. First Amendment speaks of freedom of speech and of the press, without any reference to
“expression”, Article 19(1)(a) speaks of freedom of speech and expression without any reference to
“the press”. Third, under the US Constitution, speech may be abridged, whereas under our
Constitution, reasonable restrictions may be imposed. Fourth, under our Constitution such restrictions
have to be in the interest of eight designated subject matters - that is any law seeking to impose a
restriction on the freedom of speech can only pass muster if it is proximately related to any of the eight
subject matters set out in Article 19(2).
16. Insofar as the first apparent difference is concerned, the U.S. Supreme Court has never given
literal effect to the declaration that Congress shall make no law abridging the freedom of speech. The
approach of the Court which is succinctly stated in one of the early U.S. Supreme Court Judgments,
continues even today. In Chaplinsky v. New Hampshire, 86 L. Ed. 1031, Justice Murphy
who delivered the opinion of the Court put it thus:-
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“Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well
understood that the right of free speech is not
absolute at all times and under all circumstances. There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of which has never been thought to raise any
Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the
insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well observed that such utterances are no essential part of
any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the social interest in order and morality. 'Resort to
epithets or personal abuse is not in any proper sense communication of information or opinion
safeguarded by the Constitution, and its punishment as a criminal act would raise no question under
that instrument.' Cantwell v. Connecticut, 310 U.S. 296, 309, 310, 60 S.Ct. 900, 906, 84 L.Ed.1213,
128 A.L.R. 1352.” (at page 1035)
17. So far as the second apparent difference is concerned, the American Supreme Court has
included “expression” as part of freedom of speech and this Court has included “the press” as being
covered under Article 19(1)(a), so that, as a matter of judicial interpretation, both the US and India
protect the freedom of speech and expression as well as press freedom. Insofar as abridgement and
reasonable restrictions are concerned, both the U.S. Supreme Court and this Court have held that a
restriction in order to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge
or restrict only what is absolutely necessary. It is only when it comes to the eight subject matters that
there is a vast difference. In the U.S., if there is a compelling necessity to achieve an important
governmental or societal goal, a law abridging freedom of speech may pass muster. But in India, such
law cannot pass muster if it is in the interest of the general public. Such law has to be covered by one
of the eight subject matters set out under Article 19(2). If it does not, and is outside the pale of 19(2),
Indian courts will strike down such law.
18. (Viewed from the above perspective, American judgments have great persuasive value on the
content of freedom of speech and expression and the tests laid down for its infringement. It is only
when it comes to sub-serving the general public interest that there is the world of a difference. This is
perhaps why in Kameshwar Prasad & Ors. v. The State of Bihar & Anr.,
1962 Supp. (3) S.C.R. 369, this Court held:
“As regards these decisions of the American Courts, it should be borne in mind that though the
First Amendment to the Constitution of the United State reading "Congress shall make no
law.... abridging the freedom of speech..." appears to confer no power on the Congress to
impose any restriction on the exercise of the guaranteed right, still it has always been
understood that the freedom guaranteed is subject to the police power - the scope of which
however has not been defined with precision or uniformly. It is on the basis of the police
power to abridge that freedom that the constitutional validity of laws penalising libels, and
those relating to sedition, or to obscene publications etc., has been sustained. The resultant
flexibility of the restrictions that could be validly imposed renders the American decisions
inapplicable to and without much use for resolving the questions arising under Art. 19(1) (a) or
(b) of our Constitution wherein the grounds on which limitations might be placed on the
guaranteed right are set out with definiteness and precision.” ( At page 378)
19. But when it comes to understanding the impact and content of freedom of speech, in
Indian Express Newspapers (Bombay) Private Limited & Ors. v.
Union of India & Ors., (1985) 2 SCR 287, Venkataramiah,J. stated:
“While examining the constitutionality of a law which is alleged to contravene Article 19 (1) (a)
of the Constitution, we cannot, no doubt, be solely guided by the decisions of the Supreme
Court of the United States of America. But in order to understand the basic principles of
freedom of speech and expression and the need for that freedom in a democratic country, we
may take them into consideration. The pattern of Article 19 (1) (a) and of Article 19 (1) (g) of
our constitution is different from the pattern of the First Amendment to the American
Constitution which is almost absolute in its terms. The rights guaranteed under Article 19 (1)
(a) and Article 19 (1) (g) of the Constitution are to be read along with clauses (2) and (6) of
Article 19 which carve out areas in respect of which valid legislation can be made.” (at page
324)
20. With these prefatory remarks, we will now go to the other aspects of the challenge made in
these writ petitions and argued before us.
A. Article 19(1)(a) -
Section 66A has been challenged on the ground that it casts the net very wide - “all information” that is
disseminated over the internet is included within its reach. It will be useful to note that Section 2(v) of
Information Technology Act, 2000 defines information as follows:
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“2. Definitions.—(1) In this Act, unless the context otherwise requires,—
(v) “Information” includes data, message, text, images, sound, voice, codes, computer
programmes, software and databases or micro film or computer generated micro
fiche.”
Two things will be noticed. The first is that the definition is an inclusive one. Second, the definition does not
refer to what the content of information can be. In fact, it refers only to the medium through which such
information is disseminated. It is clear, therefore, that the petitioners are correct in saying that the public’s right
to know is directly affected by Section 66A. Information of all kinds is roped in - such information may have
scientific, literary or artistic value, it may refer to current events, it may be obscene or seditious. That such
information may cause annoyance or inconvenience to some is how the offence is made out. It is clear that the
right of the people to know - the market place of ideas - which the internet provides to persons of all kinds is
what attracts Section 66A. That the information sent has to be annoying, inconvenient, grossly offensive etc.,
also shows that no distinction is made between mere discussion or advocacy of a particular point of view which
may be annoying or inconvenient or grossly offensive to some and incitement by which such words lead to an
imminent causal connection with public disorder, security of State etc. The petitioners are right in saying that
Section 66A in creating an offence against persons who use the internet and annoy or cause inconvenience to
others very clearly affects the freedom of speech and expression of the citizenry of India at large in that such
speech or expression is directly curbed by the creation of the offence contained in Section 66A.
In this regard, the observations of Justice Jackson in American Communications Association v. Douds, 94 L.
Ed. 925 are apposite:
“Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of
our Government to keep the citizen from falling into error; it is the function of the citizen to keep
the Government from falling into error. We could justify any censorship only when the censors are
better shielded against error than the censored.”
B. Article 19(2)
One challenge to Section 66A made by the petitioners’ counsel is that the offence created by the said Section has
no proximate relation with any of the eight subject matters contained in Article 19(2). We may incidentally
mention that the State has claimed that the said Section can be supported under the heads of public order,
defamation, incitement to an offence and decency or morality.
21. Under our constitutional scheme, as stated earlier, it is not open to the State to curtail freedom
of speech to promote the general public interest. In Sakal Papers (P) Ltd. & Ors. v.
Union of India, [1962] 3 S.C.R. 842, this Court said:
“It may well be within the power of the State to place, in the interest of the general public,
restrictions upon the right of a citizen to carry on business but it is not open to the State to achieve
this object by directly and immediately curtailing any other freedom of that citizen guaranteed by
the Constitution and which is not susceptible of abridgment on the same grounds as are set out in
clause (6) of Article 19. Therefore, the right of freedom of speech cannot be taken away with the
object of placing restrictions on the business activities of a citizen. Freedom of speech can be
restricted only in the interests of the security of the State, friendly relations with foreign State,
public order, decency or morality or in relation to contempt of court, defamation or incitement to
an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the
general public. If a law directly affecting it is challenged, it is no answer that the restrictions
enacted by it are justifiable under clauses (3) to (6). For, the scheme of Article 19 is to enumerate
different freedoms separately and then to specify the extent of restrictions to which they may be
subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each
and every one of the freedoms together and clause (1) does not prefer one freedom to another.
That is the plain meaning of this clause. It follows from this that the State cannot make a law
which directly restricts one freedom even for securing the better enjoyment of another freedom.
All the greater reason, therefore for holding that the State cannot directly restrict one freedom by
placing an otherwise permissible restriction on another freedom.” (at page 863)
Reasonable Restrictions:
23. This Court has laid down what “reasonable restrictions” means in several cases. In Chintaman Rao
v. The State of Madhya Pradesh, [1950] S.C.R. 759, this Court said:
“The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the
right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the
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public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course
which reason dictates.
Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of
reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g)
and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality.”
(at page 763)
24. In State of Madras v. V.G. Row, [1952] S.C.R. 597, this Court said:
“This Court had occasion in Dr. Khare's case (1950) S.C.R. 519 to define the scope of the judicial
review under clause (5) of Article19 where the phrase "imposing reasonable restriction on the
exercise of the right" also occurs and four out of the five Judges participating in the decision
expressed the view (the other Judge leaving the question open) that both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point of view of
reasonableness; that is to say, the Court should consider not only factors such as the duration and
the extent of the restrictions, but also the circumstances under which and the manner in which their
imposition has been authorised. It is important in this context to bear in mind that the test of
reasonableness, where ever prescribed, should be applied to each, individual statute impugned and
no abstract standard, or general pattern of reasonableness can be laid down as applicable to all
cases. The nature of the right alleged to have been infringed, the underlying purpose of the
restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing conditions at the time, should all enter into the
judicial verdict. In evaluating such elusive factors and forming their own conception of what is
reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and
the scale of values of the judges participating in the decision should play an important part, and the
limit to their interference with legislative judgment in such cases can only be dictated by their
sense of responsibility and self- restraint and the sobering reflection that the Constitution is meant
not only for people of their way of thinking but for all, and that the majority of the elected
representatives of the people have, in authorising the imposition of the restrictions, considered
them to be reasonable.” (at page 606-607)
27. It was argued by the learned Additional Solicitor General that a relaxed standard of reasonableness
of restriction should apply regard being had to the fact that the medium of speech being the internet differs
from other mediums on several grounds. To appreciate the width and scope of his submissions, we are
setting out his written submission verbatim:
“(i) the reach of print media is restricted to one state or at the most one country while internet has no
boundaries and its reach is global;
(ii) the recipient of the free speech and expression used in a print media can only be literate
persons while internet can be accessed by literate and illiterate both since one click is needed to
download an objectionable post or a video;
(iii) In case of televisions serials [except live shows] and movies, there is a permitted pre-
censorship' which ensures right of viewers not to receive any information which is dangerous to or
not in conformity with the social interest. While in the case of an internet, no such pre-censorship
is possible and each individual is publisher, printer, producer, director and broadcaster of the
content without any statutory regulation;
(iv) In case of print media or medium of television and films whatever is truly recorded can only be
published or broadcasted I televised I viewed. While in case of an internet, morphing of images,
change of voices and many other technologically advance methods to create serious potential
social disorder can be applied.
(v) By the medium of internet, rumors having a serious potential of creating a serious social disorder
can be spread to trillions of people without any check which is not possible in case of other
mediums.
(vi) In case of mediums like print media, television and films, it is broadly not possible to invade
privacy of unwilling persons. While in case of an internet, it is very easy to invade upon the
privacy of any individual and thereby violating his right under Article 21 of the Constitution of
India.
(vii) By its very nature, in the mediums like newspaper, magazine, television or a movie, it is not
possible to sexually harass someone, outrage the modesty of anyone, use unacceptable filthy
language and evoke communal frenzy which would lead to serious social disorder. While in the
case of an internet, it is easily possible to do so by a mere click of a button without any
geographical limitations and almost in all cases while ensuring anonymity of the offender.
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( v i i i ) By the very nature of the medium, the width and reach of internet is manifold as against
newspaper and films. The said mediums have inbuilt limitations i.e. a person will have to buy /
borrow a newspaper and / or will have to go to a theater to watch a movie. For television also one
needs at least a room where a television is placed and can only watch those channels which he has
subscribed and that too only at a time where it is being telecast. While in case of an internet a
person abusing the internet, can commit an offence at any place at the time of his choice and
maintaining his anonymity in almost all cases.
(ix) In case of other mediums, it is impossible to maintain anonymity as a result of which
speech ideal opinions films having serious potential of creating a social disorder never gets
generated since its origin is bound to be known. While in case of an internet mostly its abuse takes
place under the garb of anonymity which can be unveiled only after thorough investigation.
(x) In case of other mediums like newspapers, television or films, the approach is always
institutionalized approach governed by industry specific ethical norms of self conduct. Each
newspaper / magazine / movie production house / TV Channel will have their own institutionalized
policies in house which would generally obviate any possibility of the medium being abused. As
against that use of internet is solely based upon individualistic approach of each individual without
any check, balance or regulatory ethical norms for exercising freedom of speech and expression
under Article 19[ 1] [a].
(xi) In the era limited to print media and cinematograph; or even in case of publication
through airwaves, the chances of abuse of freedom of expression was less due to inherent
infrastructural and logistical constrains. In the case of said mediums, it was almost impossible for
an individual to create and publish an abusive content and make it available to trillions of people.
Whereas, in the present internet age the said infrastructural and logistical constrains have
disappeared as any individual using even a smart mobile phone or a portable computer device can
create and publish abusive material on its own, without seeking help of anyone else and make it
available to trillions of people by just one click.”
28. As stated, all the above factors may make a distinction between the print and other media as
opposed to the internet and the legislature may well, therefore, provide for separate offences so far as free
speech over the internet is concerned. There is, therefore, an intelligible differentia having a rational relation
to the object sought to be achieved - that there can be creation of offences which are applied to free speech
over the internet alone as opposed to other mediums of communication. Thus, an Article 14 challenge has
been repelled by us on this ground later in this judgment. But we do not find anything in the features
outlined by the learned Additional Solicitor General to relax the Court’s scrutiny of the curbing of the
content of free speech over the internet. While it may be possible to narrowly draw a Section creating a new
offence, such as Section 69A for instance, relatable only to speech over the internet, yet the validity of such
a law will have to be tested on the touchstone of the tests already indicated above.
29. Secretary Ministry of Information &
In fact, this aspect was considered in
Broadcasting, Government of India v. Cricket Association of Bengal,
(1995) 2 SCC 161 in para 37, where the following question was posed:
“The next question which is required to be answered is whether there is any distinction between the
freedom of the print media and that of the electronic media such as radio and television, and if so,
whether it necessitates more restrictions on the latter media.”
This question was answered in para 78 thus:
“There is no doubt that since the airwaves/frequencies are a public property and are also limited, they
have to be used in the best interest of the society and this can be done either by a central authority
by establishing its own broadcasting network or regulating the grant of licences to other agencies,
including the private agencies. What is further, the electronic media is the most powerful media
both because of its audio-visual impact and its widest reach covering the section of the society
where the print media does not reach. The right to use the airwaves and the content of the
programmes, therefore, needs regulation for balancing it and as well as to prevent monopoly of
information and views relayed, which is a potential danger flowing from the concentration of the
right to broadcast/telecast in the hands either of a central agency or of few private affluent
broadcasters. That is why the need to have a central agency representative of all sections of the
society free from control both of the Government and the dominant influential sections of the
society. This is not disputed. But to contend that on that account the restrictions to be imposed on
the right under Article 19(1)(a) should be in addition to those permissible under Article 19(2) and
dictated by the use of public resources in the best interests of the society at large, is to misconceive
both the content of the freedom of speech and expression and the problems posed by the element
of public property in, and the alleged scarcity of, the frequencies as well as by the wider reach of
the media. If the right to freedom of speech and expression includes the right to disseminate
information to as wide a section of the population as is possible, the access which enables the right
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to be so exercised is also an integral part of the said right. The wider range of circulation of
information or its greater impact cannot restrict the content of the right nor can it justify its denial.
The virtues of the electronic media cannot become its enemies. It may warrant a greater regulation
over licensing and control and vigilance on the content of the programme telecast. However, this
control can only be exercised within the framework of Article 19(2) and the dictates of public
interests. To plead for other grounds is to plead for unconstitutional measures. It is further difficult
to appreciate such contention on the part of the Government in this country when they have a
complete control over the frequencies and the content of the programme to be telecast. They
control the sole agency of telecasting. They are also armed with the provisions of Article 19(2) and
the powers of pre-censorship under the Cinematograph Act and Rules. The only limitation on the
said right is, therefore, the limitation of resources and the need to use them for the benefit of all.
When, however, there are surplus or unlimited resources and the public interests so demand or in
any case do not prevent telecasting, the validity of the argument based on limitation of resources
disappears. It is true that to own a frequency for the purposes of broadcasting is a costly affair and
even when there are surplus or unlimited frequencies, only the affluent few will own them and will
be in a position to use it to subserve their own interest by manipulating news and views. That also
poses a danger to the freedom of speech and expression of the have-nots by denying them the
truthful information on all sides of an issue which is so necessary to form a sound view on any
subject. That is why the doctrine of fairness has been evolved in the US in the context of the
private broadcasters licensed to share the limited frequencies with the central agency like the FCC
to regulate the programming. But this phenomenon occurs even in the case of the print media of all
the countries. Hence the body like the Press Council of India which is empowered to enforce,
however imperfectly, the right to reply. The print media further enjoys as in our country, freedom
from pre-censorship unlike the electronic media.”
Public Order
33. In Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia,

[1960] 2 S.C.R. 821, this Court held that public order is synonymous with public safety and tranquility;
it is the absence of disorder involving breaches of local significance in contradistinction to national
upheavals, such as revolution, civil strife, war, affecting the security of the State. This definition was
further refined in Dr. Ram Manohar Lohia v. State of Bihar & Ors., [1966] 1
S.C.R. 709, where this Court held:
“It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to
comprehend disorders of less gravity than those affecting "security of State", "law and order" also
comprehends disorders of less gravity than those affecting "public order". One has to imagine three
concentric circles. Law and order represents the largest circle within which is the next circle
representing public order and the smallest circle represents security of State. It is then easy to see
that an act may affect law and order but not public order just as an act may affect public order but
not security of the State.” (at page 746)
34. InArun Ghosh v. State of West Bengal, [1970] 3 S.C.R. 288, Ram Manohar
Lohia’s case was referred to with approval in the following terms: …..
“In Dr. Ram Manohar Lohia's case this Court pointed out the difference between maintenance of law
and order and its disturbance and the maintenance of public order and its disturbance. Public order
was said to embrace more of the community than law and order. Public order is the even tempo of
the life of the community taking the country as a whole or even a specified locality. Disturbance of
public order is to be distinguished, from acts directed against individuals which do not disturb the
society to the extent of causing a general disturbance of public tranquility. It is the degree of
disturbance and its effect upon the life of the community in a locality which determines whether
the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another.
People may be shocked and even disturbed, but the life of the community keeps moving at an even
tempo, however much one may dislike the act. Take another case of a town where there is
communal tension. A man stabs a member of the other community. This is an act of a very
different sort. Its implications are deeper and it affects the even tempo of life and public order is
jeopardized because the repercussions of the act embrace large Sections of the community and
incite them to make further breaches of the law and order and to subvert the public order. An act
by itself is not determinant of its own gravity. In its quality it may not differ from another but in its
potentiality it may be very different. Take the case of assault on girls. A guest at a hotel may kiss
or make advances to half a dozen chamber maids. He may annoy them and also the management
but he does not cause disturbance of public order. He may even have a fracas with the friends of
one of the girls but even then it would be a case of breach of law and order only. Take another case

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of a man who molests women in lonely places. As a result of his activities girls going to colleges
and schools are in constant danger and fear. Women going for their ordinary business are afraid of
being waylaid and assaulted. The activity of this man in its essential quality is not different from
the act of the other man but in its potentiality and in its effect upon the public tranquility there is a
vast difference. The act of the man who molests the girls in lonely places causes a disturbance in
the even tempo of living which is the first requirement of public order. He disturbs the society and
the community. His act makes all the women apprehensive of their honour and he can be said to be
causing disturbance of public order and not merely committing individual actions which may be
taken note of by the criminal prosecution agencies. It means therefore that the question whether a
man has only committed a breach of law and order or has acted in a manner likely to cause a
disturbance of the public order is a question of degree and the extent of the reach of the act upon
the society. The French distinguish law and order and public order by designating the latter as
order publique. The latter expression has been recognised as meaning something more than
ordinary maintenance of law and order. Justice Ramaswami in Writ Petition No. 179 of 1968 drew
a line of demarcation between the serious and aggravated forms of breaches of public order which
affect the community or endanger the public interest at large from minor breaches of peace which
do not affect the public at large. He drew an analogy between public and private crimes. The
analogy is useful but not to be pushed too far. A large number of acts directed against persons or
individuals may total up into a breach of public order. In Dr. Ram Manohar Lohia's case examples
were given by Sarkar, and Hidayatullah, JJ. They show how similar acts in different contexts affect
differently law and order on the one hand and public order on the other. It is always a question of
degree of the harm and its effect upon the community. The question to ask is: Does it lead to
disturbance of the current of life of the community so as to amount to a disturbance of the public
order or does it affect merely an individual leaving the tranquility of the society undisturbed? This
question has to be faced in every case on facts. There is no formula by which one case can be
distinguished from another.” (at pages 290 and 291).
35. This decision lays down the test that has to be formulated in all these cases. We have to ask ourselves the
question: does a particular act lead to disturbance of the current life of the community or does it merely
affect an individual leaving the tranquility of society undisturbed? Going by this test, it is clear that Section
66A is intended to punish any person who uses the internet to disseminate any information that falls within
the sub-clauses of Section 66A. It will be immediately noticed that the recipient of the written word that is
sent by the person who is accused of the offence is not of any importance so far as this Section is concerned.
(Save and except where under sub-clause (c) the addressee or recipient is deceived or misled about the
origin of a particular message.) It is clear, therefore, that the information that is disseminated may be to one
individual or several individuals. The Section makes no distinction between mass dissemination and
dissemination to one person. Further, the Section does not require that such message should have a clear
tendency to disrupt public order. Such message need not have any potential which could disturb the
community at large. The nexus between the message and action that may be taken based on the message is
conspicuously absent - there is no ingredient in this offence of inciting anybody to do anything which a
reasonable man would then say would have the tendency of being an immediate threat to public safety or
tranquility. On all these counts, it is clear that the Section has no proximate relationship to public order
whatsoever. The example of a guest at a hotel 'annoying’ girls is telling - this Court has held that mere
'annoyance’ need not cause disturbance of public order. Under Section 66A, the offence is complete by
sending a message for the purpose of causing annoyance, either 'persistently’ or otherwise without in any
manner impacting public order.
Clear and present danger - tendency to affect.
36. It will be remembered that Justice Holmes in Schenck v. United States, 63 L. Ed. 470
enunciated the clear and present danger test as follows:
“...The most stringent protection of free speech would not protect a man in falsely shouting fire in a
theatre and causing a panic. It does not even protect a man from an injunction against uttering
words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U. S.
418, 439, 31 Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874. The question in every case is
whether the words used are used in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils that Congress has a right to
prevent. It is a question of proximity and degree.” (At page 473, 474)
37. This was further refined in Abrams v. Unites States 250 U.S. 616 (1919), this time in a Holmesian
dissent, to be clear and imminent danger. However, in most of the subsequent judgments of the U.S. Supreme
Court, the test has been understood to mean to be “clear and present danger”. The test of “clear and present
danger” has been used by the U.S. Supreme Court in many varying situations and has been adjusted according to
varying fact situations. It appears to have been repeatedly applied, see- Terminiello v. City of
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Chicago 93 L. Ed. 1131 (1949) at page 1134-1135, Brandenburg v. Ohio 23 L. Ed. 2d 430 (1969)
at 434-435 & 436, Virginia v. Black 155 L. Ed. 2d 535 (2003) at page 551, 552 and 553.1
38. We have echoes of it in our law as well S. Rangarajan v. P. Jagjivan & Ors., (1989) 2
SCC 574 at paragraph 45:
“45. The problem of defining the area of freedom of expression when it appears to conflict with the
various social interests enumerated under Article 19(2) may briefly be touched upon here. There
does indeed have to be a compromise between the interest of freedom of expression and special
interests. But we cannot simply balance the two interests as if they are of equal weight. Our
commitment of freedom of expression demands that it cannot be suppressed unless the situations
created by allowing the freedom are pressing and the community interest is endangered. The
anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and
direct nexus with the expression. The expression of thought should be intrinsically dangerous to
the public interest. In other words, the expression should be inseparably locked up with the action
contemplated like the equivalent of a “spark in a powder keg”.
39. This Court has used the expression “tendency” to a particular act. Thus, in State of Bihar v.
Shailabala Devi, [1952] S.C.R. 654, an early decision of this Court said that an article, in order to be
banned must have a tendency to excite persons to acts of violence (at page 662-663). The test laid down in the
said decision was that the article should be considered as a whole in a fair free liberal spirit and then it must be
decided what effect it would have on the mind of a reasonable reader. (at pages 664-665)
40. In Ramji Lal Modi v. The State of U.P., [1957] S.C.R. 860 at page 867, this court upheld
Section 295A of the Indian Penal Code only because it was read down to mean that aggravated forms of insults
to religion must have a tendency to disrupt public order. Similarly, in Kedar Nath Singh v. State of
Bihar, 1962 Supp. (2) S.C.R. 769, Section 124A of the Indian Penal Code was upheld by construing it
narrowly and stating that the offence would only be complete if the words complained of have a tendency of
creating public disorder by violence. It was added that merely creating disaffection or creating feelings of
enmity in certain people was not good enough or else it would violate the fundamental right of free speech
under Article 19(1)(a). Again, in Dr. Ramesh Yeshwant Prabhoo v. Prabhakar
Kashinath Kunte & Ors., 1996 (1) SCC 130, Section 123 (3A) of the Representation of People Act
was upheld only if the enmity or hatred that was spoken about in the Section would tend to create immediate
public disorder and not otherwise.
41. Viewed at either by the standpoint of the clear and present danger test or the tendency to create public
disorder, Section 66A would not pass muster as it has no element of any tendency to create public disorder
which ought to be an essential ingredient of the offence which it creates.
Defamation
42. Defamation is defined in Section 499 of the Penal Code as follows:………
43. It will be noticed that for something to be defamatory, ( as defined under Secrion 499 of IPC) injury to
reputation is a basic ingredient. Section 66A does not concern itself with injury to reputation. Something
may be grossly offensive and may annoy or be inconvenient to somebody without at all affecting his
reputation. It is clear therefore that the Section is not aimed at defamatory statements at all.
Incitement to an offence:
44. Equally, Section 66A has no proximate connection with incitement to commit an offence. Firstly, the
information disseminated over the internet need not be information which “incites” anybody at all. Written
words may be sent that may be purely in the realm of “discussion” or “advocacy” of a “particular point of
view”. Further, the mere causing of annoyance, inconvenience, danger etc., or being grossly offensive or
1In its present form the clear and present danger test has been reformulated to say that:“The constitutional guarantees of free speech and free press do not permit a
State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and
is likely to incite or produce such action.”Interestingly, the US Courts have gone on to make a further refinement. The State may ban what is called a “true threat”.
“’True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a
particular individual or group of individuals.”
“The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from
the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the
threatened violence will occur. Intimidation in the constitutionally proscribable sense of the word is a type of true threat,
where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or
death.”
See Virginia v. Black (Supra) and Watts v. United States 22 L. Ed. 2d. 664 at 667
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having a menacing character are not offences under the Penal Code at all. They may be ingredients of
certain offences under the Penal Code but are not offences in themselves. For these reasons, Section 66A
has nothing to do with “incitement to an offence”. As Section 66A severely curtails information that may be
sent on the internet based on whether it is grossly offensive, annoying, inconvenient, etc. and being
unrelated to any of the eight subject matters under Article 19(2) must, therefore, fall foul of Article 19(1)(a),
and not being saved under Article 19(2), is declared as unconstitutional.
Decency or Morality
45. This Court in Ranjit Udeshi v. State of Maharashtra [1965] 1 S.C.R. 65 took a rather
restrictive view of what would pass muster as not being obscene. The Court followed the test laid down in
the old English judgment in Hicklin’s case which was whether the tendency of the matter charged as
obscene is to deprave and corrupt those whose minds are open to such immoral influences and into whose
hands a publication of this sort may fall. Great strides have been made since this decision in the UK, United
Director General, Directorate General of
States as well as in our country. Thus, in
Doordarshan v. Anand Patwardhan, 2006 (8) SCC 433, this Court noticed the law in the
United States and said that a material may be regarded as obscene if the average person applying
contemporary community standards would find that the subject matter taken as a whole appeals to the
prurient interest and that taken as a whole it otherwise lacks serious literary artistic, political, educational or
scientific value (see Para 31).
46. In a recent judgment of this Court, Aveek Sarkar v. State of West Bengal, 2014 (4) SCC
257, this Court referred to English, U.S. and Canadian judgments and moved away from the Hicklin test
and applied the contemporary community standards test.
47. What has been said with regard to public order and incitement to an offence equally applies here. Section
66A cannot possibly be said to create an offence which falls within the expression ‘decency’ or ‘morality’
in that what may be grossly offensive or annoying under the Section need not be obscene at all - in fact the
word ‘obscene’ is conspicuous by its absence in Section 66A.
48. However, the learned Additional Solicitor General asked us to read into Section 66A each of the subject
matters contained in Article 19(2) in order to save the constitutionality of the provision. We are afraid that
such an exercise is not possible for the simple reason that when the legislature intended to do so, it provided
for some of the subject matters contained in Article 19(2) in Section 69A. We would be doing complete
violence to the language of Section 66A if we were to read into it something that was never intended to be
read into it. Further, he argued that the statute should be made workable, and the following should be read
into Section 66A:
“(i) Information which would appear highly abusive, insulting, pejorative, offensive by reasonable
person in general, judged by the standards of an open and just multi-caste, multi-religious, multi
racial society;
(ii) Information which is directed to incite or can produce imminent lawless action
Brandenburg v. Ohio 395 U.S. 444 (1969);
(iii) Information which may constitute credible threats of violence to the person or damage;
(iv) Information which stirs the public to anger, invites violent disputes brings about condition
of violent unrest and disturbances;
Terminiello v. Chicago 337 US 1 (1949)
(v) Information which advocates or teaches the duty, necessity or proprietary of violence as a
means of accomplishing political, social or religious reform and/or justifies commissioning of
violent acts with an intent to exemplify glorify such violent means to accomplish political, social,
economical or religious reforms [Whitney vs. California 274 US 357];
(vi) Information which contains fighting or abusive material; Chaplinsky v. New Hampshire, 315
U.S. 568 (1942)
(vii) Information which promotes hate speech i.e.
(a) Information which propagates hatred towards individual or a groups, on the basis of race,
religion, religion, casteism, ethnicity,
(b) Information which is intended to show the supremacy of one particular religion/race/caste
by making disparaging, abusive and/or highly inflammatory remarks against
religion/race/caste.
(c) Information depicting religious deities, holy persons, holy symbols, holy books which are
created to insult or to show contempt or lack of reverence for such religious deities, holy
persons, holy symbols, holy books or towards something which is considered sacred or
inviolable.
(viii) Satirical or iconoclastic cartoon and caricature which fails the test laid down in Hustler
Magazine, Inc. v. Falwell 485 U.S. 46 (1988)
(ix) Information which glorifies terrorism and use of drugs;
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(x) Information which infringes right of privacy of the others and includes acts of cyber
bullying, harassment or stalking.
(xi) Information which is obscene and has the tendency to arouse feeling or revealing an overt
sexual desire and should be suggestive of deprave mind and designed to excite sexual passion in
persons who are likely to see it. Aveek Sarkar and Anr. vs. State of West Bengal and Ors. (2014) 4
SCC 257.
(xii) Context and background test of obscenity. Information which is posted in such a context or
background which has a consequential effect of outraging the modesty of the pictured individual.
Aveek Sarkar and Anr. vs. State of West Bengal and Ors. (2014) 4 SCC 257.”
49. What the learned Additional Solicitor General is asking us to do is not to read down Section 66A - he is asking
for a wholesale substitution of the provision which is obviously not possible.
Vagueness
50. Counsel for the petitioners argued that the language used in Section 66A is so vague that neither would an
accused person be put on notice as to what exactly is the offence which has been committed nor would the
authorities administering the Section be clear as to on which side of a clearly drawn line a particular
communication will fall.
51. We were given Collin’s dictionary, which defined most of the terms used in Section 66A, as follows:…..
52. The U.S. Supreme Court has repeatedly held in a series of judgments that where no reasonable standards are
laid down to define guilt in a Section which creates an offence, and where no clear guidance is given to either
law abiding citizens or to authorities and courts, a Section which creates an offence and which is vague must be
struck down as being arbitrary and unreasonable. Thus, in Musser v. Utah, 92 L. Ed. 562, a Utah statute
which outlawed conspiracy to commit acts injurious to public morals was struck down.
64. Coming to this Court’s judgments, in State of Madhya Pradesh v. Baldeo Prasad, [1961] 1
S.C.R. 970 an inclusive definition of the word “goonda” was held to be vague and the offence created by
Section 4A of the Goondas Act was, therefore, violative of Article 19(1)(d) and (e) of the Constitution. It was
stated:
“Incidentally it would also be relevant to point out that the definition of the word "goonda" affords
no assistance in deciding which citizen can be put under that category. It is an inclusive definition
and it does not indicate which tests have to be applied in deciding whether a person falls in the first
part of the definition. Recourse to the dictionary meaning of the word would hardly be of any
assistance in this matter. After all it must be borne in mind that the Act authorises the District
Magistrate to deprive a citizen of his fundamental right under Art. 19(1)(d) and (e), and though the
object of the Act and its purpose would undoubtedly attract the provisions of Art. 19(5) care must
always be taken in passing such acts that they provide sufficient safeguards against casual,
capricious or even malicious exercise of the powers conferred by them. It is well known that the
relevant provisions of the Act are initially put in motion against a person at a lower level than the
District magistrate, and so it is always necessary that sufficient safeguards should be provided by
the Act to protect the fundamental rights of innocent citizens and to save them from unnecessary
harassment. That is why we think the definition of the word "goonda" should have given necessary
assistance to the District Magistrate in deciding whether a particular citizen falls under the
category of goonda or not; that is another infirmity in the Act. As we have already pointed out s. 4-
A suffers from the same infirmities as s. 4.
Having regard to the two infirmities in Sections 4, 4-A respectively we do not think it would be
possible to accede to the argument of the Learned Advocate-General that the operative portion of
the Act can fall under Art. 19(5) of the Constitution. The person against whom action can be taken
under the Act is not entitled to know the source of the information received by the District
Magistrate; he is only told about his prejudicial activities on which the satisfaction of the District
Magistrate is based that action should be taken against him under s.4 or s. 4-A. In such a case it is
absolutely essential that the Act must clearly indicate by a proper definition or otherwise when and
under what circumstances a person can be called a goonda, and it must impose an obligation on the
District Magistrate to apply his mind to the question as to whether the person against whom
complaints are received is such a goonda or not. It has been urged before us that such an obligation
is implicit in Sections 4 and 4-A. We are, however, not impressed by this argument. Where a
statute empowers the specified authorities to take preventive action against the citizens it is
essential that it should expressly make it a part of the duty of the said authorities to satisfy
themselves about the existence of what the statute regards as conditions precedent to the exercise
of the said authority. If the statute is silent in respect of one of such conditions precedent it
undoubtedly constitutes a serious infirmity which would inevitably take it out of the provisions of
Art. 19(5). The result of this infirmity is that it has left to the unguided and unfettered discretion of
the authority concerned to treat any citizen as a goonda. In other words, the restrictions which it
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allows to be imposed on the exercise of the fundamental right of a citizen guaranteed by Art.
19(1)(d) and (e) must in the circumstances be held to be unreasonable. That is the view taken by
the High court and we see no reason to differ from it.” (at pages 979, 980)
65. At one time this Court seemed to suggest that the doctrine of vagueness was no part of the Constitutional
Law of India. That was dispelled in no uncertain terms in K.A. Abbas v. The Union of India
& Another, [1971] 2 S.C.R. 446:
“This brings us to the manner of the exercise of control and restriction by the directions. Here the
argument is that most of the regulations are vague and further that they leave no scope for the
exercise of creative genius in the field of art. This poses the first question before us whether the
'void for vagueness' doctrine is applicable. Reliance in this connection is placed on Municipal
Committee Amritsar and Anr. v. The State of Rajasthan . In that case a Division Bench of this
Court lays down that an Indian Act cannot be declared invalid on the ground that it violates the due
process clause or that it is vague ” (at
page 469)
“These observations which are clearly obiter are apt to be too generally applied and need to be
explained. While it is true that the principles evolved by the Supreme Court of the United States of
America in the application of the Fourteenth Amendment were eschewed in our Constitution and
instead the limits of restrictions on each fundamental right were indicated in the clauses that follow
the first clause of the nineteenth article, it cannot be said as an absolute principle that no law will
be considered bad for sheer vagueness. There is ample authority for the proposition that a law
affecting fundamental rights may be so considered. A very pertinent example is to be found in
State of Madhya Pradesh and Anr. v. Baldeo Prasad, 1961 (1) SCR 970 where the Central
Provinces and Berar Goondas Act 1946 was declared void for uncertainty. The condition for the
application of Sections 4 and 4A was that the person sought to be proceeded against must be a
goonda but the definition of goonda in the Act indicated no tests for deciding which person fell
within the definition. The provisions were therefore held to be uncertain and vague.
The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as
may be, and language permitting, the construction sought to be placed on it, must be in accordance
with the intention of the legislature. Thus if the law is open to diverse construction, that
construction which accords best with the intention of the legislature and advances the purpose of
legislation, is to be preferred. Where however the law admits of no such construction and the
persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a
guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the
Goonda Act. This is not application of the doctrine of due process. The invalidity arises from the
probability of the misuse of the law to the detriment of the individual. If possible, the Court instead
of striking down the law may itself draw the line of demarcation where possible but this effort
should be sparingly made and only in the clearest of cases.” (at pages 470, 471)
67. In A.K. Roy & Ors. v. Union of India & Ors., [1982] 2 S.C.R. 272, a part of
Section 3 of the National Security Ordinance was read down on the ground that “acting in any manner
prejudicial to the maintenance of supplies and services essential to the community” is an expression so
vague that it is capable of wanton abuse. The Court held:
“What we have said above in regard to the expressions ‘defence of India’, ‘security of India’,
'security of the State' and ‘relations of India with foreign powers’ cannot apply to the expression
“acting in any manner prejudicial to the maintenance of supplies and services essential to the
community” which occurs in Section 3(2) of the Act. Which supplies and services are essential to
the community can easily be defined by the legislature and indeed, legislations which regulate the
prices and possession of essential commodities either enumerate those commodities or confer upon
the appropriate Government the power to do so. In the absence of a definition of ‘supplies and
services essential to the community’, the detaining authority will be free to extend the application
of this clause of sub-section (2) to any commodities or services the maintenance of supply of
which, according to him, is essential to the community.
But that is not all. The Explanation to sub-section (2) gives to the particular phrase in that sub-section
a meaning which is not only uncertain but which, at any given point of time, will be difficult to
ascertain or fasten upon. According to the Explanation, no order of detention can be made under
the National Security Act on any ground on which an order of detention may be made under the
Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980.
The reason for this, which is stated in the Explanation itself, is that for the purposes of sub-section

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(2), “acting in any manner prejudicial to the maintenance of supplies essential to the community”
does not include “acting in any manner prejudicial to the maintenance of supplies of commodities
essential to the community” as defined in the Explanation to sub-section (1) of Section 3 of the Act
of 1980. Clauses (a) and (b) of the Explanation to Section 3(1) of the Act of 1980 exhaust almost
the entire range of essential commodities. Clause (a) relates to committing or instigating any
person to commit any offence
punishable under the Essential Commodities Act, 10 of 1955, or under any other law for the time
being in force relating to the control of the production, supply or distribution of, or trade and
commerce in, any commodity essential to the community. Clause (b) of the Explanation to Section
3(1) of the Act of 1980 relates to dealing in any commodity which is an essential commodity as
defined in the Essential Commodities Act, 1955, or with respect to which provisions have been
made in any such other law as is referred to in clause (a). We find it quite difficult to understand as
to which are the remaining commodities outside the scope of the Act of 1980, in respect of which
it can be said that the maintenance of their supplies is essential to the community. The particular
clause in sub-section (2) of Section 3 of the National Security Act is, therefore, capable of wanton
abuse in that, the detaining authority can place under detention any person for possession of any
commodity on the basis that the authority is of the opinion that the maintenance of supply of that
commodity is essential to the community. We consider the particular clause not only vague and
uncertain but, in the context of the Explanation, capable of being extended cavalierly to supplies,
the maintenance of which is not essential to the community. To allow the personal liberty of the
people to be taken away by the application of that clause would be a flagrant violation of the
fairness and justness of procedure which is implicit in the provisions of Article 21.” (at page 325-
326)
68. Similarly, in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at para 130-131, it was
held:_
“130. It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its
prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or
emphasized that laws should give the person of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not
providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and
also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary
and discriminatory application. More so uncertain and undefined words deployed inevitably lead
citizens to “steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas
were clearly marked.
131. Let us examine clause (i) of Section 2(1)(a). This section is shown to be blissfully and
impermissibly vague and imprecise. As rightly pointed out by the learned counsel, even an
innocent person who ingenuously and undefiledly communicates or associates without any
knowledge or having no reason to believe or suspect that the person or class of persons with whom
he has communicated or associated is engaged in assisting in any manner terrorists or
disruptionists, can be arrested and prosecuted by abusing or misusing or misapplying this
definition. In ultimate consummation of the proceedings, perhaps that guiltless and innoxious
innocent person may also be convicted.”
69. Judged by the standards laid down in the aforesaid judgments, it is quite clear that the expressions
used in 66A are completely open-ended and undefined.
70. It will be clear that in all computer related offences that are spoken of by Section 66, mens rea is
an ingredient and the expression “dishonestly” and “fraudulently” are defined with some degree of
specificity, unlike the expressions used in Section 66A.
71. The provisions contained in Sections 66B up to Section 67B also provide for various punishments
for offences that are clearly made out. For example, under Section 66B, whoever dishonestly receives or
retains any stolen computer resource or communication device is punished with imprisonment. Under
Section 66C, whoever fraudulently or dishonestly makes use of any identification feature of another person is
liable to punishment with imprisonment. Under Section 66D, whoever cheats by personating becomes liable
to punishment with imprisonment. Section 66F again is a narrowly drawn section which inflicts punishment
which may extend to imprisonment for life for persons who threaten the unity, integrity, security or

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sovereignty of India. Sections 67 to 67B deal with punishment for offences for publishing or transmitting
obscene material including depicting children in sexually explicit acts in electronic form.
72. In the Indian Penal Code, a number of the expressions that occur in Section 66A occur in Section
268.
73. It is important to notice the distinction between the Sections 268 and 66A. Whereas, in Section
268 the various expressions used are ingredients for the offence of a public nuisance, these ingredients now
become offences in themselves when it comes to Section 66A. Further, under Section 268, the person
should be guilty of an act or omission which is illegal in nature - legal acts are not within its net. A further
ingredient is that injury, danger or annoyance must be to the public in general. Injury, danger or annoyance
are not offences by themselves howsoever made and to whomsoever made. The expression “annoyance”
appears also in Sections 294 and 510 of the IPC:
“294. Obscene acts and songs.

74. If one looks at Section 294, the annoyance that is spoken of is clearly defined - that is, it has to be
caused by obscene utterances or acts. Equally, under Section 510, the annoyance that is caused to a person
must only be by another person who is in a state of intoxication and who annoys such person only in a
public place or in a place for which it is a trespass for him to enter. Such narrowly and closely defined
contours of offences made out under the Penal Code are conspicuous by their absence in Section 66A which
in stark contrast uses completely open ended, undefined and vague language.
75. Incidentally, none of the expressions used in Section 66A are defined. Even “criminal
intimidation” is not defined - and the definition clause of the Information Technology Act, Section 2 does
not say that words and expressions that are defined in the Penal Code will apply to this Act.
76. Quite apart from this, as has been pointed out above, every expression used is nebulous in
meaning. What may be offensive to one may not be offensive to another. What may cause annoyance or
inconvenience to one may not cause annoyance or inconvenience to another. Even the expression
“persistently” is completely imprecise - suppose a message is sent thrice, can it be said that it was sent
“persistently”? Does a message have to be sent (say) at least eight times, before it can be said that such
message is “persistently” sent? There is no demarcating line conveyed by any of these expressions - and
that is what renders the Section unconstitutionally vague.
77. However, the learned Additional Solicitor General argued before us that expressions that are used
in Section 66A may be incapable of any precise definition but for that reason they are not constitutionally
vulnerable. He cited a large number of judgments in support of this submission. None of the cited
judgments dealt with a Section creating an offence which is saved despite its being vague and in capable of
any precise definition. In fact, most of the judgments cited before us did not deal with criminal law at all.
The few that did are dealt with hereinbelow. For instance, Madan Singh v. State of Bihar,
(2004) 4 SCC 622 was cited before us. The passage cited from the aforesaid judgment is contained in para
19 of the judgment. The cited passage is not in the context of an argument that the word “terrorism” not
being separately defined would, therefore, be struck down on the ground of vagueness. The cited passage
Zameer
was only in the context of upholding the conviction of the accused in that case. Similarly, in
Ahmed Latifur Rehman Sheikh v. State of Maharashtra & Ors., (2010) 5
SCC 246, the expression “insurgency” was said to be undefined and would defy a precise definition, yet it
could be understood to mean break down of peace and tranquility as also a grave disturbance of public order
so as to endanger the security of the State and its sovereignty. This again was said in the context of a
challenge on the ground of legislative competence. The
provisions of the Maharashtra Control of Organised Crime Act were challenged on the ground that they were
outside the expression “public order” contained in Entry 1 of List I of the 7 th Schedule of the Constitution of
India. This contention was repelled by saying that the expression “public order” was wide enough to
encompass cases of “insurgency”. This case again had nothing to do with a challenge raised on the ground
of vagueness.
79. In fact, two English judgments cited by the learned Additional Solicitor General would demonstrate how
vague the words used in Section 66A are. In Director of Public Prosecutions v. Collins,
(2006) 1 WLR 2223,…. and
80. in Chambers v. Director of Public Prosecutions, [2013] 1 W.L.R. 1833, the Queen’s
Bench was faced with the following facts:
“Following an alert on the Internet social network, Twitter, the defendant became aware that, due to
adverse weather conditions, an airport from which he was due to travel nine days later was closed.
He responded by posting several “tweets” on Twitter in his own name, including the following:
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“Crapl Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together
otherwise I am blowing the airport sky highl” None of the defendant’s “followers” who read the
posting was alarmed by it at the time. Some five days after its posting the defendant’s tweet was
read by the duty manager responsible for security at the airport on a general Internet search for
tweets relating to the airport. Though not believed to be a credible threat the matter was reported to
the police. In interview the defendant asserted that the tweet was a joke and not intended to be
menacing. The defendant was charged with sending by a public electronic communications
network a message of a menacing character contrary to section 127(1)(a) of the Communications
Act 2003. He was convicted in a magistrates’ court and, on appeal, the Crown Court upheld the
conviction, being satisfied that the message was “menacing per se” and that the defendant was, at
the very least, aware that his message was of a menacing character.”
82. These two cases illustrate how judicially trained minds would find a person guilty or not guilty
depending upon the Judge’s notion of what is “grossly offensive” or “menacing”. In Collins’ case, both the
Leicestershire Justices and two Judges of the Queen’s Bench would have acquitted Collins whereas the
House of Lords convicted him. Similarly, in the Chambers case, the Crown Court would have convicted
Chambers whereas the Queen’s Bench acquitted him. If judicially trained minds can come to diametrically
opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive” or
“menacing” are so vague that there is no manageable standard by which a person can be said to have
committed an offence or not to have committed an offence. Quite obviously, a prospective offender of
Section 66A and the authorities who are to enforce Section 66A have absolutely no manageable standard by
which to book a person for an offence under Section 66A. This being the case, having regard also to the two
English precedents cited by the learned Additional Solicitor General, it is clear that Section 66A is
unconstitutionally vague.
Ultimately, applying the tests referred to in Chintaman Rao and V.G. Row’s case, referred to
earlier in the judgment, it is clear that Section 66A arbitrarily, excessively and disproportionately invades
the right of free speech and upsets the balance between such right and the reasonable restrictions that may
be imposed on such right.
Chilling Effect And Overbreadth
83. Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms
which take into the net a very large amount of protected and innocent speech. A person may discuss or even
advocate by means of writing disseminated over the internet information that may be a view or point of view
pertaining to governmental, literary, scientific or other matters which may be unpalatable to certain sections
of society. It is obvious that an expression of a view on any matter may cause annoyance, inconvenience or
may be grossly offensive to some. A few examples will suffice. A certain section of a particular community
may be grossly offended or annoyed by communications over the internet by “liberal views” - such as the
emancipation of women or the abolition of the caste system or whether certain members of a non
proselytizing religion should be allowed to bring persons within their fold who are otherwise outside the
fold. Each one of these things may be grossly offensive, annoying, inconvenient, insulting or injurious to
large sections of particular communities and would fall within the net cast by Section 66A. In point of fact,
Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any
serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the
Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.
84. Incidentally, some of our judgments have recognized this chilling effect of free speech. (such as ) in R.
Rajagopal v. State of T.N., (1994) 6 SCC 632. …
90. These two Constitution Bench decisions (Ram
Manohar Lohia’s case [1960]; Kameshwar
Prasad & Ors. v. The State of Bihar & Anr., [1962] Supp. 3 S.C.R. 369, ) bind us and
would apply directly on Section 66A. We, therefore, hold that the Section is unconstitutional also on the
ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable
therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to
be struck down on the ground of overbreadth.
119. In conclusion, we may summarise what has been held by us above:

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(a)Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of
Article 19(1)(a) and not saved under Article 19(2).
(b) Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of
Information by Public)
Rules 2009 are constitutionally valid.
(c) Section 79 is valid subject to Section 79(3)(b) being read
down to mean that an intermediary upon receiving actual knowledge from a court order or on being
notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are
going to be committed then fails to expeditiously remove or disable access to such material. Similarly,
the Information Technology “Intermediary Guidelines” Rules, 2011 are valid subject to Rule 3 sub-rule
(4) being read down in the same manner as indicated in the judgment.
(d) Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved
by Article 19(2).
All the writ petitions are disposed in the above te

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RIGHT OF PERSONAL LIBERTY
Maneka Gandhi v. Union of India

(1978) 1 SCC 248
P.N. BHAGWATI, J. - The petitioner is the holder of the passport issued to her on June 1, 1976 under the
Passports Act, 1967. On July 4, 1977 the petitioner received a letter dated July 2, 1977 from the Regional
Passport Officer, Delhi intimating to her that it has been decided by the Government of India to impound her
passport under Section 10(3)(c) of the Act in public interest and requiring her to surrender the passport within
seven days from the date of receipt of the letter. The petitioner immediately addressed a letter to the Regional
Passport Officer requesting him to furnish a copy of the statement of reasons for making the order as provided
in Section 10(5) to which a reply was sent by the Government of India, Ministry of External Affairs on July 6,
1977 stating inter alia that the Government has decided “in the interest of the general public” not to furnish her
a copy of the statement of reasons for the making of the order. The petitioner thereupon filed the present
petition challenging the action of the Government in impounding her passport and declining to give reasons for
doing so. The action of the Government was impugned inter alia on the ground that it was mala fide, but this
challenge was not pressed before us at the time of the hearing of the arguments and hence it is not necessary to
state any facts bearing on that question. The principal challenge set out in the petition against the legality of
the action of the Government was based mainly on the ground that Section 10(3)(c), insofar as it empowers the
Passport Authority to impound a passport “in the interests of the general public” is violative of the equality
clause contained in Article 14 of the Constitution, since the condition denoted by the words “in the interests of
the general public” limiting the exercise of the power is vague and undefined and the power conferred by this
provision is, therefore, excessive and suffers from the vice of “over-breadth”. The petition also contained a
challenge that an order under Section 10(3)(c) impounding a passport could not be made by the Passport
Authority without giving an opportunity to the holder of the passport to be heard in defence and since in the
present case, the passport was impounded by the Government without affording an opportunity of hearing to
the petitioner, the order was null and void, and, in the alternative, if Section 10(3)(c) were read in such a
manner as to exclude the right of hearing, the section would be infected with the vice of arbitrariness and it
would be void as offending Article 14. These were the only grounds taken in the petition as originally filed and
on July 20, 1977 the petition was admitted and rule issued by this Court and an interim order was made
directing that the passport of the petitioner should continue to remain deposited with the Registrar of this Court
pending the hearing and final disposal of the petition.
2. The hearing of the petition was fixed on August 30, 1977, but before that, the petitioner filed an
application for urging additional grounds and by this application, two further grounds were sought to be urged
by her. One ground was that Section 10(3)(r) is ultra vires Article 21 since it provides for impounding of
passport without any procedure as required by that article, or, in any event, even if it could be said that there is
some procedure prescribed under the Passports Act, 1967, it is wholly arbitrary and unreasonable and,
therefore, not in compliance with the requirement of that article. The other ground urged on behalf of the
petitioner was that Section 10(3)(c) is violative of Articles 19(l)(a) and l9(l)(g) inasmuch as it authorises
imposition of restrictions on freedom of speech and expression guaranteed under Article 19(l)(a) and freedom
to practise any profession or to carry on any occupation, or business guaranteed under Article 19(l)(g) and
these restrictions are impermissible under Article 19(2) and Article 19(6) respectively. The application for
urging these two additional grounds was granted by this Court and ultimately at the hearing of the petition
these were the two principal grounds which were pressed on behalf of the petitioner.
3. Before we examine the rival arguments urged on behalf of the parties in regard to the various questions
arising in this petition, it would be convenient to set out the relevant provisions of the Passports Act, 1967. The
position which obtained prior to the coming into force of this Act was that there was no law regulating the
issue of passports for leaving the shores of India and going abroad. The issue of passports was entirely within
the discretion of the executive and this discretion was unguided and unchannelled. This Court, by a majority,
held that the expression “personal liberty” in Article 21 takes in the right of locomotion and travel abroad and
under Article 21 no person can be deprived of his right to go abroad except according to the procedure
established by law and since no law had been made by the State regulating or prohibiting the exercise of such
right, the refusal of passport was in violation of Article 21 and moreover the discretion with the executive in
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the matter of issuing or refusing passport being unchannelled and arbitrary, it was plainly violative of Article
14 and hence the order refusing passport to the petitioner was also invalid under that article. This decision was
accepted by Parliament and the infirmity pointed out by it was set right by the enactment of the Passports Act
1967. This Act, as its Preamble shows, was enacted to provide for the issue of passports and travel documents
to regulate the departure from India of citizens of India and other persons and for incidental and ancillary
matters. Section 3 provides that no person shall depart from or attempt to depart from India unless he holds in
this behalf a valid passport or travel document. What are the different classes of passports and travel
documents which can be issued under the Act is laid down in Section 4. Section 5, sub-section (1) provides for
making of an application for issue of a passport or travel document or for endorsement on such passport or
travel document for visiting foreign country or countries and sub-section (2) says that on receipt of such
application, the passport authority, after making such inquiry, if any, as it may consider necessary, shall, by
order in writing, issue or refuse to issue the passport or travel document or make or refuse to make on the
passport or travel document endorsement in respect of one or more of the foreign countries specified in the
application. Sub-section (3) requires the passport authority, where it refuses to issue the passport or travel
document or to make any endorsement on the passport or travel document, to record in writing a brief
statement of its reasons for making such order. Section 6, sub-section (1) lays down the grounds on which the
passport authority shall refuse to make an endorsement for visiting any foreign country and provides that on no
other ground the endorsement shall be refused. There are four grounds set out in this sub-section and of them,
the last is that, in the opinion of the Central Government, the presence of the applicant in such foreign country
is not in the public interest. Similarly sub-section (2) of Section 6 specifies the grounds on which alone - and
on no other grounds - the passport authority shall refuse to issue passport or travel document for visiting any
foreign country and amongst various grounds set out there, the last is that, in the opinion of the Central
Government the issue of passport or travel document to the applicant will not be in the public interest. Then
we come to Section 10 which is the material section which falls for consideration. Sub-section (1) of that
section empowers the passport authority to vary or cancel the endorsement of a passport or travel document or
to vary or cancel the conditions subject to which a passport or travel document has been issued, having regard
inter alia, to the provisions of sub-section (1) of Section 6 or any notification under Section 19. Sub-section (2)
confers powers on the passport authority to vary or cancel the conditions of the passport or travel document on
the application of the holder of the passport or travel document and with the previous approval of the Central
Government. Sub-section (3) provides that the passport authority may impound or cause to be impounded or
revoke a passport or travel document on the grounds set out in clauses (a) to (h). The order impounding the
passport in the present case was made by the Central Government under clause (c) which reads as follows:
(c) if the passport authority deems it necessary so to do in the interest of the Sovereignty and
Integrity of India, the security of India, friendly relations of India with any foreign country, or in the
interests of the general public….
The particular ground relied upon for making the order was that set out in the last part of clause (c), namely,
that the Central Government deems it necessary to impound the passport “in the interests of the general
public”. Then follows sub-section (5) which requires the passport authority impounding or revoking a passport
or travel document or varying or cancelling an endorsement made upon it to “record in writing a brief
statement of the reasons for making such order and furnish to the holder of the passport or travel document on
demand a copy of the same unless, in any case, the passport authority is of the opinion that it will not be in the
interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any
foreign country or in the interests of the general public to furnish such a copy”. It was in virtue of the provision
contained in the latter part of this sub-section that the Central Government declined to furnish a copy of the
statement of reasons for impounding the passport of the petitioner on the ground that it was not in the interests
of the general public to furnish such copy to the petitioner. It is indeed a matter of regret that the Central
Government should have taken up this attitude in reply to the request of the petitioner to be supplied a copy of
the statement of reasons, because ultimately, when the petition came to be filed, the Central Government did
disclose the reasons in the affidavit in reply to the petition which shows that it was not really contrary to public
interest and if we look at the reasons given in the affidavit in reply, it will be clear that no reasonable person
could possibly have taken the view that the interests of the general public would be prejudiced by the
disclosure of the reasons. This is an instance showing how power conferred on a statutory authority to act in
the interests of the general public can sometimes be improperly exercised. If the petitioner had not filed the
petition, she would perhaps never have been able to find out what were the reasons for which her passport was
impounded and she was deprived of her right to go abroad. The necessity of giving reasons has obviously been
introduced in sub-section (5) so that it may act as a healthy check against abuse or misuse of power. If the
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reasons given are not relevant and there is no nexus between the reasons and the ground on which the passport
has been impounded, it would be open to the holder of the passport to challenge the order impounding it in a
Court of law and if the court is satisfied that the reasons are extraneous or irrelevant, the Court would strike
down the order. This liability to be exposed to judicial scrutiny would by itself act as a safeguard against
improper or mala fide exercise of power. The Court would, therefore, be very slow to accept, without close
scrutiny, the claim of the passport authority that it would not be in the interests of the general public to disclose
the reasons. The passport authority would have to satisfy the Court by placing proper material that the giving
of reasons would be clearly and indubitably against the interests of the general public and if the Court is not so
satisfied, the Court may require the passport authority to disclose the reasons, subject to any valid and lawful
claim for privilege which may be set up on behalf of the Government. Here in the present case, as we have
already pointed out, the Central Government did initially claim that it would be against the interests of the
general public to disclose the reasons for impounding the passport, but when it came to filing the affidavit in
reply, the Central Government very properly abandoned this unsustainable claim and disclosed the reasons.
The question whether these reasons have any nexus with the interests of the general public or they are
extraneous and irrelevant is a matter which we shall examine when we deal with the arguments of the parties.
Meanwhile, proceeding further with the resume of the relevant provisions, reference may be made to Section
11 which provides for an appeal inter alia against the order impounding or revoking a passport or travel
document under sub-section (3) of Section 10. But there is a proviso to this section which says that if the order
impounding or revoking a passport or travel document is passed by the Central Government, there shall be no
right of appeal. These are the relevant provisions of the Act in the light of which we have to consider the
constitutionality of sub-section (3)(c) of Section 10 and the validity of the order impounding the passport of
the petitioner.
Meaning and content of personal liberty in Article 21
4. The first contention urged on behalf of the petitioner in support of the petition was that the right to go
abroad is part of ‘personal liberty’ within the meaning of that expression as used in Article 21 and no one can
be deprived of this right except according to the procedure prescribed by law. There is no procedure prescribed
by the Passports Act, 1967 for impounding or revoking a passport and thereby preventing the holder of the
passport from going abroad and in any event, even if some procedure can be traced in the relevant provisions
of the Act, it is unreasonable and arbitrary, inasmuch as it does not provide for giving an opportunity to the
holder of the passport to be heard against the making of the order and hence the action of the Central
Government in impounding the passport of the petitioner is in violation of Article 21. This contention of the
petitioner raises a question as to the true interpretation of Article 21. What is the nature and extent of the
protection afforded by this article? What is the meaning of ‘personal liberty’: does it include the right to go
abroad so that this right cannot be abridged or taken away except in accordance with the procedure prescribed
by law? What is the inter-relation between Article 14 and Article 21? Does Article 21 merely require that there
must be some semblance of procedure, howsoever arbitrary or fanciful, prescribed by law before a person can
be deprived of his personal liberty or that the procedure must satisfy certain requisites in the sense that it must
be fair and reasonable? Article 21 occurs in Part III of the Constitution which confers certain fundamental
rights. These fundamental rights had their roots deep in the struggle for independence and, as pointed out by
Granville Austin in ‘The Indian Constitution - Cornerstone of a Nation’, “they were included in the
Constitution in the hope and expectation that one day the tree of true liberty would bloom in India”. They were
indelibly written in the subconscious memory of the race which fought for well nigh thirty years for securing
freedom from British rule and they found expression in the form of fundamental rights when the Constitution
was enacted. These fundamental rights represent the basic values cherished by the people of this country since
the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which
every human being can develop his personality to the fullest extent. They weave a “pattern of guarantees on
the basic-structure of human rights” and impose negative obligations on the State not to encroach on individual
liberty in its various dimensions. It is apparent from the enunciation of these rights that the respect for the
individual and his capacity for individual Volition which finds expression there is not a self-fulfilling
prophecy. Its purpose is to help the individual to find his own liability, to give expression to his creativity and
to prevent governmental and other forces from ‘alienating’ the individual from his creative impulses. These
rights are wide ranging and comprehensive and they fall under seven heads, namely, right to equality, right to
freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to
property and right to constitutional remedies. Articles 14 to 18 occur under the heading ‘Right to Equality’,
and of them, by far the most important is Article 14 which confers a fundamental right by injuncting the State
not to “deny to any person equality before the law or the equal protection of the laws within the territory of
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India”. Articles 19 to 22, which find place under the heading “Right to freedom” provide for different aspects
of freedom. Clause (1) of Article 19 enshrines what may be described as the seven lamps of freedom.
It provides that all citizens shall have the right - (a) to freedom of speech and expression: (b) to assemble
peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of
India; (e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of property
and (g) to practice any profession or to carry on any occupation, trade or business. But these freedoms are not
and cannot be absolute, for absolute and unrestricted freedom of one may be destructive of the freedom of
another and in a well-ordered, civilised society, freedom can only be regulated freedom. Therefore, clauses (2)
to (6) of Article 19 permit reasonable restrictions to be imposed on the exercise of the fundamental rights
guaranteed under clause (1) of that article. Article 20 need not detain us as that is not material for the
determination of the controversy between the parties. Then comes Article 21 Article 22 confers protection
against arrest-and detention in certain cases and provides inter alia safeguards in case of preventive detention.
The other fundamental rights are not relevant to the present discussion and we need not refer to them.
5. It is obvious that Article 21, though couched in negative language, confers the fundamental right to life
and personal liberty. So far as the right to personal liberty is concerned, it is ensured by providing that no one
shall be deprived of personal liberty except according to procedure prescribed by law. The first question that
arises for consideration on the language of Article 21 is: what is the meaning and content of the
words/personal liberty’ as used in this article? This question incidentally came up for discussion in some of the
judgments in A. K. Gopalan v. State of Madras [AIR 1950 SC 27] and the observations made by Patanjali
Sastri, J., Mukherjea, J., and S. R. Das, J., seemed to place a narrow interpretation on the words ‘personal
liberty’ so as to confine the protection of Article 21 to freedom of the person against unlawful detention. But
there was no definite pronouncement made on this point since the question before the Court was not so much
the interpretation of the words ‘personal liberty’ as the inter-relation between Articles 19 and 21. It was in
Kharak Singh v. State of U. P. [AIR 1963 SC 1295], that the question as to the proper scope and meaning of
the expression ‘personal liberty’ came up pointedly for consideration for the first time before this Court. The
majority of the Judges took the view “that ‘personal liberty’ is used in the article as a compendious term to
include within itself all the varieties of rights which go to make up the ‘personal liberties’ of man other than
those dealt with in the several clauses of Article 19(1). In other words, while Article 19(1) deals with particular
species or attributes of that freedom, ‘personal liberty’ in Article 21 takes in and comprises the residue”. The
minority judges, however, disagreed with this view taken by the majority and explained their position in the
following words: “No doubt the expression ‘personal liberty’ is a comprehensive one and the right to move
freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal
liberty and, therefore, the expression ‘personal liberty’ in Article 21 excludes that attribute. In our view, this is
not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no
question of one being carved out of another. The fundamental right of life and personal liberty has many
attributes and some of them are found in Article 19. If a person’s fundamental right under Article 21 is
infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the
said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are
concerned.” There can be no doubt that in view of the decision of this Court in R. C. Cooper v. Union of
India, the minority view must be regarded as correct and the majority view must be held to have been
overruled. We shall have occasion to analyse and discuss the decision in R. C. Cooper’s case a little later when
we deal with the arguments based on infraction of Articles 19(l)(a) and 19(l)(g), but it is sufficient to state for
the present that according to this decision, which was a decision given by the full Court, the fundamental rights
conferred by Part III are not distinct and mutually exclusive rights. Each freedom has different dimensions and
merely because the limits of interference with one freedom are satisfied, the law is not freed from the necessity
to meet the challenge of another guaranteed freedom. The decision in A. K. Gopalan case gave rise to the
theory that the freedoms under Articles 19, 21, 22 and 31 are exclusive - each article enacting a code relating
to the protection of distinct rights, but this theory was overturned in R. C. Cooper case where Shah, J.,
speaking on behalf of the majority pointed out that “Part III of the Constitution weaves a pattern of guarantees
on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted
fields they do not attempt to enunciate distinct rights.” The conclusion was summarised in these terms: “In our
judgment, the assumption in A. K. Gopalan case that certain articles in the Constitution exclusively deal with
specific matters - cannot be accepted as correct”. It was held in R. C. Cooper case - and that is clear from the
judgment of Shah, J., because Shah, J., in so many terms disapproved of the contrary statement of law
contained in the opinions of Kania, C.J., Patanjali Sastri, J., Mahajan, J., Mukherjea, J., and S. R. Das, J., in A.
K. Gopalan case - that even where a person is. detained in accordance with the procedure prescribed by law, as
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mandated by Article 21, the protection conferred by the various clauses of Article 19(1) does not cease to be
available to him and the law authorising such detention has to satisfy the test of the applicable freedoms under
Article 19, clause (1). This would clearly show that Articles 19(1) and 21 are not mutually exclusive, for, if
they were, there would be no question of a law depriving a person of personal liberty within the meaning of
Article 21 having to meet the challenge of a fundamental right under Article 19(1). Indeed, in that event, a law
of preventive detention which deprives a person of ‘personal liberty’ in the narrowest sense, namely, freedom
from detention and thus falls indisputably within Article 22 would not require to be tested on the touchstone of
clause (d) of Article 19(1) and yet it was held by a Bench of seven Judges of this Court in Shambhu Nath
Sarkar v. The State of West Bengal [AIR 1973 SC 1425] that such a law would have to satisfy the
requirement inter alia of Article 19(1), clause (d) and in Haradhan Saha v. The State of West Bengal [(1975)
1 SCR 778], which was a decision given by a Bench of five Judges, this Court considered the challenge of
clause (d) of Article 19(1) to the constitutional validity of the Maintenance of Internal Security Act, 1971 and
held that that Act did not violate the constitutional guarantee embodied in that article. It is indeed difficult to
see on what principle we can refuse to give its plain natural meaning to the expression ‘personal liberty’ as
used in Article 21 and read it in a narrow and restricted sense so as to exclude those attributes of personal
liberty which are specifically dealt with in Article 19. We do not think that this would be a correct way of
interpreting the provisions of the Constitution conferring fundamental rights. The attempt of the Court should
be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by
a process of judicial construction. The wavelength for comprehending the scope and ambit of the fundamental
rights has been set by this Court in R.C. Cooper case and our approach in the interpretation of the fundamental
rights must now be in tune with this wave-length. We may point out even at the cost of repetition that this
Court has said in so many terms in R.C. Cooper case that each freedom has different dimensions and there
may be overlapping between different fundamental rights and therefore it is not a valid argument to say that
the expression ‘personal liberty’ in Article 21 must be so interpreted as to avoid overlapping between that
article and Article 19(1).
The expression ‘personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights
which go to constitute the personal liberty of man and some of them have been raised to the status of distinct
fundamental rights and given additional protection under Article 19. Now, it has been held by this Court in
Satwant Singh case that ‘personal liberty’ within the meaning of Article 21 includes within its ambit the right
to go abroad and consequently no person can be deprived of this right except according to procedure
prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a
person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to
the petitioner in Satwant Singh case was struck down as invalid. It will be seen at once from the language of
Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive
interference which is not supported by law; and law here means ‘enacted law’ or ‘state law’. Thus, no person
can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for
so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this
reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967
for regulating the right to go abroad. It is clear from the provisions of the Passports Act, 1967 that it lays down
the circumstances under which a passport may be issued or refused or cancelled or impounded and also
prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is
the prescription of some sort of procedure enough or must the procedure comply with any particular
requirements? Obviously, the procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded
by the learned Attorney General who with his usual candour frankly stated that it was not possible for him to
contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law. There was
some discussion in A. K. Gopalan case in regard to the nature of the procedure required to be prescribed under
Article 21 and at least three of the learned Judges out of five expressed themselves strongly in favour of the
view that the procedure cannot be any arbitrary, fantastic or oppressive procedure. Fazil Ali, J., who was in a
minority, went to the farthest limit in saying that the procedure must include the four essentials set out in Prof.
Willis’ book on Constitutional Law, namely, notice, opportunity to be heard, impartial tribunal and ordinary
course of procedure. Patanjali Sastri, J., did not go as far as that but he did say that “certain basic principles
emerged as the constant factors known to all those procedures and they formed the core of the procedure
established by law”. Mahajan, J., also observed that Article 21 requires that “there should be some form of
proceeding before a person can be condemned either in respect of his life or his liberty” and “it negatives the
idea of fantastic, arbitrary and oppressive forms of proceedings”. But apart altogether from these observations
in A. K. Gopalan case, which have great weight, we find that even on principle the concept of reasonableness
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must be projected in the procedure contemplated by Article 21, having regard to the impact of Article 14 on
Article 21.
The inter-relationship between Articles 14, 19 and 21
6. We may at this stage consider the inter-relation between Article 21 on the one hand and Articles 14 and
19 on the other. We have already pointed out that the view taken by the majority in A.K. Gopalan case was
that so long as a law of preventive detention satisfies the requirements of Article 22, it would be within the
terms of Article 21 and it would not be required to meet the challenge of Article 19. This view proceeded on
the assumption that “certain articles in the constitution exclusively deal with specific matters” and where the
requirements of an article dealing with the particular matter in question are satisfied and there is no
infringement of the fundamental right guaranteed by that article, no recourse can be had to a fundamental right
conferred by another article. This doctrine of exclusivity was seriously questioned in R.C. Cooper case and it
was over-ruled by a majority of the full Court, only Ray, J., as he then was, dissenting. The majority judges
held that though a law of preventive detention may pass the test of Article 22, it has yet to satisfy the
requirements of other fundamental rights such as Article 19. The ratio of the majority judgment in R.C.
Cooper case was explained in clear and categorical terms by Shelat, J., speaking on behalf of seven judges of
this Court in Shambhu Nath Sarkar v. The State of West Bengal. The learned Judge there said:
In Gopalan case the majority court had held that Article 22 was a self-contained Code and therefore a law
of preventive detention did not have to satisfy the requirements of Articles 19, 14 and 21. The view of
Fazil Ali, J., on the other hand, was that preventive detention was a direct breach of the right under Article
l9(l)(d) and that a law providing for preventive detention had to be subject to such judicial review as is
obtained under clause (5) of that article. In R.C. Cooper v. Union of India the aforesaid premise of the
majority in Gopalan case was disapproved and therefore it no longer holds the field. Though Cooper case
dealt with the inter-relationship of Article 19 and Article 31, the basic approach to construing the
fundamental rights guaranteed in the different provisions of the Constitution adopted in this cage held the
major premise of the majority in Gopalan’s case to be incorrect.
Subsequently, in Haradhan Saha v. State of West Bengal also, a Bench of five Judges of this Court, after
referring to the decisions in A.K. Gopalan case and R.C. Cooper case, agreed that the Maintenance of Internal
Security Act, 1971, which is a law of preventive detention, has to be tested in regard to its reasonableness with
reference to Article 19. That decision accepted and applied the ratio in R.C. Cooper case and Shambhu Nath
Sarkar case and proceeded to consider the challenge of Article 19, to the constitutional validity of the
Maintenance of Internal Security Act, 1971 and held that the Act did not violate any of the constitutional
guarantees enshrined in Article 19. The law, must, therefore, now be taken to be well settled that Article 21
does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of
‘personal liberty’ and there is consequently no infringement of the fundamental right conferred by Article 21,
such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the
challenge of that article. This proposition can no longer be disputed after the decisions in R. C. Cooper case,
Shambhu Nath Sarkar case and Haradhan Saha case. Now, if a law depriving a person of ‘personal liberty’
and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or
more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex-
hypothesi it must also be liable to be tested with reference to Article 14. This was in fact not disputed by the
learned Attorney General and indeed he could not do so in view of the clear and categorical statement made by
Mukherjea, J., in A.K. Gopalan case that Article 21 “presupposes that the law is a valid and binding law under
the provisions of the Constitution having regard to the competence of the legislature and the subject it relates
to and does not infringe any of the fundamental rights which the Constitution provides for”, including Article
14. This Court also applied Article 14 in two of its earlier decisions, namely, The State of West Bengal v.
Anwar Ali Sarkar and Kathi Raning Rawat v. The State of Saurashtra where there was a special law
providing for trial of certain offences by a speedier process which took away some of the safeguards available
to an accused under the ordinary procedure in the Criminal Procedure Code. The special law in each of these
two cases undoubtedly prescribed a procedure for trial of the specified offences and this procedure could not
be condemned as inherently unfair or unjust and there was thus compliance with the requirement of Article 21,
but even so, the validity of the special law was tested before the Supreme Court on the touchstone of Article 14
and in one case, namely, Kathi Raning Rawat case, the validity was upheld and in the other, namely, Anwar
Ali Sarkar case, it was struck down. It was held in both these cases that the procedure established by the
special law must not be violative of the equality clause. That procedure must answer the requirement of Article
14.
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The nature and requirement of the procedure under Article 21
7. Now, the question immediately arises as to what is the requirement of Article 14: what is the content
and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a
founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our
democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach-
No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate
its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be
imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the
majority in E.P. Royappa v. State of Tamil Nadu [(1974) 2 SCR 348], namely, that “from a positivistic point
of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs
to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act
is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is
therefore violative of Article 14”. Article 14 strikes at arbitrariness in State action and ensures fairness and
equality of-treatment. The principle of reasonableness, which legally as well as philosophically, is an essential
element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure
contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14.
It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it .would be no
procedure at all and the requirement of Article 21 would not be satisfied.
How far natural justice is an essential element of ‘procedure established by law
8. The question immediately arises: does the procedure prescribed by the Passports Act, 1967 for
impounding a passport meet the test of this requirement? Is it ‘right or fair or just’? The argument of the
petitioner was that it is not, because it provides for impounding of a passport without affording reasonable
opportunity to the holder of the passport to be heard in defence. To impound the passport of a person, said the
petitioner, is a serious matter, since it prevents him from exercising his constitutional right to go abroad and
such a drastic consequence cannot in fairness be visited without observing the principle of audi alteram
partem. Any procedure which permits impairment of the constitutional right to go abroad without giving
reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the
present case clear infringement of the requirement of Article 21. Now, it is true that there is no express
provision in the Passports Act, 1967 which requires that the audi alteram partem rule should be followed
before impounding a passport, but that is not conclusive of the question. If the statute makes itself clear on this
point, then no more question arises. But even when the statute is silent, the law may in a given case make an
implication and apply the principle stated by Byles, J., in Cooper v. Wandswort Board of Works [(1861-73)
All ER Rep 1554]:
A long course of decisions, beginning with Dr Bentley’s case and ending with some very recent
cases, establish that, although there are no positive works in the statute requiring that the party shall be
heard, yet the justice of the common law will supply the omission of the legislature.
The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the
rules of natural justice. In fact, there are two main principles in which the rules of natural justice are
manifested, namely, nemo judex in causa sua and audi alteram partem. We are not concerned here with the
former, since there is no case of bias urged here. The question is only in regard to the right of hearing which
involves the audi alteram partem rule. Can it be imported in the procedure for impounding a passport?
14. Now, as already pointed out, the doctrine of natural justice consists principally of two rules, namely,
nemo debet esse judex in propria causa: no one shall be a judge in his own cause, and audi alteram partem: no
decision shall be given against a party without affording him a reasonable hearing. We are concerned here with
the second rule and hence we shall confine ourselves only to a discussion of that rule. The learned Attorney
General, appearing on behalf of the Union of India, fairly conceded that the audi alteram partem rule is a
highly effective tool devised by the courts to enable a statutory authority to arrive at a just decision and it is
calculated to act as a healthy check on abuse or misuse of power and hence its reach should not be narrowed
and its applicability circumscribed. He rightly did not plead for reconsideration of the historic advances made
in the law as a result of the decisions of this Court and did not suggest that the Court should retrace its steps.
That would indeed have been a most startling argument coming from the Government of India and for the
Court to accede to such an argument would have been an act of utter retrogression. But fortunately no such
argument was advanced by the learned Attorney General. What he urged was a very limited contention,
namely, that having regard to the nature of the action involved in the impounding of a passport, the audi
alteram partem rule must be held to be excluded, because if notice were to be given to the holder of the
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passport and reasonable opportunity afforded to him to show cause why his passport should not be impounded,
he might immediately, on the strength of the passport, make good his exit from the country and the object of
impounding the passport would be frustrated. The argument was that if the audi alteram partem rule were
applied, its effect would be to stultify the power of impounding the passport and it would defeat and paralyse
the administration of the law and hence the audi alteram partem rule cannot in fairness be applied while
exercising the power to impound a passport. This argument was sought to be supported by reference to the
statement of the law in S.A. de Smith’s Judicial Review of Administrative Action, 2nd ed, where the learned
author says at page 174 that “in administrative law a prima facie right to prior notice and opportunity to be
heard may be held to be excluded by implication...... where an obligation to give notice and opportunity to be
heard would obstruct the taking of prompt action, especially action of a preventive or remedial nature”. Now,
it is true that since the right to prior notice and opportunity of hearing arises only by implication from the duty
to act fairly, or to use the words of Lord Morris of Borth-y-Gest, from ‘fair-play in action’, it may equally be
excluded where, having regard to the nature of the action to be taken, its object and purpose and the scheme of
the relevant statutory provision, fairness in action does not demand its implication and even warrants its
exclusion. There are certain well recognised exceptions--to the audi alteram partem rule established by
judicial decisions and they are summarised by S.A. de Smith in Judicial Review of Administrative Action, 2nd
ed. pages 168 to 179. If we analyse these exceptions a little closely, it will be apparent that they do not in any
way militate against the principle which requires fair-play in administrative action. The word ‘exception’ is
really a misnomer because in these exclusionary cases, the audi alteram pattern rule is held inapplicable not
by way of an exception to “fair-play in action”, but because nothing unfair can be inferred by not affording an
opportunity to present or meet a case. The audi alteram partem rule is intended to inject justice into the law
and it cannot be applied to defeat the ends of justice, or to make the law ‘lifeless, absurd, stultifying, self-
defeating or plainly contrary to the common sense of the situation’. Since the life of the law is not logic but
experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic
realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be
heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the
situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the
field of administrative law and it must not be jettisoned save in very exceptional circumstances where
compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and the Court
should not be too ready to eschew it in its application to a given case. True it is that in questions of this kind a
fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional
methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the
audi alteram partem should be wholly excluded. The Court must make every effort to salvage this cardinal
rule to the maximum extent permissible in a given case. It must not be forgotten that “natural justice is
pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances”. The
audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer
situational modifications. The core of it must, however, remain, namely, that the person affected must have a
reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public
relations exercise. That is why Tucker, L.J., emphasised in Russel v. Duke of Norfolk (1949) 1 All ER 109
that “whatever standard of natural justice is adopted, one essential is that the person concerned should have a
reasonable opportunity of presenting his case”. What opportunity may be regarded as reasonable would
necessarily depend on the practical necessities of the situation. It may be a sophisticated full-fledged hearing or
it may be a hearing which is very brief and minimal: it may be a hearing prior to the decision or it may even be
a post-decisional remedial hearing.
The audi alteram partem rule is sufficiently flexible to permit modifications and variations to suit the
exigencies of myriad kinds of situations which may arise. This circumstantial flexibility of the audi alteram
partem rule was emphasised by Lord Reid in Wiseman v. Borneman when he said that he would be “sorry to
see this fundamental general principle degenerate into a series of hard and fast rules” and Lord Hailsham, L.C.,
also observed in Pearlberg v. Varty [(1971) 1 WLR 728] that the courts “have taken in increasingly
sophisticated view of what is required in individual cases”. It would not. therefore, be right to conclude that the
audi alteram partem rule is excluded merely because the power to impound a passport might be frustrated, if
prior notice and hearing were to be given to the person concerned before impounding his passport The
Passport Authority may proceed to impound the passport without giving any prior opportunity to the person
concerned to be heard, but as soon as the order impounding the passport is made, an opportunity of hearing,
remedial in aim, should be given to him so that he may present his case and controvert that of the Passport
Authority and point out why his passport should not be impounded and the order impounding it recalled. This
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should not only be possible but also quite appropriate, because the reasons for impounding the passport are
required to be supplied by the Passport Authority after the making of the order and the person affected would,
therefore, be in a position to make a representation setting forth his case and plead for setting aside the action
impounding his passport. A fair opportunity of being heard following immediately upon the order impounding
the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity
to the person concerned can and should be read by implication in the Passports Act, 1967. If such a provision
were held to be incorporated in the Passports Act, 1967 by necessary implication, as we hold it must be, the
procedure prescribed by the Act for impounding a passport would be right, fair and just and it would not suffer
from the vice of arbitrariness or unreasonableness. We must, therefore, hold that the procedure ‘established’ by
the Passports Act, 1967 for impounding a passport is in conformity with the requirement of Article 21 and
does not fall foul of that article.
15. But the question then immediately arises whether the Central Government has complied with this
procedure in impounding the passport of the petitioner. Now, it is obvious and indeed this could not be
controverted, that the Central Government not only did not give an opportunity of hearing to the petitioner
after making the impugned order impounding her passport but even declined to furnish to the petitioner the
reasons for impounding her passport despite request made by her. We have already pointed out that the Central
Government was wholly unjustified in withholding the reasons for impounding the passport from the petitioner
and this was not only in breach of the statutory provision, but it also amounted to denial of opportunity of
hearing to the petitioner. The order impounding the passport of the petitioner was, therefore, clearly in
violation of the rule of natural justice embodied in the maxim audi alteram partem and it was not in
conformity with the procedure prescribed by the Passports Act, 1967. Realising that this was a fatal defect
which would void the order impounding the passport, the learned Attorney General made a statement on behalf
of the Government of India to the following effect:
1. The Government is agreeable to considering any representation that may be made by the
petitioner in respect of the impounding of her passport and giving her an opportunity in the matter.
The opportunity will be given within two weeks of the receipt of the representation. It is clarified that
in the present case the grounds for impounding the passport are those mentioned in the affidavit in
reply dated August 18,, 1977 of Shri Ghosh except those mentioned in para 2(xi).
2. The representation of the petitioner will be dealt with expeditiously in accordance with law.
This statement removes the vice from the order impounding the passport and it can no longer be assailed on
the ground that it does not comply with the audi alteram partem rule or is not in accord with the procedure
prescribed by the Passports Act, 1967.
Is Section 10(3)(c) violative of Article 14?

