Youth for equality v union of India

Name of the court: Supreme court

Bench: Sharad Bobde, Subhash Reddy and Bhushan Gavai

Citation: LNINDORD 2013 SC 8672

Subject: constitutionality of 103rd amendment act, 2019.

Facts:

On 9 January 2019, the Parliament of India enacted the Constitution (One Hundred and Third
Amendment) Act, 2019 and enabled the State to make reservations in higher education and
matters of public employment on the basis of economic criteria alone. The Act amends
Articles 15 and 16 of the Constitution, introducing 15(6) and 16(6). It received presidential
assent on 12 January 2019 and was published in the Gazette on the same day.

The amendment under Article 15(6) enables the State to make special provisions for the
advancement of any economically weaker section of citizens, including reservations in
educational institutions. It states that such reservation can be made in any educational
institution, including private institutions, whether aided or unaided, except minority
educational institutions covered under Article 30(1). It further states that the upper limit of
EWS reservations will be 10% (meaning 10% of seats can be reserved for citizens falling in
the EWS category). This 10% ceiling is independent of ceilings on existing reservations.

Article 16(6) enables the State to make provisions for reservation in appointments. Again,
these provisions will be subject to a 10% ceiling, in addition to the existing reservations.

More than 20 petitions have been filed challenging the constitutional validity of the 103rd
Amendment. They argue that the amendment violates the basic features of the Constitution
and violates the fundamental right to equality under Article 14.

Issue:

1. Whether the exclusion of the economically weaker sections of the OBC/SC/ST from
the scope of the economic reservation is a fundamental violation of the equality code
or not? And permitting the reservation to exceed the limit of 50% is constitutionally
valid or not?

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Reasoning:

The system of reservation is not entirely based on casteism and thus divides the society
leading to discrimination and conflicts between different categories. It is the converse of a
communal living. Reforms in reservation system is the need of the hour. The reservation
system has mostly led to a conflict between the reserved and the unreserved categories of the
country. Observing from a neutral perspective it can be stated that although reservation is
needed for the country but at the same time there is a need to create a system which supports
affirmative action more than appeasement politics. Any negative aspect of reservation should
not serve as a hurdle for the development of rapidly growing economy of India.”

The present amendment is violative of the principle of Equality as it damages the

constitutional identity of the Articles enshrined in the Equality Code and the Parliament has
acted has made excessive use of their legislative powers to enact this Amendment.
Furthermore, the Amendment violates the 50% Rule which is part of the Basic Structure.
Also, the Present Amendment destroys the principle of Substantive Democracy by granting
reservation to well represented classes.

Conclusion:

Thus, the 103rd Amendment has the effect of enhancing and cementing the representation of
those who are already over-represented in the public services relative to other population,
who own a disproportionate percentage of the country’s wealth. This does violence to the
concept of equality as is commonly understood and changes it beyond recognition and fails
the “identity test” prescribed in M. Nagaraj.

A Constitutional amendment can be struck down by the Supreme Court if it has the effect of
destroying or abrogating the “basic structure” of the Constitution as given in Preamble.”

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The State of Meghalaya vs Melvin Sohlang piaw

Name of the court: Supreme court

Bench: Mohan M. Shantanagoudar, R. Subhash Reddy

Citation: 2020 Indlaw SC 162

Facts:

According to the prosecution, a woman’s body was found on the bank of the Nondein on
March 26, 2017. The deceased was identified as belonging to the Khasi tribe. With the use of
a SIM card recovered from her possessions, the last calls from her number were traced to
Melvin Sohlangpiaw, also belonging to the Khasi tribe. Sohlangpiaw was arrested and led the
police to the spot where he had buried the body. The body had possibly surfaced from the site
in the flow of water. Sohlangpiaw was subsequently tried by the sessions judge, Nongstoin,
West Khasi Hills. However, he appealed for the transfer of the case to the court of the judge,
Khasi Hills Autonomous District Council, Shillong, on the basis that the parties to the case
were both tribals, and hence, the case should be exclusively tried by the district council court.

The high court allowed the transfer vide the impugned judgment of December 5, 2017.

Issue:

Whether the district council court has the exclusive jurisdiction to entertain such a case or
not?

Reasoning:

The Supreme Court noted that the area where the alleged offence was said to have occurred,
West Khasi Hills district, is a notified autonomous district included in the table appended to
paragraph 20 of the Sixth Schedule, which deals with the administration of tribal areas in
Assam, Meghalaya, Mizoram and Tripura.

