Compendium Petitioner - Compressed

Javed & Ors vs State Of Haryana & Ors on 30 July, 2003
Supreme Court of India

Author: R Lahoti
Bench: R.C. Lahoti, Ashok Bhan, Arun Kumar.
CASE NO.:
Writ Petition (civil) 302 of 2001
PETITIONER:
Javed & Ors.
RESPONDENT:
Vs.
State of Haryana & Ors.
DATE OF JUDGMENT:
30/07/2003 BENCH:
R.C. LAHOTI, ASHOK BHAN & ARUN KUMAR.
JUDGMENT:
J U D G M E N T (With C.A. Nos._5355-5372, 5380-5381, 5382, 5385, 5386, 5397-5450/2003 @

SLP(C) Nos. 7527-7528/2001, WP(C) No. 269/2001, SLP(C) Nos. 10551/2001, 10583/2001,
10725/2001, 11002/2001, 10729/2001, 13046/2001, 12313-12314/2001, 10996/2001, WP(C) Nos.
316/2001, 315/2001, SLP(C) Nos. 12259/2001, 13595/2001, 13398/2001, 13430/2001, WP(C) Nos.
329/2001, 362/2001, 363/2001, 258/2001, SLP(C) Nos. 14547/2001, 14686/2001, 10189/2001,
WP(C) Nos. 403/2001, 395/2001, SLP(C) Nos. 16477/2001, 16483/2001, 18020/2001, WP(C) No.
420/2001, SLP(C) Nos. 17247/2001, 17497/2001, 16892/2001, 18557/2001, 18554/2001, WP(C)
Nos. 438/2001, 475/2001, 507/2001, 508/2001, SLP(C) Nos. 19211/2001, 19139/2001, WP(C) No.
495/2001, SLP(C) No. 19244/2001, WP(C) Nos. 567/2001, 560/2001, 559/2001, 561/2001,
538/2001, 539/2001, 579/2001, SLP(C) Nos. 22309/2001, 22278/2001, 447/2002, 12779/2001,
WP(C) No. 19/2002, SLP(C) Nos. 22574/2001, 22672/2001, WP(C) Nos. 30/2002, 32/2002,
SLP(C) Nos. 497/2002, 13185/2001, 2188/2002, 1020/2002, 17156/2001, WP(C) Nos. 1/2002,
49/2002, 50/2002, 79/2002, SLP(C) Nos. 1768/2002, 856/2002, 1483/2002, 1820/2002,
3028/2002, 2022/2002, 2237/2002, 22524/2001, 18636/2001, 3214/2002, 4409-4411/2002,
WP(C) Nos. 94/2002, 130/2002, 93/2002, 127/2002, 144/2002, SLP(C) Nos. 5374/2002,
5517/2002, 6186/2002, WP(C) Nos. 169/2002, 168/2002, 128/2002, 177/2002, 112/2002,
71/2002, 91/2002, 178/2002, SLP(C) Nos. 6427/2002, 5207/2002, WP(C) Nos. 184/2002, SLP(C)
Nos. 6397/2002, 6466/2002, WP(C) Nos. 183/2002, 185/2002, SLP(C) Nos. 13156/2001,
18263/2001, 6537/2002, WP(C) No. 68/2002, SLP(C) No. 6769/2002, WP(C) Nos. 430/2001,
213/2002, 214/2002, 162/2002, 230/2002, 225/2002, 228/2002, SLP(C) Nos. 7542/2002,
7392/2002, 7223/2002, WP(C) No. 254/2002, SLP(C) No. 8631/2002, WP(C) Nos. 296/2002,
280/2002, 281/2002, 305/2002, SLP(C) Nos. 8632/2002, 9113/2002, 8963/2002, 8547/2002,
9246/2002, WP(C) Nos. 317/2002, 309/2002, C.A. No. 3629/2002, SLP(C) Nos. 10294/2002,
Indian Kanoon - http://indiankanoon.org/doc/1572027/ 1

11755/2002, WP(C) No. 306/2002, C.A. No. 4053/2002, WP(C) Nos. 341/2002, 342/2002,
395/2002, C.A. No. 4066/2002, WP(C) Nos. 396/2002, 406/2002, C.A. Nos. 4501/2002,
4487/2002, WP(C) Nos. 402/2002, 336/2002, 424/2002, 355/2002, 381/2002, 380/2002,
430/2002, 431/2002, 421/2002, 404/2002, C.A. Nos. 5080/2002, 5081/2002, WP(C) Nos.
443/2002, 457/2002, 451/2002, C.A. No. 5270/2002, SLP(C) No. 11810/2002, WP(C) Nos.
462/2002, 491/2002, 495/2002, C.A. Nos. 5902/2002, 5903/2002, WP(C) No. 278/2002, C.A. No.
7034/2002, WP(C) Nos. 612/2002, 574/2002, 607/2002, 240/2002, 655/2002, 676/2002,
677/2002, 547/2002, 645/2002, 620/2002, 682/2002, 8/2003, 669/2002, C.A. Nos.
1187-1188/2003, WP(C) Nos. 18/2003, 28/2003, 40/2003, C.A. No. 2033/2003, WP(C) No.
63/2003, SLP(C) No. 3140/2003, WP(C) No. 121/2003, 123/2003, C.A. No. 2395/2003, WP(C)
Nos.149/2003, 193/2003, 195/2003, 204/2003, 155/2003, 161/2003, 188/2003, 245/2003,
247/2003, 248/2003, 250/2003, 257/2003, 268/2003, 270/2003, 277/2003, 281/2003 & SLP(C)
No.10673/2003) R.C. LAHOTI, J.
Leave granted in all the Special Leave Petitions. In this batch of writ petitions and appeals the core
issue is the vires of the provisions of Section 175(1)(q) and 177(1) of the Haryana Panchayati Raj Act,
1994 (Act No.11 of 1994) (hereinafter referred to as the Act, for short). The relevant provisions are
eXtracted and reproduced hereunder:-
175. (1) No person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat
Samiti or Zila Parishad or continue as such who -
XXX XXX XXX XXX XXX XXX
(q) has more than two living children :
Provided that a person having more than two children on or upto the e Xpiry of one year of the
commencement of this Act, shall not be deemed to be disqualified;
"177(1) If any member of a Gram Panchayat, Panchayat Samiti or Zila Parishad -
(a) who is elected, as such, was subject to any of the disqualifications mentioned in section 175 at
time of his election;
(b) during the term for which he has been elected, incurs any of the disqualifications mentioned in
section 175, shall be disqualified from continuing to be a member and his office shall become vacant.
(2) In every case, the question whether a vacancy has arisen shall be decided by the Director. The
Director may give its decision either on an application made to it by any person, or on its own
motion. Until the Director decides that the vacancy, has arisen, the members shall not be
disqualified under sub-section (1) from continuing to be a member. Any person aggrieved by the
decision of the Director may, within a period of fifteen days from the date of such decision, appeal to
the Government and the orders passed by Government in such appeal shall be final :

Provided that no order shall be passed under this sub-section by the Director against any member
without giving him a reasonable opportunity of being heard."
Act No.11 of 1994 was enacted with various objectives based on past e Xperience and in view of the
shortcomings noticed in the implementation of preceding laws and also to bring the legislation in
conformity with Part IX of the Constitution of India relating to 'The Panchayats' added by the
Seventy-third Amendment. One of the objectives set out in the Statement of Objects and Reasons is
to disqualify persons for election of Panchayats at each level, having more than 2 children after one
year of the date of commencement of this Act, to popularize Family Welfare/Family Planning
Programme (Vide Clause (m) of Para 4 of SOR).
Placed in plain words the provision disqualifies a person having more than two living children from
holding the specified offices in Panchayats. The enforcement of disqualification is postponed for a
period of one year from the date of the commencement of the Act. A person having more than two
children upto the eXpiry of one year of the commencement of the Act is not disqualified. This
postponement for one year takes care of any conception on or around the commencement of the Act,
the normal period of gestation being nine months. If a woman has conceived at the commencement
of the Act then any one of such couples would not be disqualified. Though not disqualified on the
date of election if any person holding any of the said offices incurs a disqualification by giving birth
to a child one year after the commencement of the Act he becomes subject to disqualification and is
disabled from continuing to hold the office. The disability is incurred by the birth of a child which
results in increasing the number of living children, including the additional child born one year after
the commencement of the Act, to a figure more than two. If the factum is disputed the Director is
entrusted with the duty of holding an enquiry and declaring the office vacant. The decision of the
Director is subject to appeal to the Government. The Director has to afford a reasonable opportunity
of being heard to the holder of office sought to be disqualified. These safeguards satisfy the
requirements of natural justice. Several persons (who are the writ petitioners or appellants in this
batch of matters) have been disqualified or proceeded against for disqualifying either from
contesting the elections for, or from continuing in, the office of Panchas/Sarpanchas in view of their
having incurred the disqualification as provided by Section 175(1)(q) or Section 177(1) read with
Section 175(1)(q) of the Act. The grounds for challenging the constitutional validity of the abovesaid
provision are very many, couched differently in different writ petitions. We have heard all the
learned counsel representing the different petitioners/appellants. As agreed to at the Bar, the
grounds of challenge can be categorized into five :- (i) that the provision is arbitrary and hence
violative of Article 14 of the Constitution;
(ii) that the disqualification does not serve the purpose sought to be achieved by the legislation; (iii)
that the provision is discriminatory; (iv) that the provision adversely affects the liberty of leading
personal life in all its freedom and having as many children as one chooses to have and hence is
violative of Article 21 of the Constitution; and (v) that the provision interferes with freedom of
religion and hence violates Article 25 of the Constitution.
The State of Haryana has defended its legislation on all counts. We have also heard the learned
Standing Counsel for the State. On notice, Sh. Soli J. Sorabji, the learned Attorney General for India,