16. That takes us to the next question whether Section 10(3)(c) is violative of any of the fundamental
rights guaranteed under Part III of the Constitution. Only two articles of the Constitution are relied upon for
this purpose and they are Articles 14 and 19(l)(a) and (g). We will first dispose of the challenge based on
Article 14 as it lies in a very narrow compass. The argument under this head of challenge was that Section
10(3)(c) confers unguided and unfettered power on the Passport Authority to impound a passport and hence it
is violative of the equality clause contained in Article 14. It was conceded that under Section 10(3)(c) the
power to impound a passport can be exercised only upon one or more of the stated grounds, but the complaint
was that the ground of “interests of the general public” was too vague and indefinite to afford any real
guidance to the Passport Authority and the Passport Authority could, without in any way violating the terms of
the section, impound the passport of one and not of another, at its discretion. Moreover, it was said that when
the order impounding a passport is made by the Central Government, there is no appeal or revision provided
by the statute and the decision of the Central Government that it is in public interest to impound a passport is
final and conclusive. The discretion vested in the Passport Authority, and particularly in the Central
Government, is thus unfettered and unrestricted and this is plainly in violation of Article 14. Now, the law is
well settled that when a statute vests unguided and unrestricted power in an authority to affect the rights of a
person without laying down any policy or principle which is to guide the authority in exercise of this power, it
would be affected by the vice of discrimination since it would leave it open to the authority to discriminate
between persons and things similarly situated. But here it is difficult to say that the discretion conferred on the
Passport Authority is arbitrary or unfettered. There are four grounds set out in Section 10(3)(c) which would
justify the making of an order impounding a passport. We are concerned only with the last ground denoted by
the words “in the interests of the general public”, for that is the ground which is attacked as vague and
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indefinite. We fail to see how this ground can, by any stretch of argument, be characterised as vague or
undefined. The words “in the interests of the general public” have a clearly well defined meaning and the
courts have often been called upon to decide whether a particular action is “in the interests of the general
public” or in “public interest” and no difficulty has been experienced by the courts in carrying out this
exercise. These words are in fact borrowed ipsissima verba from Article 19(5) and we think it would be
nothing short of heresy to accuse the constitution-makers of vague and loose thinking.
The legislature performed a scissors and paste operation in lifting these words out of Article 19(5) and
introducing them in Section 10(3)(c) and if these words are not vague and indefinite in Article 19(5), it is
difficult to see how they can be condemned to be such when they occur in Section 10(3)(c). How can Section
10(3)(c) be said to incur any constitutional infirmity on account of these words when they are no wider than
the constitutional provision in Article 19(5) and adhere loyally to the verbal formula adopted in the
Constitution? We are clearly of the view that sufficient guidelines are provided by the words “in the interests
of the general public” and the power conferred on the Passport Authority to impound a passport cannot be said
to be unguided or unfettered. Moreover, it must be remembered that the exercise of this power is not made
dependent on the subjective opinion of the Passport Authority as regards the necessity of exercising it on one
or more of the grounds stated in the section, but the Passport Authority is required to record in writing a brief
statement of reasons for impounding the passport and, save in certain exceptional circumstances, to supply a
copy of such statement to the person affected, so that the person concerned can challenge the decision of the
Passport Authority in appeal and the appellate authority can examine whether the reasons given by the
Passport Authority are correct, and if so, whether they justify the making of the order impounding the passport.
It is true that when the order impounding a passport is made by the Central Government, there is no appeal
against it, but it must be remembered that in such a case the power is exercised by the Central Government
itself and it can safely be assumed that the Central Government will exercise the power in a reasonable and
responsible manner. When power is vested in a high authority like the Central Government, abuse of power
cannot be lightly assumed. And in any event, if there is abuse of power, the arms of the Court are long enough
to reach it and to strike it down. The power conferred on the Passport Authority to impound a passport under
Section 10(3)(c) cannot, therefore, be regarded as discriminatory and it does not fall foul of Article 14. But
every exercise of such power has to be tested in order to determine whether it is arbitrary or within the
guidelines provided in Section 10(3)(c).
Conflicting approaches for locating the fundamental right violated: Direct and inevitable effect test.
17. We think it would be proper at this stage to consider the approach to be adopted by the Court in
adjudging the constitutionality of a statute on the touchstone of fundamental rights. What is the test or
yardstick to be applied for determining whether a statute infringes a particular fundamental right? The law on
this point has undergone radical change since the days of A.K. Gopalan case. That was the earliest decision of
this Court on the subject, following almost immediately upon the commencement of the Constitution. The
argument which arose for consideration in this case was that the preventive detention order results in the
detention of the applicant in a cell and hence it contravenes the fundamental rights guaranteed under clauses
(a),(b),(c),(d),(e) and (g) of Article 19(1). This argument was negatived by Kania, C.J., who pointed out that:
“The true approach is only to consider the directness of the legislation and not what will be the result of the
detention, otherwise valid, on the mode of the detenue’s life.....Any other construction put on the Article…
will be unreasonable.” These observations were quoted with approval by Patanjali Sastri, J., speaking on
behalf of the majority in Ram Singh v. State of Delhi [AIR 1951 SC 270]. There, the detention of the
petitioner was ordered with a view to preventing him from making any speeches prejudicial to the maintenance
of public order and the argument was that the order of detention was invalid as it infringed the right of free
speech and expression guaranteed under. Article 19(l)(a). The Court took the view that the direct object of the
order was preventive detention and not the infringement of the right of freedom of speech and expression,
which was merely consequential upon the detention of the detenue and upheld the validity of the order. The
decision in A.K. Gopalan case, followed by Ram Singh case, gave rise to the theory that the object and form
of State action determine the extent of protection which may be claimed by an individual and the validity of
such action has to be judged by considering whether it is “directly in respect of the subject covered by any
particular article of the Constitution or touches the said article only incidentally or indirectly”. The test to be
applied for determining the constitutional validity of State action with reference to fundamental rights is: what
is the object of the authority in taking the action: what is the subject-matter of the action and to which
fundamental right does it relate? This theory that “the extent of protection of important guarantees, such as the
liberty of person and right to property, depend upon the form and object of the State action and not upon its

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direct operation upon the individual’s freedom” held sway for a considerable time and was applied in Naresh
Shridhar Mirajkar v. State of Maharashtra [AIR 1967 SC 1] to sustain an order made by the High Court in a
suit for defamation prohibiting the publication of the evidence of a witness.
This Court, after referring to the observations of Kania, C.J., in A.K. Gopalan case and noting that they
were approved by the Full Court in Ram Singh case, pointed out that the object of the impugned order was to
give protection to the witness in order to obtain true evidence in the case with a view to do justice between the
parties and if incidentally it overrated to prevent the petitioner from reporting the proceedings of the Court in
the press, it could not be said to contravene Article 19(l)(a).
19. It was only R.C. Cooper case that the doctrine that the object and form of the State action alone
determine the extent of protection that may be claimed by an individual and that the effect of the State action
on the fundamental right of the individual is irrelevant, was finally rejected. It may be pointed out that this
doctrine is in substance and reality nothing else than the test of pith and substance which is applied for
determining the constitutionality of legislation where there is conflict of legislative powers conferred on
Federal and State Legislatures with reference to legislative Lists. The question which is asked in such cases is:
what is the pith and substance of the legislations; if it “is within the express powers, then it is not invalidated if
incidentally it effects matters which are outside the authorised field”. Here also, on the application of this
doctrine, the question that is required to be considered is: what is the pith and substance of the action of the
State, or in other words, what is its true nature and character; if it is in respect of the subject covered by any
particular fundamental right, its validity must be judged only by reference to that fundamental right and it is
immaterial that it incidentally affects another fundamental right. Mathew, J., in his dissenting judgment in
Bennett Coleman & Co. v. Union of India recognised the likeness of this doctrine to the pith and substance
test and pointed out that “the pith and substance test, although not strictly appropriate, might serve a useful
purpose” in determining whether the State action infringes a particular fundamental right. But in R.C. Cooper
case, which was a decision given by the full Court consisting of eleven judges, this doctrine was thrown
overboard and it was pointed out by Shah, J., speaking on behalf of the majority:
(I)t is not the object of the authority making the law impairing the right of a citizen, nor the form of
action that determines the protection he can claim; it is the effect of the law and of the action upon the
right which attract the jurisdiction of the Court to grant relief. If this be the true view, and we think it
is, in determining the impact of State action upon constitutional guarantees which are fundamental, it
follows that the extent of protection against impairment of a fundamental right is determined not by
the object of the Legislature nor by the form of the action, but by its direct operation upon the
individual’s rights.
We are of the view that the theory that the object and form of the State action determine the extent
of protection which the aggrieved party may claim is not consistent with the constitutional scheme....
In our judgment, the assumption in A. K. Gopalan case that certain articles in the Constitution
exclusively deal with specific matters and in determining whether there is infringement of the
individual’s guaranteed rights, the object and the form of the State action alone need be considered,
and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be
accepted as correct.
The decision in R.C. Cooper case thus overturned the view taken in A.K. Gopalan case and, as pointed out by
Ray, J., speaking on behalf of the majority in Bennett Coleman case, it laid down two inter-related
propositions, namely:
First, it is not the object of the authority making the law impairing the right of the citizen nor the form
of action that determines the invasion of the right. Secondly, it is the effect of the law and the action
upon the right which attracts the jurisdiction of the Court to grant relief. The direct operation of the
Act upon the rights forms the real test.
The decision in Bennett Coleman case, followed upon R.C. Cooper case and it is an important and significant
decision, since it elaborated and applied the thesis laid down in R. C. Cooper case. The State action which was
impugned in Bennett Coleman case was newsprint policy which inter alia imposed a maximum limit of ten
pages for every newspaper but without permitting the newspaper to increase the number of pages by reducing
circulation to meet its requirement even within the admissible quota. These restrictions were said to be
violative of the right of free speech and expression guaranteed under Article 19(l)(a) since their direct and
inevitable consequence was to limit the number of pages which could be published by a newspaper to ten. The
argument of the Government was that the object of the newsprint policy was rationing and equitable
distribution of imported newsprint which was scarce commodity and not abridgement of freedom of speech
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and expression. The subject-matter of the import policy was “rationing of imported commodity and equitable
distribution of newsprint” and the newsprint policy did not directly and immediately deal with the right
mentioned in Article 19(l)(a) and hence there was no violation of that article. This argument of the
Government was negatived by the majority. The majority took the view that it was not the object of the
newsprint policy or its subject-matter which was determinative but its direct consequence or effect upon the
rights of the newspapers and since “the effect and consequence of the impugned policy upon the newspapers”
was direct control and restriction of growth and circulation of newspapers, the newsprint policy infringed
freedom of speech and expression and was hence violative of Article 19(l)(a). The pith and substance theory
was thus negatived in the clearest term and the test applied was as to what is the direct and inevitable
consequence or effect of the impugned State action on the fundamental right of the petitioner. It is possible that
in a given case the pith and substance of the State action may deal with a particular fundamental right but its
direct and inevitable effect may be on another fundamental right and in that case, the State action would have
to meet the challenge of the latter fundamental right. The pith and substance doctrine looks only at the object
and subject-matter of the State action, but in testing the validity of the State action with reference to
fundamental rights, what the Court must consider is the direct and inevitable consequence of the State action.
Otherwise, the protection of the fundamental rights would be subtly but surely eroded.
20. It may be recalled that the test formulated in R.C. Cooper case merely refers to ‘direct operation’ or
‘direct consequence and effect’ of the State action on the fundamental right of the petitioner and does not use
the word ‘inevitable’ in this connection. But there can be no doubt, on a reading of the relevant observations of
Shah, J., that such was the test really intended to be laid down by the Court in that case. If the test were merely
of direct or indirect effect, it would be an open-ended concept and in the absence of operational criteria for
judging ‘directness’, it would give the Court an unquantifiable discretion to decide whether in a given case a
consequence or effect is direct or not. Some other concept-vehicle would be needed to quantify the extent of
directness or indirectness in order to apply the test. And that is supplied by the criterion of ‘inevitable’
consequence or effect adumbrated in the Express Newspapers’ case. This criterion helps to quantify the extent
of directness necessary to constitute infringement of a fundamental right. Now, if the effect of State action on
fundamental right is direct and inevitable, then a fortiori it must be presumed to have been intended by the
authority taking the action and hence this doctrine of direct and inevitable effect has been described by some
jurists as the doctrine of intended and real effect. This is the test which must be applied for the purpose of
determining whether Section 10(3)(c) or the impugned order made under it is violative of Article 19(l)(a) or
(g).
*****

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Justice K. S. Puttaswamy (Retd.) v. Union of India
(2017) SCC 420; [2017] 6 MLJ 267
Corum:: Jagdish Singh Khehar, R. K. Agrawal, Dr. D. Y. Chandrachud, S. Abdul Nazeer, J.

Chelameswar, S. A. Bobde, R.F. Nariman, Abhay Manohar Sapre and Sanjay Kishan
Kaul
Judgment: Dr. D. Y. Chandrachud, (for Jagdish Singh Khehar CJ, Shri Justice R K Agrawal, and
Shri Justice S Abdul Nazeer)
Constitution--Fundamental Right--Right to Privacy--Constitution of India, 1950, Articles 12, 14,

19, 20(3), 21 and 25--While considering constitutional challenge to Aadhaar card Scheme of Union
Government, three judges Bench of present Court noted that norms for and compilation of
demographic biometric data by Government questioned on ground that it violated right to privacy--
As it was felt that institutional integrity and judicial discipline would require reference to larger
Bench, same referred to Constitution Bench--Constitution Bench considered it appropriate that issue
as to whether right of privacy was fundamental right to be resolved by nine Judges Bench, same
referred to present Bench--Whether right to privacy is fundamental right guaranteed under
Constitution--Held, privacy is constitutionally protected right which emerges primarily from
guarantee of life and personal liberty in Article 21--Elements of privacy also arise in varying contexts
from other facets of freedom and dignity recognised and guaranteed by fundamental rights contained
in Part III--Judicial recognition of existence of constitutional right of privacy is not exercise in nature
of amending Constitution nor Court embarking on constitutional function of that nature entrusted to
Parliament--Like other rights which form part of fundamental freedoms protected by Part III, privacy
is not absolute right--Law which encroaches upon privacy will have to withstand touchstone of
permissible restrictions on fundamental rights--In context of Article 21, invasion of privacy must be
justified on basis of law which stipulates procedure which is fair, just and reasonable--Law must also
be valid with reference to encroachment on life and personal liberty under Article 21--Invasion of life
or personal liberty must meet three-fold requirement of legality, which postulates existence of law,
need defined in terms of legitimate State aim and proportionality which ensures rational nexus
between objects and means adopted to achieve them--Privacy has both positive and negative content-
-Negative content restrains State from committing intrusion upon life and personal liberty of citizen
and its positive content imposes obligation on State to take necessary measures to protect privacy of
individual--Informational privacy is facet of right to privacy and dangers to privacy in age of
information can originate not only from State but from non-State actors as well--Union Government
to examine and put into place robust regime for data protection--Creation of such regime requires
careful and sensitive balance between individual interests and legitimate concerns of State--
Legitimate aims of State would include for instance protecting national security, preventing and
investigating crime, encouraging innovation and spread of knowledge, and preventing dissipation of
social welfare benefits--Such matters of policy to be considered by Union Government while
designing structured regime for data protection--Since committee chaired by former Judge of present
Court constituted, for that purpose, matter shall be dealt with appropriately by Union Government--
Reference answered accordingly.
Dr. D. Y. CHANDRACHUD, J.
This judgment has been divided into sections to facilitate analysis. They are :

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A The reference
B Decision in M P Sharma
1 Decision in Kharak Singh
D Gopalan doctrine: fundamental rights as isolated silos
E Cooper and Maneka : Interrelationship between rights
F Origins of privacy
G Natural and inalienable rights
2 Evolution of the privacy doctrine in India
I The Indian Constitution
o Preamble
o Jurisprudence on dignity
o Fundamental Rights cases
o No waiver of Fundamental Rights
o Privacy as intrinsic to freedom and liberty
o Discordant Notes :
(i) ADM Jabalpur
(ii) Suresh Koushal
J India's commitments under International law

K Comparative law on privacy
(i) UK decisions
(ii) US Supreme Court decisions
(iii) Constitutional right to privacy in South Africa
(iv) Constitutional right to privacy in Canada
(v) Privacy under the European Convention on Human Rights and the European
Charter
(vi) Decisions of the Inter-American Court of Human Rights
L Criticisms of the privacy doctrine

a Thomson's Reductionism
b Posner's Economic critique
c Bork's critique
d Feminist critique
M Constituent Assembly and privacy: limits of originalist interpretation

N Is the statutory protection to privacy reason to deny a constitutional right?
O Not an elitist construct
P Not just a common law right
Q Substantive Due Process
R Essential nature of privacy
S Informational privacy
T Conclusions
A The reference
1. Nine judges of this Court assembled to determine whether privacy is a constitutionally
protected value. The issue reaches out to the foundation of a constitutional culture based on the
protection of human rights and enables this Court to revisit the basic principles on which our
Constitution has been founded and their consequences for a way of life it seeks to protect. This case
presents challenges for constitutional interpretation. If privacy is to be construed as a protected
constitutional value, it would redefine in significant ways our concepts of liberty and the entitlements
that flow out of its protection.

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2. Privacy, in its simplest sense, allows each human being to be left alone in a core which is
inviolable. Yet the autonomy of the individual is conditioned by her relationships with the rest of
society. Those relationships may and do often pose questions to autonomy and free choice. The
overarching presence of state and non-state entities regulates aspects of social existence which bear
upon the freedom of the individual. The preservation of constitutional liberty is, so to speak, work in
progress. Challenges have to be addressed to existing problems. Equally, new challenges have to be
dealt with in terms of a constitutional understanding of where liberty places an individual in the
context of a social order. The emergence of new challenges is exemplified by this case, where the
debate on privacy is being analysed in the context of a global information based society. In an age
where information technology governs virtually every aspect of our lives, the task before the Court is
to impart constitutional meaning to individual liberty in an interconnected world. While we revisit the
question whether our constitution protects privacy as an elemental principle, the Court has to be
sensitive to the needs of and the opportunities and dangers posed to liberty in a digital world.
3. A Bench of three judges of this Court, while considering the constitutional challenge to the
Aadhaar card scheme of the Union government noted in its order dated 11 August 2015 that the
norms for and compilation of demographic biometric data by government was questioned on the
ground that it violates the right to privacy. The Attorney General for India urged that the existence of
a fundamental right of privacy is in doubt in view of two decisions : the first - M P Sharma v Satish
Chandra, District Magistrate, Delhi1 ("M P Sharma") was rendered by a Bench of eight judges
and the second, in Kharak Singh v State of Uttar Pradesh2 ("Kharak Singh") was rendered by a
Bench of six judges. Each of these decisions, in the submission of the Attorney General, contained
observations that the Indian Constitution does not specifically protect the right to privacy. On the
other hand, the submission of the petitioners was that M P Sharma and Kharak Singh were
founded on principles expounded in A K Gopalan v State of Madras3 ("Gopalan"). Gopalan,
which construed each provision contained in the Chapter on fundamental rights as embodying a
distinct protection, was held not to be good law by an eleven-judge Bench in Rustom Cavasji
Cooper v Union of India4 ("Cooper"). Hence the petitioners submitted that the basis of the two
earlier decisions is not valid. Moreover, it was also urged that in the seven-judge Bench decision in
Maneka Gandhi v Union of India5 ("Maneka"), the minority judgment of Justice Subba Rao in
Kharak Singh was specifically approved of and the decision of the majority was overruled.
4. While addressing these challenges, the Bench of three judges of this Court took note of
several decisions of this Court in which the right to privacy has been held to be a constitutionally
protected fundamental right. Those decisions include : Gobind v State of Madhya Pradesh6
("Gobind"), R Rajagopal v State of Tamil Nadu7 ("Rajagopal") and People's Union for Civil
Liberties v Union of India8 ("PUCL"). These subsequent decisions which affirmed the existence of
a constitutionally protected right of privacy, were rendered by Benches of a strength smaller than
those in M P Sharma and Kharak Singh. Faced with this predicament and having due regard to the
far-reaching questions of importance involving interpretation of the Constitution, it was felt that
institutional integrity and judicial discipline would require a reference to a larger Bench. Hence the
Bench of three learned judges observed in its order dated 11 August 2015:
"12. We are of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the
Constitution.What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21.
If the observations made in M.P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this
country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21
would be denuded of vigour and vitality. At the same time, we are also of the opinion that the institutional integrity and judicial
discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without
appropriately explaining the reasons for not following the pronouncements made by such larger Benches. With due respect to all the
learned Judges who rendered the subsequent judgments - where right to privacy is asserted or referred to their Lordships concern for
the liberty of human beings, we are of the humble opinion that there appears to be certain amount of apparent unresolved
contradiction in the law declared by this Court.
13. Therefore, in our opinion to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better
that the ratio decidendi of M.P. Sharma (supra) and Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the
subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by
a Bench of appropriate strength."

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7. The correctness of the decisions in M P Sharma and Kharak Singh, is to be evaluated
during the course of the reference. Besides, the jurisprudential correctness of subsequent decisions
holding the right to privacy to be a constitutionally protected right is to be determined. The basic
question whether privacy is a right protected under our Constitution requires an understanding of
what privacy means. For it is when we understand what interests or entitlements privacy safeguards,
that we can determine whether the Constitution protects privacy. The contents of privacy need to be
analysed, not by providing an exhaustive enunciation or catalogue of what it includes but by
indicating its broad contours. The Court has been addressed on various aspects of privacy including :
(i) Whether there is a constitutionally protected right to privacy; (ii) If there is a constitutionally
protected right, whether this has the character of an independent fundamental right or whether it
arises from within the existing guarantees of protected rights such as life and personal liberty; (iii) the
doctrinal foundations of the claim to privacy; (iv) the content of privacy; and (v) the nature of the
regulatory power of the state.
B Decision in M P Sharma
8. An investigation was ordered by the Union government under the Companies Act into the
affairs of a company which was in liquidation on the ground that it had made an organized attempt to
embezzle its funds and to conceal the true state of its affairs from the share-holders and on the
allegation that the company had indulged in fraudulent transactions and falsified its records. Offences
were registered and search warrants were issued during the course of which, records were seized. The
challenge was that the searches violated the fundamental rights of the petitioners under Article
19(1)(f) and Article 20(3) of the Constitution. The former challenge was rejected. The question which
this Court addressed was whether there was a contravention of Article 20(3). Article 20(3) mandates
that no person accused of an offence shall be compelled to be a witness against himself. Reliance was
placed on a judgment9 of the US Supreme Court holding that obtaining incriminating evidence by an
illegal search and seizure violates the Fourth and Fifth Amendments of the American Constitution.
While tracing the history of Indian legislation, this Court observed that provisions for search were
contained in successive enactments of the Criminal Procedure Code. Justice Jagannadhadas, speaking
for the Bench, held that a search or seizure does not infringe the constitutional right guaranteed by
Article 20(3) of the Constitution:
"...there is no basis in the Indian law for the assumption that a search or seizure of a thing or document is in itself to be treated
as compelled production of the same. Indeed a little consideration will show that the two are essentially different matters for the
purpose relevant to the present discussion. A notice to produce is addressed to the party concerned and his production in compliance
therewith constitutes a testimonial act by him within the meaning of Article 20(3) as above explained. But a search warrant is
addressed to an officer of the Government, generally a police officer. Neither the search nor the seizure are acts of the occupier of the
searched premises. They are acts of another to which he is obliged to submit and are, therefore, not his testimonial acts in any
sense."10
9. Having held that the guarantee against self-incrimination is not offended by a search and
seizure, the Court observed that :
"A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social
security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such
regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the Fourth Amendment,
we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it
legitimate to assume that the constitutionalprotection under Article 20(3) would be defeated by the statutory provisions for
searches."11 (emphasis supplied)
10. These observations - to be more precise in one sentence - indicating that the Constitution
makers did not subject the regulation by law of the power of search and seizure to a fundamental
right of privacy, similar to the Fourth amendment of the US Constitution, have been pressed in aid to
question the existence of a protected right to privacy under our Constitution.
C Decision in Kharak Singh
11. After being challaned in a case of dacoity in 1941, Kharak Singh was released for want of
evidence. But the police compiled a "history sheet" against him. 'History sheets' were defined in
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Regulation 228 of Chapter XX of the U P Police Regulations as "the personal records of criminals
under surveillance". Kharak Singh, who was subjected to regular surveillance, including midnight
knocks, moved this Court for a declaration that his fundamental rights were infringed. Among the
measures of surveillance contemplated by Regulation 236 were the following:
"(a) Secret picketing of the house or approaches to the houses of suspects;
(b) domiciliary visits at night;
(c) thorough periodical inquiries by officers not below the rank of sub-inspector into repute, habits, associations, income,
expenses and occupation;
(d) the reporting by constables and chaukidars of movements and absences from home;
(c) the verification of movements and absences by means of inquiry slips;
(f) the collection and record on a history-sheet of all information bearing on conduct."
12. This Court held that the freedom to move freely throughout the territory of India, guaranteed
by Article 19(1)(d) was not infringed by a midnight knock on the door of the petitioner since "his
locomotion is not impeded or prejudiced in any manner".
13. When the decision in Kharak Singh was handed down, the principles governing the inter-
relationship between the rights protected by Article 19 and the right to life and personal liberty under
Article 21 were governed by the judgment in Gopalan. Gopalan considered each of the articles in
the Chapter on fundamental rights as embodying distinct (as opposed to over-lapping) freedoms.
Hence in Kharak Singh, the Court observed :
16. Kharak Singh regards the sanctity of the home and the protection against unauthorized
intrusion an integral element of "ordered liberty". This is comprised in 'personal liberty' guaranteed
by Article 21. The decision invalidated domiciliary visits at night authorised by Regulation 236 (b),
finding them to be an unauthorized intrusion into the home of a person and a violation of the
fundamental right to personal liberty. However, while considering the validity of clauses (c),(d) and
(e) which provided for periodical enquiries, reporting by law enforcement personnel and verification
of movements, this Court held as follows :
"...the freedom guaranteed by Article 19(1)(d) is not infringed by a watch being kept over the movements of the suspect. Nor
do we consider that Article 21 has any relevance in the context as was sought to be suggested by learned Counsel for the petitioner.
As already pointed out, the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to
ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a
fundamental right guaranteed by Part III."17(emphasis supplied)
In the context of …. the above extract indicates the view of the majority that the right of privacy
is not guaranteed under the Constitution.
17. Justice Subba Rao dissented. Justice Subba Rao held that the rights conferred by Part III
have overlapping areas. Where a law is challenged as infringing the right to freedom of movement
under Article 19(1)(d) and the liberty of the individual under Article 21, it must satisfy the tests laid
down in Article 19(2) as well as the requirements of Article 21. Justice Subba Rao held that :
"No doubt the expression "personal liberty" is a comprehensive one and the right to move freely is an attribute of personal
liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression "personal liberty" in
Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is
overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty have many
attributes and some of them are found in Article 19. If a person's fundamental right under Article 21 is infringed, the State can rely
upon a law to sustain the action; but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2)
so far as the attributes covered by Article 19(1) are concerned. In other words, the State must satisfy that both the fundamental rights
are not infringed by showing that there is a law and that it does amount to a reasonable restriction within the meaning of Article 19(2)
of the Constitution. But in this case no such defence is available, as admittedly there is no such law. So the petitioner can legitimately
plead that his fundamental rights both under Article 19(1)(d) and Article 21 are infringed by the State." 18
Significantly, both Justice Rajagopala Ayyangar for the majority and Justice Subba Rao in his
dissent rely upon the observations of Justice Frankfurter in Wolf v Colorado which specifically
advert to privacy. The majority, while relying upon them to invalidate domiciliary visits at night,
regards the sanctity of the home as part of ordered liberty. In the context of other provisions of the
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regulation, the majority declines to recognise a right of privacy as a constitutional protection. Justice
Subba Rao recognised a constitutional by protected right to privacy, considering it as an ingredient of
personal liberty.
D Gopalan doctrine : fundamental rights as isolated silos
19. When eight judges of this Court rendered the decision in M P Sharma in 1954 and later, six
judges decided the controversy in Kharak Singh in 1962, the ascendant and, even well established,
doctrine governing the fundamental rights contained in Part III was founded on the Gopalan
principle. In Gopalan, Chief Justice Kania, speaking for a majority of five of the Bench of six judges,
construed the relationship between Articles 19 and 21 to be one of mutual exclusion. In this line of
enquiry, what was comprehended by Article 19 was excluded from Article 21. The seven freedoms of
Article 19 were not subsumed in the fabric of life or personal liberty in Article 21.The consequence
was that a law which curtailed one of the freedoms guaranteed by Article 19 would be required to
answer the tests of reasonableness prescribed by clauses 2 to 6 of Article 19 and those alone. In the
Gopalan perspective, free speech and expression was guaranteed by Article 19(1)(a) and was hence
excluded from personal liberty under Article 21.
E Cooper and Maneka : Interrelationship between rights

21. The theory that the fundamental rights are water-tight compartments was discarded in the
judgment of eleven judges of this Court in Cooper. Gopalan had adopted the view that a law of
preventive detention would be tested for its validity only with reference to Article 22, which was a
complete code relating to the subject. Legislation on preventive detention did not, in this view, have
to meet the touchstone of Article 19(1)(d). The dissenting view of Justice Fazl Ali in Gopalan was
noticed by Justice J C Shah, speaking for this Court, in Cooper. The consequence of the Gopalan
doctrine was that the protection afforded by a guarantee of personal freedom would be decided by the
object of the State action in relation to the right of the individual and not upon its effect upon the
guarantee. Disagreeing with this view, the Court in Cooper held thus :
"...it is necessary to bear in mind the enunciation of the guarantee of fundamental rights which has taken different forms. In
some cases it is an express declaration of a guaranteed right: Articles 29(1), 30(1), 26, 25 and 32; in others to ensure protection of
individual rights they take specific forms of restrictions on State action -- legislative or executive -- Articles 14, 15, 16, 20, 21, 22(1),
27 and 28; in some others, it takes the form of a positive declaration and simultaneously enunciates the restriction thereon: Articles
19(1) and 19(2) to (6); in some cases, it arises as an implication from the delimitation of the authority of the State, e.g. Articles 31(1)
and 31(2); in still others, it takes the form of a general prohibition against the State as well as others: Articles 17, 23 and 24. The
enunciation of rights either express or by implication does not follow a uniform pattern. But one thread runs through them:
they seek to protect the rights of the individual or groups of individuals against infringement of those rights within specific
limits. Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights. The guarantees
delimit the protection of those rights in their allotted fields: they do not attempt to enunciate distinct rights."24 (emphasis
supplied)
22. The abrogation of the Gopalan doctrine in Cooper was revisited in a seven-judge Bench
decision in Maneka. Justice P N Bhagwati who delivered the leading opinion of three Judges held
that the judgment in Cooper affirms the dissenting opinion of Justice Subba Rao (in Kharak Singh)
as expressing the valid constitutional position. Hence in Maneka, the Court held that:
"It was in Kharak Singh v. State of U.P. [AIR 1963 SC 1295 : (1964) 1 SCR 332 : (1963) 2 Cri LJ 329] that the question as to
the proper scope and meaning of the expression "personal liberty" came up pointedly for consideration for the first time before this
Court. The majority of the Judges took the view "that "personal liberty" is used in the article as a compendious term to include within
itself all the varieties of rights which go to make up the "personal liberties" of man other than those dealt with in the several clauses of
Article 19(1). In other words, while Article 19(1) deals with particular species or attributes of that freedom, 'personal liberty' in
Article 21 takes in and comprises the residue. The minority Judges, however, disagreed with this view taken by the majority and
explained their position in the following words: "No doubt the expression 'personal liberty' is a comprehensive one and the right to
move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and,
therefore, the expression 'personal liberty' in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are
independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The
fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person's fundamental
right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the
said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned." There can be no
doubt that in view of the decision of this Court in R.C. Cooper v. Union of India [(1970) 2 SCC 298 : (1971) 1 SCR 512] the
minority view must be regarded as correct and the majority view must be held to have been overruled."25 (emphasis supplied)

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23. Following the decision in Maneka, the established constitutional doctrine is that the
expression 'personal liberty' in Article 21 covers a variety of rights, some of which 'have been raised
to the status of distinct fundamental rights' and given additional protection under Article 19.
Consequently, in Satwant Singh Sawhney, the right to travel abroad was held to be subsumed within
Article 21 as a consequence of which any deprivation of that right could be only by a 'procedure
established by law'. Prior to the enactment of the Passports Act, 1967, there was no law regulating the
right to travel abroad as a result of which the order of the Passport Officer refusing a passport was
held to be invalid. The decision in Maneka carried the constitutional principle of the over-lapping
nature of fundamental rights to its logical conclusion. Reasonableness which is the foundation of the
guarantee against arbitrary state action under Article 14 infuses Article 21. A law which provides for
a deprivation of life or personal liberty under Article 21 must lay down not just any procedure but a
procedure which is fair, just and reasonable.
24. The decisions in M P Sharma and Kharak Singh adopted a doctrinal position on the
relationship between Articles 19 and 21, based on the view of the majority in Gopalan. ….
25. The doctrinal invalidation of the basic premise underlying the decisions in M P Sharma
and Kharak Singh still leaves the issue of whether privacy is a right protected by Part III of the
Constitution open for consideration. There are observations in both decisions that the Constitution
does not contain a specific protection of the right to privacy. …..
26. The decision in M P Sharma held that in the absence of a provision like the Fourth
Amendment to the US Constitution, a right to privacy cannot be read into the Indian Constitution.
The decision in M P Sharma did not decide whether a constitutional right to privacy is protected by
other provisions contained in the fundamental rights including among them, the right to life and
personal liberty under Article 21. Hence the decision cannot be construed to specifically exclude the
protection of privacy under the framework of protected guarantees including those in Articles 19 or
21. The absence of an express constitutional guarantee of privacy still begs the question whether
privacy is an element of liberty and, as an integral part of human dignity, is comprehended within the
protection of life as well.
27. The decision in Kharak Singh is noteworthy because while invalidating Regulation 236(b)
of the Police Regulations which provided for nightly domiciliary visits, the majority construed this to
be an unauthorized intrusion into a person's home and a violation of ordered liberty. While arriving
at this conclusion, the majority placed reliance on the privacy doctrine enunciated by Justice
Frankfurter, speaking for the US Supreme Court in Wolf v Colorado (the extract from Wolf cited
in the majority judgment specifically adverts to 'privacy' twice). Having relied on this doctrine to
invalidate domiciliary visits, the majority in Kharak Singh proceeded to repel the challenge to other
clauses of Regulation 236 on the ground that the right of privacy is not guaranteed under the
Constitution and hence Article 21 had no application. This part of the judgment in Kharak Singh is
inconsistent with the earlier part of the decision. The decision of the majority in Kharak Singh
suffers from an internal inconsistency.
F Origins of privacy
28. An evaluation of the origins of privacy is essential in order to understand whether (as the
Union of India postulates), the concept is so amorphous as to defy description. The submission of the
government is that the Court cannot recognize a juristic concept which is so vague and uncertain that
it fails to withstand constitutional scrutiny. This makes it necessary to analyse the origins of privacy
and to trace its evolution.
29. The Greek philosopher Aristotle spoke of a division between the public sphere of political
affairs (which he termed the polis) and the personal sphere of human life (termed oikos). This
dichotomy may provide an early recognition of "a confidential zone on behalf of the citizen"26.
Aristotle's distinction between the public and private realms can be regarded as providing a basis for
restricting governmental authority to activities falling within the public realm. On the other hand,
activities in the private realm are more appropriately reserved for "private reflection, familial
relations and self-determination"27.

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30. At a certain level, the evolution of the doctrine of privacy has followed the public- private
distinction. William Blackstone in his Commentaries on the Laws of England (1765) spoke
about this distinction while dividing wrongs into private wrongs and public wrongs. Private wrongs
are an infringement merely of particular rights concerning individuals and are in the nature of civil
injuries…..
31. John Stuart Mill in his essay, 'On Liberty' (1859) gave expression to the need to preserve
a zone within which the liberty of the citizen would be free from the authority of the state. According
to Mill :
"The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which
merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is
sovereign."28
While speaking of a "struggle between liberty and authority"29, Mill posited that the tyranny of
the majority could be reined by the recognition of civil rights such as the individual right to privacy,
free speech, assembly and expression.
32. Austin in his Lectures on Jurisprudence (1869) spoke of the distinction between the
public and the private realms : jus publicum and jus privatum.
The distinction between the public and private realms has its limitations. If the reason for
protecting privacy is the dignity of the individual, the rationale for its existence does not cease merely
because the individual has to interact with others in the public arena. The extent to which an
individual expects privacy in a public street may be different from that which she expects in the
sanctity of the home. Yet if dignity is the underlying feature, the basis of recognising the right to
privacy is not denuded in public spaces. The extent of permissible state regulation may, however,
differ based on the legitimate concerns of governmental authority.
33. James Madison, traced the recognition of an inviolable zone to an inalienable right to
property. Property is construed in the broadest sense to include tangibles and intangibles and
ultimately to control over one's conscience itself.
34. In an article published on 15 December 1890 in the Harvard Law Review, Samuel D
Warren and Louis Brandeis adverted to the evolution of the law to incorporate within it, the right
to life as "a recognition of man's spiritual nature, of his feelings and his intellect"31. As legal rights
were broadened, the right to life had "come to mean the right to enjoy life - the right to be let
alone". Recognizing that "only a part of the pain, pleasure and profit of life lay in physical things"
and that "thoughts, emotions, and sensations demanded legal recognition", Warren and Brandeis
revealed with a sense of perspicacity the impact of technology on the right to be let alone:
"Recent inventions and business methods call attention to the next step which must be taken for the protection of the person,
and for securing to the individual what Judge Cooley calls the right "to be let alone". Instantaneous photographs and newspaper
enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good
the prediction that "what is whispered in the closet shall be proclaimed from the house-tops." For years there has been a feeling that
the law must afford some remedy for the unauthorized circulation of portraits of private persons...
The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the
world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have
become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him
to mental pain and distress, far greater than could be inflicted by mere bodily injury." 32
In their seminal article, Warren and Brandeis observed that:

"The principle which protects personal writings and all other personal productions, not against theft and physical appropriation,
but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality."33
(emphasis supplied)
The right "to be let alone" thus represented a manifestation of "an inviolate personality", a core
of freedom and liberty from which the human being had to be free from intrusion. The technology
which provided a justification for the need to preserve the privacy of the individual was the
development of photography. The right to be let alone was not so much an incident of property as a
reflection of the inviolable nature of the human personality.

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35. The ringing observations of Warren and Brandeis on the impact of technology have
continued relevance today in a globalized world dominated by the internet and information
technology. As societies have evolved, so have the connotations and ambit of privacy.
36. Though many contemporary accounts attribute the modern conception of the 'right to
privacy' to the Warren and Brandeis article, historical material indicates that it was Thomas Cooley
who adopted the phrase "the right to be let alone", in his Treatise on the Law of Torts34. Discussing
personal immunity, Cooley stated:
"the right of one's person may be said to be a right of complete immunity; the right to be alone." 35
Roscoe Pound described the Warren and Brandeis article as having done "nothing less than add
a chapter to our law"36. However, another writer on the subject states that:
"This right to privacy was not new. Warren and Brandeis did not even coin the phrase, "right to privacy," nor its common
soubriquet, "the right to be let alone"."37
The right to be let alone is a part of the right to enjoy life. The right to enjoy life is, in its turn, a
part of the fundamental right to life of the individual.
G Natural and inalienable rights
40. Privacy is a concomitant of the right of the individual to exercise control over his or her
personality. It finds an origin in the notion that there are certain rights which are natural to or inherent
in a human being. Natural rights are inalienable because they are inseparable from the human
personality. The human element in life is impossible to conceive without the existence of natural
rights. In 1690, John Locke had in his Second Treatise of Government observed that the lives,
liberties and estates of individuals are as a matter of fundamental natural law, a private preserve. The
idea of a private preserve was to create barriers from outside interference. In 1765, William
Blackstone in his Commentaries on the Laws of England spoke of a "natural liberty". There
were, in his view, absolute rights which were vested in the individual by the immutable laws of
nature. These absolute rights were divided intorights of personal security, personal liberty and
property. The right of personal security involved a legal and uninterrupted enjoyment of life, limbs,
body, health and reputation by an individual.
46. The idea that individuals can have rights against the State that are prior to rights created by
explicit legislation has been developed as part of a liberal theory of law propounded by Ronald
Dworkin. In his seminal work titled "Taking Rights Seriously"51 (1977), he states that:
"Individual rights are political trumps held by individuals. Individuals have rights when, for some reason, a collective goal
is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for
imposing some loss or injury upon them."52(emphasis supplied)
H Evolution of the privacy doctrine in India

47. Among the early decisions of this Court following Kharak Singh was R M Malkani v
State of Maharashtra58. In that case, this Court held that Section 25 of the Indian Telegraph Act,
1885 was not violated because :
"Where a person talking on the telephone allows another person to record it or to hear it, it cannot be said that the other person
who is allowed to do so is damaging, removing, tampering, touching machinery battery line or post for intercepting or acquainting
himself with the contents of any message. There was no element of coercion or compulsion in attaching the tape recorder to the
telephone."59
This Court followed the same line of reasoning as it had in Kharak Singh while rejecting a
privacy based challenge under Article 21. Significantly, the Court observed that :
"Article 21 was invoked by submitting that the privacy of the appellant's conversation was invaded. Article 21 contemplates
procedure established by law with regard to deprivation of life or personal liberty. The telephone conversation of an innocent citizen
will be protected by Courts against wrongful or high handed interference by tapping the conversation. The protection is not for the
guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood
that the Court will tolerate safeguards for the protection of the citizen to be imperilled by permitting the police to proceed by unlawful
or irregular methods."60
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In other words, it was the targeted and specific nature of the interception which weighed with the
Court, the telephone tapping being directed at a guilty person. Hence the Court ruled that the
telephone conversation of an innocent citizen will be protected against wrongful interference by
wiretapping.
48. In Gobind61, a Bench of three judges of this Court considered a challenge to the validity of
Regulations 855 and 856 of State Police Regulations under which a history sheet was opened against
the petitioner who had been placed under surveillance. The Bench of three judges adverted to the
decision in Kharak Singh and to the validation of the Police Regulations (other than domiciliary
visits at night). By the time the decision was handed down in Gobind, the law in the US had evolved
and this Court took note of the decision in Griswold v Connecticut62 ("Griswold") in which a
conviction under a statute on a charge of giving information and advice to married persons on
contraceptive methods was held to be invalid. This Court adverted to the dictum that specific
guarantees of the Bill of Rights have penumbras which create zones of privacy. The Court also
relied upon the US Supreme Court decision in Jane Roe v Henry Wade63 in which the Court upheld
the right of a married woman to terminate her pregnancy as a part of the right of personal privacy.
The following observations of Justice Mathew, who delivered the judgment of the Court do indicate a
constitutional recognition of the right to be let alone :
"There can be no doubt that the makers of our Constitution wanted to ensure conditions favourable to the pursuit of happiness.
They certainly realized as Brandeis, J. said in his dissent in Olmstead v. United States 64, the significance of man's spiritual nature, of
his feelings and of his intellect and that only a part of the pain, pleasure, satisfaction of life can be found in material things and
therefore, they must be deemed to have conferred upon the individual as against the government a sphere where he should be let
alone".65
These observations follow upon a reference to the Warren and Brandeis article; the two decisions
of the US Supreme Court noted earlier; the writings of Locke and Kant; and to dignity, liberty and
autonomy.
49. Yet a close reading of the decision in Gobind would indicate that the Court eventually did
not enter a specific finding on the existence of a right to privacy under the Constitution. …..
While emphasising individual autonomy and the dangers of individual privacy being eroded by
new developments that "will make it possible to be heard in the street what is whispered in the
closet", the Court had obvious concerns about adopting a broad definition of privacy since the right of
privacy "is not explicit in the Constitution". Observing that the concept of privacy overlaps with
liberty, this Court noted thus :
"Individual autonomy, perhaps the central concern of any system of limited government, is protected in part under our
Constitution by explicit constitutional guarantees. In the application of the Constitution our contemplation cannot only be of what has
been but what may be. Time works changes and brings into existence new conditions. Subtler and far reaching means of
invading privacy will make it possible to be heard in the street what is whispered in the closet. Yet, too broad a definition of
privacy raises serious questions about the propriety of judicial reliance on a right that is not explicit in the Constitution. Of
course, privacy primarily concerns the individual. It therefore relates to and overlaps with the concept of liberty. The most serious
advocate of privacy must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in
autonomy must also be placed in the context of other rights and values."67 (emphasis supplied)
Justice Mathew proceeded to explain what any right of privacy must encompass and protect and
found it to be implicit in the concept of ordered liberty :
"Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood,
procreation and child rearing. This catalogue approach to the question is obviously not as instructive as it does not give an analytical
picture of the distinctive characteristics of the right ofprivacy. Perhaps, the only suggestion that can be offered as unifying principle
underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered
liberty."68
In adverting to ordered liberty, the judgment is similar to the statement in the judgment of Justice
Rajagopala Ayyangar in Kharak Singh which found the intrusion of the home by nightly
domiciliary visits a violation of ordered liberty.
The Court proceeded to hold that in any event, the right to privacy will need a case to case
elaboration. The following observations were carefully crafted to hold that even on the "assumption"
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that there is an independent right of privacy emanating from personal liberty, the right to movement
and free speech, the right is not absolute:
"The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even
assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of
speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we
do not think that the right is absolute."69 (emphasis supplied)
Again a similar "assumption" was made by the Court in the following observations:
"...Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is
itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest. As
Regulation 856 has the force of law, it cannot be said that the fundamental right of the petitioner under Article 21 has been violated
by the provisionscontained in it : for, what is guaranteed under that Article is that no person shall be deprived of his life or personal
liberty except by the procedure established by 'law'. We think that the procedure is reasonable having regard to the provisions of
Regulations 853 (c) and 857."70 (emphasis supplied)
The Court declined to interfere with the regulations.

50. The judgment in Gobind does not contain a clear statement of principle by the Court of the
existence of an independent right of privacy or of such a right being an emanation from explicit
constitutional guarantees. The Bench, which consisted of three judges, may have been constrained by
the dictum in the latter part of Kharak Singh. ….
53. The decision In Life Insurance Corporation of India v Prof Manubhai D Shah76,
incorrectly attributed to the decision in Indian Express Newspapers (Bombay) Pvt Ltd v Union of
India77 the principle that the right to free expression under Article 19(1)(a) includes the privacy of
communications. The judgment of this Court in Indian Express cited a U N Report but did no more.
54. The decision which has assumed some significance is Rajagopal78. … The judgment traces
the constitutional protection of privacy to the decisions in Kharak Singh and Gobind.
The Court held that neither the State nor its officials can impose prior restrictions on the
publication of an autobiography of a convict. In the course of its summary of the decision, the Court
held
"(1)... The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is
a "right to be let alone". A citizen has a right to safeguard the privacy of his home, his family, marriage, procreation, motherhood,
child-bearing and education among other matters. None can publish anything concerning the above matters without his consent --
whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person
concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself
into controversy or voluntarily invites or raises a controversy.
(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes
unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter
becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press
and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved
out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected
to the indignity of her name and the incident being publicised in press/media.
(3) There is yet another exception to the rule in (1) above -- indeed, this is not an exception but an independent rule. In the case
of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with
respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon
facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless
disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a
reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the
publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be
liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same
protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the
power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104
respectively of the Constitution of India, represent exceptions to this rule..."81
55. The judgment of Justice Jeevan Reddy regards privacy as implicit in the right to life and
personal liberty under Article 21. In coming to the conclusion, the judgment in Rajagopal notes that
while Kharak Singh had referred to the right of privacy, the decision turned on the content of life
and personal liberty in Article 21. The decision recognises privacy as a protected constitutional right,
while tracing it to Article 21.

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59. In a decision of a Bench of two judges of this Court in PUCL87, the Court dealt with
telephone tapping. The petitioner challenged the constitutional validity of Section 5(2) of the Indian
Telegraph Act, 1885 and urged in the alternative for adopting procedural safeguards to curb arbitrary
acts of telephone tapping. ….
60. The submission on the invalidity of the statutory provision authorising telephone tapping
was based on the right to privacy being a fundamental right under Articles 19(1) and 21 of the
Constitution. Justice Kuldip Singh adverted to the observations contained in the majority judgment in
Kharak Singh which led to the invalidation of the provision for domiciliary visits at night under
Regulation 236(b). PUCL cited the minority view of Justice Subba Rao as having gone even further
by invalidating Regulation 236, in its entirety. The judgment, therefore, construes both the majority
and minority judgments as having affirmed the right to privacy as a part of Article 21:
"Article 21 of the Constitution has, therefore, been interpreted by all the seven learned Judges in Kharak Singh case [(1964) 1
SCR 332 : AIR 1963 SC 1295] (majority and the minority opinions) to include that "right to privacy" as a part of the right to
"protection of life and personal liberty" guaranteed under the said Article." 88 …..
74. In Selvi v State of Karnataka124 ("Selvi"), a Bench of three judges of this Court dealt with a
challenge to the validity of three investigative techniques: narco-analysis, polygraph test (lie-detector
test) and Brain Electrical Activation Profile (BEAP) on the ground that they implicate the
fundamental rights under Articles 20(3) and 21 of the Constitution. The Court held that the results
obtained through an involuntary administration of these tests are within the scope of a testimonial,
attracting the protective shield of Article 20(3) of the Constitution. Chief Justice Balakrishnan
adverted to the earlier decisions rendered in the context of privacy and noted that thus far, judicial
understanding had stressed mostly on the protection of the body and physical actions induced by the
state. The Court emphasised that while the right against self-incrimination is a component of personal
liberty under Article 21, privacy under the constitution has a meeting point with Article 20(3) as well.
77. In Ram Jethmalani v Union of India130 ("Ram Jethmalani"), a Bench of two judges was
dealing with a public interest litigation concerned with unaccounted monies and seeking the
appointment of a Special Investigating Team to follow and investigate a money trail. This Court held
that the revelation of the details of the bank accounts of individuals without the establishment of a
prima facie ground of wrongdoing would be a violation of the right to privacy. This Court observed
thus:
"Right to privacy is an integral part of right to life. This is a cherished constitutional value, and it is important that human
beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner. We understand and
appreciate the fact that the situation with respect to unaccounted for monies is extremely grave. Nevertheless, as constitutional
adjudicators we always have to be mindful of preserving the sanctity of constitutional values, and hasty steps that derogate from
fundamental rights, whether urged by Governments or private citizens, howsoever well meaning they may be, have to be necessarily
very carefully scrutinised. The solution for the problem of abrogation of one zone of constitutional values cannot be the creation of
another zone of abrogation of constitutional values...
The rights of citizens, to effectively seek the protection of fundamental rights, under clause (1) of Article 32 have to be
balanced against the rights of citizens and persons under Article 21. The latter cannot be sacrificed on the anvil of fervid desire to find
instantaneous solutions to systemic problems such as unaccounted for monies, for it would lead to dangerous circumstances, in which
vigilante investigations, inquisitions and rabble rousing, by masses of other citizens could become the order of the day. The right of
citizens to petition this Court for upholding of fundamental rights is granted in order that citizens, inter alia, are ever vigilant about
the functioning of the State in order to protect the constitutional project. That right cannot be extended to being inquisitors of fellow
citizens. An inquisitorial order, where citizens' fundamental right to privacy is breached by fellow citizens is destructive of
social order. The notion of fundamental rights, such as a right to privacy as part of right to life, is not merely that the State is
enjoined from derogating from them. It also includes the responsibility of the State to uphold them against the actions of
others in the society, even in the context of exercise of fundamental rights by those others."131 (emphasis supplied)
The Court held that while the State could access details of the bank accounts of citizens as an
incident of its power to investigate and prosecute crime, this would not enable a private citizen to
compel a citizen to reveal bank accounts to the public at large.
79. In Ramlila Maidan Incident v Home Secretary, Union of India134, Justice B S Chauhan in
a concurring judgment held that:
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"Right to privacy has been held to be a fundamental right of the citizen being an integral part of Article 21 of the Constitution
of India by this Court. Illegitimate intrusion into privacy of a person is not permissible as right to privacy is implicit in the right to life
and liberty guaranteed under our Constitution. Such a right has been extended even to woman of easy virtues as she has been held to
be entitled to her right of privacy. However, right of privacy may not be absolute and in exceptional circumstance particularly
surveillance in consonance with the statutory provisions may not violate such a right."135
In the view of the Court, privacy and dignity of human life have "always been considered a
fundamental human right of every human being" like other constitutional values such as free speech.
We must also take notice of the construction placed by the judgment on the decision in Kharak
Singh as having "held that the right to privacy is a part of life under Article 21 of the Constitution"
and which was reiterated in PUCL.
84. In National Legal Services Authority v Union of India145 ("NALSA"), a Bench of two
judges, while dealing with the rights of transgenders, adverted to international conventions acceded to
by India including the UDHR and ICCPR. Provisions in these conventions which confer a protection
against arbitrary and unlawful interference with a person's privacy, family and home would, it was
held, be read in a manner which harmonizes the fundamental rights contained in Articles 14, 15, 19
and 21 with India's international obligations. Justice K S Radhakrishnan held that:
"Gender identity, therefore, lies at the core of one's personal identity, gender expression and presentation and, therefore, it will
have to be protected under Article 19(1)(a) of the Constitution of India. A transgender's personality could be expressed by the
transgender's behaviour and presentation. State cannot prohibit, restrict or interfere with a transgender's expression of such
personality, which reflects that inherent personality. Often the State and its authorities either due to ignorance or otherwise fail to
digest the innate character and identity of such persons. We, therefore, hold that values of privacy, self-identity, autonomy and
personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the
Constitution ofIndia and the State is bound to protect and recognise those rights."146
Explaining the ambit of Article 21, the Court noted:

"Article 21 is the heart and soul of the Indian Constitution, which speaks of the rights to life and personal liberty. Right to life
is one of the basic fundamental rights and not even the State has the authority to violate or take away that right. Article 21 takes all
those aspects of life which go to make a person's life meaningful. Article 21 protects the dignity of human life, one's personal
autonomy, one's right to privacy, etc. Right to dignity has been recognised to be an essential part of the right to life and accrues to all
persons on account of being humans. In Francis Coralie Mullin v. UT of Delhi [(1981) 1 SCC 608 : 1981 SCC (Cri) 212] (SCC pp.
618-19, paras 7 and 8), this Court held that the right to dignity forms an essential part of our constitutional culture which seeks to
ensure the full development and evolution of persons and includes "expressing oneself in diverse forms, freely moving about and
mixing and comingling with fellow human beings...147
Article 21, as already indicated, guarantees the protection of "personal autonomy" of an individual. In Anuj Garg v. Hotel Assn.
of India [(2008) 3 SCC 1] (SCC p. 15, paras 34-35), this Court held that personal autonomy includes both the negative right of not to
be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and
to choose which activities to take part in. Self-determination of gender is an integral part of personal autonomy and self-expression
and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India. 148"
Dr Justice A K Sikri wrote a lucid concurring judgment.

NALSA indicates the rationale for grounding of a right to privacy in the protection of gender
identity within Article 15. The intersection of Article 15 with Article 21 locates a constitutional right
to privacy as an expression of individual autonomy, dignity and identity. NALSA indicates that the
right to privacy does not necessarily have to fall within the ambit of any one provision in the chapter
on fundamental rights. Intersecting rights recognise the right to privacy. Though primarily, it is in the
guarantee of life and personal liberty under Article 21 that a constitutional right to privacy dwells, it
is enriched by the values incorporated in other rights which are enumerated in Part III of the
Constitution.
85. In ABC v The State (NCT of Delhi)149, the Court dealt with the question whether it is
imperative for an unwed mother to specifically notify the putative father of the child of her petition
for appointment as guardian of her child. It was stated by the mother of the child that she does not
want the future of her child to be marred by any controversy regarding his paternity, which would
indubitably result should the father refuse to acknowledge the child as his own. It was her contention
that her own fundamental right to privacy will be violated if she is compelled to disclose the name
and particulars of the father of her child. Looking into the interest of the child, the Bench directed
that "if a single parent/unwed mother applies for the issuance of a Birth Certificate for a child born
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from her womb, the Authorities concerned may only require her to furnish an affidavit to this effect,
and must thereupon issue the Birth Certificate, unless there is a Court direction to the contrary"150.
86. While considering the constitutional validity of the Constitution (Ninety-Ninth Amendment)
Act, 2014 which enunciated an institutional process for the appointment of judges, the concurring
judgment of Justice Madan B Lokur in Supreme Court Advocates on Record Association v Union
of India151 dealt with privacy issues involved if disclosures were made about a candidate under
consideration for appointment as a Judge of the Supreme Court or High Court. Dealing with the right
to know of the general public on the one hand and the right to privacy on the other hand, Justice
Lokur noted that the latter is an "implicit fundamental right that all people enjoy". Justice Lokur
observed thus:
"The balance between transparency and confidentiality is very delicate and if some sensitive information about a particular
person is made public, it can have a far-reaching impact on his/her reputation and dignity. The 99 th Constitution Amendment Act and
the NJAC Act have not taken note of the privacy concerns of an individual. This is important because it was submitted by the learned
Attorney General that the proceedings of NJAC will be completely transparent and any one can have access to information that is
available with NJAC. This is a rather sweeping generalization which obviously does not take into account the privacy of a
person who has been recommended for appointment, particularly as a Judge of the High Court or in the first instance as a
Judge of the Supreme Court. The right to know is not a fundamental right but at best it is an implicit fundamental right and
it is hedged in with the implicit fundamental right to privacy that all people enjoy. The balance between the two implied
fundamental rights is difficult to maintain, but the 99 th Constitution Amendment Act and the NJAC Act do not even attempt to
consider, let alone achieve that balance."152 (emphasis supplied)
87. A comprehensive analysis of precedent has been necessary because it indicates the manner
in which the debate on the existence of a constitutional right to privacy has progressed. …
91. The right to privacy has been traced in the decisions which have been rendered over more
than four decades to the guarantee of life and personal liberty in Article 21 and the freedoms set out
in Article 19. In addition, India's commitment to a world order founded on respect for human rights
has been noticed along with the specific articles of the UDHR and the ICCPR which embody the
right to privacy.153 In the view of this Court, international law has to be construed as a part of domestic
law in the absence of legislation to the contrary and, perhaps more significantly, the meaning of
constitutional guarantees must be illuminated by the content of international conventions to which
India is a party. Consequently, as new cases brought new issues and problems before the Court, the
content of the right to privacy has found elaboration in these diverse contexts. These would include
telephone tapping (PUCL), prior restraints on publication of material on a death row convict
(Rajagopal), inspection and search of confidential documents involving the banker - customer
relationship (Canara Bank), disclosure of HIV status (Mr X v Hospital Z), food preferences and
animal slaughter (Hinsa Virodhak Sangh), medical termination of pregnancy (Suchita Srivastava),
scientific tests in criminal investigation (Selvi), disclosure of bank accounts held overseas (Ram
Jethmalani) and the right of transgenders (NALSA). Early cases dealt with police regulations
authorising intrusions on liberty, such as surveillance. As Indian society has evolved, the assertion of
the right to privacy has been considered by this Court in varying contexts replicating the choices and
autonomy of the individual citizen.
92. The deficiency, however, is in regard to a doctrinal formulation of the basis on which it can
be determined as to whether the right to privacy is constitutionally protected. M P Sharma need not
have answered the question; Kharak Singh dealt with it in a somewhat inconsistent formulation
while Gobind rested on assumption. M P Sharma being a decision of eight judges, this Bench has
been called upon to decide on the objection of the Union of India to the existence of such a right in
the first place.
I The Indian Constitution
Jurisprudence on dignity
96. Over the last four decades, our constitutional jurisprudence has recognised the inseparable
relationship between protection of life and liberty with dignity. Dignity as a constitutional value finds
expression in the Preamble. The constitutional vision seeks the realisation of justice (social, economic
and political); liberty (of thought, expression, belief, faith and worship); equality (as a guarantee
against arbitrary treatment of individuals) and fraternity (which assures a life of dignity to every
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individual). These constitutional precepts exist in unity to facilitate a humane and compassionate
society. The individual is the focal point of the Constitution because it is in the realisation of
individual rights that the collective well being of the community is determined. Human dignity is an
integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness
(Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article
21).
97. In Prem Shankar Shukla v Delhi Administration (handcuffing of the prisoners), Francis
Coralie Mullin v Union Territory of Delhi159 ("Francis Coralie") (the entitlement of a detenue)
Bandhua Mukti Morcha v Union of India (dealing with individuals who were living in bondage),
etc., …
107. To live is to live with dignity. The draftsmen of the Constitution defined their vision of the
society in which constitutional values would be attained by emphasising, among other freedoms,
liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the
individual by Part III. Dignity is the core which unites the fundamental rights because the
fundamental rights seek to achieve for each individual the dignity of existence. Privacy with its
attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity
can liberty be of true substance. Privacy ensures the fulfilment of dignity and is a core value which
the protection of life and liberty is intended to achieve.
Fundamental Rights cases
108. In Golak Nath v State of Punjab179, there was a challenge to the Punjab Security of Land
Tenures Act , 1953 and to the Mysore Land Reforms Act (as amended) upon their inclusion in the
Ninth Schedule to the Constitution.
Chief Justice Subba Rao dwelt on the rule of law and its purpose in ensuring that every authority
constituted by the Constitution is subject to it and functions within its parameters. One of the
purposes of constraining governmental power was to shield the fundamental freedoms against
legislative majorities. This thought is reflected in the following extract from the judgment of Chief
Justice Subba Rao:
"...But, having regard to the past history of our country, it could not implicitly believe the representatives of the people, for
uncontrolled and unrestricted power might lead to an authoritarian State. It, therefore, preserves the natural rights against the
State encroachment and constitutes the higher judiciary of the State as the sentinel of the said rights and the balancing wheel
between the rights, subject to social control. In short, the fundamental rights, subject to social control, have been incorporated in the
rule of law..."180 (emphasis supplied)
The learned Judge emphasised the position of the fundamental rights thus:
"...They are the rights of the people preserved by our Constitution. "Fundamental Rights" are the modern name for what
have been traditionally known as "natural rights". As one author puts: "they are moral rights which every human being
everywhere all times ought to have simply because of the fact that in contradistinction with other things is rational and moral". They
are the primordial rights necessary for the development of human personality. They are the rights which enable a man to chalk out of
his own life in the manner he likes best..."181 (emphasis supplied)
The fundamental rights, in other words, are primordial rights which have traditionally been
regarded as natural rights. In that character these rights are inseparable from human existence. They
have been preserved by the Constitution, this being a recognition of their existence even prior to the
constitutional document.
109. In Kesavananda Bharati, a Bench of 13 judges considered the nature of the amending
power conferred by Article 368 and whether the exercise of the amending power was subject to
limitations in its curtailment of the fundamental freedoms. … Justices Shelat and Grover held that
"[t]he dignity of the individual secured by the various freedoms and basic rights in Part III and the
mandate to build a welfare State contained in Part IV"184 constituted a part of the basic structure.
…….
Significantly, even though Justice Mathew was in the minority, the learned Judge in the course of
his decision observed the importance of human dignity:

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"The social nature of man, the generic traits of his physical and mental constitution, his sentiments of justice and the morals
within, his instinct for individual and collective preservations, his desire for happiness, his sense of human dignity, his consciousness
of man's station and purpose in life, all these are not products of fancy but objective factors in the realm of existence..." 188
…..
Privacy as intrinsic to freedom and liberty
113. The submission that recognising the right to privacy is an exercise which would require a
constitutional amendment and cannot be a matter of judicial interpretation is not an acceptable
doctrinal position. The argument assumes that the right to privacy is independent of the liberties
guaranteed by Part III of the Constitution. There lies the error. The right to privacy is an element of
human dignity. The sanctity of privacy lies in its functional relationship with dignity. Privacy ensures
that a human being can lead a life of dignity by securing the inner recesses of the human personality
from unwanted intrusion. Privacy recognises the autonomy of the individual and the right of every
person to make essential choices which affect the course of life. In doing so privacy recognises that
living a life of dignity is essential for a human being to fulfil the liberties and freedoms which are the
cornerstone of the Constitution. To recognise the value of privacy as a constitutional entitlement and
interest is not to fashion a new fundamental right by a process of amendment through judicial fiat.
Neither are the judges nor is the process of judicial review entrusted with the constitutional
responsibility to amend the Constitution. But judicial review certainly has the task before it of
determining the nature and extent of the freedoms available to each person under the fabric of those
constitutional guarantees which are protected. Courts have traditionally discharged that function and
in the context of Article 21 itself, as we have already noted, a panoply of protections governing
different facets of a dignified existence has been held to fall within the protection of Article 21.
114. In Olga Tellis v Bombay Municipal Corporation195, Chandrachud C J, while explaining
the ambit of Article 21 found a rationale for protecting the right to livelihood as an incident of the
right to life. For, as the Court held, deprivation of livelihood would result in the abrogation of the
right to life:
"148. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be
extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure
established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because,
no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the
constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood
to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would
make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if
the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes
life liveable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall
have deprived him of his life..."196
115. In Unnikrishnan v State of Andhra Pradesh197, Justice Jeevan Reddy, speaking for this
Court, held that though the right to education (as the Constitution then stood) was not "stated
expressly as a fundamental right" in Part III, that would not militate against its being protected under
the rubric of life under Article 21. These decisions have been ultimately guided by the object of a
Constitutional Court which must be to expand the boundaries of fundamental human freedoms rather
than to attenuate their content through a constricted judicial interpretation In Maneka, it has been
stated that:
"The attempt of the court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning
and content by process of judicial construction...
"personal liberty" in Article 21 is of the widest amplitude."198
116. Now, would this Court in interpreting the Constitution freeze the content of constitutional
guarantees and provisions to what the founding fathers perceived? The Constitution was drafted and
adopted in a historical context. The vision of the founding fathers was enriched by the histories of
suffering of those who suffered oppression and a violation of dignity both here and elsewhere. Yet, it
would be difficult to dispute that many of the problems which contemporary societies face would not
have been present to the minds of the most perspicacious draftsmen. No generation, including the
present, can have a monopoly over solutions or the confidence in its ability to foresee the future. As
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society evolves, so must constitutional doctrine. The institutions which the Constitution has created
must adapt flexibly to meet the challenges in a rapidly growing knowledge economy. Above all,
constitutional interpretation is but a process in achieving justice, liberty and dignity to every citizen.
117. Undoubtedly, there have been aberrations. In the evolution of the doctrine in India, which
places the dignity of the individual and freedoms and liberties at the forefront, there have been a few
discordant notes. Two of them need attention: ADM Jabalpur v Shivakant Shukla199 ("ADM
Jabalpur"),
…..
121… ADM Jabalpur must be and is accordingly overruled. We also overrule the decision in
Union of India v Bhanudas Krishna Gawde213, which followed ADM Jabalpur.
122. In I R Coelho v State of Tamil Nadu214, this Court took the view that ADM Jabalpur has
been impliedly overruled by various subsequent decisions: ..
124. Another discordant note which directly bears upon the evolution of the constitutional
jurisprudence on the right to privacy finds reflection in a two judge Bench decision of this Court in
Suresh Kumar Koushal v NAZ foundation216 ("Koushal"). ….
128. The decision in Koushal presents a de minimis rationale when it asserts that there have
been only two hundred prosecutions for violating Section 377. The de minimis hypothesis is
misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as
opposed to a large number of persons, are subjected to hostile treatment. The reason why such acts of
hostile discrimination are constitutionally impermissible is because of the chilling effect which they
have on the exercise of the fundamental right in the first place. For instance, pre-publication restraints
such as censorship are vulnerable because they discourage people from exercising their right to free
speech because of the fear of a restraint coming into operation. The chilling effect on the exercise of
the right poses a grave danger to the unhindered fulfilment of one's sexual orientation, as an element
of privacy and dignity. The chilling effect is due to the danger of a human being subjected to social
opprobrium or disapproval, as reflected in the punishment of crime. Hence the Koushal rationale
that prosecution of a few is not an index of violation is flawed and cannot be accepted. Consequently,
we disagree with the manner in which Koushal has dealt with the privacy - dignity based claims of
LGBT persons on this aspect.
J India's commitments under International law ……
K Comparative Law …..
L Criticisms of the privacy doctrine
135. The Attorney General for India, leading the arguments before this Court on behalf of Union
of India, has been critical of the recognition being given to a general right of privacy. The submission
has several facets, among them being:
(i) there is no general or fundamental right to privacy under the Constitution;

(ii) no blanket right to privacy can be read as part of the fundamental rights and where some
of the constituent facets of privacy are already covered by the enumerated guarantees in
Part III, those facets will be protected in any case;
(iii) where specific species of privacy are governed by the protection of liberty in Part III of
the Constitution, they are subject to reasonable restrictions in the public interest as
recognized in several decisions of this Court ;
(iv) privacy is a concept which does not have any specific meaning or definition and the
expression is inchoate; and
(v) the draftsmen of the Constitution specifically did not include such a right as part of the
chapter on fundamental rights and even the ambit of the expression liberty which was
originally sought to be used in the draft Constitution was pruned to personal liberty.
These submissions have been buttressed by Mr Aryama Sundaram, learned senior
counsel.

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136. Criticism and critique lie at the core of democratic governance. Tolerance of dissent is
equally a cherished value. In deciding a case of such significant dimensions, the Court must factor in
the criticisms voiced both domestically and internationally. These, as we notice, are based on
academic, philosophical and practical considerations.
140. The Stanford Encyclopaedia of Philosophy seeks to offer an understanding of the

literature on privacy in terms of two concepts: reductionism and coherentism.306 Reductionists are
generally critical of privacy while the Coherentists defend fundamental values of privacy interests.
The criticisms of privacy have been broadly summarised as consisting of the following :
a Thomson's Reductionism 307
Judith Jarvis Thomson, in an article published in 1975, noted that while there is little
agreement on the content of privacy, ultimately privacy is a cluster of rights which overlap with
property rights or the right to bodily security. In her view, the right to privacy is derivative in the
sense that a privacy violation is better understood as violation of a more basic right.
b Posner's Economic critique 308
Richard Posner, in 'the Economics of Justice' published in 1981, argued that privacy is
protected in ways that are economically inefficient. In his view, privacy should be protected only
when access to information would reduce its value such as when a student is allowed access to a
letter of recommendation for admission, rendering such a letter less reliable. According to Posner,
privacy when manifested as control over information about oneself, is utilised to mislead or
manipulate others.
c Bork's critique
Robert Bork, in 'The Tempting of America: The Political Seduction of the Law'309, has been
severe in his criticism of the protection of privacy by the US Supreme Court. In his view, Justice
Douglas in Griswold did not derive privacy from some pre-existing right but sought to create a new
right which has no foundation in the Bill of Rights, thereby overstepping the bounds of a judge by
making new law and not by interpreting it.
Many theorists urge that the constitutional right to privacy is more correctly regarded as a right to
liberty.
The powerful counter argument to these criticisms is that while individuals possess multiple
liberties under the Constitution, read in isolation, many of them are not related to the kinds of
concerns that emerge in privacy issues. In this view, liberty is a concept which is broader than
privacy and issues or claims relating to privacy are a sub-set of claims to liberty.310 Hence it has been
argued that privacy protects liberty and that "privacy protection gains for us the freedom to define
ourselves and our relations to others"311. This rationale understands the relationship between liberty
and privacy by stipulating that while liberty is a broader notion, privacy is essential for protecting
liberty. Recognizing a constitutional right to privacy is a reaffirmation of the individual interest in
making certain decisions crucial to one's personality and being.
d Feminist critique
Many writers on feminism express concern over the use of privacy as a veneer for patriarchal
domination and abuse of women. Patriarchal notions still prevail in several societies including our
own and are used as a shield to violate core constitutional rights of women based on gender and
autonomy. As a result, gender violence is often treated as a matter of "family honour" resulting in the
victim of violence suffering twice over - the physical and mental trauma of her dignity being violated
and the perception that it has cause an affront to "honour". Privacy must not be utilised as a cover to
conceal and assert patriarchal mindsets.
Catherine MacKinnon in a 1989 publication titled 'Towards a Feminist Theory of the
State'312 adverts to the dangers of privacy when it is used to cover up physical harm done to women
by perpetrating their subjection. Yet, it must also be noticed that women have an inviolable interest in
privacy. Privacy is the ultimate guarantee against violations caused by programmes not unknown to
history, such as state imposed sterilization programmes or mandatory state imposed drug testing for
women. The challenge in this area is to enable the state to take the violation of the dignity of women
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in the domestic sphere seriously while at the same time protecting the privacy entitlements of women
grounded in the identity of gender and liberty.
141. The submission that privacy has no accepted or defined connotation can be analysed with
reference to the evolution of the concept in the literature on the subject. Some of the leading
approaches which should be considered for an insight into the ambit and content of privacy:
(i) Alan Westin313 defined four basic states of privacy which reflect on the nature and extent of
the involvement of the individual in the public sphere. At the core is solitude - the most complete
state of privacy involving the individual in an "inner dialogue with the mind and conscience". 314 The
second state is the state of intimacy which refers not merely to intimate relations between spouses or
partners but also between family, friends and colleagues. The third state is of anonymity where an
individual seeks freedom from identification despite being in a public space. The fourth state is
described as a state of reservation which is expressed as "the need to hold some aspects of ourselves
back from others, either as too personal and sacred or as too shameful and profane to express"315.
(ii) Roger Clarke has developed a classification of privacy on Maslow's pyramid of values316.
The values described in Maslow's pyramid are: self-actualization, self-esteem, love or belonging,
safety and physiological or biological need. Clarke's categories include (a) privacy of the person also
known as bodily privacy. Bodily privacy is violated by compulsory extraction of samples of body
fluids and body tissue and compulsory sterilization; (b) privacy of personal behaviour which is part of
a private space including the home; (c) Privacy of personal communications which is expressed as the
freedom of communication without interception or routine monitoring of one's communication by
others; (d) Privacy of personal data which is linked to the concept of informational privacy.
(iii) Anita Allen has, in a 2011 publication, developed the concept of "unpopular privacy"317.
According to her, governments must design "unpopular" privacy laws and duties to protect the
common good, even if privacy is being forced on individuals who may not want it. Individuals under
this approach are not permitted to waive their privacy rights. Among the component elements which
she notices are : (a) physical or spatial privacy - illustrated by the privacy in the home; (b)
informational privacy including information data or facts about persons or their communications; (c)
decisional privacy which protects the right of citizens to make intimate choices about their rights
from intrusion by the State; (d) proprietary privacy which relates to the protection of one's reputation;
(e) associational privacy which protects the right of groups with certain defined characteristics to
determine whom they may include or exclude.318
Privacy has distinct connotations including (i) spatial control; (ii) decisional autonomy; and (iii)
informational control.319 Spatial control denotes the creation of private spaces. Decisional autonomy
comprehends intimate personal choices such as those governing reproduction as well as choices
expressed in public such as faith or modes of dress. Informational control empowers the individual to
use privacy as a shield to retain personal control over information pertaining to the person. With
regard to informational privacy, it has been stated that :
"...perhaps the most convincing conception is proposed by Helen Nissenbaum who argues that privacy is the expectation that
information about a person will be treated appropriately. This theory of "contextual integrity" believes people do not want to control
their information or become inaccessible as much as they want their information to be treated in accordance with their expectation
(Nissenbaum 2004, 2010, 2011)."320
Integrated together, the fundamental notions of privacy have been depicted in a seminal article
published in 2017 titled "A Typology of privacy"321 in the University of Pennsylvania Journal of
International Law. The article contains an excellent visual depiction of privacy, which is presented in
the following format :

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142. The above diagrammatical representation presents two primary axes: a horizontal axis
consisting of four zones of privacy and a vertical axis which emphasises two aspects of freedom: the
freedom to be let alone and the freedom for self-development. The nine primary types of privacy are,
according to the above depiction: (i) bodily privacy which reflects the privacy of the physical body.
Implicit in this is the negative freedom of being able to prevent others from violating one's body or
from restraining the freedom of bodily movement; (ii) spatial privacy which is reflected in the
privacy of a private space through which access of others can be restricted to the space; intimate
relations and family life are an apt illustration of spatial privacy; (iii) communicational privacy which
is reflected in enabling an individual to restrict access to communications or control the use of
information which is communicated to third parties; (iv) proprietary privacy which is reflected by the
interest of a person in utilising property as a means to shield facts, things or information from others;
(v) intellectual privacy which is reflected as an individual interest in the privacy of thought and mind
and the development of opinions and beliefs; (vi) decisional privacy reflected by an ability to make
intimate decisions primarily consisting one's sexual or procreative nature and decisions in respect of
intimate relations; (vii) associational privacy which is reflected in the ability of the individual to
choose who she wishes to interact with; (viii) behavioural privacy which recognises the privacy
interests of a person even while conducting publicly visible activities. Behavioural privacy postulates
that even when access is granted to others, the individual is entitled to control the extent of access and
preserve to herself a measure of freedom from unwanted intrusion; and (ix) informational privacy
which reflects an interest in preventing information about the self from being disseminated and
controlling the extent of access to information.
M Constituent Assembly and privacy: limits of originalist interpretation
143. The founding fathers of the Constitution, it has been urged, rejected the notion of privacy
being a fundamental right. Hence it has been submitted that it would be outside the realm of
constitutional adjudication for the Court to declare a fundamental right to privacy. The argument
merits close consideration.
149. The Constitution has evolved over time, as judicial interpretation, led to the recognition of
specific interests and entitlements. These have been subsumed within the freedoms and liberties
guaranteed by the Constitution. Article 21 has been interpreted by this Court to mean that life does
not mean merely a physical existence. It includes all those faculties by which life is enjoyed. The
ambit of 'the procedure established by law' has been interpreted to mean that the procedure must be
fair, just and reasonable. The coalescence of Articles 14, 19 and 21 has brought into being a
jurisprudence which recognises the inter-relationship between rights. That is how the requirements of
fairness and non-discrimination animate both the substantive and procedural aspects of Article 21.
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These constitutional developments have taken place as the words of the Constitution have been
interpreted to deal with new exigencies requiring an expansive reading of liberties and freedoms to
preserve human rights under the rule of law. India's brush with a regime of the suspension of life and
personal liberty in the not too distant past is a grim reminder of how tenuous liberty can be, if the
judiciary is not vigilant. The interpretation of the Constitution cannot be frozen by its original
understanding. The Constitution has evolved and must continuously evolve to meet the
aspirations and challenges of the present and the future. Nor can judges foresee every challenge
and contingency which may arise in the future. This is particularly of relevance in an age where
technology reshapes our fundamental understanding of information, knowledge and human
relationships that was unknown even in the recent past. Hence as Judges interpreting the Constitution
today, the Court must leave open the path for succeeding generations to meet the challenges to
privacy that may be unknown today.
O Not an elitist construct

154. The Attorney General argued before us that the right to privacy must be forsaken in the
interest of welfare entitlements provided by the State. In our view, the submission that the right to
privacy is an elitist construct which stands apart from the needs and aspirations of the large majority
constituting the rest of society, is unsustainable. This submission betrays a misunderstanding of the
constitutional position. Our Constitution places the individual at the forefront of its focus,
guaranteeing civil and political rights in Part III and embodying an aspiration for achieving socio-
economic rights in Part IV. The refrain that the poor need no civil and political rights and are
concerned only with economic well-being has been utilised though history to wreak the most
egregious violations of human rights. Above all, it must be realised that it is the right to question, the
right to scrutinize and the right to dissent which enables an informed citizenry to scrutinize the
actions of government. Those who are governed are entitled to question those who govern, about the
discharge of their constitutional duties including in the provision of socio-economic welfare benefits.
The power to scrutinize and to reason enables the citizens of a democratic polity to make informed
decisions on basic issues which govern their rights. The theory that civil and political rights are
subservient to socio-economic rights has been urged in the past and has been categorically rejected in
the course of constitutional adjudication by this Court.
155. Civil and political rights and socio-economic rights do not exist in a state of antagonism.
The conditions necessary for realising or fulfilling socio-economic rights do not postulate the
subversion of political freedom. The reason for this is simple. Socio-economic entitlements must
yield true benefits to those for whom they are intended. This can be achieved by eliminating rent-
seeking behaviour and by preventing the capture of social welfare benefits by persons who are not
entitled to them. Capture of social welfare benefits can be obviated only when political systems are
transparent and when there is a free flow of information. Opacity enures to the benefit of those who
monopolize scarce economic resources. On the other hand, conditions where civil and political
freedoms flourish ensure that governmental policies are subjected to critique and assessment. It is this
scrutiny which sub-serves the purpose of ensuring that socio-economic benefits actually permeate to
the under-privileged for whom they are meant. Conditions of freedom and a vibrant assertion of civil
and political rights promote a constant review of the justness of socio-economic programmes and of
their effectiveness in addressing deprivation and want. Scrutiny of public affairs is founded upon the
existence of freedom. Hence civil and political rights and socio-economic rights are complementary
and not mutually exclusive.
168. What, then, does privacy postulate? Privacy postulates the reservation of a private space for
the individual, described as the right to be let alone. The concept is founded on the autonomy of the
individual. The ability of an individual to make choices lies at the core of the human personality. The
notion of privacy enables the individual to assert and control the human element which is inseparable
from the personality of the individual. The inviolable nature of the human personality is manifested
in the ability to make decisions on matters intimate to human life. The autonomy of the individual is
associated over matters which can be kept private. These are concerns over which there is a
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legitimate expectation of privacy. The body and the mind are inseparable elements of the human
personality. The integrity of the body and the sanctity of the mind can exist on the foundation that
each individual possesses an inalienable ability and right to preserve a private space in which the
human personality can develop. Without the ability to make choices, the inviolability of the
personality would be in doubt. Recognizing a zone of privacy is but an acknowledgment that each
individual must be entitled to chart and pursue the course of development of personality. Hence
privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate
to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone
of privacy, an individual is not judged by others. Privacy enables each individual to take crucial
decisions which find expression in the human personality. It enables individuals to preserve their
beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of
homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be
different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects
the individual from the searching glare of publicity in matters which are personal to his or her life.
Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the
foundation of all liberty because it is in privacy that the individual can decide how liberty is best
exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of
diversity into the fabric of a plural culture.
169. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and
instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally
protected interest in itself. In its instrumental facet, dignity and freedom are inseparably inter-twined,
each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of
privacy enables the realization of the full value of life and liberty. Liberty has a broader meaning of
which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled
only within a private space. Privacy enables the individual to retain the autonomy of the body and
mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to
life. Privacy has not been couched as an independent fundamental right. But that does not detract
from the constitutional protection afforded to it, once the true nature of privacy and its relationship
with those fundamental rights which are expressly protected is understood. Privacy lies across the
spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary state
action. It prevents the state from discriminating between individuals. The destruction by the state of a
sanctified personal space whether of the body or of the mind is violative of the guarantee against
arbitrary state action. Privacy of the body entitles an individual to the integrity of the physical aspects
of personhood. The intersection between one's mental integrity and privacy entitles the individual to
freedom of thought, the freedom to believe in what is right, and the freedom of self-determination.
When these guarantees intersect with gender, they create a private space which protects all those
elements which are crucial to gender identity. The family, marriage, procreation and sexual
orientation are all integral to the dignity of the individual. Above all, the privacy of the individual
recognises an inviolable right to determine how freedom shall be exercised. An individual may
perceive that the best form of expression is to remain silent. Silence postulates a realm of privacy. An
artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process
of thought. A musician contemplates upon notes which musically lead to silence. The silence, which
lies within, reflects on the ability to choose how to convey thoughts and ideas or interact with others.
These are crucial aspects of personhood. The freedoms under Article 19 can be fulfilled where the
individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21,
liberty enables the individual to have a choice of preferences on various facets of life including what
and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on
which autonomy and self-determination require a choice to be made within the privacy of the mind.
The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to
choose a faith and the freedom to express or not express those choices to the world. These are some
illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of
liberty. The Constitution does not contain a separate article telling us that privacy has been declared
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to be a fundamental right. Nor have we tagged the provisions of Part III with an alpha suffixed right
of privacy: this is not an act of judicial redrafting. Dignity cannot exist without privacy. Both reside
within the inalienable values of life, liberty and freedom which the Constitution has recognised.
Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which
straddles across the spectrum of fundamental rights and protects for the individual a zone of choice
and self-determination.
Privacy represents the core of the human personality and recognizes the ability of each individual
to make choices and to take decisions governing matters intimate and personal. Yet, it is necessary to
acknowledge that individuals live in communities and work in communities. Their personalities
affect and, in turn are shaped by their social environment. The individual is not a hermit. The lives of
individuals are as much a social phenomenon. In their interactions with others, individuals are
constantly engaged in behavioural patterns and in relationships impacting on the rest of society.
Equally, the life of the individual is being consistently shaped by cultural and social values imbibed
from living in the community. This state of flux which represents a constant evolution of individual
personhood in the relationship with the rest of society provides the rationale for reserving to the
individual a zone of repose. The lives which individuals lead as members of society engender a
reasonable expectation of privacy. The notion of a reasonable expectation of privacy has elements
both of a subjective and objective nature. Privacy at a subjective level is a reflection of those areas
where an individual desire to be left alone. On an objective plane, privacy is defined by those
constitutional values which shape the content of the protected zone where the individual ought to be
left alone. The notion that there must exist a reasonable expectation of privacy ensures that while on
the one hand, the individual has a protected zone of privacy, yet on the other, the exercise of
individual choices is subject to the rights of others to lead orderly lives. For instance, an individual
who possesses a plot of land may decide to build upon it subject to zoning regulations. If the building
bye laws define the area upon which construction can be raised or the height of the boundary wall
around the property, the right to privacy of the individual is conditioned by regulations designed to
protect the interests of the community in planned spaces. Hence while the individual is entitled to a
zone of privacy, its extent is based not only on the subjective expectation of the individual but on an
objective principle which defines a reasonable expectation.
S Informational privacy
170. Ours is an age of information. Information is knowledge. The old adage that "knowledge is
power" has stark implications for the position of the individual where data is ubiquitous, an all-
encompassing presence. Technology has made life fundamentally interconnected. The internet has
become all pervasive as individuals spend more and more time online each day of their lives.
Individuals connect with others and use the internet as a means of communication. The internet is
used to carry on business and to buy goods and services. Individuals browse the web in search of
information, to send e-mails, use instant messaging services and to download movies. Online
purchases have become an efficient substitute for the daily visit to the neighbouring store. Online
banking has redefined relationships between bankers and customers. Online trading has created a new
platform for the market in securities. Online music has refashioned the radio. Online books have
opened up a new universe for the bibliophile. The old-fashioned travel agent has been rendered
redundant by web portals which provide everything from restaurants to rest houses, airline tickets to
art galleries, museum tickets to music shows. These are but a few of the reasons people access the
internet each day of their lives. Yet every transaction of an individual user and every site that she
visits, leaves electronic tracks generally without her knowledge. These electronic tracks contain
powerful means of information which provide knowledge of the sort of person that the user is and her
interests388. Individually, these information silos may seem inconsequential. In aggregation, they
disclose the nature of the personality: food habits, language, health, hobbies, sexual preferences,
friendships, ways of dress and political affiliation. In aggregation, information provides a picture of
the being: of things which matter and those that don't, of things to be disclosed and those best hidden.
171. Popular websites install cookie files by the user's browser. Cookies can tag browsers for
unique identified numbers, which allow them to recognise rapid users and secure information about
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online behaviour. Information, especially the browsing history of a user is utilised to create user
profiles. The use of algorithms allows the creation of profiles about internet users. Automated content
analysis of e-mails allows for reading of user e-mails. An e-mail can be analysed to deduce user
interests and to target suitable advertisements to a user on the site of the window. The books which an
individual purchases on-line provide footprints for targeted advertising of the same genre. Whether
an airline ticket has been purchased on economy or business class, provides vital information about
employment profile or spending capacity. Taxi rides booked on-line to shopping malls provide a
profile of customer preferences. A woman who purchases pregnancy related medicines on-line would
be in line to receive advertisements for baby products. Lives are open to electronic scrutiny. To put it
mildly, privacy concerns are seriously an issue in the age of information.
172. A Press Note released by the Telecom Regulatory Authority of India on 3 July, 2017 389 is
indicative of the prevalence of telecom services in India as on 31 December, 2016. The total number
of subscribers stood at 1151.78 million, reflecting a 11.13 percent change over the previous year.
There were 683.14 million urban subscribers and 468.64 million rural subscribers. The total number
of internet subscribers stood at 391.50 million reflecting an 18.04 per cent change over the previous
quarter. 236.09 million were broadband subscribers. 370 million is the figure of wireless internet
subscribers. The total internet subscribers per 100 population stood at 30.56; urban internet
subscribers were 68.86 per 100 population; and rural internet subscribers being 13.08. The figures
only increase.
173. The age of information has resulted in complex issues for informational privacy. These
issues arise from the nature of information itself. Information has three facets: it is nonrivalrous,
invisible and recombinant390. Information is nonrivalrous in the sense that there can be simultaneous
users of the good - use of a piece of information by one person does not make it less available to
another. Secondly, invasions of data privacy are difficult to detect because they can be invisible.
Information can be accessed, stored and disseminated without notice. Its ability to travel at the speed
of light enhances the invisibility of access to data, "information collection can be the swiftest theft of
all"391. Thirdly, information is recombinant in the sense that data output can be used as an input to
generate more data output.
176. The balance between data regulation and individual privacy raises complex issues requiring
delicate balances to be drawn between the legitimate concerns of the State on one hand and
individual interest in the protection of privacy on the other.
177. The sphere of privacy stretches at one end to those intimate matters to which a reasonable
expectation of privacy may attach. It expresses a right to be left alone. A broader connotation which
has emerged in academic literature of a comparatively recent origin is related to the protection of
one's identity. Data protection relates closely with the latter sphere. Data such as medical information
would be a category to which a reasonable expectation of privacy attaches. There may be other data
which falls outside the reasonable expectation paradigm. Apart from safeguarding privacy, data
protection regimes seek to protect the autonomy of the individual. This is evident from the emphasis
in the European data protection regime on the centrality of consent. Related to the issue of consent is
the requirement of transparency which requires a disclosure by the data recipient of information
pertaining to data transfer and use.
T Our Conclusions
1 The judgment in M P Sharma holds essentially that in the absence of a provision similar to
the Fourth Amendment to the US Constitution, the right to privacy cannot be read into the provisions
of Article 20 (3) of the Indian Constitution. The judgment does not specifically adjudicate on whether
a right to privacy would arise from any of the other provisions of the rights guaranteed by Part III
including Article 21 and Article 19. The observation that privacy is not a right guaranteed by the
Indian Constitution is not reflective of the correct position. M P Sharma is overruled to the extent to
which it indicates to the contrary.