“In the instant case, it is an admitted position that both the victim and the respondent accused
belong to the Khasi Scheduled Tribe. Thus, given that there is a specific notification dated
07.02.2017 that confers the district council court with powers under the CrPC to try certain
criminal offences, we find that such conferral should be given effect. In fact, upon combined
reading of paragraphs 4 and 5 of the Sixth Schedule, such district council court has the
exclusive jurisdiction to entertain such a case,” the court stated.

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Conclusion:

It said it did not find any ground to interfere with the high court judgment, as it was
“justified” in transferring the criminal case against the accused.

The court also directed the district council court to issue fresh summons to the accused, if he
has not already appeared, and to proceed with the trial after framing of charges in accordance
with law.

Given that the incident occurred in March 2017, the Supreme Court directed the district
council to complete the trial and decide the matter on merits as early as possible but not later
than one year from the date of its order.

Ramesh sankha v union of india and ors.

Name of the court: Supreme court

Bench: R. Subhash Reddy,

Citation:

Facts:

 Mr. Ramesh Sankha, CEO of the respondent company filed a writ petition before the
supreme court seeking for the CBI investigation against the respondent company. He
made some allegations against the company.
 The petitioner claimed that he had to face a heavy loss to the public exchequer due to
irregularities in financial dealing by the respondent company.
 The writ petitioner had also submitted some documents to show that the prayer made by
the writ petitioner in the petition deserves for the consideration.
 On the meantime, the respondent company claimed that the writ petition is not
maintainable because it is not bona fide petition and the writ petitioner had suppressed
several material facts in the writ petition
 The respondent company also submitted before the court that the petitioner came before
the court to meet his losses. He also mentioned that many civil suits were pending
between them in the civil court, and the petitioner filed the writ petition with the motive
to tarnish the reputation of the respondent in the market.
 The petition did not involve any violation of fundamental right as mentioned in part III of
the Indian constitution of the petitioner, included by the respondent company.

4
Issue:

Whether the writ under Article 32 of the Indian constitution is maintainable for enforcement
of personal contractual rights against their employers or not?

Reasoning:

Article 32 of the Indian constitution empowers the supreme court to issue writ for the
enforcement of fundamental rights conferred by part III of the Indian constitution.

Writ is a remedy which is available to the citizen by which they can directly go to the
supreme court (U/A 32) for the enforcement for their fundamental rights conferred by the part
III of the constitution.

Conclusion

The supreme court bench, comprising of justice Abhay Manohar Saper and Justice R. Subash
Reddy had observed that-

No writ lies under article 32 of the Indian constitution at the instance of any employee or the
employer for claiming enforcement of any personal contractual rights inter se the employee
and his employer.

If any employee has any personal grievance against the employer arises out of any
contractual rights or other agreement between the employee and the employer, then they can
file a civil suit before the civil courts claiming their damages.

Indian Young Lawyers’ Association v. State of Kerala

Name of the court: supreme court

Bench: Deepak Mishra, A.N. Khanwilkar, Rohintan Nariman, Indu Malhotra, D.Y.
Chandrachud

Citation: Writ Petition (Civil) No 373 of 2006

Facts:

Sabarimala Temple, devoted to Lord Ayyappa, is a temple of great antiquity. The temple is
situated over one of the eighteen mountains spread over the Western Ghats known as
Sannidhanam. Situated in the district of Pathanamthitta in Kerala. The faithful believe that
Lord Ayyappa’s powers derive from his asceticism, in particular from his being celibate.

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Celibacy is a practice adopted by pilgrims before and during the pilgrimage. Those who
believe in Lord Ayyappa and offer prayers are expected to follow a strict ‘Vratham’ or a vow
over a period of 41 days which lays down a set of practices.

The practise of prohibiting the entry of women and barring their participation in the 41 days
penance ‘vratham’ has been observed by the Ayyapan community since time immemorial as
claimed by the Thantri of the temple.

In 1990, S Mahendran filed a plea in Kerala High Court seeking a ban on women’s exclusion
of entry to the temple. But Kerala High Court upheld the age-old restriction on women of a
certain age-group entering the temple. On August 4, 2006, the Indian Young Lawyers
Association filed a plea in the Supreme Court seeking to ensure entry of female devotees
between the age group of 10 to 50 at the Lord Ayyappa Temple at Sabarimala.

