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 M. KARUNANIDHI V/S UNION OF
INDIA

Parties to the M. Karunanidhi and Union of India

case:
Citation: 1979 AIR 898
Court: The supreme court of India
Bench: JUSTICE Syed Murtaza Fazalali, JUSTICE Y.V. Chandrachud,

JUSTICE P.N. Bhagwati, JUSTICE N.L. Untwalia, JUSTICE R.S Pathak.

Decided on: FEBRUARY 20, 1979
Relevant Tamil Nadu Public Men Act, 1973, Code of Criminal Procedure 1898, Prevention
Act/Sections: of Corruption Act 1947 & Criminal Law (Amendment) Act, 1952, Article 254 of
Constitution of India, Public servant & Criminal Procedure Code 1898

BRIEF FACTS:

The Appellant, M Karunanidhi, was a former Chief Minister of Tamil Nadu & was petitioner
before the High Court in the applications filed by him before the high court. On 15-6-1976 a
D.O. Letter was written by chief secretary to government of Tamil Nadu to Deputy Inspector
General of Police, CBI requesting him to make a detailed investigation into certain
allegations against the appellant and others who were alleged to have abused their official
position in the matter of purchase of wheat from Punjab.

A FIR was accordingly recorded on 16-6-1976 & 4 months later sanction under Sec 197 of
Code was granted by Governor of Tamil Nadu for prosecution of appellant under Sections
161, 468 & 471 of IPC and section 5(2) read with section 5(1)(d) of prevention of corruption
act. Appellant was alleged to have derived for himself pecuniary advantage to the extent of
Rs. 4 to 5 lakhs from Madenlal Gupta for passing favourable orders in respect of some firms
& the case was registered before the special judge.

PROCEDURAL HISTORY:
The Special judge, after hearing both sides, rejected application of appellant as a result of
which the appellant filed two applications in High Court for quashing the proceedings & for
setting aside order of special judge refusing to discharge appellant. Later, the High court
rejected the applications of appellant but granted a certificate for leave to appeal.

As far back as December 30, 1973 the Madras Legislature had passed an Act known as the
Tamil Nadu Public Men (Criminal Misconduct) Act, 1973 hereinafter referred to as the State
Act. The State Act was passed after obtaining the assent of the President of India [ Ed.:
Assent received on Dec. 30, 1973].

This State Act was, however, amended by Act 16 of 1974 and the President’s assent was
received on April 10, 1974. According to the provisions of the State Act the statute was
brought into force by virtue of a notification with effect from May 8, 1974. According to the
allegations made against the appellant, the acts said to have been committed by him fell
within the period November 1974 to March 1975.

On January 31, 1976 by virtue of the provisions of Article 356 President’s rule was imposed
in the State of Tamil Nadu and the Ministry headed by the appellant was dismissed and a
Proclamation to this effect was issued on the same date. The High Court decided the petitions
of the appellant on May 10, 1977 and granted a certificate for leave to appeal to this Court on
July 27, 1977.

Subsequently, however, the State Act was repealed and the President’s assent to the repealing
of the State Act was given on September 6, 1977. Thus, it is manifest that by the time the
appeal has reached this Court and was taken up for hearing the State Act no longer exists.

ISSUE BEFORE THE COURT:

Whether or not there was a real repugnancy resulting from an irreconcilable inconsistency
between the State Act and the Central Acts?

DECISION HELD BY COURT:

The Supreme Court held that the State Act was not repugnant to the Central Acts and
therefore it did not repeal the Central Act which continued to be in operation even after the
repeal of the State Act creates distinct and separate offences with different ingredients and
different punishments and does not in any way collide with the Central Acts. The State Act is
rather a complimentary Act to the Central Act. The State Act itself permits the Central Acts
to come to its aid after an investigation is completed and a report is submitted. The State Act
provides that the ‘public man’ will have to be prosecuted under the Central Acts.