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2 Kharak Singh has correctly held that the content of the expression 'life' under Article 21
means not merely the right to a person's "animal existence" and that the expression 'personal liberty'
is a guarantee against invasion into the sanctity of a person's home or an intrusion into personal
security. Kharak Singh also correctly laid down that the dignity of the individual must lend content
to the meaning of 'personal liberty'. The first part of the decision in Kharak Singh which invalidated
domiciliary visits at night on the ground that they violated ordered liberty is an implicit recognition of
the right to privacy. The second part of the decision, however, which holds that the right to privacy is
not a guaranteed right under our Constitution, is not reflective of the correct position. Similarly,
Kharak Singh's reliance upon the decision of the majority in Gopalan is not reflective of the correct
position in view of the decisions in Cooper and in Maneka. Kharak Singh to the extent that it
holds that the right to privacy is not protected under the Indian Constitution is overruled.
3 (A) Life and personal liberty are inalienable rights. These are rights which are inseparable from
a dignified human existence. The dignity of the individual, equality between human beings and the
quest for liberty are the foundational pillars of the Indian Constitution;
(B) Life and personal liberty are not creations of the Constitution. These rights are recognised by
the Constitution as inhering in each individual as an intrinsic and inseparable part of the human
element which dwells within;
(C) Privacy is a constitutionally protected right which emerges primarily from the guarantee of
life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying
contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental
rights contained in Part III;
(D) Judicial recognition of the existence of a constitutional right of privacy is not an exercise in
the nature of amending the Constitution nor is the Court embarking on a constitutional function of
that nature which is entrusted to Parliament;
(E) Privacy is the constitutional core of human dignity. Privacy has both a normative and
descriptive function. At a normative level privacy sub-serves those eternal values upon which the
guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle
of entitlements and interests which lie at the foundation of ordered liberty;
(F) Privacy includes at its core the preservation of personal intimacies, the sanctity of family life,
marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone.
Privacy safeguards individual autonomy and recognises the ability of the individual to control vital
aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy
protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate
expectation of privacy may vary from the intimate zone to the private zone and from the private to
the public arenas, it is important to underscore that privacy is not lost or surrendered merely because
the individual is in a public place. Privacy attaches to the person since it is an essential facet of the
dignity of the human being;
(G) This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements
or interests comprised in the right to privacy. The Constitution must evolve with the felt necessities of
time to meet the challenges thrown up in a democratic order governed by the rule of law. The
meaning of the Constitution cannot be frozen on the perspectives present when it was adopted.
Technological change has given rise to concerns which were not present seven decades ago and the
rapid growth of technology may render obsolescent many notions of the present. Hence the
interpretation of the Constitution must be resilient and flexible to allow future generations to adapt its
content bearing in mind its basic or essential features;
(H) Like other rights which form part of the fundamental freedoms protected by Part III,
including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law
which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on
fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis
of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid
with reference to the encroachment on life and personal liberty under Article 21. An invasion of life
or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence
243 | P a g e
of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a
rational nexus between the objects and the means adopted to achieve them; and
(I) Privacy has both positive and negative content. The negative content restrains the state from
committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an
obligation on the state to take all necessary measures to protect the privacy of the individual.
4 Decisions rendered by this Court subsequent to Kharak Singh, upholding the right to privacy
would be read subject to the above principles.
5 Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of
information can originate not only from the state but from non-state actors as well. We commend to
the Union Government the need to examine and put into place a robust regime for data protection.
The creation of such a regime requires a careful and sensitive balance between individual interests
and legitimate concerns of the state. The legitimate aims of the state would include for instance
protecting national security, preventing and investigating crime, encouraging innovation and the
spread of knowledge, and preventing the dissipation of social welfare benefits. These are matters of
policy to be considered by the Union government while designing a carefully structured regime for
the protection of the data. Since the Union government has informed the Court that it has constituted
a Committee chaired by Hon'ble Shri Justice B N Srikrishna, former Judge of this Court, for that
purpose, the matter shall be dealt with appropriately by the Union government having due regard to
what has been set out in this judgment.
6 The reference is answered in the above terms. ..

244 | P a g e
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2. We are in this case, concerned with the grievances of the members of Transgender Community (for
short TG community) who seek a legal declaration of their gender identity than the one assigned to
them, male or female, at the time of birth and their prayer is that non-recognition of their gender
identity violates Articles 14 and 21 of the Constitution of India. Hijras/Eunuchs, who also fall in that
group, claim legal status as a third gender with all legal and constitutional protection.
1. The National Legal Services Authority, constituted under the Legal Services Authority Act, 1997,
to provide free legal services to the weaker and other marginalized sections of the society, has come
forward to advocate their cause, by filing Writ Petition No. 400 of 2012. Poojaya Mata Nasib Kaur Ji,
Women Welfare Society, a registered association, has also preferred Writ Petition No. 604 of 2013,
seeking similar reliefs in respect of Kinnar community, a TG community.
2. Learned senior counsel has submitted that since the TGs are neither treated as male or female, nor
given the status of a third gender, they are being deprived of many of the rights and privileges which
other persons enjoy as citizens of this country. TGs are deprived of social and cultural participation
and hence restricted access to education, health care and public places which deprives them of the
Constitutional guarantee of equality before law and equal protection of laws. Further, it was also
pointed out that the community also faces discrimination to contest election, right to vote,
employment, to get licences etc. and, in effect, treated as an outcast and untouchable. Learned senior
counsel also submitted that the State cannot discriminate them on the ground of gender, violating
Articles 14 to 16 and 21 of the Constitution of India.
3. Shri Rakesh K. Khanna, learned Additional Solicitor General, appearing for the Union of India,
highlighted the problems by the transgender community.
4. Laxmi Narayan Tripathy, a Hijra, through a petition supported by an affidavit, highlighted the
trauma undergone by Tripathy from Tripathys birth. Rather than explaining the same by us, it would
be appropriate to quote in Tripathys own words:
That the Applicant was born as a male. Growing up as a child, she felt different from the boys of
her age and was feminine in her ways. On account of her femininity, from an early age, she faced
repeated sexual harassment, molestation and sexual abuse, both within and outside the family. Due to
her being different, she was isolated and had no one to talk to or express her feelings while she was
coming to terms with her identity. She was constantly abused by everyone as a chakka and hijra.
Though she felt that there was no place for her in society, she did not succumb to the prejudice.She
started to dress and appear in public in womens clothing in her late teens but she did not identify as a
woman. Later, she joined the Hijra community in Mumbai as she identified with the other hijras and
for the first time in her life, she felt at home. That being a hijra, the Applicant has faced serious
discrimination throughout her life because of her gender identity. It has been clear to the Applicant
that the complete non-recognition of the identity of hijras/transgender persons by the State has
resulted in the violation of most of the fundamental rights guaranteed to them under the Constitution
of India.
HISTORICAL BACKGROUND OF TRANSGENDERS IN INDIA:
5. TG Community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. and
they, as a group, have got a strong historical presence in our country in the Hindu mythology and
other religious texts. The Concept of tritiya prakrti or napunsaka has also been an integral part of
vedic and puranic literatures. The word napunsaka has been used to denote absence of procreative
capability.
GENDER IDENTITY AND SEXUAL ORIENTATION
245 | P a g e
Gender identity is one of the most-fundamental aspects of life which refers to a person’s intrinsic
sense of being male, female or transgender or transsexual person. A person’s sex is usually assigned
at birth, but a relatively small group of person’s may born with bodies which incorporate both or
certain aspects of both male and female physiology. At times, genital anatomy problems may arise in
certain persons, their innate perception of themselves, is not in conformity with the sex assigned to
them at birth and may include pre and post-operative transsexual persons and also persons who do
not choose to undergo or do not have access to operation and also include persons who cannot
undergo successful operation. Countries, all over the world, including India, are grappled with the
question of attribution of gender to persons who believe that they belong to the opposite sex Gender
identity refers to each person’s deeply felt internal and individual experience of gender, which may or
may not correspond with the sex assigned at birth, including the personal sense of the body which
may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or
other means and other expressions of gender, including dress, speech and mannerisms.
6. Sexual orientation refers to an individuals enduring physical, romantic and/or emotional
attraction to another person. Sexual orientation includes transgender and gender-variant people with
heavy sexual orientation, which also includes homo-sexuals, bysexuals, heterosexuals, asexual etc.
Gender identity and sexual orientation, as already indicated, are different concepts. Each person’s
self-defined sexual orientation and gender identity is integral to their personality and is one of the
most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo
medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal
recognition of their gender identity.
THE RIGHTS TO EQUALITY AND NON-DISCRIMINATION Everyone is entitled to
enjoy all human rights without discrimination on the basis of sexual orientation or gender
identity. The law shall prohibit any such discrimination and guarantee to all persons equal
and effective protection against any such discrimination.
Discrimination on the basis of sexual orientation or gender identity includes any
distinction, exclusion, restriction or preference based on sexual orientation or gender identity
which has the purpose or effect of nullifying or impairing equality before the law or the equal
protection of the law, or the recognition, enjoyment or exercise, on an equal basis, of all
human rights and fundamental freedoms.
44. We can perceive a wide range of transgender related identities, cultures or experiences
which are generally as follows:
Hijras: Hijras are biological males who reject their masculine identity in due course of time
to identify either as women, or not- men, or in-between man and woman, or neither man nor
woman. Hijras can be considered as the western equivalent of transgender/transsexual (male-
to-female) persons but Hijras have a long tradition/culture and have strong social ties
formalized through a ritual called reet (becoming a member of Hijra community). There are
regional variations in the use of terms referred to Hijras. For example, Kinnars (Delhi) and
Aravanis (Tamil Nadu).
Eunuch: Eunuch refers to an emasculated male and intersexed to a person whose genitals are
ambiguously male-like at birth, but this is discovered the child previously assigned to the
male sex, would be recategorized as intesexexd as a Hijra.
Aravanis and Thirunangi: Hijras in Tamil Nadu identify as Aravani. Tamil Nadu
Aravanigal Welfare Board, a state governments initiative under the Department of Social
Welfare defines Aravanis as biological males who self-identify themselves as a woman
trapped in a males body.

246 | P a g e
Kothi: Kothis are a heterogeneous group. Kothis can be described as biological males who
show varying degrees of femininity which may be situational. Some proportion of Kothis
have bisexual behavior and get married to a woman.
Jogtas/Jogappas: Jogtas or Jogappas are those persons who are dedicated to and serve as a
servant of goddess Renukha Devi (Yellamma) whose temples are present in Maharashtra and
Karnataka. Jogta refers to male servant of that Goddess and Jogti refers to female servant
(who is also sometimes referred to as Devadasi). Sometimes, the term Jogti Hijras is used to
denote those male-to-female transgender persons who are devotees/servants of Goddess
Renukha Devi and who are also in the Hijra communities.
Shiv-Shakthis: Shiv-Shakthis are considered as males who are possessed by or particularly
close to a goddess and who have feminine gender expression. Usually, Shiv-Shakthis are
inducted into the Shiv- Shakti community by senior gurus, who teach them the norms,
customs, and rituals to be observed by them. In a ceremony, Shiv-Shakthis are married to a
sword that represents male power or Shiva (deity).
Shiv- Shakthis thus become the bride of the sword. Occasionally, Shiv- Shakthis cross-dress
and use accessories and ornaments that are generally/socially meant for women. Most people
in this community belong to lower socio-economic status and earn for their living as
astrologers, soothsayers, and spiritual healers; some also seek alms. (See Serena Nanda,
Wadsworth Publishing Company, Second Edition
45. Transgender people, as a whole, face multiple forms of oppression in this country.
Discrimination is so large and pronounced, especially in the field of health care, employment,
education, leave aside social exclusion. A detailed study was conducted by the United Nations
Development Programme (UNDP India). and submitted a report in December, 2010 on
Hijras/transgenders in India: HIV Human Rights and Social Exclusion. The estimated size of men
who have sex with men (MSM) and male sex workers population in India (latter presumably includes
Hijras/TG communities) is 2,352,133 and 235,213 respectively. It was stated that no reliable
estimates are available for Hijras/TG women.
53. In Vishaka and others v. State of Rajasthan and Others (1997) 6 SCC 241, this Court under
Article 141 laid down various guidelines to prevent sexual harassment of women in working places,
and to enable gender equality relying on Articles 11, 24 and general recommendations 22, 23 and 24
of the Convention on the Elimination of All Forms of Discrimination against Women. Any
international convention not inconsistent with the fundamental rights and in harmony with its spirit
must be read into those provisions, e.g., Articles 14, 15, 19 and 21 of the Constitution to enlarge the
meaning and content thereof and to promote the object of constitutional guarantee. Principles
discussed hereinbefore on TGs and the International Conventions, including Yogyakarta principles,
which we have found not inconsistent with the various fundamental rights guaranteed under the
Indian Constitution, must be recognized and followed, which has sufficient legal and historical
justification in our country.
ARTICLE 14 AND TRANSGENDERS
54. Article 14 of the Constitution of India states that the State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India. Equality includes the
full and equal enjoyment of all rights and freedom. Right to equality has been declared as the basic
feature of the Constitution and treatment of equals as unequals or unequals as equals will be violative
of the basic structure of the Constitution. Article 14 of the Constitution also ensures equal protection
and hence a positive obligation on the State to ensure equal protection of laws by bringing in
necessary social and economic changes, so that everyone including TGs may enjoy equal protection
of laws and nobody is denied such protection. Article 14 does not restrict the word person and its
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application only to male or female. Hijras/transgender persons who are neither male/female fall
within the expression person and, hence, entitled to legal protection of laws in all spheres of State
activity, including employment, healthcare, education as well as equal civil and citizenship rights, as
enjoyed by any other citizen of this country.
55. Petitioners have asserted as well as demonstrated on facts and figures supported by relevant
materials that despite constitutional guarantee of equality, Hijras/transgender persons have been
facing extreme discrimination in all spheres of the society. Non-recognition of the identity of
Hijras/transgender persons denies them equal protection of law, thereby leaving them extremely
vulnerable to harassment, violence and sexual assault in public spaces, at home and in jail, also by the
police. Sexual assault, including molestation, rape, forced anal and oral sex, gang rape and stripping
is being committed with impunity and there are reliable statistics and materials to support such
activities. Further, non- recognition of identity of Hijras /transgender persons results in them facing
extreme discrimination in all spheres of society, especially in the field of employment, education,
healthcare etc. Hijras/transgender persons face huge discrimination in access to public spaces like
restaurants, cinemas, shops, malls etc. Further, access to public toilets is also a serious problem they
face quite often. Since, there are no separate toilet facilities for Hijras/transgender persons, they have
to use male toilets where they are prone to sexual assault and harassment. Discrimination on the
ground of sexual orientation or gender identity, therefore, impairs equality before law and equal
protection of law and violates Article 14 of the Constitution of India.
ARTICLES 15 & 16 AND TRANSGENDERS
60. Articles 15 and 16 sought to prohibit discrimination on the basis of sex, recognizing that sex
discrimination is a historical fact and needs to be addressed. Constitution makers, it can be gathered,
gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or
indirect attitude to treat people differently, for the reason of not being in conformity with
stereotypical generalizations of binary genders. Both gender and biological attributes constitute
distinct components of sex. Biological characteristics, of course, include genitals, chromosomes and
secondary sexual features, but gender attributes include ones self image, the deep psychological or
emotional sense of sexual identity and character. The discrimination on the ground of sex under
Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The
expression sex used in Articles 15 and 16 is not just limited to biological sex of male or female, but
intended to include people who consider themselves to be neither male or female.
61. TGs have been systematically denied the rights under Article 15(2) that is not to be subjected to
any disability, liability, restriction or condition in regard to access to public places. TGs have also not
been afforded special provisions envisaged under Article 15(4) for the advancement of the socially
and educationally backward classes (SEBC) of citizens, which they are, and hence legally entitled
and eligible to get the benefits of SEBC. State is bound to take some affirmative action for their
advancement so that the injustice done to them for centuries could be remedied. TGs are also entitled
to enjoy economic, social, cultural and political rights without discrimination, because forms of
discrimination on the ground of gender are violative of fundamental freedoms and human rights. TGs
have also been denied rights under Article 16(2) and discriminated against in respect of employment
or office under the State on the ground of sex. TGs are also entitled to reservation in the matter of
appointment, as envisaged under Article 16(4) of the Constitution. State is bound to take affirmative
action to give them due representation in public services.
62. Articles 15(2) to (4) and Article 16(4) read with the Directive Principles of State Policy and
various international instruments to which Indian is a party, call for social equality, which the TGs
could realize, only if facilities and opportunities are extended to them so that they can also live with
dignity and equal status with other genders.
248 | P a g e
63. Articles 15 and 16 sought to prohibit discrimination on the basis of sex, recognizing that sex
discrimination is a historical fact and needs to be addressed. Constitution makers, it can be gathered,
gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or
indirect attitude to treat people differently, for the reason of not being in conformity with
stereotypical generalizations of binary genders. Both gender and biological attributes constitute
distinct components of sex. Biological characteristics, of course, include genitals, chromosomes and
secondary sexual features, but gender attributes include ones self image, the deep psychological or
emotional sense of sexual identity and character. The discrimination on the ground of sex under
Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The
expression sex used in Articles 15 and 16 is not just limited to biological sex of male or female, but
intended to include people who consider themselves to be neither male or female.
64. TGs have been systematically denied the rights under Article 15(2) that is not to be subjected to
any disability, liability, restriction or condition in regard to access to public places. TGs have also not
been afforded special provisions envisaged under Article 15(4) for the advancement of the socially
and educationally backward classes (SEBC) of citizens, which they are, and hence legally entitled
and eligible to get the benefits of SEBC. State is bound to take some affirmative action for their
advancement so that the injustice done to them for centuries could be remedied. TGs are also entitled
to enjoy economic, social, cultural and political rights without discrimination, because forms of
discrimination on the ground of gender are violative of fundamental freedoms and human rights. TGs
have also been denied rights under Article 16(2) and discriminated against in respect of employment
or office under the State on the ground of sex. TGs are also entitled to reservation in the matter of
appointment, as envisaged under Article 16(4) of the Constitution. State is bound to take affirmative
action to give them due representation in public services.
65. Articles 15(2) to (4) and Article 16(4) read with the Directive Principles of State Policy and
various international instruments to which Indian is a party, call for social equality, which the TGs
could realize, only if facilities and opportunities are extended to them so that they can also live with
dignity and equal status with other genders.
ARTICLE 19(1)(a) AND TRANSGENDERS
Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of
speech and expression, which includes ones right to expression of his self-identified gender.
Self-identified gender can be expressed through dress, words, action or behavior or any other
form. No restriction can be placed on ones personal appearance or choice of dressing, subject
to the restrictions contained in Article 19(2) of the Constitution.
65. Principles referred to above clearly indicate that the freedom of expression guaranteed under
Article 19(1)(a) includes the freedom to express ones chosen gender identity through varied ways and
means by way of expression, speech, mannerism, clothing etc.
66. Gender identity, therefore, lies at the core of ones personal identity, gender expression and
presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of
India. A transgenders personality could be expressed by the transgenders behavior and presentation.
State cannot prohibit, restrict or interfere with a transgenders expression of such personality, which
reflects that inherent personality. Often the State and its authorities either due to ignorance or
otherwise fail to digest the innate character and identity of such persons. We, therefore, hold that
values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to
members of the transgender community under Article 19(1)(a) of the Constitution of India and the
State is bound to protect and recognize those rights.
ARTICLE 21 AND THE TRANSGENDERS

249 | P a g e
67.Article 21 is the heart and soul of the Indian Constitution, which speaks of the rights to life and
personal liberty. Right to life is one of the basic fundamental rights and not even the State has the
authority to violate or take away that right. Article 21 takes all those aspects of life which go to make
a persons life meaningful. Article 21 protects the dignity of human life, ones personal autonomy,
ones right to privacy, etc. Right to dignity has been recognized to be an essential part of the right to
life and accrues to all persons on account of being humans. In Francis Coralie Mullin v.
Administrator,Union Territory of Delhi (1981) 1 SCC 608 (paras 7 and 8), this Court held that the
right to dignity forms an essential part of our constitutional culture which seeks to ensure the full
development and evolution of persons and includes expressing oneself in diverse forms, freely
moving about and mixing and comingling with fellow human beings.
68. Recognition of ones gender identity lies at the heart of the fundamental right to dignity. Gender,
as already indicated, constitutes the core of ones sense of being as well as an integral part of a
persons identity. Legal recognition of gender identity is, therefore, part of right to dignity and
freedom guaranteed under our Constitution.
LEGAL RECOGNITION OF THIRD/TRANSGENDER IDENTITY
70. Gender identity, as already indicated, refers to a persons internal sense of being male, female or a
transgender, for example Hijras do not identify as female because of their lack of female genitalia or
lack of reproductive capability. This distinction makes them separate from both male and female
genders and they consider themselves neither man nor woman, but a third gender. Hijras, therefore,
belong to a distinct socio-religious and cultural group and have, therefore, to be considered as a third
gender, apart from male and female. State of Punjab has treated all TGs as male which is not legally
sustainable. State of Tamil Nadu has taken lot of welfare measures to safeguard the rights of TGs,
which we have to acknowledge. Few States like Kerala, Tripura, Bihar have referred TGs as third
gender or sex. Certain States recognize them as third category. Few benefits have also been extended
by certain other States. Our neighbouring countries have also upheld their fundamental rights and
right to live with dignity.
71. The Supreme Court of Nepal in Sunil Babu Pant & Ors. v. Nepal Government (Writ Petition
No.917 of 2007 decided on 21st December, 2007), spoke on the rights of Transgenders as follows:-
the fundamental rights comprised under Part II of the Constitution are enforceable
fundamental human rights guaranteed to the citizens against the State. For this reason,
the fundamental rights stipulated in Part III are the rights similarly vested in the third
gender people as human beings. The homosexuals and third gender people are also
human beings as other men and women are, and they are the citizens of this country
as well. Thus, the people other than men and women, including the people of third
gender cannot be discriminated. The State should recognize the existence of all
natural persons including the people of third gender other than the men and women.
And it cannot deprive the people of third gender from enjoying the fundamental rights
provided by Part III of the Constitution.
72. The Supreme Court of Pakistan in Dr. Mohammad Aslam Khaki & Anr. V. Senior
Superintendent of Police (Operation) Rawalpindi & Ors. (Constitution Petition No.43 of 2009)
decided on 22nd March, 2011, had occasion to consider the rights of eunuchs and held as follows:-
Needless to observe that eunuchs in their rights are citizens of this country and subject
to the Constitution of the Islamic Republic of Pakistan, 1973, their rights, obligations
including right to life and dignity are equally protected. Thus no discrimination, for
any reason, is possible against them as far as their rights and obligations are
concerned. The Government functionaries both at federal and provincial levels are

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bound to provide them protection of life and property and secure their dignity as well,
as is done in case of other citizens.
Article 21, as already indicated, protects ones right of self- determination of the gender to which a
person belongs. Determination of gender to which a person belongs is to be decided by the person
concerned. In other words, gender identity is integral to the dignity of an individual and is at the core
of personal autonomy and self-determination. Hijras/Eunuchs, therefore, have to be considered as
Third Gender, over and above binary genders under our Constitution and the laws.
74. Articles 14, 15, 16, 19 and 21, above discussion, would indicate, do not exclude
Hijras/Transgenders from its ambit, but Indian law on the whole recognize the paradigm of binary
genders of male and female, based on ones biological sex. As already indicated, we cannot accept the
Corbett principle of Biological Test, rather we prefer to follow the psyche of the person in
determining sex and gender and prefer the Psychological Test instead of Biological Test. Binary
notion of gender reflects in the Indian Penal Code, for example, Section 8, 10, etc. and also in the
laws related to marriage, adoption, divorce, inheritance, succession and other welfare legislations like
NAREGA, 2005, etc. Non-recognition of the identity of Hijras/Transgenders in the various
legislations denies them equal protection of law and they face wide-spread discrimination.
Hijras, Aravanis, Kothis, jogtas/Jogappas, and Shiv-Shakthis (Hijras: They are biological males who
reject their masculinity identity in due course of time to identify either as women, or not men.
Aravanis: Hijras in Tamil Nadu identify as Aravani. Kothi: Kothis are heterogeneous group. Kothis
can be described as biological males who show varying degrees of feminity. Jogtas/Jogappas: They
are those who are dedicated to serve as servant of Goddess Renukha Devi whose temples are present
in Maharashtra and Karnataka. Sometimes, Jogti Hijras are used to denote such male-to-female
transgender persons who are devotees of Goddess Renukha and are also from the Hijra community.
Shiv-Shakthis: They are considered as males who are possessed by or particularly close to a goddess
and who have feminine gender expression). The way they behave and acts differs from the normative
gender role of a men and women. For them, furthering life is far more difficult since such people are
neither categorized as men nor women and this deviation is unacceptable to societys vast majority.
Endeavour to live a life with dignity is even worse.
Therefore, we make it clear at the outset that when we discuss about the question of conferring
distinct identity, we are restrictive in our meaning which has to be given to TG community i.e. hijra
etc., as explained above.
109. Their historical background and individual scenario has been stated in detail in the
accompanying judgment rendered by my learned Brother. Few things which follow from this
discussion are summed up below:
(a) Though in the past TG in India was treated with great respect, that does not
remain the scenario any longer. Attrition in their status was triggered with the passing
of the Criminal Tribes Act, 1871 which deemed the entire community of Hijara
persons as innately criminal and adapted to the systematic commission of non-
bailable offences. This dogmatism and indoctrination of Indian people with aforesaid
presumption, was totally capricious and nefarious. There could not have been more
harm caused to this community with the passing of the aforesaid brutal Legislation
during British Regime with the vicious and savage this mind set. To add insult to the
irreparable injury caused, Section 377 of the Indian Penal Code was misused and
abused as there was a tendency, in British period, to arrest and prosecute TG persons
under Section 377 merely on suspicion. To undergo this sordid historical harm caused

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to TGs of India, there is a need for incessant efforts with effervescence.
(b) There may have been marginal improvement in the social and economic
condition of TGs in India. It is still far from satisfactory and these TGs continue to
face different kinds of economic blockade and social degradation. They still face
multiple forms of oppression in this country. Discrimination qua them is clearly
discernable in various fields including health care, employment, education, social
cohesion etc.
(c) The TGs are also citizens of this country. They also have equal right to achieve
their full potential as human beings. For this purpose, not only they are entitled to
proper education, social assimilation, access to public and other places but
employment opportunities as well. The discussion above while dealing with the first
issue, therefore, equally applies to this issue as well.
76. Article 14 has used the expression person and the Article 15 has used the expression citizen and
sex so also Article 16. Article 19 has also used the expression citizen. Article 21 has used the
expression person. All these expressions, which are gender neutral evidently refer to human-beings.
Hence, they take within their sweep Hijras/Transgenders and are not as such limited to male or
female gender. Gender identity as already indicated forms the core of ones personal self, based on
self identification, not on surgical or medical procedure. Gender identity, in our view, is an integral
part of sex and no citizen can be discriminated on the ground of gender identity, including those who
identify as third gender.
77. We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity
includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or
transposing equality by the law or the equal protection of laws guaranteed under our Constitution,
and hence we are inclined to give various directions to safeguard the constitutional rights of the
members of the TG community.
A.K. SIKRI,J. : I have carefully, and with lot of interest, gone through the perspicuous opinion of
my brother Radhakrishnan,J. I am entirely in agreement with the discussion contained in the said
judgment on all the cardinal issues that have arisen for consideration in these proceedings. At the
same time, having regard to the fact that the issues involved are of seminal importance, I am also
inclined to pen down my thoughts.
78. As is clear, these petitions essentially raise an issue of Gender Identity, which is the core issue. It
has two facets, viz.:
(a) Whether a person who is born as a male with predominantly female orientation
(or vice-versa), has a right to get himself to be recognized as a female as per his
choice moreso, when such a person after having undergone operational procedure,
changes his/her sex as well;
(b) Whether transgender (TG), who are neither males nor females, have a right to be
identified and categorized as a third gender?
79. We would hasten to add that it is the second issue with which we are primarily concerned in
these petitions though in the process of discussion, first issue which is somewhat inter-related, has
also popped up.
Indubitably, the issue of choice of gender identify has all the trappings of a human rights. That apart,
as it becomes clear from the reading of the judgment of my esteemed Brother Radhakrishnan,J., the
issue is not limited to the exercise of choice of gender/sex. Many rights which flow from this choice
also come into play, inasmuch not giving them the status of a third gender results in depriving the
community of TGs of many of their valuable rights and privileges which other persons enjoy as
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citizens of this Country. There is also deprivation of social and cultural participation which results
into eclipsing their access to education and health services. Radhakrishnan,J. has exhaustively
described the term Transgender as an umbrella term which embraces within itself a wide range of
identities and experiences including but not limited to preoperative/post-operative trans sexual people
who strongly identify with the gender opposite to their biological sex i.e. male/ female. Therein, the
history of transgenders in India is also traced and while doing so, there is mention of upon the
draconian legislation enacted during the British Rule, known as Criminal Tribes Act, 1871 which
treated, per se, the entire community of Hizra persons as innately criminals, addicted to the
systematic commission of non-bailable offences.
(1) Re: Right of a person to have the gender of his/her choice. When a child is born, at the time of
birth itself, sex is assigned to him/her. A child would be treated with that sex thereafter, i.e. either a
male or a female. However, as explained in detail in the accompanying judgment, some persons,
though relatively very small in number, may born with bodies which incorporate both or certain
aspects of both male or female physiology. It may also happen that though a person is born as a male,
because of some genital anatomy problems his innate perception may be that of a female and all his
actions would be female oriented. The position may be exactly the opposite wherein a person born as
female may behave like a male person.
80. In earlier times though one could observe such characteristics, at the same time the underlying
rationale or reason behind such a behavior was not known. Over a period of time, with in depth study
and research of such physical and psychological factors bevaviour, the causes of this behaviour have
become discernable which in turn, has led to some changes in societal norms. Society has starting
accepting, though slowly, these have accepted the behavioral norms of such persons without treating
it as abnormal. Further, medical science has leaped forward to such an extent that even physiology
appearance of a person can be changed through surgical procedures, from male to female and vice-
versa. In this way, such persons are able to acquire the body which is in conformity with the
perception of their gender/gender characteristics. In order to ensure that law also keeps pace with the
aforesaid progress in medical science, various countries have come out with Legislation conferring
rights on such persons to recognize their gender identity based on reassigned sex after undergoing
Sex Re-Assignment Surgery (SRS).
81. The genesis of this recognition lies in the acknowledgment of another fundamental and universal
principal viz. right of choice given to an individual which is the inseparable part of human rights. It is
a matter of historical significance that the 20th Century is often described as the age of rights.
82. The most important lesson which was learnt as a result of Second World War was the realization
by the Governments of various countries about the human dignity which needed to be cherished and
protected. It is for this reason that in the U.N.Charter, 1945, adopted immediately after the Second
World War, dignity of the individuals was mentioned as of core value. The almost contemporaneous
Universal Declaration of Human Rights (1948) echoed same sentiments.
87.There is thus a universal recognition that human rights are rights that belong to every person, and
do not depend on the specifics of the individual or the relationship between the right-holder and the
right- grantor. Moreover, human rights exist irrespective of the question whether they are granted or
recognized by the legal and social system within which we live. They are devices to evaluate these
existing arrangements: ideally, these arrangements should not violate human rights. In other words,
human rights are moral, pre-legal rights. They are not granted by people nor can they be taken away
by them.

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88.In international human rights law, equality is found upon two complementary principles: non-
discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure
that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs
due to arbitrary denial of opportunities for equal participation. For example, when public facilities
and services are set on standards out of the reach of the TGs, it leads to exclusion and denial of rights.
Equality not only implies preventing discrimination (example, the protection of individuals against
unfavourable treatment by introducing anti- discrimination laws), but goes beyond in remedying
discrimination against groups suffering systematic discrimination in society.
89.Nevertheless, the Universal Declaration of Human Rights recognizes that all human beings are
born free and equal in dignity and rights and, since the Covenants provisions apply fully to all
members of society, persons with disabilities are clearly entitled to the full range of rights recognized
in the Covenant. Moreover, the requirement contained in Article 2 of the Covenant that the rights
enunciated will be exercised without discrimination of any kind based on certain specified grounds or
other status clearly applies to cover persons with disabilities.
90.India attained independence within two years of adoption of the aforesaid U.N.Charter and it was
but natural that such a Bill of Rights would assume prime importance insofar as thinking of the
members of the Constituent Assembly goes. It in fact did and we found chapter on fundamental rights
in Part-III of the Constitution. Some of the provisions relevant for our purposes would be Article 14,
15,16 and 21 of the Constitution which have already been adverted to in detail in the accompanying
judgment. At this juncture it also needs to be emphasized simultaneously is that in addition to the
fundamental rights, Constitution makers also deemed it proper to impose certain obligations on the
State in the form of Directive Principles of State Policy (Part-IV) as a mark of good governance. It is
this part which provides an ideal and purpose to our Constitution and delineates certain principles
which are fundamental in the governance of the country. Dr.Ambedkar had explained the purpose of
these Directive Principles in the following manner (See Constituent Assembly debates):
The Directive Principles are like the Instruments of Instructions which were issued to
the Governor-General and the Governors of Colonies, and to those of India by the
British Government under the 1935 Government of India Act. What is called
Directive Principles is merely another name for the Instrument of Instructions. The
only difference is that they are instructions to the legislature and the executive.
Whoever capture power will not be free to do what he likes with it. In the exercise of
it he will have to respect these instruments of instructions which are called Directive
Principles.
91.The basic spirit of our Constitution is to provide each and every person of the nation equal
opportunity to grow as a human being, irrespective of race, caste, religion, community and social
status. Granville Austin while analyzing the functioning of Indian Constitution in first 50 years has
described three distinguished strands of Indian Constitution: (i)protecting national unity and integrity,
(ii)establishing the institution and spirit of democracy; and (iii) fostering social reforms. The Strands
are mutually dependent, and inextricably intertwined in what he elegantly describes as a seamless
web. And there cannot be social reforms till it is ensured that each and every citizen of this country is
able to exploit his/her potentials to the maximum. The Constitution, although drafted by the
Constituent Assembly, was meant for the people of India and that is why it is given by the people to
themselves as expressed in the opening words We the People. What is the most important gift to the
common person given by this Constitution is fundamental rights which may be called Human Rights
as well.

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92.The concept of equality in Article 14 so also the meaning of the words life, liberty and law in
Article 21 have been considerably enlarged by judicial decisions. Anything which is not reasonable,
just and fair is not treated to be equal and is, therefore, violative of Article 14.
95.A most remarkable feature of this expansion of Art.21 is that many of the non-justiciable Directive
Principles embodied in Part IV of the Constitution have now been resurrected as enforceable
fundamental rights by the magic wand of judicial activism, playing on Art.21
96. the negative language of Art.21 and use of the word deprived was supposed to impose upon the
State the negative duty not to interfere with the life or liberty of an individual without the sanction of
law, the width and amplitude of this provision has now imposed a positive obligation (Vincent
Panikurlangara Vs. UOI AIR 1987 SC 990) upon the State to take steps for ensuring to the individual
a better enjoyment of his life and dignity, e.g.
(i) Maintenance and improvement of public health (Vincent Panikurlangara Vs. UOI AIR 1987 SC
990).
(ii) Elimination of water and air pollution (Mehta M.C. Vs. UOI (1987) 4 SCC 463).
(iii) Improvement of means of communication (State of H.P. Vs. Umed Ram Sharma AIR 1986 SC
847).
(iv) Rehabilitation of bonded labourers (Bandhuva Mukti Morcha Vs. UOI, AIR 1984 SC 802).
(v) Providing human conditions if prisons (Sher Singh Vs. State of Punjab AIR 1983 SC 465) and
protective homes (Sheela Barse Vs. UOI (1986) 3 SCC 596).
(vi) Providing hygienic condition in a slaughter-house (Buffalo Traders Welfare Ass. Vs. Maneka
Gandhi (1994) Suppl (3) SCC 448) .
83. The common golden thread which passes through all these pronouncements is that Art.21
guarantees enjoyment of life by all citizens of this country with dignity, viewing this human rights in
terms of human development.
84. The concepts of justice social, economic and political, equality of status and of opportunity and
of assuring dignity of the individual incorporated in the Preamble, clearly recognize the right of one
and all amongst the citizens of these basic essentials designed to flower the citizens personality to its
fullest. The concept of equality helps the citizens in reaching their highest potential.
85. Thus, the emphasis is on the development of an individual in all respects. The basic principle of
the dignity and freedom of the individual is common to all nations, particularly those having
democratic set up. Democracy requires us to respect and develop the free spirit of human being which
is responsible for all progress in human history. Democracy is also a method by which we attempt to
raise the living standard of the people and to give opportunities to every person to develop his/her
personality. It is founded on peaceful co-existence and cooperative living. If democracy is based on
the recognition of the individuality and dignity of man, as a fortiori we have to recognize the right of
a human being to choose his sex/gender identity which is integral his/her personality and is one of the
most basic aspect of self-determination dignity and freedom. In fact, there is a growing recognition
that the true measure of development of a nation is not economic growth; it is human dignity.
101.Over a period of time, two divergent interpretations of the Kantian criterion of justice came to be
discussed. One trend was an increasing stress on the maximum of individual freedom of action as the
end of law. This may not be accepted and was criticized by the protagonist of hedonist utilitarianism,
notably Benthem. This school of thoughts laid emphasis on the welfare of the society rather than an
individual by propounding the principle of maximum of happiness to most of the people. Fortunately,
in the instant case, there is no such dichotomy between the individual freedom/liberty we are
discussing, as against public good. On the contrary, granting the right to choose gender leads to
public good. The second tendency of Kantian criterion of justice was found in re-interpreting freedom
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in terms not merely of absence of restraint but in terms of attainment of individual perfection. It is
this latter trend with which we are concerned in the present case and this holds good even today. As
pointed out above, after the Second World War, in the form of U.N.Charter and thereafter there is
more emphasis on the attainment of individual perfection.
86. In fact, the recognition that every individual has fundamental right to achieve the fullest
potential, is founded on the principle that all round growth of an individual leads to common public
good. After all, human beings are also valuable asset of any country who contribute to the growth and
welfare of their nation and the society. A person who is born with a particular sex and his forced to
grow up identifying with that sex, and not a sex that his/her psychological behavior identifies with,
faces innumerable obstacles in growing up. In an article appeared in the magazine Eye of the Sunday
Indian Express (March 9-15, 2014) a person born as a boy but with trappings of female ( who is now
a female after SRS) has narrated these difficulties in the following manner:
The other children treated me as a boy, but I preferred playing with girls.
Unfortunately, grown-ups consider that okay only as long as you are a small child.
The constant inner conflict made things difficult for me and, as I grew up, I began to
dread social interactions.
87. Such a person, carrying dual entity simultaneously, would encounter mental and psychological
difficulties which would hinder his/her normal mental and even physical growth. It is not even easy
for such a person to take a decision to undergo SRS procedure which requires strong mental state of
affairs. However, once that is decided and the sex is changed in tune with psychological behavior, it
facilitates spending the life smoothly. Even the process of transition is not smooth. The transition
from a man to a woman is not an overnight process. It is a painfully long procedure that requires a lot
of patience. A person must first undergo hormone therapy and, if possible, live as a member of the
desired sex for a while. To be eligible for hormone therapy, the person needs at least two psychiatrists
to certify that he or she is mentally sound, and schizophrenia, depression and transvestism have to be
ruled out first.
91. If a person has changed his/her sex in tune with his/her gender characteristics and perception
,which has become possible because of the advancement in medical science, and when that is
permitted by in medical ethics with no legal embargo, we do not find any impediment, legal or
otherwise, in giving due recognition to the gender identity based on the reassign sex after undergoing
SRS.
92. For these reasons, we are of the opinion that even in the absence of any statutory regime in this
country, a person has a constitutional right to get the recognition as male or female after SRS, which
was not only his/her gender characteristic but has become his/her physical form as well.
(2) Re: Right of TG to be identified and categorized as third gender.
93. At the outset, it may be clarified that the term transgender is used in a wider sense, in the
present age. Even Gay, Lesbian, bisexual are included by the descriptor transgender. Etymologically,
the term transgender is derived from two words, namely trans and gender. Former is a Latin word
which means across or beyond. The grammatical meaning of transgender, therefore, is across or
beyond gender. This has come to be known as umbrella term which includes Gay men, Lesbians,
bisexuals, and cross dressers within its scope. However, while dealing with the present issue we are
not concerned with this aforesaid wider meaning of the expression transgender.
94. It is to be emphasized that Transgender in India have assumed distinct and separate
class/category which is not prevalent in other parts of the World except in some neighbouring
countries . In this country, TG community comprise of Hijaras, enunch, Kothis, Aravanis, Jogappas,
Shiv- Shakthis etc. In Indian community transgender are referred as Hizra or the third gendered
people. There exists wide range of transgender-related identities, cultures, or experience including
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110. We are of the firm opinion that by recognizing such TGs as third gender, they would be able to
enjoy their human rights, to which they are largely deprived of for want of this recognition. As
mentioned above, the issue of transgender is not merely a social or medical issue but there is a need
to adopt human right approach towards transgenders which may focus on functioning as an
interaction between a person and their environment highlighting the role of society and changing the
stigma attached to them. TGs face many disadvantages due to various reasons, particularly for gender
abnormality which in certain level needs to physical and mental disability. Up till recently they were
subjected to cruelty, pity or charity. Fortunately, there is a paradigm shift in thinking from the
aforesaid approach to a rights based approach. Though, this may be the thinking of human rights
activist, the society has not kept pace with this shift. There appears to be limited public knowledge
and understanding of same-sex sexual orientation and people whose gender identity and expression
are incongruent with their biological sex. As a result of this approach, such persons are socially
excluded from the mainstream of the society and they are denied equal access to those fundamental
rights and freedoms that the other people enjoy freely.(See, Hijras/Transgender Women in India:
HIV, Human Rights and Social Exclusion, UNDP report on India Issue: December, 2010).
111. Some of the common and reported problem that transgender most commonly suffer are:
harassment by the police in public places, harassment at home, police entrapment, rape,
discriminations, abuse in public places et.al. The other major problems that the transgender people
face in their daily life are discrimination, lack of educational facilities, lack of medical facilities,
homelessness, unemployment, depression, hormone pill abuse, tobacco and alcohol abuse, and
problems related to marriage and adoption. In spite of the adoption of Universal Declaration of
Human Rights (UDHR) in the year 1948, the inherent dignity, equality, respect and rights of all
human beings throughout the world, the transgender are denied basic human rights. This denial is
premised on a prevalent juridical assumption that the law should target discrimination based on sex
(i.e., whether a person is anatomically male or female), rather than gender (i.e., whether a person has
qualities that society consider masculine or feminine (Katherine M.Franke, The Central Mistake of
Sex Discrimination Law: the Disaggregation of Sex from Gender, 144 U.Pa.Rev.1,3 (1995) (arguing
that by defining sex in biological terms, the law has failed to distinguish sex from gender, and sexual
differentiation from sex discrimination). Transgender people are generally excluded from the society
and people think transgenderism as a medical disease. Much like the disability, which in earlier times
was considered as an illness but later on looked upon as a right based approach. The question whether
transgenderism is a disease is hotly debated in both the transgender and medical-psychiatric
communities. But a prevalent view regarding this is that transgenderism is not a disease at all, but a
benign normal variant of the human experience akin to left- handedness.
112. Therefore, gender identification becomes very essential component which is required for
enjoying civil rights by this community. It is only with this recognition that many rights attached to
the sexual recognition as third gender would be available to this community more meaningfully viz.
the right to vote, the right to own property, the right to marry, the right to claim a formal identity
through a passport and a ration card, a drivers license, the right to education, employment, health so
on.
113. Further, there seems to be no reason why a transgender must be denied of basic human rights
which includes Right to life and liberty with dignity, Right to Privacy and freedom of expression,
Right to Education and Empowerment, Right against violence, Right against Exploitation and Right
against Discrimination. Constitution has fulfilled its duty of providing rights to transgenders. Now its
time for us to recognize this and to extend and interpret the Constitution in such a manner to ensure a

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dignified life of transgender people. All this can be achieved if the beginning is made with the
recognition that TG as third gender.
114. In order to translate the aforesaid rights of TGs into reality, it becomes imperative to first assign
them their proper sex. As is stated earlier, at the time of birth of a child itself, sex is assigned.
However, it is either male or female. In the process, the society as well as law, has completely
ignored the basic human right of TGs to give them their appropriate sex categorization. Up to now,
they have either been treated as male or female. This is not only improper as it is far from truth, but
indignified to these TGs and violates their human rights.
115. Though there may not be any statutory regime recognizing third gender for these TGs.
However, we find enough justification to recognize this right of theirs in natural law sphere. Further,
such a justification can be traced to the various provisions contained in Part III of the Constitution
relating to Fundamental Rights.
118.There is a recognition to the hard realty that without protection for human rights there can be no
democracy and no justification for democracy. In this scenario, while working within the realm of
separation of powers (which is also fundamental to the substantive democracy), the judicial role is
not only to decide the dispute before the Court, but to uphold the rule of law and ensure access to
justice to the marginalized section of the society. It cannot be denied that TGs belong to the
unprivileged class which is a marginalized section.
119. The role of the Court is to understand the central purpose and theme of the Constitution for the
welfare of the society. Our Constitution, like the law of the society, is a living organism. It is based
on a factual and social realty that is constantly changing. Sometimes a change in the law precedes
societal change and is even intended to stimulate it. Sometimes, a change in the law is the result in
the social realty. When we discuss about the rights of TGs in the constitutional context, we find that
in order to bring about complete paradigm shift, law has to play more pre-dominant role. As TGs in
India, are neither male nor female, treating them as belonging to either of the aforesaid categories, is
the denial of these constitutional rights. It is the denial of social justice which in turn has the effect of
denying political and economic justice.
Oliver Wendlle Holmes said: the life of law has been logical; it has been experience. It may be
added that the life of law is not just logic or experience. The life of law is renewable based on
experience and logic, which adapted law to the new social realty. Recognizing this fact, the aforesaid
provisions of the Constitution are required to be given new and dynamic meaning with the inclusion
of rights of TGs as well. In this process, the first and foremost right is to recognize TGs as third
gender in law as well. This is a recognition of their right of equality enshrined in Art.14 as well as
their human right to life with dignity, which is the mandate of the Art.21 of the Constitution. This
interpretation is in consonance with new social needs. By doing so, this Court is only bridging the
gap between the law and life and that is the primary role of the Court in a democracy. It only amounts
to giving purposive interpretation to the aforesaid provisions of the Constitution so that it can adapt to
the changes in realty. Law without purpose has no raison detre. The purpose of law is the evolution of
a happy society. As Justice Iyer has aptly put:
The purpose of law is the establishment of the welfare of society and a society whose
members enjoy welfare and happiness may be described as a just society. It is a
negation of justice to say that some members, some groups, some minorities, some
individuals do not have welfare: on the other hand they suffer from ill-fare. So it is
axiomatic that law, if it is to fulfil itself, must produce a contented, dynamic society
which is at once meting out justice to its members.
116. It is now very well recognized that the Constitution is a living character; its interpretation must

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be dynamic. It must be understood in a way that intricate and advances modern realty. The judiciary
is the guardian of the Constitution and by ensuring to grant legitimate right that is due to TGs, we are
simply protecting the Constitution and the democracy inasmuch as judicial protection and democracy
in general and of human rights in particular is a characteristic of our vibrant democracy.
117. As we have pointed out above, our Constitution inheres liberal and substantive democracy with
rule of law as an important and fundamental pillar. It has its own internal morality based on dignity
and equality of all human beings. Rule of law demands protection of individual human rights. Such
rights are to be guaranteed to each and every human being. These TGs, even though insignificant in
numbers, are still human beings and therefore they have every right to enjoy their human rights.
118. In National Human Rights Commission vs. State of Arunachal Pradesh (AIR 1996 SC
1234), This Court observed:
We are a country governed by the Rule of Law. Our Constitution confers certain
rights on every human being and certain other rights on citizens. Every person is
entitled to equality before the law and equal protection of the laws.
119. The rule of law is not merely public order. The rule of law is social justice based on public
order. The law exists to ensure proper social life. Social life, however, is not a goal in itself but a
means to allow the individual to life in dignity and development himself. The human being and
human rights underlie this substantive perception of the rule of law, with a proper balance among the
different rights and between human rights and the proper needs of society. The substantive rule of
law is the rule of proper law, which balances the needs of society and the individual. This is the rule
of law that strikes a balance between societys need for political independence, social equality,
economic development, and internal order, on the one hand, and the needs of the individual, his
personal liberty, and his human dignity on the other. It is the duty of the Court to protect this rich
concept of the rule of law.
120. By recognizing TGs as third gender, this Court is not only upholding the rule of law but also
advancing justice to the class, so far deprived of their legitimate natural and constitutional rights. It is,
therefore, the only just solution which ensures justice not only to TGs but also justice to the society as
well. Social justice does not mean equality before law in papers but to translate the spirit of the
Constitution, enshrined in the Preamble, the Fundamental Rights and the Directive Principles of State
Policy into action, whose arms are long enough to bring within its reach and embrace this right of
recognition to the TGs which legitimately belongs to them.
121. Aristotle opined that treating all equal things equal and all unequal things unequal amounts to
justice. Kant was of the view that at the basis of all conceptions of justice, no matter which culture or
religion has inspired them, lies the golden rule that you should treat others as you would want
everybody to treat everybody else, including yourself. In post-traditional liberal democratic theories
of justice, the background assumption is that humans have equal value and should, therefore, be
treated as equal, as well as by equal laws. This can be described as Reflective Equilibrium. It is John
Rawls who elaborated this method of Reflective Equilibrium by introducing the conception of Justice
as Fairness. In his Theory of Justice, Rawls has proposed a model of just institutions for democratic
societies. Herein he draws on certain pre-theoretical elementary moral beliefs (considered
judgments), which he assumes most members of democratic societies would accept. [Justice as
fairness [.] tries to draw solely upon basic intuitive ideas that are embedded in the political
institutions of a constitutional democratic regime and the public traditions of their interpretations.
Justice as fairness is a political conception in part because it starts from within a certain political
tradition. Based on this preliminary understanding of just institutions in a democratic society, Rawls
aims at a set of universalistic rules with the help of which the justice of present formal and informal

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institutions can be assessed. The ensuing conception of justice is called justice as fairness. When we
combine Rawlss notion of Justice as Fairness with the notions of Distributive Justice, to which Noble
Laureate Prof. Amartya Sen has also subscribed, we get jurisprudential basis for doing justice to the
Vulnerable Groups which definitely include TGs. Once it is accepted that the TGs are also part of
vulnerable groups and marginalized section of the society, we are only bringing them within the fold
of aforesaid rights recognized in respect of other classes falling in the marginalized group. This is the
minimum riposte in an attempt to assuage the insult and injury suffered by them so far as to pave way
for fast tracking the realization of their human rights.
122. The aforesaid, thus, are my reasons for treating TGs as third gender for the purposes of
safeguarding and enforcing appropriately their rights guaranteed under the Constitution. These are
my reasons in support of our Constitution to the two issues in these petitions.
.J.(A.K.Sikri) We, therefore, declare:

(1) Hijras, Eunuchs, apart from binary gender, be treated as third gender for the purpose of
safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the
State Legislature.
(2) Transgender persons right to decide their self-identified gender is also upheld and the Centre and
State Governments are directed to grant legal recognition of their gender identity such as male, female or
as third gender.
(3) We direct the Centre and the State Governments to take steps to treat them as socially and
educationally backward classes of citizens and extend all kinds of reservation in cases of admission in
educational institutions and for public appointments. (4) Centre and State Governments are directed to
operate separate HIV Sero-survellance Centres since Hijras/ Transgenders face several sexual health
issues.
(5) Centre and State Governments should seriously address the problems being faced by
Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal
tendencies, social stigma, etc. and any insistence for SRS for declaring ones gender is immoral and
illegal.
(6) Centre and State Governments should take proper measures to provide medical care to TGs in the
hospitals and also provide them separate public toilets and other facilities.
(7) Centre and State Governments should also take steps for framing various social welfare schemes for
their betterment.
(8) Centre and State Governments should take steps to create public awareness so that TGs will feel that
they are also part and parcel of the social life and be not treated as untouchables.
(9) Centre and the State Governments should also take measures to regain their respect and place in the
society which once they enjoyed in our cultural and social life.
Writ Petitions are, accordingly, allowed, as above.

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Animal Welfare Board of India v. Nagaraja
(CA NO. 5387 of 2014, SC Judgement delivered on May 7 , 2014)
Corum : K.S. Radhakrishnan & Pinaki Chandra Ghose