On September 28, 2018, the Supreme Court passed a verdict that allows entry of women in
Sabarimala temple. This judgment addressed various issues before coming to this verdict, the
article will further address the issues raised by the petitioners and discussed in the case.

Issue:

 Does practice of not including women constitute an “essential religious practice” under
Article 25 and can a religious institution claim that it comes under the umbrella of right to
manage its own affairs in the matters of religion?
 Whether Ayyappa Temple has a denominational character and, if so, is it permissible on
the part of a ‘religious denomination’ managed by a statutory board and financed under
Article 290-A of the Constitution of India out of the Consolidated Fund of Kerala and
Tamil Nadu to indulge in such practices violating constitutional principles/ morality
embedded in Articles 14, 15(3), 39(a) and 51-A(e)?
 Does Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules
permits ‘religious denomination’ to ban entry of women between the ages of 10 to 50
years? Or if it does then is it violation of Article 14 and 15(1) of the constitution by
prohibiting entry of women on the ground of sex?

Reasoning:

Constitutional morality is adherence to the basic principle of the constitution on which the
heart and soul of the constitution is based. It does not only include the principles mentioned

6
in the constitution but it also includes the implicit ideas of Human Rights which are though
not specifically mentioned but forms the essence of morality.

SC Judgement:

The court by considering and deliberating over every important factor delivered a judgment
in favour of the petitioner in a 4:1 majority. The court’s reasoning is discussed below.

Review petition:

In 2018, when SC had declared through its judgment that any woman of any age is allowed to
access the Sabarimala temple. The judgment agitated a larger section of the society as it
tampers with their religious belief and sentiments which were running since time
immemorial. So the judgment created unrest among the male section, right-wing and
religiously staunch people and it was not much welcomed by them, so they resorted to filing
review petitions in the Court.

The Petition was filed against the 2018 judgement of the Supreme Court and the main
question of contention here was that does Supreme Court’s scope is wide enough to interpret
and intervene in the matters of religion and faith. Petitioners here contended that the worship
in temple is based on the celibate character of the deity. Constitutional morality is purely a
subjective test, and it shouldn’t be used in interpretation of faith. It affects their Right to
practice their religion on their own. The concept of untouchability which was brought in the
2018 judgment was said to be erroneous because this concept was applied to the context
without due deliberation and consideration. The court thus decided to keep the review
petitions on hold and also stayed with the 2018 order which granted women the right to enter
the temple until a larger bench decides this issue as this issue of women’s entry to the
Sabarimala temple is not restricted but there are other similar issues in line which also gets
affected by this judgment. So the best is to not deliver any judgment on it as of now.

Conclusion:

This judgment comes as a landmark judgment especially during a time when the country is
religiously divided. India is a country where religion plays a very crucial role in shaping
society. The judgment is a progressive one and set an example that the orthodoxy,
superstition, and patriarchy would never undermine the spirit of constitutional morality.
Though while looking into the petitions court has agreed to consider different matters
concerned to it in the future but it again upheld the same principle and did not take away

7
women’s rights which were given to them in 2018 ruling. The Supreme Court has thus shown
that the basic essence of equality and morality is above any other principle and will be upheld
always and forever above all.

Oudh sugar mills ltd v union of india and anr

Name of the court: Supreme court

Bench: J Shah, K Hegde, R. Subash Reddy

Citation: AIR 1970 SC 1070

Facts:

The appellant is a public limited company namely Oudh Sugar Mills Ltd., situated at
Hargaon, District Sitapur in the State of Uttar Pradesh. The appellant company invoked the
jurisdiction of the High Court under Article 226 of the Constitution of India by seeking the
reliefs. As the appellant did not press for relief on the declaration sought on the validity of
Section 3(2)(f) and 3(3c) of the Essential Commodities Act, 1955, the High Court did not go
into the same as such.

For the crushing years 1984-85 and 1985-86 the appellant sugar mill was placed in central
zone for the purpose of fixation of price for the levy sugar. Mainly, it was the case of the
appellant that the geographical and climatic conditions of the sugar mills in the District of
Sitapur, stand on the same footing as that of other similarly placed sugar factories namely
Seksaria Biswan Sugar Factory Ltd. Biswan, District Sitapur and Kisan Sahkari Chini Mills
Ltd. Mahmoodabad (Awadh), District Sitapur. Inspite of the same, these two factories were
included in the eastern zone, while the appellant factory was discriminated against and kept
in the central zone for the purpose of fixation of levy sugar price for the crushing years 1984-
85 and 1985-86.