has appeared to assist the Court and he too has addressed the Court. We would deal with each of the
submissions made.
Submissions (i),(ii) & (iii) The first three submissions are based on Article 14 of the Constitution
and, therefore, are taken up together for consideration.
Is the classification arbitrary?
It is well-settled that Article 14 forbids class legislation; it does not forbid reasonable classification
for the purpose of legislation. To satisfy the constitutional test of permissibility, two conditions must
be satisfied, namely (i) that the classification is 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 has a rational relation to the object sought to be achieved by the Statute in
question. The basis for classification may rest on conditions which may be geographical or according
to objects or occupation or the like. [See : Constitution Bench decision in Budhan Choudhry and
Ors. Vs. The State of Bihar, (1955) 1 SCR 1045]. The classification is well-defined and well-
perceptible. Persons having more than two living children are clearly distinguishable from persons
having not more than two living children. The two constitute two different classes and the
classification is founded on an intelligible differentia clearly distinguishing one from the other. One
of the objects sought to be achieved by the legislation is popularizing the family welfare/family
planning programme. The disqualification enacted by the provision seeks to achieve the objective by
creating a disincentive. The classification does not suffer from any arbitrariness. The number of
children, viz., two is based on legislative wisdom. It could have been more or less. The number is a
matter of policy decision which is not open to judicial scrutiny.
The legislation does not serve its object?
It was submitted that the number of children which one has, whether two or three or more, does not
affect the capacity, competence and quality of a person to serve on any office of a Panchayat and,
therefore, the impugned disqualification has no ne Xus with the purpose sought to be achieved by the
Act. There is no merit in the submission. We have already stated that one of the objects of the
enactment is to popularize Family Welfare/Family Planning Programme. This is consistent with the
National Population Policy.
Under Article 243G of the Constitution the Legislature of a State has been vested with the authority
to make law endowing the Panchayats with such powers and authority which may be necessary to
enable the Gram Panchayat to function as institutions of self-Government and such law may contain
provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate
level, subject to such conditions as may be specified therein. Clause (b) of Article 243G provides that
Gram Panchayats may be entrusted the powers to implement the schemes for economic
development and social justice including those in relation to matters listed in the Eleventh Schedule.
Entries 24 and 25 of the Eleventh Schedule read:
24. Family Welfare.

25. Women and child development.
In pursuance to the powers given to the State Legislature to enact laws the Haryana Legislature
enacted the Haryana Panchayati Raj Act, 1994 (Haryana Act No.11 of 1994). Section 21 enumerates
the functions and duties of Gram Panchayat. Clause XIX (1) of Section 21 reads:
"XIX. Public Health and Family Welfare -
(1) Implementation of family welfare programme." The family welfare would include family
planning as well. To carry out the purpose of the Act as well as the mandate of the Constitution the
Legislature has made a provision for making a person ineligible to either contest for the post of
Panch or Sarpanch having more than two living children. Such a provision wouldì¥Á 7 ð ¿ ì bjbjU U
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IN THE SUPREME COURT OF
INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION NO. 302 OF 2001
Javed & Ors......................................................Petitioners
Versus
State of Haryana & Ors..................................Respondents
(With C.A. Nos._____________________________________

________________________________________________
________________________________________________
_ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ @ SLP(C) Nos.
7527-7528/2001, WP(C) No. 269/2001, SLP(C) Nos. 10551/2001, 10583/2001, 10725/2001,
11002/2001, 10729/2001, 13046/2001, 12313-12314/2001, 10996/2001, WP(C) Nos. 316/2001,
315/2001, SLP(C) Nos. 12259/2001, 13595/2001, 13398/2001, 13430/2001, WP(C) Nos. 329/2001,
362/2001, 363/2001, 258/2001, SLP(C) Nos. 14547/2001, 14686/2001, 10189/2001, WP(C) Nos.

403/2001, 395/2001, SLP(C) Nos. 16477/2001, 16483/2001, 18020/2001, WP(C) No. 420/2001,

SLP(C) Nos. 17247/2001, 17497/2001, 16892/2001, 18557/2001, 18554/2001, WP(C) Nos.

438/2001, 475/2001, 507/2001, 508/2001, SLP(C) Nos. 19211/2001, 19139/2001, WP(C) No.
cessarily be identical. So is the case with the laws governing legislators and parliamentarians. It is
not permissible to compare a piece of legislation enacted by a State in e Xercise of its own legislative
power with the provisions of another law, though pari materia it may be, but enacted by Parliament
or by another State legislature within its own power to legislate. The sources of power are different
and so do differ those who e Xercise the power. The Constitution Bench in The State of Madhya
Pradesh Vs. G.C. Mandawar, (1955) 2 SCR 225, held that the power of the Court to declare a law
void under Article 13 has to be eXercised with reference to the specific legislation which is impugned.
Two laws enacted by two different Governments and by two different legislatures can be read
neither in conjunction nor by comparison for the purpose of finding out if they are discriminatory.
Article 14 does not authorize the striking down of a law of one State on the ground that in contrast
with a law of another State on the same subject, its provisions are discriminatory. When the sources
of authority for the two statutes are different, Article 14 can have no application. So is the view taken
in The Bar Council of Uttar Pradesh Vs. The State of U.P. and Anr. (1973) 1 SCC 261, State of Tamil
Nadu and Ors. Vs. Ananthi Ammal and Ors. (1995) 1 SCC 519 and Prabhakaran Nair and Ors. Vs.
State of Tamil Nadu and Ors. (1987) 4 SCC 238. Incidentally it may be noted that so far as the State
of Haryana is concerned, in the Haryana Municipal Act, 1973 (Act No. 24 of 1973) Section 13A has
been inserted to make a provision for similar disqualification for a person from being chosen or
holding the office of a member of municipality. A uniform policy may be devised by the Centre or by
a State. However, there is no constitutional requirement that any such policy must be implemented
in one-go. Policies are capable of being implemented in a phased manner. More so, when the
policies have far-reaching implications and are dynamic in nature, their implementation in a phased
manner is welcome for it receives gradual willing acceptance and invites lesser resistance.
The implementation of policy decision in a phased manner is suggestive neither of arbitrariness nor
of discrimination. In Lalit Narayan Mishra Institute of Economic Development and Social Change,
Patna etc., Vs. State of Bihar and Ors., (1988) 2 SCC 433, the policy of nationalizing educational
institutes was sought to be implemented in a phased manner. This Court held that all the
institutions cannot be taken over at a time and merely because the beginning was made with one
institute, it could not complain that it was singled out and, therefore, Article 14 was violated.
Observations of this Court in Pannalal Bansilal Pitti and Ors. Vs. State of A.P. and Anr. (1996) 2 SCC
498, are apposite. In a pluralist society like India, people having faiths in different religions,
different beliefs and tenets, have peculiar problems of their own. "A uniform law, though is highly
desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of
the nation. In a democracy governed by rule of law, gradual progressive change and order should be
brought about. Making law or amendment to a law is a slow process and the legislature attempts to
remedy where the need is felt most acute. It would, therefore, be ine Xpedient and incorrect to think
that all laws have to be made uniformly applicable to all people in one go. The mischief or defect
which is most acute can be remedied by process of law at stages."
To make a beginning, the reforms may be introduced at the grass-root level so as to spiral up or may
be introduced at the top so as to percolate down. Panchayats are grass-root level institutions of local
self-governance. They have a wider base. There is nothing wrong in the State of Haryana having