1. Prevention of cruality against animals (PCA) Act was, therefore, passed to prevent infliction
of unnecessary pain or suffering and for the well-being and welfare of the animals and to preserve
the natural instinct of the animal. Over-powering the performing animal was never in the
contemplation of the PCA Act and, in fact under Section 3 of the PCA Act, a statutory duty has
been cast on the person who is in-charge or care of the animal to ensure the well-being of such
animal and to prevent infliction on the animal of unnecessary pain or suffering. PCA Act, therefore,
cast not only duties on human beings, but also confer corresponding rights on animals, which is
being taken away by the State Act (TNRJ Act) by conferring rights on the organizers and Bull
tamers, to conduct Jallikattu , which is inconsistent and in direct collision with Section 3, Section
11(1)(a), 11(1)(m)(ii) and Section 22 of the PCA Act read with Articles 51A(g) & (h) of the
Constitution and hence repugnant to the PCA Act, which is a welfare legislation and hence declared
unconstitutional and void, being violative of Article 254(1) of the Constitution of India .
4. ABWI, a statutory Board, established under Section 4 of the PCA Act, for the promotion of
animal welfare and for the purpose of protecting the animals from being subjected to unnecessary
pain or suffering has taken up a specific stand that;
(i) Jallikattu, Bull/Bullock-cart races etc., as such, conducted in the States of Tamil Nadu and
Maharashtra respectively, inherently violate the provisions of the PCA Act, particularly, Section 3,
Sections 11(1)(a) & (m) and Section 22 of the PCA Act. ABWI, through its reports, affidavits and
photographs, high-lighted the manner in which Jallikattu is being conducted, especially in the
Southern Part of the State of Tamil Nadu, and how the bulls involved are physically and mentally
tortured for human pleasure and enjoyment.
(ii) By no stretch of imagination, it can be gainsaid that Jallikattu or Bullock- cart race conducted,
as such, has any historical, cultural or religious significance, either in the State of Tamil Nadu or in
the State of Maharashtra and, even assuming so, the welfare legislation like PCA Act would
supersede the same, being a Parliamentary legislation.
(iii)ABWI has also taken up the specific stand that the bulls involved in Jallikattu, Bullock-cart
race etc. are not performing animals within the meaning of Sections 21 and 22 of the PCA Act and
that the MoEF, in any view, was justified in issuing the notification dated 11.7.2011 banning the
exhibition of Bulls or training them as performing animals, on accepting the stand taken by it before
this Court.
(iv)That the TNRJ Act is repugnant to the provisions of the PCA Act and the rules made there
under, and State cannot give effect to it in the absence of the assent of the President under Article
254 of the Constitution of India.
(v) ABWI also submits that the Bulls which are forced to participate in the race are subjected to
considerable pain and suffering, which clearly violates Section 3 and Sections 11(1)(a) & (m) of the
PCA Act read with Article 51A(g) and Article 21 of the Constitution of India and hence
exhibition or training them as performing animals be completely banned.
5. Organizers of Jallikattu and Bullock-cart races, individually and collectively, took up the
stand that ;
(i)These events take place at the end of harvest season (January and February) and sometimes
during temple festivals which is traditionally and closely associated with village life, especially in
the Southern Districts of the State of Tamil Nadu.
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(ii)Organizers of Bullock-cart races in the State of Maharashtra also took the stand that the
same is going on for the last more than three hundred years by way of customs and traditions and
that extreme care and protection are being taken not to cause any injury or pain to the bullocks
which participate in the event.
(iii) That such sport events attract large number of persons which generates revenue for the
State as well as enjoyment to the participants.
(iv) That no cruelty is meted out to the performing bulls in Bullock-cart races so as to violate
Section 11(1)(a) of the PCA Act and the District Collector, Police Officials etc. are always on duty
to prevent cruelty on animals.
(v) That the sport events can only be regulated and not completely prohibited and the State of
Tamil Nadu has already enacted the TNRJ Act, which takes care of the apprehensions expressed by
the Board.
6. The State of Tamil Nadu has also taken up the stand that;
(i) Every effort shall be made to see that bulls are not subjected to any cruelty so as to violate
the provisions of the PCA Act and the sport event can be regulated as per the provisions of the
TNRJ Act .
(ii) That the bulls taking part in the Jallikattu, Bullock-cart Race etc. are specifically identified,
trained, nourished for the purpose of the said sport event and owners of Bulls spend considerable
money for training, maintenance and upkeep of the bulls.
(iii) That the Bulls are performing animals, and since there is no sale of tickets in the events
conducted, Section 22 will not apply, so also the notification dated 11.7.2011.
(iv) State has also taken up the stand that complete ban on such races would not be in public
interest which is being conducted after harvest season and sometimes during temple festivals as
well. The State of Maharashtra has not challenged the judgment of the Bombay High Court and
hence we have to take it that the State is in favour of banning the exhibition or training of Bulls,
whether castrated or otherwise as performing animals.
7. MoEF, as early as on 2.3.1991, issued a notification under Section 22 of PCA Act banning
training and exhibition of bears, monkeys, tigers, panthers and dogs, which was challenged by the
Indian Circus Organization before the Delhi High Court but, later, a corrigendum was issued,
whereby dogs were excluded from the notification. On the direction issued by the Delhi High Court,
a Committee was constituted and, based on its report, a notification dated 14.10.1998 was issued
excluding dogs from its purview, the legality of the notification was challenged before this Court in
N. R. Nair Others v. Union of India and Others (2001) 6 SCC 84, which upheld the notification.
Later, MoEF issued a fresh notification dated 11.7.2011, specifically including Bulls also, so as to
ban their exhibition or training as performing animals, while this Court was seized of the matter.
8. MoEF has now abruptly taken up the stand that though Bull has been included in the list of
animals, not to be exhibited or trained as performing animal vide Notification dated 11.07.2011, it
has been pointed out that, in order to strike a balance and to safeguard the interest of all
stakeholders, including animals, and keeping in mind the historical, cultural and religious
significance of the event, and with a view to ensure that no unnecessary pain or suffering is caused
to the animals, participants as well as spectators, the Government proposes to exempt bulls
participating in Jallikattu in the State of Tamil Nadu from the purview of the Notification dated
11.07.2011.
12. We have to examine various issues raised in these cases, primarily keeping in mind the
welfare and the well-being of the animals and not from the stand point of the Organizers, Bull
tamers, Bull Racers, spectators, participants or the respective States or the Central Government,
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since we are dealing with a welfare legislation of a sentient-being, over which human-beings have
domination and the standard we have to apply in deciding the issue on hand is the Species Best
Interest, subject to just exceptions, out of human necessity.
16. Jallikattu is a Tamil word, which comes from the term Callikattu, where Calli means coins
and Kattu means a package. Jallikattu refers to silver or gold coins tied on the bulls horns. People,
in the earlier time, used to fight to get at the money placed around the bulls horns which depicted as
an act of bravery. Later, it became a sport conducted for entertainment and was called Yeruthu
Kattu, in which a fast moving bull was corralled with ropes around its neck. Started as a simple act
of bravery, later, assumed different forms and shapes like Jallikattu (in the present form), Bull Race
etc., which is based on the concept of flight or fight. Jallikattu includes Manjuvirattu, Oormaadu,
Vadamadu, Erudhu, Vadam, Vadi and all such events involve taming of bulls.
17. On 7.9.2013, flouting the various directions issued by this Court, High Court and the
regulatory provisions of TNRJ Act . Dr. Manilal Vallyate and Mr. Abhishek Raje, the Observors of
AWBI, have submitted the first report regarding Jallikattu events.
The findings of this investigation clearly show that bulls who are used in jallikattu are subjected
to extreme cruelty and unmitigated suffering. All the acts of cruelty to animals detailed in the
observations contravene the orders of the Supreme Court of India and Madurai High Court, which
mandate that bulls should not be harmed or tortured in any way. Such animal abuse is also in
violation of numerous clauses of section 11 (1) of The Prevention of Cruelty to Animals Act ,
1960. II. Welfare Implications and Violations of the Law.
1. Ear Cutting/Mutilation At least 80 per cent of the bulls observed had their ears cut, with
three-fourths of the external ear pinna absent.Cutting the ear causes intense pain and distress as the
external ear pinna consists of cartilage and is highly vascular with a rich nerve supply. The
procedure leads to physiological, neuroendocrine and behavioural changes in the animal. Bulls
strongly resist being touched on the head or around the ear because of painful past experiences.
Many animals get agitated if someone tries to do so.
2. Fracture and Dislocation of Tail Bones Many bulls suffered from dislocated or even
amputated tails caused by deliberate pulling and twisting. The tail, which has nearly 20 small bones,
is an extension of the spinal cord and vertebral column. Dislocation and fracture of the tail vertebrae
are extremely painful conditions.
Violation; Both, amputation of tails & ear cutting is a violation of section 11 (1)(a) of The
Prevention of Cruelty to Animals Act , 1960, which prohibits treating any animal in a way that
causes unnecessary pain or suffering, and section 11(1) (l), which prohibits the mutilation of
animals body.
3. Frequent Defecation and Urination Ninety-five per cent of the bulls were soiled with faeces
from below the base of their tails and across the majority of their hindquarters. Frequent defecation
and urination are indicators of fear and pain in cattle. Violation Section 11 (1)(a) of The
Prevention of Cruelty to Animals Act , 1960, prohibits treating any animal in a way that causes
unnecessary pain or suffering.
Vadi vassal. The vadi vassal is a chamber that is closed off from public view. Abuse runs
rampant in vadi vasals. Bulls are poked, beaten and deliberately agitated before they are forced into
the jallikattu arena, where more than 30 bull tamers are waiting. Welfare Concerns Considered an
extremity of the body, a bulls tail has many vertebrae but very little muscle or subcutaneous tissue
to protect it. Any direct pressure or injury to the tail bones causes extreme pain that sends bulls into
a frenzy. Violation ; Section 11 (1)(a) of The Prevention of Cruelty to Animals Act , 1960,
prohibits treating any animal in a way that causes unnecessary pain or suffering.
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Acts done inside vadi vassal causing severe pain to the bulls; These practice violates section
11 (1)(a) of The Prevention of Cruelty to Animals Act , 1960, which prohibits treating any animal
in a way that causes unnecessary pain or suffering. OR It violates section 11(1)(c), which prohibits
the willful and unreasonable administration of any injurious drug or substance to any animal. OR
both the sections
1. Twisting a Bulls Tail Owners routinely beat the bulls and twist their tails in order to induce
fear and pain while they are in the waiting area and the vadi vassal.
2. Poking Bulls with Knives and Sticks Many bulls were poked with sticks by owners, police
officials and organizers inside the vadi vassal and near the collection yard. People inside the vadi
vassal often poked bulls on their hindquarters, aces and other parts of their bodies with pointed
wooden spears, tiny knives, sticks and sickle-shaped knives used for cutting nose ropes.
3. Using Irritants Irritant solutions were rubbed into the eyes and noses of bulls inside the vadi
vassal in order to agitate them.
4. Using Nose Ropes Nose ropes were frequently pulled, yanked or tightened in order to control
bulls before they were released into arenas and collection yards. Some animals were even bleeding
from the nose as a result of injuries caused by pulling the rope.
5. Forced to stand for more than eight hours in line at the waiting area for a health examination
and in the vadi vassal, bulls had no protection from the blistering sun and the crowds of people, who
shouted and hooted at them, harassed them and frightened them. Bull owners start lining up the
night before the jallikattu event, and they are given serial numbers. Some were in line until the
events ended at 2 pm the next day. This is a violation of section 11 (1)(a) of The Prevention of
Cruelty to Animals Act , 1960, which prohibits treating any animal in a way that causes
unnecessary pain or suffering, and section 11(1) (f), which prohibits trying an animal for an
unreasonable time with an unreasonably short rope.
6. Forcing Bulls to Move Sideways The animals were forced to move sideways at a slow pace
for more than eight hours over a distance of approximately 500 to 1000 metres. Welfare Concerns
Forcing bulls to walk sideways which is an unnatural gait for any animal for a long duration causes
them extreme discomfort. Violation This is a violation of section 11 (1)(a) of The Prevention of
Cruelty to Animals Act , 1960, which prohibits treating any animal in a way that causes
unnecessary pain or suffering, and section 11(1) (d), which prohibits conveying any animal in such
a manner or position as to cause unnecessary pain or suffering.
7. Lack of Food and Water All the bulls observed were not offered food, water or shelter from
8 am, when they were forced to line up, until the jallikattu events ended at 2.30 pm. Though
concrete water troughs were available at the registration area and collection yards, none of the
animals were offered water. During jallikattu, the animals are starved and prevented from chewing
their cud (they wont do it when they are frightened or in pain distress). No intake of food and water
and the absence of shade lead to dehydration and exhaustion. This often results in injuries or death.
This is a violation of section 11 (1)(a) of The Prevention of Cruelty to Animals Act , 1960, which
prohibits treating any animal in a way that causes unnecessary pain or suffering, and section 11(1)
(h), which states that failing to provide animals with sufficient food, drink or shelter is an act of
cruelty.
8. Forcing Bulls to Drink Liquids On many occasions, bulls were forced to drink fluids that
were likely liquor. Animals heads were raised by pulling on the nose ropes, and the fluids were
forced into their mouths using a plastic bottle. This can cause pneumonia, a serious respiratory
disease that can lead to death. Normally, bulls drink water at their own pace from a bucket, but no
such allowances were witnessed during any of the jallikattu events. This is a violation of section
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11 (1)(a) of The Prevention of Cruelty to Animals Act , 1960, which prohibits treating any animal
in a way that causes unnecessary pain or suffering, and section 11(1) (c), which states that giving
any injurious drug or substance to any animal is prohibited.
9. Forcing Bulls to Stand in their Own Waste In the waiting areas, bulls were forced to wait
for more than eight hours while standing in their own faeces and urine. This is a violation of
Supreme Court and Madurai High Court orders, which mandate that sanitation facilities should be
made available during jallikattu events and that bulls should not be allowed to suffer in any.
Section 11 (1)(a) of The Prevention of Cruelty to Animals Act , 1960 prohibits treating any animal
in a way that causes unnecessary pain or suffering.
10. Spectators Beating and Agitating Bulls When collection yards were not present or not
used, injured, exhausted bulls were tormented by spectators as they exited. Parallel jallikattu events
happened at each venue as the aggressive crowds agitated the bulls exiting the arena by shouting at
them, beating them and jumping on them. When bulls are not afraid, they stand still and engage in
normal behaviour to the species, such as grazing, chewing cud, lying down or grooming. None of
these types of behavior were seen at any point during any of the jallikattu events. Jallikattu causes
bulls severe mental and physical anguish. When bulls are frightened or in pain, they adopt a flight
response that can often lead to serious physical injuries and even death. Near the collection area, the
spectators didnt allow the bulls to calm down and relax they instead induced further fear, distress,
discomfort and pain. Violation This is a violation of section 11 (1)(a) of The Prevention of
Cruelty to Animals Act , 1960, which states that beating, kicking, torturing or otherwise treating
any animal so as to subject the animal to unnecessary pain or suffering is an act of cruelty.
11. Restraining and Roping Once an animal was tied to a tree, a new thick nose rope was
forcefully inserted through the existing hole in the nasal septum. Often the rope was very thick, and
pulling it vigorously caused injuries to the nasal septum, which led to profuse bleeding in many
animals. Such a painful experience will cause long-lasting psychological and behavioural changes
in bulls. Violation Section 11 (1)(a) of The Prevention of Cruelty to Animals Act , 1960,
prohibits treating any animal in a way that causes unnecessary pain or suffering. IV.
Injuries and Deaths Jallikattu is dangerous not only to bulls but also to humans. Many
participants and spectators sustained serious injuries at all three jallikattu events. A total of 58
participants and 56 spectators were injured in the three jallikattu events. One police constable was
also injured in Avaniapuram.
The Supreme Courts guideline for arena barricades calls for them to be no less than 8 feet high.
This guideline was flagrantly ignored, and the barricade in the main area was as low as 5-1/2 feet.
The non-compliance of a guideline as basic as the barricades height endangers the lives of
spectators. The Supreme Courts guideline of double barricading was not implemented anywhere
around the arena or along the path from the main arena to the towns street. As many as six to eight
matadors jumped onto bulls to take them. Unable to carry the weight, the bulls often feel to the
ground. Collection Yard . There was no collection yard. Because of the absence of a collection
yard, the bulls ran amok in the streets, which were lined with unruly crowds eager to hit the scared
animals. . Many spectators pounded on the petrified bulls and tried to perform jallikattu on the
streets. . Bulls entered bylanes and trampled both men and parked vehicles. . Because of the lack of
a collection area, one bull lost his life after a head-on collision with a moving passenger bus.
21. We are sorry to note, in spite of the various directions issued by this Court, in the conduct of
Jallikattu, Bullock- cart Race etc., the regulatory provisions of TNRJ Act and the restrictions in the
State of Maharashtra, the situation is the same and no action is being taken by the District
Collectors, Police Officials and others, who are in-charge to control the same, to see that those
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directions are properly and effectively complied with and the animals are not being subjected to
torture and cruelty. Being dumb and helpless, they suffer in silence.
24. We have to examine, in the light of the above facts, whether the events that are being
conducted in the States of Tamil Nadu and Maharashtra are in violation of Sections 3, 11(1)(a) &
(m), 21 and 22 of the PCA Act read with Articles 51A(g) and (h) of the Constitution and the
notification dated 11.7.2011. PCA ACT:
25. The PCA Act was enacted even before the introduction of Part IV-A dealing with the
fundamental duties, by the Constitutional 47 Amendment Act, 1956. Earlier, the then British in
India enacted the Prevention of Cruelty Act, 1890 for the human beings to reap maximum gains by
exploiting them with coercive methods with an idea that the very existence of the animals is for the
benefit of the human beings. During the course of administering the above mentioned Act, many
deficiencies were noticed by the Government of India and a Committee was constituted to
investigate and suggest measures for prevention of cruelty to animals. Following that, a Bill was
introduced in the Parliament and, ultimately, the PCA Act, 1960 was enacted so as to prevent the
infliction of unnecessary pain or suffering on animals and to amend the law relating to prevention of
cruelty to animals. JUDICIAL EVALUATION
26. PCA Act is a welfare legislation which has to be construed bearing in mind the purpose and
object of the Act and the Directive Principles of State Policy. It is trite law that, in the matters of
welfare legislation, the provisions of law should be liberally construed in favour of the weak and
infirm. Court also should be vigilant to see that benefits conferred by such remedial and welfare
legislation are not defeated by subtle devices. Court has got the duty that, in every case, where
ingenuity is expanded to avoid welfare legislations, to get behind the smoke-screen and discover the
true state of affairs. Court can go behind the form and see the substance of the devise for which it
has to pierce the veil and examine whether the guidelines or the regulations are framed so as to
achieve some other purpose than the welfare of the animals. Regulations or guidelines, whether
statutory or otherwise, if they purport to dilute or defeat the welfare legislation and the
constitutional principles, Court should not hesitate to strike them down so as to achieve the ultimate
object and purpose of the welfare legislation. Court has also a duty under the doctrine of parents
patriae to take care of the rights of animals, since they are unable to take care of themselves as
against human beings.
3. Duties of persons having charge of animals.- It shall be the duty of every person having
the care or charge of any animal to take all reasonable measures to ensure the well-being of such
animal and to prevent the infliction upon such animal of unnecessary pain or suffering. Section 3 of
the Act has got two limbs, which are as follows: (i) Duty cast on persons-in-charge or care to take
all reasonable measures to ensure the well-being of the animal; (ii) Duty to take reasonable
measures to prevent the infliction upon such animal of unnecessary pain and suffering. Both the
above limbs have to be cumulatively satisfied. Primary duty on the persons-in-charge or care of the
animal is to ensure the well-being of the animal. Well- being means state of being comfortable,
healthy or happy. Forcing the Bull and keeping the same in the waiting area for a number of hours
and subjecting it to scorching sun, is not for the well-being of the animal. Forcing and pulling bulls
by nose ropes into the narrow closed enclosure of vadi vassal, subjecting it to all forms of torture,
fear, pain and suffering by forcing it to go the arena and also over-powering it at the arena by the
Bull tamers, are not for the well-being of the animal. The manner in which the Bull tamers are
treating the bulls in the arena is evident from the reports filed before this Court by ABWI.
Organizers of Jallikattu are depriving the rights guaranteed to the bulls under Section 3 of PCA Act
First limb of Section 3, as already indicated, gives a corresponding right to the animal to ensure its
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well-being. We have no hesitation to say that Jallikattu /Bullock-cart race, as such, is not for the
well-being of the animal and, by undertaking such events, organizers are clearly violating the first
limb of Section 3 of the PCA Act.
28. We will now examine whether the second limb of Section 3 which casts a duty on the
person in-charge or care of animal to prevent the infliction upon an animal, unnecessary pain or
suffering, discharges that duty. Considerations, which are relevant to determine whether the
suffering is unnecessary, include whether the suffering could have reasonably been avoided or
reduced, whether the conduct which caused the suffering was in compliance with any relevant
enactment. Another aspect to be examined is whether the conduct causing the suffering was for a
legitimate purpose, such as, the purpose for benefiting the animals or the purpose of protecting a
person, property or another animal etc. By organizing Jallikattu and Bullock-cart race, the
organizers are not preventing the infliction of unnecessary pain or suffering, but they are inflicting
pain and suffering on the bulls, which they are legally obliged to prevent. Section 3 is a preventive
provision casting no right on the organizers, but only duties and obligations. Section 3, as already
indicated, confers corresponding rights on the animals as against the persons in-charge or care, as
well as AWBI, to ensure their well-being and be not inflicted with any unnecessary pain or
suffering. Hence, the two limbs of Section 3 of PCA Act have been violated while conducting
Jallikattu and Bullock-cart race.
CRUELTY TO ANIMALS:
29. Section 11 confers no right on the organizers to conduct Jallikattu/Bullock-cart race.
Section 11 is a beneficial provision enacted for the welfare and protection of the animals and it is
penal in nature. Being penal in nature, it confers rights on the animals and obligations on all
persons, including those who are in-charge or care of the animals, AWBI etc. to look after their
well-being and welfare. The relevant portion of Section 11 reads as follows: 11. Treating animals
cruelty.- (1) If any person- (a) Beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise
treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner
permits, any animals to be so treated; or (b) (c) willfully and unreasonably administers any injuries
drug or injurious substance to any animal or wilfully and unreasonably causes or attempts to cause
any such drug or substance to be taken by any animal; or (d) (e) keeps or confines any animal in any
cage or other receptacle which does not measure sufficiently in height, length or breadth to permit
the animal a reasonable opportunity for movement; or (f)keeps for an unreasonable time any animal
chained or tethered upon an unreasonably short or unreasonable heavy chain or cord; or (g) (h)
being the owner of any animal, fails to provide such animal with sufficient food, drink or shelter; or
(i) (j) (k) (l) mutilates any animal or kills any animal (including stray dogs) by using the method of
strychnine injections in the heart or in any other unnecessarily cruel manner; or; (2) For the
purposes of sub-section (1), an owner shall be deemed to have committed an offence if he has failed
to exercise reasonable care and supervision with a view to the prevention of such offence: Provided
that where an owner is convicted of permitting cruelty by reason only of having failed to exercise
such care and supervision, he shall not be liable to imprisonment without the option of a fine. (3)
Section 11(1)(a) uses the expressions or otherwise, unnecessary pain or suffering etc. Beating,
kicking etc. go with the event so also torture, if the report submitted by AWBI is accepted. Even
otherwise, according to AWBI, the expression or otherwise takes in Jallikattu, Bullock- cart race
etc. but, according to the State of Tamil Nadu, that expression has to be understood applying the
doctrine of ejusdem generis . In our view, the expression or otherwise is not used as words of
limitation and the legislature has intended to cover all situations, where the animals are subjected to
unnecessary pain or suffering. Jallikattu, Bullock-cart races and the events like that, fall in that
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expression under Section 11(1)(a). The meaning of the expression or otherwise came up for
consideration in Lilavati Bai v. State of Bombay 1957 SCR 721 and the Court held that the words
or otherwise when used, apparently intended to cover other cases which may not come within the
meaning of the preceding clause. In our view, the said principles also can be safely applied while
interpreting Section 11(1)(a).
31. Section 11(3) carves out exceptions in five categories of cases mentioned in Section
11(3)(a) to (e), which are as follows: 11(3) Nothing in this section shall apply to- (a) the dehorning
of cattle, or the castration or branding or nose-roping of any animal, in the prescribed manner; or (b)
the destruction of stray dogs in lethal chambers or by such other methods as may be prescribed; or
(c) the extermination or destruction of any animal under the authority of any law for the time being
in force; or (d) any matter dealt with in Chapter IV; or (e) the commission or omission of any act in
the course of the destruction or the preparation for destruction of any animal as food for mankind
unless such destruction or preparation was accompanied by the infliction of unnecessary pain or
suffering. Exceptions are incorporated based on the doctrine of necessity. Clause (b) to Section
11(3) deals with the destruction of stray dogs, out of necessity, otherwise, it would be harmful to
human beings. Clause (d) to Section 11(3) deals with matters dealt with in Chapter IV, incorporated
out of necessity, which deals with the experimentation on animals, which is for the purpose of
advancement by new discovery of physiological knowledge or of knowledge which would be useful
for saving or for prolonging life or alleviating suffering or for combating any disease, whether of
human beings, animals or plants, which is not prohibited and is lawful. Clause (e) to Section 11(3)
permits killing of animals as food for mankind, of course, without inflicting unnecessary pain or
suffering, which clause is also incorporated out of necessity. Experimenting on animals and eating
their flesh are stated to be two major forms of speciesism in our society. Over and above, the
Legislature, by virtue of Section 28, has favoured killing of animals in a manner required by the
religion of any community. Entertainment, exhibition or amusement do not fall under these
exempted categories and cannot be claimed as a matter of right under the doctrine of necessity.
32. Sections 3 and 11, as already indicated, therefore, confer no right on the organisers of
Jallikattu or bullock- cart race, but only duties, responsibilities and obligations, but confer
corresponding rights on animals. Sections 3, 11(1)(a) & (o) and other related provisions have to be
understood and read along with Article 51A(g) of the Constitution which cast fundamental duties on
every citizen to have compassion for living creatures. Parliament, by incorporating Article 51A(g),
has again reiterated and re-emphasised the fundamental duties on human beings towards every
living creature, which evidently takes in bulls as well. All living creatures have inherent dignity and
a right to live peacefully and right to protect their well-being which encompasses protection from
beating, kicking, over-driving, over-loading, tortures, pain and suffering etc. Human life, we often
say, is not like animal existence, a view having anthropocentric bias, forgetting the fact that animals
have also got intrinsic worth and value. Section 3 of the PCA Act has acknowledged those rights
and the said section along with Section 11 cast a duty on persons having charge or care of animals
to take reasonable measures to ensure well-being of the animals and to prevent infliction of
unnecessary pain and suffering.
PERFORMING ANIMALS
33. All animals are not anatomically designed to be performing animals. Bulls are basically
Draught and Pack animals. they are live-stock used for farming and agriculture purposes, like
ploughing, transportation etc. Bulls, it may be noted, have been recognized as Draught and Pack
animals in the Prevention of Cruelty to Draught and Pack Animals Rules, 1965. Draught means an
animal used for pulling heavy loads. Rules define large bullock to mean a bullock the weight of
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which exceeds 350 Kgs. Bullocks have a large abdomen and thorax and the entire body has a
resemblance to a barrel shape, which limits ability to run. Bulls have also limitations on flexing
joins and the rigid heavily built body and limited flexion of joints do not favour running faster. Due
to that body constitution, the Prevention of Cruelty to Animals (Transportation of Animals on Foot)
Rules, 2001, especially Rule 11 says that no person shall use a whip or a stick in order to force the
animal to walk or to hasten the pace of their walk. Bulls, it may be noted, are cloven footed (two
digits) animals and two digits in each leg can comfortably bear weight only when they are walking,
not running. Horse, on the other hand, is a solid hoofed plant-eating quadruped with a flowing mane
and tail, domesticated for riding and as a draught animal. Horse power, we call it as an imperial unit
of power, equal to 550 foot-pounds per second. Horses anatomy enables it to make use of speed and
can be usefully used for horse racing etc., unlike Bulls.
34. Bulls, therefore, in our view, cannot be a performing animal, anatomically not designed for
that, but are forced to perform, inflicting pain and suffering, in total violation of Sections 3 and
Section 11(1) of PCA Act . Chapter V of the PCA Act deals with the performing animals. Section
22 of the PCA Act places restriction on exhibition and training of performing animals, which reads
as under: 22. Restriction on exhibition and training of performing animals : No person shall exhibit
or train (i) any performing animal unless he is registered in accordance with the provisions of this
Chapter; (ii) as a performing animal, any animal which the Central Government may, by
notification in the official gazette, specify as an animal which shall not be exhibited or trained as a
performing animal.
35. The words exhibit and train are defined in Section 21 of the PCA Act, which is as follows:
21. Exhibit and train defined: In this Chapter, "exhibit" means exhibit or any entertainment to which
the public are admitted through sale of tickets, and "train" means train for the purpose of any such
exhibition, and the expressions "exhibitor" and "trainer" have respectively the corresponding
meanings.
36.Performing Animals Rules, 1973 define performing animal to mean any animal which is
used at, or for the purpose of any entertainment to which public are admitted through sale of tickets.
Jallikattu, Bullock-cart races, it was contended, are conducted without sale of tickets and hence
Section 22 of the PCA Act would not apply, so also the notification dated 11.7.2011. We find no
substance or logic in that submission. It may be noted that when Bull is specifically prohibited to be
exhibited or trained for performance, the question whether such performance, exhibition or
entertainment is conducted with sale of tickets or not, is irrelevant from the point of application of
Sections 3 and 11(1) of the PCA Act .
37. We may, in this respect, refer to Section 11(1)(m) which reads as follows: 11. Treating
animals cruelty.- (1) If any person- (m) solely with a view to providing entertainment- (i) confines
or causes to be confined any animal (including tying of an animal as a bait in a tiger or other
sanctuary) so as to make it an object of prey for any other animal; or (ii) incites any animal to fight
or bait any other animal; or. Section 11(1)(m)(ii), therefore, says, if any person, solely with a view
to providing entertainment incites any animal to fight, shall be punishable under the proviso to
Section 11(1). In Jallikattu, Bull is expected to fight with various Bull tamers, for which it is incited
solely to provide entertainment for the spectators by sale of tickets or otherwise. Inciting the Bull to
fight with another animal or human being matters little, so far as the Bull is concerned, it is a fight,
hence, cruelty. Jallikattu, Bullock-cart Race, therefore, violate not only Sections, 3, 11(1)(a) & (m)
and Section 22, but also the notification dated 11.7.2011 issued by the Central Government under
Section 22(ii) of the PCA Act.
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38. We may, in this connection, also refer to the Performing Animals (Registration) Rules,
2001. Rule 8 deals with the general condition of registration. Rule 8(v) states that the owner shall
ensure that any animal is not inflicted unnecessary pain or suffering before or during or after its
training or exhibition. Rule 8(vii) specifically caution that the owner shall train the animal as a
performing animal to perform an act in accordance with the animals natural instinct. Bull is trained
not in accordance with its natural instinct for the Jallikattu or Bullock-cart race. Bulls, in those
events, are observed to carry out a flight response running away from the crowd as well as from the
Bull tamers, since they are in fear and distress, this natural instinct is being exploited.
41. Jallikattu as well as the Bullock-cart races etc., as an event, according to the Board, violate
Sections 3 and 11(1)(a) & (m) of the PCA Act read with Article 51A(g) of the Constitution of
India . MoEF, in exercise of its powers conferred under Section 22 of the PCA Act, as already
stated, after noticing the stand of the Board, issued a notification specifying that Bulls shall not be
exhibited or trained as performing animals, that position still stands. MoEF, it is seen, so far as the
State of Maharashtra is concerned, is not recognising that Bullock-cart race is part and parcel of the
tradition of the people of Maharashtra and that it has any cultural, historical or religious
significance. The State of Maharashtra, in its order dated 20.4.2012, has clearly acknowledged that
the organisation of animal sports in the State, mainly in its rural hinterland, like Bull /Ox / Bullock-
cart race etc. is nothing but violence to the dumb animals and has to be prohibited. The State
Government evidently did not give its stamp of approval to the so-called cultural, historical
importance to the Bullock-cart Race and that order has not been challenged. But, so far as the State
of Tamil Nadu is concerned, now a proposal has been made to exempt bulls, participating in
Jallikattu from the purview of the notification dated 11.07.2011 stating that it has historic, cultural
and religious significance in the State.
CULTURE AND TRADITION
42. The Statement of Objects and Reasons of the TNRJ Act refers to ancient culture and
tradition and does not state that it has any religious significance. Even the ancient culture and
tradition do not support the conduct of Jallikattu or Bullock cart race, in the form in which they are
being conducted at present. Welfare and the well-being of the bull is Tamil culture and tradition,
they do not approve of infliction of any pain or suffering on the bulls, on the other hand, Tamil
tradition and culture are to worship the bull and the bull is always considered as the vehicle of Lord
Shiva. Yeru Thazhuvu, in Tamil tradition, is to embrace bulls and not over-powering the bull, to
show human bravery. Jallikattu means, silver or gold coins tied to the bulls horns and in olden days
those who get at the money to the bulls horns would marry the daughter of the owner. Jallikattu or
the bullock cart race, as practised now, has never been the tradition or culture of Tamil Nadu. 43.
PCA Act, a welfare legislation, in our view, over- shadows or overrides the so-called tradition and
culture. Jallikattu and Bullock cart races, the manner in which they are conducted, have no support
of Tamil tradition or culture. Assuming, it has been in vogue for quite some time, in our view, the
same should give way to the welfare legislation, like the PCA Act which has been enacted to
prevent infliction of unnecessary pain or suffering on animals and confer duties and obligations on
persons in- charge of animals. Of late, there are some attempts at certain quarters, to reap maximum
gains and the animals are being exploited by the human beings by using coercive methods and
inflicting unnecessary pain for the pleasure, amusement and enjoyment. We have a history of doing
away with such evil practices in the society, assuming such practices have the support of culture and
tradition, as tried to be projected in the TNRJ Act. Professor Salmond states that Custom is the
embodiment of those principles which have commended themselves to the national conscience as
the principles of justice and public utility. This Court, in N. Adithayan v. Thravancore
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Dewaswom Board and Others (2002) 8 SCC 106, while examining the scope of Articles 25(1),
2(a), 26(b), 17, 14 and 21, held as follows: 18. Any custom or usage irrespective of even any proof
of their existence in pre- constitutional days cannot be countenanced as a source of law to claim any
rights when it is found to violate human rights, dignity, social equality and the specific mandate of
the Constitution and law made by Parliament. No usage which is found to be pernicious and
considered to be in derogation of the law of the land or opposed to public policy or social decency
can be accepted or upheld by courts in the country.
44. As early as 1500-600 BC in Isha-Upanishads, it is professed as follows: The universe along
with its creatures belongs to the land. No creature is superior to any other. Human beings should not
be above nature. Let no one species encroach over the rights and privileges of other species.
45. In our view, this is the culture and tradition of the country, particularly the States of Tamil
Nadu and Maharashtra.
46. PCA Act has been enacted with an object to safeguard the welfare of the animals and
evidently to cure some mischief and age old practices, so as to bring into effect some type of
reform, based on eco-centric principles, recognizing the intrinsic value and worth of animals. All
the same, the Act has taken care of the religious practices of the community, while killing an animal
vide Section 28 of the Act. INTERNATIONAL APPROACH TO ANIMALS WELFARE
47. We may, at the outset, indicate unfortunately, there is no international agreement that
ensures the welfare and protection of animals. United Nations, all these years, safeguarded only the
rights of human beings, not the rights of other species like animals, ignoring the fact that many of
them, including Bulls, are sacrificing their lives to alleviate human suffering, combating diseases
and as food for human consumption.
48. We have accepted and applied the eco-centric principles in T. N. Godavarman Thirumulpad
v. Union of India and Others (2012) 3 SCC 277, T. N. Godavarman Thirumulpad v. Union of India
and Others (2012) 4 SCC 362 and in Centre for Environmental Law World Wide Fund - India v.
Union of India and Others (2013) 8 SCC 234 .
49. Based on eco-centric principles, rights of animals have been recognized in various
countries. Protection of animals has been guaranteed by the Constitution of Germany by way of an
amendment in 2002 when the words and the animals were added to the constitutional clauses that
obliges state to respect animal dignity
50. Animals Welfare Act of 2006 (U.K.) also confers considerable protection to the animals
from pain and suffering. The Austrian Federal Animal Protection Act also recognises mans
responsibilities towards his fellow creatures and the subject Federal Act aims at the protection of
life and well being of the animals. The Animal Welfare Act, 2010 (Norway) states animals have an
intrinsic value which is irrespective of the usable value they may have for man. Animals shall be
treated well and be protected from the danger of unnecessary stress and strain. Section 26 of the
Legislation prohibits training an animal to fight with people, the operative portion of the same reads
as follows :
51. When we look at the rights of animals from the national and international perspective, what
emerges is that every species has an inherent right to live and shall be protected by law, subject to
the exception provided out of necessity. Animal has also honour and dignity which cannot be
arbitrarily deprived of and its rights and privacy have to be respected and protected from unlawful
attacks.
52. Universal Declaration of Animal Welfare (UDAW) is a campaign led by World Society for
the Protection of Animals (WSPA) in an attempt to secure international recognition for the
principles of animal welfare. UDAW has had considerable support from various countries,
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including India. WSPA believes that the world should look to the success of the Universal
Declaration of Human Rights (UDHR) to set out what UDAW can achieve for animals. Five
freedoms referred to in UDAW, which we will deal with in latter part of the judgment, find support
in PCA Act and the rules framed thereunder to a great extent.
53. World Health Organization of Animal Health (OIE), of which India is a member, acts as the
international reference organisation for animal health and animal welfare.
54. Chapter 7.1.2 of the guidelines of OIE, recognizes five internationally recognized freedoms
for animals, such as: (i) freedom from hunger, thirst and malnutrition; (ii) freedom from fear and
distress; (iii) freedom from physical and thermal discomfort; (iv) freedom from pain, injury and
disease; and (v) freedom to express normal patterns of behaviour. Food and Agricultural
Organisation (FAO) in its Legislative and Regulatory Options for Animal Welfare indicated that
these five freedoms found their place in Farm Welfare Council 2009 U.K. and is also called
Brambells Five Freedoms. These five freedoms, as already indicated, are considered to be the
fundamental principles of animal welfare and we can say that these freedoms find a place in
Sections 3 and 11 of PCA Act and they are for animals like the rights guaranteed to the citizens of
this country under Part III of the Constitution of India .
55. Animals are world-wide legally recognised as property that can be possessed by humans.
On deletion of Article 19(1)(f) from the Indian Constitution, right to property is more a fundamental
right in India, this gives the Parliament more a leeway to pass laws protecting the rights of animals.
Right to hold on to a property which includes animals also, is now only a legal right not a
fundamental right. We have also to see the rights of animals in that perspective as well.
56. Rights guaranteed to the animals under Sections 3, 11, etc. are only statutory rights. The
same have to be elevated to the status of fundamental rights, as has been done by few countries
around the world, so as to secure their honour and dignity. Rights and freedoms guaranteed to the
animals under Sections 3 and 11 have to be read along with Article 51A(g)(h) of the Constitution,
which is the magna carta of animal rights. COMPASSION:
57. Article 51A(g) states that it shall be the duty of citizens to have compassion for living
creatures. In State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Others (2005) 8
SCC 534, this Court held that by enacting Article 51A(g) and giving it the status of a fundamental
duty, one of the objects sought to be achieved by Parliament is to ensure that the spirit and message
of Articles 48 and 48-A are honoured as a fundamental duty of every citizen. Article 51A(g),
therefore, enjoins that it was a fundamental duty of every citizen to have compassion for living
creatures, which means concern for suffering, sympathy, kindliness etc., which has to be read along
with Sections 3, 11(1)(a) & (m), 22 etc. of PCA Act . HUMANISM:
58. To look after the welfare and well-being of the animals and the duty to prevent the infliction
of pain or suffering on animals highlights the principles of humanism in Article 51A(h). Both
Articles 51A(g) and (h) have to be read into the PCA Act, especially into Section 3 and Section 11
of the PCA Act and be applied and enforced.
SPECIESISM:
59. Speciesism is also described as the widespread discrimination that is practised by man
against the other species, that is a prejudice or attitude of bias towards the interest of members of
ones own species and against those of members of other species. Speciesism as a concept used to be
compared with Racism and Sexism on the ground that all those refer to discrimination that tend to
promote or encourage domination and exploitation of members of one group by another.
60. We have got over those inequalities like Castism, Racism, Sexism etc. through
Constitutional and Statutory amendments, like Articles 14 to 17, 19, 29 and so on. So far as animals
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are concerned, Section 3 of the Act confers right on animals so also rights under Section 11 not to
be subjected to cruelty. When such statutory rights have been conferred on animals, we can always
judge as to whether they are being exploited by human-beings. As already indicated, an enlightened
society, of late, condemned slavery, racism, castism, sexism etc. through constitutional
amendments, laws etc. but, though late, through PCA Act, Parliament has recognized the rights of
animals, of course, without not sacrificing the interest of human beings under the Doctrine of
necessity, like experiments on animals for the purpose of advancement by new discovery of
physiological knowledge or of knowledge which will be useful for saving or for prolonging life or
alleviating suffering or for combating any disease, whether of human beings, animals or plants and
also destruction of animals for food under Section 11(3) of the PCA Act
NON-ESSENTIAL ACTIVITIES:
61. We have, however, lot of avoidable non-essential human activities like Bullock-cart race,
Jallikattu etc. Bulls, thinking that they have only instrumental value are intentionally used though
avoidable, ignoring welfare of the Bulls solely for human pleasure. Such avoidable human activities
violate rights guaranteed to them under Sections 3 and 11 of PCA Act. AWBI, the expert statutory
body has taken up the stand that events like Jallikattu, Bullock-cart race etc. inherently involve pain
and suffering, which involves both physical and mental components, including fear and distress.
Both anxiety and fear, therefore, play an important role in animal suffering, which is part and parcel
of the events like Jallikattu, Bullock-cart Race etc.
RIGHT TO LIFE:
62. Every species has a right to life and security, subject to the law of the land, which includes
depriving its life, out of human necessity. Article 21 of the Constitution, while safeguarding the
rights of humans, protects life and the word life has been given an expanded definition and any
disturbance from the basic environment which includes all forms of life, including animal life,
which are necessary for human life, fall within the meaning of Article 21 of the Constitution. So far
as animals are concerned, in our view, life means something more than mere survival or existence
or instrumental value for human-beings, but to lead a life with some intrinsic worth, honour and
dignity. Animals well-being and welfare have been statutorily recognised under Sections 3 and 11
of the Act and the rights framed under the Act. Right to live in a healthy and clean atmosphere and
right to get protection from human beings against inflicting unnecessary pain or suffering is a right
guaranteed to the animals under Sections 3 and 11 of the PCA Act read with Article 51A(g) of the
Constitution. Right to get food, shelter is also a guaranteed right under Sections 3 and 11 of the
PCA Act and the Rules framed thereunder, especially when they are domesticated. Right to dignity
and fair treatment is, therefore, not confined to human beings alone, but to animals as well. Right,
not to be beaten, kicked, over- ridder, over-loading is also a right recognized by Section 11 read
with Section 3 of the PCA Act . Animals have also a right against the human beings not to be
tortured and against infliction of unnecessary pain or suffering. Penalty for violation of those rights
are insignificant, since laws are made by humans.
64. We are, therefore, of the view that Sections 21, 22 of the PCA Act and the relevant
provisions have to be understood in the light of the rights conferred on animals under Section 3,
read with Sections 11(1)(a) & (o) and Articles 51A(g) and (h) of the Constitution, and if so read, in
our view, Bulls cannot be used as a Performing Animals for Jallikattu and Bullock-cart Race, since
they are basically draught and pack animals, not anatomically designed for such performances.
REPUGNANCY:
65. We may now examine whether provisions of the TNRJ Act, which is a State Act, is
repugnant to the PCA Act, which is a Central Act, since, both the Acts fall under Entry No. 17 in
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the Concurrent List. Repugnancy between the Parliamentary Legislation and State Legislation arises
in two ways: (i) Where the legislations, though enacted with respect to the matters in their allotted
sphere, overlap conflict and (ii) Where two legislations are with respect to the same matters in the
concurrent list and there is a conflict. In both the situations, the Parliamentary legislation will
predominate in the first by virtue of the non-obstante clause in Article 246(1), and in the second by
reason of Article 254(1) of the Constitution. The law on this point has been elaborately discussed by
this Court in the case of Vijay Kumar Sharma v. State of Karnataka (1990) 2 SCC 562 .
66. Instances are many, where the State law may be inconsistent with the Central law, where
there may be express inconsistency in actual terms of the two legislations so that one cannot be
obeyed without disobeying the other. Further, if the Parliamentary legislation, if intended to be a
complete and exhaustive code, then though there is no direct conflict, the State law may be
inoperative. Repugnancy will also arise between two enactments even though obedience to each of
them is possible without disobeying the other, if a competent legislature with a superior efficacy
expressly or impliedly evinces by its legislation an intention to cover the whole field.
67. In M. Karunanidhi v. Union of India AIR 1979 SC 898, this Court held that, in order to
decide the question of repugnancy, it must be shown that the two enactments contain inconsistent
and irreconcilable provisions, therefore, they cannot stand together or operate in the same field.
Further, it was also pointed out that there can be no repeal by implication, unless inconsistency
appears on the face of those statutes. Further, where two statutes occupy a particular field, but there
is room or possibility of both the statutes operating in the same field without coming into collision
with each other, no repugnancy results. Further, it was also noticed that there is no inconsistency,
but a statute occupying the same field seeks to create distinct and separate offences, no question of
repugnancy arises and both the statutes continue to operate in the same field.
68. In Jaya Gokul Educational Trust v. Commissioner & Secretary to Government Higher
Education Department, Thiruvanathapuram, Kerala State and Another (2000) 5 SCC 231,
this Court took the view that the repugnancy may arise between two enactments even though
obedience of each of them is possible without disobeying the other, if a competent legislature of
superior efficacy, expressly or impliedly, evinces by the State legislation a clear intention to cover
the whole field and the enactment of the other legislature, passed before or after, would be over-
borne on the ground of repugnancy.
69. We may, bearing in mind the above principles, examine whether there is any repugnancy
between PCA Act and TNRJ Act so as to have inconsistent and inconceivable provisions so that
they cannot stand together or operate in the same field. Both the legislators trace their legislative
power in Entry 17 List III. Prevention of Cruelty to animals.
70. We have to examine whether while enacting the PCA Act, the Parliament has evinced its
intention to cover the whole field. To examine the same, we have to refer to the Statement of
Objects of the Act, Preamble and other relevant statutory provisions, which would indicate that the
Parliament wanted a comprehensive act with the object of promoting message of animal welfare
and for preventing cruelty to the animals. The Statement of Objects and Reasons of the Act reads as
follows: Statement of Objects and Reasons The Committee for the prevention of cruelty to animals
appointed by the Government of India drew attention to a number of deficiencies in the Prevention
of Cruelty to Animals Act , 1890 (Central Act No. 11 of 1980) and suggested a replacement by a
more comprehensive Act. The existing Act has restricted scope as: (1) it applies only to urban areas
within municipal limits; (2) it defines the term animal as meaning any domestic or captured animal
and thus contains no provision for prevention of cruelty to animals other than domestic and captured
animals; (3) it covers only certain specified types of cruelty to animals; and (4) penalties for certain
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offences are inadequate. The Bill is intended to give effect to those recommendations of the
Committee which have been accepted by the Government of India and in respect of which Central
Legislation can be undertaken. The existing Act is proposed to be repealed. Besides declaring
certain type of cruelty to animals to be offences and providing necessary penalties for such offences
and making some of the more serious of them cognizable, the Bill also contains provisions for the
establishment of an Animal Welfare Board with the object of promoting measures for animal
welfare. Provisions is also being made for the establishment of a Committee to control
experimentation on animals when the Government, on the advice of the Animal Welfare Board, is
satisfied that it is necessary to do so for preventing cruelty to animals during experimentation. The
Bill also contains provisions for licensing and regulating the training and performance of animals
for the purpose of any entertainment to which the public are admitted through sale of tickets.
71. Section 3 has been specifically enacted, as already indicated, to confer duties on persons
who are in-charge or care of the animals, which says, it is the duty of such persons to ensure the
well-being of such animals and to prevent infliction of unnecessary pain or suffering upon the
animals. In other words, the well-being and welfare of the animals is the paramount and dominant
intention of the PCA Act and with that intention it has conferred duties on the person in-charge or
care of the animals and correspondent rights on the animals. Section 11 confers obligations on all
persons, including persons-in-charge or care of the animals to see that Section 3 has been fully
obeyed. Exemptions to Section 11 have been provided in sub-section (3) on the doctrine of
necessity, which concept we have already dealt with in the earlier part of the judgment. Section 22
of PCA Act, which deals with performing animals, has to be read along with Sections 3, 11(1),
11(3) of the Act and that expects only the animal to perform in an exhibition and Bull tamers have
no role unlike TNRJ Act . Sections 21 and 22 refer to training of animals for performance and not
training to withstand the onslaught of Bull tamers. Sections 3, 11 or 22 do not confer any right on
the human beings to over-power the animals while it is performing, on the other hand, under
Section 11(m), inciting an animal to fight is an offence.
72. Section 38 of the PCA Act confers rule-making powers on the Central Government and, in
exercise of its rule- making powers, the Central Government made the Performing Animal Rules,
1973 and the Performing Animals (Registration) Rules, 2001 and thrust of all the substantive and
procedural provisions is the welfare and well-being of the animal and the duties and obligations of
the persons who are in-charge of the animals and also to safeguard the rights conferred on the
animals. Rule 8(vii) specifically refers to animals basic natural instinct and cautions that the basic
natural instinct of the animals be protected and be not exploited.
73. The TNRJ Act, 2009 is an anthropocentric legislation enacted not for the welfare of the
animals, unlike PCA Act, which is an eco-centric legislation, enacted to ensure the well-being and
welfare of the animals and to prevent unnecessary pain or suffering of the animals. The State Act
basically safeguards the interest of the organizers and spectators while conducting the event of
Jallikattu. Act has no Preamble and the Statement of Objects and Reasons of the Act reads as
follows: STATEMENT OF OBJECTS AND REASONS. Jallikattu includes manjuvirattu,
Oormadu, Vadamadu or Erudhu vidum vizha. The said function consists of taming of bulls as a part
of ancient culture and tradition of the Tamils. The said tradition is in vogue for more than 400 years.
At present, there is no legislation to regulate the conduct of Jallikattu, manjuvirattu, Oormadu,
Vadamadu, Erudhu vidum vizha or any such activity involving the taming of bulls. The
Government have, therefore, decided to bring out a legislation to regulate the conduct of the
Jallikattu in the State of Tamil Nadu by prescribing norms to hold such events and to ensure the
safety of animals, participants and the spectators.
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2. The Bill seeks to give effect to the above decisions. Section 4 deals with the responsibility of
the organizers. Section 4(3) provides for double barricade area in order to avoid injuries to the
spectators and by-standers, the prime consideration is, therefore, to avoid injuries to spectators and
by-standers and not that of the animal. Section 4(iv) deals with the fixing the gallery for the
spectators to sit and watch the event. Section 4(vi) empowers the Animal Husbandry Department to
test the bulls to ensure that performance enhancement drugs are not administered. Duties have also
been assigned to the District Collector, under Section 5 of the Act, to ensure safety of the spectators
and to see that bulls are free from diseases and not intoxicated or administered with any substance
like nicotine, cocaine etc. to make them more aggressive and ferocious. Sections 5(ix) and (x)
authorize the District Collector to give wider publicity to the provisions of the PCA Act and the
rules made thereunder and to ensure the presence of animal welfare activists of AWBI during the
conduct of the event. Section 7 deals with penalty, it says whoever contravenes the provisions of
this Act shall, on conviction, be punishable with imprisonment which may extend to one year or
with fine, which may extend to Rs.10,000/-, or with both. Section 11 of PCA Act, it may be noted,
provides for imprisonment for a term which may extend maximum to three months, to that extent,
there is inconsistency between Section 7 of the TNRJ Act as well as Section 11 of the PCA Act .
74. Section 2(d) of the PCA Act speaks of domestic animal and taming the animal for use of
men, which is evidently for domestic use, being domestic animal, not for entertainment or
amusement. Section 11(3), as already stated, excludes five categories of cases from Section 11 due
to necessity and Section 28 speaks of killing of animal in a manner required by the religion of any
community. Section 22 of the Act speaks of performing animal, meaning thereby, exhibition and
training only for performance of the animal. The PCA Act does not speak of taming of animals
(over-powering animals). Taming of animal for domestic use and taming of animal for exhibition or
entertainment are entirely different. Section 2(c) of TNRJ Act speaks of taming of bulls which is
inconsistent and contrary to the provisions of Chapter V of PCA Act . Sections 4(vii), (viii) and 5
(viii) speak of Bull tamers. Bull tamers, therefore, tame the bulls at the arena, thereby causing
strain, stress, inflict pain and suffering, which PCA Act wants to prevent under Section 11 of the
Act. Taming of bulls in arena during Jallikattu, as per the State Act, is not for the well-being of the
animal and causes the unnecessary pain and suffering, that is exactly what the Central Act (PCA
Act) wants to prevent for the well-being and welfare of animals, which is also against the basic
natural instinct of the bulls.
75. PCA Act, especially Section 3, coupled with Section 11(1)(m)(ii), as already stated, makes
an offence, if any person solely with a view to provide entertainment, incites any animal to fight.
Fight can be with an animal or a human being. Section 5 of TNRJ Act envisages a fight between a
Bull and Bull tamers, that is, Bull tamer has to fight with the bull and tame it. Such fight is
prohibited under Section 11(1)(m)(ii) of PCA Act read with Section 3 of the Act. Hence, there is
inconsistency between Section 5 of TNRJ Act and Section 11(1)(m)(ii) of PCA Act.
76. TNRJ Act, in its Objects and Reasons, speaks of ancient culture and tradition and also
safety of animals, participants and spectators. PCA Act was enacted at a time when it was noticed
that in order to reap maximum gains, the animals were being exploited by human beings, by using
coercive methods and by inflicting unnecessary pain. PCA Act was, therefore, passed to prevent
infliction of unnecessary pain or suffering and for the well-being and welfare of the animals and to
preserve the natural instinct of the animal. Over-powering the performing animal was never in the
contemplation of the PCA Act and, in fact, under Section 3 of the PCA Act, a statutory duty has
been cast on the person who is in-charge or care of the animal to ensure the well-being of such
animal and to prevent infliction on the animal of unnecessary pain or suffering. PCA Act, therefore,
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cast not only duties on human beings, but also confer corresponding rights on animals, which is
being taken away by the State Act (TNRJ Act) by conferring rights on the organizers and Bull
tamers, to conduct Jallikattu, which is inconsistent and in direct collision with Section 3, Section
11(1)(a), 11(1)(m)(ii) and Section 22 of the PCA Act read with Articles 51A(g) & (h) of the
Constitution and hence repugnant to the PCA Act, which is a welfare legislation and hence declared
unconstitutional and void, being violative of Article 254(1) of the Constitution of India .
77. We, therefore, hold that AWBI is right in its stand that Jallikattu, Bullock-cart Race and
such events per se violate Sections 3, 11(1)(a) and 11(1)(m)(ii) of PCA Act and hence we uphold
the notification dated 11.7.2011 issued by the Central Government, consequently, Bulls cannot be
used as performing animals, either for the Jallikattu events or Bullock-cart Races in the State of
Tamil Nadu, Maharashtra or elsewhere in the country. We, therefore, make the following
declarations and directions: (1) We declare that the rights guaranteed to the Bulls under Sections 3
and 11 of PCA Act read with Articles 51A(g) & (h) are cannot be taken away or curtailed, except
under Sections 11(3) and 28 of PCA Act . (2) We declare that the five freedoms, referred to earlier
be read into Sections 3 and 11 of PCA Act, be protected and safeguarded by the States, Central
Government, Union Territories (in short Governments), MoEF and AWBI. (3) AWBI and
Governments are directed to take appropriate steps to see that the persons-in-charge or care of
animals, take reasonable measures to ensure the well-being of animals. (4) AWBI and Governments
are directed to take steps to prevent the infliction of unnecessary pain or suffering on the animals,
since their rights have been statutorily protected under Sections 3 and 11 of PCA Act . (5) AWBI is
also directed to ensure that the provisions of Section 11(1)(m)(ii) scrupulously followed, meaning
thereby, that the person-in- charge or care of the animal shall not incite any animal to fight against a
human being or another animal. (6) AWBI and the Governments would also see that even in cases
where Section 11(3) is involved, the animals be not put to unnecessary pain and suffering and
adequate and scientific methods be adopted to achieve the same. (7) AWBI and the Governments
should take steps to impart education in relation to human treatment of animals in accordance with
Section 9(k) inculcating the spirit of Articles 51A(g) & (h) of the Constitution. (8) Parliament is
expected to make proper amendment of the PCA Act to provide an effective deterrent to achieve the
object and purpose of the Act and for violation of Section 11, adequate penalties and punishments
should be imposed. (9) Parliament, it is expected, would elevate rights of animals to that of
constitutional rights, as done by many of the countries around the world, so as to protect their
dignity and honour. (10) The Governments would see that if the provisions of the PCA Act and the
declarations and the directions issued by this Court are not properly and effectively complied with,
disciplinary action be taken against the erring officials so that the purpose and object of PCA Act
could be achieved. (11) TNRJ Act is found repugnant to PCA Act, which is a welfare legislation,
hence held constitutionally void, being violative or Article 254(1) of the Constitution of India .
(12) AWBI is directed to take effective and speedy steps to implement the provisions of PCA Act in
consultation with SPCA and make periodical reports to the Governments and if any violation is
noticed, the Governments should take steps to remedy the same, including appropriate follow-up
action.
78. Appeals, transferred cases and the Writ Petition are disposed of as above, setting aside the
judgment of the Madras High Court, but upholding the judgment of Bombay High Court and the
notification dated 11.7.2011 issued by the Central Government. In the facts and circumstances of
the case, there will be no order as to costs. ...J. (K.S. Radhakrishnan) ...J. (Pinaki Chandra Ghose)
New Delhi, May 07, 2014.
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FUNDAMENTAL RIGHT TO FREEDOM OF RELIGION
Seshammal v. State of Tamil Nadu