Issue:

Whether Section 3(2)(f) and Section 3 (3c) of the Essential Commodities Act, 1955 is ultra
vires of Article 14 and 19(1)(g) of the Constitution of India or not?

Reasoning:

The price of levy sugar is fixed for a zone with an intention to ensure to the manufacturers of
the sugar in the zone a reasonable return on their overall production and investment, provided

8
that the units are running economically and efficiently. Sugar was a controlled commodity
during the relevant time, covered by the provisions of the Essential Commodities Act, 1955.
Certain quantity of sugar called levy sugar, was to be supplied to the Government at a price
fixed by the Government and rest of the same was levy free sugar, which could be sold in
open market. The price of levy sugar was fixed based on the Control Order framed under the
Essential Commodities Act. The price of levy sugar was fixed by the Central Government,
having regard to various factors, including the basis of basic-cost schedules drawn and
recommended by the expert body.

Judgement:

Court did not found any illegality in the impugned order dated 18.07.2006 dismissing the
Writ Petition and further order dated 11.09.2007 dismissing the Review Petition No.253 of
2006, by the High Court. The High Court has considered the material in detail and by
recording correct findings rejected the plea of the appellant. In view of such findings
recorded and other reasons referred above, SC do not find any merit in these appeals so as to
interfere with the same. These appeals are, accordingly, dismissed with no order as to costs.

Pursuant to interim orders passed by this Court, 50% of the amount demanded is deposited by
the appellant in the Registry and for the remaining 50% bank guarantees are furnished. SC
allow the respondent C. Government for withdrawal of such amount covered by deposit as
well as bank guarantees and accrued interest thereon.

Pravakar mallick ans another v. state of orissa and ors.

Name of the court: Supreme Court

Bench: Hon'ble Mr. Justice Mohan M. Shantanagoudar and Hon'ble Mr. Justice R.
Subhash Reddy

Citation:

Facts:

The Government of India, Ministry of Personnel, Public Grievances and Pensions, the State
Government of Orrisa passed a resolution dated 20/03/2002. This impugned order provided
reservation to SC and ST in promotional posts in Orissa Administrative Services with
consequential seniority. It is further ordered that the government servants belonging to
SCs/STs shall retain their seniority in the case of promotion by virtue of rule of reservation.

9
The High Court quashed the aforesaid G.O. and Gradation List mainly on the ground that,
unless and until the State Government makes a law for conferring the benefit of promotion
with consequential seniority to SC/ST candidates, they are not entitled to claim seniority in
the promoted categories over the general category candidates.

Issue:

Whether in absence of any provision in the said Act for conferring the benefit of seniority,
and in absence of any amendment after Constitution (Eighty-Fifth) Amendment Act of 2001,
by which Article 16(4A) was amended, benefit of seniority cannot be extended relying on
Section 10 of the Act or not?

Reasoning:

In this case, Justice Reddy authored the opinion on behalf of himself and Justice Mohan M
Shanatanagoudar. The decision sought to determine the validity of a resolution passed by the
Government of Orissa in 2002 providing consequential seniority to certain government
servants belonging to the SC/ST communities. This resolution undid some of the earlier
seniority lists which had given effect to the “catch up rule”. “Catch up rule” laid down by the
Supreme Court in Virpal Singh Chauhan posits that candidates promoted from the reserved
categories are not entitled to seniority in the promoted post if the general category candidate
reaches the said post.

Moreover, the resolution was passed to give effect to Article 16(4A) of the Constitution
which gave states the power to provide consequential seniority to employees of SC/ST
communities.

Judgement:

Justice Reddy first traced the precedent on the subject, including the decisions in M Nagaraj,
BK Pavitra and Jarnail Singh. Upon examining these decisions, he observed that although
Article 16(4A) enables the states to extend the benefit of promotion with consequential
seniority, the same has to be done upon examining the adequacy of representation in the state
services. More importantly, such benefits should be conferred by way of a legislation or an
executive order.

10
The 2002 resolution, the Court held, was merely based on certain instructions issued by the
Government of India without examining the adequacy of representation in those posts. Also,
it held that the resolution cannot be termed as law and had no legal basis.

Upon these findings, the Bench comprising Justice Reddy dismissed the appeals.