The question of repugnancy between the Parliamentary legislations and State legislation
arises in two ways. First, where the legislations are enacted with respect to matters allotted in
their fields but they overlap and conflict. Second, where the two legislations are with respect
to the 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 non-obstacle clause in
Article 246 (1)[4] and in the second by reason of Article 254 (1)[5].

In Deep Chand v. State of U. P[6]., the validity of U.P. Transport Service (Development) Act
was involved. By this Act the State Government was authorised to make the scheme for
nationalisation of Motor Transport in the state. The law was necessitated because the Motor
Vehicles Act, 1939 did not contain any provision for the nationalisation of Motor Transport
Services. Later on, in 1956 the Parliament with a view to introduce a uniform law amended
the Motor Vehicle Act, 1939, and added a new provision enabling the State Government to
frame rules of nationalisation of Motor Transport. The Court held that since both the Union
Law and the State Law occupied the same field, the State Law was void to the extent of
repugnancy to Union Law.

The court dismissed the appeal.

CONCLUSION:

After the study of this case and Doctrine of repugnancy it can be concluded that the
repugnancy generally arises when

1.there is a clear and direct inconsistency between the Central Act and the State Act,

2.such an inconsistency is absolutely irreconcilable and

3.the inconsistency between the provisions of the two Acts is of such nature as to bring the
two Acts into direct collision with each other and a situation is reached where it is impossible
to obey the one without disobeying the other. It can also be said that in situations where the
provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and
are absolutely irreconcilable, the Central Act will prevail and the State Act will become void
in view of the repugnancy. In situation where however a law passed by the State comes into
collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act
shall prevail to the extent of the repugnancy and the provisions of the Central Act would
become void provided the State Act has been passed in accordance with clause (2) of Article
254. Therefore Article 254 (2) is an exception where the State law prevails in situation of
conflict between State and Central law.
 LILY THOMAS, Etc. vs UNION OF
INDIA & ORS.
Parties to the Case: Lily Thomas, Etc. And Union of India & Ors.
Citation: AIR 2000 SC 1650
Court: Supreme Court of India
Bench : Saiyed Saghir Ahmad and R.P. Sethi, JJ.
Date Decided: 10.07.2013
Appellant: Lily Thomas
Respondent : Union of India (UOI) and Ors.

BRIEF FACTS
Smt. Sushmita Ghosh, who is the wife of Shri G.C. Ghosh (Mohd. Karim Ghazi) filed a Writ
Petition in this Court stating that she was married to Shri G.C. Ghosh in accordance with the
Hindu rites on 10th May, 1984 and since then both of them were happily living at Delhi.
Around the 1st of April, 1992, Shri G.C. Ghosh told the petitioner that she should in her own
interest agree to her divorce by mutual consent as he had any way taken to Islam so that he
may remarry and in fact he had already fixed to marry one Miss Vanita Gupta resident of D-
152 Preet Vihar, Delhi, a divorcee with two children in the second week of July 1992. Shri
G.C. Ghosh also showed a Certificate issued by office of the Maulana Qari Mohammad Idris,
Shahi Qazi dated 17th June, 1992 certifying that he had embraced Islam. The petitioner
contacted her father and aunt and told them about her husband’s conversion and intention to
remarry. They all tried to convince Shri G.C. Ghosh and talk him out of the marriage but of
no avail and he insisted that Sushmita must agree to her divorce otherwise she will have to
put up with second wife. It was stated in the petition that Shri G. C. Ghosh has converted to
Islam solely for the purpose of re-marrying and has no real faith in Islam. He does not
practice the Muslim rites as prescribed nor has he changed his name or religion and other
official documents.
SHE ULTIMATELY PRAYED FOR THE FOLLOWING RELIEFS:
a) by an appropriate writ, order or direction, declare polygamy marriages by Hindus and
non-Hindus after conversion to Islam religion are illegal and void;
b) Issue appropriate directions to Respondent Nos. 1 and 2 to carry out suitable
amendments in the Hindu Marriage Act so as to curtail and forbid the practice of
polygamy;
c) Issue appropriate direction to declare that where a non-Muslim male gets converted to
the “Muslim” faith without any real change of belief and merely with a view to avoid
an earlier marriage or enter into a second marriage, any marriage entered into by him
after conversion would be void;
 d) Issue appropriate direction to Shri G.C. Ghosh restraining him from entering into any
marriage with Miss” Vanita Gupta or any other woman during the subsistence of his
marriage with the petitioner; and
e) pass such other and further order or orders as this Hon’ble Court may deem fit and
proper in the facts and circumstances of the case.