(1972) 2 SCC 11
D.G. PALEKAR, J. - In these 12 petitions under Article 32 of the Constitution filed by the hereditary
Archakas and Mathadhipatis of some ancient Hindu Public temples in Tamil Nadu the validity of the
Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 1970 (the Amendment Act,
1970), is called in question, principally, on the ground that it violates their freedom of religion secured to
them under Articles 25 and 26 of the Constitution.
2. The temples with which we are concerned are Saivite and Vaishnavite temples in Tamil Nadu. Writ
Petitions… are filed by the Archakas and Writ Petitions … 1971, are filed by the Mathadhipatis to whose
Math some temples are attached.
3. The State Legislature of Tamil Nadu enacted the Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959, (Principal Act). It came into force on December 2, 1959. It was an Act to amend
and consolidate the law relating to the administration and governance of Hindu Religious and Charitable
Institutions and Endowments in the State of Tamil Nadu. I applied to all Hindu religious public
institutions and endowments in the State of Tamil Nadu and repealed several Acts which had previously
governed the administration of Hindu Public Religious Institutions. It is sufficient to say here that the
provisions of the principal Act applied to the temples in the present petitions and the petitioners have no
complaint against any of its provisions.
4. Section 55 of that Act provided for the appointment of officeholders and servants in such temples
and Section 56 provided for the punishment of office-holders and servants. Section 55, broadly speaking,
gave the trustee of the temple the power to appoint the office-holders or servants of the temple and also
provided that where the office or service is hereditary the person next in the line of succession shall be
entitled to succeed. In only exceptional cases the trustee was entitled to depart from the principle of next-
in-the-line of succession, but even so, the trustee was under an obligation to appoint a fit person to
perform the functions of the office or perform the service after having due regard to the claims of the
members of the family.
5. Power to make rules was given to Government by Section 116(2)(xxiii) and it was open to the
Government to make rules providing for the qualifications to be possessed by the officers and servants for
appointment to non-hereditary offices in religious institutions, the qualifications to be possessed by
hereditary servants for succession to office and the conditions of service of all such officers and servants.
Under this rule-making power the State Government made the Madras Hindu Religious Institutions
(Officers’ and Servants) Service Rules, 1964. Under these rules an Archak or Pujari of the deity came
under the definition of Ulthurai servant. ‘Ulthurai servant’ is defined as a servant whose duties relate
mainly to the performance of rendering assistance in the performance of pujas, rituals and other services
to the deity, the recitation of mantras, vedas, prabandams, thevarams and similar invocations and the
performance of duties connected with such performance of recitation. Rule 12 provided that every
‘Ulthurai servant’, whether hereditary or non-hereditary whose duty it is to perform pujas and recite
mantras, vedas, prabandams, thevarams and other invocations shall, before succeeding, or appointment to
an office, obtain a certificate of fitness for performing his office, from the head of an institution imparting
instructions in Agamas and ritualistic matters and recognised by the Commissioner, by general or special
order or from the head of a math recognised by the Commissioner, by general or special order, or such
other person as may be designated by the Commissioner, from time to time, for the purpose. By this rule
the proper worship, in the temple was secured whether the Archaka or Pujari was a hereditary Archaka or
Pujari or not. Section 107 of the Act emphasized that nothing contained in the Act shall, save as otherwise
provided in Section 106 and in clause (2) of Article 25 of the Constitution, be deemed to confer any
power or impose any duty in contravention of the rights conferred on any religious denomination or any
278 | P a g e
section thereof by Article 26 of the Constitution. Section 106 deals with the removal of discrimination in
the matter of distribution of prasadam or theertham to the Hindu worshippers. That was a reform in the
right direction and there is no challenge to it. The Act as a whole, it is conceded, did not interfere with the
religious usages and practices of the temples.
6. The principal Act of 1959 was amended came into force on January 8, 1971. Amendments were
made to Sections 55, 56 and 116 of the Principal Act. The Amendment Act was enacted as a step towards
social reform on the recommendation of the Committee on untouchability, Economic and Educational
Development of the Scheduled Castes. The statement of objects and reasons which are reiterated in the
counter-affidavit filed on behalf of the State of Tamil Nadu is as follows:
“In the year 1969 the Committee on Untouchability, Economic and Educational
Development of the Scheduled Castes has suggested in its report that the hereditary priesthood in
the Hindu Society should be abolished, that the system can be replaced by an ecclesiastical
organisation of men possessing the requisite educational qualifications who may be trained in
recognised institutions in priesthood and that the line should be open to all candidates
irrespective of caste, creed or race. In Tamil Nadu Archakas, Gurukkals and Poojaries are all
Ulthurai servants in Hindu temples. The duties of Ulthurai servants relate mainly to the
performance of poojas rituals and other services to the deity, the recitation of mantras, vedas,
prabandas, thevarams and similar invocations and the performance of duties connected with such
performance and recitations. Sections 55 and 56 of the Tamil Nadu Hindu Religious and
Charitable Endowments Act, 1959, provide for appointment of office-holders and servants in the
religious institutions by the trustees by applying the rule of hereditary succession also. As a step
towards social reform Hindu temples have already been thrown open to all Hindus irrespective of
caste….”
7. In the light of the recommendations of the Committee and in view of the decision of this court in
Gazula Dasaratha Rama Rao v. State of Andhra Pradesh [(1961) 2 SCR 931] and also as a further step
towards social reform the Government considered that the hereditary principle of appointment of all
office-holders in the Hindu temples should be abolished and accordingly it proposed to amend Sections
55, 56 and 116 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
8. It is the complaint of the petitioners that by purporting to introduce social reform in the matter of
appointment of Archakas and Pujaris, the State has really interfered with the religious practices of Saivite
and Vaishnavite temples, and instead of introducing social reform, taken measures which would
inevitably lead to defilement and desecration of the temples.
Original and amended Sections 55, 56 and 116 of the Principal Act
Unamended Section Amended Section
Section 55. Appointment of officeholders Section 55. Appointment of officeholders
and servants in religious institutions.– (1) and servants in religious institutions.– (1)
Vacancies, whether permanent or Vacancies, whether permanent or
temporary, among the office-holders or temporary, among the office-holders or
servants of a religious institution shall be servants of a religious institution shall be
filled up by the trustee in cases where the filled up by the trustee in all cases.
office or service is not hereditary. Explanation.– The expression ‘office-
holders or servants shall include Archakas
and Poojaris’.
(2) In cases where the office or service is (2) No person shall be entitled to
hereditary, the person next in the line of appointment to any vacancy referred to in
succession shall be entitled to succeed. sub-section (1) merely on the ground that
he is next in the line of succession to the
last holder of office.
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(3) Where, however, there is a dispute (3) Omitted.
respecting the right of succession, or where
such vacancy cannot be filled up
immediately, or where the person entitled
to succeed is a minor without a guardian fit
and willing to act as such or there is a
dispute respecting the person who is
entitled to act as guardian, or–
Where the hereditary officeholder or
servant, is on account of incapacity, illness
or otherwise unable to perform the
functions of the office or perform the
service, or is suspended from his office
under sub-section (1) of Section 56, the
trustee may appoint a fit person to perform
the functions of the office or perform the
service, until the disability of the office-
holder or servant ceases or another person
succeeds to the office or service, as the
case may be.
Explanation.– In making any appointment
under this sub-section, the trustee shall
have due regard to the claims of members
of the family, if any, entitled to the
succession.
(4) Any person aggrieved by an order of (4) Any person aggrieved by an order of
the trustee under subsection (3) may, trustee under subsection (i) may within one
within one month from the date of the month from the date of receipt of the order
receipt of the order by him, appeal against by him appeal against the order of the
the order to the Deputy Commissioner. Deputy Commissioner.
Section 56. Punishment of officeholders Section 56. Punishment of officeholders
and servants in religious institutions.– (1) and servants in religious institution.– (1)
All office-holders and servants attached to All office-holders and servants attached to a
a religious institution or in receipt of any religious institution or in receipt of any
emolument or perquisite therefrom shall, emolument or perquisite therefrom shall be
whether the office or service is hereditary controlled by the trustee and the trustee
or not, be controlled by the trustee; and the may after following the prescribed
trustee may, after following the prescribed procedure, if any, fine, suspend, remove or
procedure, if any, fine, suspend, remove or dismiss any of them for breach of trust,
dismiss any of them for breach of trust, incapacity, disobedience of orders, neglect
incapacity, disobedience of order, neglect of duty, misconduct or other sufficient
of duty, misconduct or other sufficient cause. whether the office or service is
cause. hereditary or not, be controlled by the
trustee; and the trustee may, after following
the prescribed procedure, if any, fine,
suspend, remove or dismiss any of them for
breach of trust, incapacity, disobedience of
orders, neglect of duty, misconduct or other
sufficient cause.
(2) Any office-holder or servant punished (2) Any office-holder or servant punished
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by a trustee under subsection (1) may by a trustee under subsection (1) may,
within one month from the date of receipt within one month from the date of the
of order by him appeal against the order to receipt of the order by him, appeal against
the Deputy Commissioner. the order to the Deputy Commissioner.
(3) A Hereditary office-holder or servant (3) Omitted.
may, within one month from the date of the
receipt by him of the order of the Deputy
Commissioner under sub-section (2),
prefer an appeal to the Commissioner
against such order.
Section 116 - (1) The Government may, by Section 116 -
notification, make rules to carry out the
purposes of this Act.
(2) Without prejudice to the generality
of the foregoing power, such rules may
provide for -
(xxiii).– The qualifications to be possessed (xxiii).– The qualifications to be possessed
by the officers and servants for by the officers and servants for appointment
appointment to non-hereditary offices in to offices in religious institutions and the
religious institutions, the qualifications to conditions of service of all such officers
be possessed by hereditary servants for and servants.
succession to office and the conditions of
service of all such officers and servants.
10. It is clear from a perusal of the above provisions that the Amendment Act does away with the
hereditary right of succession to the office of Archaka even if the Archaka was qualified under Rule 12 of
the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964. It is claimed on
behalf of the petitioners that as a result of the Amendment Act, their fundamental rights under Article
25(1) and Article 26(b) are violated since the effect of the amendment is as follows -
(a) The freedom of hereditary succession to the office of Archaka is abolished although
succession to it is an essential and integral part of the faith of the Saivite and Vaishnavite
worshippers.
(b) It is left to the Government in power to prescribe or not to prescribe such qualifications
as they may choose to adopt for applicants to this religious office while the Act itself gives no
indication whatever of the principles on which the qualifications should be based. The statement
of objects and reasons which is adopted in the counter-affidavit on behalf of the State makes it
clear that not only the scope but the object of the Amendment Act is to override the exclusive
right of the denomination to manage their own affairs in the matter of religion by appointing
Archakas belonging to a specific denomination for the purpose of worship.
(c) The Amendment Act gives the right of appointment for the first time to the trustee who is
under the control of the Government under the provision! of the Principal Act and this is the very
negation of freedom of religion and the principle of non-interference by the State as regards the
practice of religion and the right of a denomination to manage its own affairs in the matter of
religion.
11. Before we turn to these questions, it will be necessary to refer to certain concepts of Hindu
religious faith and practices to understand and appreciate the position in law. The temples with which we
are concerned are public religious institutions established in olden times. Some of them are Saivite
temples and the others are Vaishnavite temples, which means, that in these temples God Shiva and
Vishnu in their several manifestations are worshipped. The image of Shiva is worshipped by his
worshippers who are called Saivites and the image of Vishnu is worshipped by his worshippers who are
281 | P a g e
known as Vaishnavites. The institution of temple worship has an ancient history and according to Dr.
Kane, temples of deities had existed even in the 4th or 5th century B. C. With the construction of temples
the institution of Archakas also came into existence, the Archakas being professional men who made their
livelihood, by attending on the images. Just when the cult of worship of Siva and Vishnu started and
developed into two distinct cults is very difficult to say, but there can be no doubt that in the tunes of the
Mahabharata these cults were separately developed and there was keen rivalry between them to such an
extent that the Mahabharata and some of the Puranas endeavoured to inculcate a spirit of synthesis by
impressing that there was no difference between the two deities. With the establishment of temples and
the institution of Archakas, treatises on rituals were compiled and they are known as ‘Agamas’. The
authority of these Agamas is recognised in several decided cases and by this Court in Sri Venkataramana
Devaru v. State of Mysore [1958 SCR 895]. Agamas are described in the last case as treatises of
ceremonial law dealing with such matters as the construction of temples, installation of idols therein and
conduct of the worship of the deity. There are 28 Agamas relating to the Saiva temples, the most
important of them being the Kamikagama, the Karanagama and the Suprabedagama. The Vaishnavas also
had their own Agamas. Their principal Agamas were the Vikhanasa and the Pancharatra. The Agamas
contain elaborate rules as to how the temple is to be constructed, where the principal deity is to be
consecrated, and where the other Devatas are to be installed and where the several classes of worshippers
are to stand and worship. Where the temple was constructed as per directions of the Agamas the idol had
to be consecrated in accordance with an elaborate and complicated ritual accompanied by chanting of
mantras and devotional songs appropriate to the deity. On the consecration of the image in the temple the
Hindu worshippers believe that the Divine Spirit has descended into the image and from then on the
image of the deity is fit to be worshipped. Rules with regard to daily and periodical worship have been
laid down for securing the continuance of the Divine Spirit. The rituals have a two-fold object. One is to
attract the lay worshipper to participate in the worship carried on by the priest or Archaka. It is believed
that when a congregation of worshippers participates in the worship a particular attitude of aspiration and
devotion is developed and confers great spiritual benefit. The second object is to preserve the image from
pollution, defilement or desecration. It is part of the religious belief of a Hindu worshipper that when the
image is polluted or defiled the Divine Spirit in the image diminishes or even vanishes. That is a situation
which every devotee or worshipper looks upon with horror. Pollution or defilement may take place in a
variety of ways. According to the Agamas, an image becomes defiled if there is any departure or violation
of any of the rules relating to worship. In fact, purificatory ceremonies have to be performed for restoring
the sanctity of the shrine [1958 SCR 895 (910)]. Worshippers lay great store by the rituals and whatever
other people, not of the faith, may think about these rituals and ceremonies, they are a part of the Hindu
religious faith and cannot be dismissed as either irrational or superstitious. An illustration of the
importance attached to minor details of ritual is found in the case of His Holiness Peria Kocil Kelvi
Appan Thiruvenkata Ramanuja Pedda Jyywgarlu Varlu v. Prathivathi Bhavankaram Venkatacharlu
[73 IA 156], which went up to the Privy Council. The contest was between two denominations of
Vaishnava worshippers of South India, the Vadagalais and Tengalais. The temple was a Vaishnava temple
and the controversy between them involved the question as to how the invocation was to begin at the time
of worship and which should be the concluding benedictory verses. This gives the measure of the
importance attached by the worshippers to certain modes of worship. The idea most prominent in the
mind of the worshipper is that a departure from the traditional rules would result in the pollution or
defilement of the image which must be avoided at all costs. That is also the rationale for preserving the
sanctity of the Garbhagriha or the sanctum sanctorum. In all these temples in which the images are
consecrated, the Agamas insist that only the qualified Archaka or Pujari shall step inside the sanctum
sanctorum and that too after observing the daily disciplines which are imposed upon him by the Agamas.
As an Archaka he has to touch the image in the course of the worship and it is his sole right and duty to
touch it. The touch of anybody eke would defile it. Thus under the ceremonial law pertaining to temples
even the question as to who is to enter the Garbhagriha or the sanctum sanctorum and who is not entitled
to enter it and who can worship and from which place in the temple are all matters of religion as shown in
the above decision of this Court.
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12. The Agamas have also rules with regard to the Archakas. In Saivite temples only a devotee of
Siva, and there too, one belonging to a particular denomination or group or sub-group is entitled to be the
Archaka. If he is a Saivite, he cannot possibly be an Archaka in a Vaishnavite Agama temple to whatever
caste he may belong and however learned he may be. Similarly, a Vaishnavite Archaka has no place as an
Archaka in a Saivite temple. Indeed there is no bar to a Saivite worshipping in a Vaishnavite temple as a
lay worshipper or vice versa. What the Agamas prohibit is his appointment as an Archaka in a temple of a
different denomination. Dr. Kane has quoted the Brahmapurana on the topic of Punah-pratistha (Re-
consecration of images in temples) at page 904 of his History of Dharmasastra referred to above. The
Brahmapurana says that “when an image is broken into two or is reduced to particles, is burnt, is removed
from its pedestal, is insulted, has ceased to be worshipped, is touched by beasts like donkeys or falls on
impure ground or is worshipped with mantras of other deities or is rendered impure by the touch of
outcastes and the like - in these ten contingencies, God ceases to indwell therein”. The Agamas appear to
be more severe in this respect. Shri R. Parthasarathy Bhattacharya, whose authority on Agama literature is
unquestioned, has filed his affidavit in Writ Petition No. 442 of 1971 and stated in his affidavit, with
special reference to the Vaikhanasa Sutra to which he belongs, that according to the texts of the
Vaikhanasa Shastra (Agama), persons who are the followers of the four Rishi traditions of Bhrigu, Atri,
Marichi and Kasyapa and born of Vaikhanasa parents are alone competent to do puja in Vaikhanasa
temples of Vaishnavites. They only can touch the idols and perform the ceremonies and rituals. None
others, however high placed in society as pontiffs or Acharyas, or even other Brahmins could touch the
idol, do puja or even enter the Garbha Griha. Not even a person belonging to another Agama is competent
to do puja in Vaikhanasa temples. That is the general rule with regard to all these sectarian
denominational temples. It is, therefore, manifest that the Archaka of such a temple besides being
proficient in the rituals appropriate to the worship of the particular deity, must also belong, according to
the Agamas, to a particular denomination. An Archaka of a different denomination is supposed to defile
the image by his touch and since it is of the essence of the religious faith of all worshippers that there
should be no pollution or defilement of the image under any circumstance, the Archaka undoubtedly
occupies an important place in the matter of temple worship. Any State action which permits the
defilement or pollution of the image by the touch of an Archaka not authorised by the Agamas would
violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and
would, therefore, be prima facie invalid under Article 25(1) of the Constitution.
13. This Court in Sardar Syedna Taker Saifuddin Saheb v. State of Bombay [1962 Supp 2 SCR
496], has summarised the position in law as follows:
“The content of Articles 25 and 26 of the Constitution came up for consideration before this
Court in the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirta
Swamiar of Sri Shirvr Matt [1954 SCR 1005], Mahant Jagannath Ramanuj Das v. State of
Orissa [1954 SCR 1046] Sri Venkataramana Deoaru v. State of Mysore [1958 SCR 895]
Durgah Committee, Ajmer v. Syed Hussain Ali [(1962) 1 SCR 383] and several other cases and
the main principles underlying these provisions have by these decisions been placed beyond
controversy. The first is that the protection of these articles is not limited to matters of doctrine or
belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for
rituals and observances, ceremonies and modes of worship which are integral parts of religion.
The second is that what constitutes an essential part of a religious or religious practice has to be
decided by the courts with reference to the doctrine of a particular religion and include practices
which are regarded by the community as a part of its religion.”
15. Section 55 of the Principal Act as it originally stood and Rule 12 of the Madras Hindu Religious
Institutions (Officers and Servants) Service Rules, 1964, ensured, so far as temples with hereditary
Archakas were concerned, that there would be no defilement of the image. By providing in sub-section
(2) of Section 55 that “in cases, where the office or service is hereditary, the person next in the line of
succession shall be entitled to succeed”, it ensured the personal qualification of the Archaka that he
should belong to a particular sect or denomination as laid down in the Agamas. By Rule 12 it also ensured
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that the Archaka would be proficient in the mantras, vedas, prabandams, thevaramas, etc., and thus be fit
for the performance of the puja, in other words, that he would be a person sufficiently qualified for
performing the rituals and ceremonies. As already shown an image becomes defiled if there is any
departure or violation of any of the rules relating to worship, and this risk is avoided by insisting that the
Archaka should be an expert in the rituals and the ceremonies. By the Amendment Act the principle of
next-in-the-line of succession is abolished. Indeed it was the claim made in the statement of objects and
reasons that the hereditary principle of appointment of office-holders in the temples should be abolished
and that the office of an Archaka should be thrown open to all candidates trained in recognised
institutions in priesthood irrespective of caste, creed or race. The trustee, so far as the amended Section 55
went, was authorised to appoint anybody as an Archaka in any temple whether Saivite or Vaishnavite as
long as he possessed a fitness certificate from one of the institutions referred to in Rule 12. Rule 12 was a
rule made by the Government under the Principal Act. That rule is always capable of being varied or
changed.
It was also open to the Government to make no rule at all or to prescribe a fitness certificate issued by
an institution which did not teach the Agamas or traditional rituals. The result would, therefore, be that
any person, whether he is a Saivite or Vaishnavite or not, or whether he is proficient in the rituals
appropriate to the temple or not, would be eligible for appointment as-an Archaka and the trustee’s
discretion in appointing the Archaka without reference to personal and other qualifications of the Archaka
would be unbridled. The trustee is to function under the control of the State because under Section 27 of
the principal Act the trustee was bound to obey all lawful orders issued under the provisions of the Act by
the Government, the Commissioner, the Deputy Commissioner or the Assistant Commissioner. It was
submitted that the innocent looking amendment brought the State right into the sanctum sanctorum
through the agency of the trustee and the Archaka.
16. It has been recognised for a long time that where the ritual in a temple cannot be performed
except by a person belonging to a denomination, the purpose of worship will be defeated. In that case the
claimants to the temple and its worship were Brahmins and the daughter’s sons of the founder and his
nearest heirs under the Hindu law. But their claim was rejected on the ground that the temple was
dedicated to the sect following the principles of Vallabli Archarya in whose temples only the Gossains of
that sect could perform the rituals and ceremonies and, therefore, the claimants had no right either to the
temple or to perform the worship. In view of the Amendment Act and its avowed object there was
nothing, in the petitioners’ submission, to prevent the Government from prescribing a standardised ritual
in all temples ignoring the Agamic requirements, and Archakas being forced on temples from
denominations unauthorised by the Agamas. Since such a departure, as already shown, would inevitably
lead to the defilement of the image, the powers thus taken by the Government under the Amendment Act
would lead to interference with religious freedom guaranteed under Articles 25 and 26 of the
Constitution.
17. The force of the above submissions made on behalf of the petitioners was not lost on the learned
Advocate General of Tamil Nadu who appeared on behalf of the State. He, however, side-tracked the
issue by submitting that if we were to consider in isolation only the changes introduced in Section 55 by
the Amendment Act the situation as described on behalf of the petitioners could conceivably arise. He did
not also admit that he was bound by either the statement of objects and reasons or the reiteration of the
same in the counter-affidavit filed on behalf of the State. His submission was that we have to take the
Principal Act as it now stands after the amendment and see what is the true effect of the same. He
contended that the power given to the trustee under the amended Section 55 was not an unqualified power
because, in his submission, that power had to be read in the context of Section 28 which controlled it.
Section 28(1) provides as follows:
“Subject to the provisions of the Tamil Nadu Temple Entry Authorisation Act, 1947, the
trustee of every religious institution is bound to administer its affairs and to apply its funds and
properties in accordance with the terms of the trust, the usage of the institution and all lawful
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directions which a competent authority may issue in respect thereof and as carefully as a man of
ordinary prudence would deal with such affairs, funds and properties if they were his own.”
18. The learned Advocate General argued that the trustee was bound under this provision to
administer the affairs of the temple in accordance with the terms of the trust and the usage of the
institution. If the usage of the institution is that the Archaka or Pujari of the temple must be of a particular
denomination, then the usage would be binding upon him and he would be bound to make the
appointment under Section 55 in accordance with the usage of appointing one from the particular
denomination. There was nothing in Section 55, in his submission, which released him from his liability
to make the appointment in accordance with the said usage. It was true that the principle of the next-in-
line of succession was not binding on him when making the appointment of a new Archaka, but in his
submission, that principle is no part of the usage, the real usage being to appoint one from the
denomination. Moreover the amended section, according to him, does not require the trustee to exclude in
every case the hereditary principle if a qualified successor is available and there was no reason why the
trustee should not make the appointment of the next heir, if found competent. He, however, agreed, that
there was no such legal obligation on the trustee under that section. He further contended that if the-next-
in-line of succession principle is regarded as a usage of any particular temple it would be merely a secular
usage on which legislation was competent under Article 25(2)(a) of the Constitution. Going further, he
contended that if the hereditary principle was regarded as a religious practice that would be also amenable
to legislation under Article 25(2)(6) which permits legislation for the purpose of social welfare and
reform. He invited attention to the Report of the Hindu Religious Endowments Commission (1960-
1962) headed by Dr. C.P. Ramaswami Aiyar and submitted that there was a crying need for reform in this
direction since the hereditary principle of appointment of Archakas had led to grave malpractices
practically destroying the sanctity of worship in various religious institutions.
19. We have found no any difficulty in agreeing with the learned Advocate General that Section 28(1)
of the Principal Act which directs the trustee to administer the affairs of the temple in accordance with the
terms of the trust or the usage of the institution, would control the appointment of the Archaka to be made
by him under the amended Section 55 of the Act. In a Saivite or a Vaishnavite temple the appointment of
the Archaka will have to be made from a specified denomination, sect or group in accordance with the
directions of the Agamas governing those temples. Failure to do so would not only be contrary to Section
28(1) which requires the trustee to follow the usage of the temple, but would also interfere with a
religious practice the inevitable result of which would be to defile the image. The question, however,
remains whether the trustee, while making appointment from the specified denomination, sect or group in
accordance with the Agamas, will be bound to follow the hereditary principle as a usage peculiar to the
temple. The learned Advocate-General contends that there is no such invariable usage. It may be that, as a
matter of convenience, an Archaka’s son being readily available to perform the worship may have been
selected for appointment as an Archaka from times immemorial. But that, in his submission, was not a
usage. The principle of next-in-line of succession has failed when the successor was a female or had
refused to accept the appointment or was under some disability. In all such cases the Archaka was
appointed from the particular denomination, sect or group and the worship was carried on with the help of
such a substitute. It, however, appears to us that it is now too late in the day to contend that the hereditary
principle in appointment was not a usage. For whatever reasons, whether of convenience or otherwise,
this hereditary principle might have been adopted, there can be no doubt that the principle had been
accepted from antiquity and had also been fully recognised in the unamended Section 55 of the Principal
Act. Sub-section (2) of Section 55 provided that where the office or service is hereditary, the person next
in the line of succession shall be entitled to succeed and only a limited right was given under sub-section
(3) to the trustee to appoint a substitute. Even in such cases the explanation to sub-section (3) provided
that in making the appointment of the substitute the trustee should have due regard to the claims of the
members of the family, if any, entitled to the succession. Therefore, it cannot be denied as a fact that there
are several temples in Tamil Nadu where the appointment of an Archaka is governed by the usage of
hereditary succession. The real question, therefore, is whether such a usage should be regarded either as a
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secular usage or a religious usage. If it is a secular usage, it is obvious, legislation would be permissible
under Article 25(1)(a) and if it is a religious usage it would be permissible if it falls squarely under sub-
section 25(l)(b).
20. Mr. Palkhivala on behalf of the petitioners insisted that the appointment of a person to a religious
office in accordance with the hereditary principle is itself a religious usage and amounted to a vital
religious practice and hence falls within Articles 25 and 26. In his submission, priests, who are to perform
religious ceremonies may be chosen by a temple on such basis as the temple chooses to adopt. It may be
election, selection, competition, nomination, or hereditary succession. ‘ He, therefore, contended that any
law which interferes with the aforesaid basis of appointment would violate religious freedom guaranteed
by Articles 25 and 26 of the Constitution. In his submission the right to select a priest has an immediate
bearing on religious practice and the right of a denomination to manage its own affairs in matters of
religion. The priest is more important than the ritual and nothing could be more vital than chosing the
priest. Under the pretext of social reform, he contended, the State cannot reform a religion out of
existence and if any denomination has accepted the hereditary principle for chosing its priest that would
be a religious practice vital to the religious faith and cannot be changed on the ground that it leads to
social reform. Mere substitution of one method of appointment of the priest by another was, in his
submission, no social reform.
21. It is true that a priest or an Archaka when appointed has to perform some religious functions but
the question is whether the appointment of a priest is by itself a secular function or a religious practice.
Mr. Palkhivala gave the illustration of the spiritual head of a math belonging to a denomination of a
Hindu sect like the Shankaracharya and expressed horror at the idea that such a spiritual head could be
chosen by a method recommended by the State though in conflict with the usage and the traditions of the
particular institution. Where, for example, a successor of a Mathadhipati is chosen by the Mathadhipati by
giving him mantra-deeksha or where the Mathadhipati is chosen by his immediate disciples, it would be,
he contended, extraordinary for the State to interfere and direct that some other mode of appointment
should be followed on the ground of social reform. Indeed this may strike one as an intrusion in the matter
of religion. But we are afraid such an illustration is inapt when we are considering the appointment of an
Archaka of a temple. The Archaka has never been regarded as a spiritual head of any institution. He may
be an accomplished person, well versed in the Agamas and rituals necessary to be performed in a temple
but he does not have the status of a spiritual head. Then again the assumption made that the Archaka may
be chosen in a variety of ways is not correct. The Dharam-karta or the Shebait makes the appointment and
the Archaka is a servant of the temple. It has been held in K. Seshadri Aiyangar v. Ranga Bhattar [ILR
35 Mad 631] that even the position of the hereditary Archaka of a temple is that of a servant subject to the
disciplinary power of the trustee. The trustee can enquire into the conduct of such a servant and dismiss
him for misconduct. As a servant he is subject to the discipline and control of the trustee as recognised by
the unamended Section 56 of the Principal Act which provides “all office-holders and servants attached to
a religious institution or in receipt of any emolument or perquisite therefrom shall, whether the office or
service is hereditary or not, be controlled by the trustee and the trustee may, after following the prescribed
procedure, if any, fine, suspend, remove or dismiss any of them for breach of trust, incapacity,
disobedience of orders, neglect of duty, misconduct or other sufficient cause.” That being the position of
an Archaka, the act of his appointment by the trustee is essentially secular. He owes his appointment to a
secular authority. Any lay founder of a temple may appoint the Archaka. The Shebaits and Managers of
temples exercise essentially a secular function in choosing and appointing the Archaka. That the son of an
Archaka or the son’s son has been continued in the office from generation to generation does not make
any difference to the principle of appointment and no such hereditary Archaka can claim any right to the
office. Thus the appointment of an Archaka is a secular act and the fact that in some temples the
hereditary principle was followed in making the appointment would not make the successive
appointments anything but secular. It would only mean that in making the appointment the trustee is
limited in respect of the sources of recruitment. Instead of casting his net wide for selecting a proper
candidate, he appoints the next heir of the last holder of the office. That after his appointment the Archaka
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performs worship is no ground for holding that the appointment is either a religious practice or a matter of
religion.
22. In view of sub-section (2) of Section 55, as it now stands amended, the choice of the trustee in the
matter of appointment of an Archaka is no longer limited by the operation of the rule of next-in-line of
succession in temples where the usage was to appoint the Archaka on the hereditary principle. The trustee
is not bound to make the appointment on the sole ground that the candidate, is the next-in-line of
succession to the last holder of office. To that extent, and to that extent alone, the trustee is released from
the obligation imposed on him by Section 28 of the principal Act to administer the affairs in accordance
with that part of the usage of a temple which enjoined hereditary appointments. The legislation in this
respect, as we have shown, does not interfere with any religious practice or matter of religion and,
therefore, is not invalid.
23. We shall now take separately the several amendments which were challenged as invalid. Section 2
of the Amendment Act amended Section 55 of the principal Act and the important change which was
impugned on behalf of the petitioners related to the abolition of the hereditary principle in the
appointment of the Archaka. We have shown for reasons already mentioned that the change effected by
the Amendment is not invalid. The other changes effected in the other provisions of the principal Act
appear to us to be merely consequential. Since the hereditary principle was done away with the words
“whether the office or service is hereditary or not” found in Section 56 of the Principal Act have been
omitted by Section 3 of the Amendment Act. By Section 4 of the latter Act clause (xxiii) of subsection (2)
in Section 116 is suitably amended with a view to deleting the reference to the qualifications of hereditary
and non-hereditary offices which was there in clause (xxiii) of the principal Act. The change is only
consequential on the amendment of Section 55 of the principal Act. Sections 5 and 6 of the Amendment
Act are also consequential on the amendment of Sections 55 and 56. These are all the sections in the
Amendment Act and in our view the Amendment Act as a whole must be regarded as valid.
24. It was, however, submitted before us that the State had taken power under Section 116(2), clause
(xxiii) to prescribe qualifications to be possessed by the Archakas and, in view of the avowed object of the
State Government to create a class of Archakas irrespective of caste, creed or race, it would be open to the
Government to prescribe qualifications for the office of an Archaka which were in conflict with Agamas.
Under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964
proper provision has been made for qualifications of the Archakas and the petitioners have no objection to
that rule. The rule still continues to be in force. But the petitioners apprehend that it is open to the
Government to substitute any other rule for Rule 12 and prescribe qualifications which were in conflict
with Agamic injunctions. For example at present the Ulthurai servant whose duty it is to perform pujas
and recite vedic mantras etc, has to obtain the fitness certificate for his office from the head of institutions
which impart instructions in Agamas and ritualistic matters. The Government, however, it is submitted,
may hereafter change its mind and prescribe qualifications which take no note of Agamas and Agamic
rituals and direct that the Archaka candidate should produce a fitness certificate from an institution which
does not specialise in teaching Agamas and rituals. It is submitted that the Act does not provide
guidelines to the Government in the matter of prescribing qualifications with regard to the fitness of an
Archaka for performing the rituals and ceremonies in these temples and it will be open to the Government
to prescribe a simple standardized curriculum for pujas in the several temples ignoring the traditional
pujas and rituals followed in those temples. In our opinion the apprehensions of the petitioners are
unfounded. Rule 12 referred to above still holds the field and there is no good reason to think that the
State Government wants to revolutionize temple worship by introducing methods of worship not current
in the several temples. The rule-making power conferred on the Government by Section 116 is only
intended with a view to carry out the purposes of the Act which are essentially secular. The Act nowhere
gives the indication that one of the purposes of the Act is to effect a change in the rituals and ceremonies
followed in the temples. On the other hand, Section 107 of the Principal Act emphasizes that nothing
contained in the Act would be deemed to confer any power or impose any duty in contravention of the
rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution.
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Similarly, Section 105 provides that nothing contained in the Act shall (a) save as otherwise expressly
provided in the Act or the rules made thereunder, affect any honour, emolument or perquisite to which
any person is entitled by custom or otherwise in any religious institution, or its established usage in regard
to any other matter. Moreover, if any rule is framed by the Government which purports to interfere with
the rituals and ceremonies of the temples the same will be liable to be challenged by those who are
interested in the temple worship. In our opinion, therefore, the apprehensions now expressed by the
petitioners are groundless and premature.
25. In the result these petitions fail.
*****
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Adi Saiva Sivachariyargal Nala Sangam v. The Govt. of Tamil Nudu
(2016) 2 SCC 725
Corum: Ranjan Gogoi, N.V. Ramana, JJ.
Judgment: Ranjan Gogoi, J.- Religion incorporates the particular belief (s) that a group of
people subscribe to. Hinduism, as a religion, incorporates all forms of belief without mandating
the selection or elimination of any one single belief. It is a religion that has no single founder; no
single scripture and no single set of teachings. It has been described as Sanatan Dharma, namely,
eternal faith, as it is the collective wisdom and inspiration of the centuries that Hinduism seeks to
preach and propagate. It is keeping in mind the above precepts that we will proceed further.
2. Before highlighting the issues that confronts the Court in the present case the relevant
Constitutional provisions in Part III of the Constitution may be taken note of. Article 13, in clear
and unequivocal terms, lays down that all laws including pre-constitution laws which are
inconsistent with or in derogation of the fundamental rights guaranteed by Part III are void. Sub-
Article (3) brings within the fold of laws, all Rules, Regulations, Notification, custom and usage
having the force of law. While the several provisions of Part III would hardly need to be re-
emphasized, specific notice must be had of, in the context of the present case, the provisions
contained in Articles 25 and 26 of the Constitution. While Article 25 makes the freedom of
conscience and the right to profess, practice and propagate the religion to which a person may
subscribe, a fundamental right, the exercise of such right has been made subject to public order,
morality and health and also to the other provisions of Part III. Article 25 (2)(b) makes it clear
that main part of the provisions contained in Article 25 will not come in the way of the operation
of any existing law or prevent the State from making any law which provides for social welfare
and reform or for throwing open of Hindu religious institutions of a public character to all classes
and sections of Hindus. Similarly, Article 26 while conferring the right on every religious
denomination to manage its own affairs makes it clear that the right to manage the affairs of any
religious denomination is restricted to matters of religion only.
3. The provisions of Part III, as noted above, therefore makes it amply clear that while the right
to freedom of religion and to manage the religious affairs of any denomination is undoubtedly a
fundamental right, the same is subject to public order, morality and health and further that the
inclusion of such rights in Part III of the Constitution will not prevent the State from acting in an
appropriate manner, in the larger public interest, as mandated by the main part of both Articles
25 and 26. Besides, the freedom of religion being subject to the other provisions of Part III,
undoubtedly, Articles 25 and 26 of the Constitution has to be harmoniously construed with the
other provisions contained in Part III.
4. The necessary facts may now be noticed. In order to amend and consolidate the law relating to
administration and governance of Hindu religious and charitable institutions in the State of Tamil
Nadu, the State Legislature has enacted the Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959 (hereinafter referred to as the Tamil Nadu Act). A passing reference may
be made, at this stage, to Section 55 of the Tamil Nadu Act which provided that in case where
the office holders or servants of a religious institution are required to be filled up on the principle
of hereditary succession the person next in line of succession is entitled to succeed. There were
some exceptions to the above rule i.e. where the person next in line is a minor or suffers from
some incapacity. The aforesaid provision (Section 55) was amended alongwith other related
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provisions by the Amendment Act of 1970 which came into force on January 8, 1971. By the
aforesaid amendment the principle of next in line of succession was abolished. The amendment
came to be challenged before this Court which challenge was considered by a Constitution
Bench of the Court. In its judgment in Seshammal and Others, Etc. Etc. Vs. State of Tamil
Nadu1 the Constitution Bench, while upholding the validity of the amendment, dealt with a
further question, namely, though the principle of next in line was validly abolished, whether the
appointment of office bearers or servants of the temples are required to be made from a particular
denomination/group/sect as mandated by the Agamas i.e. treatises pertaining to matters like
construction of temples; installation of idols and conduct of worship of the Deity. The
Constitution Bench after an elaborate consideration of the matter, details of which will be
noticed subsequently, seems to have answered the aforesaid question in the affirmative.
5. No controversy surfaced after the Constitution Bench judgment in Seshammal (supra) until a
G.O. No. 118 dated 23.05.2006 was issued by the Government of Tamil Nadu, Department of
Tamil Development, Cultural and Endowments to the effect that, Any person who is a Hindu
and possessing the requisite qualification and training can be appointed as a Archaka in
Hindu temples. An Ordinance (No. 5 /2006) dated 14.07.2006 followed the aforesaid G.O.
seeking to further amend sub-section (2) of Section 55 of the Tamil Nadu Act. The said
provision of the Act i.e. Section 55 (2), by virtue of the 1971 amendment referred to above and
the 2006 Ordinance, read as follows.
(2) No person shall be entitled to appointment to any vacancy referred to in sub-section (1) merely on the ground that he is
next in the line of succession to the last holder of office.[Change brought about by amendment of S.55 (2) or on the
ground of any custom or usage. [Change brought about by Ordinance 5/2006)
6. The Explanatory statement to the Ordinance in para 4 indicated the purpose behind further
amendment of Section 55 (2) in the following terms.
Archakas of the Temples are to be appointed without any discrimination of caste and creed. Custom or usage cannot be a
hindrance to this. It is considered that the position is clarified in the Act itself and accordingly, it has been decided to amend
Section 55 of the said Act suitably.
7. The Ordinance was replaced by The Tamil Nadu Act No. 15 of 2006 which received the
assent of the Governor on 29.08.2006. The Act, however, did not contain the amendment to
Section 55 as was made by the Ordinance. In other words, the said amendment brought by the
Ordinance was dropped from the Amending Act 15 of 2006.
8. The present writ petitions under Article 32 of the Constitution have been instituted by an
Association of Archakas and individual Archakas of Sri Meenakshi Amman Temple of Madurai.
The writ petitions were filed challenging the G.O. No. 118 dated 23.05.2006 and Ordinance No.
5/2006 (at that point of time the Amending Act of 2006 had not come into effect). As the
amendment of Section 55 (2) made by the Ordinance had not been continued by the Amending
Act 15 of 2006 the said part of the challenge (as against the ordinance) made in the writ petitions
became redundant leaving the legality and validity of the G.O. 23.05.2006 as the sole issue for
consideration in the present writ petitions.
13. It was further contended that the G.O. wrongly relies on the decision in the case of N.
Adhithyan Vs. Travancore Devasom Board and Others3 to justify its promulgation. The reliance
placed on Adhithyan (supra), in the face of the law laid down in Seshammal (supra), is wholly
misplaced. Shri Parasaran has further argued that the impugned GO has to be read on its own
terms and the validity thereof cannot be saved by what appears to be a concession made by the
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State in Para 51 of the counter affidavit to the effect that the State would respect the distinction
between Saiva and Vaishanava temples and the Archakas in each of such temples shall be
appointed from either the Saivas or Vaishanavas, as may be, taking into account the
indoctrination of the concerned Archakas in the Agamas. According to Shri Parasaran, neither all
Saivas nor all Vaishnavas are ipso facto denominational. Only a Saiva who satisfies the
eligibility under the Sivagama and a Vaishnava satisfying the eligibility under the pancharatna or
vaikhanasa can be referred to as denominations. A person who is a member of such
denomination alone can be appointed as a Archaka of a Saiva or a Vaishnava temple, as the case
may be.
14. On the other hand, Shri P.P. Rao and Shri Colin Gonsalves, learned Senior Counsels
appearing for the respondents have contended that the decision of the Constitution Bench in
Seshammal (supra) upholding the Constitution validity of the Amendment Act of 1970 had
opened the avenue to all qualified Hindus irrespective of caste, denominations, etc to be
appointed as Archakas. It is contended that once the hereditary principle was held to be flexible,
the exclusive right of a particular group to appointment necessarily stood negated and it is
qualification coupled with merit and eligibility that has to be the crucial test for appointment,
consistent with Articles 14 and 16 of the Constitution. Learned counsels have specifically
referred to the Government Order No.1 of 2007 and in this regard the recommendation of the
High Powered Committee appointed for making recommendations for effective implementation
of the impugned GO dated 23.5.2006. It is contended, by referring to the report of the High
Powered Committee, that the same demonstrates the lack of familiarity of even temple priests
with the Agamas and their lack of knowledge of such Agamas and the practices of the Temples
as may be prescribed by the Agamas. It is submitted that not only the contents of the Agamas
have become uncertain, even assuming otherwise, the same cannot be an authority to confer
legitimacy to a practice which is inconsistent with and contrary to the provisions of the
Constitution, specially those contained in Part III thereof. It is further submitted that the
impugned GO is consistent with and in fact effectuates the Fundamental Right of Equality and
equal opportunity and no contrary practice overriding the said provisions of the Constitution
would be legally acceptable. Learned Counsels have further submitted that there is no conflict
between the judgments in Seshammal (supra) and N. Adithayan (supra) and it is possible to read
the law declared in both the cases in a manner consistent with the Constitutional requirements
and principles.
15. An additional issue has been struck by Shri Gonsalves, learned Senior Counsel, that the
impugned GO needs to be upheld on the touchstone of the principle enshrined by Article 17 of
the Constitution. The exclusive right of a particular group to enter the sanctum sanctorum of a
temple and perform the rituals on the ground that performance of such rituals by any other
person would defile the image is a thought and action which is prohibited by Article 17 of the
Constitution. Violation and consequently commission of offences under the Protection of Civil
Rights Act, 1955 has also been urged.
18. The arguments in support of the challenge were threefold namely,
(a) The freedom of hereditary succession to the office of Archaka is abolished although succession to it is an essential and
integral part of the faith of the Saivite and Vaishnavite worshippers.
(b) It is left to the Government in power to prescribe or not to prescribe such qualifications as they may choose to adopt for
applicants to this religious office while the Act itself gives no indication whatever of the principles on which the qualifications
should be based. The statement of objects and reasons which is adopted in the counter-affidavit on behalf of the State makes it
clear that not only the scope but the object of the Amendment Act is to override the exclusive right of the denomination to
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manage their own affairs in the matter of religion by appointing Archakas belonging to a specific denomination for the
purpose of worship.
(c) The Amendment Act gives the right of appointment for the first time to the trustee who is under the control of the
Government under the provisions of the principal Act and this is the very negation of freedom of religion and the principle of
non-interference by the State as regards the practice of religion and the right of a denomination to manage its own affairs in
the matter of religion.
19. In the course of a very lengthy discourse and after considering the works of learned scholars
in the field; the law laid down by this Court in respect of Articles 25 and 26 till date and
particularly the efficacy of the Agamas the Constitution Bench came to the following conclusion.
Any State action which permits the defilement or pollution of the image by the touch of an Archaka not authorised by the
Agamas would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and would,
therefore, be prima facie invalid under Article 25 (1) of the Constitution.
20. Thereafter, the Constitution Bench by referring to several earlier pronouncements of this
Court specifically mentioned in para 13 of the Report identified the main principles underlying
the provisions of Article 25 and 26 of the Constitution in the following manner.
The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in
pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which
are integral parts of religion. The second is that what constitutes an essential part of a religious or religious practice has to be
decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the
community as a part of its religion.
21. Applying the aforesaid principles to the facts before it the Constitution Bench identified the
main thrust of the arguments made in support of the challenge to the amendment to be with
regard to the vesting of powers and authority in the temple trustee to appoint any person as an
Archaka so long as he was holding a fitness certificate from one of the institutions referred to in
Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964.
The Said Rule 12 required that an Archaka should be proficient in Mantras, Vedas, Prabandams
etc., namely, that such a person is fit and qualified for performing puja and having knowledge of
the rituals and other services. The Constitution Bench was told that the above position admits a
situation where the requirement of Rule 12 can very well be dispensed with (by a subsequent
amendment of the Rules) thereby resulting in conferment of virtually unguided and unbridled
powers to the trustee to appoint any person as a Archaka notwithstanding the fact that worship of
the deity by a person other than one belonging to a particular denomination may have the effect
of defiling the deity. As the temple trustee is to function under the control of the State under
Section 27 of the Tamil Nadu Act the question highlighted before the Constitution Bench was
whether by virtue of the amendment the State had gained a right to step into and control the
Sanctum Sanctorum of a temple through the agency of the trustee and the Archaka thereby
transgressing the rights granted to a religious denomination by Articles 25 and 26 of the
Constitution.
23. The Constitution Bench in Seshammal (supra) answered the question by holding that the
hereditary principle which was of long usage was a secular principle and therefore a legislation
to alter the said usage, i.e. the Amendment Act of 1970, was competent under Article 25 (2)(a).
However, the Constitution Bench was quick to add that it is to the limited extent of the above
exception alone, namely, the liberty to make the appointment from persons beyond next in line to
the last holder that the trustee is released from the obligation imposed on him by Section 28 of
the Tamil Nadu Act which otherwise requires the trustee to administer the affairs of the temple in
accordance with the usage governing the temple. Para 22 of the Constitution Bench judgment
wherein the aforesaid view finds mention may be noticed verbatim.
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22. In view of sub-section (2) of Section 55, as it now stands amended, the choice of the trustee in the matter of appointment of
an Archaka is no longer limited by the operation of the rule of next-in-line of succession in temples where the usage was to
appoint the Archaka on the hereditary principle. The trustee is not bound to make the appointment on the sole ground that the
candidate, is the next-in-line of succession to the last holder of office.To that extent, and to that extent alone, the trustee is
released from the obligation imposed on him by Section 28 of the principal Act to administer the affairs in accordance with
that part of the usage of a temple which enjoined hereditary appointments. The legislation in this respect, as we have shown,
does not interfere with any religious practice or matter of religion and, therefore, is not invalid.
24. A reading of the judgment of the Constitution Bench in Seshammal (supra) shows that the
Bench considered the expanse of the Agamas both in Saivite and Vaishnavite temples to hold
that the said treatises restricted the appointment of Archakas to a particular religious
denomination (s) and further that worship of the deity by persons who do not belong to the
particular denomination (s) may have the effect of even defiling the idol requiring purification
ceremonies to be performed. The Constitution Bench further held that while the appointment of
Archakas on the principle of next in line is a secular act the particular denomination from which
Archakas are required to be appointed as per the Agamas embody a long standing belief that has
come to be firmly embedded in the practices immediately surrounding the worship of the image
and therefore such beliefs/practice constitute an essential part of the religious practice which
under Section 28 of the Act (extracted above) the trustee is bound to follow. The above, which
the petitioners contend to be the true ratio of the law laid down by the Constitution Bench in
Seshammal (supra), has been questioned by the respondents who argue that Seshammal (supra)
is but the expression of an agreement of the Constitution Bench to what was a concession made
before it by the Advocate General of the State. According to the respondent in Seshammal
(supra) the Constitution Bench had no occasion to deal with the issue arising herein, the
challenge before it being confined to the validity of the Amendment Act of 1970.
26. The facts confronting the Court in Adithayan (supra) may now be noticed. The challenge
therein was by a Namboodri Brahmin to the appointment of a non-Namboodri Brahmin who was
otherwise well qualified to be appointed as a priest in the temple in question. The challenge was
sought to be based on the ground that it has been a long standing practice and usage in the temple
that its priests are appointed exclusively from Namboodri Brahmins and any departure therefrom
is in violation of the rights of Namboodri Brahmins under Article 25and 26 of the Constitution.
Upon a consideration of the various earlier decisions of this Court specifically referred to in
Adithayan (supra), details of which need not again be noticed herein (such details are being
separately noticed later, though in a different context) including the decision in Seshammal
(supra) it was held that rights claimed solely on the basis of caste cannot enjoy the protection of
Article 25 and 26 and no earlier decision of this Court including Seshammal (supra) would
support the contention that even duly qualified persons can be barred from performing Poojas on
the sole ground that such a person is not a Brahmin by birth or pedigree. After expounding the
law in the above manner, it was held in Adithayan (supra) that even proof of any such practice
since the pre-constitutional days (which in any case was not forthcoming) cannot sustain such a
claim as the same would be in derogation of constitutional values and opposed to public policy
or social decency. We do not see how the above view of this Court in any way strikes a
discordant note with the views expressed in any earlier decision including Seshammal(supra).
The issues in Seshammal(supra) were entirely different and the discussions therein (para 12)
proceeds on the basis that entry to the sanctum sanctorum for a particular denomination is
without any reference to caste or social status. The reference to the opinion of Sri R.
Parthasarathy Bhattacharya who has been referred to in the above para 12 of the report as an
undisputed scholar on the subject was cited to show that apart from the followers of the 4 (four)
traditions, so far as Vaishnava temples are concerned none others, however high placed in
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society as Pontiffs or Acharyas, or even other Brahmins could touch the idols, do Pooja or enter
the Garba Girha Exclusion solely on the basis of caste was not an issue in Seshammal(supra) so
as to understand the decision in Adithayan (supra) to be, in any way, a departure from what has
been held in Seshammal (supra).
27. Before we go on to deliberate on the validity of the impugned G.O. dated 23.05.2006 it will
be useful to try to understand what is Hinduism? A broad answer is to be found in the preface to
this report but, perhaps, we should delve a little deeper into the issue. The subject has received an
indepth consideration of the Countrys philosopher President Dr. S. Radhakrishnan in the
celebrated work The Hindu way of Life. The said work has been exhaustively considered in
Sastri Yagnapurushadji and Others Vs. Muldas Bhudradas Vaishya and Another4 in the
context of the question as to whether Swaminarayan sect is a religion distinguishable and
separate from the Hindu religion and consequently the temples belonging to the said sect fell
outside the scope of Section 3 of the Bombay Hindu Places of Public Worship (Entry
Authorisation) Act, 1956. The aforesaid Section 3 of the Act inter alia provided that every
temple to which the Act applied shall be open to the excluded classes for worship in the same
manner and to the same extent as other Hindus in general. While the eventual decision of the
Court which answered the question raised is in the negative, namely, that the sect in question was
not a distinguishable and different religion, it is the very learned discourse that is to be found in
the report with regard to the true tenets of Hinduism that would be of interest so far the present
case is concerned.
28. The fact that reference to Hindus in the Constitution includes persons professing the Sikh,
Jain and Buddhist religions and the statutory enactments like Hindu Marriage Act , , Hindu
Succession Act etc. also embraces Sikhs, Jains and Buddhists within the ambit of the said
enactments is another significant fact that was highlighted and needs to be specially taken note
of.
29. What is sought to be emphasized is that all the above would show the wide expanse of
beliefs, thoughts and forms of worship that Hinduism encompasses without any divergence or
friction within itself or amongst its adherents. It is in the backdrop of the above response to the
question posed earlier what is Hinduism? that we have to proceed further in the matter.
30. Image worship is a predominant feature of Hindu religion. The origins of image worship is
interesting and a learned discourse on the subject is available in a century old judgment of the
Madras High Court in Gopala Mooppanar and Others Vs. Subramania Iyer and others5 In the
said report the learned Judge (Sadasiva Aiyar, J.) on the basis of accepted texts and a study
thereof had found that in the first stage of existence of mankind God was worshiped as immanent
in the heart of everything and worship consisted solely in service to ones fellow creatures. In the
second age, the spirit of universal brotherhood has lost its initial efficacy and notions of
inferiority and superiority amongst men surfaced leading to a situation where the inferior man
was asked to worship the superior man who was considered as a manifestation of God. Disputes
arose about the relative superiority and inferiority which was resolved by the wise sages by
introducing image worship to enable all men to worship God without squabbles about their
relative superiorities. With passage of time there emerged Rules regulating worship in temples
which came to be laid down in the treatises known as Agamas and the Thantras. Specifically in
Gopala Moopanar (supra), it was noticed that the Agamas prescribed rules as regards what
caused pollution to a temple and as regards the ceremonies for removing pollution when caused.
In the said judgment it is further mentioned that, There are, it is well known Thanthries in
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Malabar who are specialists in these matters of pollution.As the temple priests have got the
special saivite initiation or dheeksha which entitles them to touch the inner most image, and as
the touch of the persons who have got no such initiation, even though they be Brahmins, was
supposed to pollute the image, even Brahmins other than the temple priest were in many temples
not allowed to go into the garbhagraham. The Agamas also contain other prescriptions including
who is entitled to worship from which portion of the temple. In one of the Agamas it is said (as
freely translated) thus : Saivite Brahmin priests are entitled to worship in the anthrala portion.
Brahmins learned in the Vedas are entitled to worship in the arthamantapa, other Brahmins in
the front Mantapa, Kings and Vaisyas in the dwaramantapa, initiated Sudras in the Bahir
Mantapa and so on. The legal effect of the above prescriptions need not detain us and it is the
portion underlined which is of particular importance as the discussions that follow would reveal.
34. The explicit reiteration of the Courts power to decide on what constitutes an essential
religious practice in Sri Venkataramana Devaru (supra) again found manifestation in Durgah
Committee, Ajmer and another Vs. Syed Hussain Ali and others8. Gajendragadkar, J. (as His
Lordship then was) was of the view,
that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as
its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of
religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the
meaning of Article 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may
in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an
essential and integral part of a religion their claim for the protection under Article 26 may have to be carefully scrutinised; in
other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no
other.
35. Almost half a century later, we find a reiteration of the same view in the majority judgment
rendered in Commissioner of Police and Others Vs. Acharya Jagadishwarananda Avadhuta
and Another9 though the minority view in the said case preferred to take a contrary opinion
relying, inter alia, on Shirur Mutt (supra) and Jesse Cantwell Vs. State of Connecticut10 and
United States Vs. Ballard11. Para 57 of the minority opinion containing the discordant note
would be worthy of reproduction.
57.The exercise of the freedom to act and practise in pursuance of religious beliefs is as much important as the freedom of
believing in a religion. In fact to persons believing in religious faith, there are some forms of practising the religion by
outward actions which are as much part of religion as the faith itself. The freedom to act and practise can be subject to
regulations. In our Constitution, subject to public order, health and morality and to other provisions in Part III of the
Constitution. However, in every case the power of regulation must be so exercised with the consciousness that the subject of
regulation is the fundamental right of religion, and as not to unduly infringe the protection given by the Constitution.Further,
in the exercise of the power to regulate, the authorities cannot sit in judgment over the professed views of the adherents of the
religion and to determine whether the practice is warranted by the religion or not. That is not their function.(See Jesse
Cantwell v. State of Connecticut, L Ed at pp. 1213-1218, United States v. Ballard, L Ed at pp. 1153, 1154.)
36. That the freedom of religion under Articles 25 and 26 of the Constitution is not only confined
to beliefs but extends to religious practices also would hardly require reiteration. Right of belief
and practice is guaranteed by Article 25 subject to public order, morality and health and other
provisions of Part-III of the Constitution. Sub-Article (2) is an exception and makes the right
guaranteed by Sub-article (1) subject to any existing law or to such law as may be enacted to,
inter alia, provide for social welfare and reforms or throwing or proposing to throw open Hindu
religious institutions of a public character to all classes and sections of Hindus. Article 26 (b) on
the other hand guarantees to every religious denomination or section full freedom to manage its
own affairs insofar as matters of religion are concerned, subject, once again, to public order,
morality and health and as held by this Court subject to such laws as may be made under Article
25 (2)(b). The rights guaranteed by Articles 25 and 26, therefore, are circumscribed and are to be
enjoyed within constitutionally permissible parameters. Often occasions will arise when it may
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become necessary to determine whether a belief or a practice claimed and asserted is a
fundamental part of the religious practice of a group or denomination making such a claim
before embarking upon the required adjudication. A decision on such claims becomes the duty of
the Constitutional Court. It is neither an easy nor an enviable task that the courts are called to
perform. Performance of such tasks is not enjoined in the court by virtue of any ecclesiastical
jurisdiction conferred on it but in view of its role as the Constitutional arbiter. Any apprehension
that the determination by the court of an essential religious practice itself negatives the freedoms
guaranteed by Articles 25 and 26 will have to be dispelled on the touchstone of constitutional
necessity. Without such a determination there can be no effective adjudication whether the
claimed right it is in conformity with public order, morality and health and in accord with the
undisputable and unquestionable notions of social welfare and reforms. A just balance can
always be made by holding that the exercise of judicial power to determine essential religious
practices, though always available being an inherent power to protect the guarantees under
Articles 25 and 26, the exercise thereof must always be restricted and restrained.
37. Article 16 (5) which has virtually gone unnoticed till date and, therefore, may now be seen is
in the following terms
16 (5) - Nothing in this Article shall affect the operation of any law which provides that an incumbent of an office in connection with the affairs of
any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or
belonging to a particular denomination.
38. A plain reading of the aforesaid provision i.e. Article 16 (5), fortified by the debates that had
taken place in the Constituent Assembly, according to us, protects the appointment of Archakas
from a particular denomination, if so required to be made, by the Agamas holding the field. The
debates in the Constituent Assembly referred to discloses that the suggestion that the operation of
Article 16 (5) should be restricted to appointment in offices connected with administration of a
religious institution was negatived. The exception in Article 16 (5), therefore, would cover an
office in a temple which also requires performance of religious functions. In fact, the above
though not expressly stated could be one of the basis for the views expressed by the Constitution
Bench in Sheshammal
39. The preceding discussion indicates the gravity of the issues arising and the perceptible
magnitude of the impact thereof on Hindu Society. It would be, therefore, incorrect, if not self
defeating, to take too pedantic an approach at resolution either by holding the principle of res
judicata or locus to bar an adjudication on merits or to strike down the impugned G.O. as an
executive fiat that does not have legislative approval, made explicit by the fact that though what
has been brought by the G.O. dated 23.05.2006 was also sought to be incorporated in the statute
by the Ordinance, eventually, the amending Bill presented before the legislature specifically
omitted the aforesaid inclusion. The significance of the aforesaid fact, however, cannot be
underestimated. What is sought to be emphasized is that the same, by itself, cannot be
determinative of the invalidity of the G.O. which will have to be tested on certain other premises
and foundation treating the same to be an instance of exercise of executive power in an area not
covered by any specific law.
40. The issue of untouchability raised on the anvil of Article 17 of the Constitution stands at the
extreme opposite end of the pendulum. Article 17 of the Constitution strikes at caste based
practices built on superstitions and beliefs that have no rationale or logic. The exposition of the
Agamas made a Century back by the Madras High Court in Gopala Moopnar (supra) that
exclusion from the sanctum sanctorum and duties of performance of poojas extends even to
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Brahmins is significant. The prescription with regard to the exclusion of even Brahmins in
Gopala Moopnar (supra) has been echoed in the opinion of Sri Parthasarthy Bhattacharya as
noted by the Constitution Bench in Seshammal(supra). Such exclusion is not on the basis of
caste, birth or pedigree. The provisions of Article 17 and the Protection of Civil Rights Act,
1955, therefore, would not be of much significance for the present case. Similarly, the offer of
the state in its affidavit to appoint Shaivite as Archakas in Shiva temples and Vaishnavas in
Vaishanvite Temples is too naive an understanding of a denomination which is, to say the least, a
far more sharply indentified subgroup both in case of shaivite and vaishanvite followers.
However, what cannot be ignored is the admission inbuilt in the said offer resulting in some
flexibility in the impugned G.O. that the state itself has acknowledged.
41. Sheshammal(supra) is not an authority for any proposition as to what an Agama or a set of
Agamas governing a particular or group of temples lay down with regard to the question that
confronts the court, namely, whether any particular denomination of worshippers or believers
have an exclusive right to be appointed as Archakas to perform the poojas. Much less, has the
judgment taken note of the particular class or caste to which the Archakas of a temple must
belong as prescribed by the Agamas. All that it does and says is that some of the Agamas do
incorporate a fundamental religious belief of the necessity of performance of the Poojas by
Archakas belonging to a particular and distinct sect/group/denomination, failing which, there
will be defilement of deity requiring purification ceremonies. Surely, if the Agamas in question
do not proscribe any group of citizens from being appointed as Archakas on the basis of caste or
class the sanctity of Article 17 or any other provision of Part III of the Constitution or even the
Protection of Civil Rights Act, 1955 will not be violated. What has been said inSheshammal
(supra) is that if any prescription with regard to appointment of Archakas is made by the
Agamas, Section 28 of the Tamil Nadu Act mandates the Trustee to conduct the temple affairs in
accordance with such custom or usage. The requirement of Constitutional conformity is inbuilt
and if a custom or usage is outside the protective umbrella afforded and envisaged by Articles 25
and 26, the law would certainly take its own course. The constitutional legitimacy, naturally,
must supersede all religious beliefs or practices.
42. The difficulty lies not in understanding or restating the constitutional values. There is not an
iota of doubt on what they are. But to determine whether a claim of state action in furtherance
thereof overrides the constitutional guarantees under Article 25 and 26 may often involve what
has already been referred to as a delicate and unenviable task of identifying essential religious
beliefs and practices, sans which the religion itself does not survive. It is in the performance of
this task that the absence of any exclusive ecclesiastical jurisdiction of this Court, if not other
shortcomings and adequacies, that can be felt. Moreover, there is some amount of uncertainty
with regard to the prescription contained in the Agamas. Coupled with the above is the lack of
easy availability of established works and the declining numbers of acknowledged and
undisputed scholars on the subject. In such a situation one is reminded of the observations, if not
the caution note struck by Mukherjea, J. in Shirur Mutt (supra) with regard to complete
autonomy of a denomination to decide as to what constitutes an essential religious practice, a
view that has also been subsequently echoed by this Court though as a minority view. But we
must hasten to clarify that no such view of the Court can be understood to an indication of any
bar to judicial determination of the issue as and when it arises. Any contrary opinion would go
rise to large scale conflicts of claims and usages as to what is an essential religious practice with
no acceptable or adequate forum for resolution. That apart the complete autonomy contemplated
in Shirur Mutt (supra) and the meaning of outside authority must not be torn out of the context
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in which the views, already extracted, came to be recorded (page 1028). The exclusion of all
outside authorities from deciding what is an essential religion practice must be viewed in the
context of the limited role of the State in matters relating to religious freedom as envisaged by
Articles 25 and 26 itself and not of the Courts as the arbiter of Constitutional rights and
principles.
43. What then is the eventual result? The answer defies a straight forward resolution and it is the
considered view of the court that the validity or otherwise of the impugned G.O. would depend
on the facts of each case of appointment. What is found and held to be prescribed by one
particular or a set of Agamas for a solitary or a group of temples, as may be, would be
determinative of the issue. In this regard it will be necessary to re-emphasise what has been
already stated with regard to the purport and effect of Article 16 (5) of the Constitution, namely,
that the exclusion of some and inclusion of a particular segment or denomination for
appointment as Archakas would not violate Article 14 so long such inclusion/exclusion is not
based on the criteria of caste, birth or any other constitutionally unacceptable parameter. So long
as the prescription (s) under a particular Agama or Agamas is not contrary to any constitutional
mandate as discussed above, the impugned G.O. dated 23.05.2006 by its blanket fiat to the effect
that, Any person who is a Hindu and possessing the requisite qualification and training can be
appointed as a Archaka in Hindu temples has the potential of falling foul of the dictum laid
down in Seshammal (supra). A determination of the contours of a claimed custom or usage
would be imperative and it is in that light that the validity of the impugned G.O. dated
23.05.2006 will have to be decided in each case of appointment of Archakas whenever and
wherever the issue is raised. The necessity of seeking specific judicial verdicts in the future is
inevitable and unavoidable; the contours of the present case and the issues arising being what has
been discussed.
44. Consequently and in the light of the aforesaid discussion, we dispose of all the writ petitions
in terms of our findings, observations and directions above reiterating that as held in Seshammal
(supra) appointments of Archakas will have to be made in accordance with the Agamas, subject
to their due identification as well as their conformity with the Constitutional mandates and
principles as discussed above.
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Shayara Bano v. Union of India
(WPC No. 118 of 2016, SC, Judgement Delivered on Aug. 22, 2017)
Corum:5:: CJI Jagdish Singh Khehar, KURIAN JOSEPH, R.F. Nariman, Uday Umesh Lalit, S. Abdul Nazeer JJ.
Judgement: CLI Khehar for himself & Nazeer J.: 1. The petitioner-Shayara Bano, has approached this Court, for
assailing the divorce pronounced by her husband – Rizwan Ahmad on 10.10.2015, wherein he affirmed “…in the
presence of witnesses saying that I gave ‘talak, talak, talak’, hence like this I divorce from you from my wife. From
this date there is no relation of husband and wife. From today I am ‘haraam’, and I have become ‘naamharram’. In
future you are free for using your life …”. The aforesaid divorce was pronounced before Mohammed Yaseen (son
of Abdul Majeed) and Ayaaz Ahmad (son of Ityaz Hussain) – the two witnesses. The petitioner has sought a
declaration, that the ‘talaq-e-biddat’ pronounced by her husband on 10.10.2015 be declared as void ab initio. It is
also her contention, that such a divorce which abruptly, unilaterally and irrevocably terminates the ties of
matrimony, purportedly under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter
referred to as, the Shariat Act), be declared unconstitutional. During the course of hearing, it was submitted, that the
‘talaq-e-biddat’ (-triple talaq), pronounced by her husband is not valid, as it is not a part of ‘Shariat’ (Muslim
‘personal law’). It is also the petitioner’s case, that divorce of the instant nature, cannot be treated as “rule of
decision” under the Shariat Act. It was also submitted, that the practice of ‘talaq-e-biddat’ is violative of the
fundamental rights guaranteed to citizens in India, under Articles 14, 15 and 21 of the Constitution. It is also the
petitioner’s case, that the practice of ‘talaq-e-biddat’ cannot be protected under the rights granted to religious
denominations (-or any sections thereof) under Articles 25(1), 26(b) and 29 of the Constitution. It was submitted,
that the practice of ‘talaq-e-biddat’ is denounced internationally, and further, a large number of Muslim theocratic
countries, have forbidden the practice of ‘talaq-e biddat’, and as such, the same cannot be considered sacrosanctal to
the tenets of the Muslim religion.
Para 8. It was submitted, ( by the respondent- husband) that the pronouncement of divorce by him, fulfils all the
requirements of a valid divorce, under the Hanafi sect of Sunni Muslims, and is in consonance with ‘Shariat’
(Muslim ‘personal law’).
Para .9. It is also the submission of the respondent-husband, that the present writ petition filed by the petitioner-wife
under Article 32 of the Constitution of India, is not maintainable, as the questions raised in the petition are not
justiciable under Article 32 of the Constitution.
Para.10. Keeping in view the factual aspect in the present case, as also, the complicated questions that arise for
consideration in this case (and, in the other connected cases), at the very outset, it was decided to limit the instant
consideration, to ‘talaq-e-biddat’ – triple talaq.
The practiced modes of ‘talaq’ amongst Muslims:
11. Since the issue under consideration is the dissolution of marriage by ‘talaq’, under the Islamic law of divorce, it
is imperative, to understand the concept of ‘talaq’. In this behalf, it is relevant to mention, that under the Islamic
law, divorce is classified into three categories. Talaq understood simply, is a means of divorce, at the instance of
the husband. ‘Khula’, is another mode of divorce, this divorce is at the instance of the wife. The third category of
divorce is ‘mubaraat’ – divorce by mutual consent.
12. ‘Talaq’, namely, divorce at the instance of the husband, is also of three kinds – ‘talaq-e-ahsan’, ‘talaq-e-
hasan’ and ‘talaq-e-biddat’. The petitioner’s contention before this Court is, that ‘talaq-e-ahsan’, and ‘talaqe-
hasan’ are both approved by the ‘Quran’ and ‘hadith’. ‘Talaq-e-ahsan’, is considered as the ‘most reasonable’ form
of divorce, whereas, ‘talaq-ehasan’ is also considered as ‘reasonable’. It was submitted, that ‘talaq-ebiddat’ is
neither recognized by the ‘Quran’ nor by ‘hadith’ and as such, is to be considered as sacrosanctal to Muslim
religion. The controversy which has arisen for consideration before this Court, is with referenc to ‘talaq-e -biddat’
15. The third kind of ‘talaq’ is – ‘talaq-e-biddat’. This is effected by one definitive pronouncement of ‘talaq’ such
as, “I talaq you irrevocably” or three simultaneous pronouncements, like “talaq, talaq, talaq”, uttered at the same
time, simultaneously. In ‘talaq-e-biddat’, divorce is effective forthwith. The instant talaq, unlike the other two
categories of ‘talaq’ is irrevocable at the very moment it is pronounced. Even amongst Muslims ‘talaq-e-biddat’, is
considered irregular.
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Para.16. According to the petitioner, there is no mention of ‘talaq-e-biddat’ in the Quran. It was submitted, that
‘talaq-e-biddat’ is recognized only by a few Sunni schools. Most prominently, by the Hanafi sect of Sunni Muslims.
It was however emphasized, that even those schools that recognized ‘talaq-e-biddat’ described it, “as a sinful form
of divorce”. It is acknowledged, that this form of divorce, has been described as “bad in theology, but good in law”.
The Holy Quran – with reference to ‘talaq’:
Para.17. Muslims believe that the Quran was revealed by God to the Prophet Muhammad over a period of about 23
years, beginning from 22.12.609, when Muhammad was 40 years old. The revelation continued upto the year 632 –
the year of his death. Shortly after Muhammad’s death, the Quran was completed by his companions, who had either
written it down, or had memorized parts of it. These compilations had differences of perception. Therefore, Caliph
Usman - the third, in the line of caliphs recorded a standard version of the Quran, now known as Usman’s codex.
This codex is generally treated, as the original rendering of the Quran.
Reference is also necessary to ‘verses’ 224 to 228 contained in section 28 of ‘sura’ II of the Quran. The same are
extracted below:
[“224. And make not God’s (name) an excuse In your oaths against Doing good, or acting rightly,
Or making peace between persons; For God is one who heareth and knoweth all things. 225. God will not
Call you to account For thoughtlessness In your oaths, But for the intention In your hearts; And He is Oft-
forgiving Most Forbearing. 226. For those who take An oath for abstention From their wives, A waiting
for four months Is ordained; If then they return, God is Oft-forgiving, Most Merciful. 227. But if their
intention Is firm for divorce, God heareth And knoweth all things. 228. Divorced women Shall wait
concerning themselves For three monthly periods. Nor is it lawful for them to hide what God Hath
created in their wombs, If they have faith In God and the Last Day. And their husbands have the better
right To take them back In that period, if They wish for reconciliation. And women shall have rights
Similar to the rights Against them, according To what is equitable; But men have a degree (Of
advantage) over them And God is Exalted in Power Wise.”]
Verses’ 229 to 231 contained in ‘section’ 29 of ‘sura’ II, and ‘verses’ 232 and 233 included in ‘section’ 30 of ‘sura’
II, as also ‘verse’ 237 contained in ‘section’ 31 in ‘sura’ II, are relevant on the issue of divorce. The same are
extracted below:
[“229. A divorce is only Permissible twice: after that, The parties should either hold Together on
equitable terms, Or separate with kindness. It is not lawful for you, (Men), to take back Any of your gifts
(from your wives), Except when both parties Fear that they would be Unable to keep the limits Ordained
by God. If ye (judges) do indeed Fear that they would be Unable to keep the limits Ordained by God,
There is no blame on either Of them if she give Something for her freedom. These are the limits
Ordained by God; So do not transgress them If any do transgress The limits ordained by God, Such
persons wrong (Themselves as well as others)
230. So if a husband Divorces his wife (irrevocably), He cannot, after that, Re-marry her until After she
has married Another husband and He has divorced her. In that case there is No blame on either of them If
they re-unite, provided They feel that they Can keep the limits Ordained by God. Such are the limits
Ordained by God, Which He makes plain To those who understand. 231.When ye divorce Women, and
they fulfil The term of their (‘Iddat’) Either taken them back On equitable terms Or set them free On
equitable terms; But do not take them back To injure them, (or) to take Undue advantage; If any one does
that, He wrongs his own soul. Do not treat God’s Signs As a jest, But solemnly rehearse God’s favours on
you, And the fact that He Send down to you The Book And Wisdom, For your instruction. And fear God,
And know that God Is well acquainted With all things.”]
19. Reference is also necessary to ‘verses’ 34 and 35, contained in
‘Section’ 6, as well as, ‘verse’ 128 contained in ‘section’ 19, of ‘sura’ IV. All the above verses are extracted below:
“34. Men are the protectors And maintainers of women, Because God has given The one more (strength)
Than the other, and because They support them From their means. Therefore the righteous women Are
devoutly obedient, and guard In (the husband’s) absence What God would have them guard. As to those
women On whose part ye fear Disloyalty and ill-conduct, Admonish them (first), (Next), refuse to share
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their beds, (And last) beat them (lightly); But if they return to obedience, Seek not against them Means
(of annoyance): For God is Most High, Great (above you all).”
In order to be entitled to the husband’s support, the Quran ordains the women to be righteous, and to be devoutly
obedient to the husband, even in his absence. ‘Verse’ 34, extends to the husband the right to admonish his wife who
is either disloyal, or ill-conducts herself. Such admonition can be by refusing to share her bed, and as a last resort,
even to beat her lightly. ‘Verse’ 35, sets out the course of settlement of family disputes. It postulates the
appointment of two arbitrators – one representing the family of the husband, and the other the family of the wife.
The arbitrators are mandated to explore the possibility of reconciliation ‘Verse’ 35, sets out the course of settlement
of family disputes. It postulates the appointment of two arbitrators – one representing the family of the husband, and
the other the family of the wife. The arbitrators are mandated to explore the possibility of reconciliation. In case
reconciliation is not possible, dissolution is advised, without publicity or mud-throwing or by resorting to trickery or
deception.
Legislation in India, in the field of Muslim ‘personal law’:
22. It would be relevant to record, that ‘personal law’ dealing with the affairs of those professing the Muslim
religion, was also regulated by custom or usage. It was also regulated by ‘Shariat’ – the Muslim ‘personal law’.
The status of Muslim women under customs and usages adopted by Muslims, were considered to be oppressive
towards women. Prior to the independence of India, Muslim women organisations condemned customary law, as it
adversely affected their rights, under the ‘Shariat’. Muslim women claimed, that the Muslim ‘personal law’ be
made applicable to them. It is therefore, that the Muslim Personal Law (Sharait) Application Act, 1937
(hereinafter referred to, as the Shariat Act), was passed. It is essential to understand, the background which
resulted in the enactment of the Shariat Act. The same is recorded in the statement of objects and reasons, which is
reproduced below:
“For several years past it has been the cherished desire of the Muslims of British India that Customary Law should
in no case take the place of Muslim Personal Law. The matter has been repeatedly agitated in the press as well as on
othe platform. The Jamiat-ul-Ulema-i-Hind, the greatest Moslem religious body has supported the demand and
invited the attention of all concerned to the urgent necessity of introducing a measure to this effect. Customary Law
is a misnomer inasmuch as it has not any sound basis to stand upon and is very much liable to frequent changes and
cannot be expected to attain at any time in the future that certainty and definiteness which must be the characteristic
of all laws. The status of Muslim women under the so-called Customary Law is simply disgraceful. All the Muslim
Women Organisations have therefore condemned the Customary Law as it adversely affects their rights. They
demand that the Muslim Personal Law (Shariat) should be made applicable to them. The introduction of Muslim
Personal Law will automatically raise them to the position to which they are naturally entitled. In addition to this
present measure, if enacted, would have very salutary effect on society because it would ensure certainty and
definiteness in the mutual rights and obligations of the public. Muslim Personal Law (Shariat) exists in the form of a
veritable code and is too well known to admit of any doubt or to entail any great labour in the shape of research,
which is the chief feature of Customary Law.”
23. Sections 2, 3 and 5 of the Shariat Act are relevant and are extracted hereunder:
“2. Application of personal law to Muslims.- Notwithstanding any customs or usage to the contrary,
in all questions (save questions relating to agricultural land) regarding intestate succession, special
property of females, including personal property inherited or obtained under contract or gift or any other
provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and
mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than
charities and charitable institutions and charitable and religious endowments) the rule of decision in
cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”
3. Power to make a declaration.- (1) Any person who satisfies the prescribed authority- (a) that he is a
Muslim, and (b) that he is competent to contract within the meaning of section 11 of the Contract Act,
1872 (9 of 1872), and (c) that he is a resident of the territories to which this Act extends, may by
declaration in the prescribed form and filed before the prescribed authority declare that he desires to
obtain the benefit of the provisions of this section, and thereafter the provisions of section 2 shall apply to
the declarant and all his minor children and their descendants as if in addition to the matters enumerated
therein adoption, wills and legacies were also specified. (2) Where the prescribed authority refuses to
accept a declaration under sub-section (1), the person desiring to make the same may appeal to such
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officer as the Government may, by general or special order, appoint in this behalf, and such officer may,
if he is satisfied that the appellant is entitled to make the declaration, order the prescribed authority to
accept the same.
C. Laws of Sub-continental States
(i) Pakistan & Bangladesh: Are both theocratic States, wherein Islam is the official religion. In both countries
Muslims of the Sunni sect constitute the majority. On the issue in hand, it has the following legislation in place:
Muslim Family Laws Ordinance 1961 Ordinance VIII of 1961 amended in Bangladesh by Ordinance 114 of 1985
(Bangladesh changes noted below relevant provisions) “Section 7. (1) Any man who wishes to divorce his wife
shall, as soon as may be after the pronouncement of Talaq in any form whatsoever, give the Chairman a notice in
writing of his having done so, and shall supply a copy thereof to the wife. (2) Whoever contravenes the provision of
sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine
which may extend to five thousand rupees, or with both. [Bangladesh: ten thousand taka] (3) Save as provided in
sub-section (5), a Talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of
ninety days from the day on which notice under subsection (1) is delivered to the Chairman. (4) Within thirty days
of the receipt of notice under sub-section (1) the Chairman shall constitute an Arbitration Council for the purpose of
bringing about reconciliation between the parties, and the Arbitration council shall take all steps necessary to bring
about such reconciliation. (5) If the wife be pregnant at the time Talaq is pronounced, Talaq shall not be effective
until the period mentioned in sub-section (3) or of pregnancy, whichever is later, ends. (6) Nothing shall debar a
wife whose marriage has been terminated by Talaq effective under this section from re-marrying the same husband
without any intervening marriage with a third person, unless such termination is for the third time so effective.”
31. Jiauddin Ahmed v. Anwara Begum ((1981) 1 Gau.L.R. 358) (Single Judge judgment, authored by Baharul
Islam, J., as he then was). Based on the Quranic verses referred to above, the High Court concluded as under:
“13. A perusal of the Quranic verses quoted above and the commentaries thereon by well-recognized Scholars of
great eminence like Mahammad Ali and Yusuf Ali and the pronouncements of great jurists like Ameer Ali and
Fyzee completely rule out the observation of Macnaghten that "there is no occasion for any particular cause for
divorce, and mere whim is sufficient", and the observation of Batchelor, J. (ILR 30 Bom. 537) that "the whimsical
and capricious divorce by the husband is good in law, though bad in theology". These observations have been based
on the concept that women were chattal belonging to men, which the Holy Quran does not brook. Costello, J. In 59
Calcutta 833 has not, with respect, laid down the correct law of talaq. In my view the correct law of talaq as
ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at
reconciliation between the husband and the wife by two arbiters-one from the wife's family the other from the
husband's. If the attempts fail, talaq may be effected. xxx xxx xxx 16. In the instant case the petitioner merely
alleged in his written statement before the Magistrate that he had pronounced talaq to the opposite party; but he did
not examine himself, nor has he adduced any evidence worth the name to prove 'talaq'. There is no proof of talaq, or
its registration. Registration of marriage and divorce under the Assam Muslim Marriages and Divorces Registration
Act, 1935 is voluntary, and unilateral. Mere registration of divorce (or marriage) even if proved, will not render
valid divorce which is otherwise invalid under Muslim Law.”
A perusal of the conclusion recorded by the High Court, through the above observations, leaves no room for any
doubt, that the ‘talaq-e-biddat’ pronounced by the husband without reasonable cause, and without being preceded by
attempts of reconciliation, and without the involvement of arbitrators with due representation on behalf of the
husband and wife, would not lead to a valid divorce. The High Court also concluded, that the petitioner – Jiauddin
Ahmed, had mainly alleged that he had pronounced talaq, but had not established the factum of divorce by adducing
any cogent evidence. Having concluded, that the marriage between the parties was subsisting, the High Court
upheld the order awarding maintenance to the wife – Anwara Begum.
32. Must. Rukia Khatun v. Abdul Khalique Laskar ((1981) 1 Gau. L.R. 375), (Division Bench judgment, authored
by Baharul Islam, CJ., as he then was).
(iv) The conclusion: Based on the above consideration above, the High Court recorded the following conclusion:
“11. In our opinion the correct law of 'talaq' as ordained by Holy Quran is: (i) that 'talaq' must be for a reasonable
cause; and (ii) that it must be preceded by an attempt at reconciliation between the husband and wife by two arbiters,
one chosen by the wife from her family and the other by the husband from his. If their attempts fail, 'talaq' may be
effected. In our opinion the Single Judge has correctly laid down the law in Criminal Revision No. 199/77 (supra),
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and, with respect the Calcutta High Court in ILR 59 Calcutta 833 and the Bombay High Court in ILR 30 Bombay
537 have not laid down the correct law.”
A perusal of the consideration extracted above, when examined closely, reveals that the High Court listed the
following essential ingredients of a valid ‘talaq’ under Muslim law. Firstly, ‘talaq’ has to be based on good cause,
and must not be at the mere desire, sweet will, whim and caprice of the husband. Secondly, it must not be secret.
Thirdly, between the pronouncement and finality, there must be a time gap, so that the passions of the parties may
calm down, and reconciliation may be possible. Fourthly, there has to be a process of arbitration (as a means of
reconciliation), wherein the arbitrators are representatives of both the husband and the wife. If the above
ingredients do not exist, ‘talaq’ – divorce would be invalid. For the reason, that the ‘talaq-e-biddat’ – triple talaq
pronounced by the respondent-husband – Abdul Khalique Laskar, did not satisfy all the ingredients for a valid
divorce, the High Court concluded that the marriage was subsisting, and accordingly held the wife to be entitled to
maintenance.
33. Masroor Ahmed v. State (NCT of Delhi) (2008 (103) DRJ 137 (Single Bench judgment, authored by Badar
Durrez Ahmed, J., as he then was).
“12. Several questions impinging upon muslim law concepts arise for consideration. They are:- (1) What is the
legality and effect of a triple talaq? (2) Does a talaq given in anger result in dissolution of marriage? (3) What is the
effect of non-communication of the talaq to the wife? (4) Was the purported talaq of October 2005 valid? (5) What
is the effect of the second nikah of 19.4.2006?”
(iii) The consideration: While considering the legality and effect of ‘talaq-ebiddat’, the High Court recorded the
following consideration:
“Sanctity and effect of Talaq-e-bidaat or triple talaq. 24. There is no difficulty with ahsan talaq or hasan
talaq. Both have legal recognition under all fiqh schools, sunni or shia. The difficulty lies with triple talaq
which is classed as bidaat (an innovation). Generally speaking, the shia schools do not recognise triple
talaq as bringing about a valid divorce. There is, however, difference of opinion even within the sunni
schools as to whether the triple talaq should be treated as three talaqs, irrevocably bringing to an end the
marital relationship or as one rajai (revocable) talaq2, operating in much the same way as an ahsan talaq.”
(iv) The conclusion: Based on consideration recorded above, the High Court arrived at the following conclusions:
“26. It is accepted by all schools of law that talaq-e-bidaat is sinful. Yet some schools regard it as valid. Courts in
India have also held it to be valid. The expression - bad in theology but valid in law - is often used in this context.
The fact remains that it is considered to be sinful. It was deprecated by prophet Muhammad. It is definitely not
recommended or even approved by any school. It is not even considered to be a valid divorce by shia schools. There
are views even amongst the sunni schools that the triple talaq pronounced in one go would not be regarded as three
talaqs but only as one. Judicial notice can be taken of the fact that the harsh abruptness of triple talaq has brought
about extreme misery to the divorced women and even to the men who are left with no chance to undo the wrong or
any scope to bring about a reconciliation. It is an innovation which may have served a purpose at a particular point
of time in history8 but, if it is rooted out such a move would not be contrary to any basic tenet of Islam or the Quran
or any ruling of the Prophet Muhammad.
27. In this background, I would hold that a triple talaq (talaq-e-bidaat), even for sunni muslims be regarded as one
revocable talaq. This would enable the husband to have time to think and to have ample opportunity to revoke the
same during the iddat period. All this while, family members of the spouses could make sincere efforts at bringing
about a reconciliation. Moreover, even if the iddat period expires and the talaq can no longer be revoked as a
consequence of it, the estranged couple still has an opportunity to re-enter matrimony by contracting a fresh nikah
on fresh terms of mahr etc.”
A perusal of the conclusions recorded by the High Court would reveal, that triple talaq pronounced at the same time,
is to be treated as a single pronouncement of divorce. And therefore, for severing matrimonial ties finally, the
husband would have to complete the prescribed procedure, and thereafter, the parties would be treated as divorced.
34. Nazeer v. Shemeema (2017 (1) KLT 300M), (Single Bench judgment, authored by A. Muhamed Mustaque,
J.).
The consideration: The High Court took into consideration texts by renowned scholars, as for instance, from
“Sharia” by Wael B. Hallaq,
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“Sharia Law, An Introduction” by Mohammad Hashim Kamali, “Qur’an: The Living Truth” by Basheer Ahmad
Mohyidin, “Muslim Law in India And Abroad” by Dr. Tahir Mahmood, “The Lawful and the Prohibited in Islam”
by Sheikh Yusuf al-Qaradawi, from the Urdu book “Hikmatul Islam” by Moulana Wahidul Khan. The High Court
also took into consideration Quranic verses (all of which have been, extracted above). The High Court even took
note of the two judgments of the Gauhati High Court (referred to above), besides other High Court judgments, and
thereupon, observed as under:
“12. This case only symptomize the harsh realities encountered by women belonging to Muslim community,
especially of the lower strata. It is a reminder to the court unless the plight of sufferers is alleviated in a larger
scheme through legislation by the State, justice will be a distant dream deflecting the promise of justice by the State
"equality before the law". The State is constitutionally bound and committed to respect the promise of dignity and
equality before law and it cannot shirk its responsibility by remaining mute spectator of the malady suffered by
Muslim women in the name of religion and their inexorable quest for justice broke all the covenants of the divine
law they professed to denigrate the believer and faithful. Therefore, the remainder of the judgment is a posit to the
State and contribution for settlement of the 'legal vex' which remains unconcluded more than four decades after this
court's reminder in Mohamed Haneefas' case (supra). 13. The State is constitutionally obliged to maintain coherent
order in the society, foundation of which is laid by the family. Thus sustenance or purity of the marriage will lay a
strong foundation for the society, without which there would be neither civilisation nor progress. My endeavour in
this judgment would have been over with the laying of correct principles related to triple talaq in Qur'anic
perspective to declare the law and to decide the matter. However, I find the dilemma in this context is not singular
problem arisen demanding a resolution of the dispute between the litigants by way of adjudication. But rather it
require a State intervention by way of legislation to regulate triple talaq in India. Therefore, settlement of law
relating to talaq is necessary and further discussion is to be treated as an allude for the State to consider for possible
reforms of divorce Law of Muslim in this Country. The empirical research placed herein justifies such course of
action to remind the State for action. It is to be noted, had the Muslim in India been governed by the true Islamic
law, Penal law would have acted as deliverance to sufferings of Muslim women in India to deter arbitrary talaq in
violation of Qur'anic injunction. xxx xxx xxx 15. This takes me to the question why the State is so hesitant to
reforms. It appears from public debate that resistance is from a small section of Ulemas (scholars within the society)
on the ground that Sharia is immutable and any interference would amount to negation of freedom of religion
guaranteed under the Constitution. I find this dilemma of Ulema is on a conjecture of repugnancy of divine law and
secular law. The State also appears as reluctant on an assumption that reforms of religious practice would offend
religious freedom guaranteed under the Constitution of India. This leads me to discuss on facets of Islamic law. I
also find it equally important to discuss about the reforms of personal law relating to triple talaq within the
constitutional polity, as the ultimately value of its legality has to be tested under the freedom of religious practices.”
(iv) The conclusion: In the background of the above consideration, the High Court held as under:
“The W.P.(C) 37436 of 2003 is filed by the husband alleging that the triple talaq pronounced by him is not valid in
accordance with Islamic law. Therefore, proceedings initiated before the Magistrate under Section 3 of the Muslim
Women (Protection of Rights on Divorce) Act, 1986 and consequent order will have to be set aside. This case
depicts the misuse of triple talaq, wife appears to have accepted the talaq and moved the Magistrate court on a folly
created by husband. There are innumerable cases as revealed from the empirical data referred in the research in
which neither party are aware of the procedure of talaq according to the personal law. This Court under Article 226
of the Constitution of India is not expected to go into the disputed questions of fact. The entire exercise in this
judgment is to alert the State that justice has become elusive to the Muslim woman and the remedy thereof lies in
codification of law of divorce. This court cannot grant any relief to the writ petitioner as the true application of the
law to be considered in a given facts is upon the Court trying the matter. It is for the subordinate court to decide
whether there was application of Islamic law in effecting divorce by triple talaq. Therefore, declining jurisdiction,
this writ petition is dismissed.
Conclusion: Courts interpret law and evolve justice on such interpretation of law. It is in the domain of the
legislature to make law. Justice has become elusive for Muslim women in India not because of the religion they
profess, but on account of lack of legal formalism resulting in immunity from law. Law required to be aligned with
justice. The search for solution to this predicament lies in the hands of the law makers. It is for the law makers to
correlate law and social phenomena relating to divorce through the process of legislation to advance justice in
institutionalized form. It is imperative that to advance justice, law must be formulated without any repugnance to the
religious freedom guaranteed under the Constitution of India. It is for the State to consider the formulation of
codified law to govern the matter. Therefore, I conclude by drawing attention of those who resist any form of reform
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of the divorce law of Muslim community in India to the following verses of Holy Quran. (Chapter 47:2) "And those
who believe and do good works and believe in that which is revealed unto Muhammad - and it is the truth from their
Lord-He riddeth them of their ill deeds and improveth their state." "Thus we display the revelations for people who
have sense" (Chapter 30:28) The Registry shall forward the copy of this judgment to Union Law Ministry and Law
Commission of India.”
A perusal of the conclusions drawn by the High Court reveals, that the practice of ‘talaq-e-biddat’, was deprecated
by the Court. The Court however called upon the legislature, to codify the law on the issue, as would result in the
advancement of justice, as a matter of institutional form.
The petitioner’s and the interveners’ contentions:
35. On behalf of the petitioner, besides the petitioner herself, submissions were initiated by Mr. Amit Singh Chadha,
Senior Advocate. He invited this Court’s attention to the legislative history in the field of Muslim ‘personal law’ (-
for details, refer to Part-4 – Legislation in India, in the field of Muslim ‘personal law’). It was submitted, that all
fundamental rights contained in Part III of the Constitution were justiciable. It was therefore pointed out, that the
petitioner’s cause before this Court, was akin to such rights as were considered justiciable. The practice of ‘talaq-e-
biddat’, according to learned counsel, permitted a male spouse an unqualified right, to severe the matrimonial tie. It
was pointed out, that the right to divorce a wife, by way of triple talaq, could be exercised without the disclosure of
any reason, and in fact, even in the absence of reasons. It was submitted, that a female spouse had no say in the
matter, inasmuch as, ‘talaq-e-biddat’ could be pronounced in the absence of the wife, and even without her
knowledge. It was submitted, that divorce pronounced by way of triple talaq was final and binding, between the
parties. These actions, according to learned counsel, vested an arbitrary right in the husband, and as such,
violated the equality clause enshrined in Article 14 of the Constitution. It was submitted, that the Constitution
postulates through the above article, equality before the law and equal protection of the laws. This right, according
to learned counsel, was clearly denied to the female spouse in the matter of pronouncement of divorce by the
husband by adopting the procedure of ‘talaq-e-biddat’. Further more, it was submitted, the Constitution
postulates through Article 15, a clear restraint on discrimination, on the ground of sex. It was submitted, that
‘talaq-e-biddat’ violated the aforesaid fundamental right, which postulates equality between men and women.
Learned counsel relied on the decisions of this Court in Kesavananda Bharati v. State of Kerala, and Minerva Mills
Ltd. v. Union of India to contend, that it was the duty of courts to intervene in case of violation of any individual’s
fundamental right, and to render justice. It was also submitted, that the rights of the female partner in a
matrimonial alliance amongst Muslims, had resulted in severe gender discrimination, which amounted to
violating their human rights under Article 21 of the Constitution. Learned counsel accordingly sought
intervention, for grave injustice practiced against Muslim wives.
36. Mr. Amit Singh Chadha, learned senior counsel, then placed reliance on the Jiauddin Ahmed, and the Rukia
Khatun. Based on the above judgments, it was submitted, that courts of this country had not found favour with the
practice of triple talaq, in the manner prevalent in India. It was contended, that ‘talaq-e-biddat’ should not be
confused with the profession, practice and propagation of Islam. It was pointed out, that ‘talaq-e-biddat’ was
not sacrosanctal to the profession of the Muslim religion. It was accordingly submitted, that this Court had an
indefeasible right, to intervene and render justice. …
Para.37. Learned senior counsel also drew our attention to the fact, that a number of countries had, by way of
express legislations, done away with the practice of ‘talaq-e-biddat’. It was submitted, that even when talaq was
pronounced thrice simultaneously, the same has, by legislation, been treated as a single pronouncement, in a
number of countries, including countries which have declared Islam as their official State religion. It was
accordingly contended, that had ‘talaq-e-biddat’ been an essential part of religion, i.e., if it constituted a core
belief, on which Muslim religion was founded, it could not have been interfered with, by such legislative
intervention. It was accordingly suggested, that this Court should have no difficulty whatsoever in remedying the
cause with which the petitioners had approached this Court, as the same was not only violative of the fundamental
rights enshrined in the Constitution, but was also in contravention of the principle of constitutional morality
emerging therefrom.
38. Last of all, it was contended, that it is nobody’s case before this Court, that ‘talaq-e-biddat’ is a part of an edict
flowing out of the Quran. It was submitted, that triple talaq is not recognized by many schools of Islam. According
to learned counsel, all concerned acknowledge, that ‘talaq-ebiddat’ has all along been treated irregular, patriarchal
and even sinful. It was pointed out, that it is accepted by all schools – even of Sunni Muslims, that ‘talaq-e-biddat’
is “bad in theology but good in law”. In addition, it was pointed out, that even the Union of India had affirmed
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before this Court, the position expressed above. In such situation, it was prayed, that this Court being a
constitutional court, was obliged to perform its constitutional responsibility under Article 32 of the Constitution, as
a protector, enforcer, and guardian of citizens’ rights under Articles 14, 15 and 21 of the Constitution. It was
submitted, that in discharge of the above constitutional obligation, this Court ought to strike down, the practice of
‘talaq-e-biddat’, as violative of the fundamental rights and constitutional morality contemplated by the provisions
of the Constitution. It was commended, that the instant practice of ‘talaq-e-biddat’ should be done away with, in the
same manner as the practice of ‘Sati’, ‘Devadasi’ and ‘Polygamy’, which were components of Hindu religion, and
faith. Learned counsel concluded his submissions by quoting from the Constitutional Law of India, by H.M. Seervai
(fourth edition, Volume 2,), wherein in clause 12.60, at page 1281, the author has expressed the following view:
“12.60: I am aware that the enforcement of laws which are violated is the duty of Govt., and in a number of recent
cases that duty has not been discharged. Again, in the last instance, blatant violation of religious freedom by the
arbitrary action of religious heads has to be dealt with firmly by our highest Court. This duty has resolutely
discharged by our High Courts and the Privy Council before our Constitution. No greater service can be done to our
country than by the Sup. Ct. and the High Courts discharging that duty resolutely, disregarding popular clamour and
disregarding personal predilections. I am not unaware of the present political and judicial climate. But I would like
to conclude with the words of very great man “never despair”, for when evil reaches a particular point, the antidote
of that evil is near at hand.”
44. Ms. Indira Jaising, Senior Advocate, was the third counsel to represent the cause of the petitioners. She entered
appearance on behalf of respondent no.7 – Centre for Study of Society and Secularism, which came to be added as a
party respondent vide an order dated 29.6.2016. It was the contention of learned senior counsel, that the term
‘personal laws’ had not been defined in the Constitution, although there was reference to the same in entry 5 of the
Concurrent List of the Seventh Schedule. Learned counsel referred to Article 372 of the Constitution which
mandates, that all laws in force, in the territory of India immediately before the commencement of the Constitution,
“shall” continue in force until altered or repealed or amended by a competent legislature (or other competent
authority). It was submitted, that on personal issues, Muslims were governed by the Muslim ‘personal law’ –
Shariat. It was contended, that even before, the commencement of the Constitution, the Muslim Personal Law
(Shariat) Application Act, 1937 enforced Muslim ‘personal law’, and as such, the Muslim ‘personal law’ should be
considered as a “law in force”, within the meaning of Article 13(3)(b). It was pointed out, that the instant position
made the legal position separate and distinct from what ordinarily falls in the realm of ‘personal law’. It was also
highlighted, that a reading of entry 5 in the Concurrent List of the Seventh Schedule, leaves no room for any doubt,
that ‘personal law’ necessarily has to have nexus, to issues such as marriage and divorce, infants and minors,
adoptions, wills, intestacy and succession, joint family property and partition, etc. It was contented, that ‘personal
law’ could therefore conveniently be described as family law, namely, disputes relating to issues concerning the
family. It was pointed out, that such family law disputes, were ordinarily adjudicated upon by the Family Courts, set
up under the Family Courts Act, 1984. The matters which arise for consideration before the Family Courts are
disputes of marriage (namely, restitution of conjugal rights, or judicial separation, or dissolution of marriage), and
the like. Based on the above backdrop, it was submitted, that it could be safely accepted that ‘personal law’ deals
with family laws and law of succession such as marriage, divorce, child custody, inheritance, etc.
45. Based on the foundation recorded in the preceding paragraph, it was submitted, that the question in the present
controversy was, whether “rule of decision” (the term used in Section 2, of the Shariat Act) could be challenged, on
the ground that the same was violative of the fundamental rights postulated in Part III of the Constitution? It was the
pointed contention of learned counsel, that no “rule of decision” can be violative of Part III of the Constitution. It
was acknowledged (we would say – fairly), that ‘personal law’ which pertained to disputes between the family and
private individuals (wherein the State has no role), cannot be subject to a challenge, on the ground of being violative
of the fundamental rights enshrined in Part III of the Constitution. It was submitted, that insofar as Muslim
‘personal law’ is concerned, it could no longer be treated as ‘personal law’, because it had been statutorily declared
as “rule of decision” by Section 2 of the Shariat Act. It was therefore asserted, that all questions pertaining to
Muslims, ‘personal law’ having been described as “rule of decision” could no longer be treated as private matters
between parties, nor can they be treated as matters of mere ‘personal law’. It was therefore contended, that
consequent upon the inclusion/subject of the question of “…dissolution of marriage, including talaq, ila, zihar, lian,
khula and mubaraat,…”, amongst Muslims in the statute book, the same did not remain a private matter between the
parties. And as such, all questions/matters, falling within the scope of Section 2 aforementioned, were liable to be
considered as matters of ‘public law’. Learned senior counsel therefore asserted, that no one could contest the
legitimacy of a challenge to ‘public law’ on the ground of being violative of the provisions of the Constitution. In
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support of the aforesaid foundational premise, learned senior counsel placed reliance on Charu Khurana v. Union of
India((2015) 1 SCC 192), to contend that ‘talaq-e-biddat’ should be considered as arbitrary and discriminatory,
under Articles 14 and 15, in the same manner as the rule prohibiting women make-up artists and hair dressers from
becoming members of registered make-up artists and hair dressers association, was so declared. It was also pointed
out, that discrimination based on sex was opposed to gender justice, which position was clearly applicable to the
controversy in hand. Insofar as the instant aspect of the matter is concerned, learned counsel placed reliance on the
following observations recorded in the above judgment:
“46. These bye-laws have been certified by the Registrar of Trade Unions in exercise of the statutory power. Clause
4, as is demonstrable, violates Section 21 of the Act, for the Act has not made any distinction between men and
women. Had it made a bald distinction it would have been indubitably unconstitutional. The legislature, by way of
amendment in Section 21-A, has only fixed the age. It is clear to us that the clause, apart from violating the statutory
command, also violates the constitutional mandate which postulates that there cannot be any discrimination on the
ground of sex. Such discrimination in the access of employment and to be considered for the employment unless
some justifiable riders are attached to it, cannot withstand scrutiny. When the access or entry is denied, Article 21
which deals with livelihood is offended. It also works against the fundamental human rights. Such kind of
debarment creates a concavity in her capacity to earn her livelihood. xxx xxx xxx 50. From the aforesaid
enunciation of law, the signification of right to livelihood gets clearly spelt out. A clause in the bye-laws of a trade
union, which calls itself an Association, which is accepted by the statutory authority, cannot play foul of Article 21.”
46. Learned senior counsel, thereupon attempted to express the same position, through a different reasoning. It is
necessary to recall, that the question posed for consideration is, whether this Court should accept “rule of decision”
under Section 2 of the Shariat Act – as “laws in force” within the meaning of Article 13 of the Constitution, and
thereby, test the validity thereof, on the touchstone of the fundamental rights enshrined in Part III of the
Constitution? It was the fervent contention of learned senior counsel, that all questions falling for consideration
within the meaning of the term “rule of decision” had necessarily to be treated as “laws in force”. Thus, it was
submitted, that such laws were to be in consonance with the provisions of Part III – Fundamental Rights, of the
Constitution. Insofar as the challenge to the constitutional validity of ‘talaq-e-biddat’ is concerned, learned senior
counsel, adopted the submissions advanced by other learned counsel.
48. It was acknowledged, by learned senior counsel, that India recognises a plural legal system, wherein different
religious communities are permitted to be governed by different ‘personal laws’, applicable to them. It was
submitted, that there could be no dispute, that different religious communities can have different laws, but the laws
of each religious community must meet the test of constitutional validity and/or constitutional morality, inasmuch
as, they cannot be violative of Articles 14 and 15 of the Constitution. Viewed in the above context, it was
submitted, that even though matters of faith and belief are protected by Article 25 of the Constitution, yet law
relating to marriage and divorce were matters of faith and belief, were also liable to be tested on grounds of
public order, morality and health, as well as, on the touchstone of the other provisions of Part III of the
Constitution. Therefore, on a plain reading of Article 25, according to learned senior counsel, the right to
freedom of conscience was subject to public order, morality, health, and the other provisions contained in
Part III of the Constitution. And as such, according to learned counsel, the said rights must be so
interpreted, that no ‘personal law’ negates any of the postulated conditions contained in Article 25 of the
Constitution itself.
It was submitted, that Articles 14 and 15 of the Constitution were not subject to any restrictions, including
any restriction under Article 25 or 26 of the Constitution. It was contended, that the cardinal principle of
interpretation of the Constitution was, that all provisions of the Constitution must be harmoniously construed, so that
there remained no conflict between them. It was therefore submitted, that Articles 14 and 15 on the one hand,
and Articles 25 and 26 on the other, must be harmoniously construed with each other, to prevent
discrimination against women, in a manner as would give effect to equality, irrespective of gender. …
54. It was contended, that to refuse an invitation to examine broader issues such as whether ‘personal laws’ were
part of ‘laws in force’ under Article 13, and therefore, subject to judicial review, or whether a uniform civil code
should be enforced, would not be appropriate. It was submitted, if the immediate concern about triple talaq could be
addressed, by endorsing a more acceptable alternate interpretation, based on a pluralistic reading of the sources of
Islam, i.e., by taking a holistic view of the Quran and the ‘hadith’ as indicated by various schools of thought (not just
the Hanafi school), it would be sufficient for the purpose of ensuring justice to the petitioners, and others similarly
positioned as them.
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56. While advancing his aforesaid contention, there was also a note of caution expressed by learned senior counsel.
It was pointed out, that it was not the role of a court, to interpret Muslim ‘personal law’ – Shariat. It was asserted,
that under Muslim ‘personal law’, the religious head – the Imam would be called upon, to decipher the teachings of
the Quran and the ‘hadiths’ in case of a conflict. And thereupon, the Imam had the responsibility to resolve issues of
conflict, not on the basis of his own views, but by reading the verses, namely, the Quran and the ‘hadiths’, and to
determine therefrom, the correct interpretation. It was submitted, that the role of a court, not being a body well
versed in the intricacies of faith, would not extend to an interpretation of either the Quran or the ‘hadiths’, and
therefore, ‘talaq-e-biddat’ should also be interpreted on the touchstone of reasonableness, in tune with the prevailing
societal outlook.
62. The learned Attorney General for India – Mr. Mukul Rohatgi commenced his submissions by contending, that in
this case, this Court has been called upon to determine, whether the practice of ‘talaq-e-biddat’ was compatible with
contemporary constitutional morality and the principles of gender equality and gender equity guaranteed under the
Constitution. In other words, the fundamental question for determination by this Court, according to learned
Attorney General was, whether in a secular democracy, religion can be a reason to deny equal status and dignity, to
Muslim women.
In the case of Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 , wherein this Court had the
occasion to interpret the provisions of the Hindu Minority and Guardianship Act, 1956. It was submitted, that this
Court in the above judgment emphasized the necessity to take measures to bring domestic law in line with
international conventions, so as to eradicate discrimination of all forms, against women. It was submitted, that
Articles 14, 15 and 21 constituted an inseparable part of the basic structure of the Constitution. These values – the
right to equality, non-discrimination and the right to live life with dignity, it was emphasized, formed the bedrock of
the Constitution.
The rebuttal of the petitioners’ contentions:
79. The submissions advanced on behalf of the petitioners, were first of all sought to be repudiated by the AIMPLB
– respondent no.8 (hereinafter referred to as the AIMPLB). Mr. Kapil Sibal, Senior Advocate, and a number of
other learned counsel represented the AIMPLB. In order to lay down the foundation to the submissions sought to be
canvassed on behalf of the respondents, it was asserted, that ceremonies performed at the time of birth of an
individual, are in consonance with the religious norms of the family to which the child is born. And thereafter, in
continuation each stage of life during the entire progression of life, is punctuated by ceremonies. It was pointed out,
that even the act of adoption of a child, in some other family, has religious ceremonies. In the absence of such
religious rituals, adoption is not valid. It was submitted, that religious observances manifest an important
fundamental position, in the life of every individual. Such religious observances, according to learned counsel,
include the manner in which members of a community were required to dress. Insofar as the Muslim women are
concerned, reference was made to ‘burqa’ or ‘hijab’ worn by women, whereby women veil themselves, from the
gaze of strangers. All these observances, are matters of faith, of those professing the religion. It was asserted, that
those who profess the Muslim religion, follow the edicts expressed in the Quran. It was submitted, that matrimony,
is like any other stage in an individual’s life. It has to be performed, in consonance with the ceremonies relating
thereto. So also, if a married couple decides to part ways, by way of divorce. It was pointed out, that express
religious ceremonies are observed even on an individual’s death. It was submitted, that all issues including custody
and guardianship of children, maintenance, dower, gifts and such like issues, were matters guided by the faith of the
people, associated to their religion. How property has to be distributed, upon divorce and/or at the time of death, is
also governed by faith. It was submitted, that questions of inheritance and succession, were likewise dealt with in
consonance with the edicts of the individual’s religion. All these issues, it was submitted, were matters of religious
faith.
80. It was pointed out, that the personal affairs referred to in the foregoing paragraph, fall in the realm of ‘personal
law’. This assertion, was sought to be demonstrated, by placing reliance on the definition of the term ‘personal law’
in Blacks Law Dictionary (10th edition, 2014), as follows: “The law that governs a person’s family matters,
regardless of where the person goes. In common law systems, personal law refers to the law of the person’s
domicile. In civil-law systems, it refers to the law of the individual’s nationality (and so is sometimes called lex
patriae).” Reference was also made to the definition of the term ‘personal law’ in ‘Conflict of Laws (7th edition,
1974) by R.H. Graveson, who defined the term as under:
“The idea of the personal law is based on the conception of man as a social being, so that those transactions of his
daily life which affect him most closely in a personal sense, such as marriage, divorce, legitimacy, many kinds of
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capacity, and succession, may be governed universally by that system of law deemed most suitable and adequate for
the purpose …”
Based on the cumulative definition of the term ‘personal law’, it was submitted, that the evolution of the matters of
faith relating to religious practices, must necessarily be judged in the context of practices adopted by the concerned
community, with reference to each individual aspect of ‘personal law’. It was conceded, on behalf of the AIMPLB,
that ‘personal laws’ were per se subservient to legislation, and as such, ‘personal laws’ were liable to be considered
as mandatory, with reference to numerous aspects of an individual’s life, only in the absence of legislation.
81. Even though it was acknowledged, that legislation on an issue would override ‘personal law’ on the matter, it
was pointed out, that in the absence of legislation ‘personal laws’ in the Indian context, could not be assailed on the
basis of their being in conflict with any of the provisions contained in Part III of the Constitution – the Fundamental
Rights. It was submitted, that in the absence of statutory law, religious practices and faith, constituted the
individual’s (belonging to a community) right to profess the same. In order to substantiate his contention, that a
challenge to ‘personal law’ could not be raised on the anvil of Articles 14, 15 and 21 of the Constitution, learned
senior counsel, placed reliance on the Narasu Appa Mali case. Learned senior counsel, also placed reliance on Shri
Krishna Singh v. Mathura Ahir , wherein this Court arrived at the conclusion, that the rights of ‘sudras’ (the
lowest amongst the four Hindu castes – members of the workers caste), as were expressed by the Smriti (-refers to
a body of Hindu texts, traditionally recorded in writing) writers, were invalid because they were in conflict with the
fundamental rights guaranteed under Part III of the Constitution. It was submitted, that both the above judgments
were considered by this Court in Ahmedabad Women Action Group v. Union of India , wherein, the legal
position recorded in the above judgments was confirmed. It was pointed out, that there was a clear distinction
between ‘law’ and ‘law in force’, thus far interpreted by this Court with reference to Article 13 of the Constitution.
It was asserted, that read along with Article 372 – which mandates, that all laws in force in the territory of India,
immediately before the commencement of the Constitution, would continue to remain in force, until altered,
repealed or amended by a competent legislature or other competent authority. It was
submitted, that to affect a change in ‘personal law’, it was imperative to embark on legislation, as provided for
through entry 5 of the Concurrent List in the Seventh Schedule, which provides – “marriage and divorce; infants and
minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in
judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.”
It was therefore urged, that ‘personal laws’ per se were not subject to challenge, under any of the provisions
contained in Part III of the Constitution.
82. It was contended, that the expression ‘custom and usage’ in Article 13 of the Constitution, would not include
faith of religious denominations, embedded in their ‘personal law’. Insofar as the instant aspect of the matter is
concerned, reference was also made to Section 112 of the Government of India Act, 1915, wherein a clear
distinction was sought to be drawn between ‘personal laws’ and ‘customs having force of law’. Section 112,
aforementioned is extracted hereunder:
“112. Law to be administered in cases of inheritance and succession. – The high courts at Calcutta, Madras and
Bombay, in the exercise of their original jurisdiction in suits against inhabitants of Calcutta, Madras orBombay, as
the case may be, shall, in maters of inheritance and succession to lands, rents and goods, and in matters of contract
and dealing between party and party, when both parties are subject to the same personal law or custom having the
force of law, decide according to that personal law or custom, and when the parties are subject to different personal
laws or customs having the force of law, decide according to the law or custom to which the defendant is subject.”
It was pointed out, that in framing Article 13, the choice of the words “custom and usage” and the exclusion of the
expression “personal law” needed to be taken due note of. It was submitted, that the Constituent Assembly was
aware of the use of the term ‘personal law’ (-which it consciously used in entry 5 of the Concurrent List, in the
Seventh Schedule) and the term ‘customs and usages’, which the Constituent Assembly, employed while framing
Article 13 of the Constitution. It was pointed out, that the above position was consciously highlighted by a Full
Bench of the Andhra Pradesh High Court in the Youth Welfare Federation (1996) ALT 1138(-Writ Petition
No.9717 of 1983, decided on 9.10.1996) ) case submitted, that if the term ‘personal law’ was excluded from the
definition ‘law in force’ deployed in Article 13, then matters of faith having a direct relationship to some religious
denomination (matters of ‘personal law’), do not have to satisfy the rights enumerated in Articles 14, 15 and 21 of
the Constitution. In the above view of the matter, it was contended, that the challenge raised on behalf of the
petitioners on the basis of the provisions contained in Part III – Fundamental Rights, needed to be summarily
rejected
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88. Based on the factual position recorded, it was submitted, that this Court should not attempt to interpret the
manner in which the believers of the faith had understood the process for pronouncement of talaq. It was pointed
out, that matters of faith should best be left to be interpreted by the community itself, in the manner in which its
members understand their own religion. It was also pointed out, that the interpretations relied upon on behalf of the
petitioners, were mostly of scholars who did not belong to the Sunni faith, and were therefore irrelevant, for the
determination of the interpretation of the believers and followers of the Hanafi school of Sunni Muslims.
89. Having made the above submissions, learned senior counsel attempted to pointedly approach the subject of
‘talaq-e-biddat’ – triple talaq. In this behalf it was reiterated, that talaq was in three forms – ‘talaq-eahsan’, ‘talaq-e-
hasan’ and ‘talaq-e-biddat’. It was pointed out, that none of these forms of talaq are referred to either in the Quran,
or the ‘hadith’. It was submitted, that the aforesaid three forms of talaq, have been so categorized by Islamic
scholars. It was pointed out, that what was common in all the forms of talaq, was the finality thereof, in the matter
of severance of the matrimonial tie between the husband and wife. Another commonness was also pointed out,
namely, that ‘talaq-e-ahsan’, if not revoked, attain finality; that ‘talaq-e-hasan’ if likewise not revoked, is treated as
final; and that ‘talaq-e-biddat’ – triple talaq at the time of its pronouncement, is considered as final. It was
submitted, that all kinds/forms of talaq when administered three times became irrevocable. Yet again, it was
reiterated, that the petitioners before this Court were not challenging the finality of talaq, they were merely
challenging the procedure adopted by the Muslim husbands while administering ‘talaq-e-biddat’, which has the
immediate consequences of finality.
98. While supplementing the contentions noticed in the preceding paragraph, it was submitted, that Article 25(2)(b)
vested the power with the legislature, to interfere with ‘personal law’ on the ground of social welfare and reform. It
was therefore contended, that the prayer made by the petitioner and those supporting the petitioner’s case before this
Court, should be addressed to the members of the community who are competent to amend the existing traditions,
and alternatively to the legislature which is empowered to legislatively abrogate the same, as a measure of social
welfare and reform.
100. In addition to the above, it was submitted, that the cause raised by the petitioner (and others) before this Court
was clearly frivolous. It was submitted, that it was open to the wife, at the time of executing ‘nikahnama’, to provide
therein, that her husband would not have the right to divorce her through a declaration in the nature of ‘talaq-e-
biddat’.
Alternatively, it was contended, that after the enactment of the Special Marriage Act, 1954, all citizens of India
whether male or female, irrespective of the faith they professed, have the option to be governed by the provisions of
the said Act, instead of their own ‘personal law’. It was therefore contended, that spouses belonging to a particular
religious denomination, had the choice to opt for a secular and non-religious law, namely, the Special Marriage Act,
1954, and such of the parties who accept the choice (even if they profess the Muslim religion), would automatically
escape from all religious practices, including ‘talaq-e-biddat’. It was therefore contended, that spouses belonging to
a particular religious denomination, had the choice to opt for a secular and non-religious law, namely, the Special
Marriage Act, 1954, and such of the parties who accept the choice (even if they profess the Muslim religion), would
automatically escape from all religious practices, including ‘talaq-e-biddat’. It was therefore contended, that such
of the couples who married in terms of their ‘personal law’, must be deemed to have exercised their conscious
option to be regulated by the ‘personal law’, under which they were married. …
It was submitted, that in the above view of the matter, the very filing of the instant petition before this Court, and the
support of the petitioner’s cause by those who have been impleaded, or had appeared to represent the petitioner’s
cause, must be deemed to be wholly misconceived in law.
101. The second submission advanced at the hands of the learned senior counsel, was that the issues raised by the
petitioner with reference to the validity of ‘talaq-e-biddat’ – triple talaq were matters of legislative policy, and could
not (though learned counsel truly meant – ought not) be interfered with through the judicial process.
103. It was pointed out, that having heard the above matter, the same was dismissed by recording the following
observations in paragraph 4 of the judgment:
“At the outset, we would like to state that these writ petitions do not deserve disposal on merits inasmuch as the
arguments advanced by the learned Senior Advocate before us wholly involve issues of State policies with which
the Court will not ordinarily have any concern. Further, we find that when similar attempts were made, of
course by others, on earlier occasions this Court held that the remedy lies somewhere else and not by knocking at
the doors of the courts.”
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104. Having raised the two preliminary objections with reference to the entertainment of the prayer made by the
petitioner, learned counsel invited the Court’s attention to abolition of the practice of ‘talaq-e-biddat’ in other
countries. … It was submitted, that the constitutional validity of ‘personal law’ in India, cannot be tested on the
basis of enacted legislations of other countries. At this juncture, learned senior counsel desired us to notice, that the
instant submission had been advanced without prejudice to the contention being canvassed by him, that the validity
of ‘personal law’ cannot be tested at all, with reference to the fundamental rights vested in individuals under Part III
of the Constitution, for the reason, that ‘personal law’ cannot be treated as law within the meaning of Article 13 of
the Constitution.
It was submitted, that out of the five schools of Sunni Muslims ‘talaq-e-biddat’ was considered a valid form of
divorce of four of the said schools. It was submitted, that the above position was accepted by the Delhi High Court
in the Masroor Ahmed case4, wherein in paragraph 26, the High Court observed “…..It is accepted by all schools of
law that ‘talaq-e-biddat’ is sinful, yet some schools regarded it as valid…..”.
“The content of Articlles 25 and 26 of the Constitution came up for consideration before this Court in the
Commissioner, Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt;
Mahant Jagannath Ramanuj Das v. The State of Orissa; Sri Ventatamana Devaru v. The State of Mysore;
Durgah Committee, Ajmer v. Syed Hussain Ali and several other cases and the main principles underlying these
provisions have by these decisions been placed beyond controversy. The first is that the protection of these articles
is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore
contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of
religion. The second is that what constitutes an essential part of a religious or religious practice has to be decided by
the courts with reference to the doctrine of a particular religion and include practices which are regarded by the
community as a part of its religion”.
It was pointed out, that the above view of this Court had been affirmed by this Court in N. Adithyan v. Travancore
Devasom Board.
It is now well settled that Article 25 secures to every person, subject of course to public order, health and morality
and other provisions of Part III, including Article 17 freedom to entertain and exhibit by outward acts as well as
propagate and disseminate such religious belief according to his judgment and conscience for the edification of
others. The right of the State to impose such restrictions as are desired or found necessary on grounds of public
order, health and morality is inbuilt in Articles 25 and 26 itself. Article 25(2)(b) ensures the right of the State to
make a law providing for social welfare and reform besides throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus and any such rights of the Sate or of the communities or classes of
society were also considered to need due regulation in thharmonizing the various rights. The vision of the founding
fathers of the Constitution to liberate the society from blind and ritualistic adherence to mere traditional superstitious
beliefs sans reason or rational basis has found expression in the form of Article 17. The legal position that the
protection under Articles 25 and 26 extends a guarantee for rituals and observances, ceremonies and modes of
worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious
practice has to be decided by the courts with reference to the doctrine of a particular religion or practices regarded as
parts of religion, came to be equally firmly laid down.
Learned senior counsel also placed reliance on Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v.
State of U.P. wherein this Court held as under:
“28…..All secular activities which may be associated with religion but which do not relate or constitute an
essential part of it may be amenable to State regulations but what constitutes the essential part of religion may be
ascertained primarily from the doctrines of that religion itself according to its tenets, historical background and
change in evolved process etc. The concept of essentiality is not itself a determinative factor. It is one of the
circumstances to be considered in adjudging whether the particular matters of religion or religious practices or
belief are an integral part of the religion. It must be decided whether the practices or matters are considered
integral by the community itself. Though not conclusive, this is also one of the facets to be noticed. The
practice in question is religious in character and whether it could be regarded as an integral and essential part of
the religion and if the court finds upon evidence adduced before it that it is an integral or essential part of the
religion, Article 25 accords protection to it. …..”
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106. Learned senior counsel also disputed the reliance on International Conventions by all those who had assisted
this Court on behalf of the petitioner. In this behalf, it was pointed out, that reliance on International Conventions,
particularly on CEDAW was wholly misplaced, since India had expressed a clear reservation to the Conventions in
order to support its constitutional policy of non-interference in the personal affairs of any community. In this behalf,
while making a particular reference to CEDAW,
it was submitted, that the above declarations/reservations were first made at the time of signing the aforesaid
conventions and thereafter, even at the time of ratification. In this behalf, it was pointed out, that the first
declaration was made by India in the following format:-
“i) With regard to articles 5(a) and 16(1) of the Convention on the Elimination of All Forms of Discimination
Against Women, the Governmetn of the Republic of India declares that it shall abide by and ensure these
provisions in conformity with its policy of non-interefernece in the personal affairs of any Community without
its initiative and consent."
In view of the clear stance adopted at the time of signing the Convention, as also, at the time of its ratification, it was
submitted, that there could be no doubt, that India had itself committed that it would not interfere with personal
affairs of any community, without the initiative and consent of the concerned community. It was submitted, that the
aforesaid commitment could not be ignored by the Union of India. While addressing this Court on the issue under
reference, it was submitted, that the position adopted by the Union of India, was in clear derogation of the stance
adopted on behalf of the India, as has been detailed above.
107. Learned senior counsel also seriously disputed the submissions advanced at the hands of the petitioners based
on repudiation of the practice of ‘talaq-e-biddat’ in various secular countries with Muslims in the majority, as also,
theocratic States, through express legislation on the issue (-for details, refer to Part-5 – Abrogation of the practice of
‘talaq-e-biddat’ by legislation, the world over, in Islamic, as well as, non-Islamic States). In this behalf, it was
submitted, that ‘personal law’ of classes and sections of the society and/or of religious denominations are sought to
be protected by the Constitution by raising them to the high position of fundamental rights. It was accordingly
asserted, that what was available to such classes and sections of society, as also, to the religious denominations as a
matter of fundamental right under the Constitution, could not be negated, because other countries had enacted
legislations for such annulment.
Insofar as the instant assertion is concerned, learned senior counsel advanced two submissions – firstly, that Section
2 of the Muslim Personal Law (Shariat) Application Act, 1937 did not by itself bring about any law providing for
rights and obligations to be asserted and discharged by the Muslims as a community, for the simple reason, that it
only reaffirmed the perpetuieties of the Muslim ‘personal law’ – ‘Shariat’, and as such, the rights and obligations of
persons which were subjected to Muslim ‘personal law’ – ‘Shariat’, continued as they existed prior to the enactment
of the Shariat Act. And secondly, the Muslim ‘personal law’ – ‘Shariat’, was neither transformed nor
metamorphized by the Shariat Act, in the nature of crystalised rules and regulations, and as such, even if Section 2
of the Muslim Personal Law (Shariat) Application Act, 1937 was struck down, the same would automatically revive
the Muslim ‘personal law’ – ‘Shariat’, in view of the mandate contained in Article 25 of the Constitution. ….
109. It was submitted, that a breach of the provisions contained in Part III – Fundamental Rights under the
Constitution, could only be invoked with reference to a State action, as only State action has to conform to Articles
14, 15 and 21. It was therefore submitted, that a facial subjugation of the right under Article 25(1) to the other
provisons of the Constitution would be inapplicable in the case of ‘personal law’, that has no source to any statute,
or State action. It was submitted, that the Shariat Act affirms the applicability of Muslim ‘personal law’ – ‘Shariat’
and perpetuates it by virtue of Section 2 thereof. And therefore, it would not give the Muslim ‘personal law’ –
‘Shariat’ a statutory flavour.
Consideration of the rival contentions, and our conclusions:
114. Even if we agree with the proposition that ‘talaq-e-biddat’ – triple talaq constitutes the ‘personal law’
governing Muslims, on the issue of divorce, this Court will still need to examine, whether the practice of ‘talaq-e-
biddat’ – triple talaq, violates the acceptable norms of “… public order, morality and health and to the other
provisions …” of Part III of the Constitution (–for that, is the case set up by the petitioner). Even if the conclusions
after the debate travelling the course narrated in the foregoing paragraph does not lead to any fruitful results for the
petitioner’s cause, it is their case, that the practice of ‘talaq-e-biddat’ being socially repulsive should be declared as
being violative of constitutional morality – a concept
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invoked by this Court, according to the petitioner, to interfere with on the ground that it would serve a cause in
larger public interest. The petitioners’ cause, in the instant context is supported by the abrogation of the practice of
‘talaq-e-biddat’, the world over in countries with sizeable Muslim populations including theocratic Islamic States.
The following examination, shall traverse the course recorded herein above. 119. It would be relevant to mention,
that in the interregnum, the validity of ‘talaq-e-biddat’ was considered by a learned Single Judge (Justice Baharul
Islam, as he then was) of the Gauhati High Court, in the Jiauddin Ahmed case , wherein, the High Court took a view
different from the one recorded by the Privy Council (-in the Rashid Ahmad case. The issue was again examined,
by a Division Bench of the Gauhati High Court, in the Mst. Rukia Khatun case. Yet again, the High Court (speaking
through, Chief Justice Baharul Islam, as he then was), did not concur with the view propounded by the Privy
Council. The matter was also examined by a Single Judge (Justice Badar Durrez Ahmed, as he then was) of the
Delhi High Court in the Masroor Ahmed case. Herein again, by placing reliance on relevant ‘hadiths’, the Delhi
High Court came to the conclusion, that the legal position expressed by the Privy Council on ‘talaq-e-biddat’, was
not in consonance with the Muslim ‘personal law’. The Kerala High Court, in the Nazeer case(authored by, Justice
A. Muhamed Mustaque) highlighted the woeful condition of Muslim wives, because of the practice of ‘talaq-e-
biddat’, and recorded its views on the matter.
120. In view of the position expressed hereinabove, we are of the considered view, that the opinion expressed by the
Privy Council with reference to ‘talaq-e-biddat’, in the Rashid Ahmad case, holding that ‘talaq-e-biddat’ results in
finally and irrevocably severing the matrimonial tie between spouses, the very moment it is pronounced, needs to be
examined afresh. More particularly, because the validity of the same as an approved concept, of Muslim ‘personal
law’ – ‘Shariat’, was not evaluated at that juncture (-as it indeed could not have been, as the legislation was not
available, when the Privy Council had rendered its judgment), in the backdrop of the Shariat Act, and also, the
provisions of the Constitution of India.
125. The factual and the legal position noticed in the foregoing paragraph clearly brings out, that the practices of
‘Sati’, ‘Devadasi’ and ‘polygamy’ were abhorrent, and could well be described as sinful. They were clearly
undesirable and surely bad in theology. It is however important to notice, that neither of those practices came to be
challenged before any court of law. Each of the practices to which our pointed attention was drawn, came to be
discontinued and invalidated by way of legislative enactments. The instances cited on behalf of the petitioners
cannot therefore be of much vail, with reference to the matter in hand, wherein, the prayer is for judicial
intervention.
127. A simple issue, would obviously have a simple answer. Irrespective of what has been stated by the learned
counsel for the rival parties, there can be no dispute on two issues. Firstly, that the practice of ‘talaq-e-biddat’ has
been in vogue since the period of Umar, which is roughly more than 1400 years ago. Secondly, that each one of
learned counsel, irrespective of who they represented, (-the petitioners or the respondents), acknowledged in one
voice, that ‘talaq-e-biddat’ though bad in theology, was considered as “good” in law. All learned counsel
representing the petitioners were also unequivocal, that ‘talaq-e-biddat’ was accepted as a “valid” practice in law.
That being so, it is not possible for us to hold, the practice to be invalid in law, merely at the asking of the
petitioners, just because it is considered bad in theology.
137. Having given our thoughtful consideration, and having examined the rival ‘hadiths’ relied upon by learned
counsel for the parties, we have no other option, but to accept the contention of learned senior counsel appearing on
behalf of the AIMPLB, and to accept his counsel, not to enter into the thicket of determining (on the basis of the
‘hadiths’ relied upon) whether or not ‘talaq-e-biddat’ – triple talaq, constituted a valid practice under the Muslim
‘personal law’ – ‘Shariat’. In fact, even Mr. Salman Khurshid appearing on behalf of the petitioners (seeking the
repudiation of the practice of the ‘talaq-e-biddat’) had pointed out, that it was not the role of a court to interprete
nuances of Muslim ‘personal law’ – ‘Shariat’. It was pointed out, that under the Muslim ‘personal law’, the
religious head – the Imam would be called upon to decipher the teachings expressed in the Quran and the ‘hadiths’,
in order to resolve a conflict between the parties. It was submitted, that the Imam alone, had the authority to resolve
a religious conflict, amongst Muslims. It was submitted, that the Imam would do so, not on the basis of his own
views, but by relying on the verses from the Quran, and the ‘hadiths’, and based on other jurisprudential tools
available, and thereupon he would render the correct interpretation. Mr. Salman Khurshid, learned Senior Advocate
also cautioned this Court, that it was not its role to determine the true intricacies of faith.
139. Having given our thoughtful consideration on the entirety of the issue, we are persuaded to accept the counsel
of Mr. Kapil Sibal and Mr. Salman Khurshid, Senior Advocates. It would be appropriate for us, to refrain from
entertaining a determination on the issue in hand, irrespective of the opinion expressed in the four judgments relied
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upon by learned counsel for the petitioners, and the Quranic verses and ‘hadiths’ relied upon by the rival parties.
We truly do not find ourselves, upto the task. We have chosen this course, because we are satisfied, that the
controversy can be finally adjudicated, even in the absence of an answer to the proposition posed in the instant part
of the consideration.
145. We are satisfied, that the practice of ‘talaq-e-biddat’ has to be considered integral to the religious denomination
in question – Sunnis belonging to the Hanafi school. There is not the slightest reason for us to record otherwise.
We are of the view, that the practice of ‘talaq-e-biddat’, has had the sanction and approval of the religious
denomination which practiced it, and as such, there can be no doubt that the practice, is a part of their ‘personal
law’.
V. Did the Muslim Personal Law (Shariat) Application Act, 1937 confer statutory status to the subjects
regulated by the said legislation?
146. ‘Personal law’ has a constitutional protection. This protection is extended to ‘personal law’ through Article 25
of the Constitution. It needs to be kept in mind, that the stature of ‘personal law’ is that of a fundamental right. The
elevation of ‘personal law’ to this stature came about when the Constitution came into force. This was because
Article 25 was included in Part III of the Constitution. Stated differently, ‘personal law’ of every religious
denomination, is protected from invasion and breach, except as provided by and under Article 25.
156. We have given our thoughtful consideration to the submissions advanced at the hands of learned counsel for the
rival parties. Having closely examined Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, we
are of the view, that the limited purpose of the aforesaid provision was to negate the overriding effect of usages and
customs over the Muslim ‘personal law’ – ‘Shariat’. This determination of ours clearly emerges even from the
debates in the Legislative Assembly before the enactment of Muslim Personal Law (Shariat) Application Act, 1937.
In fact, the statements of H.M. Abdullah (representing West Central Punjab) and Abdul Qaiyum (representing
North-West Frontier Province), leave no room for any doubt, that the objective sought to be achieved by the
‘Shariat’ was inter alia to negate the overriding effect on customs and usages over the Muslim ‘personal law’ –
‘Shariat’. The debates reveal that customs and usages by tribals were being given overriding effect by courts while
determining issues between Muslims. Even usages and customs of particular villages were given overriding effect
over Muslim ‘personal law’ – ‘Shariat’. We are also satisfied to accept the contention of the learned senior counsel,
that a perusal of Section 2 and the non obstante clause used therein, has that effect. The Shariat Act, in our
considered view, neither lays down nor declares the Muslim ‘personal law’ – ‘Shariat’. Not even, on the
questions/subjects covered by the legislation. There is no room for any doubt, that there is substantial divergence of
norms regulating Shias and Sunnis. There was further divergence of norms, in their respective schools. The Shariat
Act did not crystalise the norms as were to be applicable to Shias and Sunnis, or their respective schools. What was
sought to be done through the Shariat Act, in our considered view, was to preserve Muslim ‘personal law’ –
Shariat’, as it existed from time immemorial. We are of the view, that the Shariat Act recognizes the Muslim
‘personal law’ as the ‘rule of decision’ in the same manner as Article 25 recognises the supremacy and
enforceability of ‘personal law’ of all religions. We are accordingly satisfied, that Muslim ‘personal law’ –
‘Shariat’ as body of law, was perpetuated by the Shariat Act, and what had become ambiguous (due to inundations
through customs and usages), was clarified and crystalised. In contrast, if such a plea had been raised with reference
to the Dissolution of Muslim Marriages Act, 1939, which legislatively postulated the grounds of divorce for Muslim
women, the submission would have been acceptable. The 1939 Act would form a part of ‘statutory law’, and not
‘personal law’. We are therefore constrained to accept the contention advanced by learned counsel for the
respondents, that the proposition canvassed on behalf of the petitioners, namely, that the Muslim Personal Law
(Shariat) Application Act, 1937 conferred statutory status, on the questions/subjects governed by the Shariat Act,
cannot be accepted. That being the position, Muslim ‘personal law’ – ‘Shariat’ cannot be considered as a State
enactment.
182. A perusal of the details pertaining to legislation in India with regard to matters pertaining to ‘personal law’, and
particularly to issues of marriage and divorce for different religious communities reveals, that all issues governed by
‘personal law’, were only altered by way of legislation.
There is not a singular instance of judicial intervention, brought to our notice except a few judgments rendered by
High Courts (-for details, refer to Part-6 – Judicial pronouncements, on the subject of ‘talaq-e-biddat’). These
judgments, however, attempted the interpretative course, as against an invasive one. The details depicted above
relate to marriage between Christians, Parsis, inter-faith marriages, Muslims and Hindus, including Buddhists, Sikhs
and Jains. The unbroken practice during the pre-independence period, and the post independence period – under the
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Constitution, demonstrates a clear and unambiguous course, namely, reform in the matter of marriage and divorce
(which are integral components of ‘personal law’) was only introduced through legislation.
Therefore in continuation of the conclusion already recorded, namely, that it is the constitutional duty of all courts to
preserve and protect ‘personal law’ as a fundamental right, any change thereof, has to be only by legislation under
Articles 25(2) and 44, read with entry 5 of the Concurrent List contained in the Seventh Schedule to the
Constitution.
192. We have arrived at the conclusion, that ‘talaq-e-biddat’, is a matter of ‘personal law’ of Sunni Muslims,
belonging to the Hanafi school. It constitutes a matter of their faith. It has been practiced by them, for at least 1400
years. We have examined whether the practice satisfies the constraints provided for under Article 25 of the
Constitution, and have arrived at the conclusion, that it does not breach any of them. We have also come to the
conclusion, that the practice being a component of ‘personal law’, has the protection of Article 25 of the
Constitution.
193. Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a
practice which constitutes an integral part of religion. The Constitution allows the followers of every religion, to
follow their beliefs and religious traditions. The Constitution assures believers of all faiths, that their way of life, is
guaranteed, and would not be subjected to any challenge, even though they may seem to others (-and even
rationalists, practicing the same faith) unacceptable, in today’s world and age. The Constitution extends this
guarantee, because faith constitutes the religious consciousness, of the followers. It is this religious consciousness,
which binds believers into separate entities. The Constitution endevours to protect and preserve, the beliefs of each
of the separate entities, under Article 25.
194. Despite the views expressed by those who challenged the practice of ‘talaq-e-biddat’, being able to demonstrate
that the practice transcends the barriers of constitutional morality (emerging from different provisions of the
Constitution), we have found ourselves unable to persuade ourselves, from reaching out in support of the petitioners
concerns. We cannot accept the petitioners’ claim, because the challenge raised is in respect of an issue of ‘personal
law’ which has constitutional protection.
195. In continuation of the position expressed above, we may acknowledge, that most of the prayers made to the
Court (-at least on first blush) were persuasive enough, to solicit acceptance. Keeping in mind, that this opportunity
had presented itself, so to say, to assuage the cause of Muslim women, it was felt, that the opportunity should not be
lost. We are however satisfied that, that would not be the rightful course to tread. We were obliged to keep
reminding ourselves, of the wisdoms of the framers of the Constitution, who placed matters of faith in Part III of the
Constitution. Therefore, any endeavour to proceed on issues canvassed before us would, tantamount to overlooking
the clear letter of law. We cannot nullify and declare as unacceptable in law, what the Constitution decrees us, not
only to protect, but also to enforce. The authority to safeguard and compel compliance, is vested under a special
jurisdiction in constitutional Courts (-under Article 32, with the Supreme Court; and under Article 226, with the
High Courts). Accepting the petitioners prayers, would be in clear transgression of the constitutional mandate
contained in Article 25.
198. A perusal of the consideration recorded by us reveals, that the practice of ‘talaq-e-biddat’ has been done away
with, by way of legislation in a large number of egalitarian States, with sizeable Muslim population and even by
theocratic Islamic States. Even the AIMPLB, the main contestant of the petitioners’ prayers, whilst accepting the
position canvassed on behalf of the petitioners, assumed the position, that it was not within the realm of judicial
discretion, to set aside a matter of faith and religion. We have accepted the position assumed by the AIMPLB. It
was however acknowledged even by the AIMPLB, that legislative will, could salvage the situation. This assertion
was based on a conjoint reading of Articles 25(2) and Article 44 of the Constitution, read with entry 5 of the
Concurrent List contained in the Seventh Schedule of the Constitution. There can be no doubt, and it is our
definitive conclusion, that the position can only be salvaged by way of legislation. We understand, that it is not
appropriate to tender advice to the legislature, to enact law on an issue. However, the
position as it presents in the present case, seems to be a little different. Herein, the views expressed by the rival
parties are not in contradiction. The Union of India has appeared before us in support of the cause of the petitioners.
The stance adopted by the Union of India is sufficient for us to assume, that the Union of India supports the
petitioners’ cause. Unfortunately, the Union seeks at our hands, what truly falls in its own.
199. In view of the position expressed above, we are satisfied, that this is a case which presents a situation where
this Court should exercise its discretion to issue appropriate directions under Article 142 of the Constitution. We
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therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-
biddat’. We hope and expect, that the contemplated legislation will also take into consideration advances in Muslim
‘personal law’ – ‘Shariat’, as have been corrected by legislation the world over, even by theocratic Islamic States.
When the British rulers in India provided succor to Muslims by legislation, and when remedial measures have been
adopted by the Muslim world, we find no reason, for an independent India, to lag behind. Measures have been
adopted for other religious denominations (see at IX – Reforms to ‘personal law’ in India), even in India, but not for
the Muslims. We would therefore implore the legislature, to bestow its thoughtful consideration, to this issue of
paramount importance. We would also beseech different political parties to keep their individual political gains
apart, while considering the necessary measures requiring legislation.
200. Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from
pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction, shall in
the first instance, be operative for a period of six months. If the legislative process commences before the expiry of
the period of six months, and a positive decision emerges towards redefining ‘talaq-e-biddat’ (three pronouncements
of ‘talaq’, at one and the same time) – as one, or alternatively, if it is decided that the practice of ‘talaq-e-biddat’ be
done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the
injunction shall cease to operate.
201. Disposed of in the above terms.
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State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat
AIR 2006 SUPREME COURT 212
Coram: R. C. Lahoti, C.J.I., B. N. Agrawal, Arun Kumar, G. P. Mathur, A. K. Mathur, C. K. Thakker &
P. K. Balasubramanyan, JJ.
R. C. Lahoti, CJI (for himself and on behalf of B. N. Agrawal, Arun Kumar, G. P. Mathur, C. K.
Thakker and P. K. Balasubramanyan, JJ. Section 2 of the Bombay Animal Preservation (Gujarat
Amendment) Act, 1994 (Gujarat Act No. 4 of 1994) which introduced certain amendments in Section 5 of the
Bombay Animal Preservation Act, 1954 (as applicable to the State of Gujarat) has been struck down as ultra
vires the Constitution by the High Court of Gujarat. These three sets of appeals by special leave have been
filed there against.
2. A chain of events, legislative and judicial, lead to the impugned enactment. To appreciate the core issue
arising for decision in these appeals and also the constitutional questions arising therein, it will be useful to set
out the preceding events in their chronological order.
3. With a view to conserve the cattle wealth of the State of Bombay, the State Government enacted the
Bombay Animal Preservation Act, 1948 and prohibited slaughter of animals which were useful for milch,
breeding or agricultural purposes. This Act was substituted by the Bombay Animal Preservation Act of 1954
(hereinafter referred to as 'the Bombay Act'). The provisions relevant for our purpose are contained in Sections
5 and 6. Sub-sections (1), (2) and (3) of Section 5 and Section 6 are extracted and reproduced hereunder :
"5. (1) Notwithstanding any law for the time being in force or any usage to the contrary, no person shall
slaughter or cause to be slaughtered any animal unless, he has obtained in respect of such animal a certificate
in writing from the Competent Authority appointed for the area that the animal is fit for slaughter.
(2) No certificate shall be granted under sub- section (1), if in the opinion of the Competent Authority-
(a) the animal, whether male or female, is useful or likely to become useful for the purpose of draught or any
kind of agricultural operations;
(b) the animal, if male, is useful or likely to become useful for the purpose of breeding;
(c) the animal, if female, is useful or likely to become useful for the purpose of giving milk or bearing
offspring.
(3) Nothing in this section shall apply to the slaughter of any animal above the age of fifteen years for bona
fide religious purposes:
Provided that a certificate in writing for such slaughter has been obtained from the Competent Authority.
6. No animal in respect of which a certificate has been issued under section 5 shall be slaughtered in any place
other than a place specified by such authority or officer as the State Government may appoint in this behalf."
4. The Preamble to the Act stated - "WHEREAS it is expedient to provide for the preservation of animals
suitable for milch, breeding or for agricultural purposes; It is hereby enacted ...as follows :-"
The Statement of Objects and Reasons stated inter alia - "It is now proposed to repeal the Bombay Animal
Preservation Act, 1948 and to undertake fresh legislation, on the basis of a model bill recommended by the
Government of India, in order to stamp out slaughter in unauthorized places and abetment of offences which
were not covered by the Bombay Animal Preservation Act, 1948".
7. In 1979, the Gujarat Legislature enacted the Bombay Animal Preservation (Gujarat Amendment) Act, 1979
to further amend the Bombay Act. Section 2 of this Act is relevant which is extracted and reproduced
hereunder :
2. Amendment of section 5 of Bom. LXXII of 1954 - In the Bombay Animal Preservation Act, 1954, Bom.
LXXII of 1954, (hereinafter referred to as "the principal Act"), in section 5, -
(1) for sub-section (1A), the following shall be substituted, namely :-
"(1A) No certificate under sub-section (1) shall be granted in respect of -
(a) a cow;
(b) the calf of a cow, whether male or female and if male, whether castrated or not;
(c) a bull below the age of sixteen years;
(d) a bullock below the age of sixteen years";
(2) for sub-section (3), the following sub-section shall be substituted, namely :-
"(3) Nothing in this section shall apply to-
(a) the slaughter of any of the following animals for such bona fide religious purposes, as may be prescribed,
namely
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(i) any animal above the age of fifteen years other than a cow, bull or bullock;
(ii) a bull above the age of fifteen years;
(iii) a bullock above the age of fifteen years;
(b) the slaughter of any animal not being a cow or a calf of a cow, on such religious days as may be prescribed.
Provided that a certificate in writing for the slaughter referred to in clause (a) or (b) has been obtained from the
Competent Authority."
2. In the Bombay Animal Preservation Act, 1954 (hereinafter referred to as "the principal Act"), in section 5-
(1) in sub-section (1A), for clauses (c) and (d), the following clauses shall be substituted, namely :-
"(c) a bull;
(d) a bullock.";
(2) in sub-section (3)-
(i) in clause (a), sub-clauses (ii) and (iii) shall be deleted;
(ii) in clause (b), after the words "calf of a cow", the words "bull or bullock" shall be inserted."
12. The Act was preceded by an Ordinance, a reference to the provisions whereof is unnecessary. The
Preamble to the Act reads as under:
"WHEREAS it is established that cow and her progeny sustain the health of the nation by giving them the life-
giving milk which is so essential an item in a scientifically balanced diet;
AND WHEREAS the working bullocks are indispensable for our agriculture for they supply power more than
any other animal;
AND WHEREAS the working bullocks are often useful in ploughing the fields, drawal of water from the wells
and also very useful for drawing carts for transporting grains and fodders from the fields to the residences of
farmers as well as to the Agricultural Market Yards;
AND WHEREAS the dung of the animal is cheaper than the artificial manures and extremely useful for
production of bio-gas;
AND WHEREAS it is established that the back-bone of Indian agriculture is, in a manner of speaking the cow
and her progeny and have, on their back, the whole structure of the Indian agriculture and its economic system;
AND WHEREAS it is expedient to give effect to the policy of the State towards securing the principles laid
down in Articles 47, 48 and in clauses (b) and (c) of Article 39 of the Constitution of India and to protect,
preserve and sustain cow and its progeny;"
13. The Statement of Objects and Reasons and the facts set out therein are of relevance and significance and
hence are reproduced hereunder:
"The existing provisions of the Bombay Animal Preservation Act, 1954 provides for prohibition against the
slaughter of cow, calf of a cow, and the bulls and bullocks below the age of sixteen years. It is an established
fact that the cow and her progeny sustain the health of the nation by giving them the life-giving milk which is
so essential an item in a scientifically balanced diet.
The Challenge to the Constitutional Validity
14. The constitutional validity of the abovesaid legislation, that is, the Bombay Animal Preservation (Gujarat
Amendment) Act, 1994 was put in issue by four writ petitions filed in the High Court which were heard and
disposed of by a common judgment dated April 16, 1998. Two of the writ petitions were filed by individuals
who were butchers by profession, and are known as Kureshis. Two writ petitions were filed by the
representative bodies of Kureshis. Akhil Bharat Krishi Goseva Sangh sought for intervention before the High
Court and was allowed to be impleaded as a party-respondent in the writ petitions. Hinsa Virodhak Sangh,
Jivan Jagruti Trust and Gujarat Prantiya Arya Pratinidhi Sabha also sought for intervention and they were also
allowed to be impleaded by the High Court as party-respondents in the writ petitions. The High Court allowed
the writ petitions and struck down the impugned legislation as ultra vires the Constitution. The High Court
held that the Amendment Act imposed an unreasonable restriction on the fundamental rights and therefore, it
was ultra vires the Constitution. The effect of the judgment of the High Court as summed up by the learned
Judges would be that there would not be a total ban on the slaughter of bulls or bullocks above the age of 16
years; in other words animals could be slaughtered consistently with the provisions of the parent Act as it stood
prior to the amendment brought in by Gujarat Act No. 4 of 1994. Feeling aggrieved by the said decision, the
State of Gujarat and Akhil Bharat Krishi Goseva Sangh have filed these appeals. Shree Ahimsa Army Manav
Kalyan Jeev Daya Charitable Trust, a Public Trust has filed an appeal by special leave, seeking leave of this
Court to file the appeal, which has been granted.
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15. On 17-2-2005, a three-Judge Bench of this Court, before which the appeals came up for hearing directed
the matter to be placed for hearing before a Constitution Bench in the following terms of the order: "Parties to
these appeals agree that the issue involved in these appeals requires interpretation of the provisions of the
Constitution of India especially in regard to the status of Directive Principles vis-a-vis the Fundamental Rights
as well as the effect of introduction of Articles 31C and 51A in the Constitution. Therefore, in view of Article
145(3) of the Constitution, we think it appropriate that this matter should be heard by a Bench of at least 5
Judges."
19. Three legislative enactments banning the slaughter of certain animals were passed respectively by the
States of Bihar, Uttar Pradesh and Madhya Pradesh. In Bihar, the Bihar Preservation and Improvement of
Animals Act, 1956 (Bihar Act II of 1956) was introduced which imposed a total ban on the slaughter of all
categories of animals belonging to the species of bovine cattle. In Uttar Pradesh, the Uttar Pradesh Prevention
of Cow Slaughter Act, 1955 (U.P. Act I of 1956) was enacted which also imposed a total ban on the slaughter
of cows and her progeny which included bulls, bullocks, heifers and cows. In the State of Madhya Pradesh, it
was the C.P. and Berar Animal Preservation Act (Act LII of 1949) which was amended and applied. It imposed
a total ban on the slaughter of cows and female calf of a cow. The male calf of a cow, bull, bullock, buffalo
(male or female, adult or calf) could be slaughtered only on obtaining a certificate. The bans, as imposed by
the three legislations were the subject matter of controversy.
20. The challenge to the constitutional validity of the three legislations was founded on the following three
grounds, as was dealt with in the judgment : (i) that the total ban offended the religion of the Muslims as the
sacrifice of a cow on a particular day is enjoined or sanctioned by Islam; (ii) that such ban offended the
fundamental right guaranteed to the Kasais (Butchers) under Article 19(1)(g) and was not a reasonable and
valid restriction on their right; and (iii) that a total ban was not in the interest of the general public. On behalf
of the States, heavy reliance was placed on Article 48 of the Constitution to which the writ petitioners
responded that under Article 37 the Directive Principles were not enforceable by any court of law and,
therefore, Article 48 had no relevance for the purpose of determining the constitutional validity of the
impugned legislations which were alleged to be violative of the fundamental rights of the writ petitioners.
23..In State of West Bengal and Ors. v. Ashutosh Lahiri, (1995) 1 SCC 189, this Court has noted that sacrifice
of any animal by muslims for the religious purpose on BakrI'd does not include slaughtering of cow as the only
way of carrying out that sacrifice. Slaughtering of cow on BakrI'd is neither essential to nor necessarily
required as part of the religious ceremony. An optional religious practice is not covered by Article 25(1). On
the contrary, it is common knowledge that cow and its progeny, i.e., bull, bullocks and calves are worshipped
by Hindus on specified days during Diwali and other festivals like Makr- Sankranti and Gopashtmi. A good
number of temples are to be found where the statue of 'Nandi' or 'Bull' is regularly worshipped. However, we
do not propose to delve further into the question as we must state, in all fairness to the learned counsel for the
parties, that no one has tried to build any argument either in defence or in opposition to the judgment appealed
against by placing reliance on religion or Article 25 of the Constitution.
24. Dealing with the challenge founded on Article 14 of the Constitution, their Lordships reiterated the twin
tests on the anvil of which the reasonability of classification for the purpose of legislation has to be tested,
namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or
things that are grouped together from others left out of the group, and (ii) that such differentia must have a
rational relation to the object sought to be achieved by the statute in question (p.652). Applying the twin tests
to the facts of the cases before them, their Lordships held that it was quite clear that the objects sought to be
achieved by the impugned Acts were the preservation, protection and improvement of livestocks. Cows, bulls,
bullocks and calves of cows are no doubt the most important cattle for the agricultural economy of this
country. Female buffaloes yield a large quantity of milk and are, therefore, well looked after and do not need
as much protection as cows yielding a small quantity of milk require. As draught cattle, male buffaloes are not
half as useful as bullocks. Sheep and goat give very little milk compared to the cows and the female buffaloes
and have practically no utility as draught animals.
26.The third contention, that is, whether the "total prohibition" could be sustained as a reasonable restriction on
the fundamental right of the butchers to slaughter animals of their liking or in which they were trading, was
dealt with in great detail. This is the aspect of the decision of the Constitution Bench in Quareshi-I which, in
the submission of the learned senior counsel for the appellants, was not correctly decided and, therefore, calls
for reconsideration. The question was dealt with by their Lordships from very many angles. Whether the
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restrictions permissible under clause (6) of Article 19 may extend to "total prohibition" - was treated by their
Lordships as a vexed question and was left open without expressing any final opinion as their Lordships chose
to concentrate on the issue as to whether the restriction was at all reasonable in the interests of the general
public, dehors the fact whether it could be held to be partial or total.
37.Though there is no explicit concession given but it became clear during the course of prolonged hearing
before us that the decision of this case hinges much on the answer to the question whether the view of this
Court in Quareshi-I is to be upheld or not. While the submission of the learned senior counsel for the
appellants has been that, to the extent the Constitution Bench in Quareshi-I holds the total ban on slaughter of
cow progeny to be unconstitutional, it does not lay down good law for various reasons, the learned senior
counsel for the writ petitioners- respondents has submitted that Quareshi-I leads a chain of five decisions of
this Court which in view of the principle of stare decisis, this Court should not upset. The learned senior
counsel for the appellants find following faults with the view taken by this Court in Quareshi-I, to the extent to
which it goes against the appellants.
(1) Quareshi-I holds Directive Principles of State Policy to be unenforceable and subservient to the
Fundamental Rights and, therefore, refuses to assign any weight to the Directive Principle contained in
Article 48 of the Constitution and refuses to hold that its implementation can be a valid ground for proving
reasonability of the restriction imposed on the Fundamental Right guaranteed by Article 19(1)(g) of the
Constitution - a theory which stands discarded in a series of subsequent decisions of this Court.
(2) What has been noticed in Quareshi-I is Article 48 alone; Article 48A and Article 51A(g) were not
noticed as they were not available then, as they were introduced in the Constitution by Forty-second
Amendment with effect from 3-1-1977.
(3) The meaning assigned to "other milch and draught cattle" in Quareshi-I is not correct. Such a narrow
view as has been taken in Quareshi-I does not fit into the scheme of the Constitution and, in particular, the
spirit of Article 48.
(4) Quareshi-I does not assign the requisite weight to the facts contained in the Preamble and Statement of
Objects and Reasons of the enactments impugned therein.
(5) 'Restriction' and 'Regulation' include 'Prohibition' and a partial restraint does not amount to total
prohibition. Subsequent to the decision in Quareshi-I the trend of judicial decisions in this area indicates
that regulation or restriction within the meaning of Articles 19(5) and 19(6) of the Constitution includes
total prohibition - the question which was not answered and left open in Quareshi-I.
(6) In spite of having decided against the writ petitioners on all their principal pleas, the only ground on
which the constitutional validity of the impugned enactments was struck down in Quareshi-I is founded on
the finding of facts that cow progeny ceased to be useful after a particular age, that preservation of such
'useless cattle' by establishment of gosadan was not a practical and viable proposition, that a large
percentage of the animals, not fit for slaughter, are slaughtered surreptitiously outside the municipal limits,
that the quantum of available fodder for cattle added with the dislodgment of butchers from their traditional
profession renders the total prohibition on slaughter not in public interest. The factual situation has
undergone a drastic change since then and hence the factual foundation, on which the legal finding has
been constructed, ceases to exist depriving the later of all its force.
38.The learned senior counsel for the appellants further submitted that Quareshi-I forms the foundation for
subsequent decisions and if the very basis of Quareshi-I crumbles, the edifice of subsequent decisions which
have followed Quareshi-I would also collapse. We will examine the validity of each of the contentions so
advanced and at the end also examine whether the principle of stare decisis prevents us from reopening the
question answered in favour of writ petitioners in Quareshi-I.
Question-1. Fundamental Rights and Directive Principles :-
39. "It was the Sapru Committee (1945) which initially suggested two categories of rights: one justiciable and
the other in the form of directives to the State which should be regarded as fundamental in the governance of
the country those directives are not merely pious declarations. It was the intention of the framers of the
Constitution that in future both the Legislature and the Executive should not merely pay lip service to these
principles but they should be made the basis of all legislative and executive actions that the future Government
may be taking in matter of governance of the country. (Constituent Assembly Debates, Vol.7, at page 41)"
(See: The Constitution of India, D.J. De, Second Edition, 2005, p.1367). If we were to trace the history of
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conflict and irreconciliability between Fundamental Rights and Directive Principles, we will find that the
development of law has passed through three distinct stages.
40.To begin with, Article 37 was given a literal meaning holding the provisions contained in Part IV of the
Constitution to be unenforceable by any Court. In The State of Madras v. Srimathi Champakam Dorairajan,