Nand Kishore vs The State of Madhya Pradesh

Name of the court: supreme court

Bench: N Rao, Bobde, R. Subash Reddy

Citation:

Facts:

A minor girl aged about 8 years, had gone to attend the ‘Mela’ along with her younger
brother namely Chhunu (PW-4) on 03.02.2013. It is the case of the prosecution that the
appellant who is aged about 50 years then, took away the deceased from the ‘Mela’ and
committed rape and murdered her. Narendra (PW-2) informed the police stating that his
daughter, who had gone to attend the ‘Mela’, has not returned home. Upon such complaint,
case was registered and investigation commenced. In the course of investigation one Amit
Mourya (PW-1) informed the Investigating Officer that when he was coming to his shop from
residence, he saw a dog running away with a leg of a child in its mouth and on being chased,
the dog dropped the leg and ran away. Further, it was the case of the prosecution that in the
process of investigation, Investigating Officer found a headless body of the deceased in the
bushes near the ‘Dushera Maidan’, Bhopal. It is alleged that the left leg of the deceased was
found at a distance of 100 ft. and both legs were fractured. Further, it is noticed that there
were severe injuries on the private parts of the deceased inflicted by the appellant due to
which the intestine had come out. During the process of investigation, the statement of the
appellant was recorded under Ex. P8 and the blood-stained cloths and articles he used for the
offence were recovered from his house. After completing the investigation, the appellant was
charge sheeted for the offence punishable under Sections 363, 366, 376(2)(i) and 302 of the
IPC and Sections 5 and 6 of Protection of Children from Sexual Offences Act, 2012.

Issue:

Whether the case fell into the ‘rarest of rare’ category requiring death penalty or not?

Reasoning:

11
After passing through the evidence relied upon by the trial and High Courts, Justice Reddy
examined the Court’s previous decisions on awarding death penalty. In particular, he placed
reliance on the decision in Swamy Shradhananda v. State of Karnataka, where the Court had
held that there would be cases where neither death penalty nor life imprisonment extending to
14 years may be ideal. In Swamy Shradhananda, the Court had substituted the death sentence
of the to life imprisonment for the rest of the person’s natural life, without any remission.

Judgement:

As for the present case, Justice Reddy noted how the conviction and sentencing of the
Appellant was solely on the basis of circumstantial evidence. Also, there was no finding by
courts below that the Appellant was beyond reformation. Moreover, the Court noted that the
convict may not have been provided adequate legal assistance.

Considering the totality of circumstances of the case, he ruled that this did not fulfil the
‘rarest of rare’ cases test. On account of this, the death sentence was modified to 25 years’
life imprisonment without any benefit of remission.

Chandana Das(Malakar) vs The State Of West Bengal And Others

Name of the court: Supreme Court

Bench: R.F. Nariman, R. Subhash Reddy, Surya Kant

Citation:

Facts:

The appellants, it appears, were appointed as teachers on temporary basis in what is known as
Khalsa Girls High School, Paddapukur Road, Bhowanipore, Calcutta. Their appointment did
not, however, meet the approval of the District Inspector of Schools, Calcutta, according to
whom any such appointment could be made only on the recommendations of the School
Service Commission established under the Rules for Management of Recognised Non-
Government Institutions (Aided and Unaided), 1969.

Aggrieved by the order passed by the District Inspector, the appellants approached the High
Court of Calcutta in Writ Petitions Nos. 16256 and 16255 of 2003 which were allowed by a
learned Single Judge of the High Court by his order dated 29-1-2004 holding that the
Institution in which the appellants were appointed being a linguistic minority institution was
entitled to select and appoint its teachers. The Single Bench accordingly directed the

12
respondents in the writ petitions to approve the appointment of the appellants as whole-time
teachers with effect from 28-7-1999 and release the arrears of salary and other service
benefits in their favour with effect from the said date.

Issue:

Whether Khalsa Girls High School, Poddapukur Road, Calcutta is a minority institution, if
so, whether the Institution's right to select and appoint teachers is in any way affected by the
provisions of the Rules of Management of Recognised Non-Government Institutions (Aided
and Unaided), 1969 framed under the provisions of the West Bengal Board of Secondary
Education Act, 1963?