ISSUES BEFORE THE COURT

Whether there should be Uniform Civil Code for all citizens of India?
Whether a Hindu husband can solemnise second marriage by converting to Islam?
Whether the husband would be liable for bigamy under section 494 of IPC?

Arguments Advanced from the side of Petitioner:

Petitioner’s first issue was that since marriage is a sacred institution then how resorting to the
act of religious conversion to Muslim to commit the act of bigamy as Muslim personal law
allows it is an attempt where the women freedom of facing such bigamous marriage and such
betrayal is violative of Art.21(right to life and liberty).
Lily Thomas pleaded before the court to male polygamy in Muslim Law to be
unconstitutional.
It was urged before the court to apply Uniform Civil Code so as to deal with vast socio-legal
issues that were due to various religious personal law.
Many Muslim women have filed petitions before the SC and HC to declare Polygamy in
Muslim law to be unconstitutional.
To reframe Muslim personal law with the change in time and disallow the practice of
Polygamy as it is disrespectful to the integrity and liberty of women who have to face such
situations.
To have Uniform Civil Code so that no personal religious law makes fundamental right
violation.
Arguments advanced from the side of Respondent:
The respondents in all the above petitions assert a common contention that having embraced
Islam, they can have four wives irrespective of the fact that the first wife continues to be
Hindu. Thus, they are not subject to the applicability of Hindu Marriage Act, 1955, the
Section 11 of which makes bigamous marriage void and also to the section 17 of which made
them guilty for bigamy under section 494 of Indian Penal Code (IPC).

DECISION HELD BY THE COURT

Justice S. Sagir Ahmad said if a party has a living spouse and he contracted or tries to
contract second marriage then such marriage would be null and void under Section 11 of
Hindu Marriage Act, 1959. Such marriage will also be null and void under Section 17 of the
said Act which deals with the offence of Bigamy. The person committing Bigamy under
Section 17 shall be punished in accordance with the provisions of 494 and 495 of IPC, 1860.
If a Hindu wife files complaint against her husband who during existence of first marriage do
second marriage after conversion to another religion then the offence of Bigamy shall be
dealt with Hindu Marriage Act, 1959.

The apex Court has said that violation of Article 21 is misconceived, article 21 of the
Constitution states that “no person shall be deprived of his right and personal liberty except
as per procedure established by law” and herein such an act of marriage while the first
marriage still persists is codified in IPC sec 494 there is no violation of Art. 21.

R.P. Sethi Ji said if a Hindu husband after converting to Islam contracts the second marriage
without dissolving the first marriage then the second marriage would be invalid under Section
494 & 495 of IPC and the husband will be punished according to that.

CONCLUSION
Such a judgment was important since men were taking recourse to such conversion for
marrying and having more than one wife. Bigamy is the offence of marrying another while
the first marriage still persists and such bigamous relations are illegal and the second
marriage is void ab initio. For a long period, married men whose personal law did not allow
bigamy have been recurring to the unhealthy and immoral practice of converting to Islam for
the interest of condensing a second bigamous marriage under the assumption that such
conversion would help them to marry again without getting their first marriage dissolved the
interpretation given to Section 494 IPC was an effort to advance the interest of justice. It is
necessary that there should be harmony between the two systems of law just as there should
be harmony between the two communities. Until Uniform Civil Code is enacted for all the
citizens of the country, there will be always a loophole in the system because different faiths
have different beliefs, and naturally due to different beliefs and practices of communities,
there will be a conflict.