chosen to subscribe to the national movement of population control by enacting a legislation which
would go a long way in ameliorating health, social and economic conditions of rural population, and
thereby contribute to the development of the nation which in its turn would benefit the entire
citizenry. We may quote from the National Population Policy 2000 (Government of India
Publication, page 35):- "Demonstration of support by elected leaders, opinion makers, and religious
leaders with close involvement in the reproductive and child health programme greatly influences
the behaviour and response patterns of individuals and communities. This serves to enthuse
communities to be attentive towards the quality and coverage of maternal and child health services,
including referral care.". "The involvement and enthusiastic participation of elected leaders will
ensure dedicated involvement of administrators at district and sub-district levels. Demonstration of
strong support to the small family norm, as well as personal e Xample, by political, community,
business, professional, and religious leaders, media and film stars, sports personalities and opinion
makers, will enhance its acceptance throughout society."
No fault can be found with the State of Haryana having enacted the legislation. It is for others to
emulate. We are clearly of the opinion that the impugned provision is neither arbitrary nor
unreasonable nor discriminatory. The disqualification contained in Section 175(1)(q) of Haryana Act
No.11 of 1994 seeks to achieve a laudable purpose - socio- economic welfare and health care of the
masses and is consistent with the national population policy. It is not violative of Article 14 of the
Constitution.
Submission (iv) & (v) : the provision if it violates Article 21 or 25?
Before testing the validity of the impugned legislation from the viewpoint of Articles 21 and 25, in
the light of the submissions made, we take up first the more basic issue - Whether it is at all
permissible to test the validity of a law which enacts a disqualification operating in the field of
elections on the touchstone of violation of fundamental rights? Right to contest an election is neither
a fundamental right nor a common law right. It is a right conferred by a Statute. At the most, in view
of Part IX having been added in the Constitution, a right to contest election for an office in
Panchayat may be said to be a constitutional right __ a right originating in Constitution and given
shape by statute. But even so it cannot be equated with a fundamental right. There is nothing wrong
in the same Statute which confers the right to contest an election also to provide for the necessary
qualifications without which a person cannot offer his candidature for an elective office and also to
provide for disqualifications which would disable a person from contesting for, or holding, an
elective statutory office. Reiterating the law laid down in N.P. Ponnuswami Vs. Returning Officer,
Namakkal Constituency (1952) SCR 218, and Jagan Nath Vs. Jaswant Singh and Ors., 1954 SCR
892, this Court held in Jyoti Basu and Ors. Vs. Debi Ghosal and Ors., (1982) (1) SCC 691, - "A right
to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental
right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So
is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected
and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory
limitation."

In Jumuna Prasad Mukhariya and Ors. Vs. Lachhi Ram and Ors., (1955) 1 SCR 608, a candidate at
the election made a systematic appeal to voters of a particular caste to vote for him on the basis of
his caste through publishing and circulating leaflets. Sections 123(5) and 124(5) of the
Representation of the People Act, 1951, were challenged as ultra vires of Article 19(1)(a) of the
Constitution, submitting that the provisions of Representation of the People Act interfered with a
citizen's fundamental right to freedom of speech. Repelling the contention, the Constitution Bench
held that these laws do not stop a man from speaking. They merely provide conditions which must
be observed if he wants to enter Parliament. The right to stand as a candidate and contest an
election is not a common law right; it is a special right created by statute and can only be e Xercised
on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a
right like this created by statute. The appellants have no fundamental right to be elected and if they
want to be elected they must observe the rules. If they prefer to e Xercise their right of free speech
outside these rules, the impugned sections do not stop them. In Sakhawat Ali Vs. The State of
Orissa, (1955) 1 SCR 1004, the appellant's nomination paper for election as a councillor of the
Municipality was rejected on the ground that he was employed as a legal practitioner against the
Municipality which was a disqualification under the relevant Municipality Act. It was contended that
the disqualification prescribed violated the appellant's fundamental rights guaranteed under Article
14 and 19(1)(g) of the Constitution. The Constitution Bench held that the impugned provision has a
public purpose behind it, i.e., the purity of public life which would be thwarted where there was a
conflict between interest and duty. The Constitution Bench further held that the right of the
appellant to practise the profession of law guaranteed by Article 19(1)(g) cannot be said to have been
violated because in laying down the disqualification the Municipal Act does not prevent him from
practising his profession of law; it only lays down that if he wants to stand as a candidate for election
he shall not either be employed as a paid legal practitioner on behalf of the Municipality or act as a
legal practitioner against the Municipality. There is no fundamental right in any person to stand as a
candidate for election to the Municipality. The only fundamental right which is guaranteed is that of
practising any profession or carrying on any occupation, trade or business. The impugned
disqualification does not violate the latter right. Primarily no fundamental right is violated and even
assuming that it be taken as a restriction on his right to practise his profession of law, such
restriction would be liable to be upheld being reasonable and imposed in the interests of general
public for the preservation of purity in public life. In our view, disqualification on the right to
contest an election by having more than two living children does not contravene any fundamental
right nor does it cross the limits of reasonability. Rather it is a disqualification conceptually devised
in national interest.
With this general statement of law which has application to Articles 21 and 25 both, we now proceed
to test the sustainability of attack on constitutional validity of impugned legislation separately by
reference to Articles 21 and 25. The disqualification if violates Article 21 ? Placing strong reliance on
Mrs.Maneka Gandhi Vs. Union of India & Anr. - (1978) 1 SCC 248, and M/s. Kasturu Lal Lakshmi
Reddy and Ors. Vs. State of Jammu and Kashmir and Anr. - (1980) 4 SCC 1, it was forcefully urged
that the fundamental right to life and personal liberty emanating from Article 21 of the Constitution
should be allowed to stretch its span to its optimum so as to include in the compendious term of the
Article all the varieties of rights which go to make up the personal liberty of man including the right
to enjoy all the materialistic pleasures and to procreate as many children as one pleases.

At the very outset we are constrained to observe that the law laid down by this Court in the decisions
relied on is either being misread or read divorced of the conteXt. The test of reasonableness is not a
wholly subjective test and its contours are fairly indicated by the Constitution. The requirement of
reasonableness runs like a golden thread through the entire fabric of fundamental rights. The lofty
ideals of social and economic justice, the advancement of the nation as a whole and the philosophy
of distributive justice - economic, social and political - cannot be given a go-by in the name of undue
stress on fundamental rights and individual liberty. Reasonableness and rationality, legally as well
as philosophically, provide colour to the meaning of fundamental rights and these principles are
deducible from those very decisions which have been relied on by the learned counsel for the
petitioners. It is necessary to have a look at the population scenario, of the world and of our own
country.
India has the (dis)credit of being second only to China at the top in the list of the 10 most-populous
countries of the world. As on 1.2.2000 the population of China was 1,277.6 million while the
population of India as on 1.3.2001 was 1,027.0 million (Census of India, 2001, Series I, India - Paper
I of 2001, page 29).
The torrential increase in the population of the country is one of the major hindrances in the pace of
India's socio- economic progress. Everyday, about 50,000 persons are added to the already large
base of its population. The Karunakaran Population Committee (1992-93) had proposed certain
disincentives for those who do not follow the norms of the Development Model adopted by National
Public Policy so as to bring down the fertility rate. It is a matter of regret that though the
Constitution of India is committed to social and economic justice for all, yet India has entered the
new millennium with the largest number of illiterates in the world and the largest number of people
below the poverty line. The laudable goals spelt out in the Directive Principles of State Policy in the
Constitution of India can best be achieved if the population eXplosion is checked effectively.
Therefore, the population control assumes a central importance for providing social and economic
justice to the people of India (Usha Tandon, Reader, Faculty of Law, Delhi University, - Research
Paper on Population Stabilization, Delhi Law Review, Vol. XXIII 2001, pp.125-131). In the words of
Bertand Russell, "Population eXplosion is more dangerous than Hydrogen Bomb." This e Xplosive
population over-growth is not confined to a particular country but it is a global phenomenon. India
being the largest secular democracy has the population problem going side by side and directly
impacting on its per capita income, and resulting in shortfall of food grains in spite of the green
revolution, and has hampered improvement on the educational front and has caused swelling of
unemployment numbers, creating a new class of pavement and slum-dwellers and leading to
congestion in urban areas due to the migration of rural poor. (Paper by B.K. Raina in Population
Policy and the Law, 1992, edited by B.P. Singh Sehgal, page 52).
In the beginning of this century, the world population crossed si X billions, of which India alone
accounts for one billion (17 per cent) in a land area of 2.5 per cent of the world area. The global
annual increase of population is 80 millions. Out of this, India's growth share is over 18 millions (23
per cent), equivalent to the total population of Australia, which has two and a half times the land
space of India. In other words, India is growing at the alarming rate of one Australia every year and
will be the most densely populous country in the world, outbeating China, which ranks first, with a