1951 SCR 525, it was held that the Directive Principles of State Policy have to conform to and run as
subsidiary to the Chapter of Fundamental Rights. The view was reiterated in Deep Chand and Anr. v. The
State of Uttar Pradesh and Others, 1959 Supp. (2) SCR 8. The Court went on to hold that disobedience to
Directive Principles cannot affect the legislative power of the State. So was the view taken in In Re : The
Kerala Education Bill, 1957.
41.With L.C. Golak Nath and others v. State of Punjab and Another, (1967) 2 SCR 762, the Supreme Court
departed from the rigid rule of subordinating Directive Principles and entered the era of harmonious
construction. The need for avoiding a conflict between Fundamental Rights and Directive Principles was
emphasized, appealing to the legislature and the courts to strike a balance between the two as far as possible.
Having noticed Champakam (supra) even the Constitution Bench in Quareshi-I chose to make a headway and
held that the Directive Principles nevertheless are fundamental in the governance of the country and it is the
duty of the State to give effect to them. "A harmonious interpretation has to be placed upon the Constitution
and so interpreted it means that the State should certainly implement the directive principles but it must do so
in such a way that its laws do not take away or abridge the fundamental rights, for otherwise the protecting
provisions of Part III will be a 'mere rope of sand'." Thus, Quareshi-I did take note of the status of Directive
Principles having been elevated from 'sub-ordinate' or 'sub-servient' to 'partner' of Fundamental Rights in
guiding the nation.
42.His Holiness Kesavananda Bharati Sripadagalvaru and Anr. v. State of Kerala and Anr., (1973) 4 SCC 225,
a thirteen-Judge Bench decision of this Court is a turning point in the history of Directive Principles
jurisprudence. This decision clearly mandated the need for bearing in mind the Directive Principles of State
Policy while judging the reasonableness of the restriction imposed on Fundamental Rights. Several opinions
were recorded in Kesavananda Bharati and quoting from them would significantly increase the length of this
judgment. For our purpose, it would suffice to refer to the seven-Judge Bench decision in Pathumma and
Others v. State of Kerala and Ors., (1978) 2 SCC 1, wherein the learned Judges neatly summed up the ratio of
Kesavananda Bharati and other decisions which are relevant for our purpose. Pathumma (supra) holds.
"(1) Courts interpret the constitutional provisions against the social setting of the country so as to show a
complete consciousness and deep awareness of the growing requirements of society, the increasing needs of
the nation, the burning problems of the day and the complex issues facing the people, which the legislature, in
its wisdom, through beneficial legislation, seeks to solve. The judicial approach should be dynamic rather than
static, pragmatic and not pedantic and elastic rather than rigid. This Court while acting as a sentinel on the qui
vive to protect fundamental rights guaranteed to the citizens of the country must try to strike a just balance
between the fundamental rights and the larger and broader interests of society so that when such a right clashes
with a larger interest of the country it must yield to the latter. (Para 5)
(2) The Legislature is in the best position to understand and appreciate the needs of the people as enjoined in
the Constitution. The Court will interfere in this process only when the statute is clearly violative of the right
conferred on a citizen under Part III or when the Act is beyond the legislative competence of the legislature.
The courts have recognized that there is always a presumption in favour of the constitutionality of the statutes
and the onus to prove its invalidity lies on the party which assails it.
(3) The right conferred by Article 19(1)(f) is conditioned by the various factors mentioned in clause (5). (Para
8)
(4) The following tests have been laid down as guidelines to indicate in what particular circumstances a
restriction can be regarded as reasonable :
(a) In judging the reasonableness of the restriction, the court has to bear in mind the Directive Principles of
State Policy. (Para 8)
(b) The restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirements of the
interests of the general public. The legislature must take intelligent care and deliberation in choosing the course
which is dictated by reason and good conscience so as to strike a just balance between the freedom in the
article and the social control permitted by the restrictions under the article. (Para 14)
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(c) No abstract or general pattern or fixed principle can be laid down so as to be of universal application. It will
have to vary from case to case and having regard to the changing conditions, the values of human life, social
philosophy of the Constitution, prevailing conditions and the surrounding circumstances all of which must
enter into the judicial verdict. (Para 15)
(d) The Court is to examine the nature and extent, the purport and content of the right, the nature of the evil
sought to be remedied by the statute, the ratio of harm caused to the citizen and the benefit conferred on the
person or the community for whose benefit the legislation is passed. (Para 18 )
(e) There must be a direct and proximate nexus or a reasonable connection between the restriction imposed and
the object which is sought to be achieved. (Para 20)
(f) The needs of the prevailing social values must be satisfied by the restrictions meant to protect social
welfare. (Para 22)
(g) The restriction has to be viewed not only from the point of view of the citizen but the problem before the
legislature and the object which is sought to be achieved by the statute. In other words, the Court must see
whether the social control envisaged by Article 19 (1) is being effectuated by the restrictions imposed on the
fundamental right. However important the right of a citizen or an individual maybe it has to yield to the larger
interests of the country or the community. (Para 24)
(h) The Court is entitled to take into consideration matters of common report history of the times and matters
of common knowledge and the circumstances existing at the time of the legislation for this purpose."
44. The message of Kesavananda Bharati is clear. The interest of a citizen or section of a community,
howsoever important, is secondary to the interest of the country or community as a whole. For judging the
reasonability of restrictions imposed on Fundamental Rights the relevant considerations are not only those as
stated in Article 19 itself or in Part-III of the Constitution; the Directive Principles stated in Part-IV are also
relevant. Changing factual conditions and State policy, including the one reflected in the impugned enactment,
have to be considered and given weightage to by the courts while deciding the constitutional validity of
legislative enactments. A restriction placed on any Fundamental Right, aimed at securing Directive Principles
will be held as reasonable and hence intra vires subject to two limitations: first, that it does not run in clear
conflict with the fundamental right, and secondly, that it has been enacted within the legislative competence of
the enacting legislature under Part XI Chapter I of the Constitution.
45.In Municipal Corporation of the City of Ahmedabad and Ors. v. Jan Mohammed Usmanbhai and Anr.,
(1986) 3 SCC 20, what was impugned before the High Court was a standing order issued by the Municipal
Commissioner of the State of Ahmedabad, increasing the number of days on which slaughter houses should be
kept closed to seven, in supersession of the earlier standing order which directed the closure for only four days.
The writ petitioner, a beef dealer, challenged the constitutional validity of the impugned standing orders (both,
the earlier and the subsequent one) as violative of Articles 14 and 19(1)(g) of the Constitution. The challenge
based on Articles 14 of the Constitution was turned down both by the High Court and the Supreme Court.
However, the High Court had struck down the seven days closure as not "in the interests of the general public"
and hence not protected by Clause (6) of Article 19 of the Constitution. In appeal preferred by the Municipal
Corporation, the Constitution Bench reversed the Judgment of the High Court and held that the objects sought
to be achieved by the impugned standing orders were the preservation, protection and improvement of live-
stock, which is one of the Directive Principles. Cows, bulls, bullocks and calves of cows are no doubt the most
important cattle for our agricultural economy. They form a separate class and are entitled to be treated
differently from other animals such as goats and sheep, which are slaughtered. The Constitution Bench ruled
that the expression "in the interests of general public" is of a wide import covering public order, public health,
public security, morals, economic welfare of the community and the objects mentioned in Part IV of the
Constitution.
50.Post Kesavananda Bharati so far as the determination of the position of Directive Principles, vis-a-vis
Fundamental Rights are concerned, it has been an era of positivism and creativity. Article 37 of the
Constitution which while declaring the Directive Principles to be unenforceable by any Court goes on to say -
"that they are nevertheless fundamental in the governance of the country." Several clauses of Article 37
themselves need to be harmoniously construed assigning equal weightage to all of them. The end part of
Article 37 - "It shall be the duty of the State to apply these principles in making laws" is not a pariah but a
constitutional mandate. The series of decisions which we have referred to hereinabove and the series of
decisions which formulate the 3-stages of development of the relationship between Directive Principles and
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Fundamental Rights undoubtedly hold that, while interpreting the interplay of rights and restrictions, Part-III
(Fundamental Rights) and Part-IV (Directive Principles) have to be read together. The restriction which can be
placed on the rights listed in Article 19(1) are not subject only to Articles 19(2) to 19(6); the provisions
contained in the chapter on Directive Principles of State Policy can also be pressed into service and relied on
for the purpose of adjudging the reasonability of restrictions placed on the Fundamental Rights.
Question - 2 Fundamental Rights and Articles 48, 48-A and 51-A (g) of Constitution
51. Articles 48, 48-A and 51-A(g) (relevant clause) of the Constitution read as under:-
"48. Organisation of agriculture and animal husbandry.- The State shall endeavour to organise agriculture and
animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and
improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.
48-A. Protection and improvement of environment and safeguarding of forests and wild life.- The State shall
endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
51-A. Fundamental duties. It shall be the duty of every citizen of India-
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have
compassion for living creatures;"
54. Cow progeny excreta is scientifically recognized as a source of rich organic manure. It enables the farmers
avoiding the use of chemicals and inorganic manure. This helps in improving the quality of earth and the
environment. The impugned enactment enables the State in its endeavor to protect and improve the
environment within the meaning of Article 48-A of the Constitution.
55. By enacting clause (g) in Article 51-A and giving it the status of a fundamental duty, one of the objects
sought to be achieved by the Parliament is to ensure that the spirit and message of Articles 48 and 48-A is
honoured as a fundamental duty of every citizen. The Parliament availed the opportunity provided by the
Constitution (Forty-second Amendment) Act, 1976 to improve the manifestation of objects contained in
Article 48 and 48-A. While Article 48-A speaks of "environment", Article 51-A(g) employs the expression
"the natural environment" and includes therein "forests, lakes, rivers and wild life". While Article 48 provides
for "cows and calves and other milch and draught cattle", Article 51-A(g) enjoins it as a fundamental duty of
every citizen "to have compassion for living creatures", which in its wider fold embraces the category of cattle
spoken of specifically in Article 48.
56.In AIIMS Students' Union v. AIIMS and Ors., (2002) 1 SCC 428, a three-Judge Bench of this Court made it
clear that fundamental duties, though not enforceable by writ of the court, yet provide valuable guidance and
aid to interpretation and resolution of constitutional and legal issues. In case of doubt, peoples' wish as
expressed through Article 51-A can serve as a guide not only for resolving the issue but also for constructing
or moulding the relief to be given by the courts. The fundamental duties must be given their full meaning as
expected by the enactment of the Forty-second Amendment. The Court further held that the State is, in a sense,
'all the citizens placed together' and, therefore, though Article 51A does not expressly cast any fundamental
duty on the State, the fact remains that the duty of every citizen of India is, collectively speaking, the duty of
the State. 2001 AIR SCW 3143
Question - 3 : Milch and draught cattle, meaning of, in Article 48
63. Article 48 employs the expression 'cows and calves and other milch and draught cattle'. What meaning is to
be assigned to the expression 'milch and draught cattle'?
64. The question is whether when Article 48 precludes slaughter of cows and calves by description, the words
'milch and draught cattle' are described as a like species which should not be slaughtered or whether such
species are protected only till they are 'milch or draught' and the protection ceases whenever, they cease to be
'milch or draught', either temporarily or permanently?
65. According to their inherent genetic qualities, cattle breeds are broadly divided into 3 categories (i) Milch
breed (ii) Draught breed, and (iii) Dual purpose breed. Milch breeds include all cattle breeds which have an
inherent potential for milk production whereas draught breeds have an inherent potential for draught purposes
like pulling, traction of loads etc. The dual purpose breeds have the potential to perform both the above
functions.
66. The term draught cattle indicates "the act of moving loads by drawing or pulling i.e. pull and traction etc.
Chambers 20th Century Dictionary defines 'draught animal' as 'one used for drawing heavy loads'.
67. Cows are milch cattle. Calves become draught or milch cattle on attaining a particular age. Having
specifically spoken of cows and calves, the latter being a cow progeny, the framers of the Constitution chose
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not to catalogue the list of other milch and draught cattle and felt satisfied by employing a general expression
"other milch and draught cattle" which in their opinion any reader of the Constitution would understand in the
context of the previous words "cows and calves".
68. "Milch and draught", the two words have been used as adjectives describing and determining the quality of
the noun 'cattle'. The function of a descriptive or qualitative adjective is to describe the shape, colour, size,
nature or merits or demerits of the noun which they precede and qualify. In a document like the Constitution,
such an adjective cannot be said to have been employed by the framers of the Constitution for the purpose of
describing only a passing feature, characteristic or quality of the cattle. The object of using these two
adjectives is to enable classification of the noun - 'cattle' which follows. Had it been intended otherwise, the
framers of the Constitution would have chosen a different expression or setting of words.
69. No doubt, cow ceases to be 'milch' after attaining a particular age. Yet, cow has been held to be entitled to
protection against slaughter without regard to the fact that it has ceased to be 'milch'. This constitutional
position is well settled. So is the case with calves. Calves have been held entitled to protection against
slaughter without regard to their age and though they are not yet fit to be employed as 'draught cattle'.
Following the same construction of the expression, it can be said that the words "calves and other milch and
draught cattle" have also been used as a matter of description of a species and not with regard to age. Thus,
'milch and draught' used as adjectives simply enable the classification or description of cattle by their quality,
whether they belong to that species. This classification is with respect to the inherent qualities of the cattle to
perform a particular type of function and is not dependant on their remaining functional for those purposes by
virtue of the age of the animal. "Milch and draught cattle" is an expression employed in Article 48 of the
Constitution so as to distinguish such cattle from other cattle which are neither milch nor draught.
71. This reasoning is further strengthened by Article 51A(g) of the Constitution. The State and every citizen of
India must have compassion for living creatures. Compassion, according to Oxford Advanced Learners'
Dictionary means "a strong feeling of sympathy for those who are suffering and a desire to help them".
According to Chambers 20th Century Dictionary, compassion is "fellow - feeling, or sorrow for the sufferings
of another : pity". Compassion is suggestive of sentiments, a soft feeling, emotions arising out of sympathy,
pity and kindness. The concept of compassion for living creatures enshrined in Article 51A (g) is based on the
background of the rich cultural heritage of India - the land of Mahatma Gandhi, Vinoba, Mahaveer, Budha,
Nanak and others. No religion or holy book in any part of the world teaches or encourages cruelty. Indian
society is a pluralistic society. It has unity in diversity. The religions, cultures and people may be diverse, yet
all speak in one voice that cruelty to any living creature must be curbed and ceased. A cattle which has served
human beings is entitled to compassion in its old age when it has ceased to be milch or draught and becomes
so-called 'useless'. It will be an act of reprehensible ingratitude to condemn a cattle in its old age as useless and
send it to a slaughter house taking away the little time from its natural life that it would have lived, forgetting
its service for the major part of its life, for which it had remained milch or draught. We have to remember : the
weak and meek need more of protection and compassion.
74.In Quareshi-I itself, which has been very strongly relied upon by the learned counsel for the respondents
before us, Chief Justice S.R. Das has held :-"Pronouncements of this Court further establish, amongst other
things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden
is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. The
Courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its
own people, that its laws are directed to problems made manifest by experience and that its discriminations are
based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm
and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in
order to sustain the presumption of constitutionality the Court may take into consideration matters of common
knowledge, matters of common report, the history of the times and may assume every state of facts which can
be conceived existing at the time of legislation.
79. Three propositions are well settled:- (i) 'restriction' includes cases of 'prohibition'; (ii) the standard for
judging reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a
total prohibition must also satisfy the test that a lesser alternative would be inadequate; and (iii) whether a
restriction in effect amounts to a total prohibition is a question of fact which shall have to be determined with
regard to the facts and circumstances of each case, the ambit of the right and the effect of the restriction upon
the exercise of that right.
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Question - 6: Slaughter of cow progeny, if in public interest
83. As we have already indicated, the opinion formed by the Constitution Bench of this Court in Quareshi-I is
that the restriction amounting to total prohibition on slaughter of bulls and bullocks was unreasonable and was
not in public interest. We, therefore, proceed to examine the evidence available on record which would enable
us to answer questions with regard to the 'reasonability' of the imposed restriction qua 'public interest'.
86.Shri J.S. Parikh, Deputy Secretary, Agriculture Co-operative and Rural Development, Department, State of
Gujarat, filed three affidavits in the High Court of Gujarat in Special Civil Application No. 9991 of 1993. The
first affidavit was filed on 20th October, 1993, wherein the following facts are discernible and mentioned as
under:
(i) With the improved scientific animal husbandry services in the State, the average longivity of animals has
considerably increased. In the year 1960, there were only 456 veterinary dispensaries and first aid veterinary
centers etc, whereas in the year 1993, there are 946 veterinary dispensaries and first aid veterinary centers etc.
There were no mobile veterinary dispensaries in 1960 while there are 31 mobile veterinary dispensaries in the
State in 1993. In addition, there are around 467 centres for intensive cattle development where besides first aid
veterinary treatment, other animal husbandry inputs of breeding, food or development etc. are also provided. In
the year 1960, five lakh cattle were vaccinated whereas in the year 1992-93 around 200 lakh animals are
vaccinated to provide life saving protection against various fatal diseases. There were no cattle food
compounding units preparing cattle food in the year 1960, while in the year 1993 there are ten cattle food
factory producing 1545 MT of cattle food per day. As a result of improved animal husbandry services, highly
contagious and fatal disease of Rinder Pest is controlled in the State and that the deadly disease has not
appeared in the last three years.
(ii) Because of various scientific technologies namely, proper cattle feeding, better medical and animal
husbandry services, the longevity of the cattle in the State has considerably increased.
(iii) The population of bullock is 27.59 lakhs. Over and above agricultural work, bullocks are useful for other
purposes also. They produce dung which is the best organic measure and is cheaper than chemical manure. It is
also useful for production of bio-gas.
(iv) It is estimated that daily production of manure by bullocks is about 27,300 tonnes and bio-gas production
daily is about 13.60 cubic metres. It is also estimated that the production of bio-gas from bullock dung fulfil
the daily requirement of 54.78 lakh persons of the State if whole dung production is utilized. At present,
1,91,467 bio-gas plants are in function in the State and about 3-4 lakhs persons are using bio-gas in the State
produced by these plants.
(v) The population of farmers in the State is 31.45 lakhs. Out of which 7.37 lakhs are small farmers, 8 lakhs
are marginal farmers, 3.05 lakhs are agricultural labourers and 13.03 lakhs are other farmers. The total land of
Gujarat State is 196 lakh hectares and land under cultivation is 104.5 lakh hectares. There are 47,800 tractors
by which 19.12 lakh hectares land is cultivated and the remaining 85.38 lakh hectares land is cultivated by
using bullocks. It may be mentioned here that all the agricultural operations are not done using tractors. The
bullocks are required for some of agricultural operations along with tractors. There are about 7,28,300 bullock
carts and there are about 18,35,000 ploughs run by bullocks in the State.
(vi) The figure of slaughter of animals done in 38 recognized slaughter houses are as under:
The above figures show that the slaughter of bullocks above the age of 16 years is done in the State in very
small number. The animals other than bullocks are slaughtered in large number. Hence, the ban on the
slaughter of cow and cow progeny will not affect the business of meat production significantly. Therefore, the
persons engaged in this profession will not be affected adversely.
Thereafter two further affidavits were filed by Shri J.S. Parikh, abovesaid, on 17th March, 1998, wherein the
following facts are mentioned:
(i) there are about 31.45 lakhs land holders in Gujarat. The detailed classifications of the land holders are as
under;
(ii) almost 50 per cent of the land holdings are less than 2 hectares; tractor keeping is not affordable to small
farmers. For economic maintenance of tractors, one should have large holding of land. Such land holders are
only around 10 per cent of the total land holders. Hence the farmers with small land holdings require bullocks
as motive power for their agricultural operations and transport;
(iii) the total cultivable land area of Gujarat State is about 124 lakh hectares. Considering that a pair of
bullocks is required for ploughing 10 acres of land the bullock requirement for ploughing purpose alone is
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5.481 million and approximately equal number is required for carting. According to the livestock census 1988
of Gujarat State, the availability of indigenous bullocks is around 2.84 million. Thus, the availability of
bullocks as a whole on percentage of requirement works out to be about 25 per cent. In this situation, the State
has to preserve each single bull and bullock that is available to it;
(iv) it is estimated that bull or bullock at every stage of life supplies 3,500 kgs of dung and 2,000 litres of urine
and whereas this quantity of dung can supply 5,000 cubic feet of biogas, 80 M.T. of organic fertilizer, the urine
can supply 2,000 litres of pesticides and the use of these products in farming increases the yield very
substantially. The value of above contribution can be placed at Rs.20,000/- per year to the owner;
(v) since production of various agricultural crops removes plant nutrients from the soil, they must be
replenished with manures to maintain and improve fertility of soil. There are two types of manures which are
(i) Organic manures, i.e. natural manures and (ii) Artificial or chemical fertilizer. Amongst the organic
manures, farm yard manures is the most valuable organic manure applied to soil. It is the most commonly used
organic manure in India. It consists of a mixture of cattle dung, the bedding used in the stable. Its crop
increasing value has been recognized from time immemorial (Ref. Hand Book of Agriculture, 1987 by ICAR
page 214);
(vi) the importance of organic manure as a source of humus and plant nutrients to increase the fertility level of
soils has been well recognised. The organic matter content of cultivated soils of the tropics and sub-tropics is
comparatively low due to high temperature and intense microbial activity. The crops remove annually large
quantity of plant nutrients from soil. Moreover, Indian soils are poor in organic matter and in major plant
nutrients. Therefore, soil humus has to be replenished through periodic addition of organic manure for
maintaining soil productivity;
(vii) animals are the source of free availability of farmyard manure, which has all the three elements, i.e.
Nitrogen, Phosphoric acid and Potash, needed in fertilizer and at the same time which preserve and enrich the
fertility of the soil. In paucity of dung availability, the farmers have to depend upon chemical fertilizers.
Investment in chemical fertilizers imposes heavy burden upon the economy. If there is availability of alternate
source of organic manure from animals, it is required to be promoted;
(viii) the recent scenario of ultramodern technology of super ovulation, embryo transfer and cloning technique
will be of very much use to propagate further even from the incapable or even old animals which are not
capable of working or reproducing. These animals on a large scale can be used for research programmes as
well as for production of non-conventional energy sources such as biogas and natural fertilizers. At present,
there are 19,362 biogas plants installed in the State during 1995-97. On an average, each adult cattle produces
4.00 kg. of dung per day. Out of the total cattle strength of (1992 Census) 67,85,865, the estimated dung
produced is 99,07,363 tonnes;
(ix) India has 74% of rural population, and in Gujarat out of 4.13 crores of human population, there are 1.40
crores of workers which comprises of 47,04,000 farmers and 32,31,000 workers are workers related to
livestock and forestry. In Gujarat, there are 9.24 lakhs marginal farmers and 9.15 lakhs of small farmers,
according to the 1991-92 census. Animals are reared in few numbers per family and the feed is obtained from
the supplementary crop on fodder/agricultural by-products or from grazing in the gaucher land. In Gujarat 8.48
lakh hectares of land is available as permanent pasture and grazing land. An individual cattle-owner does not
consider one or two bullocks as an extra burden for his family, even when it is incapable of work or
production. Sometimes the unproductive animals are sent to Panjarapoles and Gosadans. In Gujarat, there are
335 Gaushalas and 174 Panjarapoles which are run by non- governmental oranizations and trusts. Formerly
farmers mostly kept few animals and, in fact, they are treated as part of their family and maintained till death.
It cannot be treated to be a liability upon them or burden on the economy;
(x) butchers are doing their business since generations, but they are not doing only the slaughter of cow class
of animals. They slaughter and trade the meat of other animals like buffaloes, sheep, goats, pig and even
poultry. In Gujarat there are only 38 registered slaughter houses functioning under various
Municipalities/Nagar Panchayats. Beef (meat of cattle) contributes only 1.3% of the total meat groups.
Proportion of demand for beef is less in the context of demand for pig, mutton and poultry meat. Slaughtering
of bulls and bullocks for the period between 1990-91 and 1993-94 was on an average 9,000;
(xi) number of bullocks have decreased in a decade from 30,70,339 to 28,93,227 as in 1992. A statement
showing the amount of dung production for the year 1983-84 to 1996-97 and a statement showing the nature of
economy of the State of Gujarat is annexed. The number of bullocks slaughtered per day is negligible
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compared to other animals, and the business and/or trade of slaughtering bullocks would not affect the
business of butchers. By prohibiting slaughter of bullocks the economy is likely to be benefited.
88. In this Court Shri D.P. Amin, Joint Director of Animal Husbandry, Gujarat State, has filed an affidavit.
The salient facts stated therein are set out hereunder:
(i) The details of various categories of animals slaughtered since 1997-1998 shows that slaughter of various
categories of animals in regulated slaughter houses of Gujarat State has shown a tremendous decline. During
the year way back in 1982-83 to 1996-97 the average number of animals slaughtered in regulated slaughter
houses was 4,39,141. As against that (previous figure) average number of slaughter of animals in recent 8
years i.e. from 1997-98 to 2004-05 has come down to only 2,88,084. This clearly indicates that there has been
a vast change in the meat eating style of people of Gujarat State. It is because of the awareness created among
the public due to the threats of dangerous diseases like Bovine Spongiform Encephalopathy commonly known
as "Mad Cow disease" B.S.E. which is a fatal disease of cattle meat origin not reported in India. Even at global
level people have stopped eating the beef which is known as meat of cattle class animals. This has even
affected the trade of meat particularly beef in the America and European countries since last 15 years.
Therefore, there is international ban on export-import of beef from England, America and European countries;
(ii) there is reduction in slaughter of bulls and bullocks above the age of 16 years reported in the regulated
slaughter houses of Gujarat State. As reported in the years from 1982-83 to 1996-97, the slaughter of bulls and
bullocks above the age of 16 years was only 2.48% of the total animals of different categories slaughtered in
the State. This percentage has gone down to the level of only 1.10% during last 8 years i.e. 1997-98 to 2004-05
which is very less significant to cause or affect the business of butcher communities;
(iii) India is predominantly agrarian society with nearly -th of her population living in seven lakh rural hamlets
and villages, possesses small fragmentary holding (54.6% below 1 hectare 18% with 1-2 hectares). Draft/pack
animal contributes more than 5 crores horse power (H.P.) or 33,000 megawatt electric power and shares for/in
68% of agricultural operations, transport and other draft operations. In addition to draft power, 100 million
tonnes dung per year improves the soil health and also used as raw material for biogas plant;
(iv) the cattle population in Gujarat in relation to human population has declined from 315 per 1000 humans in
1961 to 146 per 1,000 humans in 2001 indicating decline in real terms;
(v) in Gujarat 3.28 million draft animal (bullocks 85%) have multifaceted utilities viz. agricultural operations
like ploughing, sowing, hoeing, planking, carting, hauling, water lifting, grinding, etc.;
(vi) considering the utility of aged bullocks above 16 years as draft power a detailed combined study was
carried out by Department of Animal Husbandry and Gujarat Agricultural University (Veterinary Colleges
S.K. Nagar and Anand). The experiments were carried out within the age group of 16 to 25 years. The study
covered different age groups of 156 (78 pairs) bullocks above the age of 16 years. The aged bullocks i.e. above
16 years age generated 0.68 horse power draft output per bullock while the prime bullock generated 0.83 horse
power per bullock during carting/hauling draft work in a summer with about more than 42°C temp. The study
proves that 93% of aged bullocks above 16 years of age are still useful to farmers to perform light and medium
draft works. The detailed report is on record;
(vii) by the end of year 2004-05 under the Dept. of Animal Husbandry, there are 14 Veterinary Polyclinics,
515 Vety. Dispensaries, 552 First Aid Vety. Centres and 795 Intensive Cattle Development Project Sub
Centers. In all, 1876 institutions were made functional to cater various health care activities to livestock
population of State of Gujarat. About two crores of livestock and poultry were vaccinated against various
diseases. As a result, the total reported out break of infectious diseases was brought down to around 106 as
against 222 in 1992-1993. This shows that State has created a healthy livestock and specifically the longevity
of animals has been increased. This has also resulted into the increased milk production of the State, draft
power and source of non-conventional energy in terms of increased quantity of dung and urine;
(viii) the value of dung is much more than even the famous "Kohinoor" diamond. An old bullock gives 5
tonnes of dung and 343 pounds of urine in a year which can help in the manufacture of 20 carts load of
composed manure. This would be sufficient for manure need of 4 acres of land for crop production. The right
to life is a fundamental right and it can be basically protected only with proper food and feeding and cheap and
nutritious food grains required for feeding can be grown with the help of dung. Thus the most fundamental
thing to the fundamental right of living for the human being is bovine dung. (Ref. Report of National
Commission on Cattle, Vol. III, Page 1063-1064);
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(ix) the dung cake as well as meat of bullock are both commercial commodities. If one bullock is slaughtered
for its meat (Slaughtering activity) can sustain the butchers trade for only a day. For the next day's trade
another bullock is to be slaughtered. But if the bullock is not slaughtered, about 5000-6000 dung cakes can be
made out of its dung per year, and by the sale of such dung cake one person can be sustained for the whole
year. If a bullock survives even for five years after becoming otherwise useless it can provide employment to a
person for five years whereas to a butcher, bullock can provide employment only for a day or two.
(x) Even utility of urine has a great role in the field of pharmaceuticals as well as in the manufacturing of
pesticides. The Goseva Ayog, Govt. of Gujarat had commissioned study for "Testing insecticides properties of
cow urine against various insect pests". The study was carried out by Dr. G.M. Patel, Principal Investigator,
Department of Entomology, C.P. College of Agriculture, S.D. Agricultural University, Sardar Krishi Nagar,
Gujarat. The study has established that insecticides formulations prepared using cow urine emerged as the
most reliable treatment for their effectiveness against sucking pest of cotton. The conclusion of study is dung
and urine of even aged bullocks are also useful and have proved major effect of role in the Indian economy;
(xi) it is stated that availability of fodder is not a problem in the State or anywhere. During drought period
deficit is compensated by grass-bank, silo and purchase of fodder from other States as last resources. The
sugarcane tops, leaves of banana, baggase, wheat bhoosa and industrial byproducts etc. are available in plenty.
A copy of the letter dated 8.3.2004 indicating sufficient fodder for the year 2004, addressed to Deputy
Commissioner, Animal Husbandry Government of India is annexed.
Report on draughtability of bullocks above 16 years of age
89. On 20th June, 2001 the State of Gujarat filed I.A. No. 2/2001 in Civil Appeal Nos. 4937-4940 of 1998,
duly supported by an affidavit sworn by Shri D.U. Parmar, Deputy Secretary (Animal Husbandry) Agriculture
and Co-operation Department, Government of Gujarat, annexing therewith a report on draughtability of aged
bullocks above 16 years of age under field conditions. The study was conducted by the Gujarat Agricultural
University Veterinary College, Anand and the Department of Animal Husbandry, Gujarat State, Ahmedabad.
The study was planned with two objectives:
The study report submitted its conclusions as under:
"1. The aged bullocks above 16 years of age generated 0.68 horse power draft output per bullock while the
prime bullocks generated 0.83 horsepower per bullock during carting-hauling draft work.
2. The aged bullocks worked satisfactorily for the light work for continuous 4 hours during morning session
and total 6 hours per day (morning 3 hours and afternoon 3 hours) for medium work.
3. The physiological responses (Rectal temperature, Respiration rate and Pulse rate) and haemoglobin of aged
bullocks were within the normal range and also maintained the incremental range during work. However, they
exhibited the distress symptoms earlier as compared to prime bullocks.
4. Seven percent aged bullocks under study were reluctant to work and/or lied down after 2 hours of work.
5. The aged bullocks were utilized by the farmers to perform agricultural operations (ploughing, sowing,
harrowing, planking, threshing), transport-hauling of agricultural product, feeds and fodders, construction
materials and drinking water.
Finally, it proves that majority (93%) of the aged bullocks above 16 years of age are still useful to farmers to
perform light and medium draft works."
The Commission was given the follow terms of reference :-
a. To review the relevant laws of the land (Centre as well as States) which relate to protection, preservation,
development and well being of cow and its progeny and suggest measures for their effective implementation,
b. To study the existing provisions for the maintenance of Goshalas, Gosadans, Pinjarapoles and other
organisations working for protection and development of cattle and suggest measures for making them
economically viable,
c. To study the contribution of cattle towards the Indian economy and to suggest ways and means of organising
scientific research for maximum utilisation of cattle products and draught animal power in the field of nutrition
and health, agriculture and energy, and to submit a comprehensive scheme in this regard to the Central
Government,
d. To review and suggest measures to improve the availability of feed and fodder to support the cattle
population.
106. The Report of the National Commission on Cattle, ibid, refers to an authority namely, Shri Vasu in
several sub- paragraphs of para 12. Shri Vasu has highlighted the unique and essential role of bovine and
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bovine dung in our economy and has pleaded that slaughter of our precious animals should be stopped. He has
in extenso dealt with several uses of dung and its significance from the point of view of Indian society. Dung is
a cheap and harmless fertilizer in absence whereof the farmers are forced to use costly and harmful chemical
fertilizers. Dung also has medicinal value in Ayurved, the Indian system of medicines.
Continuing Utility of Cattle : Even if the utility argument of the Quareshi's judgment is accepted, it cannot be
accepted that bulls and bullocks become useless after the age of 16. It has to be said that bulls and bullocks are
not useless to the society because till the end of their lives they yield excreta in the form of urine and dung
which are both extremely useful for production of bio-gas and manure. Even after their death, they supply hide
and other accessories. Therefore, to call them 'useless' is totally devoid of reality. If the expenditure on their
maintenance is compared to the return which they give, at the most, it can be said that they become 'less
useful'. (Report of the National Commission on Cattle, July 2002, Volume I, p. 279.)
107. The Report of the National Commission on Cattle has analyzed the economic viability of cows after they
stopped yielding milk and it also came to the conclusion that it shall not be correct to call such cows 'useless
cattle' as they still continue to have a great deal of utility. Similar is the case with other cattle as well.
"37. Economic aspects :
37.1 The cows are slaughtered in India because the owner of the cow finds it difficult to maintain her after she
stops yielding milk. This is because it is generally believed that milk is the only commodity obtained from
cows, which is useful and can be sold in exchange of cash. This notion is totally wrong. Cow yields products
other than milk, which are valuable and saleable. Thus the dung as well as the urine of cow can be put to use
by owner himself or sold to persons or organizations to process them. The Commission noticed that there are a
good number of organizations (goshalas) which keep the cows rescued while being carried to slaughter houses.
Very few of such cows are milk yielding. Such organizations use the urine and dung produced by these cows
to prepare Vermi-compost or any other form of bio-manure and urine for preparing pest repellents. The money
collected by the sale of such products is normally sufficient to allow maintenance of the cows. In some cases,
the urine and dung is used to prepare the medical formulations also. The organizations, which are engaged in
such activities, are making profits also.
110. The utility of cow cannot be doubted at all. A total ban on cow slaughter has been upheld even in
Quareshi-I. The controversy in the present case is confined to cow progeny. The important role that cow and
her progeny play in the Indian Economy was acknowledged in Quareshi-I in the following words:
"The discussion in the foregoing paragraphs clearly establishes the usefulness of the cow and her progeny.
They sustain the health of the nation by giving them the life giving milk which is so essential an item in a
scientifically balanced diet. The working bullocks are indispensable for our agriculture, for they supply power
more than any other animal. Good breeding bulls are necessary to improve the breed so that the quality and
stamina of the future cows and working bullocks may increase and the production of food and milk may
improve and be in abundance. The dung of the animal is cheaper than the artificial manures and is extremely
useful. In short, the backbone of Indian agriculture is in a manner of speaking the cow and her progeny. Indeed
Lord Linlithgow has truly said - "The cow and the working bullock have on their patient back the whole
structure of Indian agriculture." (Report on the Marketing of Cattle in India, p. 20). If, therefore, we are to
attain sufficiency in the production of food, if we are to maintain the nation's health, the efficiency and breed
of our cattle population must be considerably improved. To attain the above objectives, we must devote greater
attention to the preservation, protection and improvement of the stock and organise our agriculture and animal
husbandry on modern and scientific lines."
111. On the basis of the available material, we are fully satisfied to hold that the ban on slaughter of cow
progeny as imposed by the impugned enactment is in the interests of the general public within the meaning of
Clause (6) of Article 19 of the Constitution.Part - III
Stare Decisis
112. We have dealt with all the submissions and counter-submissions made on behalf of the parties. What
remains to be dealt with is the plea, forcefully urged, on behalf of the respondents that this Court should have
regard to the principle of stare decisis and should not upturn the view taken in Quareshi-I which has held field
ever since 1958 and has been followed in subsequent decisions, which we have already dealt with hereinabove.
113. Stare decisis is a Latin phrase which means "to stand by decided cases; to uphold precedents; to maintain
former adjudication". This principle is expressed in the maxim "stare decisis et non quieta movere" which
means to stand by decisions and not to disturb what is settled. This was aptly put by Lord Coke in his classic
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English version as "Those things which have been so often adjudged ought to rest in peace". However,
according to Justice Frankfurter, the doctrine of stare decisis is not "an imprisonment of reason" (Advanced
Law Lexicon, P. Ramanatha Aiyer, 3rd Edition 2005, Volume 4, p. 4456). The underlying logic of the doctrine
is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the
field for a long time should not be disturbed only because another view is possible.
114. The trend of judicial opinion, in our view, is that stare decisis is not a dogmatic rule allergic to logic and
reason; it is a flexible principle of law operating in the province of precedents providing room to collaborate
with the demands of changing times dictated by social needs, State policy and judicial conscience.
119. Given the progressive orientation of the Supreme Court, its creative role under Article 141 and the
creative elements implicit in the very process of determining ratio decidendi, it is not surprising that judicial
process has not been crippled in the discharge of its duty to keep the law abreast of the times, by the
traditionalist theory of stare decisis (ibid, p. 32). Times and conditions change with changing society, and,
"every age should be mistress of its own law" - and era should not be hampered by outdated law. "It is
revolting", wrote Mr. Justice Holmes in characteristically forthright language, "to have no better reason for a
rule of law than it was so laid down in the time of Henry IV. It is still more revolting if the grounds upon
which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past".
It is the readiness of the Judges to discard that which does not serve the public, which has contributed to the
growth and development of law. (ibid, p. 68)
Quareshi-I, re-visited :
124.We have already pointed out that having tested the various submissins made on behalf of the writ
petitioners on the constitutional anvil, the Constitution Bench in Quareshi-I upheld the constitutional validity,
as reasonable and valid, of a total ban on the slaughter of : (i) cows of all ages, (ii) calves of cows and she-
buffaloes, male or female, and (iii) she-buffaloes or breeding bulls or working bullocks (cattle as well as
buffaloes) as long as they are as milch or draught cattle. But the Constitution Bench found it difficult to uphold
a total ban on the slaughter of she-buffaloes, bulls or bullocks (cattle or buffalo) after they cease to be capable
of yielding milk or of breeding or working as draught animals, on the material made available to them, the ban
failed to satisfy the test of being reasonable and "in the interests of the general public". It is clear that, in the
opinion of the Constitution Bench, the test provided by clause (6) of Article 19 of the Constitution was not
satisfied. The findings on which the above-said conclusion is based are to be found summarized on pp. 684-
687. Para-phrased, the findings are as follows:
(1) The country is in short supply of milch cattle, breeding bulls and working bullocks, essential to maintain
the health and nourishment of the nation. The cattle population fit for breeding and work must be properly fed
by making available to the useful cattle in praesenti in futuro. The maintenance of useless cattle involves a
wasteful drain on the nation's cattle feed.
(2) Total ban on the slaughter of cattle would bring a serious dislocation, though not a complete stoppage, of
the business of a considerable section of the people who are by occupation Butchers (Kasai), hide merchant
and so on.
(3) Such a ban will deprive a large section of the people of what may be their staple food or protein diet.
(4) Preservation of useful cattle by establishment of gosadan is not a practical proposition, as they are like
concentration camps where cattle are left to die a slow death.
(5) The breeding bulls and working bullocks (cattle and buffaloes) do not require as much protection as cows
and calves do.
126. We deal with the findings in Quareshi-I seriatim.
Finding 1 : We do not dispute that the country is in short supply of milch cattle, breeding bulls and working
bullocks and that they are essential to maintain the health and nourishment of the nation as held in Quareshi-I.
Rather we rely on the said finding which stands reinforced by the several documents which we have referred to
hereinbefore.
127.In the Quareshi-I era, there was a shortage of fodder in the country. Various plans were drawn up in the
direction of exploring potential fodder areas for the future. Although, the planning was there; implementation
was lacking. The Report of National Commission on Cattle, July 2002 (Vol. II) reveals that the existing fodder
resources of the country can sustain and meet 51.92% of the total requirements to sustain its livestock
population. But we have to take into consideration the fodder potential of the country. We have vast culturable
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waste land which with some efforts can be developed into good pasture land. Major part of the fallow land can
be put under the plough for having fodder crops such as Jowar, Bajra and smaller millets. The combined area
of several categories of land which can be developed as potential fodder area is 58.87 million hectares. If
managed properly, there are areas in the country which can be developed into a "Grass Reservoir of India for
use as pasture land". One very big potential area lies in Jaisaelmer District of Rajasthan (spread over 22,16,527
hectares). The Commission has recommended 23 steps to be taken by the State Government and the Central
Government for development and conservation of food and fodder (See paras 37-41 of the report at pages 130-
135).
128. So far as the State of Gujarat is concerned, we have already noticed, while dealing with the documentary
evidence available on record, that fodder shortage is not a problem so far as this State is concerned and cow
progeny, the slaughtering whereof has already shown a downward trend during the recent years, can very well
be fed and maintained without causing any wasteful drain on the feed requisite for active milch, breeding and
draught cattle.
Finding 2:
129.The finding suffers from two infirmities. First, Quareshi-I has not felt the necessity of finding whether a
'total prohibition' is also included within 'restriction' as employed in Article 19(6). It is now well-settled that
'restriction' includes 'prohibition'. Second and the real fallacy in Quareshi-I is that the ban limited to
slaughtering of cow progeny has been held at one place to be a 'total prohibition', while in our opinion, is not
so. At another place, the effect of ban has been described as causing 'a serious dislocation, though not a
complete stoppage of the business of a considerable section of the people'. If that is so, it is not a 'total
prohibition'. The documentary evidence available on record shows that beef contributes only 1.3% of the total
meat consumption pattern of the Indian society. Butchers are not prohibited from slaughtering animals other
than the cattle belonging to cow progeny. Consequently, only a part of their activity has been prohibited. They
can continue with their activity of slaughtering other animals. Even if it results in slight inconvenience, it is
liable to be ignored if the prohibition is found to be in the interest of economy and social needs of the country.
Finding 3:
131. 47 years since, it is futile to think that meat originating from cow progeny can be the only staple food or
protein diet for the poor population of the country. 'India Vision 2020' (ibid, Chapter 3) deals with 'Food
Security and Nutrition : Vision 2020'. We cull out a few relevant findings and observations therefrom and set
out in brief in the succeeding paragraphs. Food availability and stability were considered good measures of
food security till the Seventies and the achievement of self-sufficiency was accorded high priority in the food
policies. Though India was successful in achieving self-sufficiency by increasing its food production, it could
not solve the problem of chronic household food insecurity. This necessitated a change in approach and as a
result food energy intake at household level is now given prominence in assessing food security. India is one
of the few countries which have experimented with a broad spectrum of programmes for improving food
security. It has already made substantial progress in terms of overcoming transient food insecurity by giving
priority to self-sufficiency in foodgrains, employment programmes, etc. The real problem, facing India, is not
the availability of food, staple food and protein rich diet; the real problem is its unequal distribution. The real
challenge comes from the slow growth of purchasing power of the people and lack of adequate employment
opportunities. Another reason for lack of food and nutrient intake through cereal consumption is attributable to
changes in consumer tastes and preferences towards superior food items as the incomes of the household
increases. Empirical evidence tends to suggest a positive association between the calorie intake and nutritional
status. The responsiveness is likely to be affected by the factors relating to health and environment. It is
unclear as to how much of the malnutrition is due to an inadequate diet and how much due to the environment.
133. A complete reading of the research paper on Food Security and Nutrition (Chapter 3 in India Vision
2020) is a clear pointer to the fact that desirable diet and nutrition are not necessarily associated with non-
vegetarian diet and that too originating from slaughtering cow progeny. Beef contributes only 1.3% of the total
meat consumption pattern of the Indian society. Consequently a prohibition on the slaughter of cattle would
not substantially affect the food consumption of the people. To quote (ibid p. 209) : "Even though the question
of desirable diet from nutritional perspective is still controversial, we can make certain policy options to
overcome the nutritional deficiencies. The most important problem to be attended is to increase the energy
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intake of the bottom 30 per cent of the expenditure class. The deficiency of energy intake of the bottom 30 per
cent can be rectified by increasing agricultural productivity in rain fed areas, making available food at an
affordable price through the Public Distribution System (PDS), and other poverty alleviation programmes. The
micro-nutrient deficiency can be cost-effectively rectified by supplementary nutritional programmes to the
children and the expectant and lactating mothers."
Finding 4:
135.Quareshi-I itself reveals a very general opinion formed by the Court as to the failure of gosadans and their
inability to preserve cattle. The statistics made available before us are a positive indicator to the contrary that
gosadans and goshalas are being maintained and encouraged so as to take up both useful and so-called useless
cattle, if the owner is not willing to continue to maintain them. Quareshi-I relied on a Report of an Expert
Committee, which has certainly become an outdated document by the lapse of 47 years since then. Moreover,
independent of all the evidence, we have in this judgment already noticed that cattle belonging to the category
of cow progeny would not be rendered without shelter and feed by the owner to whom it had served
throughout its life. We find support from the affidavits and reports filed on behalf of the State of Gujarat which
state inter alia "farmers love their cattle".
Finding 5
138. In Quareshi-I, vide para 42, the Constitution Bench chose to draw a distinction between breeding bulls
and working bullocks, on the one hand and cows and calves, on the other hand, by holding that the farmers
would not easily part with the breeding bulls and working bullocks to the butchers as they are useful to the
farmers. It would suffice to observe that the protection is needed by the bulls and bullocks at a point of time
when their utility has been reduced or has become nil as they near the end of their life. That is what Article 48,
in fact, protects, as interpreted in this judgment.
140. For multiple reasons which we have stated in very many details while dealing with Question-6 in Part-II
of the judgment, we have found that bulls and bullocks do not become useless merely by crossing a particular
age. The Statement of Objects and Reasons, apart from other evidence available, clearly conveys that cow and
her progeny constitute the backbone of Indian agriculture and economy. The increasing adoption of non-
conventional energy sources like Bio-gas Plants justify the need for bulls and bullocks to live their full life in
spite of their having ceased to be useful for the purpose of breeding and draught. This Statement of Objects
and Reasons tilts the balance in favour of the constitutional validity of the impugned enactment. In Quareshi-I
the Constitution Bench chose to bear it in mind, while upholding the constitutionality of the legislations
impugned therein, insofar as the challenge by reference to Article 14 was concerned, that "the legislature
correctly appreciates the needs of its own people". Times have changed; so have changed the social and
economic needs. The Legislature has correctly appreciated the needs of its own people and recorded the same
in the Preamble of the impugned enactment and the Statement of Objects and Reasons appended to it. In the
light of the material available in abundance before us, there is no escape from the conclusion that the
protection conferred by impugned enactment on cow progeny is needed in the interest of Nation's economy.
Merely because it may cause 'inconvenience' or some 'dislocation' to the butchers, restriction imposed by the
impugned enactment does not cease to be in the interest of the general public. The former must yield to the
latter.
Result
146. For the foregoing reasons, we cannot accept the view taken by the High Court. All the appeals are
allowed. The impugned judgment of the High Court is set aside. The Bombay Animal Preservation (Gujarat
Amendment) Act, 1994 (Gujarat Act No. 4 of 1994) is held to be intra vires the Constitution. All the writ
petitions filed in the High Court are directed to be dismissed.
A. K. MATHUR, J- I have gone through the erudite judgment by Hon'ble Chief Justice. But I regret, I cannot
support the view taken by Hon'ble Chief Justice.
148. Basic question that arises in these petitions are whether there is need to overrule the earlier decisions
which held the field right from 1958-1996, is the ground realities have materially changed so as to reverse the
view held by successive Constitutional Benches of this Court or those decisions ceased to have any relevance.
151. The whole controversy arose in the writ petition filed in the Gujarat High Court challenging the validity
of the Bombay Animal Preservation (Gujarat Amendment) Act, 1994 (hereinafter referred to Gujarat Act No. 4
of 1994). By this amendment the age of bulls and bullocks which was existed at that time, that is bull below
the age of 16 years and bullocks below the age of 16 years cannot be slaughtered was deleted. By this
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amendment the age restriction was totally taken away and that means that no bull and bullock irrespective of
age shall be slaughtered. This amendment was challenged before the Gujarat High Court. The Gujarat High
Court after dealing with all aspects in detail held that amendment is ultra vires. Hence, the present petition
along with the other petitions came up before this Court by Special Leave Petition.
152. The matter was listed before the three Judges' Bench. Thereafter, it was taken by the Constitution Bench
and the Constitution Bench realizing difficulty that there are already Constitution Bench judgments holding the
field, referred the matter to the seven Judges' Bench for reconsideration of all the earlier decisions of the
Constitution Benches. Hence these matters are before seven Judges' Bench.
153. Hon'ble the Chief Justice has already reproduced the objects and reasons for amendment, therefore, same
need not be reproduced here. This amendment brought about to effect directive principles of the State Policy
under Articles 47, 48 of the Constitution and Clauses (b) and (c) of Article 39 of the Constitution.
156. In Mohd. Hanif Qureshi's case this Court upheld a total prohibition of slaughter of the cows of all ages
and calf of buffalows (male and female) and she-buffaloes, breeding bulls and working bullocks, without
prescribing any test of requirement as to their age. But so far as bull and bullocks are concerned when they
ceased to have draughtability prohibition of their slaughter was not upheld in public interest. Hon'ble S.R. Das,
C.J. speaking for the Court exhaustively dealt with all the aspects which practically covers all the arguments
which have been raised before us, especially, the utility of the cow-dung for manure as well as the cow urine
for its chemical qualities like Nitrogen Phosphates and Potash. His Lordship recognized that this enactment
was made in discharge of State's obligation under Art. 48 of the Constitution to preserve our livestock.
157. His Lordship has discussed the question of reasonable restriction under Article 19 (6) and after
considering all material placed before the Court, and adverting to social, religious, utility point of view in most
exhaustive manner finally concluded thus:
"After giving our most careful and anxious consideration to the pros and cons of the problem as indicated and
discussed above and keeping in view the presumption in favour of the validity of the legislation and without
any the least disrespect to the opinions of the legislatures concerned we feel that in discharging the ultimate
responsibility cast on us by the Constitution we must approach and analyze the problem in an objective and
realistic manner and then make our pronouncement on the reasonableness of the restrictions imposed by the
impugned enactments. So approaching and analyzing the problem, we have reached the conclusion (i) that a
total ban on the slaughter of cows of all ages and calves of cows and calves of she-buffaloes, male and female,
is quite reasonable and valid and is in consonance with the directive principles laid down in Art. 48; (ii) that a
total ban on the slaughter of she-buffaloes, or breeding bulls or working bullocks (cattle as well as buffaloes)
as long as they are as milch or draught cattle is also reasonable and valid, and (iii) that a total ban on the
slaughter of she-buffaloes, bulls and bullocks (cattle or buffalo) after they cease to be capable of yielding milk
or of breeding or working as draught animals cannot be supported as reasonable in the interest of the general
public."
162. Section 3 of the Bihar Act insofar as it has increased the age limit to 25 in respect of bulls, bullocks and
she-buffaloes, for the purpose of their slaughter imposes an unreasonable restriction on the fundamental right
of the butchers to carry on their trade and profession. Moreover, the restriction cannot be said to be in the
interests of the general public, and to that extent it is void.
163.Then again in the case of Mohd. Faruk v. State of Madhya Pradesh and Ors., reported in 1969 (1) SCC
853, Constitution Bench was called upon to decide the validity of the notification issued by the Madhya
Pradesh Government under Municipal Corporation Act. Earlier, a notification was issued by the Jabalpur
Municipality permitting the slaughter of bulls and bullocks alongwith the other animals. Later on State
Government issued notification cancelling the notification permitting the slaughter of bulls and bullocks. This
came up for a challenge directly under Art. 32 of the Constitution before this Court, that this restriction
amounts to breach of Art. 19(1)(g) of the Constitution. In that context, their Lordships observed "That the
sentiments of a section of the people may be hurt by permitting slaughter of bulls and bullocks in premises
maintained by a local authority. But a prohibition imposed on the exercise of a fundamental right to carry on
an occupation, trade or business will not be regarded as reasonable if it is imposed not in the interest of the
general public but merely to respect the susceptibilities and sentiments of a section of the people whose way of
life, belief or thought is not the same as that of the claimant. The notification issued must, therefore, be
declared ultra vires as infringing Article 19(1)(g) of the Constitution."
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164.Then again in the case of Haji Usmanbhai Hasanbhai Qureshi and Ors. v. State of Gujarat reported in
(1986) 3 SCC 12, the insertion of Section 5 (1-A) (c) and (d) was made under the Bombay Animal
Preservation (Gujarat Amendment) Act, 1979) came up for consideration. By virtue of this insertion by the
Gujarat State, it was laid down that there will be ban of slaughter of bulls, bullocks below the age of 16 years.
It was contented that this prohibition is unreasonable and violative of Art. 19(1)(g). Their Lordships upheld the
restriction under Art. 19(6) with reference to Art. 48 of the Constitution. Their Lordships upheld the contention
of the State of Gujarat that with the improvement of scientific methods, cattle up to the age of 16 years are
used for the purpose of breeding and other agricultural operation. But by this Act of 1994 this age restriction
has now been totally taken away by the Act of 1994 (which is subject-matter of challenge in these petitions).
167. This is a survey of the judicial determination on the subject. And in the last case their Lordships frowned
on unsuccessful attempt by the State to somehow nullify the ratio laid down in Mohd. Hanif Qureshi's case and
subsequent decisions following Qureshi's case. But this time, the State of Gujarat has come up to seek the
review of earlier decisions. Now I shall examine the material which has been placed by the State of Gujarat to
justify the total prohibition of slaughter of bulls and bullocks.
168.Learned counsel for the appellant has brought to our notice the affidavit filed by the State of Gujarat which
has been reproduced by the Hon'ble Chief Justice on page 56 in his opinion onwards. Therefore, I need not
reproduce the whole of the affidavit. Mr. J.S. Parikh, Deputy Secretary, Agricultural Cooperative and Rural
Development Department of the State of Gujarat has in his affidavit stated that almost in 50% of the
agricultural operation by tractor is not possible because of small holdings in the State of Gujarat. Therefore, for
such small holdings the draught animals are best used for cultivation purposes. It was also stated that the total
cultivated area of Gujarat State is about 124 lakh hectares and a pair of bullocks is required for ploughing 10
hectares of land. Therefore, 5.481million and approximately equal number is required for carting of whole
land. In accordance with livestock census, the Gujarat State has availability of indigenous bullocks around 2.84
millions that means that a State has only 25% of their requirement and it is also stated that each bull is required
for this purpose. He has also stated that bull or bullocks at every stage of life supplies 3500 kg. of dung and
2000 ltrs. of urine and this quantity of dung can supply 5000 cubic feet of biogas, 80 M.T. of organic fertilizer
and the urine can supply 2000 ltrs of pesticides and the use of it in farming increases the yield very
substantially. That in recent advancement of technology use of biogas has become very useful source of energy
and the biogas can be prepared out of the cow dung and other inputs. It was pointed out that there are 19362
biogas plants installed in the State during 1995-97.
169. Similarly, an additional affidavit was filed by Mr. D.P. Amin, Joint Director of Animal Husbandry,
Gujarat State. He has mentioned that the number of the slaughter houses have declined during the year 1982-
83 to 1996-97. The average number of animals slaughtered in regulated slaughter houses was 4,39,141. It is
also stated that there is a reduction in slaughter of the bull and bullocks above the age of 16 years. Almost 50
per cent of the land holdings are less than 2 hectares; tractor operation is not affordable to small farmers. For
tractors operation one should have large holding of land. Such land holders are only around 10 per cent of the
total land holders. Hence the farmers with small land holdings require bullocks for their agricultural operations
and transport. There is reduction in slaughter of bulls and bullocks above the age of 16 years reported in the
regulated slaughter houses of Gujarat State. As reported in the years from 1982-83 to 1996-97, the slaughter of
bulls and bullocks above the age of 16 years was only 2.48% of the total animals of different categories
slaughtered in the State. This percentage has gone down to the level of only 1.10% during last 8 years i.e.
1997-98 to 2004-05 which is very less significant to cause or affect the business of butcher communities. He
has also stated that the bullock above the age of 16 years can generate 0.68 horse power draught output while
the prime bullock generates 0.83 horse power per bullock during carting/hauling draught work. Considering
the utility of bullocks above 16 years of age as draught power a detailed combined study was carried out by
Department of Animal Husbandry and Gujarat Agricultural University (Veterinary Colleges, S.K. Nagar and
Anand). The study covered different age groups of 156 (78 pairs) bullocks above the age of 16 years age
generated 0.68 horse power draught output per bullock while the prime bullock generated 0.83 horse power per
bullock during carting/hauling draught work in a summer with about more than 42° F temp. The study proves
that 93% of aged bullock above 16 years of age are still useful to farmers to perform light and medium draught
works. The importance of organic manure as a source of humus and plant nutrients to increase the fertility
level of soils has been well recognized. The organic matter content of cultivated soils of the tropics and sub-
tropics is comparatively low due to high temperature and intense microbial activity. The crops remove
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annually large quantity of plant nutrients from soil. Moreover, Indian soils are poor in organic matter and in
major plant nutrients. Therefore, soil humus has to be replenished through periodic addition of organic manure
for maintaining soil productivity. It was mentioned that there is number of bio-gas plants operating in the State
of Gujarat.
170. Apart from these affidavits many more published documents have been placed on record which has been
reproduced by the Hon'ble Chief Justice of India in his opinion. But all these are general datas which only
provide the usefulness of cow dung for the purposes of manure as well as for biogas and likewise the urine of
the cows for pesticides and ayurvedic purposes. But all those datas cannot change the reality that such an aged
bull and bullocks produce huge quantity of the cow dung manure and urine which can alter a situation
materially so as to reverse the earlier decisions of this court. Utility of the cow dung and urine was realized and
appreciated in the earlier decision of this Court in Mohd. Hanif Qureshi's and Ors. v. State of Bihar and Ors.
(AIR 1958 SC 731). The then Chief Justice has quoted from various scriptures emphasizing the importance of
the cattle life. Therefore it cannot be said that the earlier decisions rendered by the Constitution Bench was
oblivious of these facts.
171. However, so far as the affidavits filed on behalf of State of Gujarat about the use of biogas and the
usefulness of the draught animals has to be taken with pinch of salt, in both the affidavits it has been admitted
that urine and the cow dung of the aged bull and bullocks beyond 16 years is reduced considerably and
likewise their draughtabil-ity. Therefore, it is admitted that the bullocks which have crossed the age of 16 years
their output for the urine, cow dung and draughtability is substantially reduced. Therefore it is explicit from
their affidavits that the age of 16 years prescribed earlier was on a very reasonable basis after proper scientific
study but dehors those scientific study the State Government brought this amendment removing the age limit
for slaughtering of the bulls and bullocks and totally prohibited slaughtering of the same. This decision of the
State Government does not advance the public interest.
172.Another significant disclosure in both these affidavits is that slaughtering of these bulls and bullocks has
considerably reduced in the year 1997-98 to 2004-2005. The slaughtering of bulls and bullocks beyond the age
of 16 years was only 2.48 % of the total animals of different categories slain in the State prior to this period.
This percentage has gone down to the level of only 1.10 % during the last 8 years i.e. 1997-98 to 2004-2005.
These details reveal that in fact the slaughtering of these bulls and bullocks beyond the age of 16 years
constituted only 1.10% of the total slaughtering takes place in the State. If this is the ratio of the slaughtering, I
fail to understand how this legislation can advance the cause of the public at the expense of the denial of
Fundamental Right of this class of persons (butchers). In view of facts disclosed in the affidavit filed by the
two senior officers of the State of Gujarat speaks volume that for small percentage of 1.10% can the
fundamental right of this class of persons should be sacrificed and earlier decisions be reversed. I fail to
understand how it would advance the cause of the public at large so as to deprive the handful of persons of
their rights to profession. On the basis of this material, I am of the opinion that the earlier decisions of this
Court have not become irrelevant in the present context. The tall claim made by State looks attractive in a print
but in reality it is not so. I fail to understand that how can an animal whose average age is said to be 12-16
years can at the age of 16 years reproduce the cow-dung or urine which can off set the requirement of the
chemical fertilizer. In this connection reference be made to text book where average age is 12 years. It is a
common experience that the use of the chemical fertilizer has increased all over the country and the first
priority of the farmer is the chemical fertilizer, as a result of which the production in food grain in the country
has gone up and today the country has become surplus. This is because of the use of the chemical fertilizer
only and not the organic manure. It was observed in Mohd. Hanif's case that India has a largest cattle head but
a lower in the production of milk. It is only because of the scientific methods employed by veterinarian which
has increased the milk production in the country not because of the poor breed of the bulls. It is common
experience that aged bulls are not used for purposes of covering the cows for better quality of the breed. Only
well-built young bulls are used for the purpose of improving the breeding and not the aged bulls. If the aged
and weak bulls are allowed for mating purposes, the offspring will be of poor health and that will not be in
the interest of the country. So far as the use of biogas is concerned, that has also been substantially reduced
after the advent of L.P.G. AIR 1958 SC 731
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173. Therefore in my opinion, in the background of this scenario, I do not think that it will be proper to reverse
the view which has been held good for a long spell of time from 1958 to 1996. There is no material change in
ground realities warranting reversal of earlier decisions.
174.One of the other reasons which has been advanced for reversal of earlier judgments was that at the time
when these earlier judgments were delivered Articles 48(A) and 51(A) were not there and impact of both these
Articles were not considered. It is true that Article 48(A) which was introduced by the 42nd Constitutional
Amendment in 1976 with effect from 3-1-1977 and Article 51(A) i.e. fundamental duties were also brought
about by the same amendment. Though, these Articles were not in existence at that time but the effect of those
Articles were indirectly considered in the Mohd. Hanif Qureshi's case in 1958. It was mentioned that cow dung
can be used for the purposes of manure as well as for the purpose of fuel that will be more echo-friendly.
Similarly, in Mohd. Hanif Qureshi's case their Lordships have quoted from the scriptures to show that we
should have a proper consideration for our cattle wealth and in that context their Lordships quoted in para 22
which reads as under:
"22. The avowed object of each of the impugned Acts is to ensure the preservation, protection, and
improvement of the cow and her progeny. This solicitude arises out of the appreciation of the usefulness of
cattle in a predominantly agricultural society. Early Aryans recognized its importance as one of the most
indispensable adjuncts of agriculture. It would appear that in Vedic times animal flesh formed the staple food
of the people. This is attributable to the fact that the climate in that distant past was extremely cold and the
Vedic Aryans had been a pastoral people before they settled down as agriculturists. In Rg. Vedic times goats,
sheep, cows, buffaloes and even horses were slaughtered for food and for religious sacrifice and their flesh
used to be offered to the Gods. Agni is called the "eater of ox or cow" in Rg. Veda (VIII,43,11). The slaying of
a great ox (Mahoksa) or a "great Goat" (Mahaja) for the entertainment of a distinguished guest has been
enjoined in the Satapatha Brahmana (III.4. 1-2). Yagnavalkya also expresses a similar view (Vaj.1. 109). An
interesting account of those early days will be found in Rg. Vedic Culture by Dr. A.C. Das, Chapter 5, pages
203-5 and in the History of Dharamasastras (Vol. II, Part II) by P.V. Kane at pages 772-773. Though the
custom of slaughtering of cows and bulls prevailed during the vedic period, nevertheless, even in the Rg.
Vedic times there seems to have grown up a revulsion of feeling against the custom. The cow gradually came
to acquire a special sanctity and was called "Aghnya" (not to be slain). There was a school of thinkers amongst
the Risis, who set their face against the custom of killing such useful animals as the cow and the bull. High
praise was bestowed on the cow as will appear from the following verses from Rg. Veda, Book VI, Hymn
XXVIII (Cows) attributed to the authorship of Sage Bhardavaja :
"1 . The kine have come and brought good fortune; let them rest in the cow-pen and be happy near us.
Here let them stay prolific, many coloured, and yield through many morns their milk for Indra.
6. O Cows, ye fatten e'n the worn and wasted, and make the unlovely beautiful to look on.
Prosper my house, ye with auspicious voices, your power is glorified in our assemblies.
7. Crop goodly pasturages and be prolific; drink pure sweet water at good drinking places.
Never be thief or sinful man your master, and may the dart of Rudra still avoid you."
(Translation by Ralph Griffith). Verse 29 of hymn 1 in Book X of Atharva Veda forbids cow slaughter in the
following words :
"29. The slaughter of an innocent, O Kritya, is an awful deed, Slay not cow, horse, or man of ours."
Hyman 10 in the same book is a rapturous glorification of the cow:
"30. The cow is Heaven, the cow is Eath, the cow is Vishnu, Lord of life.
The Sadhyas and the Vasus have drunk the outpourings of the cow.
34. Both Gods and mortal men depend for life and being on the cow.
She hath become this universe; all that the sun surveys is she."
P.V. Kane argues that in the times of the Rg.Veda only barren cows, if at all, were killed for sacrifice or meat
and cows yielding milk were held to be not fit for being killed. It is only in this way, according to him that one
can explain and reconcile the apparent conflict between the custom of killing cows for food and the high praise
bestowed on the cow in Rg.Vedic times. It would appear that the protest raised against the slaughter of cows
greatly increased in volume till the custom was totally abolished in a later age. The change of climate perhaps
also make the use of beef as food unnecessary and even injurious to health. Gradually cows became indicative
of the wealth of the owner. The Neolithic Aryans not having been acquainted with metals, there were no coins
in current use in the earlier stages of their civilization, but as they were eminently a pastoral people almost
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every family possessed a sufficient number of cattle and some of them exchanged them for the necessaries of
their life. The value of cattle (Pasu) was, therefore, very great with the early Rg.Vedic Aryans. The ancient
Romans also used the word pecus or pecu (pasu) in the sense of wealth or money. The English words,
"pecuniary" and "impecunious", are derived from the Latin root pecus or pecu, originally meaning cattle. The
possession of cattle in those days denoted wealth and a man was considered rich or poor according to the large
or small number of cattle that he owned. In the Ramayana king Janaka's wealth was described by reference to
the large number of herds that he owned. It appears that the cow was gradually raised to the status of divinity.
Kautilya's Arthasastra has a special chapter (Ch.XXIX) dealing with the "superintendent of cows" and the
duties of the owner of cows are also referred to in Ch.XI of Hindu Law in its sources by Ganga Nath Jha.
There can be no gainsaying the fact that the Hindus in general hold the cow in great reverence and the idea of
the slaughter of cows for food is repugnant to their notions and this sentiment has in the past even led to
communal riots. It is also a fact that after the recent partition of the country this agitation against the slaughter
of cows has been further intensified. While we agree that the constitutional question before us cannot be
decided on grounds of mere sentiment, however passionate it may be, we, nevertheless, think that it has to be
taken into consideration, though only as one of many elements, in arriving at a judicial verdict as to the
reasonableness of the restrictions."
175. Therefore it cannot be said that the Judges were not conscious about the usefulness and the sanctity with
which the entire cow and its progeny has been held in our country. Though Articles 48(A) and 51(A) were not
there, but their Lordships were indirectly conscious of the implication. Articles 48(A) and 51(A) do not
substantially change the ground realities which can persuade to change the views which have been held from
1958 to 1996. Reference was also made that for protection of top soil, the cow dung will be useful. No doubt
the utility of the cow dung for protection of the top soil is necessary but one has to be pragmatic in its approach
that whether the small yield of the cow dung and urine from aged bulls and bullocks can substantially change
the top soil. In my opinion this argument was advanced only for the sake of argument but does not advance the
case of the petitioners/appellants to reverse the decision of the earlier Benches which had stood the test of time.
181.Likewise, the Hon'ble Chief Justice has dealt in detail the relation of Fundamental Rights with Directive
Principles. His Lordship has very exhaustively dealt with all the cases bearing on the subject prior and after
decision in Keshwanand Bharti's case. The court should guard zealously Fundamental Rights guaranteed to the
citizens of the society, but at the same time strike a balance between the Fundamental Rights and the larger
interests of the society. But when such right clashes with the larger interest of the country it must yield to the
latter. Therefore, wherever any enactment is made for advancement of Directive Principles and it runs counter
to the Fundamental Rights an attempt should be made to harmonise the same if it promotes larger public
interest.
182. Therefore, as a result of above discussion, I am of the view that the view taken by the Division Bench of
the Gujarat High Court is correct and there is no justification for reversing the view taken by the earlier
Constitution Bench decision of this Court.
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P. A. Inamdar v. State of Maharashtra
AIR 2005 SC 3226
Coram : R. C. Lahoti, C.J.I., Y. K. Sabharwal, D. M. Dharmadhikari, Arun Kumar, G. P. Mathur, Tarun
Chatterjee & P. K. Balasubramanyan, Jj.
R. C. LAHOTI, C.J.I.-2.A Coram of 11 Judges, not a common feature in the Supreme Court of India, sat to
hear and decide T.M.A.Pai Foundation v. State of Karnataka (2002) 8 SCC 481 (hereinafter 'Pai Foundation',
for short). It was expected that the authoritative pronouncement by a Bench of such strength on the issues
arising before it would draw a final curtain on those controversies. The subsequent events tell a different story.
A learned academician observes that the 11-Judge Bench decision in Pai Foundation is a partial response to
some of the challenges posed by the impact of Liberalisation, Privatisation and Globalisation (LPG); but the
question whether that is a satisfactory response, is indeed debatable. It was further pointed out that 'the
decision raises more questions than it has answered' (see : Annual Survey of Indian Law, 2002 at p.251, 254).
The Survey goes on to observe "the principles laid down by the majority in Pai Foundation are so broadly
formulated that they provide sufficient leeway to subsequent Courts in applying those principles while the lack
of clarity in the judgment allows judicial creativity" (ibid at p.256).
3.The prophecy has come true and while the ink on the opinions in Pai Foundation was yet to dry, the High
Courts were flooded with writ petitions, calling for settlements of several issues which were not yet resolved or
which propped on floor, post Pai Foundation. A number of Special Leave Petitions against interim orders
passed by High Courts and a few writ petitions came to be filed directly in this Court. A Constitution Bench
sat to interpret the 11-Judge Bench decision in Pai Foundation which it did vide its judgment dated 14.8.2003
(reported as - Islamic Academy of Education and Anr. v. State of Karnataka and Ors., (2003) 6 SCC 697;
"Islamic Academy" for short). The 11 learned Judges constituting the Bench in Pai Foundation delivered five
opinions. The majority opinion on behalf of 6 Judges was delivered by B.N. Kirpal, CJ. Khare, J (as His
Lordship then was) delivered a separate but concurring opinion, supporting the majority. Quadri, J, Ruma Pal,
J and Variava, J (for himself and Bhan, J) delivered three separate opinions partly dissenting from the majority.
Islamic Academy too handed over two opinions. The majority opinion for 4 learned Judges has been delivered
by V.N. Khare, CJ. S.B. Sinha, J, has delivered a separate opinion.
BACKDROP
6. Education used to be charity or philanthropy in good old times. Gradually it became an 'occupation'. Some
of the Judicial dicta go on to hold it as an 'industry'. Whether, to receive education, is a fundamental right or
not has been debated for quite some time. But it is settled that establishing and administering of an educational
institution for imparting knowledge to the students is an occupation, protected by Article 19(1)(g) and
additionally by Article 26(a), even if there is no element of profit generation. As of now, imparting education
has come to be a means of livelihood for some professionals and a mission in life for some altruists.
7.Education has since long been a matter of litigation. Law reports are replete with rulings touching and
centering around education in its several aspects. Until Pai Foundation, there were four oft quoted leading
cases holding the field of education. They were Unni Krishnan v. State of Andhra Pradesh (1993) 1 SCC 645,
St. Stephen's College v. University of Delhi (1992)1 SCC 558, Ahmedabad St. Xavier's College Society v.
State of Gujarat (1974)1 SCC 717 and In Re: Kerala Education Bill, 1957, (1958) SCR 995. For convenience
sake, these cases will be referred to as Unni Krishnan, St. Stephen's, St. Xavier's and Kerala Education Bill
respectively. All these cases amongst others came up for the consideration of this Court in Pai Foundation.
8.Correctness of the decision in St. Stephen's was doubted during the course of hearing of Writ Petition No.
350 of 1993 filed by Islamic Academy. As St. Stephen's is a 1992 pronouncement of 5-Judge Bench,
the matter was directed to be placed before 7-Judge Bench.
9. An event of constitutional significance which had already happened, was taken note of by the Constitution
Bench. "Education" was a State Subject in view of the following Entry 11 placed in List II - State List :-
"11. Education including universities, subject to the provisions of entries 63, 64, 65 and 66 of List I and entry
25 of List III."
10. By the Constitution (42nd Amendment) Act 1976, the abovesaid Entry was directed to be deleted and
instead Entry 25 in List III - Concurrent List, was directed to be suitably amended so as to read as under :-
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"25. Education, including technical education, medical education and universities, subject to the provisions of
Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour."
11.The 7-Judge Bench felt that the matter called for hearing by a 11-Judge Bench. The 11-Judge Bench felt
that it was not bound by the ratio propounded in Kerala Education Bill and St. Xavier's and was free to hear the
case in wider perspective so as to discern the true scope and interpretation of Article 30(1) of the Constitution
and make an authoritative pronouncement.Eleven Questions and Five Heads of Issues in Pai Foundation
12.In Pai Foundation, 11 questions were framed for being answered. Detailed submissions were made
centering around the 11 questions. The Court dealt with the questions by classifying the discussion under the
following five heads:
1. Is there a fundamental right to set up educational institutions and if so, under which provision?
2. Does Unni Krishnan require reconsideration?
3. In case of private institutions, can there be government regulations and, if so, to what extent?
4. In order to determine the existence of a religious or linguistic minority in relation to Article 30, what is to be
the unit - the State or the country as a whole?
5. To what extent can the rights of aided private minority institutions to administer be regulated?
13. Having dealt with each of the abovesaid heads, the Court through the majority opinion expressed by B.N.
Kirpal, CJ, recorded answers to the 11 questions as they were framed and posed for resolution. The questions
and the answers as given by the majority are set out hereunder :
"Q.1. What is the meaning and content of the expression "minorities" in Article 30 of the Constitution of
India?
A. Linguistic and religious minorities are covered by the expression "minority" under Article 30 of the
Constitution. Since reorganization of the States in India has been on linguistic lines, therefore, for the purpose
of determining the minority, the unit will be the State and not the whole of India. Thus, religious and linguistic
minorities, who have been put on a par in Article 30, have to be considered Statewise.
Q.2. What is meant by the expression "religion" in Article 30(1)? Can the followers of a sect or denomination
of a particular religion claim protection under Article 30(1) on the basis that they constitute a minority in the
State, even though the followers of that religion are in majority in that State?
A. This question need not be answered by this Bench; it will be dealt with by a regular Bench.
Q.3 (a) What are the indicia for treating an educational institution as a minority educational institution? Would
an institution be regarded as a minority educational institution because it was established by a person(s)
belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious
or linguistic minority?
Q.3 (b) To what extent can professional education be treated as a matter coming under minorities' rights under
Article 30?
A. Article 30 (1) gives religious and linguistic minorities the right to establish and administer educational
institutions of their choice. The use of the words "of their choice" indicates that even professional educational
institutions would be covered by Article 30.
Q.4. Whether the admission of students to minority educational institution, whether aided or unaided, can be
regulated by the State Government or by the university to which the institution is affiliated?
A. Admission of students to unaided minority educational institutions viz. schools and undergraduate colleges
where the scope for merit-based selection is practically nil, cannot be regulated by the State or university
concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of
academic standards.
The right to admit students being an essential facet of the right to administer educational institutions of their
choice, as contemplated under Article 30 of the Constitution, the State Government or the university may not
be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a
transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there
could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is
more so in the matter of admissions to professional institutions.
A minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided
minority educational institution, therefore, would be entitled to have the right of admission of students
belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-
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minority students, so that the rights under Article 30(1) are not substantially impaired and further the citizens'
rights under Article 29(2) are not infringed. What would be a reasonable extent, would vary from the types of
institution, the courses of education for which admission is being sought and other factors like educational
needs. The State Government concerned has to notify the percentage of the non-minority students to be
admitted in the light of the above observations. Observance of inter se merit amongst the applicants belonging
to the minority group could be ensured. In the case of aided professional institutions, it can also be stipulated
that passing of the common entrance test held by the State agency is necessary to seek admission. As regards
non-minority students who are eligible to seek admission for the remaining seats, admission should normally
be on the basis of the common entrance test held by the State agency followed by counselling wherever it
exists.
Q.5 (a) Whether the minorities' rights to establish and administer educational institutions of their choice will
include the procedure and method of admission and selection of students?
A. A minority institution may have its own procedure and method of admission as well as selection of
students, but such a procedure must be fair and transparent, and the selection of students in professional and
higher education colleges should be on the basis of merit. The procedure adopted or selection made should not
be tantamount to mal-administration. Even an unaided minority institution ought not to ignore the merit of the
students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event,
the institution will fail to achieve excellence.
Q.5 (b) Whether the minority institutions' right of admission of students and to lay down procedure and
method of admission, if any, would be affected in any way by the receipt of State aid?
A. While giving aid to professional institutions, it would be permissible for the authority giving aid to
prescribe bye - rules or regulations, the conditions on the basis of which admission will be granted to different
aided colleges by virtue of merit, coupled with the reservation policy of the State qua non-minority students.
The merit may be determined either through a common entrance test conducted by the university or the
Government concerned followed by counselling, or on the basis of an entrance test conducted by the individual
institutions - the method to be followed is for the university or the Government to decide. The authority may
also devise other means to ensure that admission is granted to an aided professional institution on the basis of
merit. In the case of such institutions, it will be permissible for the Government or the university to provide
that consideration should be shown to the weaker sections of the society.
Q.5 (c) Whether the statutory provisions which regulate the facets of administration like control over
educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal
thereof, and appointment of staff, employees, teachers and principals including their service conditions and
regulation of fees, etc. would interfere with the right of administration of minorities?
A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an
unaided minority educational institution, the regulatory measure of control should be minimal and the
conditions of recognition as well as the conditions of affiliation to a university or board have to be complied
with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching,
and administrative control over them, the management should have the freedom and there should not be any
external controlling agency. However, a rational procedure for the selection of teaching staff and for taking
disciplinary action has to be evolved by the management itself. Regulations can be framed governing service
conditions for teaching and other staff for whom aid is provided by the State, without interfering with the
overall administrative control of the management over the staff. Fees to be charged by unaided institutions
cannot be regulated but no institution should charge capitation fee.
Q.6 (a) Where can a minority institution be operationally located? Where a religious or linguistic minority in
State A establishes an educational institution in the said State, can such educational institution grant
preferential admission/reservations and other benefits to members of the religious/linguistic group from other
States where they are non-minorities?
Q. 6. (b) Whether it would be correct to say that only the members of that minority residing in State A will be
treated as the members of the minority vis-a-vis such institution?
Q.7. Whether the member of a linguistic non-minority in one State can establish a trust/society in another State
and claim minority status in that State?
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Q.8. Whether the ratio laid down by this Court in St. Stephen's case (St. Stephen's College v. University of
Delhi, (1992) 1 SCC 558) is correct? If no, what order?
A. The basic ratio laid down by this Court in St. Stephen's College case (supra) is correct, as indicated in this
judgment. However, rigid percentage cannot be stipulated. It has to be left to authorities to prescribe a
reasonable percentage having regard to the type of institution, population and educational needs of minorities.
Q. 9. Whether the decision of this Court in Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645 (except
where it holds that primary education is a fundamental right) and the scheme framed thereunder require
reconsideration/modification and if yes, what?
A. The scheme framed by this Court in Unni Krishnan case (supra) and the direction to impose the same,
except where it holds that primary education is a fundamental right, is unconstitutional. However, the principle
that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of expansion
and augmentation of facilities does not, however, amount to profiteering.
Q. 10. Whether the non-minorities have the right to establish and administer educational institution under
Articles 21 and 29(1) read with Articles 14 and 15(1), in the same manner and to the same extent as minority
institutions?
Q. 11. What is the meaning of the expressions "education" and "educational institutions" in various provisions
of the Constitution? Is the right to establish and administer educational institutions guaranteed under the
Constitution?
A. The expression "education" in the articles of the Constitution means and includes education at all levels
from the primary school level up to the postgraduate level. It includes professional education. The expression
"educational institutions" means institutions that impart education, where "education" is as understood
hereinabove.
The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens
under Articles 19(1)(g) and 26, and to minorities specifically under Article 30. All citizens have a right to
establish and administer educational institutions under Articles 19(1)(g) and 26, but this right is subject to the
provisions of Articles 19(6) and 26(a). However, minority institutions will have a right to admit students
belonging to the minority group, in the manner as discussed in this judgment."
14.The majority led by Kirpal, CJ, in Pai Foundation did say that the expression "minorities" in Article 30 of
the Constitution of India, whether linguistic or religious, has to be determined by treating the State and not the
whole of India as unit. Questions such as: (i) what is religion, (ii) what is the indicia for determining if an
educational institution is a minority institution, (iii) whether a minority institution can operate extra-
territorially extending its activities into such States where the minority establishing and administering the
institution does not enjoy minority status, (iv) the content and contour of minority by reference to territories,
were not answered in Pai Foundation and were left to be determined by the regular Benches in individual cases
to be heard after the decision in Pai Foundation. We also do not propose to involve ourselves by dealing with
these questions except to the extent it may become necessary to do so for the purpose of answering the
questions posed before us. 2002 AIR SCW 4957 : AIR 2003 SC 355
Pai Foundation explained in Islamic Academy
15.Pai Foundation Judgment was delivered on 31-10-2002. The Court formulated four questions as arising for
consideration in view of the rival submissions made before the Court in Islamic Academy :
"(1) whether the educational institutions are entitled to fix their own fee structure;
(2) whether minority and non-minority educational institutions stand on the same footing and have the same
rights;
(3) whether private unaided professional colleges are entitled to fill in their seats, to the extent of 100% , and if
not, to what extent; and
(4) whether private unaided professional colleges are entitled to admit students by evolving their own method
of admission."
16. We could attempt at formulating the gist of the answers given by the Constitution Bench of the Court as
under :
(1) Each minority institution is entitled to have its own fee structure subject to the condition that there can be
no profiteering and capitation fees cannot be charged. A provision for reasonable surplus can be made to
enable future expansion. The relevant factors which would go into determining the reasonability of a fee
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structure, in the opinion of majority, are : (i) the infrastructure and facilities available, (ii) the investments
made, (iii) salaries paid to the teachers and staff, (iv) future plans for expansion and betterment of the
institution etc.
S.B. Sinha, J, defined what is 'capitation' and 'profiteering' and also said that reasonable surplus should
ordinarily vary from 6 per cent to 15 per cent for utilization in expansion of the system and development of
education.
(2) In the opinion of the majority, minority institutions stand on a better footing than non-minority institutions.
Minority educational institutions have a guarantee or assurance to establish and administer educational
institutions of their choice. State Legislation, primary or delegated, cannot favour non- minority institution
over minority institution. The difference arises because of Article 30, the protection whereunder is available to
minority educational institutions only. The majority opinion called it a "special right" given under Article 30.
In the opinion of S. B. Sinha, J, minority educational institutions do not have a higher right in terms of Article
30(1); the rights of minorities and non-minorities are equal. What is conferred by Article 30(1) of the
Constitution is "certain additional protection" with the object of bringing the minorities on the same platform
as that of non-minorities, so that the minorities are protected by establishing and administering educational
institutions for the benefit of their own community, whether based on religion or language.
It is clear that as between minority and non-minority educational institutions, the distinction made by Article
30(1) in the fundamental rights conferred by Article 19(1)(g) has been termed by the majority as "special right"
while in the opinion of S. B.Sinha, J, it is not a right but an "additional protection". What difference it makes,
we shall see a little later.
(3)and(4). Questions 3 and 4 have been taken up for consideration together. A reading of the opinion recorded
in Islamic Academy shows that paras 58, 59 and 68 of Pai Foundation were considered and sought to be
explained. It was not very clear as to what types of institutions were being dealt with in the above referred to
paragraphs by the majority in Pai Foundation. Certainly, distinction was being sought to be drawn between
professional colleges and other educational institutions (both minority and unaided). Reference is also found to
have been made to minority and non-minority institutions. At some places, observations have been made
regarding institutions divided into groups only by reference to aid, that is whether they are aided or unaided
educational institutions without regard to the fact whether they were minority or non-minority institutions. It
appears that there are a few passages/sentences wherein it is not clear which type of institutions the majority
opinion in Pai Foundation was referring to thereat. However, the majority opinion in Islamic Academy has by
explaining Pai Foundation held as under:
(1) In professional institutions, as they are unaided, there will be full autonomy in their administration, but the
principle of merit cannot be sacrificed, as excellence in profession is in national interest.
(2) Without interfering with the autonomy of unaided institutions, the object of merit- based admissions can be
secured by insisting on it as a condition to the grant of recognition and subject to the recognition of merit, the
management can be given certain discretion in admitting students.
(3) The management can have quota for admitting students at its discretion but subject to satisfying the test of
merit- based admissions, which can be achieved by allowing management to pick up students of their own
choice from out of those who have passed the common entrance test conducted by a centralized mechanism.
Such common entrance test can be conducted by the State or by an association of similarly placed institutions
in the State.
(4) The State can provide for reservation in favour of financially or socially backward sections of the society.
(5) The prescription for percentage of seats, that is allotment of different quotas such as management seats,
State's quota, appropriated by the State for allotment to reserved categories etc., has to be done by the State in
accordance with the "local needs" and the interests/needs of that minority community in the State, both
deserving paramount consideration. The exact concept of "local needs" is not clarified. The plea that each
minority unaided educational institution can hold its own admission test was expressly overruled. The
principal consideration which prevailed with the majority in Islamic Academy for holding in favour of
common entrance test was to avoid great hardship and incurring of huge cost by the hapless students in
appearing for individual tests of various colleges.
17. The majority opinion carved out an exception in favour of those minority educational professional
institutions which were established and were having their own admission procedure for at least 25 years from
the requirement of joining any common entrance test, and such institutions were permitted to have their own
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admission procedure. The State Governments were directed to appoint a permanent Committee to ensure that
the tests conducted by the association of colleges is fair and transparent.
18. S. B. Sinha, J, in his separate opinion, agreed with the majority that the merit and merit alone should be the
basis of selection for the candidates. He also agreed that one single standard for all the institutions was
necessary to achieve the object of selection being made on merit by maintaining uniformity of standard, which
could not be left to any individual institution in the matter of professional courses of study. However, the merit
criterion in the opinion of Sinha, J, was required to be associated with the level of education. To quote his
words : "the merit criterion would have to be judged like a pyramid. At the kindergarten, primary, secondary
levels, minorities may have 100% quota. At this level the merit may not have much relevance at all but at the
level of higher education and in particular, professional education and postgraduate-level education, merit
indisputably should be a relevant criterion. At the postgraduation level, where there may be a few seats, the
minority institutions may not have much say in the matter. Services of doctors, engineers and other
professionals coming out from the institutions of professional excellence must be made available to the entire
country and not to any particular class or group of people. All citizens including the minorities have also a
fundamental duty in this behalf."
Issues herein
25. Vide para 20, the Constitution Bench has made it clear that the setting up of two sets of Committees in the
States has been directed in exercise of the power conferred on this Court by Article 142 of the Constitution and
such Committees "shall remain in force till appropriate legislation is enacted by Parliament". Although the
term 'permanent' has been used, but it appears to us that these Committees are intended to be transitory in
nature.
Reference for constituting a Bench of a coram higher than Constitution Bench
26.The issues arising for decision before us are only three:
(i) the fixation of 'quota' of admissions/students in respect of unaided professional institutions;
(ii) the holding of examinations for admissions to such colleges, that is, who will hold the entrance tests; and
(iii) the fee structure.
The questions spelled out by Orders of Reference
27. In the light of the two orders of reference, referred to hereinabove, we propose to confine our discussion to
the questions set out hereunder which, according to us, arise for decision:-
(1) To what extent the State can regulate the admissions made by unaided (minority or non-minority)
educational institutions? Can the State enforce its policy of reservation and/or appropriate to itself any quota in
admissions to such institutions?
(2) Whether unaided (minority and non-minority) educational institutions are free to devise their own
admission procedure or whether direction made in Islamic Academy for compulsorily holding entrance test by
the State or association of institutions and to choose therefrom the students entitled to admission in such
institutions, can be sustained in light of the law laid down in Pai Foundation?
(3) Whether Islamic Academy could have issued guidelines in the matter of regulating the fee payable by the
students to the educational institutions?
(4) Can the admission procedure and fee structure be regulated or taken over by the Committees ordered to be
constituted by Islamic Academy?
36. It is argued that State necessity cannot be a ground to curtail the right of a citizen conferred under Article
19(1)(g) of the Constitution. The Constitution casts a duty upon the States to provide educational facilities. The
State is obliged to carry out this duty from revenue raised by the State. The shortfall in the efforts of the State
is met by the private enterprise, that however, does not entitle the State to nationalize, whether in the whole or
in part, such private enterprise. This, it is submitted, is the true ratio of the Pai Foundation in so far as Article
19 of the Constitution is concerned.
37.It is next argued that as held in St. Xavier's and reaffirmed in Pai Foundation the right to establish and
administer educational institutions by minorities under Article 30 of the Constitution is not an absolute right
meaning thereby that it is subject to such regulations that satisfy a dual test that is : the test of 'reasonableness'
and 'any regulation regulating the educational character of the institutions so that it is conducive to making the
institution an effective vehicle of education for the minority community and for the others who resort to it'.
Any regulation which impinges upon the minority character of the institutions is constitutionally
impermissible. It is submitted that between the right of minorities to establish and administer the educational
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institutions and the right of the State to regulate educational activities for maintaining standard of education, a
balance has to be struck. The regulation in relation to recognition/affiliation operates in the area of standard of
excellence and are unquestionable if they do not seriously curtail or destroy the right of minorities to
administer their educational institutions. Only in maintaining standards of education, State can insist by
framing regulations that they be followed but in all other areas the rights of minority must be protected. It is
conceded that maladministration is not protected by Article 30 of the Constitution. Similarly, secular laws with
secular object that do not directly impinge upon the right of minority institutions and operate generally upon
all citizens do not impinge upon Article 30 of the Constitution. This has been the constitutional interpretation
of Article 30 not because Article 30 admits no exception like Article 19(6) but because the right conferred
under Article 30 does not extend to these areas. The laws that serve national interest do not impinge upon
Article 30.
44.Learned senior counsel Shri R.F. Nariman in supporting the argument advanced against the directions in
Islamic Academy submitted that any interference with the autonomy of the institution, other than to prevent
maladministration, would not be saved by Article 19(6) of the Constitution. The concept of administration
includes choice in admitting students and fixing a reasonable fee structure. In the matter of admission, if
objective criteria are adopted so as to reflect the merit, it would be unexceptionable. So far as fee structure is
concerned, no institution can be allowed to charge capitation fees which only means something taken over and
above what the institution needs by way of revenue and capital expenditure plus a reasonable surplus. Once
Unni Krishnan was overruled, private education cannot be allowed to be nationalized. It is submitted that it
may be possible for the State to scrutinize the expenditure of revenue and capital expenditure of an aided and
unaided institution to ensure good administration but the State cannot devise its own admission procedure and
determine in advance a fee structure for the unaided private institutions. On the question of deducing ratio in
Pai Foundation, learned counsel referred to Halsbury Laws of England, Vol. 37 page 378 in which the meaning
of ratio decidendi has been explained. It is submitted that it is only the essence of the reason or principle upon
which the question before a court has been decided which is alone binding as a precedent. It is dangerous to
take one or two observations out of a long judgment and to treat them as if they give the ratio decidendi of the
case.
50. In short, the submission made by Sr. Counsel Dr. Rajiv Dhawan is that there is nothing in Pai Foundation,
which permits fixation of quotas for government seats, fixation of fee structure by the State, imposition of its
reservation policy and imposition of candidates on the basis of common entrance test conducted by the State.
In Pai Foundation, the State can have some controlling influence on unaided institutions for the purpose of
ensuring transparency in admissions and checking the collection of capitation fee. In Pai Foundation, no pre-
emptive action by setting up permanent committees by the State was envisaged or even indirectly approved.
51. The decision in Islamic Academy, it is submitted, is contrary to the decision by the larger Bench in Pai
Foundation, and deserves therefore to be so declared by this Bench.
52.Learned senior counsel Shri U.U. Lalit appears for the sole Dental College established by Muslims in the
State of Maharashtra. Apart from supporting the contention advanced by other counsel against the scheme of
committees evolved in Islamic Academy, learned counsel submitted that the judgment of the Bombay High
Court against which they have filed an appeal before this Court has resulted in a situation where affluent
students are getting admission at lesser fee and poorer students are kept out of college. It was submitted that
the petitioner institute being the sole institute set up for Muslim community, their desire to cater to the
educational needs of Muslim students from all over cannot be discouraged. Objecting to the fee structure
prescribed by the committees in Maharashtra, the suggestion made on behalf of the institute is as under:
(a) 25% students will be charged five times of the average fee, which was in vogue before TMA Pai's
judgment.
(b) 50% students will be charged average fee.
(c) Remaining 25% will be charged 1/4th of the average fee.
55. On behalf of the State of Kerala, it is pointed out that only 25% seats in private professional colleges have
been reserved to be filled on the basis of central entrance test and remaining 75% seats are to be filled by the
management. It is submitted that the group of paragraphs starting with 67 and ending with 70 in the majority
opinion in Pai Foundation carries the title "Private Unaided Professional Colleges." This heading covers both
unaided minority and non-minority professional colleges. Since paragraph 68 in the majority opinion in Pai
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Foundation has been differently understood by the High Court of Karnataka and Kerala, an occasion has arisen
to resolve the controversy by a Bench of the present combination of seven judges.
57. The High Court of Kerala by its judgment of 23.08.2003 has fixed rupees 1.50 lacs provisionally per
annum as the fee. The Government has fixed 1.76 lacs. What is being disclosed by Pushpgiri Medical College
itself is that they had collected rupees 4.38 lacs and rupees 22 lacs from different students. The explanation
given is that these collections are for the whole period of five years to prevent the students from leaving the
college mid-way. This explanation on the face of it is disingenuous as rupees 22 lacs was not collected
uniformly from all the students. Despite the students leaving the course mid- way, the seats would still be
filled. It is due to this menace and evil practice of exploiting parents and students that a Committee was
required to be set up for restricting admissions in proportion to the need of the peculiar character of the
institution and to check profiteering.
58. It is submitted that if the scheme as evolved in Islamic Academy of setting up of permanent Committees is
not allowed, education which is already commercialized to some extent would be wholly inaccessible to
students coming from middle classes, lower-middle classes and poor sections of the society. To provide access
to professional education even to weaker sections of the society in fifty per cent quota of seats to be filled by
the government, the reservation policy of the government has been applied. The fifty-fifty per cent quota
between government and management fixed by the government has been changed to twenty five-seventy five
per cent by the court. Similarly, the court has struck down Regulation 11 framed by the State on the ground
that the State cannot foist fee of students on the institution and it would be left to the management to make
provisions for poorer sections of the society through freeships or scholarships.
59.In the abovementioned background, learned counsel Shri Venugopal submits that this Bench is not
considering the correctness of judgment in Islamic Academy. It will not and cannot go into the question of
correctness of judgment in Pai Foundation which is of a larger Bench. This Bench has a limited jurisdiction to
examine whether the 5-Judge Bench decision in Islamic Academy is in any manner inconsistent with 11-Judge
Bench judgment in Pai Foundation. It is submitted that if there are certain inherent inconsistencies between
various paragraphs particularly 59 and 68 of the judgment in Pai Foundation, they have to be resolved and that
was exactly what was done by the five judges in Islamic Academy.
63. It is submitted that regulation of non-minority unaided professional institution is permissible under Article
19(6) of the Constitution to prevent profiteering, levy of capitation fee and selection of non-meritorious
candidates. Such regulation also does not violate right of minority professional institutions under Article 30,
which this Court has repeatedly held, is not an absolute right but is merely a protection extended to minorities
against oppression by the majority.
66. In paragraph 68 of the judgment in Pai Foundation the use of the phrase 'certain percentage based on local
needs' and further phrase 'different percentages can be fixed' for minority unaided and non-minority unaided
professional colleges' clearly convey that quotas can be fixed based on local needs for management and for the
Government. Meritorious students from weaker sections are not to be sidelined from higher and professional
education. It is argued that the phrase 'local need' as used in paragraph 68 in the judgment of Pai Foundation
cannot be read to mean the needs of the institution concerned. So far as the selection based on merit is
concerned, common entrance test has been suggested both for aided and non-aided professional colleges.
When there is no common entrance test, merit becomes the casualty and the rich and the affluent corner the
seats.
67.So far as the right to fix a fee structure for unaided minority or non-minority colleges or institutes is
concerned, the argument that pre-fixation of fee is a serious encroachment on the rights of minority and non-
minority, it is submitted, is not valid as full discretion is given to the management in fixing their fee structure.
However, they would not be allowed to fix such high fee as would deny many meritorious students a chance of
admission only because they come from economically weaker sections. It would be of no consolation to them
to find that after admissions are over and classes have started, the fee has been lowered by the monitoring
committee. If the committee is allowed to scrutinize the justification of fee fixation after the admissions and
the fee is lowered, it would not be possible for the meritorious students to again seek admission. Through the
Committees set up in Islamic Academy, the fee structure would be known before hand and would serve the
interest of the institution as also the students seeking admission. The Committee has to fix fee for each college
depending upon its peculiar conditions and its assets and availability of funds. Coming to the question of cross
subsidy, it is submitted that in Pai Foundation, cross-subsidizing the weaker sections by the more affluent ones
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has not been held to be impermissible. The Bench in Pai Foundation overruled the judgment in Unni Krishnan.
The latter provided for "marginally less merited rural or poor students bearing the burden of rich and urban
students." The learned counsel suggests that solution can be to set apart fifteen per cent of total seats in a local
college to be filled by NRI/ person of independent origin/ foreign students who would volunteer to fill up the
allotted seats on the management quota but on inter se merit. Each NRI student would subsidize two other
students belonging to the economically and socially weaker sections based on an annual income of say less
than rupees 2.5 lacs. This would cater to the financial needs of at least 30 out of 50 students selected on merit
forming part of the Government quota and this would be a constitutionally permissible solution.
79.Learned counsel pressed into service Article 51-A(j) providing for Fundamental Duties in the Constitution.
It is submitted that fundamental duty is enjoined on citizens to so direct their individual and collective
activities that the nation constantly rises to higher levels of endeavour and achievement. This duty implies that
the State on its part is to facilitate discharge of duties by the citizen in relation to the professional education.
The State is bound to ensure admission to colleges that are made purely on relative merit to be objectively
assessed by a responsible agency. The decisions of this court rendered from time to time consistently and
unanimously held that regulation could be made for achieving standards of excellence in education. Reliance is
placed on Dr. Prithvi v. State of MP (1999) 7 SCC 120 at 153 and 155; Professor Yashpal v. State of
Chhattisgarh (2005) 2 SCC 61 at 79 paragraph 90.
90. Education is "-continual growth of personality, steady development of character, and the qualitative
improvement of life. A trained mind has the capacity to draw spiritual nourishment from every experience, be
it defeat or victory, sorrow or joy. Education is training the mind and not stuffing the brain." (See Eternal
Values for A Changing Society, Vol. III Education for Human Excellence, published by Bharatiya Vidya
Bhavan, Bombay, at p. 19)
91. "We want that education by which character is formed, strength of mind is increased, the intellect is
expanded, and by which one can stand on one's own feet." "The end of all education, all training, should be
man-making. The end and aim of all training is to make the man grow. The training by which the current and
expression of will are brought under control and become fruitful is called education." (Swami Vivekanand as
quoted in ibid, at p.20)
92. Education, accepted as a useful activity, whether for charity or for profit, is an occupation. Nevertheless, it
does not cease to be a service to the society. And even though an occupation, it cannot be equated to a trade or
a business.
93. In short, education is national wealth essential for the nation's progress and prosperity.
Articles 19(1)(g), 29(2) and 30(1): inter-relationship between
94. The right to establish an educational institution, for charity or for profit, being an occupation, is protected
by Article 19(1) (g). Notwithstanding the fact that the right of a minority to establish and administer an
educational institution would be protected by Article 19(1)(g) yet the Founding Fathers of the Constitution felt
the need of enacting Article 30. The reasons are too obvious to require elaboration. Article 30(1) is intended to
instill confidence in minorities against any executive or legislative encroachment on their right to establish and
administer educational institution of their choice. Article 30(1) though styled as a right, is more in the nature of
protection for minorities. But for Article 30, an educational institution, even though based on religion or
language, could have been controlled or regulated by law enacted under Clause (6) of Article 19, and so,
Article 30 was enacted as a guarantee to the minorities that so far as the religious or linguistic minorities are
concerned, educational institutions of their choice will enjoy protection from such legislation. However, such
institutions cannot be discriminated against by the State solely on account of their being minority institutions.
The minorities being numerically less qua non-minorities, may not be able to protect their religion or language
and such cultural values and their educational institutions will be protected under Article 30, at the stage of law
making. However, merely because Article 30(1) has been enacted, minority educational institutions do not
become immune from the operation of regulatory measure because the right to administer does not include the
right to mal-administer. To what extent the State regulation can go, is the issue. The real purpose sought to be
achieved by Article 30 is to give minorities some additional protection. Once aided, the autonomy conferred by
the protection of Article 30(1) on the minority educational institution is diluted as provisions of Article 29(2)
will be attracted. Certain conditions in the nature of regulations can legitimately accompany the State aid.
95. As an occupation, right to impart education is a fundamental right under Article 19(1)(g) and, therefore,
subject to control by clause (6) of Article 19. This right is available to all citizens without drawing a distinction
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between minority and non- minority. Such a right is, generally speaking, subject to laws imposing reasonable
restrictions in the interest of the general public. In particular, laws may be enacted on the following subjects:
(i) the professional or technical qualifications necessary for practicing any profession or carrying on any
occupation, trade or business; (ii) the carrying on by the State, or by a corporation owned or controlled by the
State of any trade, business, industry or service whether to the exclusion, complete or partial of citizens or
otherwise. Care is taken of minorities, religious or linguistic, by protecting their right to establish and
administer educational institutions of their choice under Article 30. To some extent, what may be permissible
by way of restriction under Article 19(6) may fall foul of Article 30. This is the additional protection which
Article 30(1) grants to the minorities.
96. The employment of expressions 'right to establish and administer' and 'educational institution of their
choice' in Article 30(1) gives the right a very wide amplitude. Therefore, a minority educational institution has
a right to admit students of its own choice, it can, as a matter of its own freewill, admit students of non-
minority community. However, non-minority students cannot be forced upon it. The only restriction on the
freewill of the minority educational institution admitting students belonging to non-minority community is, as
spelt out by Article 30 itself, that the manner and number of such admissions should not be violative of the
minority character of the institution.
97.Aid and affiliation or recognition, both by State, bring in some amount of regulation as a condition of
receiving grant or recognition. The scope of such regulations, as spelt out by 6-Judge Bench decision in Rev.
Sidhrajbhai case, AIR 1963 SC 540 and 9-Judge Bench case in St. Xavier's must satisfy the following tests: (a)
the regulation is reasonable and rational; (b) it is regulative of the essential character of the institution and is
conducive to making the institution an effective vehicle of education for the minority community or other
persons who resort to it; (c) it is directed towards maintaining excellence of the education and efficiency of
administration so as to prevent it from falling in standards. These tests have met the approval of Pai
Foundation. However, Rev. Sidhrajbhai's case and St. Xavier's go on to say that no regulation can be cast in
'the interest of the nation' if it does not serve the interest of the minority as well. This proposition (except when
it is read in the light of the opinion of Quadri, J.) stands overruled in Pai Foundation where Kirpal, CJ,
speaking for majority has ruled (vide para 107) - "any regulation framed in the national interest must
necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation
must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the
national interest or to prevent the Government from framing regulations in that behalf". (Also see, paras 117 to
123 and para 138 of Pai Foundation where Kirpal, CJ has dealt with St. Xavier's in details). No right can be
absolute. Whether a minority or a non- minority, no community can claim its interest to be above the national
interest.
'Minority' And 'Minority Educational Institutions'
98. The term 'minority' is not defined in the Constitution. Chief Justice Kirpal, speaking for the majority in Pai
Foundation, took clue from the provisions of the State Reorganisation Act and held that in view of India
having been divided into different linguistic States, carved out on the basis of the language of the majority of
persons of that region, it is the State, and not the whole of India, that shall have to be taken as the unit for
determining linguistic minority viz-a-viz Article 30. Inasmuch as Article 30(1) places on par religions and
languages, he held that the minority status, whether by reference to language or by reference to religion, shall
have to be determined by treating the State as unit. The principle would remain the same whether it is a Central
legislation or a State legislation dealing with linguistic or religious minority. Khare, J. (as His Lordship then
was), Quadri, J. and Variava and Bhan, JJ. in their separate concurring opinions agreed with Kirpal, CJ.
According to Khare, J., take the population of any State as a unit, find out its demography and calculate if the
persons speaking a particular language or following a particular religion are less than 50% of the population,
then give them the status of linguistic or religious minority. The population of the entire country is irrelevant
for the purpose of determining such status. Quadri, J. opined that the word 'minority' literally means 'a non-
dominant' group. Ruma Pal, J. defined the word 'minority' to mean 'numerically less'. However, she refused to
take the State as a unit for the purpose of determining minority status as, in her opinion, the question of
minority status must be determined with reference to the country as a whole. She assigned reasons for the
purpose. Needless to say, her opinion is a lone voice. Thus, with the dictum of Pai Foundation, it cannot be
doubted that minority, whether linguistic or religious, is determinable only by reference to the demography of
a State and not by taking into consideration the population of the country as a whole.
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99. Such definition of minority resolves one issue but gives rise to many a questions when it comes to defining
'minority educational institution'. Whether a minority educational institution, though established by a minority,
can cater to the needs of that minority only? Can there be an enquiry to identify the person or persons who
have really established the institution? Can a minority institution provide cross-border or inter-State
educational facilities and yet retain the character of minority educational institution?
100.In Kerala Education Bill, the scope and ambit of right conferred by Article 30(1) came up for
consideration. Article 30(1) does not require that minorities based on religion should establish educational
institutions for teaching religion only or that linguistic minority should establish educational institution for
teaching its language only. The object underlying Article 30(1) is to see the desire of minorities being fulfilled
that their children should be brought up properly and efficiently and acquire eligibility for higher university
education and go out in the world fully equipped with such intellectual attainments as will make them fit for
entering public services, educational institutions imparting higher instructions including general secular
education. Thus, the twin objects sought to be achieved by Article 30(1) in the interest of minorities are: (i) to
enable such minority to conserve its religion and language, and (ii) to give a thorough, good general education
to the children belonging to such minority. So long as the institution retains its minority character by achieving
and continuing to achieve the abovesaid two objectives, the institution would remain a minority institution.
AIR 1958 SC 956
101.The learned Judges in Kerala Education Bill were posed with the issue projected by Article 29(2). What
will happen if the institution was receiving aid out of State funds? The apparent conflict was resolved by the
Judges employing a beautiful expression. They said, Articles 29(2) and 30(1), read together, clearly
contemplate a minority institution with a 'sprinkling of outsiders' admitted in it. By admitting a member of
non-minority into the minority institution, it does not shed its character and cease to be a minority institution.
The learned Judges went on to observe that such 'sprinkling' would enable the distinct language, script and
culture of a minority being propagated amongst non-members of a particular minority community and that
would indeed better serve the object of conserving the language, religion and culture of that minority. AIR
1958 SC 956
102.Chief Justice Hidayatullah, speaking for the Constitution Bench in State of Kerala, Etc. v. Very Rev.
Mother Provincial, Etc., (1970) 2 SCC 417, has not used the expression 'sprinkling' but has explained the
reason why that was necessary. He said - "It matters not if a single philanthropic individual with his own
means, founds the institution or the community at large contributes the funds. The position in law is the same
and the intention in either case must be to found an institution for the benefit of a minority community by a
member of that community. It is equally irrelevant that in addition to the minority community others from
other minority communities or even from the majority community can take advantage of these institutions.
Such other communities bring in income and they do not have to be turned away to enjoy the protection". (para
8)
103.Much of controversy can be avoided if only the nature of the right conferred by Articles 29 and 30 is
clearly understood. The nature and content of these articles stands more than clarified and reconciled inter se
as also with other articles if only we understand that these two articles are intended to confer protection on
minorities rather than a right as such. In St. Stephen's, their Lordships clearly held (vide para 28) that Article
30(1) is "a protective measure only" and further said (vide para 59) that Article 30(1) implied certain
'privilege'. Articles 29 and 30 can be better understood and utilized if read as a protection and/or a privilege of
minority rather than an abstract right.
104. In this background arises the complex question of trans-border operation of Article 30(1). Pai Foundation
has clearly ruled in favour of the State (or a province) being the unit for the purpose of deciding minority. By
this declaration of law, certain consequences follow. First, every community in India becomes a minority
because in one or the other State of the country it will be in minority - linguistic or religious. What would
happen if a minority belonging to a particular State establishes an educational institution in that State and
administers it but for the benefit of members belonging to that minority domiciled in the neighbouring State
where that community is in majority? Would it not be a fraud on the Constitution? In St. Stephen's, their
Lordships had ruled that Article 31 is a protective measure only for the benefit of religious and linguistic
minorities and "no illfit or camouflaged institution should get away with the constitutional protection" (para
28). The question need not detain us for long as it stands answered in no uncertain terms in Pai Foundation.
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Emphasising the need for preserving its minority character so as to enjoy the privilege of protection under
Article 30(1), it is necessary that the objective of establishing the institution was not defeated. "If so, such an
institution is under an obligation to admit the bulk of the students fitting into the description of the minority
community. Therefore, the students of that group residing in the State in which the institution is located have
to be necessarily admitted in a large measure because they constitute the linguistic minority group as far as that
State is concerned. In other words, the predominance of linguistic students hailing from the State in which the
minority educational institution is established should be present. The management bodies of such institutions
cannot resort to the device of admitting the linguistic students of the adjoining State in which they are in a
majority, under the facade of the protection given under Article 30(1)." (para 153). The same principle applies
to religious minority. If any other view was to be taken, the very objective of conferring the preferential right
of admission by harmoniously constructing Articles 30(1) and 29(2), may be distorted.
105.It necessarily follows from the law laid down in Pai Foundation that to establish a minority institution the
institution must primarily cater to the requirements of that minority of that State else its character of minority
institution is lost. However, to borrow the words of Chief Justice S.R. Das (in Kerala Education Bill) a
'sprinkling' of that minority from other State on the same footing as a sprinkling of non-minority students,
would be permissible and would not deprive the institution of its essential character of being a minority
institution determined by reference to that State as a unit.
Minority educational institutions: classifiable in three
106.To establish an educational institution is a Fundamental Right. Several educational institutions have come
up. In Kerala Education Bill, 'minority educational institutions' came to be classified into three categories,
namely, (i) those which do not seek either aid or recognition from the State; (ii) those which want aid; and (iii)
those which want only recognition but not aid. It was held that the first category protected by Article 30(1) can
"exercise that right to their hearts' content" unhampered by restrictions. The second category is most
significant. Most of the educational institutions would fall in that category as no educational institution can, in
modern times, afford to subsist and efficiently function without some State aid. So is with the third category.
An educational institution may survive without aid but would still stand in need of recognition because in the
absence of recognition, education imparted therein may not really serve the purpose as for want of recognition
the students passing out from such educational institutions may not be entitled to admission in other
educational institutions for higher studies and may also not be eligible for securing jobs. Once an educational
institution is granted aid or aspires for recognition, the State may grant aid or recognition accompanied by
certain restrictions or conditions which must be followed as essential to the grant of such aid or recognition.
This Court clarified in Kerala Education Bill that 'the right to establish and administer educational institutions'
conferred by Article 30(1) does not include the right to maladminister, and that is very obvious. Merely
because an educational institution belongs to minority it cannot ask for aid or recognition though running in
unhealthy surroundings, without any competent teachers and which does not maintain even a fair standard of
teaching or which teaches matters subversive to the welfare of the scholars. Therefore, the State may prescribe
reasonable regulations to ensure the excellence of the educational institutions to be granted aid or to be
recognized. To wit, it is open to the State to lay down conditions for recognition such as, an institution must
have a particular amount of funds or properties or number of students or standard of education and so on. The
dividing line is that in the name of laying down conditions for aid or recognition the State cannot directly or
indirectly defeat the very protection conferred by Article 30(1) on the minority to establish and administer
educational institutions. Dealing with the third category of institutions, which seek only recognition but not
aid, their Lordships held that 'the right to establish and administer educational institutions of their choice' must
mean the right to establish real institutions which will effectively serve the needs of the community and
scholars who resort to these educational institutions. The dividing line between how far the regulation would
remain within the constitutional limits and when the regulations would cross the limits and be vulnerable is
fine yet perceptible and has been demonstrated in several judicial pronouncements which can be cited as
illustrations. They have been dealt with meticulous precision coupled with brevity by S. B. Sinha, J. in his
opinion in Islamic Academy. The considerations for granting recognition to a minority educational institution
and casting accompanying regulation would be similar as applicable to a non-minority institution subject to
two overriding considerations: (i) the recognition is not denied solely on the ground of the educational
institution being one belonging to minority, and (ii) the regulation is neither aimed at nor has the effect of
depriving the institution of its minority status.
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107.Article 30(1) speaks of 'educational institutions' generally and so does Article 29(2). These Articles do not
draw any distinction between an educational institution dispensing theological education or professional or
non-professional education. However, the terrain of thought as has developed through successive judicial
pronouncements culminating in Pai Foundation is that looking at the concept of education, in the backdrop of
constitutional provisions, the professional educational institutions constitute a class by themselves as
distinguished from the educational institutions imparting non- professional education. It is not necessary for us
to go deep into this aspect of the issue posed before us inasmuch as Pai Foundation has clarified that merit and
excellence assume special significance in the context of professional studies. Though merit and excellence are
not anathema to non-professional education, yet at that level and due to the nature of education which is more
general, merit and excellence do not stand in need of that degree thereof, as is called for in the context of
professional education.
Difference between professional and non-professional education institutions
108.Dealing with unaided minority educational institutions, Pai Foundation holds that Article 30 does not
come in the way of the State stepping in for the purpose of securing transparency and recognition of merit in
the matter of admissions. Regulatory measures for ensuring educational standards and maintaining excellence
thereof are no anathema to the protection conferred by Article 30(1). However, a distinction is to be drawn
between unaided minority educational institution of the level of schools and undergraduate colleges on one
side and the institutions of higher education, in particular, those imparting professional education on the other
side. In the former, the scope for merit based selection is practically nil and hence may not call for regulation.
But in the case of latter, transparency and merit have to be unavoidably taken care of and cannot be
compromised. There could be regulatory measures for ensuring educational standards and maintaining
excellence thereof. (See para 161, Answer to Q.4, in Pai Foundation). The source of this distinction between
two types of educational institutions referred to hereinabove is to be found in the principle that right to
administer does not include a right to maladminister.
109.S.B. Sinha, J. has, in his separate opinion in Islamic Academy, described (in para 199) the situation as a
pyramid like situation and suggested the right of minority to be read along with fundamental duty. Higher the
level of education, lesser are the seats and higher weighs the consideration for merit. It will, necessarily, call
for more State intervention and lesser say for minority.
110.Educational institutions imparting higher education, i.e. graduate level and above and in particular
specialized education such as technical or professional, constitutes a separate class. While embarking upon
resolving issues of constitutional significance, where the letter of the Constitution is not clear, we have to keep
in view the spirit of the Constitution, as spelt out by its entire scheme. Education aimed at imparting
professional or technical qualifications stand on a different footing from other educational instructions. Apart
from other provisions, Article 19(6) is a clear indicator and so are clauses (h) and (j) of Article 51A. Education
up to undergraduate level aims at imparting knowledge just to enrich mind and shape the personality of a
student. Graduate level study is a doorway to admissions in educational institutions imparting professional or
technical or other higher education and, therefore, at that level, the considerations akin to those relevant for
professional or technical educational institutions step in and become relevant. This is in national interest and
strengthening the national wealth, education included. Education up to undergraduate level on one hand and
education at graduate and post-graduate levels and in professional and technical institutions on the other are to
be treated on different levels inviting not identical considerations, is a proposition not open to any more debate
after Pai Foundation. A number of legislations occupying the field of education whose constitutional validity
has been tested and accepted suggest that while recognition or affiliation may not be a must for education up to
undergraduate level or, even if required, may be granted as a matter of routine, recognition or affiliation is a
must and subject to rigorous scrutiny when it comes to educational institutions awarding degrees, graduate or
post-graduate, post-graduate diplomas and degrees in technical or professional disciplines. Some such
legislations are found referred in paras 81 and 82 of S. B. Sinha, J's opinion in Islamic Academy.
111. Having so stated and clarified these principles which would be germane to answering the four questions
posed before us, now we take up each of the four questions seriatim and answer the same.
112.And yet, before we do so, let us quote and reproduce paragraphs 68, 69 and 70 from Pai Foundation to
enable easy reference thereto as the core of controversy touching the four questions which we are dealing with
seems to have originated therefrom. These paragraphs read as under:
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"68.(I) It would be unfair to apply the same rules and regulations regulating admission to both aided and
unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to
autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It
would, therefore, be permissible for the university or the Government, at the time of granting recognition, to
require a private unaided institution to provide for merit-based selection while, at the same time, giving the
management sufficient discretion in admitting students. This can be done through various methods.
(II) For instance, a certain percentage of the seats can be reserved for admission by the management out of
those students who have passed the common entrance test held by itself or by the State/university and have
applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of
counselling by the State agency. This will incidentally take care of poorer and backward sections of the
society. The prescription of percentage for this purpose has to be done by the Government according to the
local needs and different percentages can be fixed for minority unaided and non-minority unaided and
professional colleges. The same principles may be applied to other non-professional but unaided educational
institutions viz. graduation and postgraduation non-professional colleges or institutes.
69. In such professional unaided institutions, the management will have the right to select teachers as per the
qualifications and eligibility conditions laid down by the State/university subject to adoption of a rational
procedure of selection. A rational fee structure should be adopted by the management, which would not be
entitled to charge a capitation fee. Appropriate machinery can be devised by the State or university to ensure
that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the
furtherance of education is permissible. Conditions granting recognition or affiliation can broadly cover
academic and educational matters including the welfare of students and teachers.
70. It is well established all over the world that those who seek professional education must pay for it. The
number of seats available in Government and Government-aided Colleges is very small, compared to the
number of persons seeking admission to the medical and engineering colleges. All those eligible and deserving
candidates who could not be accommodated in Government Colleges would stand deprived of professional
education. This void in the field of medical and technical education has been filled by institutions that are
established in different places with the aid of donations and the active part taken by public-minded individuals.
The object of establishing an institution has thus been to provide technical or professional education to the
deserving candidates, and is not necessarily a commercial venture. In order that this intention is meaningful,
the institution must be recognized. At the school level, the recognition or affiliation has to be sought from the
educational authority or the body that conducts the school-leaving examination. It is only on the basis of that
examination that a school-leaving certificate is granted, which enables a student to seek admission in further
courses of study after school. A college or a professional educational institution has to get recognition from the
university concerned, which normally requires certain conditions to be fulfilled before recognition. It has been
held that conditions of affiliation or recognition, which pertain to the academic and educational character of the
institution and ensure uniformity, efficiency and excellence in educational courses are valid, and that they do
not violate even the provisions of Article 30 of the Constitution; but conditions that are laid down for granting
recognition should not be such as may lead to Governmental control of the administration of the private
educational institutions".
113.In Islamic Academy the majority has (vide para 12) paraphrased the contents of para 68 by dividing it into
seven parts. S.B. Sinha, J has read the same para 68 by paraphrasing it in five parts (vide para 172 of his
opinion). However, we have reproduced para 68 by dividing it into two parts. A reading of the majority
judgment in Pai Foundation in its entirety supports the conclusion that while the first part of para 68 is law laid
down by the majority, the second part is only by way of illustration, tantamounting to just a suggestion or
observation, as to how the State may devise a possible mechanism so as to take care of poor and backward
sections of the society. The second part of para 68 cannot be read as law laid down by the Bench. It is only an
observation in passing or an illustrative situation which may be reached by consent or agreement or persuasion.
A Comment
114.It was submitted at the Bar that a flourish of language or just a flow of thoughts placed on paper when read
in isolation gives an impression as if such is the law laid down though in reality even the author of the
judgment had not intended to do so. A mere observation or a reasoning leading to formulation of ultimate
opinion on a disputed question of law cannot be read as a ratio of the decision. Such submissions forcefully
advanced at the Bar, have been kept in view by us while reading the several opinions in Pai Foundation and
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Islamic Academy. In Islamic Academy the petitioners-applicants were private unaided institutions (minority
and non-minority both) and the petitioners-applicants before us are also private unaided institutions, non-
minority and minority (religions and linguistic) both. It was submitted that the majority opinion in Islamic
Academy has, while embarking upon clarifying the law laid down in Pai Foundation, not only reiterated some
of the propositions of law laid down in Pai Foundation but has also added something more which was not said
in Pai Foundation and the two have been so intertwined as to become inseparable and that has been the reason
for a spate of litigation post Islamic Academy. S.B. Sinha, J., writing his separate opinion in Islamic Academy,
has not himself chosen to say whether his is a concurring opinion or a dissenting one. However, it was pointed
out that S.B. Sinha, J's opinion is analytical, clear and more in consonance with the majority opinion of Pai
Foundation. It was urged that the task was difficult and unwittingly, for the sake of aiming at brevity, certain
omissions have taken place. Illustratively it was pointed out that vide para 59 of Pai Foundation Kirpal, C.J.,
has said -
"Merit is usually determined, for admission to professional and higher education colleges, by either the marks
that the student obtains at the qualifying examination or school-leaving certificate stage followed by the
interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by
government agencies."
116. It was pointed out that Pai Foundation vide para 59 was just making a note of what is 'prevailing as the
usual systems' for admitting students but Islamic Academy vide para 70 gives an impression that the view
taken in Pai Foundation is to confine to common entrance test conducted by the government agencies as the
only source of admission to professional colleges.
117. While expressing their appreciation of the task performed in Islamic Academy of attempting resolution of
several issues raised post Pai Foundation, the learned counsel addressing us have tried to put across and
demonstrate several such anomalies which Islamic Academy read in juxta position with Pai Foundation has
raised.
118. Having generally dealt with the several legal propositions, relevant for our purpose, now we come to
specifically dealing with the questions before us.
Q.1. Unaided educational institutions; appropriation of quota by State and enforcement of reservation
policy
119. First, we shall deal with minority unaided institutions.
120.We have in the earlier part of this judgment referred to Kerala Education Bill and stated the three
categories of minority educational institutions as classified and dealt with therein. The 7-Judge Bench decision
in Kerala Education Bill still holds the field and has met the approval of 11-Judge Bench in Pai Foundation.
We cull out and state what Pai Foundation has to say about such category of institutions :-
(i) Minority educational institution, unaided and unrecognized Pai Foundation is unanimous on the view that
the right to establish and administer an institution, the phrase as employed in Article 30(1) of the Constitution,
comprises of the following rights: (a) to admit students; (b) to set up a reasonable fee structure; (c) to constitute
a governing body; (d) to appoint staff (teaching and non-teaching); and (e) to take action if there is dereliction
of duty on the part of any of the employees. (para 50)
A minority educational institution may choose not to take any aid from the State and may also not seek any
recognition or affiliation. It may be imparting such instructions and may have students learning such
knowledge that do not stand in need of any recognition. Such institutions would be those where instructions
are imparted for the sake of instructions and learning is only for the sake of learning and acquiring knowledge.
Obviously, such institutions would fall in the category of those who would exercise their right under the
protection and privilege conferred by Article 30(1) "to their hearts content" unhampered by any restrictions
excepting those which are in national interest based on considerations such as public safety, national security
and national integrity or are aimed at preventing exploitation of students or teaching community. Such
institutions cannot indulge in any activity which is violative of any law of the land.
They are free to admit all students of their own minority community if they so choose to do. (para 145, Pai
Foundation)
(ii) Minority unaided educational institutions asking for affiliation or recognition
Affiliation or recognition by the State or the Board or the University competent to do so, cannot be denied
solely on the ground that the institution is a minority educational institution. However, the urge or need for
affiliation or recognition brings in the concept of regulation by way of laying down conditions consistent with
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the requirement of ensuring merit, excellence of education and preventing mal-administration. For example,
provisions can be made indicating the quality of the teachers by prescribing the minimum qualifications that
they must possess and the courses of studies and curricula. The existence of infrastructure sufficient for its
growth can be stipulated as a pre-requisite to the grant of recognition or affiliation. However, there cannot be
interference in the day-to-day administration. The essential ingredients of the management, including
admission of students, recruiting of staff and the quantum of fee to be charged, cannot be regulated. (para 55,
Pai Foundation)
Apart from the generalized position of law that right to administer does not include right to mal-administer, an
additional source of power to regulate by enacting condition accompanying affiliation or recognition exists.
Balance has to be struck between the two objectives: (i) that of ensuring the standard of excellence of the
institution, and (ii) that of preserving the right of the minority to establish and administer its educational
institution. Subject to reconciliation of the two objectives, any regulation accompanying affiliation or
recognition must satisfy the triple tests: (i) the test of resonableness and rationality, (ii) the test that the
regulation would be conducive to making the institution an effective vehicle of education for the minority
community or other persons who resort to it, and (iii) that there is no in-road on the protection conferred by
Article 30(1) of the Constitution, that is, by framing the regulation the essential character of the institution
being a minority educational institution, is not taken away. (para 122, Pai Foundation)
(iii) Minority educational institutions receiving State aid Conditions which can normally be permitted to be
imposed on the educational institutions receiving the grant must be related to the proper utilization of the grant
and fulfillment of the objectives of the grant without diluting the minority status of the educational institution,
as held in Pai Foundation (See para 143 thereof). As aided institutions are not before us and we are not called
upon to deal with their cases, we leave the discussion at that only.
121. So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do
not see much of difference between non-minority and minority unaided educational institutions. We find great
force in the submission made on behalf of the petitioners that the States have no power to insist on seat sharing
in the unaided private professional educational institutions by fixing a quota of seats between the management
and the State. The State cannot insist on private educational institutions which receive no aid from the State to
implement State's policy on reservation for granting admission on lesser percentage of marks, i.e. on any
criterion except merit.
122.As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench
decision in Kerala Education Bill, which was approved by Pai Foundation, there is anything which would
allow the State to regulate or control admissions in the unaided professional educational institutions so as to
compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling
the seats available to be filled up at its discretion in such private institutions. This would amount to
nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota
of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions
are acts constituting serious encroachment on the right and autonomy of private professional educational
institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of
minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of
the Constitution. Merely because the resources of the State in providing professional education are limited,
private educational institutions, which intend to provide better professional education, cannot be forced by the
State to make admissions available on the basis of reservation policy to less meritorious candidate. Unaided
institutions, as they are not deriving any aid from State funds, can have their own admissions if fair,
transparent, non-exploitative and based on merit.
123. The observations in paragraph 68 of the majority opinion in Pai Foundation, on which the learned counsel
for the parties have been much at variance in their submissions, according to us, are not to be read disjointly
from other parts of the main judgment. A few observations contained in certain paragraphs of the judgment in
Pai Foundation, if read in isolation, appear conflicting or inconsistent with each other. But if the observations
made and the conclusions derived are read as a whole, the judgment nowhere lays down that unaided private
educational institutions of minorities and non-minorities can be forced to submit to seat sharing and
reservation policy of the State. Reading relevant parts of the judgment on which learned counsel have made
comments and counter comments and reading the whole judgment (in the light of previous judgments of this
Court, which have been approved in Pai Foundation) in our considered opinion, observations in paragraph 68
353 | P a g e
merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily
agreeing for seat sharing with the State or adopting selection based on common entrance test of the State.
There are also observations saying that they may frame their own policy to give free-ships and scholarships to
the needy and poor students or adopt a policy in line with the reservation policy of the state to cater to the
educational needs of weaker and poorer sections of the society.
124. Nowhere in Pai Foundation, either in the majority or in the minority opinion, have we found any
justification for imposing seat sharing quota by the State on unaided private professional educational
institutions and reservation policy of the State or State quota seats or management seats.
125.We make it clear that the observations in Pai Foundation in paragraph 68 and other paragraphs mentioning
fixation of percentage of quota are to be read and understood as possible consensual arrangements which can
be reached between unaided private professional institutions and the State.
126. In Pai Foundation, it has been very clearly held at several places that unaided professional institutions
should be given greater autonomy in determination of admission procedure and fee structure. State regulation
should be minimal and only with a view to maintain fairness and transparency in admission procedure and to
check exploitation of the students by charging exorbitant money or capitation fees.
127.For the aforesaid reasons, we cannot approve of the scheme evolved in Islamic Academy to the extent it
allows States to fix quota for seat sharing between management and the States on the basis of local needs of
each State, in the unaided private educational institutions of both minority and non-minority categories. That
part of the judgment in Islamic Academy, in our considered opinion, does not lay down the correct law and
runs counter to Pai Foundation.
NRI seats
128.Here itself we are inclined to deal with the question as to seats allocated for Non-Resident Indians ('NRI',
for short) or NRI seats. It is common knowledge that some of the institutions grant admissions to certain
number of students under such quota by charging a higher amount of fee. In fact, the term 'NRI' in relation to
admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the
students who get admissions under this category nor their parents are NRIs. In effect and reality, under this
category, less meritorious students, but who can afford to bring more money, get admission. During the course
of hearing, it was pointed out that a limited number of such seats should be made available as the money
brought by such students admitted against NRI quota enables the educational institutions to strengthen its level
of education and also to enlarge its educational activities. It was also pointed out that people of Indian origin,
who have migrated to other countries, have a desire to bring back their children to their own country as they
not only get education but also get reunited with Indian cultural ethos by virtue of being here. They also wish
the money which they would be spending elsewhere on education of their children should rather reach their
own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made
available to NRIs depending on the discretion of the management subject to two conditions. First, such seats
should be utilized bona fide by the NRIs only and for their children or wards. Secondly, within this quota, the
merit should not be given a complete go-by. The amount of money, in whatever form collected from such
NRIs, should be utilized for benefiting students such as from economically weaker sections of the society,
whom, on well defined criteria, the educational institution may admit on subsidized payment of their fee. To
prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or
regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted
pursuant to Islamic Academy's direction to regulate.
129. Our answer to the first question is that neither the policy of reservation can be enforced by the State nor
any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-
minority unaided educational institution. Minority institutions are free to admit students of their own choice
including students of non-minority community as also members of their own community from other States,
both to a limited extent only and not in a manner and to such an extent that their minority educational
institution status is lost. If they do so, they lose the protection of Article 30(1).
Q.2. Admission procedure of unaided educational institutions.
354 | P a g e
130. So far as the minority unaided institutions are concerned to admit students being one of the components
of "right to establish and administer an institution", the State cannot interfere therewith. Upto the level of
undergraduate education, the minority unaided educational institutions enjoy total freedom.
131. However, different considerations would apply for graduate and post-graduate level of education, as also
for technical and professional educational institutions. Such education cannot be imparted by any institution
unless recognized by or affiliated with any competent authority created by law, such as a University, Board,
Central or State Government or the like. Excellence in education and maintenance of high standards at this
level are a must. To fulfill these objectives, the State can and rather must, in national interest, step in. The
education, knowledge and learning at this level possessed by individuals collectively constitutes national
wealth.
132.Pai Foundation has already held that the minority status of educational institutions is to be determined by
treating the States as units. Students of that community residing in other States where they are not in minority,
shall not be considered to be minority in that particular State and hence their admission would be at par with
other non-minority students of that State. Such admissions will be only to a limited extent that is like a
'sprinkling' of such admissions, the term we have used earlier borrowing from Kerala Education Bill, 1957. In
minority educational institutions, aided or unaided, admissions shall be at the State level. Transparency and
merit shall have to be assured.
133. Whether minority or non-minority institutions, there may be more than one similarly situated institutions
imparting education in any one discipline, in any State. The same aspirant seeking admission to take education
in any one discipline of education shall have to purchase admission forms from several institutions and appear
at several admission tests conducted at different places on same or different dates and there may be a clash of
dates. If the same candidate is required to appear in several tests, he would be subjected to unnecessary and
avoidable expenditure and inconvenience. There is nothing wrong in an entrance test being held for one group
of institutions imparting same or similar education. Such institutions situated in one State or in more than one
State may join together and hold a common entrance test or the State may itself or through an agency arrange
for holding of such test. Out of such common merit list the successful candidates can be identified and chosen
for being allotted to different institutions depending on the courses of study offered, the number of seats, the
kind of minority to which the institution belongs and other relevant factors. Such an agency conducting
Common Entrance Test (CET, for short) must be one enjoying utmost credibility and expertise in the matter.
This would better ensure the fulfillment of twin objects of transparency and merit. CET is necessary in the
interest of achieving the said objectives and also for saving the student community from harassment and
exploitation. Holding of such common entrance test followed by centralized counseling or, in other words,
single window system regulating admissions does not cause any dent in the right of minority unaided
educational institutions to admit students of their choice. Such choice can be exercised from out of list of
successful candidates prepared at the CET without altering the order of merit inter se of the students so chosen.
134.Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental
right to choose the students to be allowed admissions and the procedure therefor subject to its being fair,
transparent and non- exploitative. The same principle applies to non-minority unaided institutions. There may
be a single institution imparting a particular type of education which is not being imparted by any other
institution and having its own admission procedure fulfilling the test of being fair, transparent and non-
exploitative. All institutions imparting same or similar professional education can join together for holding a
common entrance test satisfying the abovesaid triple tests. The State can also provide a procedure of holding a
common entrance test in the interest of securing fair and merit-based admissions and preventing mal-
administration. The admission procedure so adopted by private institution or group of institutions, if it fails to
satisfy all or any of the triple tests, indicated hereinabove, can be taken over by the State substituting its own
procedure. The second question is answered accordingly.
135. It needs to be specifically stated that having regard to the larger interest and welfare of the student
community to promote merit, achieve excellence and curb mal-practices, it would be permissible to regulate
admissions by providing a centralized and single window procedure. Such a procedure, to a large extent, can
secure grant of merit based admissions on a transparent basis. Till regulations are framed, the admission
committees can oversee admissions so as to ensure that merit is not the casualty.
Q. 3 Fee, regulation of
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136. To set up a reasonable fee structure is also a component of "the right to establish and administer an
institution" within the meaning of Article 30(1) of the Constitution, as per the law declared in Pai Foundation.
Every institution is free to devise its own fee structure subject to the limitation that there can be no profiteering
and no capitation fee can be charged directly or indirectly, or in any form (Paras 56 to 58 and 161 [Answer to
Q.5(c)] of Pai Foundation are relevant in this regard).
Capitation Fees
137. Capitation fee cannot be permitted to be charged and no seat can be permitted to be appropriated by
payment of capitation fee. 'Profession' has to be distinguished from 'business' or a mere 'occupation'. While in
business, and to a certain extent in occupation, there is a profit motive, profession is primarily a service to
society wherein earning is secondary or incidental. A student who gets a professional degree by payment of
capitation fee, once qualified as a professional, is likely to aim more at earning rather than serving and that
becomes a bane to the society. The charging of capitation fee by unaided minority and non-minority
institutions for professional courses is just not permissible. Similarly, profiteering is also not permissible.
Despite the legal position, this Court cannot shut its eyes to the hard realities of commercialization of
education and evil practices being adopted by many institutions to earn large amounts for their private or
selfish ends. If capitation fee and profiteering is to be checked, the method of admission has to be regulated so
that the admissions are based on merit and transparency and the students are not exploited. It is permissible to
regulate admission and fee structure for achieving the purpose just stated.
138. Our answer to Question-3 is that every institution is free to devise its own fee structure but the same can
be regulated in the interest of preventing profiteering. No capitation fee can be charged.
Q.4. Committees formed pursuant to Islamic Academy
139.Most vehement attack was laid by all the learned counsel appearing for the petitioner-applicants on that
part of Islamic Academy which has directed the constitution of two committees dealing with admissions and
fee structure. Attention of the Court was invited to paras 35,37, 38, 45 and 161 (answer to question 9) of Pai
Foundation wherein similar scheme framed in Unni Krishnan was specifically struck down. Vide para 45,
Chief Justice Kirpal has clearly ruled that the decision in Unni Krishnan insofar as it framed the scheme
relating to the grant of admission and the fixing of the fee, was not correct and to that extent the said decision
and the consequent directions given to UGC, AICTE, MCI, the Central and the State Governments etc. are
overruled. Vide para 161, Pai Foundation upheld Unni Krishnan to the extent to which it holds the right to
primary education as a fundamental right, but the scheme was overruled. However, the principle that there
should not be capitation fee or profiteering was upheld. Leverage was allowed to educational institutions to
generate reasonable surplus to meet cost of expansion and augmentation of facilities which would not amount
to profiteering. It was submitted that Islamic Academy has once again restored such Committees which were
done away with by Pai Foundation.
140. The learned senior counsel appearing for different private professional institutions, who have questioned
the scheme of permanent Committees set up in the judgment of Islamic Academy, very fairly do not dispute
that even unaided minority institutions can be subjected to regulatory measures with a view to curb
commercialization of education, profiteering in it and exploitation of students. Policing is permissible but not
nationalization or total take over, submitted Shri Harish Salve, the learned senior counsel. Regulatory measures
to ensure fairness and transparency in admission procedures to be based on merit have not been opposed as
objectionable though a mechanism other than formation of Committees in terms of Islamic Academy was
insisted on and pressed for. Similarly, it was urged that regulatory measures, to the extent permissible, may
form part of conditions of recognition and affiliation by the university concerned and/or MCI and AICTE for
maintaining standards of excellence in professional education. Such measures have also not been questioned as
violative of the educational rights of either minorities or non- minorities.
141. The two committees for monitoring admission procedure and determining fee structure in the judgment of
Islamic Academy, are in our view, permissive as regulatory measures aimed at protecting the interest of the
student community as a whole as also the minorities themselves, in maintaining required standards of
professional education on non- exploitative terms in their institutions. Legal provisions made by the State
Legislatures or the scheme evolved by the Court for monitoring admission procedure and fee fixation do not
violate the right of minorities under Article 30(1) or the right of minorities and non-minorities under Article
19(1)(g). They are reasonable restrictions in the interest of minority institutions permissible under Article 30(1)
and in the interest of general public under Article 19(6) of the Constitution.
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142. The suggestion made on behalf of minorities and non- minorities that the same purpose for which
Committees have been set up can be achieved by post-audit or checks after the institutions have adopted their
own admission procedure and fee structure, is unacceptable for the reasons shown by experience of the
educational authorities of various States. Unless the admission procedure and fixation of fees is regulated and
controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided by the
paying capacity of the candidates would be impossible to curb.
143. Non-minority unaided institutions can also be subjected to similar restrictions which are found reasonable
and in the interest of student community. Professional education should be made accessible on the criterion of
merit and on non-exploitative terms to all eligible students on an uniform basis. Minorities or non-minorities,
in exercise of their educational rights in the field of professional education have an obligation and a duty to
maintain requisite standards of professional education by giving admissions based on merit and making
education equally accessible to eligible students through a fair and transparent admission procedure and on a
reasonable fee-structure.
144. In our considered view, on the basis of judgment in Pai Foundation and various previous judgments of
this Court which have been taken into consideration in that case, the scheme evolved of setting up the two
Committees for regulating admissions and determining fee structure by the judgment in Islamic Academy
cannot be faulted either on the ground of alleged infringement of Article 19(1)(g) in case of unaided
professional educational institutions of both categories and Article 19(1)(g) read with Article 30 in case of
unaided professional institutions of minorities.
145.A fortiori, we do not see any impediment to the constitution of the Committees as a stopgap or ad hoc
arrangement made in exercise of the power conferred on this Court by Article 142 of the Constitution until a
suitable legislation or regulation framed by the State steps in. Such Committees cannot be equated with Unni
Krishnan Committees which were supposed to be permanent in nature. 1993 AIR SCW 863 : AIR 1993
SC 2178
146.However, we would like to sound a note of caution to such Committees. The learned counsel appearing for
the petitioners have severely criticised the functioning of some of the Committees so constituted. It was
pointed out by citing concrete examples that some of the Committees have indulged in assuming such powers
and performing such functions as were never given or intended to be given to them by Islamic Academy.
Certain decisions of some of the Committees were subjected to serious criticism by pointing out that the fee
structure approved by them was abysmally low which has rendered the functioning of the institutions almost
impossible or made the institutions run into losses. In some of the institutions, the teachers have left their job
and migrated to other institutions as it was not possible for the management to retain talented and highly
qualified teachers against the salary permitted by the Committees. Retired High Court Judges heading the
Committees are assisted by experts in accounts and management. They also have the benefit of hearing the
contending parties. We expect the Committees, so long as they remain functional, to be more sensitive and to
act rationally and reasonably with due regard for realities. They should refrain from generalizing fee structures
and, where needed, should go into accounts, schemes, plans and budgets of an individual institution for the
purpose of finding out what would be an ideal and reasonable fee structure for that institution.
147. We make it clear that in case of any individual institution, if any of the Committees is found to have
exceeded its powers by unduly interfering in the administrative and financial matters of the unaided private
professional institutions, the decision of the Committee being quasi-judicial in nature, would always be subject
to judicial review.
148. On Question-4, our conclusion, therefore, is that the judgment in Islamic Academy, in so far as it evolves
the scheme of two Committees, one each for admission and fee structure, does not go beyond the law laid
down in Pai Foundation and earlier decisions of this Court, which have been approved in that case. The
challenge to setting up of two Committees in accordance with the decision in Islamic Academy, therefore,
fails. However, the observation by way clarification, contained in the later part of para 19 of Islamic Academy
which speaks of quota and fixation of percentage by State Government is rendered redundant and must go in
view of what has been already held by us in the earlier part of this judgment while dealing with Question No.1.
Epilogue
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149. We have answered the four questions formulated by us in the manner indicated hereinabove. All other
issues which we leave untouched, may be dealt with by the regular Benches which will take up individual
cases for decision.
150.We have placed on record in the earlier part of this judgment and, yet, before parting we would like to
reiterate, that certain recitals, certain observations and certain findings in Pai Foundation are contradictory
inter se and such conflict can only be resolved by a Bench of a coram larger than Pai Foundation. There are
several questions which have remained unanswered and there are certain questions which have propped up
post Pai Foundation and Islamic Academy. To the extent the area is left open, the Benches hearing individual
cases after this judgment would find the answers. Issues referable to those areas which are already covered by
Pai Foundation and yet open to question shall have to be answered by a Bench of a larger coram than Pai
Foundation. We leave those issues to be taken care of by posterity.
151. We are also conscious of the fact that admission process in several professional educational institutions
has already commenced. Some admissions have been made or are in the process of being made in consonance
with the schemes and procedures as approved by Committees and in some cases pursuant to interim directions
made by this Court or by the High Courts. This judgment shall not have the effect of disturbing the admissions
already made or with regard to which the process has already commenced. The law, as laid down in this
judgment, shall be given effect to from the academic year commencing next after the pronouncement of this
judgment.
152. It is for the Central Government, or for the State Governments, in the absence of a Central legislation, to
come out with a detailed well thought out legislation on the subject. Such a legislation is long awaited. States
must act towards this direction. Judicial wing of the State is called upon to act when the other two wings, the
Legislature and the Executive, do not act. Earlier the Union of India and the State Governments act, the better
it would be. The Committees regulating admission procedure and fee structure shall continue to exist, but only
as a temporary measure and an inevitable passing phase until the Central Government or the State
Governments are able to devise a suitable mechanism and appoint competent authority in consonance with the
observations made hereinabove. Needless to say, any decision taken by such Committees and by the Central or
the State Governments, shall be open to judicial review in accordance with the settled parameters for the
exercise of such jurisdiction.
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Hon'ble Shri Ranganath Mishra v. Union of India
(Writ Petition (civil) 239 of 1998 SC Judgement delivered on 31 July, 2003)
Corum: V.N. Khare Cj, K.G. Balakrishnan, S.B. Sinha
A letter written by the petitioner herein to the Chief Justice of India requesting this Court to issue
necessary directions to the State to educate its citizen in the matter of fundamental duties so that a right
balance may emerge between rights and duties, was treated as a writ petition. This Court appointed Shri
K. Parasaran, Sr. Advocate as Amicus Curiae.
As the petition raised a question as to the correctness of a decision of this Court in Bijoe Emmanuel v.
State of Kerala, [1986] 3 SCC 615, requiring reconsideration, the matter was directed to be listed before a
Constitution Bench by order dated 9th April, 2001. However, a Constitution Bench by order dated 21st
November, 2001 recalled the order dated 19th February, 2001 and 9th April, 2001 and directed the matter
to be placed before a Bench of three Judges. The matter has been placed before this Bench pursuant
thereto.
When the matter was taken up for hearing, the learned Amicus Curiae brought to our notice the Report of
the National Commission to Review the Working of the Constitution wherein a report made by a
Committee commonly known as 'Justice J.S. Verma Committee' on operationalization of fundamental
duties of citizens has been accepted and a strong suggestion has been made for their early
implementation. The Commission, inter alia, recommends :
"3. 40. 2 Education is not confined only to the time spent in schools and colleges. Education begins at
birth in the subconscious and continues till death. Anyone who says that he has nothing more to learn is
already brain- dead. It follows that the influences that play on a child at home are of great importance.
Parents should understand that education begins at home, the examples they set, the environment of
enlightenment and tolerance that is necessary to produce good citizens cannot be sub-contracted to formal
schooling important though this is. Schemes should, therefore, be framed that include parents in social
activities that have as their objective the country's age-old traditions, its Welcome to the persecuted of
every faith, its virtues of tolerance of and respect for all religions
Hon'Ble Shri Ranganath Mishra vs Union Of India And Ors on 31 July, 2003
and a certain pride in belonging to this land and in being considered as Indian. The highest office in our
democracy is the office of citizen; this is not only a platitude, it must translate into reality. The distinction
is not illusory. A This country has given far too much indulgence to an attitude of mind that acts on the
question - what is there in it for me?
Education and the process of inculcating unselfishness and a sense of obligation to one's fellowmen
should inspire the question - where does my duty lie ? The transformation has the potential to make our B
nation strong, invincible and able to command the respect of the world.
3. 40. 3 (i) The Commission recommends that the first and foremost step required by the Union and State
Governments is to sensitise the people and to create general awareness of the provisions of C fundamental
duties amongst the citizens on the lines recommended by the Justice Verma Committee on the subject.
Consideration should be given to the ways and means by which Fundamental Duties could be popularized
and made effective;
(ii) right to freedom of religion and right of minorities and fellow citizens respected; (iii) reform of D the
whole process of education is an immediate but immense need, as is the need to free it from governmental
or political control; it is only through education that will power to adhere to our Fundamental Duties as
citizens can be inculcated; and (iv) duty to vote at elections, actively participate in the democratic process
of governance and to pay taxes should be included in article
51A...... " E In its recommendations, Justice Verma Committee in Chapter entitled "Salient
Recommendations” under the heading 'Operationalization Overview' observes as under :
"Duties are observed by individuals as a result of dictates of the p social system and the environment in
which one lives, under the influence of role models, or on account of punitive provision of law. It may be
359 | P a g e
necessary to enact suitable legislation wherever necessary to require obedience of obligations by the
citizens. If the existing laws are inadequate to enforce the needed discipline, the legislative vacuum needs
to be filled. If legislation and judicial directions are G available and still there are violations of
Fundamental Duties by the citizens, this would call for other strategies for making them operational.
The desired enforceability can be better achieved by providing not merely for legal sanctions but also
combining it with social sanctions and to facilitate the performance of the task through exemplar role
models. The element of compulsion in legal sanction when combined with the natural urge for obedience
of the norms to attract social approbation would make the citizens willing participants in the exercise. The
real task, therefore, is to devise methods which are a combination of these aspects to ensure a ready
acceptance of the programme by the general citizenry and youth, in particular.
The Committee is strongly of the view that the significance of dignity of the individual in all its facets and
the objective of overall development of the personality of the individual must be emphasized in the
curriculum at all the stages of education. This requires consciousness of citizenship values which are a
combination of rights and duties, and together give rise to social responsibilities. Methods must be
devised to operationalize this concept as a constitutional value in our educational
Hon'Ble Shri Ranganath Mishra vs Union Of India And Ors on 31 July, 2003
curriculum and in co- curricular activities, in schools and colleges.”
Various recommendations have been made in the said report as regards the mode and manner to be
adopted for generating awareness and consciousness of the citizens towards their fundamental duties.
Keeping in view the fact that the Government of India would take notice of the recommendations of the
aforesaid Commission/Committee, we agree with Shri K. Parasaran that the same may be considered in
its right earnestness by the Central Government and we accordingly direct it to do so as also to take
appropriate steps for their implementation as expeditiously as possible.
As presently advised, we need not go into the other questions raised in this writ petition. This writ petition
is, therefore, disposed of in the aforesaid terms.
We record our appreciation for the valuable services rendered by the learned Amicus Curiae Shri K.
Parasaran, Sr. Adv. and Shri G. Umapathay, Adv. in this matter.
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AMENDMENT OF THE CONSTITUTION
I.R. Coelho v. State of T.N.