RELEVANT SECTION
Indian Penal Code, 1860 – Section 494 – According to section 494 of Indian penal code,
Whoever, having a husband or wife living, marries in any case in which such marriage is void
by reason of it taking place during the life of such husband or wife, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also
be liable to fine. It’s a non-cognizable bailable offence.
Hindu Marriage Act, 1955 – Section 11 – Void marriages. —Any marriage solemnised after
the commencement of this Act shall be null and void and may, on a petition presented by
either party thereto 11 [against the other party], be so declared by a decree of nullity if it
contravenes any one of the conditions specified in clauses- (i), (iv) and (v) of section 5[1]
Hindu Marriage Act, 1955 – Section 17- Punishment of bigamy. —Any marriage between
two Hindus solemnized after the commencement of this Act is void if at the date of such
marriage either party had a husband or wife living; and the provisions of sections 494 and
495 of the Indian Penal Code (45 of 1860), shall apply accordingly.
ASHOK KUMAR THAKUR V/S UNION
OF INDIA & ORS.
Parties to the case: Ashok Kumar Thakur And Union Of India & Ors.
Case number: Writ Petition (Civil) No.-265 of 2006
Court: The Supreme Court of India
Bench: JUSTICE ARIJIT PASAYAT, JUSTICE C.K THACKER
Decided on: APRIL 10, 2008
Relevant Act/Sections: Article 14, 15, 15}5} of constitution of India, 1950 Ninety third

amendment act of the Constitution, Section 3 of Central Education

Institution Act 2006

BRIEF FACTS AND PROCEDURAL HISTORY:

In April 2006, the government chose to hold about 27% of seats for students from the OBC
category in higher educational institutions in the country. This would have diminished the
seats for a general, open contender to about half (subsequent to considering other saved
seats). The parliament passed a bill to draw out an amendment to the constitution in this
regard. Ashok Kumar Thakur petitioned to test the legitimacy of the amendments.

The Supreme Court of India in a reply to a PIL did not stay the amendment, however, gave
notice to the government. The government which had confronted solid enemy of reservation
fights on its turn expressed that the reservation policy would not be actualised until a bill
(The Central Educational Institutions (Reservation in Admission) Bill, 2006) presented in the
parliament in August 2006, for this reason, turns into a law. The bill was later passed by the
parliament.

The Supreme Court stayed the operation of admission to clinical and professional institutions
for OBC’s under the 27% quota category for the year 2007-2008 and coordinated that all
cases (including this one) ought to be listed for the third week of August for the last hearing.
The Court held that the 1931 census couldn’t be a determinative factor for distinguishing
OBCs to give reservation. In any case, it explained that the advantage of reservation for the
Scheduled Castes and Scheduled Tribes couldn’t be retained and the Centre can proceed with
the recognisable proof cycle to decide the retrogressive classes.

 In 2006, Parliament enacted the Constitution (Ninety-Third Amendment) Act, 2005 to put
the private unaided educational institutions under the ambit of reservation policy of the state
and promote the educational interest of the weaker section of society. This amendment
widened the scope for the state to make special provisions. Clause 4 to Article 15 was added
by the Constitution (First Amendment) Act, 1951, in this clause educational advancement
was mentioned but the term “admission to the educational institutions” was not included. 

The constitutional legitimacy of the Constitution (Ninety-Third Amendment) Act, 2005 was

also challenged.

ISSUE BEFORE THE COURT:

Whether the Ninety-Third Amendment of Indian Constitution violates the basic structure of
the Indian Constitution?

Whether the Delegation done through section 2(g) of the Central Educational Institutions
(reservation in admission) Act is excessive in nature and does not provide for any guidelines
for interpretation?