land area thrice this country's. China can withstand the growth for a few years more, but not India,
with a constricted land space. Here, the per capita crop land is the lowest in the world, which is also
shrinking fast. If this falls below the minimum sustainable level, people can no longer feed
themselves and shall become dependent on imported food, provided there are nations with
eXportable surpluses. Perhaps, this may lead to famine and abnormal conditions in some parts of
the country. (Source - Population Challenge, Arcot Easwaran, The Hindu, dated 8.7.2003). It is
emphasized that as the population grows rapidly there is a corresponding decrease in per capita
water and food. Women in many places trek long distances in search of water which distances would
increase every neXt year on account of eXcessive ground water withdrawals catering to the need of
the increasing population, resulting in lowering the levels of water tables.
Arcot Easwaran has quoted the China eXample. China, the most populous country in the world, has
been able to control its growth rate by adopting the 'carrot and stick' rule. Attractive incentives in
the field of education and employment were provided to the couples following the 'one-child norm'.
At the same time drastic disincentives were cast on the couples breaching 'one-child norm' which
even included penal action. India being a democratic country has so far not chosen to go beyond
casting minimal disincentives and has not embarked upon penalizing procreation of children
beyond a particular limit. However, it has to be remembered that complacence in controlling
population in the name of democracy is too heavy a price to pay, allowing the nation to drift towards
disaster. The growing population of India had alarmed the Indian leadership even before India
achieved independence. In 1940 the sub-Committee on Population, appointed by the National
Planning Committee set up by the President of the Indian National Congress (Pandit Jawaharlal
Nehru), considered 'family planning and a limitation of children' essential for the interests of social
economy, family happiness and national planning. The committee recommended the establishment
of birth control clinics and other necessary measures such as raising the age at marriage and a
eugenic sterilization programme. A committee on population set up by the National Development
Council in 1991, in the wake of the census result, also proposed the formulation of a national policy.
(Source - Seminar, March 2002, page 25) Every successive Five Year Plan has given prominence to a
population policy. In the first draft of the First Five Year Plan (1951-56) the Planning Commission
recognized that population policy was essential to planning and that family planning was a step
forward for improvement in health, particularly that of mothers and children. The Second Five Year
Plan (1956-61) emphasized the method of sterilization. A central Family Planning Board was also
constituted in 1956 for the purpose. The Fourth Five Year Plan (1969-74) placed the family planning
programme, "as one amongst items of the highest national priority". The Seventh Five Year Plan
(1985-86 to 1990-91) has underlined "the importance of population control for the success of the
plan programme. " But, despite all such eXhortations, "the fact remains that the rate of population
growth has not moved one bit from the level of 33 per thousand reached in 1979. And in many cases,
even the reduced targets set since then have not been realised. (Population Policy and the Law, ibid,
pages 44-46).
The above facts and eXcerpts highlight the problem of population eXplosion as a national and global
issue and provide justification for priority in policy-oriented legislations wherever needed.

None of the petitioners has disputed the legislative competence of the State of Haryana to enact the
legislation. Incidentally, it may be stated that Seventh Schedule, List II - State List, Entry 5 speaks of
'Local government, that is to say, the constitution and powers of municipal corporations,
improvement trusts, district boards, mining settlement authorities and other local authorities for
the purpose of local self-government or village administration'. Entry 6 speaks of 'Public health and
sanitation' inter alia. In List III - Concurrent List, Entry 20A was added which reads 'Population
control and family planning'. The legislation is within the permitted field of State subjects. Article
243C makes provision for the Legislature of a State enacting laws with respect to Constitution of
Panchayats. Article 243F in Part IX of the Constitution itself provides that a person shall be
disqualified for being chosen as, and for being, a member of Panchayat if he is so disqualified by or
under any law made by the Legislature of the State. Article 243G casts one of the responsibilities of
Panchayats as preparation of plans and implementation of schemes for economic development and
social justice. Some of the schemes that can be entrusted to Panchayats, as spelt out by Article 243G
read with Eleventh Schedule is - Scheme for economic development and social justice in relation to
health and sanitation, family welfare and women and child development and social welfare. Family
planning is essentially a scheme referable to health, family welfare, women and child development
and social welfare. Nothing more needs to be said to demonstrate that the Constitution
contemplates Panchayat as a potent instrument of family welfare and social welfare schemes coming
true for the betterment of people's health especially women's health and family welfare coupled with
social welfare. Under Section 21 of the Act, the functions and duties entrusted to Gram Panchayats
include 'Public Health and Family Welfare', 'Women and Child Development' and 'Social Welfare'.
Family planning falls therein. Who can better enable the discharge of functions and duties and such
constitutional goals being achieved than the leaders of Panchayats themselves taking a lead and
setting an eXample.
Fundamental rights are not to be read in isolation. They have to be read along with the Chapter on
Directive Principles of State Policy and the Fundamental Duties enshrined in Article 51A. Under
Article 38 the State shall strive to promote the welfare of the people and developing a social order
empowered at distributive justice - social, economic and political. Under Article 47 the State shall
promote with special care the educational and economic interests of the weaker sections of the
people and in particular the constitutionally down-trodden. Under Article 47 the State shall regard
the raising of the level of nutrition and the standard of living of its people and the improvement of
public health as among its primary duties. None of these lofty ideals can be achieved without
controlling the population inasmuch as our materialistic resources are limited and the claimants are
many. The concept of sustainable development which emerges as a fundamental duty from the
several clauses of Article 51A too dictates the eXpansion of population being kept within reasonable
bounds. The menace of growing population was judicially noticed and constitutional validity of
legislative means to check the population was upheld in Air India Vs. Nergesh Meerza and Ors.
(1981) 4 SCC 335. The Court found no fault with the rule which would terminate the services of Air
Hostesses on the third pregnancy with two e Xisting children, and held the rule both salutary and
reasonable for two reasons - "In the first place, the provision preventing a third pregnancy with two
eXisting children would be in the larger interest of the health of the Air Hostess concerned as also for
the good upbringing of the children. Secondly,.............when the entire world is faced with the
problem of population eXplosion it will not only be desirable but absolutely essential for every

country to see that the family planning programme is not only whipped up but maintained at
sufficient levels so as to meet the danger of over-population which, if not controlled, may lead to
serious social and economic problems throughout the world."
To say the least it is futile to assume or urge that the impugned legislation violates right to life and
liberty guaranteed under Article 21 in any of the meanings howsoever e Xpanded the meanings may
be.
The provision if it violates Article 25 ?
It was then submitted that the personal law of muslims permits performance of marriages with 4
women, obviously for the purpose of procreating children and any restriction thereon would be
violative of right to freedom of religion enshrined in Article 25 of the Constitution. The relevant part
of Article 25 reads as under:-
25. Freedom of conscience and free profession, practice and propagation of religion. - (1) Subject to
public order, morality and health and to the other provisions of this Part, all persons are equally
entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any e Xisting law or prevent the State from
making any law -
(a) regulating or restricting any economic, financial, political or other secular activity which may be
associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a
public character to all classes and sections of Hindus.
A bare reading of this Article deprives the submission of all its force, vigour and charm. The freedom
is subject to public order, morality and health. So the Article itself permits a legislation in the
interest of social welfare and reform which are obviously part and parcel of public order, national
morality and the collective health of the nation's people. The Muslim Law permits marrying four
women. The personal law nowhere mandates or dictates it as a duty to perform four marriages. No
religious scripture or authority has been brought to our notice which provides that marrying less
than four women or abstaining from procreating a child from each and every wife in case of
permitted bigamy or polygamy would be irreligious or offensive to the dictates of the religion. In our
view, the question of the impugned provision of Haryana Act being violative of Article 25 does not
arise. We may have a reference to a few decided cases.
The meaning of religion - the term as employed in Article 25 and the nature of protection conferred
by Article 25 stands settled by the pronouncement of the Constitution Bench decision in Dr. M.
Ismail Faruqui and Ors. Vs. Union of India & Ors. (1994) 6 SCC 360. The protection under Articles
25 and 26 of the Constitution is with respect to religious practice which forms an essential and
integral part of the religion. A practice may be a religious practice but not an essential and integral

part of practice of that religion. The latter is not protected by Article
25. In Sarla Mudgal (Smt.), President, Kalyani and Ors. Vs. Union of India and Ors. (1995) 3 SCC
635, this Court has judicially noticed it being acclaimed in the United States of America that the
practice of polygamy is injurious to 'public morals', even though some religions may make it
obligatory or desirable for its followers. The Court held that polygamy can be superseded by the
State just as it can prohibit human sacrifice or the practice of Sati in the interest of public order. The
Personal Law operates under the authority of the legislation and not under the religion and,
therefore, the Personal Law can always be superseded or supplemented by legislation. In Mohd.
Ahmed Khan Vs. Shah Bano Begum and Ors., (1985) 2 SCC 556, the Constitution Bench was
confronted with a canvassed conflict between the provisions of Section 125 of Cr.P.C. and Muslim
Personal Law. The question was: when the Personal Law makes a provision for maintenance to a
divorced wife, the provision for maintenance under Section 125 of Cr.P.C. would run in conflict with
the Personal Law. The Constitution Bench laid down two principles; firstly, the two provisions
operate in different fields and, therefore, there is no conflict and; secondly, even if there is a conflict
it should be set at rest by holding that the statutory law will prevail over the Personal Law of the
parties, in cases where they are in conflict. In Mohd. Hanif Quareshi & Ors. Vs. The State of Bihar,
(1959) SCR 629, the State Legislation placing a total ban on cow slaughter was under challenge. One
of the submissions made was that such a ban offended Article 25 of the Constitution because such
ban came in the way of the sacrifice of a cow on a particular day where it was considered to be
religious by Muslims. Having made a review of various religious books, the Court concluded that it
did not appear to be obligatory that a person must sacrifice a cow. It was optional for a Muslim to do
so. The fact of an option seems to run counter to the notion of an obligatory duty. Many Muslims do
not sacrifice a cow on the Id day. As it was not proved that the sacrifice of a cow on a particular day
was an obligatory overt act for a Mussalman for the performance of his religious beliefs and ideas, it
could not be held that a total ban on the slaughter of cows ran counter to Article 25 of the
Constitution. In The State of Bombay Vs. Narasu Appa Mali, AIR 1952 Bombay 84, the
constitutional validity of the Bombay Prevention of Hindu Bigamous Marriages Act (XXV (25) of
1946) was challenged on the ground of violation of Article 14, 15 and 25 of the Constitution. A
Division Bench, consisting of Chief Justice Chagla and Justice Gajendragadkar (as His Lordship
then was), held -
"A sharp distinction must be drawn between religious faith and belief and religious practices. What
the State protects is religious faith and belief. If religious practices run counter to public order,
morality or health or a policy of social welfare upon which the State has embarked, then the
religious practices must give way before the good of the people of the State as a whole."
Their Lordships quoted from American decisions that the laws are made for the government of
actions, and while they cannot interfere with mere religious belief and opinions, they may with
practices. Their Lordships found it difficult to accept the proposition that polygamy is an integral
part of Hindu religion though Hindu religions recognizes the necessity of a son for religious efficacy
and spiritual salvation. However, proceeding on an assumption that polygamy is recognized
institution according to Hindu religious practice, their Lordships stated in no uncertain terms -