Reasoning:

There can be no doubt that qua the State of West Bengal, Sikhs are a linguistic minority vis-
à-vis their language, namely, Punjabi, as against the majority language of the State, which is
Bengali. The argument of the learned counsel appearing on behalf of the State that the school
is, in fact, teaching in the Hindi medium is neither here nor there. What is important is that
the fundamental right under Article 30 refers to the “establishment” of the school as a
linguistic minority institution which we have seen is very clearly the case, given paragraphs
5(a) and 5(b) of letter dated 19th April, 1976. Therefore, the medium of instruction, whether
it be Hindi, English, Bengali or some other language would be wholly irrelevant to discover
as to whether the said school was founded by a linguistic minority for the purpose of
imparting education to members of its community. This argument also, therefore, must be
rejected.

Judgement:

As a result, Supreme Court is of the view that the judgment of Thakur, J. is correct in law.
Consequently, the judgment and order of the learned Single Judge of the Calcutta High Court
is correct, and that of the Division Bench of the Calcutta High Court is set aside. The appeals
are, accordingly, allowed with no order as to costs.

Andhra Kesari Educational ... vs State of Andhra Pradesh And Ors

Name of the court: Supreme Court

Bench: J Reddy, U Waghray, R. Subash Reddy

Citation: AIR 1988 AP 256

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Facts:

In the matter of recruitment of staff, admission of students disciplinary control over staff and
students and in many other respects, these institutions are very much free of governmental
control. Probably for this reason we find a surfeit of institutions claiming this character
minorities are of two types - religious and linguistic. In the State of Andhra Pradesh, and for
the purposes of laws made by the A. P. Legislature, all those whose mother-tongue is not
Telugu are linguistic minorities. Similarly, all nore Hindus are minorities. Even among the
Hindu fold, several denominations and sects have been recognized as religious minorities for
the purpose of Art. 30. For example, Arya Samajists are recognized as a religious minority.
On this reasoning, man other denominations and sects within each religion can claim the
minority status: a truly confusing and uncertain situation.

Instances have come to the notice of this Court where a person, a family or a group of
persons (whether as a group or as a society) belonging to a religious or linguistic minority,
has established an educational institution and promptly claimed minority educational
institution status for it.

Having established an educational institution in pursuance of the Government's permission

aforesaid, commencing from the academic year 1985-86, the petitioner came forward with
the present writ petition for issuance of an appropriate writ, order or. direction restraining the
respondents (ie., (1) State of Andhra Pradesh represented by the Secretary to Education
Department., (2) Director of School Education, Government of Andhra Pradesh, and (3)
Convenor, B.F-d. Common Entrance Test, 1985, Osmania University, Hyderabad), "from
regulating the admission into B.Ed. Course in the petitioner- society College, namely, Andhra
Kesari College of Ongole.

Issue:

When does an educational institution become a “minority educational institution within the
meaning of, and for the purpose of Art. 30 of the Constitution?

Reasoning:

All persons in this country are equally entitled to freedom of conscience and have the right
freely to profess, practice and propagate their religion, subject however to public order,
morality, health and any law made by the State regulating or restricting any economic,

14
financial political or other secular activity associated with religious practice. This right is
further subject to the other provisions in Part-III, (Art. 25)

Every religious denomination or any section thereof in this country has the right to establish
and maintain institutions for religious and charitable purposes, and to manage its own affairs
in matters of religion, subject again to public order, morality, and health., (Art. 26).

Judgement:

In the counter-affidavit it is denied that the petitioner-institution is a minority educational

institution. It is stated that the college was started as a commercial venture and as a money
spinner; it did not have the necessary staff, nor other paraphernalia required by a College of
Education.

In the writ-affidavit, except asserting that the petitioner-institution is a minority educational

institution, placing reliance upon the certificate issued by the A. P. State Minorities
Commission, no other facts or material is brought to the notice of the Court in support of the
said plea. In the circumstances, what all we have said with respect to the petitioner in W. P.
No. 552/86, applies with equal force to this petitioner as well. For the same reasons, this writ
petition also fails and is dismissed with costs. Advocate's fee: Rs. 500/-.

Petition dismissed.

Article 370

Manohar lal sharma v. union of India

Name of the court: Supreme Court

Bench: N.V. Ramana, sanjay kishan kaul, R. Subash Reddy, Bushan Ramakrishna
Gavai, Surya kant

Citation:

Facts:

Article 370 of the Constitution of India provided the State of Jammu and Kashmir (J&K)
special constitutional status. In comparison to other states, the provision substantially limited
Parliament's power to legislate for the State.