(2007) 2 SCC 1
[The fundamental question decided in this case was whether on and after 24-4-1973 (date the
judgment in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461) when the basic
structure doctrine was propounded, is it permissible for Parliament under Article 31-B to
immunise legislations by inserting them into the Ninth Schedule and, if so, what was its effect on
the power of judicial review of the court.]
Y.K. SABHARWAL, C.J. – In these matters we are confronted with a very important yet not very
easy task of determining the nature and character of protection provided by Article 31-B of the
Constitution of India, 1950 to the laws added to the Ninth Schedule by amendments made after 24-4-
1973. The relevance of this date is for the reason that on this date the judgment in Kesavananda Bharati
v. State of Kerala [AIR 1073 SC 1461] was pronounced propounding the doctrine of basic structure of
the Constitution to test the validity of constitutional amendments.
Re: Order of reference
2. The order of reference made more than seven years ago by a Constitution Bench of five Judges is
reported in I.R. Coelho v. State of T.N. [(1999) 7 SCC 580]. The Gudalur Janmam Estates (Abolition and
Conversion into Ryotwari) Act, 1969 (the Janmam Act), insofar as it vested forest lands in the Janmam
estates in the State of Tamil Nadu, was struck down by this Court in Balmadies Plantations Ltd. v. State
of T.N. [AIR 1972 SC 2240] because this was not found to be a measure of agrarian reform protected by
Article 31-A of the Constitution. Section 2(c) of the West Bengal Land Holding Revenue Act, 1979 was
struck down by the Calcutta High Court as being arbitrary and, therefore, unconstitutional and the special
leave petition filed against the judgment by the State of West Bengal was dismissed. By the Constitution
(Thirty-fourth Amendment) Act, the Janmam Act, in its entirety, was inserted in the Ninth Schedule. By
the Constitution (Sixty-sixth Amendment) Act, the West Bengal Land Holding Revenue Act, 1979, in its
entirety, was inserted in the Ninth Schedule.
4. In the referral order, the Constitution Bench observed that, according to Waman Rao v. Union of
India [AIR 1981 SC 271], amendments to the Constitution made on or after 24-4-1973 by
which the Ninth Schedule was amended from time to time by inclusion of various Acts, regulations
therein were open to challenge on the ground that they, or any one or more of them, are beyond the
constituent power of Parliament since they damage the basic or essential features of the Constitution or its
basic structure. The decisions in Minerva Mills Ltd. v. Union of India [AIR 1980 SC 1789] and Bhim
Singhji v. Union of India [AIR 1981 SC 234] were also noted and it was observed that the judgment in
Waman Rao needs to be reconsidered by a larger Bench so that the apparent inconsistencies therein are
reconciled and it is made clear whether an Act or regulation which, or a part of which, is or has been
found by this Court to be violative of one or more of the fundamental rights conferred by Articles 14, 19
and 31 can be included in the Ninth Schedule or whether it is only a constitutional amendment amending
the Ninth Schedule which damages or destroys the basic structure of the Constitution that can be struck
down. While referring these matters for decision to a larger Bench, it was observed that preferably the
matters be placed before a Bench of nine Judges. This is how these matters have been placed before us.
Development of the law
7. The Constitution was framed after an in-depth study of manifold challenges and problems
including that of poverty, illiteracy, long years of deprivation, inequalities based on caste, creed, sex and
religion. The independence struggle and intellectual debates in the Constituent Assembly show the value
and importance of freedoms and rights guaranteed by Part III and State’s welfare obligations in Part IV.
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The Constitutions of various countries including that of the United States of America and Canada were
examined and after extensive deliberations and discussions the Constitution was framed. The fundamental
rights chapter was incorporated providing in detail the positive and negative rights. It provided for the
protection of various rights and freedoms. For enforcement of these rights, unlike Constitutions of most of
the other countries, the Supreme Court was vested with original jurisdiction as contained in Article 32.
8. The High Court of Patna in Kameshwar Singh v. State of Bihar [AIR 1951 Pat. 91] held that a
Bihar legislation relating to land reforms was unconstitutional while the High Courts of Allahabad and
Nagpur upheld the validity of the corresponding legislative measures passed in those States. The parties
aggrieved had filed appeals before the Supreme Court. At the same time, certain zamindars had also
approached the Supreme Court under Article 32 of the Constitution. It was, at this stage, that Parliament
amended the Constitution by adding Articles 31-A and 31-B to assist the process of legislation to bring
about agrarian reforms and confer on such legislative measures immunity from possible attack on the
ground that they contravene the fundamental rights of the citizen. Article 31-B was not part of the original
Constitution. It was inserted in the Constitution by the Constitution (First Amendment) Act, 1951. The
same amendment added after the Eighth Schedule a new Ninth Schedule containing thirteen items, all
relating to land reform laws, immunising these laws from challenge on the ground of contravention of
Article 13 of the Constitution. Article 13, inter alia, provides that the State shall not make any law which
takes away or abridges the rights conferred by Part III and any law made in contravention thereof shall, to
the extent of the contravention, be void.
10. The constitutional validity of the First Amendment was upheld in Sankari Prasad Singh Deo v.
Union of India [AIR 1952 SC 458].
11. The main object of the amendment was to fully secure the constitutional validity of zamindari
abolition laws in general and certain specified Acts in particular and save those provisions from the
dilatory litigation which resulted in holding up the implementation of the social reform measures affecting
large number of people. Upholding the validity of the amendment, it was held in Sankari Prasad that
Article 13(2) does not affect amendments to the Constitution made under Article 368 because such
amendments are made in the exercise of constituent power. The Constitution Bench held that to make a
law which contravenes the Constitution constitutionally valid is a matter of constitutional amendment and
as such it falls within the exclusive power of Parliament.
12. The constitutional validity of the Acts added to the Ninth Schedule by the Constitution
(Seventeenth Amendment) Act, 1964 was challenged in petitions filed under Article 32 of the
Constitution. Upholding the constitutional amendment and repelling the challenge in Sajjan Singh v.
State of Rajasthan [AIR 1965 SC 845], the law declared in Sankari Prasad was reiterated. It was noted
that Articles 31-A and 31-B were added to the Constitution realising that State legislative measures
adopted by certain States for giving effect to the policy of agrarian reforms have to face serious challenge
in the courts of law on the ground that they contravene the fundamental rights guaranteed to the citizen by
Part III. The Court observed that the genesis of the amendment made by adding Articles 31-A and 31-B
is to assist the State Legislatures to give effect to the economic policy to bring about much needed
agrarian reforms. It noted that if pith and substance test is to apply to the amendment made, it would be
clear that Parliament is seeking to amend fundamental rights solely with the object of removing any
possible obstacle in the fulfilment of the socio-economic policy viz., a policy in which the party in power
believes. The Court further noted that the impugned Act does not purport to change the provisions of
Article 226 and it cannot be said even to have that effect directly or in any appreciable measure. It noted
that the object of the Act was to amend the relevant articles in Part III which confer fundamental rights on
citizens and as such it falls under the substantive part of Article 368 and does not attract the provision of
clause (b) of that proviso. The Court, however, noted, that if the effect of the amendment made in the
fundamental rights on Article 226 is direct and not incidental and if in significant order, different
considerations may perhaps arise.
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14. In Golak Nath v. State of Punjab [AIR 1967 SC 1643], a Bench of 11 Judges considered the
correctness of the view that had been taken in Sankari Prasad and Sajjan Singh. By majority of six to
five, these decisions were overruled. It was held that the constitutional amendment is “law” within the
meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred
by Part III thereof, it is void. It was declared that Parliament will have no power from the date of the
decision (27-2-1967) to amend any of the provisions of Part III of the Constitution so as to take away or
abridge the fundamental rights enshrined therein.
15. Soon after Golak Nath case, the Constitution (Twenty-fourth Amendment) Act, 1971, the
Constitution (Twenty-fifth Amendment) Act, 1971, the Constitution (Twenty-sixth Amendment) Act,
1971 and the Constitution (Twenty-ninth Amendment) Act, 1972 were passed.
16. By the Constitution (Twenty-fourth Amendment) Act, 1971, Article 13 was amended and after
clause (3), the following clause was inserted as Article 13(4):
“13. (4) Nothing in this article shall apply to any amendment of this Constitution made under
Article 368.”
17. Article 368 was also amended and in Article 368(1), the words “in exercise of its constituent
powers” were inserted.
18. The Constitution (Twenty-fifth Amendment) Act, 1971 amended the provision of Article 31
dealing with compensation for acquiring or acquisition of properties for public purposes so that only the
amount fixed by law need to be given and this amount could not be challenged in court on the ground that
it was not adequate or in cash. Further, after Article 31-B of the Constitution, Article 31-C was inserted.
19. The Constitution (Twenty-sixth Amendment) Act, 1971 omitted from the Constitution Article
291 (privy purses) and Article 362 (rights and privileges of rulers of Indian States) and inserted
Article 363-A after Article 363 providing that recognition granted to rulers of Indian States shall
cease and privy purses be abolished.
20. The Constitution (Twenty-ninth Amendment) Act, 1972 amended the Ninth Schedule to the
Constitution inserting therein two Kerala Amendment Acts in furtherance of land reforms after Entry
64, namely, Entry 65 - Kerala Land Reforms Amendment Act, 1969 and Entry 66 - Kerala Land
Reforms Amendment Act, 1971.
21. These amendments were challenged in Kesavananda Bharati case. The decision in Kesavananda
Bharati case was rendered on 24-4-1973 by a thirteen-Judge Bench and by majority of seven to six Golak
Nath case was overruled. The majority opinion held that Article 368 did not enable Parliament to alter the
basic structure or framework of the Constitution. The Constitution (Twenty-fourth Amendment) Act,
1971 was held to be valid. Further, the first part of Article 31-C was also held to be valid. However, the
second part of Article 31-C that
“no law containing a declaration that it is for giving effect to such policy shall be called in
question in any court on the ground that it does not give effect to such policy”
was declared unconstitutional. The 29th Constitution Amendment was held valid. The validity of the 26th
Amendment was left to be determined by a Constitution Bench of five Judges.
22. The majority opinion did not accept the unlimited power of Parliament to amend the Constitution
and instead held that Article 368 has implied limitations. Article 368 does not enable Parliament to alter
the basic structure or framework of the Constitution.
23. Another important development took place in June 1975, when the Allahabad High Court set
aside the election of the then Prime Minister Mrs Indira Gandhi to the fifth Lok Sabha on the ground of
alleged corrupt practices. Pending appeal against the High Court judgment before the Supreme Court, the
Constitution (Thirty-ninth Amendment) Act, 1975 was passed. Clause (4) of the amendment inserted
Article 329-A after Article 329. Sub-clauses (4) and (5) of Article 329-A read as under:
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“329-A. (4) No law made by Parliament before the commencement of the Constitution
(Thirty-ninth Amendment) Act, 1975, insofar as it relates to election petitions and matters
connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the
election of any such person as is referred to in clause (1) to either House of Parliament and such
election shall not be deemed to be void or ever to have become void on any ground on which
such election could be declared to be void or has before such commencement, been declared to
be void under any such law and notwithstanding any order made by any court, before such
commencement, declaring such election to be void, such election shall continue to be valid in all
respects and any such order and any finding on which such order is based shall be and shall be
deemed always to have been void and of no effect.
(5) Any appeal or cross-appeal against any such order of any court as is referred to in clause
(4) pending immediately before the commencement of the Constitution (Thirty-ninth
Amendment) Act, 1975, before the Supreme Court shall be disposed of in conformity with the
provisions of clause (4).”
24. Clause (5) of the Amendment Act inserted after Entry 86, Entries 87 to 124 in the Ninth Schedule.
Many of the entries inserted were unconnected with land reforms.
25. In Indira Nehru Gandhi v. Raj Narain [AIR 1975 SC 2299], the aforesaid clauses were struck
down by holding them to be violative of the basic structure of the Constitution.
26. About two weeks before the Constitution Bench rendered the decision in Indira Gandhi case
internal Emergency was proclaimed in the country. During the Emergency from 26-6-1975 to March
1977, Article 19 of the Constitution stood suspended by virtue of Article 358 and Articles 14 and 21 by
virtue of Article 359. During internal Emergency, Parliament passed the Constitution (Fortieth
Amendment) Act, 1976. By clause (3) of the said amendment, in the Ninth Schedule, after Entry 124,
Entries 125 to 188 were inserted. Many of these entries were unrelated to land reforms.
27. Article 368 was amended by the Constitution (Forty-second Amendment) Act, 1976. It, inter alia,
inserted by Section 55 of the Amendment Act, in Article 368, after clause (3), the following clauses (4)
and (5):
“368. (4) No amendment of this Constitution (including the provisions of Part III) made or
purporting to have been made under this article whether before or after the commencement of
Section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question
in any court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever
on the constituent power of Parliament to amend by way of addition, variation or repeal the
provisions of this Constitution under this article.”
29. During Emergency, the fundamental rights were read even more restrictively as interpreted by the
majority in ADM, Jabalpur v. Shivakant Shukla [AIR 1976 SC 1207]. The decision in ADM, Jabalpur
about the restrictive reading of right to life and liberty stood impliedly overruled by various subsequent
decisions.
30. The fundamental rights received enlarged judicial interpretation in the post-Emergency period.
Article 21 which was given strict textual meaning in A.K. Gopalan v. State of Madras [AIR 1950 SC 27]
interpreting the words “according to procedure established by law” to mean only enacted law, received
enlarged interpretation in Maneka Gandhi v. Union of India [AIR 1978 SC 597]. A.K. Gopalan was no
longer good law. In Maneka Gandhi a Bench of seven Judges held that the procedure established by law
in Article 21 had to be reasonable and not violative of Article 14 and also that fundamental rights
guaranteed by Part III were distinct and mutually exclusive rights.
31. In Minerva Mills case the Court struck down clauses (4) and (5) of Article 368 finding that they
violated the basic structure of the Constitution.
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33. In Bhim Singhji challenge was made to the validity of the Urban Land (Ceiling and Regulation)
Act, 1976 which had been inserted in the Ninth Schedule after Kesavananda Bharati case. The
Constitution Bench unanimously held that Section 27(1) which prohibited disposal of property within the
ceiling limit was violative of Articles 14 and 19(1)(f) of Part III. When the said Act was enforced in
February 1976, Article 19(1)(f) was part of fundamental rights chapter and as already noted it was omitted
therefrom only in 1978 and made instead only a legal right under Article 300-A.
34. It was held in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261] that power of judicial
review is an integral and essential feature of the Constitution constituting the basic part, the jurisdiction so
conferred on the High Courts and the Supreme Court is a part of inviolable basic structure of the
Constitution of India.
35. It would be convenient to note at one place, various constitutional amendments which
added/omitted various Acts/provisions in the Ninth Schedule from Items 1 to 284. It is as under:
Amendment Acts Provisions added Amendment Acts Provisions added
st th
1 Amendment (1951) 1-13 40 Amendment (1976) 125-188
th th
th th
th th
29 Amendment (1971) 65-66 76 Amendment (1994) 257-A
th th
th
39 Amendment (1975) 87-124
Omissions
In 1978, Item 92 (the Internal Security Act) was repealed by the parliamentary Act.
In 1977, Item 130 (the Prevention of Publication of Objectionable Matter) was repealed.
In 1978, the 44th Amendment omitted Items 87 (the Representation of People Act), 92 and 130. Many
additions are unrelated to land reforms.
36. The question is as to the scope of challenge to the Ninth Schedule laws after 24-4-1973.
Article 32
37. The significance of jurisdiction conferred on this Court by Article 32 is described by Dr. B.R.
Ambedkar as follows: (Constituent Assembly Debates, Vol. IX, p. 953)
“most important article without which this Constitution would be a nullity”.
Further, it has been described as “the very soul of the Constitution and the very heart of it”.
38. Reference may also be made to the opinion of Patanjali Sastri, C.J., in State of Madras v. V.G.
Row [AIR 1952 SC 196] to the following effect:
“This is especially true as regards the ‘fundamental rights’, as to which [the Supreme Court]
has been assigned the role of a sentinel on the ‘qui vive’. While the Court naturally attaches great
weight to the legislative judgment, it cannot desert its own duty to determine finally the
constitutionality of an impugned statute.”
39. The jurisdiction conferred on this Court by Article 32 is an important and integral part of the basic
structure of the Constitution of India and no Act of Parliament can abrogate it or take it away except by
way of impermissible erosion of fundamental principles of the constitutional scheme, are settled
propositions of Indian jurisprudence.
40. In S.R. Bommai v. Union of India [(1994) 3 SCC 1], it was reiterated that the judicial review is a
basic feature of the Constitution and that the power of judicial review is a constituent power that cannot
be abrogated by judicial process of interpretation. It is a cardinal principle of our Constitution that no one
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can claim to be the sole judge of the power given under the Constitution and that its actions are within the
confines of the powers given by the Constitution.
Principles of construction
42. The Constitution is a living document. The constitutional provisions have to be construed having
regard to the march of time and the development of law. It is, therefore, necessary that while construing
the doctrine of basic structure due regard be had to various decisions which led to expansion and
development of the law.
43. The principle of constitutionalism is now a legal principle which requires control over the
exercise of governmental power to ensure that it does not destroy the democratic principles upon which it
is based. These democratic principles include the protection of fundamental rights. The principle of
constitutionalism advocates a check and balance model of the separation of powers; it requires a diffusion
of powers, necessitating different independent centres of decision-making. The principle of
constitutionalism underpins the principle of legality which requires the courts to interpret legislation on
the assumption that Parliament would not wish to legislate contrary to fundamental rights. The legislature
can restrict fundamental rights but it is impossible for laws protecting fundamental rights to be impliedly
repealed by future statutes.
Principles of constitutionality
48. There is a difference between parliamentary and constitutional sovereignty. Our Constitution is
framed by a Constituent Assembly which was not Parliament. It is in the exercise of law-making power
by the Constituent Assembly that we have a controlled Constitution. Articles 14, 19, 21 represent the
foundational values which form the basis of the rule of law. These are the principles of constitutionality
which form the basis of judicial review apart from the rule of law and separation of powers. If in future,
judicial review was to be abolished by a constitutional amendment, as Lord Steyn says, the principle of
parliamentary sovereignty even in England would require a relook. This is how law has developed in
England over the years. It is in such cases that doctrine of basic structure as propounded in Kesavananda
Bharati case has to apply.
49. Granville Austin has been extensively quoted and relied on in Minerva Mills. Chandrachud, C.J.,
observed that to destroy the guarantees given by Part III in order to purportedly achieve the goals of Part
IV is plainly to subvert the Constitution by destroying its basic structure. Fundamental rights occupy a
unique place in the lives of civilised societies and have been described in judgments as “transcendental”,
“inalienable” and “primordial”. They constitute the ark of the Constitution (Kesavananda Bharati). The
learned Chief Justice held that Parts III and IV together constitute the core of commitment to social
revolution and they, together, are the conscience of the Constitution. It is to be traced for a deep
understanding of the scheme of the Indian Constitution. The goals set out in Part IV have, therefore, to be
achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts III and
IV together constitute the core of our Constitution and combine to form its conscience. “Anything that
destroys the balance between the two parts will ipso facto destroy an essential element of the basic
structure of our Constitution.” (Minerva Mills.) Further observes the learned Chief Justice, that the
matters have to be decided not by metaphysical subtlety, nor as a matter of semantics, but by a broad and
liberal approach. We must not miss the wood for the trees. A total deprivation of fundamental rights, even
in a limited area, can amount to abrogation of a fundamental right just as partial deprivation in every area
can. The observations made in the context of Article 31-C have equal and full force for deciding the
questions in these matters. Again the observations made in para 70 are very relevant for our purposes. It
has been observed that (Minerva Mills case):
“[I]f by a constitutional amendment, the application of Articles 14 and 19 is withdrawn from
a defined field of legislative activity, which is reasonably in public interest, the basic framework
of the Constitution may remain unimpaired. But if the protection of those articles is withdrawn in
respect of an uncatalogued variety of laws, fundamental freedoms will become a ‘parchment in a
glass case’ to be viewed as a matter of historical curiosity.”
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These observations are very apt for deciding the extent and scope of judicial review in cases wherein
entire Part III, including Articles 14, 19, 20, 21 and 32, stand excluded without any yardstick.
50. The developments made in the field of interpretation and expansion of judicial review shall have
to be kept in view while deciding the applicability of the basic structure doctrine –to find out whether
there has been violation of any fundamental right, the extent of violation, does it destroy the balance or it
maintains the reasonable balance.
51. The observations of Bhagwati, J. in Minerva Mills case show how clause (4) of Article 368 would
result in enlarging the amending power of Parliament contrary to the dictum in Kesavananda Bharati
case. The learned Judge has said in para 85 that:
“So long as clause (4) stands, an amendment of the Constitution though unconstitutional and
void as transgressing the limitation on the amending power of Parliament as laid down in
Kesavananda Bharati case would be unchallengeable in a court of law. The consequence of this
exclusion of the power of judicial review would be that, in effect and substance, the limitation on
the amending power of Parliament would, from a practical point of view, become non-existent
and it would not be incorrect to say that, covertly and indirectly, by the exclusion of judicial
review, the amending power of Parliament would stand enlarged, contrary to the decision of this
Court in Kesavananda Bharati case. This would undoubtedly damage the basic structure of the
Constitution, because there are two essential features of the basic structure which would be
violated, namely, the limited amending power of Parliament and the power of judicial review
with a view to examining whether any authority under the Constitution has exceeded the limits of
its powers.”
52. In Minerva Mills while striking down the enlargement of Article 31-C through 42nd Amendment
which had replaced the words “of or any of the principles laid down in Part IV” with “the principles
specified in clause (b) or clause (c) and Article 39”, Chandrachud, J. said:
“Section 4 of the Constitution (Forty-second Amendment) Act is beyond the amending
power of Parliament and is void since it damages the basic or essential features of the
Constitution and destroys its basic structure by a total exclusion of challenge to any law on the
ground that it is inconsistent with, or takes away or abridges any of the rights conferred by
Article 14 or Article 19 of the Constitution, if the law is for giving effect to the policy of the State
towards securing all or any of the principles laid down in Part IV of the Constitution.”
53. In Indira Gandhi case, for the first time the challenge to the constitutional amendment was not in
respect of the rights to property or social welfare, the challenge was with reference to an electoral law.
Analysing this decision, H.M. Seervai in Constitutional Law of India (4th Edn.) says that “the judgment
in Election case breaks new ground, which has important effects on Kesavananda Bharati case itself”.
Further the author says that:
“No one can now write on the amending power, without taking into account the
effect of Election case.”
55. For determining whether a particular feature of the Constitution is part of its basic structure, one
has per force to examine in each individual case the place of the particular feature in the scheme of our
Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution
as a fundamental instrument of the country’s governance.
56. The fundamentalness of fundamental rights has thus to be examined having regard to the
enlightened point of view as a result of development of fundamental rights over the years. It is, therefore,
imperative to understand the nature of guarantees under fundamental rights as understood in the years that
immediately followed after the Constitution was enforced when fundamental rights were viewed by this
Court as distinct and separate rights. In early years, the scope of the guarantee provided by these rights
was considered to be very narrow. Individuals could only claim limited protection against the State. This
position has changed since long. Over the years, the jurisprudence and development around fundamental
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rights has made it clear that they are not limited, narrow rights but provide a broad check against the
violations or excesses by the State authorities. The fundamental rights have in fact proved to be the most
significant constitutional control on the Government, particularly legislative power. This transition from a
set of independent, narrow rights to broad checks on State power is demonstrated by a series of cases that
have been decided by this Court.
60. It is evident that it can no longer be contended that protection provided by fundamental rights
comes in isolated pools. On the contrary, these rights together provide a comprehensive guarantee against
excesses by State authorities. Thus post-Maneka Gandhi case it is clear that the development of
fundamental rights has been such that it no longer involves the interpretation of rights as isolated
protections which directly arise but they collectively form a comprehensive test against the arbitrary
exercise of State power in any area that occurs as an inevitable consequence. The protection of
fundamental rights has, therefore, been considerably widened.
62. The abrogation or abridgment of the fundamental rights under Chapter III have, therefore, to be
examined on broad interpretation, the narrow interpretation of fundamental rights chapter is a thing of
past. Interpretation of the Constitution has to be such as to enable the citizens to enjoy the rights
guaranteed by Part III in the fullest measure.
Separation of powers
63. The separation of powers between Legislature, Executive and the Judiciary constitutes basic
structure, has been found in Kesavananda Bharati case by the majority. Later, it was reiterated in Indira
Gandhi case. A large number of judgments have reiterated that the separation of powers is one of the
basic features of the Constitution.
67. The Supreme Court has long held that the separation of powers is part of the basic structure of the
Constitution. Even before the basic structure doctrine became part of constitutional law, the importance of
the separation of powers on our system of governance was recognised by this Court.
Contentions
68. In the light of aforesaid developments, the main thrust of the argument of the petitioners is that
post-1973, it is impermissible to immunise Ninth Schedule laws from judicial review by making Part III
inapplicable to such laws. Such a course, it is contended, is incompatible with the doctrine of basic
structure. The existence of power to confer absolute immunity is not compatible with the implied
limitation upon the power of amendment in Article 368, is the thrust of the contention.
69. Further, relying upon the clarification of Khanna, J., as given in Indira Gandhi case in respect of
his opinion in Kesavananda Bharati case it is no longer correct to say that fundamental rights are not
included in the basic structure. Therefore, the contention proceeds that since fundamental rights form a
part of basic structure thus laws inserted into the Ninth Schedule when tested on the ground of basic
structure shall have to be examined on the fundamental rights test.
70. The key question, however, is whether the basic structure test would include judicial review of the
Ninth Schedule laws on the touchstone of fundamental rights. Thus, it is necessary to examine what
exactly is the content of the basic structure test. According to the petitioners, the consequence of the
evolution of the principles of basic structure is that the Ninth Schedule laws cannot be conferred with
constitutional immunity of the kind created by Article 31-B. Assuming that such immunity can be
conferred, its constitutional validity would have to be adjudged by applying the direct impact and effect
test which means the form of an amendment is not relevant, its consequence would be determinative
factor.
71. The power to make any law at will that transgresses Part III in its entirety would be incompatible
with the basic structure of the Constitution. The consequence also is, learned counsel for the petitioners
contended, to emasculate Article 32 (which is part of fundamental rights chapter) in its entirety - if the
rights themselves (including the principle of rule of law encapsulated in Article 14) are put out of the
way, the remedy under Article 32 would be meaningless. In fact, by the exclusion of Part III, Article 32
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would stand abrogated qua the Ninth Schedule laws. The contention is that the abrogation of Article 32
would be per se violative of the basic structure. It is also submitted that the constituent power under
Article 368 does not include judicial power and that the power to establish judicial remedies which is
compatible with the basic structure is qualitatively different from the power to exercise judicial power.
The impact is that on the one hand the power under Article 32 is removed and, on the other hand, the said
power is exercised by the legislature itself by declaring, in a way, the Ninth Schedule laws as valid.
75. To begin with, we find it difficult to accept the broad proposition urged by the petitioners that
laws that have been found by the courts to be violative of Part III of the Constitution cannot be protected
by placing the same in the Ninth Schedule by use of device of Article 31-B read with Article 368 of the
Constitution. In Kesavananda Bharati case the majority opinion upheld the validity of the Kerala Act
which had been set aside in Kunjukutty Sahib v. State of Kerala and the device used was that of the
Ninth Schedule. After a law is placed in the Ninth Schedule, its validity has to be tested on the touchstone
of basic structure doctrine. In State of Maharashtra v. Man Singh Suraj Singh Padvi a seven-Judge
Constitution Bench, post-decision in Kesavananda Bharati case upheld the Constitution (Fortieth
Amendment) Act, 1976 which was introduced when the appeal was pending in the Supreme Court and
thereby included the regulations in the Ninth Schedule. It was held that Article 31-B and the Ninth
Schedule cured the defect, if any, in the regulations as regards any unconstitutionality alleged on the
ground of infringement of fundamental rights.
76. It is also contended that the power to pack up laws in the Ninth Schedule in absence of any indicia
in Article 31-B has been abused and that abuse is likely to continue. It is submitted that the Ninth
Schedule which commenced with only 13 enactments has now a list of 284 enactments. The validity of
Article 31-B is not in question before us. Further, mere possibility of abuse is not a relevant test to
determine the validity of a provision. The people, through the Constitution, have vested the power to
make laws in their representatives through Parliament in the same manner in which they have entrusted
the responsibility to adjudge, interpret and construe law and the Constitution including its limitation in the
judiciary. We, therefore, cannot make any assumption about the alleged abuse of the power.
Validity of Article 31-B
78. We have examined various opinions in Kesavananda Bharati case but are unable to accept the
contention that Article 31-B read with the Ninth Schedule was held to be constitutionally valid in that
case. The validity thereof was not in question. The constitutional amendments under challenge in
Kesavananda Bharati case were examined assuming the constitutional validity of Article 31-B. Its
validity was not in issue in that case. Be that as it may, we will assume Article 31-B as valid. The validity
of the 1st Amendment inserting in the Constitution, Article 31-B is not in challenge before us.
Kesavananda Bharati case
80. The contention urged on behalf of the respondents that all the Judges, except Sikri, C.J., in
Kesavananda Bharati case held that the 29th Amendment was valid and applied Jeejeebhoy case is not
based on correct ratio of Kesavananda Bharati case. Six learned Judges (Ray, Palekar, Mathew, Beg,
Dwivedi and Chandrachud, JJ.) who upheld the validity of 29th Amendment did not subscribe to the basic
structure doctrine. The other six learned Judges (Sikri, C.J., Shelat, Grover, Hegde, Mukherjea and
Reddy, JJ.) upheld the 29th Amendment subject to it passing the test of basic structure doctrine. The 13 th
learned Judge (Khanna, J.), though subscribed to basic structure doctrine, upheld the 29 th Amendment
agreeing with six learned Judges who did not subscribe to the basic structure doctrine. Therefore, it would
not be correct to assume that all Judges or Judges in majority on the issue of basic structure doctrine
upheld the validity of 29th Amendment unconditionally or were alive to the consequences of basic
structure doctrine on 29th Amendment.
81. Six learned Judges otherwise forming the majority, held 29th Amendment valid only if the
legislation added to the Ninth Schedule did not violate the basic structure of the Constitution. The
remaining six who are in minority in Kesavananda Bharati case insofar as it relates to laying down the
doctrine of basic structure, held 29th Amendment unconditionally valid.
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82. While laying the foundation of basic structure doctrine to test the amending power of the
Constitution, Khanna, J. opined that the fundamental rights could be amended, abrogated or abridged so
long as the basic structure of the Constitution is not destroyed but at the same time, upheld the 29 th
Amendment as unconditionally valid. Thus, it cannot be inferred from the conclusion of the seven Judges
upholding unconditionally the validity of 29th Amendment that the majority opinion held fundamental
rights chapter as not part of the basic structure doctrine. The six Judges who held the 29 th Amendment
unconditionally valid did not subscribe to the doctrine of basic structure. The other six held 29 th
Amendment valid subject to it passing the test of basic structure doctrine.
83. Khanna, J. upheld the 29th Amendment in the following terms: (Kesavananda Bharati case)
“1536 . We may now deal with the Constitution (Twenty-ninth Amendment) Act. This Act,
as mentioned earlier, inserted Kerala Act 35 of 1969 and Kerala Act 25 of 1971 as Entries 65 and
66 in the Ninth Schedule to the Constitution. I have been able to find no infirmity in the
Constitution (Twenty-ninth Amendment) Act.”
84. In his final conclusions, with respect to the Twenty-ninth Amendment, Khanna, J. held as follows:
(Kesavananda Bharati case).
“1537. (xv) The Constitution (Twenty-ninth Amendment) Act does not suffer from any infirmity and
as such is valid.”
85. Thus, while upholding the Twenty-ninth Amendment, there was no mention of the test that is to
be applied to the legislations inserted in the Ninth Schedule. The implication that the respondents seek to
draw from the above is that this amounts to an unconditional upholding of the legislations in the Ninth
Schedule.
86. They have also relied on observations by Ray, C.J., as quoted below, in Indira Gandhi. In that
case, Ray, C.J. observed:
“152. The Constitution (Twenty-ninth Amendment) Act was considered by this Court in
Kesavananda Bharati case. The Twenty-ninth Amendment Act inserted in the Ninth Schedule to
the Constitution Entries 65 and 66 being the Kerala Land Reforms Act, 1969 and the Kerala Land
Reforms Act, 1971. This Court unanimously upheld the validity of the Twenty-ninth Amendment
Act. The view of seven Judges in Kesavananda Bharati case is that Article 31-B is a
constitutional device to place the specified statutes in the Schedule beyond any attack that these
infringe Part III of the Constitution. The 29th Amendment is affirmed in Kesavananda Bharati
case by majority of seven against six Judges.
153. Second, the majority view in Kesavananda Bharati case is that the 29th Amendment
which put the two statutes in the Ninth Schedule and Article 31-B is not open to challenge on the
ground of either damage to or destruction of basic features, basic structure or basic framework or
on the ground of violation of fundamental rights.” (emphasis supplied)
88. On the issue of how the 29th Amendment in Kesavananda Bharati case was decided, in Minerva
Mills, Bhagwati, J. has said thus:
“The validity of the Twenty-ninth Amendment Act was challenged in Kesavananda Bharati
case, but by a majority consisting of Khanna, J. and the six learned Judges led by Ray, J. (as he
then was), it was held to be valid. Since all the earlier constitutional amendments were held valid
on the basis of unlimited amending power of Parliament recognised in Sankari Prasad case and
Sajjan Singh case and were accepted as valid in Golak Nath case and the Twenty-ninth
Amendment Act was also held valid in Kesavananda Bharati case, though not on the application
of the basic structure test, and these constitutional amendments have been recognised as valid
over a number of years and moreover, the statutes intended to be protected by them are all falling
within Article 31-A with the possible exception of only four Acts referred to above, I do not
think, we would be justified in reopening the question of validity of these constitutional
amendments and hence we hold them to be valid. But, all constitutional amendments made after
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the decision in Kesavananda Bharati case would have to be tested by reference to the basic
structure doctrine, for Parliament would then have no excuse for saying that it did not know the
limitation on its amending power.”
89. To us, it seems that the position is correctly reflected in the aforesaid observations of
Bhagwati, J. and with respect we feel that Ray, C.J., is not correct in the conclusion that the 29th
Amendment was unanimously upheld. Since the majority which propounded the basic structure doctrine
did not unconditionally uphold the validity of the 29th Amendment and six learned Judges forming the
majority left that to be decided by a smaller Bench and upheld its validity subject to it passing basic
structure doctrine, the factum of validity of the 29th Amendment in Kesavananda Bharati case is not
conclusive of matters under consideration before us.
90. In order to understand the view of Khanna, J. in Kesavananda Bharati, it is important to take into
account his later clarification. In Indira Gandhi, Khanna, J. made it clear that he never opined that
fundamental rights were outside the purview of basic structure and observed as follows:
“251. There was a controversy during the course of arguments on the point as to whether I
have laid down in my judgment in Kesavananda Bharati case that fundamental rights are not a
part of the basic structure of the Constitution. As this controversy cropped up a number of times,
it seems apposite that before I conclude I should deal with the contention advanced by learned
Solicitor General that according to my judgment in that case no fundamental right is part of the
basic structure of the Constitution. I find it difficult to read anything in that judgment to justify
such a conclusion. What has been laid down in that judgment is that no article of the Constitution
is immune from the amendatory process because of the fact that it relates to a fundamental right
and is contained in Part III of the Constitution.
252. The above observations clearly militate against the contention that according to my
judgment fundamental rights are not a part of the basic structure of the Constitution. I also dealt
with the matter at length to show that the right to property was not a part of the basic structure of
the Constitution. This would have been wholly unnecessary if none of the fundamental rights was
a part of the basic structure of the Constitution.”
91. Thus, after his aforesaid clarification, it is not possible to read the decision of Khanna, J. in
Kesavananda Bharati so as to exclude fundamental rights from the purview of the basic structure. The
import of this observation is significant in the light of the amendment that he earlier upheld. It is true that
if the fundamental rights were never a part of the basic structure, it would be consistent with an
unconditional upholding of the Twenty-ninth Amendment, since its impact on the fundamental rights
guarantee would be rendered irrelevant. However, having held that some of the fundamental rights are a
part of the basic structure, any amendment having an impact on fundamental rights would necessarily
have to be examined in that light. Thus, the fact that Khanna, J. held that some of the fundamental rights
were a part of the basic structure has a significant impact on his decision regarding the Twenty-ninth
Amendment and the validity of the Twenty-ninth Amendment must necessarily be viewed in that light.
His clarification demonstrates that he was not of the opinion that all the fundamental rights were not part
of the basic structure and the inevitable conclusion is that the Twenty-ninth Amendment, even if treated
as unconditionally valid, is of no consequence on the point in issue in view of peculiar position as to
majority abovenoted.
92. Such an analysis is supported by Seervai, in his book Constitutional Law of India (4th Edn., Vol.
III), as follows:
“Although in his judgment in Election case, Khanna, J. clarified his judgment in
Kesavananda case, that clarification raised a serious problem of its own. The problem was: in
view of the clarification, was Khanna, J. right in holding that Article 31-B and Schedule IX were
unconditionally valid? Could he do so after he had held that the basic structure of the
Constitution could not be amended? As we have seen, that problem was solved in Minerva Mills
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case by holding that Acts inserted in Schedule IX after 25-4-1973 were not unconditionally valid,
but would have to stand the test of fundamental rights.” * * * * *
But while the clarification in Election case simplifies one problem – the scope of the
amending power – it raises complicated problems of its own. Was Khanna, J. right in holding
Article 31-B (and Schedule IX) unconditionally valid by holding the 29th Amendment
unconditionally valid? And was he right when he held the substantive part of Article 31-C
unconditionally valid ? An answer to these questions requires an analysis of the function of
Article 31-B and Schedule IX. Taking Article 31-B and Schedule IX first, their effect is to confer
validity on laws already enacted which would be void for violating one or more of the
fundamental rights conferred by Part III (fundamental rights). But if the power of amendment is
limited by the doctrine of the basic structure, a grave problem immediately arises. The thing to
note is that though such Acts do not become a part of the Constitution, by being included in
Schedule IX they owe their validity to the exercise of the amending power. Can Acts, which
destroy the secular character of the State, be given validity and be permitted to destroy a part of
the basic structure as a result of the exercise of the amending power? That, in the last analysis, is
the real problem; and it is submitted that if the doctrine of the basic structure is accepted, there
can be only one answer. If Parliament, exercising constituent power cannot enact an amendment
destroying the secular character of the State, neither can Parliament, exercising its constituent
power, permit Parliament or the State Legislatures to produce the same result by protecting laws,
enacted in the exercise of legislative power, which produce the same result. To hold otherwise
would be to abandon the doctrine of the basic structure in respect of fundamental rights, for every
part of that basic structure can be destroyed by first enacting laws which produce that effect, and
then protecting them by inclusion in Schedule IX. Such a result is consistent with the view that
fundamental rights are not part of the basic structure; it is wholly inconsistent with the view that
some fundamental rights are a part of the basic structure, as Khanna, J. said in his clarification. In
other words, the validity of the 25th and 29th Amendments raised the question of applying the law
laid down as to the scope of the amending power when determining the validity of the 24 th
Amendment. If that law was correctly laid down, it did not become incorrect by being wrongly
applied. Therefore the conflict between Khanna, J.’s views on the amending power and on the
unconditional validity of the 29th Amendment is resolved by saying that he laid down the scope
of the amending power correctly but misapplied that law in holding Article 31-B and Schedule
IX unconditionally valid . Consistently with his view that some fundamental rights were part of
the basic structure, he ought to have joined the 6 other Judges in holding that the 29 th
Amendment was valid, but the Acts included in Schedule IX would have to be scrutinised by the
Constitution Bench to see whether they destroyed or damaged any part of the basic structure of
the Constitution, and if they did, such laws would not be protected.” (portion in italics
is emphasis in original, portion underlined is emphasis supplied herein)
93. The decision in Kesavananda Bharati regarding the Twenty-ninth Amendment is restricted to
that particular amendment and no principle flows therefrom.
94. We are unable to accept the contention urged on behalf of the respondents that in Waman Rao
case Chandrachud, J., and in Minerva Mills case Bhagwati, J. have not considered the binding effect of
majority judgments in Kesavananda Bharati case. In these decisions, the development of law post-
Kesavananda Bharati case has been considered. The conclusion has rightly been reached, also having
regard to the decision in Indira Gandhi case that post-Kesavananda Bharati case or after 24-4-1973, the
Ninth Schedule laws will not have the full protection. The doctrine of basic structure was involved in
Kesavananda Bharati case but its effect, impact and working was examined in Indira Gandhi case,
Waman Rao case and Minerva Mills case. To say that these judgments have not considered the binding
effect of the majority judgment in Kesavananda Bharati case is not based on a correct reading of
Kesavananda Bharati.
95. On the issue of equality, we do not find any contradiction or inconsistency in the views expressed
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by Chandrachud, J. in Indira Gandhi case, by Krishna Iyer, J. in Bhim Singh case and Bhagwati, J. in
Minerva Mills case. All these judgments show that violation in individual case has to be examined to find
out whether violation of equality amounts to destruction of the basic structure of the Constitution.
96. Next, we examine the extent of immunity that is provided by Article 31-B. The principle that
constitutional amendments which violate the basic structure doctrine are liable to be struck down will also
apply to amendments made to add laws in the Ninth Schedule is the view expressed by Sikri, C.J.
Substantially similar separate opinions were expressed by Shelat, Grover, Hegde, Mukherjea and Reddy,
JJ. In the four different opinions six learned Judges came substantially to the same conclusion. These
Judges read an implied limitation on the power of Parliament to amend the Constitution. Khanna, J. also
opined that there was implied limitation in the shape of the basic structure doctrine that limits the power
of Parliament to amend the Constitution but the learned Judge upheld the 29th Amendment and did not
say, like the remaining six Judges, that the Twenty-ninth Amendment will have to be examined by a
smaller Constitution Bench to find out whether the said amendment violated the basic structure theory or
not. This gave rise to the argument that fundamental rights chapter is not part of basic structure. Khanna,
J. however, does not so say in Kesavananda Bharati case. Therefore, Kesavananda Bharati case cannot
be said to have held that fundamental rights chapter is not part of basic structure. Khanna, J. while
considering the Twenty-ninth Amendment, had obviously in view the laws that had been placed in the
Ninth Schedule by the said amendment related to the agrarian reforms. Khanna, J. did not want to elevate
the right to property under Article 19(1)(f) to the level and status of basic structure or basic framework of
the Constitution, that explains the ratio of Kesavananda Bharati case. Further, doubt, if any, as to the
opinion of Khanna, J. stood resolved on the clarification given in Indira Gandhi case by the learned
Judge that in Kesavananda Bharati case he never held that fundamental rights are not a part of the basic
structure or framework of the Constitution.
97. The rights and freedoms created by the fundamental rights chapter can be taken away or destroyed
by amendment of the relevant article, but subject to limitation of the doctrine of basic structure. True, it
may reduce the efficacy of Article 31-B but that is inevitable in view of the progress the laws have made
post-Kesavananda Bharati case which has limited the power of Parliament to amend the Constitution
under Article 368 of the Constitution by making it subject to the doctrine of basic structure.
98. To decide the correctness of the rival submissions, the first aspect to be borne in mind is that each
exercise of the amending power inserting laws into the Ninth Schedule entails a complete removal of the
fundamental rights chapter vis-à-vis the laws that are added in the Ninth Schedule. Secondly, insertion in
the Ninth Schedule is not controlled by any defined criteria or standards by which the exercise of power
may be evaluated. The consequence of insertion is that it nullifies entire Part III of the Constitution. There
is no constitutional control on such nullification. It means an unlimited power to totally nullify Part III
insofar as the Ninth Schedule legislations are concerned. The supremacy of the Constitution mandates all
constitutional bodies to comply with the provisions of the Constitution. It also mandates a mechanism for
testing the validity of legislative acts through an independent organ viz. the judiciary.
99. While examining the validity of Article 31-C in Kesavananda Bharati case it was held that the
vesting of power of the exclusion of judicial review in a legislature including a State Legislature, strikes
at the basic structure of the Constitution. It is on this ground that second part of Article 31-C was held to
be beyond the permissible limits of power of amendment of the Constitution under Article 368.
100. If the doctrine of basic structure provides a touchstone to test the amending power or its exercise,
there can be no doubt and it has to be so accepted that Part III of the Constitution has a key role to play in
the application of the said doctrine.
101. Regarding the status and stature in respect of fundamental rights in constitutional scheme, it is to
be remembered that fundamental rights are those rights of citizens or those negative obligations of the
State which do not permit encroachment on individual liberties. The State is to deny no one equality
before the law. The object of the fundamental rights is to foster the social revolution by creating a society
egalitarian to the extent that all citizens are to be equally free from coercion or restriction by the State. By
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enacting fundamental rights and directive principles which are negative and positive obligations of the
States, the Constituent Assembly made it the responsibility of the Government to adopt a middle path
between individual liberty and public good. Fundamental rights and directive principles have to be
balanced. That balance can be tilted in favour of the public good. The balance, however, cannot be
overturned by completely overriding individual liberty. This balance is an essential feature of the
Constitution.
102. Fundamental rights enshrined in Part III were added to the Constitution as a check on the State
power, particularly the legislative power. Through Article 13, it is provided that the State cannot make
any laws that are contrary to Part III. The framers of the Constitution have built a wall around certain
parts of fundamental rights, which have to remain forever, limiting ability of majority to intrude upon
them. That wall is the “basic structure” doctrine. Under Article 32, which is also part of Part III, the
Supreme Court has been vested with the power to ensure compliance with Part III. The responsibility to
judge the constitutionality of all laws is that of judiciary. Thus, when power under Article 31-B is
exercised, the legislations made completely immune from Part III results in a direct way out of the check
of Part III, including that of Article 32. It cannot be said that the same Constitution that provides for a
check on legislative power, will decide whether such a check is necessary or not. It would be a negation
of the Constitution. In Waman Rao case while discussing the application of basic structure doctrine to the
first amendment, it was observed that the measure of the permissibility of an amendment of a pleading is
how far it is consistent with the original; you cannot by an amendment transform the original into
opposite of what it is. For that purpose, a comparison is undertaken to match the amendment with the
original. Such a comparison can yield fruitful results even in the rarefied sphere of constitutional law.
103. Indeed, if Article 31-B only provided restricted immunity and it seems that original intent was
only to protect a limited number of laws, it would have been only exception to Part III and the basis for
the initial upholding of the provision. However, the unchecked and rampant exercise of this power, the
number having gone from 13 to 284, shows that it is no longer a mere exception. The absence of
guidelines for exercise of such power means the absence of constitutional control which results in
destruction of constitutional supremacy and creation of parliamentary hegemony and absence of full
power of judicial review to determine the constitutional validity of such exercise.
104. It is also contended for the respondents that Article 31-A excludes judicial review of certain laws
from the applications of Articles 14 and 19 and that Article 31-A has been held to be not violative of the
basic structure. The contention, therefore, is that exclusion of judicial review would not make the Ninth
Schedule law invalid. We are not holding such law per se invalid but, examining the extent of the power
which the legislature will come to possess. Article 31-A does not exclude uncatalogued number of laws
from challenge on the basis of Part III. It provides for a standard by which laws stand excluded from
judicial review. Likewise, Article 31-C applies as a yardstick the criteria of sub-clauses (b) and (c) of
Article 39 which refers to equitable distribution of resources.
105. The fundamental rights have always enjoyed a special and privileged place in the Constitution.
Economic growth and social equity are the two pillars of our Constitution which are linked to the rights of
an individual (right to equal opportunity), rather than in the abstract. Some of the rights in Part III
constitute fundamentals of the Constitution like Article 21 read with Articles 14 and 15 which represent
secularism, etc. As held in Nagaraj egalitarian equality exists in Article 14 read with Articles 16(4), (4-
A), (4-B) and, therefore, it is wrong to suggest that equity and justice finds place only in the directive
principles.
106. Parliament has power to amend the provisions of Part III so as to abridge or take away
fundamental rights, but that power is subject to the limitation of basic structure doctrine. Whether the
impact of such amendment results in violation of basic structure has to be examined with reference to
each individual case. Take the example of freedom of press which, though not separately and specifically
guaranteed, has been read as part of Article 19(1)(a). If Article 19(1)(a) is sought to be amended so as to
abrogate such right (which we hope will never be done), the acceptance of the respondent’s contention
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would mean that such amendment would fall outside the judicial scrutiny when the law curtailing these
rights is placed in the Ninth Schedule as a result of immunity granted by Article 31-B. The impact of such
an amendment shall have to be tested on the touchstone of rights and freedoms guaranteed by Part III of
the Constitution. In a given case, even abridgement may destroy the real freedom of the press and, thus,
be destructive of the basic structure. Take another example. The secular character of our Constitution is a
matter of conclusion to be drawn from various articles conferring fundamental rights; and if the secular
character is not to be found in Part III, it cannot be found anywhere else in the Constitution because every
fundamental right in Part III stands either for a principle or a matter of detail. Therefore, one has to take a
synoptic view of the various articles in Part III while judging the impact of the laws incorporated in the
Ninth Schedule on the articles in Part III. It is not necessary to multiply the illustrations.
107. After enunciation of the basic structure doctrine, full judicial review is an integral part of the
constitutional scheme. Khanna, J. in Kesavananda Bharati case was considering the right to property and
it is in that context it was said that no article of the Constitution is immune from the amendatory process.
We may recall what Khanna, J. said while dealing with the words “amendment of the Constitution”. His
Lordship said that these words with all the wide sweep and amplitude cannot have the effect of destroying
or abrogating the basic structure or framework of the Constitution. The opinion of Khanna, J. in Indira
Gandhi clearly indicates that the view in Kesavananda Bharati case is that at least some fundamental
rights do form part of the basic structure of the Constitution. Detailed discussion in Kesavananda Bharati
case to demonstrate that the right to property was not part of the basic structure of the Constitution by
itself shows that some of the fundamental rights are part of the basic structure of the Constitution. The
placement of a right in the scheme of the Constitution, the impact of the offending law on that right, the
effect of the exclusion of that right from judicial review, the abrogation of the principle or the essence of
that right is an exercise which cannot be denied on the basis of fictional immunity under Article 31-B.
108. In Indira Gandhi case Chandrachud, J. posits that equality embodied in Article 14 is part of the
basic structure of the Constitution and, therefore, cannot be abrogated by observing that the provisions
impugned in that case are an outright negation of the right of equality conferred by Article 14, a right
which more than any other is a basic postulate of our Constitution.
109. Dealing with Articles 14, 19 and 21 in Minerva Mills case it was said that these clearly form part
of the basic structure of the Constitution and cannot be abrogated. It was observed that three articles of
our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his
country to awake and the abyss of unrestrained power. These articles stand on altogether different footing.
Can it be said, after the evolution of the basic structure doctrine, that exclusion of these rights at
Parliament’s will without any standard, cannot be subjected to judicial scrutiny as a result of the bar
created by Article 31-B? The obvious answer has to be in the negative. If some of the fundamental rights
constitute a basic structure, it would not be open to immunise those legislations from full judicial scrutiny
either on the ground that the fundamental rights are not part of the basic structure or on the ground that
Part III provisions are not available as a result of immunity granted by Article 31-B. It cannot be held that
essence of the principle behind Article 14 is not part of the basic structure. In fact, essence or principle of
the right or nature of violation is more important than the equality in the abstract or formal sense. The
majority opinion in Kesavananda Bharati case clearly is that the principles behind fundamental rights are
part of the basic structure of the Constitution. It is necessary to always bear in mind that fundamental
rights have been considered to be heart and soul of the Constitution. Rather these rights have been further
defined and redefined through various trials having regard to various experiences and some attempts to
invade and nullify these rights. The fundamental rights are deeply interconnected. Each supports and
strengthens the work of the others. The Constitution is a living document, its interpretation may change as
the time and circumstances change to keep pace with it. This is the ratio of the decision in Indira Gandhi
case.
114. The result of the aforesaid discussion is that since the basic structure of the Constitution includes
some of the fundamental rights, any law granted Ninth Schedule protection deserves to be tested against
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these principles. If the law infringes the essence of any of the fundamental rights or any other aspect of
the basic structure then it will be struck down. The extent of abrogation and limit of abridgment shall
have to be examined in each case.
115. We may also recall the observations made in Special Reference No. 1 of 1964 as follows:
[W]hether or not there is distinct and rigid separation of powers under the Indian Constitution,
there is no doubt that the Constitution has entrusted to the judicature in this country the task of
construing the provisions of the Constitution and of safeguarding the fundamental rights of the
citizens. When a statute is challenged on the ground that it has been passed by a legislature
without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it is for
the courts to determine the dispute and decide whether the law passed by the legislature is valid
or not. Just as the legislatures are conferred legislative authority and their functions are normally
confined to legislative functions, and the functions and authority of the executive lie within the
domain of executive authority, so the jurisdiction and authority of the judicature in this country
lie within the domain of adjudication. If the validity of any law is challenged before the courts, it
is never suggested that the material question as to whether legislative authority has been
exceeded or fundamental rights have been contravened, can be decided by the legislatures
themselves. Adjudication of such a dispute is entrusted solely and exclusively to the judicature of
this country.
116. We are of the view that while laws may be added to the Ninth Schedule, once Article 32 is
triggered, these legislations must answer to the complete test of fundamental rights. Every insertion into
the Ninth Schedule does not restrict Part III review, it completely excludes Part III at will. For this reason,
every addition to the Ninth Schedule triggers Article 32 as part of the basic structure and is consequently
subject to the review of the fundamental rights as they stand in Part III.
Extent of judicial review in the context of amendments to the Ninth Schedule
117. We are considering the question as to the extent of judicial review permissible in respect of the
Ninth Schedule laws in the light of the basic structure theory propounded in Kesavananda Bharati case.
In this connection, it is necessary to examine the nature of the constituent power exercised in amending a
Constitution.
118. We have earlier noted that the power to amend cannot be equated with the power to frame the
Constitution. This power has no limitations or constraints, it is primary power, a real plenary power. The
latter (sic former) power, however, is derived from the former (sic latter). It has constraints of the
document viz. Constitution which creates it. This derivative power can be exercised within the four
corners of what has been conferred on the body constituted, namely, Parliament. The question before us is
not about power to amend Part III after 24-4-1973. As per Kesavananda Bharati power to amend exists
in Parliament but it is subject to the limitation of doctrine of basic structure. The fact of validation of laws
based on exercise of blanket immunity eliminates Part III in entirety hence the “rights test” as part of the
basic structure doctrine has to apply.
121. As already stated, in Indira Gandhi case for the first time, the constitutional amendment that
was challenged did not relate to property right but related to free and fair election. As is evident from
what is stated above that the power of amending the Constitution is a species of law-making power which
is the genus. It is a different kind of law-making power conferred by the Constitution. It is different from
the power to frame the Constitution i.e., a plenary law-making power as described by Seervai in
Constitutional Law of India (4th Edn.).
122. The scope and content of the words “constituent power” expressly stated in the amended Article
368 came up for consideration in Indira Gandhi case. Article 329-A(4) was struck down because it
crossed the implied limitation of amending power, that it made the controlled Constitution uncontrolled,
that it removed all limitations on the power to amend and that it sought to eliminate the golden triangle of
Article 21 read with Articles 14 and 19.
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123. It is Kesavananda Bharati case read with clarification of Khanna, J. in Indira Gandhi case
which takes us one step forward, namely, that fundamental rights are interconnected and some of them
form part of the basic structure as reflected in Article 15, Article 21 read with Article 14, Article 14 read
with Articles 16(4), (4-A), (4-B), etc., Bharati and Indira Gandhi cases have to be read together and if so
read the position in law is that the basic structure as reflected in the above articles provide a test to judge
the validity of the amendment by which laws are included in the Ninth Schedule.
124. Since power to amend the Constitution is not unlimited, if changes brought about by
amendments destroy the identity of the Constitution, such amendments would be void. That is why when
entire Part III is sought to be taken away by a constitutional amendment by the exercise of constituent
power under Article 368 by adding the legislation in the Ninth Schedule, the question arises as to the
extent of judicial scrutiny available to determine whether it alters the fundamentals of the Constitution.
Secularism is one such fundamental, equality is the other, to give a few examples to illustrate the point. It
would show that it is impermissible to destroy Articles 14 and 15 or abrogate or en bloc eliminate these
fundamental rights. To further illustrate the point, it may be noted that Parliament can make additions in
the three legislative lists, but cannot abrogate all the lists as it would abrogate the federal structure.
125. The question can be looked at from yet another angle also. Can Parliament increase the
amending power by amendment of Article 368 to confer on itself the unlimited power of amendment and
destroy and damage the fundamentals of the Constitution? The answer is obvious. Article 368 does not
vest such a power in Parliament. It cannot lift all restrictions placed on the amending power or free the
amending power from all its restrictions. This is the effect of the decision in Kesavananda Bharati case
as a result of which secularism, separation of power, equality, etc., to cite a few examples, would fall
beyond the constituent power in the sense that the constituent power cannot abrogate these fundamentals
of the Constitution. Without equality the rule of law, secularism, etc. would fail. That is why Khanna, J.
held that some of the fundamental rights like Article 15 form part of the basic structure.
126. If constituent power under Article 368, the other name for amending power, cannot be made
unlimited, it follows that Article 31-B cannot be so used as to confer unlimited power. Article 31-B
cannot go beyond the limited amending power contained in Article 368. The power to amend Ninth
Schedule flows from Article 368. This power of amendment has to be compatible with the limits on the
power of amendment. This limit came with Kesavananda Bharati case. Therefore, Article 31-B after 24-
4-1973 despite its wide language cannot confer unlimited or unregulated immunity.
127. To legislatively override entire Part III of the Constitution by invoking Article 31-B would not
only make the fundamental rights overridden by directive principles but it would also defeat fundamentals
such as secularism, separation of powers, equality and also the judicial review which are the basic
features of the Constitution and essential elements of rule of law and that too without any
yardstick/standard being provided under Article 31-B.
128. Further, it would be incorrect to assume that social content exists only in directive principles and
not in the fundamental rights. Articles 15 and 16 are facets of Article 14. Article 16(1) concerns formal
equality which is the basis of the rule of law. At the same time, Article 16(4) refers to egalitarian equality.
Similarly, the general right of equality under Article 14 has to be balanced with Article 15(4) when
excessiveness is detected in grant of protective discrimination. Article 15(1) limits the rights of the State
by providing that there shall be no discrimination on the grounds only of religion, race, caste, sex, etc.,
and yet it permits classification for certain classes, hence social content exists in fundamental rights as
well. All these are relevant considerations to test the validity of the Ninth Schedule laws.
129. Equality, rule of law, judicial review and separation of powers form parts of the basic structure
of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there
is no equality before the law. These would be meaningless if the violation was not subject to the judicial
review. All these would be redundant if the legislative, executive and judicial powers are vested in one
organ. Therefore, the duty to decide whether the limits have been transgressed has been placed on the
judiciary.
377 | P a g e
130. Realising that it is necessary to secure the enforcement of the fundamental rights, power for such
enforcement has been vested by the Constitution in the Supreme Court and the High Courts. Judicial
review is an essential feature of the Constitution. It gives practical content to the objectives of the
Constitution embodied in Part III and other parts of the Constitution. It may be noted that the mere fact
that equality, which is a part of the basic structure, can be excluded for a limited purpose, to protect
certain kinds of laws, does not prevent it from being part of the basic structure. Therefore, it follows that
in considering whether any particular feature of the Constitution is part of the basic structure– rule of law,
separation of powers - the fact that limited exceptions are made for limited purposes, to protect certain
kind of laws, does not mean that it is not part of the basic structure.
133. Every amendment to the Constitution whether it be in the form of amendment of any article or
amendment by insertion of an Act in the Ninth Schedule, has to be tested by reference to the doctrine of
basic structure which includes reference to Article 21 read with Article 14, Article 15, etc. As stated, laws
included in the Ninth Schedule do not become part of the Constitution, they derive their validity on
account of the exercise undertaken by Parliament to include them in the Ninth Schedule. That exercise
has to be tested every time it is undertaken. In respect of that exercise the principle of compatibility will
come in. One has to see the effect of the impugned law on one hand and the exclusion of Part III in its
entirety at the will of Parliament.
134. In Waman Rao it was accordingly rightly held that the Acts inserted in the Ninth Schedule after
24-4-1973 would not receive the full protection.
Exclusion of judicial review if compatible with the doctrine of basic structure – concept of judicial
review
135. Judicial review is justified by combination of “the principle of separation of powers, rule of law,
the principle of constitutionality and the reach of judicial review” (Democracy Through Law by Lord
Styen, p. 131).
136. The role of the judiciary is to protect fundamental rights. A modern democracy is based on the
twin principles of majority rule and the need to protect fundamental rights. According to Lord Styen, it is
job of the judiciary to balance the principles ensuring that the Government on the basis of number does
not override fundamental rights.
Application of doctrine of basic structure
137. In Kesavananda Bharati case the discussion was on the amending power conferred by
unamended Article 368 which did not use the words “constituent power”. We have already noted the
difference between original power of framing the Constitution known as constituent power and the nature
of constituent power vested in Parliament under Article 368. By addition of the words “constituent
power” in Article 368, the amending body, namely, Parliament does not become the original Constituent
Assembly. It remains a Parliament under a controlled Constitution. Even after the words “constituent
power” are inserted in Article 368, the limitations of doctrine of basic structure would continue to apply
to Parliament. It is on this premise that clauses (4) and (5) inserted in Article 368 by the 42 nd Amendment
were struck down in Minerva Mills case.
138. The relevance of Indira Gandhi case, Minerva Mills case and Waman Rao case lies in the fact
that every improper enhancement of its own power by Parliament, be it clause (4) of Article 329-A or
clauses (4) and (5) of Article 368 or Section 4 of the 42nd Amendment has been held to be incompatible
with the doctrine of basic structure as they introduced new elements which altered the identity of the
Constitution or deleted the existing elements from the Constitution by which the very core of the
Constitution is discarded. They obliterated important elements like judicial review. They made directive
principles en bloc a touchstone for obliteration of all the fundamental rights and provided for insertion of
laws in the Ninth Schedule which had no nexus with agrarian reforms. It is in this context that we have to
examine the power of immunity bearing in mind that after Kesavananda Bharati case Article 368 is
subject to implied limitation of basic structure.
378 | P a g e
139. The question examined in Waman Rao case was whether the device of Article 31-B could be
used to immunise the Ninth Schedule laws from judicial review by making the entire Part III inapplicable
to such laws and whether such a power was incompatible with basic structure doctrine. The answer was in
the affirmative. It has been said that it is likely to make the controlled Constitution uncontrolled. It would
render the doctrine of basic structure redundant. It would remove the golden triangle of Article 21 read
with Article 14 and Article 19 in its entirety for examining the validity of the Ninth Schedule laws as it
makes the entire Part III inapplicable at the will of Parliament. This results in the change of the identity of
the Constitution which brings about incompatibility not only with the doctrine of basic structure but also
with the very existence of limited power of amending the Constitution. The extent of judicial review is to
be examined having regard to these factors.
140. The object behind Article 31-B is to remove difficulties and not to obliterate Part III in its
entirety or judicial review. The doctrine of basic structure is propounded to save the basic features. Article
21 is the heart of the Constitution. It confers right to life as well as right to choose. When this triangle of
Article 21 read with Article 14 and Article 19 is sought to be eliminated not only the “essence of right”
test but also the “rights test” has to apply, particularly when Kesavananda Bharati and Indira Gandhi
cases have expanded the scope of basic structure to cover even some of the fundamental rights.
141. The doctrine of basic structure contemplates that there are certain parts or aspects of the
Constitution including Article 15, Article 21 read with Articles 14 and 19 which constitute the core values
which if allowed to be abrogated would change completely the nature of the Constitution. Exclusion of
fundamental rights would result in nullification of the basic structure doctrine, the object of which is to
protect basic features of the Constitution as indicated by the synoptic view of the rights in Part III.
142. There is also a difference between the “rights test” and the “essence of right” test. Both form part
of application of the basic structure doctrine. When in a controlled Constitution conferring limited power
of amendment, an entire chapter is made inapplicable, “the essence of right” test as applied in M. Nagaraj
case will have no applicability. In such a situation, to judge the validity of the law, it is the “rights test”
which is more appropriate. We may also note that in Minerva Mills and Indira Gandhi cases elimination
of Part III in its entirety was not in issue. We are considering the situation where the entire equality code,
freedom code and right to move court under Part III are all nullified by exercise of power to grant
immunisation at will by Parliament which, in our view, is incompatible with the implied limitation of the
power of Parliament. In such a case, it is the rights test that is appropriate and is to be applied. In Indira
Gandhi case it was held that for the correct interpretation, Article 368 requires a synoptic view of the
Constitution between its various provisions which, at first sight, look disconnected. Regarding Articles
31-A and 31-C (validity whereof is not in question here) having been held to be valid despite denial of
Article 14, it may be noted that these articles have an indicia which is not there in Article 31-B.
143. Part III is amendable subject to basic structure doctrine. It is permissible for the legislature to
amend the Ninth Schedule and grant a law the protection in terms of Article 31-B but subject to right of
citizen to assail it on the enlarged judicial review concept. The legislature cannot grant fictional
immunities and exclude the examination of the Ninth Schedule law by the court after the enunciation of
the basic structure doctrine.
144. The constitutional amendments are subject to limitations and if the question of limitation is to be
decided by Parliament itself which enacts the impugned amendments and gives that law a complete
immunity, it would disturb the checks and balances in the Constitution. The authority to enact law and
decide the legality of the limitations cannot vest in one organ. The validity to the limitation on the rights
in Part III can only be examined by another independent organ, namely, the judiciary.
145. The power to grant absolute immunity at will is not compatible with basic structure doctrine and,
therefore, after 24-4-1973 the laws included in the Ninth Schedule would not have absolute immunity.
Thus, validity of such laws can be challenged on the touchstone of basic structure such as reflected in
Article 21 read with Article 14 and Article 19, Article 15 and the principles underlying these articles.
146. It has to be borne in view that the fact that some articles in Part III stand alone has been
379 | P a g e
recognised even by Parliament, for example, Articles 20 and 21. Article 359 provides for suspension of
the enforcement of the rights conferred by Part III during Emergencies. However, by the Constitution
(Forty-fourth Amendment) Act, 1978, it has been provided that even during Emergencies, the
enforcement of the rights under Articles 20 and 21 cannot be suspended. This is the recognition given by
Parliament to the protections granted under Articles 20 and 21. No discussion or argument is needed for
the conclusion that these rights are part of the basic structure or framework of the Constitution and, thus,
immunity by suspending those rights by placing any law in the Ninth Schedule would not be
countenanced. It would be an implied limitation on the constituent power of amendment under Article
368. Same would be the position in respect of the rights under Article 32, again, a part of the basic
structure of the Constitution.
147. The doctrine of basic structure as a principle has now become an axiom. It is premised on the
basis that invasion of certain freedoms needs to be justified. It is the invasion which attracts the basic
structure doctrine. Certain freedoms may justifiably be interfered with. If freedom, for example, is
interfered with in cases relating to terrorism, it does not follow that the same test can be applied to all the
offences. The point to be noted is that the application of a standard is an important exercise required to be
undertaken by the Court in applying the basic structure doctrine and that has to be done by the Courts and
not by prescribed authority under Article 368. The existence of the power of Parliament to amend the
Constitution at will, with requisite voting strength, so as to make any kind of laws that excludes Part III
including power of judicial review under Article 32 is incompatible with the basic structure doctrine.
Therefore, such an exercise if challenged, has to be tested on the touchstone of basic structure as reflected
in Article 21 read with Article 14 and Article 19, Article 15 and the principles thereunder.
148. The power to amend the Constitution is subject to the aforesaid axiom. It is, thus, no more
plenary in the absolute sense of the term. Prior to Kesavananda Bharati the axiom was not there.
Fictional validation based on the power of immunity exercised by Parliament under Article 368 is not
compatible with the basic structure doctrine and, therefore, the laws that are included in the Ninth
Schedule have to be examined individually for determining whether the constitutional amendments by
which they are put in the Ninth Schedule damage or destroy the basic structure of the Constitution. This
Court being bound by all the provisions of the Constitution and also by the basic structure doctrine has
necessarily to scrutinise the Ninth Schedule laws. It has to examine the terms of the statute, the nature of
the rights involved, etc., to determine whether in effect and substance the statute violates the essential
features of the Constitution. For so doing, it has to first find whether the Ninth Schedule law is violative
of Part III. If on such examination, the answer is in the affirmative, the further examination to be
undertaken is whether the violation found is destructive of the basic structure doctrine. If on such further
examination the answer is again in affirmative, the result would be invalidation of the Ninth Schedule
law. Therefore, first the violation of rights of Part III is required to be determined, then its impact
examined and if it shows that in effect and substance, it destroys the basic structure of the Constitution,
the consequence of invalidation has to follow. Every time such amendment is challenged, to hark back to
Kesavananda Bharati upholding the validity of Article 31-B is a surest means of a drastic erosion of the
fundamental rights conferred by Part III.
149. Article 31-B gives validation based on fictional immunity. In judging the validity of
constitutional amendment we have to be guided by the impact test. The basic structure doctrine requires
the State to justify the degree of invasion of fundamental rights. Parliament is presumed to legislate
compatibly with the fundamental rights and this is where judicial review comes in. Greater the invasion
into essential freedoms, greater is the need for justification and determination by Court whether invasion
was necessary and if so, to what extent. The degree of invasion is for the Court to decide. Compatibility is
one of the species of judicial review which is premised on compatibility with rights regarded as
fundamental. The power to grant immunity, at will, on fictional basis, without full judicial review, will
nullify the entire basic structure doctrine. The golden triangle referred to above is the basic feature of the
Constitution as it stands for equality and rule of law.
380 | P a g e
150. The result of the aforesaid discussion is that the constitutional validity of the Ninth Schedule
laws on the touchstone of basic structure doctrine can be adjudged by applying the direct impact and
effect test i.e., rights test, which means the form of an amendment is not the relevant factor, but the
consequence thereof would be determinative factor.
151. In conclusion, we hold that:
(i) A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate
the basic structure doctrine or it may not. If former is the consequence of the law, whether by
amendment of any article of Part III or by an insertion in the Ninth Schedule, such law will have to be
invalidated in exercise of judicial review power of the Court. The validity or invalidity would be
tested on the principles laid down in this judgment.
(ii) The majority judgment in Kesavananda Bharati case read with Indira Gandhi case requires
the validity of each new constitutional amendment to be judged on its own merits. The actual effect
and impact of the law on the rights guaranteed under Part III has to be taken into account for
determining whether or not it destroys basic structure. The impact test would determine the validity of
the challenge.
(iii) All amendments to the Constitution made on or after 24-4-1973 by which the Ninth Schedule
is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic
or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and
the principles underlying them. To put it differently even though an Act is put in the Ninth Schedule
by a constitutional amendment, its provisions would be open to attack on the ground that they destroy
or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or
pertain to the basic structure.
(iv) Justification for conferring protection, not blanket protection, on the laws included in the
Ninth Schedule by constitutional amendments shall be a matter of constitutional adjudication by
examining the nature and extent of infraction of a fundamental right by a statute, sought to be
constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article
21 read with Article 14 and Article 19 by application of the “rights test” and the “essence of the right”
test taking the synoptic view of the articles in Part III as held in Indira Gandhi case. Applying the
above tests to the Ninth Schedule laws, if the infraction affects the basic structure then such law(s)
will not get the protection of the Ninth Schedule.
This is our answer to the question referred to us vide order dated 14-9-1999 in I.R. Coelho v.
State of T.N.
(v) If the validity of any Ninth Schedule law has already been upheld by this Court, it would not
be open to challenge such law again on the principles declared by this judgment. However, if a law
held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after
24-4-1973, such a violation/infraction shall be open to challenge on the ground that it destroys or
damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the
principles underlying thereunder.
(vi) Action taken and transactions finalised as a result of the impugned Acts shall not be open to
challenge.
152. We answer the reference in the above terms and direct that the petitions/appeals be now placed
for hearing before a three-Judge Bench for decision in accordance with the principles laid down herein.
T H E E N D
381 | P a g e