"The right of the State to legislate on questions relating to marriage cannot be disputed. Marriage is
undoubtedly a social institution an institution in which the State is vitally interested. Although there
may not be universal recognition of the fact, still a very large volume of opinion in the world today
admits that monogamy is a very desirable and praiseworthy institution. If, therefore, the State of
Bombay compels Hindus to become monogamists, it is a measure of social reform, and if it is a
measure of social reform then the State is empowered to legislate with regard to social reform under
Article 25(2)(b) notwithstanding the fact that it may interfere with the right of a citizen freely to
profess, practise and propagate religion."
What constitutes social reform? Is it for the legislature to decide the same? Their Lordships held in
Narasu Appa Mali's case (supra) that the will e Xpressed by the legislature, constituted by the chosen
representatives of the people in a democracy who are supposed to be responsible for the welfare of
the State, is the will of the people and if they lay down the policy which a State should pursue such
as when the legislature in its wisdom has come to the conclusion that monogamy tends to the
welfare of the State, then it is not for the Courts of Law to sit in judgment upon that decision. Such
legislation does not contravene Article 25(1) of the Constitution. We find ourselves in entire
agreement, with the view so taken by the learned Judges whose eminence as jurists concerned with
social welfare and social justice is recognized without any demur. Divorce unknown to ancient
Hindu Law, rather considered abominable to Hindu religious belief, has been statutorily provided
for Hindus and the Hindu marriage which was considered indissoluble is now capable of being
dissolved or annulled by a decree of divorce or annulment. The reasoning adopted by the High Court
of Bombay, in our opinion, applies fully to repel the contention of the petitioners even when we are
eXamining the case from the point of view of Muslim Personal Law.
The Division Bench of the Bombay High Court in Narasu Appa Mali (supra) also had an occasion to
eXamine the validity of the legislation when it was sought to be implemented not in one go but
gradually. Their Lordships held - "Article 14 does not lay down that any legislation that the State
may embark upon must necessarily be of an all-embracing character. The State may rightly decide to
bring about social reform by stages and the stages may be territorial or they may be community-
wise."
Rule 21 of the Central Civil Services (Conduct) Rules, 1964 restrains any government servant having
a living spouse from entering into or contracting a marriage with any person. A similar provision is
to be found in several service rules framed by the States governing the conduct of their civil
servants. No decided case of this court has been brought to our notice wherein the constitutional
validity of such provisions may have been put in issue on the ground of violating the freedom of
religion under Article 25 or the freedom of personal life and liberty under Article 21. Such a
challenge was never laid before this Court apparently because of its futility. However, a few
decisions by the High Courts may be noticed. In Badruddin Vs. Aisha Begam, 1957 ALJ 300, the
Allahabad High Court ruled that though the personal law of muslims permitted having as many as
four wives but it could not be said that having more than one wife is a part of religion. Neither is it
made obligatory by religion nor is it a matter of freedom of conscience. Any law in favour of
monogamy does not interfere with the right to profess, practise and propagate religion and does not
involve any violation of Article 25 of the Constitution.

In Smt. R.A. Pathan Vs. Director of Technical Education & Ors. - 1981 (22) GLR 289, having
analysed in depth the tenets of Muslim personal law and its base in religion, a Division Bench of
Gujarat High Court held that a religious practice ordinarily connotes a mandate which a faithful
must carry out. What is permissive under the scripture cannot be equated with a mandate which
may amount to a religious practice. Therefore, there is nothing in the e Xtract of the Quaranic teXt
(cited before the Court) that contracting plural marriages is a matter of religious practice amongst
Muslims. A bigamous marriage amongst Muslims is neither a religious practice nor a religious belief
and certainly not a religious injunction or mandate. The question of attracting Articles 15(1), 25(1) or
26(b) to protect a bigamous marriage and in the name of religion does not arise.
In Ram Prasad Seth Vs. State of Uttar Pradesh and Ors. (1957 L.L.J. (Vol.II) 172 = AIR 1961
Allahabad 334) a learned single Judge held that the act of performing a second marriage during the
lifetime of one's wife cannot be regarded as an integral part of Hindu religion nor could it be
regarded as practising or professing or propagating Hindu religion. Even if bigamy be regarded as
an integral part of Hindu religion, the Rule 27 of the Government Servants' Conduct Rules requiring
permission of the Government before contracting such marriage must be held to come under the
protection of Article 25(2)(b) of the Constitution.
The law has been correctly stated by the High Court of Allahabad, Bombay and Gujarat, in the cases
cited hereinabove and we record our respectful approval thereof. The principles stated therein are
applicable to all religions practised by whichever religious groups and sects in India. In our view, a
statutory provision casting disqualification on contesting for, or holding, an elective office is not
violative of Article 25 of the Constitution.
Looked at from any angle, the challenge to the constitutional validity of Section 175 (1)(q) and
Section 177(1) must fail. The right to contest an election for any office in Panchayat is neither
fundamental nor a common law right. It is the creature of a statute and is obviously subject to
qualifications and disqualifications enacted by legislation. It may be permissible for Muslims to
enter into four marriages with four women and for anyone whether a Muslim or belonging to any
other community or religion to procreate as many children as he likes but no religion in India
dictates or mandates as an obligation to enter into bigamy or polygamy or to have children more
than one. What is permitted or not prohibited by a religion does not become a religious practise or a
positive tenet of a religion. A practice does not acquire the sanction of religion simply because it is
permitted. Assuming the practice of having more wives than one or procreating more children than
one is a practice followed by any community or group of people the same can be regulated or
prohibited by legislation in the interest of public order, morality and health or by any law providing
for social welfare and reform which the impugned legislation clearly does.
If anyone chooses to have more living children than two, he is free to do so under the law as it stands
now but then he should pay a little price and that is of depriving himself from holding an office in
Panchayat in the State of Haryana. There is nothing illegal about it and certainly no
unconstitutionality attaches to it.

Some incidental questions It was submitted that the enactment has created serious problems in the
rural population as couples desirous of contesting an election but having living children more than
two, are feeling compelled to give them in adoption. Subject to what has already been stated
hereinabove, we may add that disqualification is attracted no sooner a third child is born and is
living after two living children. Merely because the couple has parted with one child by giving the
child away in adoption, the disqualification does not come to an end. While interpreting the scope of
disqualification we shall have to keep in view the evil sought to be cured and purpose sought to be
achieved by the enactment. If the person sought to be disqualified is responsible for or has given
birth to children more than two who are living then merely because one or more of them are given in
adoption the disqualification is not wiped out. It was also submitted that the impugned
disqualification would hit the women worst, inasmuch as in the Indian society they have no
independence and they almost helplessly bear a third child if their husbands want them to do so.
This contention need not detain us any longer. A male who compels his wife to bear a third child
would disqualify not only his wife but himself as well. We do not think that with the awareness
which is arising in Indian women folk, they are so helpless as to be compelled to bear a third child
even though they do not wish to do so. At the end, suffice it to say that if the legislature chooses to
carve out an eXception in favour of females it is free to do so but merely because women are not
eXcepted from the operation of the disqualification it does not render it unconstitutional.
Hypothetical eXamples were tried to be floated across the bar by submitting that there may be cases
where triplets are born or twins are born on the second pregnancy and consequently both of the
parents would incur disqualification for reasons beyond their control or just by freak of divinity.
Such are not normal cases and the validity of the law cannot be tested by applying it to abnormal
situations. EXceptions do not make the rule nor render the rule irrelevant. One swallow does not
make a summer; a single instance or indicator of something is not necessarily significant.
Conclusion The challenge to the constitutional validity of Section 175(1)(q) and 177(1) fails on all the
counts. Both the provisions are held, intra vires the Constitution. The provisions are salutary and in
public interest. All the petitions which challenge the constitutional validity of the abovesaid
provisions are held liable to be dismissed.
Certain consequential orders would be needed. The matters in this batch of hundreds of petitions
can broadly be divided into a few categories. There are writ petitions under Article 32 of the
Constitution directly filed in this Court wherein the only question arising for decision is the
constitutional validity of the impugned provisions of the Haryana Act. There were many a writ
petitions filed in the High Court of Punjab & Haryana under Articles 226/227 of the Constitution
which have been dismissed and appeals by special leave have been filed in this Court against the
decisions of the High Court. The writ petitions, whether in this Court or in the High Court, were
filed at different stages of the proceedings. In some of the matters the High Court had refused to
stay by interim order the disqualification or the proceedings relating to disqualification pending
before the Director under Section 177(2) of the Act. With the decision in these writ petitions and the
appeals arising out of SLPs the proceedings shall stand revived at the stage at which they were,
eXcepting in those matters where they stand already concluded. The proceedings under Section
177(2) of the Act before the Director or the hearing in the appeals as the case may be shall now be