Whether Creamy layer should be excluded while determining Socially & Educationally
Backward classes with regard to section 2(g) of Central Educational Institutions (reservation
in admission) Act?

LAW POINTS HELD AND IMPORTANT DIRECTIONS GIVEN BY THE COURT: -

● The Constitution (Ninety-Third Amendment) Act, 2005 doesn’t violate the “basic
structure” of the Constitution so far as it relates to the state-maintained institutions
and aided educational institutions. The question of whether the Constitution (Ninety-
Third Amendment) Act, 2005 would be constitutionally legitimate or not so far as
“private unaided” educational institutions are concerned, was left open to be chosen in
a suitable case.
● “Creamy layer” standard is one of the parameters to recognise backward classes. In
this manner, chiefly, the “Creamy layer” standard can’t be applied to STs and SCs, as
SCs and STs are discrete classes.

● Ideally, there ought to be an audit following ten years to observe the difference in
conditions.

● Simple graduation (not specialised graduation) or expert regarded to be educationally

forward.

● Rule of the prohibition of Creamy layer applicable to OBC’s.

● The Central Government will analyse regarding the allure of fixing a cut off marks in
regard to the candidates from Other Backward Classes (OBCs)to offset reservation
with other societal interests and to keep up norms of excellence. This would guarantee
quality and merit would not suffer. On the off chance that any seats stay empty in the
wake of embracing such standards, they will be topped off by candidates from general
categories

● A Notification ought to be given by the Union of India in regard to the determination

of backward classes. This should be possible simply after the prohibition of the
Creamy layer for which necessary data must be gotten by the Central Government
from the State Governments and Union Territories. Such Notification is open to
challenge on the ground of unfair prohibition or incorporation. Standards must be
fixed keeping in view the unconventional highlights in various States and Union
Territories. There must be appropriate identification of Other Backward Classes
(OBCs.) For recognising in backward classes, the Commission set up as per the
headings of this Court in Indra Sawhney needs to work all the more viably and not
simply choose applications for consideration or prohibition of castes.

● The Parliament should fix a cut-off time by which time free and obligatory education
will reach to every kid. This must be done inside a half year, as the right to free and
mandatory education is the most significant of the apparent multitude of fundamental
rights (Art.21 A). Without education, it turns out to be extremely hard to exercise
other fundamental rights.

● On the off chance that material appears to the Central Government that the Institution
has the right to be included for the Schedule (institutions which are barred from
 reservations) of The Central Educational Institutions (Reservation in Admission) Act,
2006 (No. 5 of 2007), the Central Government must take a proper choice based on
materials set and on analysing the concerned issues with regards to whether Institution
has the right to be included in the Schedule of the said Act about as given in Sec 4 of
the said Act.

● Held that the determination of SEBCs is not done exclusively on the basis of caste
alone and subsequently, the identification of SEBCs is not violative of Article 15(1)
of the Constitution.

DECISION HELD BY COURT:

In this case the judgment was given by JUSTICE ARIJIT PASAYAT that the Hon’ble
Supreme court held that the Ninety-third amendment to the Indian Constitution does not
violate the basic structure and there was no excessive delegation under section 2 (g) of
Central Educational Institutions (reservation in admission) Act. Further, the court held that
creamy layer was to be accounted for while providing reservations to the OBC’s but cannot
be taken into account in case of SC’s & ST’s.

CONCLUSION
The State is the parent of each and every citizen of India. It’s the responsibility of the State to
take care of each and every community and when a community OBC takes up any position in
government Institutions then it results in its upliftment in the social stature. Further it doesn’t
violate the “basic structure” of the Constitution so far as it relates to the state-maintained
institutions and aided educational institutions. And the “Creamy layer” standard is one of the
parameters to recognise backward classes. In this manner, chiefly, the “Creamy layer”
standard can’t be applied to STs and SCs, as SCs and STs are discrete classes. Hence in my
opinion the judgement is right in Law and morals.