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Constitutional Law-II : : LB-401 BA LL.B./BBA LL.B.

Course Contents & Reading Materials

Paper Code: LB.401 2018-19

Chanchal Kumar Singh

Himachal Pradesh National Law University Shimla, P.O. Shakrah, Sub-Tehsil

For Private Circulation only HPNLU, Shimla

Important Notes for Students:

3. Students are required to study the Constitution of India as amended up-to-date

Page 2 of 8 for private circulation only

For Private Ciculation only Constitutional Law-II LB-401 HPNLU Shimla

HIMACHAL PRADESH NATIONAL LAW UNIVERSITY,

B.A./B.B.A. LL.B. (Hons.) PAPER CODE: LLB -401

COURSE TITLE: Constitutional Law-II CREDITS-04

Objectives: The Constitution of India is an exhaustive document, laying the

The primary objectives of this course are: -

A- COURSE-CONTENT (subject to changes)

Page 3 of 8 for private circulation only

For Private Ciculation only Constitutional Law-II LB-401 HPNLU Shimla

Module- 1 : (24 Lectures)

Fundamental Rights (State and Code of Equality)

4) Zee Telefilms Ltd. v. Union of India (2005) 4 SCC 649 p.22-28

7) Bhikaji Narain Dhhakras v. State of M. P. (1955) 2SCR 589 p.44-47

8) Common Couse v. UOI (March) 2018

9) RMDC v. Union of India, AIR 1957 SC 628

11) Indra Sawhney v. Union of India, AIR 1993 SC 477 p.54-88

12) Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1 p.89-122

13) M. Nagraj v. Union of India (2006) 8 SCC 212 p.123-139

Page 4 of 8 for private circulation only

For Private Ciculation only Constitutional Law-II LB-401 HPNLU Shimla

16) Ram Singh v. Union of India (2015) 4SCC 697 p.144-150

19) Safai Karmachari Andolan v. Union of India, 27 March 2014 p.155-157

Module-2 : (18 Lectures)

2) Secretary, Ministry of I & B, State of W. B v. Cricket Association(1995) 2 SCC

3) Shreya Singhal v. Union of India (2013)12 SCC 73 p.190-206

4) Smt. Selvi and Ors. v. State of Karnataka, AIR 2010 SC 1974

5) Maneka Gandhi v. Union of India, AIR 1978 SC 597 p.207-218

6) K. S. Puttaswamy v. Union of India (2017) 10 SCC 1 p. 219-244

Page 5 of 8 for private circulation only

For Private Ciculation only Constitutional Law-II LB-401 HPNLU Shimla

7) National Legal Services Authority v. Union of India, (2014) 5 SCC 438

8) Animal Welfare Board Of India v. A. Nagaraja & Ors.(2014) 7 SCC 547

9) Pramati Educational and Cultural Trust v. Union of India 2014.

Module-3 : (15 Lectures)

1) Seshammal v. State of Tamil Nadu (1972) 2 SCC 11 p.278-288

3) Shayara Bano v. Union of India (2017) 9 SCC 1 p.299-316

4) Rev. Stainislaus v. State of M.P., AIR 1977 SC 908

6) Islamic Academy of Education v. State of Karnataka, JT 2003 (7) SC 1

7) T.M.A. Pai Foundation v. State of Karnataka, AIR 2003 SC 355

8) P.A. Inamdar v. State of Maharashtra, AIR 2005 SC 3236 p.338-358

Module-4 : (08 Lectures)

For Private Ciculation only Constitutional Law-II LB-401 HPNLU Shimla

Directive Principles of State Policy; Fundamental Rights and

3) Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461

3) Jain, M.P., (7th ed., 2017), Indian Constitutional Law

4) Basu, D.D., (15th ed., 2018), Shorter Constitution of India

For Private Ciculation only Constitutional Law-II LB-401 HPNLU Shimla

5) Concept of “Developmental Clause(s)”: Dennis M. Davis & Karl Clair, Transformative

8) P. K. Tripathi, Some Insights into Fundamental Rights (1972).

Page 8 of 8 for private circulation only

For Private Ciculation only Constitutional Law-II LB-401 HPNLU Shimla

Tests to decide which “other authorities” could be considered as

Som Prakash Rekhi v. Union of India

For Private Ciculation only Constitutional Law-II LB-401 HPNLU Shimla