concluded. In such of the cases where the persons proceeded against have not filed their replies or
have not appealed against the decision of the Director in view of the interim order of this Court or
the High Court having been secured by them they would be entitled to file reply or appeal, as the
case may be, within 15 days from the date of this judgment if the time had not already e Xpired before
their initiating proceedings in the High Court or this Court. Such of the cases where defence in the
proceedings under Section 177(2) of the Act was raised on the ground that the disqualification was
not attracted on account of a child or more having been given in adoption, need not be re-opened as
we have held that such a defence is not available. Subject to the abovesaid directions all the writ
petitions and civil appeals arising out of SLPs are dismissed. SLP (C) No.22312 of 2001 Though this
petition was heard with a batch of petitions on 17.07.2003, raising constitutional validity of certain
provisions of Haryana Panchayati Raj Act, 1994, no such question is raised in this petition. List for
hearing on 04.08.2003.
There are three sets of petitions. In petitions under Article 32 of the Constitution, directly filed in
this Court, the only question arising for decision is the constitutional validity of the impugned
provisions of the Haryana Act. There were some writ petitions filed in the High Court of Punjab and
Haryana under Article 226/227 of the Constitution which have been dismissed, appeals by special
leave have been filed there against. All the writ petitions and appeals shall also stand dismissed. In
some of the matters the High Court had by interim order stayed the disqualification and in some
cases proceedings before the Director under Section 177 (2) of the Act. With the decision in these
writ petitions, the proceedings shall stand revived at the stage where they were. Within 15 days from
the date of this judgment the person proceeded against, may file appeal against the decision of the
Director, as the case may be. In such of the cases where defence to the proceedings under Section
177(2) of the Act was raised on the ground of disqualification, being not attracted on account of the
child having been given in adoption, the defence shall not be available. The proceedings shall stand
concluded and the disqualification shall apply. All the appeals and writ petitions be treated as
disposed of in terms of the above said directions.

N.P. Ponnuswami vs Returning Officer, ... on 21 January, 1952
Equivalent citations: 1952 AIR 64, 1952 SCR 218
Author: S Fazal Ali
Bench: Fazal Ali, Saiyid
PETITIONER:
N.P. PONNUSWAMI
Vs.
RESPONDENT:
RETURNING OFFICER, NAMAKKALCONSTITUENCY and OTHERS.UNION OF
DATE OF JUDGMENT:
21/01/1952
BENCH:
FAZAL ALI,
SAIYID BENCH:
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
(CJ) MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
CITATION:
1952 AIR 64 1952 SCR 218
CITATOR INFO :
RF 1954 SC 520 (6)
R 1955 SC 233 (6)
RF 1957 SC 694 (7)
R 1957 SC 871 (4)
D 1967 SC 669 (17)
MV 1971 SC 530 (373)
R 1973 SC2464 (3)
R 1974 SC 480 (19)
RF 1974 SC1185 (16)
R 1975 SC1708 (11)
R 1975 SC2140 (3,4,5)
RF 1975 SC2299 (268)
E&F 1978 SC 851 (10,22,24,25,26,27,29,30,61
RF 1980 SC1362 (23)
RF 1981 SC 547 (7)
R 1982 SC 983 (7)
R 1983 SC 558 (11)
R 1984 SC 135 (8)
F 1984 SC 921 (19,20)
E&R 1985 SC1233 (24,25,26)
RF 1986 SC 103 (12)
R 1988 SC 61 (6)
RF 1988 SC 616 (6,8,9,10)

RF 1988 SC 915 (9,15)
ACT:
Constitution of India, Arts. 226, 324 to 329--
Represen- tation of the People Act, 1951, ss. 36, 80--
Election to Legislatures--Rejection of nomination paper--
Application to High Court for writ of certiorari--
Maintainability--Juris- diction of High Court--Meaning of
"election" and "questioning election"--Policy of
Legislature with regard to elections--Special remedies.
HEADNOTE:
Article 329 (b) of the Constitution of India provides
that "no election to either House of Parliament or to the
House or either House of the Legislature of a State shall
be called in question except by an election petition
presented to such authority and in such manner as may be
provided for, by or under any law made by the appropriate
Legislature." The Representation of the People Act, 1951,
which made detailed provisions for election to the various
Legislatures of the country also contains a provision
(sec. 80) that no election shall be called in question
except by an election petition presented in accordance
with the provisions of the Act.
The appellant, who was a candidate for election to the
Legislative Assembly of the State of Madras and whose
nomination paper was rejected by the Returning Officer,
applied to the High Court of Madras under article 226 of
the Consti- tution for a writ of certiorari to quash the
order of the Returning Officer rejecting his nomination
paper and to direct the Returning Officer to include his
name in the list of valid nominations to be published:
Held by the Full Court (PATANJALI SASTRI, C.J., FAZL
ALl, MAHAJAN, MUKHERJEA, DAS and CHANDRASEKHARA AIYAR
JJ.)
that in view of the provisions of article 329 (b) of the
Constitution and sec. 80 of the Representation of the
People Act, 1951, the High Court had no jurisdiction to
interfere with the order of the Returning Officer.
The word "election" has by long usage in connection
with the process of selection of proper representatives in
democratic institutions acquired both a wide and a
narrow meaning. In the
219
narrow sense it is used to mean the final selection of a
candidate which may embrace the result of the poll when
there is polling, or a particular candidate being returned
unopposed when there is no poll. In the wide sense, the
word is used to connote the entire process culminating in
a candidate being declared elected and it is in this wide
sense that the word is used in Part XV of the

Constitution

in which article 329 (b) occurs.
The scheme of Part XV of the Constitution and the
Repre- sentation of the People Act, 1951, seems to be that
any matter which has the effect of vitiating an election
should be brought up only at the appropriate stage in an
appropriate manner before a special tribunal and should
not be brought up at an intermediate stage before any
court. Under the election law, the only significance
which the rejection of a nomination paper has, consists
in the fact that it can be used as a ground to call the
election in question. Article 329 (b) was apparently
enacted to prescribe the manner in which and the stage at
which this ground, and other grounds which may be raised
under the law to call the election in question, could be
urged. It follows by necessary implication from the
language of this provision that those grounds cannot be
urged in any other manner, at any other stage and before
any other court. If the grounds on which an election can
be called in question could be raised at an earlier stage
and errors, if any, are rectified, there will be no
meaning in enacting a provision like article 329(b) and in
setting up a special tribunal. Any other meaning ascribed
to the words used in the article would lead to anomalies,
which the Constitution could not have contemplated, one
of them being that conflicting views may be expressed by
the High Court at the pre-polling stage and by the
election tribunal which is to be an independent body, at
the stage when the matter is brought up before it. There-
fore, questioning the rejection of a nomination paper is
"questioning the election" within the meaning of
article
,329 (b) of the Constitution and sec. 80 of the
Representa- tion of the People Act, 1951.
Having regard to the important functions which the
legislatures have to perform in democratic countries, it
has always been recognized to be a matter of first
importance that elections should be concluded as early as
possible according to time schedule and all controversial
matters and all disputes arising out of elections should
be postponed till after the elections are over, so that
the election proceedings may not be unduly retarded or
protracted. In conformity with this principle, the scheme
of the election law in this country as well as in England
is that no significance should be attached to anything
which does not affect the "election"; and if any
irregularities are committed while, it is in progress and
they belong to the category or class which. under the law
by which elections are governed, would have the effect of
vitiating the "election" and enable the person affected to
220
call it in question, they should be brought up before a
special tribunal by means of an election petition and not
be made the subject of a dispute before any court while
the election is in progress.