Article 370 was the result of the Instrument of Accession, which was signed by the erstwhile
ruler for J&K Maharaja Hari Singh in 1947. Article 370 was intended as a temporary
15
provision to allow J&K to transition from an independent princely state to a democratic state
under the dominion of India.

Over two days, starting from 5 August 2019, the Union government diluted Article 370,
revoking J&K’s special status. First, President Ram Nath Kovind issued presidential order
CO 272, enabling the Union to amend Article 370 without the recommendation of the J&K
Constituent Assembly. CO 272 amended the interpretation provision Article 367, such that
the reference to the ‘Constituent Assembly’ in Article 370(3) became a reference to the
‘Legislative Assembly’.

PILs challenging the constitutionality of the Union’s actions have already been filed in the
Supreme Court, by advocate ML Sharma and the National Conference. This not the first time
Article 370 has been in the apex court. This short post examines five key Supreme Court
cases from the past. But first, a quick refresher on what happened on 5 August.

5 Cases to Read on J&K's Special Status:

Prem Nath Kaul v. J&K (1959)

 Challenge to Big Landed Estates Abolition Act, 1950 on the ground that it was
unconstitutionally enacted by Maharaja Yuvraj Karan Singh (Hari Singh’s son)
 The Supreme Court upheld the Act
 On Article 370, the court held that the Maharaja’s plenary legislative powers were not
limited by Article 370

Sampat Prakash v. J&K (1968)

 Challenge to 1959 and 1964 Presidential Orders made under Article 370(1) that extended
the operational period of Article 35(c). Article 35(c) made preventive detention
legislation immune in J&K from fundamental rights claims.
 The petitioner made two primary arguments:
 Article 370 ceased to exist after J&K Constituent Assembly dissolves in 1957
 Even if Article 370 persists, President’s power to amend orders under Article 370(1)
ceased after the J&K Constitution came into force

The Supreme Court upheld the Presidential Orders:

 Article 370 will only dissolve upon the recommendation of the Constituent Assembly
under Article 370(3)

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 The power to issue orders includes the power to add, amend, vary or rescind them
because the General Clauses Act, 1897 applies to the Constitution

Mohd. Maqbool Damnoo v. J&K (1972)

 Challenge to the J&K Preventive Detention (Amendment) Act, 1967 for violating Article
370(1): failed to receive the assent of the Sadar-i-Riyasat

Explanation: in 1952, the J&K Constituent Assembly replaced the Maharaja with the Sadar-i-
Riaysat as the executive head.

 The Supreme Court upheld the amendment, as it had received the J&K Governor's
concurrence
 While Article 370(1) refers to the Sadar-i-Riyasat, the 1965 amendment to the J&K
Constitution provides for the appointment of a governor instead of a Sadar-i-Riyasat.
Further, Article 367 of the Indian Constitution was amended to the effect of making
references to Sadar-i-Riyasat mean governor.

SBI v. Santosh Gupta (2016)

 Appeal to J&K High Court judgment that ruled that provisions of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 do not
apply to J&K
 The Supreme Court overturned the judgment, holding that Parliament had legislative
competence to enact the provisions because India’s Constitution is superior to J&K’s.
 The court held that Article 370(1)(b) does not limit Parliament’s power because the
Constitution of India is applicable to J&K via the 1954 Presidential Order.

Dr. Charu Wali Khanna v. UOI (pending)

 Challenge to permanent residency laws in J&K, i.e. validity of Article 35A

 The petitioners raise two primary grounds:
 Extra-constitutional: introduced illegitimately via 1954 Presidential Order
 Discriminates against women: empowers Article 6 of the J&K Constitution

Issue:

1. Does the Jammu and Kashmir (Reorganisation) Act of 2019 violate Article 3 and Part III
of the Constitution?

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2. Do the Statutory Resolution and CO 273 violate the fundamental democratic rights of the
people of J&K under Articles 14 and 21 of the Constitution, by abrogating Article 370
without their consent during President’s Rule?
3. Can Article 370(1)(d) be validly used to alter the interpretation of Article 370, as was
done by presidential order CO 272?

Judgement:

Thus, this Court is of the opinion that there is no conflict between the judgments in the Prem
Nath Kaul case and the Sampath Prakash case. The plea of the counsel to refer the present
matter to a larger Bench on this ground is therefore rejected.

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