The right to vote or stand as a candidate for election is

not a civil right but is a creature of statute or special
law and must be subject to the limitations imposed by it.
Strictly speaking, it is the sole right of the Legislature
to examine and determine all matters relating to the elec-
tion of its own members, and if the legislature takes it
out of its own hands and vests in a special tribunal an
entirely new and unknown jurisdiction, that special
jurisdiction should be exercised in accordance with the
law which creates it.
Where a right or liability is created by a statute
which gives a special remedy for enforcing it, the remedy
provided by that statute only must be availed of.
Wolverhampton New Water Works Co. v. Hawkesford [6 C.B.
(N. S. ) 336], Neville v. London Express Newspaper
Limited [1910] A.C. 368), Attorney-General of Trinidad and
Tobago v. Gordon Grant & Co. ([1935] A.C. 532), Secretary
of State v. Mask & Co. (44 C.W.N.
709), Hurdutrai v. Offcial Assign- ee of Calcutta (52
C.W.N. 343), The berge v. Laudry
(1876, 2 App. Cas. 102) referred to.
Judgment of the High Court of Madras affirmed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Case No. 351 of 1951. Appeal under article 132 of the
Constitution from the Judg- ment and Order of the High Court of Judicature at Madras (Subba Rao
and Venkatarama Ayyar JJ.) dated 11th December, 1951, in Writ Petition No. 746 of 1951. The facts
of the case and arguments of the counsel are set out in detail in the judgment.
N. Rajagopal Iyengar, for the appellant.
R. Ganapathi Iyer, for the 1st respondent.
M.C. Setalvad, Attorney-General for India (G. N. Joshi, with him) for the Union of India.
K.A. Chitale, Advocate-General of Madhya Bharat (G. N. Joshi, with him) for the State of Madhya
Bharat.
1952. January 21. Fazl Ali J. delivered Judgment as follows. Patanjali Sastri C.J., Mahajan,
Mukherjea, Das and Chandrasekhara Aiyar JJ. agreed with Fazl Ali 5.
FAZL ALI J. --This is an appeal from an order of the Madras High Court dismissing the petition of
the appellant praying for a writ of certiorari.
The appellant was one of the persons who had filed nomination papers for election to the Madras
Legislative Assembly from the Namakkal Constituency in Salem district. On the 28th November,
1951, the Returning Officer for that constituency took up for scrutiny the nomination papers filed by

the various candidates and on the same day he rejected the appellant's nomination paper on certain
grounds which need not be set out as they are not material to the point raised in this appeal. The
appellant thereupon moved the High Court under article 226 of the Constitution praying for a writ
of of certiorari to quash the order of the Re- turning Officer rejecting his nomination paper and to
direct the Returning Officer to include his name in the list of valid nominations to be published. The
High Court dismissed the appellant's application on the ground that it had no jurisdiction to
interfere with the order of the Returning Officer by reason of the provisions of article 329(b) of the
Constitution. The appellant's contention in this appeal is that the view e Xpressed by the High Court
is not correct, that the jurisdiction of the High Court is not affected by article 329 (b) of the
Constitution and that he was entitled to a writ of certiorari in the circumstances of the case.
Broadly speaking, the arguments on which the judgment of the High Court is assailed are two-fold
:--
(1) that the conclusion arrived at by the High Court does not follow from the language of article 329
(b) of the Constitution, whether that article is read by itself or along with the other articles in Part
XV of the Constitu- tion; and (2) that the anomalies which will arise if the construction put by the
High Court on article 329 (b) is accepted, are so startling that the courts should lean in favour of the
construction put forward on behalf of the appellant.
The first argument which turns on the construction of article 329 (b) requires serious consideration,
but I think the second argument can be disposed of briefly at the outset. It should be stated that
what the appellant chooses to call anomaly can be more appropriately described as hardship or
prejudice and what their nature will be has been stated in forceful language by Wallace J. in
Sarvothama Rao v. Chairman, Municipal Council, Saidapet (1) in these words :-- "I am quite clear
that any post-election remedy is wholly inadequate to afford the relief which the petitioner seeks,
namely, that this election, now published be stayed, until it can be held with himself as a candidate.
It is no conso- lation to tell him that he can stand for some other election. It is no remedy to tell
him that he must let the election go on and then have it set aside by petition and have a fresh
election ordered. The fresh election may be under altogether different conditions and may bring
forward an array of fresh candidates. The petitioner can only have his proper relief if the proposed
election without him is stayed until his rejected nomination is restored, and hence an injunction
staying this election was absolutely necessary, unless the relief asked for was to be denied him
altogether in limine. In most cases of this kind no doubt there will be difficulty for the aggrieved
party to get in his suit in time before the threatened wrong is committed; but when he has succeeded
in so doing, the Court cannot stultify itself by allowing the wrong which it is asked to prevent to be
actually consummated while it is engaged in trying the suit."
These observations however represent only one side of the picture and the same learned Judge
presented the other side of the picture in a subsequent case [Desi Chettiar v. Chinnasami
Chettiar(2)] in the following passage :-
"The petitioner is not without his remedy. His remedy lies in an election petition which we
understand he has already put in. It is argued for him (1) (1924) I.L.R. 47 mad. 585 at 600.

(2) (1928) A. I.R. Mad. 1271 at 1272.
that that remedy which merely allows him to have set aside an election once held is not as
efficacious as the one which would enable him to stop the election altogether;and certain
observations at p. 600 of Sarvothama Rao v. Chairman, Munic- ipal Council, Saidapet(1) are quoted.
In the first place, we do not see how the mere fact that the petitioner cannot get the election stopped
and has his remedy only after it is over by an election petition, will in itself confer on him any right
to obtain a writ. In the second place, these observations were directed to the consideration of the
propriety of an injunction in a civil suit, a matter with which we are not here concerned. And finally
it may. be observed that these remarks were made some years ago when the practice of individuals
coming forward to stop elections in order that their own individual interest may be safeguarded
was not so common. It is clear that there is another side of the question to be considered, namely,
the inconvenience to the public administration of having elections and the business of Local
Boards held up while individuals prosecute their individual grievances. We understand the election
for the elective seats in this Union has been held up since 31st May because of this petition, the
result being that the electors have been unable since then to have any representation on the Board,
and the Board is functioning, if indeed it is functioning, with a mere nominated fraction of its total
strength; and this state of affairs the petitioner proposes to have continued until his own personal
grievance is satisfied."
These observations which were made in regard to elections to Local Boards will apply with greater
force to elections to legislatures, because it does not require much argument to show that in a
country with a democratic constitution in which the legislatures have to play a very important
role, it will lead to serious consequences, if the elections are unduly proracted or obstructed. To this
aspect of the matter I shall have to advert later. but it is sufficient for the present purpose (1)
(1924) I.L.R. 47 Mad, 585 at 600.
to state firstly that in England the hardship and inconvenience which may be suffered by an
individual candidate has not been regarded as of sufficient weight to induce Parlia- ment to make
provision for immediate relief and the aggrieved candidate has to wait until after the election to
challenge the validity of the rejection of his nomination paper, and secondly, that the question of
hardship or inconvenience is after all only a secondary question, because if the construction put by
the High Court on article 329 (b) of the Constitution is found to be correct, the fact that such
construction will lead to hardship and inconvenience becomes irrelevant.
Article 329 is the last article in Part XV of the Constitution, the heading of which is "Elections", and
it runs as follows :--
"Notwithstanding anything in this Constitution--
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to
such constituencies, made or purporting to be made under article 327 or article 328, shall not be
called in question in any court;

(b) no election to either House of Parliament or to the House or either House of the Legislature of a
State shall be called in question eXcept by an election petition presented to such authority and in
such manner as may be provided for, by, or under any law made by the appropriate Legislature."
In construing this article, reference was made by both parties in the course of their arguments to the
other articles in the same Part, namely, articles 324, 325, 326, 327 and 328. Article 324 provides
for the constitution and appointment of an Election Commissioner to superintend, direct and
control ejections to the legislatures; article 325 prohibits discrimination against electors on the
ground of religion, race, caste or seX; article 326 provides for adult suffrage; article 327 empowers
Parliament to pass laws making provision with respect to all matters relating to, or in connection
with, elections to the legislatures, subject to the provisions of the Constitution; and article 328 is a
complementary article giving power to the State Legislature to make provision with respect to all
matters relating to, or in connection with, elections to the State Legislature. A notable difference in
the language used in articles 327 and 328 on the one hand, and article 329 on the other, is that while
the first' two articles begin with the words" subject to the provisions of this Constitution" the last
article begins with the words "notwithstanding anything in this Constitution." It was conceded at the
bar that the effect of this difference in language is that whereas any law made by Parliament under
article 327, or by the State Legislatures under article 328, cannot e Xclude the jurisdiction of the
High Court under article 226 of the Constitu- tion, that jurisdiction is eXcluded in regard to matters
provided for in article 329.
Now, the main controversy in this appeal centres round the meaning of the words "no election shall
be called in question eXcept by an election petition" in article 329 (b), and the point to be decided is
whether questioning the action of the Returning Officer in rejecting a nomination paper can be said
to be comprehended within the words, "no election shall be called in question." The appellant's case
is that questioning something which has happened before a candidate is declared elected is not the
same thing as questioning an election, and the arguments advanced on his behalf in support of this
construction were these:--
(1) That the word "election" as used in article 329 (b) means what it normally and etymologically
means, namely, the result of polling or the final selection of a candidate;
(2) That the fact that an election petition can be filed only after polling is over or after a candidate is
declared elected, and what is normally called in question by such petition is the final result, bears
out the contention that the word "election "can have no other meaning in article (b) than the result
of polling or the final selection of a candidate;
(3) That the words "arising out of or in connection with" which are used in article 324 (1) and the
words "with respect to all matters relating to, or in connection with" which are used in articles 327
and s28, show that the framers of the Constitution knew that it was necessary to use different
language when referring respectively to matters which happen prior to and after the result of
polling, and if they had intended to include the rejection of a nomination paper within the ambit of
the prohibition contained in article S29 (b) they would have used similar language in that article and
(4) That the action of the Returning Officer in rejecting a nomination paper can be questioned

before the High Court under article 226 of the Constitution for the following reason:--Scrutiny of
nomination papers and their rejection are provided for in section 36 of the Representation of the
People Act, 1951. Parliament has made this provision in eXercise of the powers conferred on it by
article 327 of the Constitution which is "subject to the provisions of the Constitution". Therefore, the
action of the Returning Offi- cer is subject to the e Xtraordinary jurisdiction of the High Court under
article 226.
These arguments appear at first sight to be quite im- pressive, but in my opinion there are weightier
and basically more important arguments in support of the view taken by the High Court. As we
have seen, the most important question for determination is the meaning to be given to the word
"election" in article 329 (b). That word has by long usage in connection with the process of selection
of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In
the narrow sense, it is used to mean the final selection of a candidate which may embrace the result
of the poll when there is polling or a particular candidate being returned unopposed when there is
no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate
being declared elected. In Srinivasalu v. Kuppuswami(1), the learned Judges of the Madras High
Court after eXamining the question, eXpressed the opinion that the term "election" may be taken to
embrace the whole procedure whereby an "elected member" is returned, whether or not it be found
necessary to take a poll. With this view, my brother, Maimjan J. e Xpressed his agreement in Sat
Narain v. Hanuman Prasad (2); and I also find myself in agreement with it. It seems to me that the
word "election" has been used in Part XV of the Constitution in the wide sense, that is to say, to
connote the entire procedure to be gone through to return a candidate to the legislature. The use of
the eXpression "conduct of elections" in article 324 specifically points to the wide meaning, and that
meaning can also be read consistently into the other provisions which occur in Part XV including
article 329 (b). That the word "election" bears this wide meaning whenever we talk of elections in a
democratic country, is borne out by the fact that in most of the books on the subject and in several
cases dealing with the matter, one of the questions mooted is, when the election begins. The subject
is dealt with quite concisely in Halsbury's Laws of England in the following passage(s) under the
heading" Commencement of the Election ":--
"Although the first formal step in every election is the issue of the writ, the election is considered for
some purposes to begin at an earlier date. It is a question of fact in each case when an election
begins in such a way as to make the parties concerned responsible for breaches of election law, the
test being whether the contest is "reasonably imminent". Neither the issue of the writ nor the
publication of the notice of election can be looked to as fi Xing the date when an election begins
from this point of view. Nor, again, does the nomination day afford any criterion. The election will
usually begin at least earlier than the issue of the writ. The question when the election begins must
be care (1) (1928) A.I.R. Mad. 253 at 255.
(2) (1945) A.I.R. Lah. 85.
(3) See page 237 of Halsbury's Laws of England, 2nd edition, Volume 12.

fully distinguished from that as to when "the conduct and management of" an election may be said
to begin. Again, the question as to when a particular person commences to be a candidate is a
question to be considered in each case."
The discussion in this passage makes it clear that the word ' 'election" can be and has been
appropriately used with reference to the entire process which consists of several stages and
embraces many steps, some of which may have an important bearing on the result of the process.
The neXt important question to be considered is what is meant by the words "no election shall be
called in question". A reference to any treatise on elections in England will show that an election
proceeding in that country is liable to be assailed on very limited grounds, one of them being the
improper rejection of a nomination paper. The law with which we are concerned is not materially
different, and we find that in section 100 of the Representation of the People Act, 1951, one of the
grounds for declaring an election to be void is the improper rejection of a nomination paper.
The question now arises whether the law of elections in this country contemplates that there should
be two attacks on matters connected with election proceedings, one while they are going on by
invoking the eXtraordinary jurisdiction of the High Court under article 226 of the Constitution (the
ordinary jurisdiction of the courts having been eXpressly eXcluded), and another after they have
been completed by means of an election petition. In my opinion, to affirm such a position would be
contrary to the scheme of Part XV of the Constitution and the Representation of the People Act,
which, as I shall point out later, seems to be that any matter which has the effect of vitiating an
election should be brought up only at the appropriate stage in an appropriate manner before a
special tribunal and should not be brought up at an intermediate stage before any court. It seems to
me that under the election law, the only significance which the rejection of a nomination paper has
consists in the fact that it can be used as a ground to call the election in question. Arti- cle 329(b)was
apparently enacted to prescribe the manner in which and the stage at which this ground, and other
grounds which may be raised under the law to call the election in question could be urged. I think it
follows by necessary implication from the language of this provision that those grounds cannot be
urged in any other manner, at any other stage and before any other court. If the grounds on which
an election can be called in question could be raised at an earlier stage and errors, if any, are
rectified, there will be no meaning in enacting a provision like article 329
(b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article
would lead to anomalies, which the Constitution could not have contemplated, one of them being
that conflicting views may be eX- pressed by the High Court at the pre-polling stage and by the
election tribunal, which is to be an independent body, at the stage when the matter is brought up
before it. I think that a brief eXamination of the scheme of Part XV of the Constitution and the
Representation of the People Act, 1951, will show that the construction I have suggested is the
correct one. Broadly speaking, before an election machinery can be brought into operation, there are
three requisites which require to be attended to, namely, (1) there should be a set of laws and rules
making provisions with respect to all matters relating to, or in connection with, elections, and it
should be decided as to how these laws and rules are to be made;(2) there should be an e Xecu- tive
charged with the duty of securing the due conduct of elections; and (3)there should be a judicial
tribunal to deal with disputes arising out of or in connection with elections. Articles 327 and 328

deal with the first of these requisites, article 324 with the second and article 329 with the third
requisite. The other two articles in Part XV, viz, articles 325 and 326, deal with two matters of
principle to which the Constitution-framers have attached much importance. They are :--(1)
prohibition against discrimination in the preparation of, or eligibility for inclusion in, the electoral
rolls, on grounds of religion, race, caste, se X or any of them; and (2) adult suffrage. Part XV of the
Constitution is really a code in itself providing the entire ground-work for enacting appropriate laws
and setting up suitable machinery for the conduct of elections.
The Representation of the People Act, 1951, which was passed by Parliament under article 327 of the
Constitution. makes detailed provisions in regard to all matters and all stages connected with
elections to the various legislatures in this country. That Act is divided into II parts, and it is
interesting to see the wide variety of subjects they deal with. Part Il deals with "the qualifications
and disqualifications for membership", Part III deals with the notification of General Elections,
Part IV provides for the administrative machinery for the conduct of elections, and Part V makes
provisions for the actual conduct of elections and deals with such matters as presentation of
nomination papers. requirements of a valid nomination, scrutiny of nominations, etc., and
procedure for polling and counting of votes. Part VI deals with disputes regarding elections and
provides for the manner of presentation of election petitions, the constitution of election tribunals
and the trial of election petitions. Part VII outlines the various corrupt and illegal practices which
may affect the elections, and electoral offences. Obviously, the Act is a self contained enactment so
far as elections are concerned, which means that whenever we have to ascertain the true position in
regard to any matter connected with elections, we have only to look at the Act and the rules made
thereunder. The provisions of the Act which are material to the present discussion are sections 80,
100, 105 and 170, and the provisions of Chapter II of Part IV dealing with the form of election
petitions, their contents and the reliefs which may be sought in them. Section 80, which is drafted in
almost the same language as article 329 (b), provides that "no election shall be called in question
eXcept by an election petition presented in accordance with the provisions of this Part". Section 100,
as we have already seen, provides for the grounds on which an election may be called in question,
one of which is the improper rejection of a nomination paper. Section 105 says that "every order of
the Tribunal made under this Act shall be final and conclusive". Section 170 provides that "no civil
court shall have jurisdiction to question the legality of any action taken or of any decision given by
the Returning Officer or by any other person appointed under this Act in connection with an elec-
tion." These are the main provisions regarding election matters being judicially dealt with, and it
should be noted that there is no provision anywhere to the effect that anything connected with
elections can be questioned at an intermediate stage.
It is now well-recognized that where a right or liability is created by a statute which gives a special
remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was
stated with great clarity by Willes J. in Wolverhampton New Water Works Co. v. Hawkes- ford(1) in
the following passage :-
"There are three classes of cases in which a liability may be established founded upon statute. One
is, where there was a liability e Xisting at common law and that liability is affirmed by a statute
which gives a special and peculiar form of remedy different from the remedy which eXisted at

common law;there, unless the statute contains words which e Xpressly or by necessary implication
eXclude the common law remedy, the party suing has his election to pursue either that or the
statutory remedy. The second class of cases is, where the statute gives the right to suemerely, but
provides no particular form of remedy: there, the party can only proceed by action at common law.
But there is a third class, viz., where a liability not e Xisting at common law is created by a statute
which at the same time gives a special and particular remedy for enforcing it..............The remedy
provided by the statute must be followed, and it is not (1) 6 C.B. (N.S.) 336, 356.
competent to the party to pursue the course applicable to cases of the second class. The form given
by the statute must be adopted and adhered to."
The rule laid down in this passage was approved by the House of Lords in Neville v. London E Xpress
Newspaper Limit- ed(1) and has been reaffirmed by the Privy Council in Attorney-General of
Trinidad and Tobago v. Gordon Grant & Co.(2) and Secretary of State v. Mask & Co.(a); and it has
also been held to be equally applicable to enforcement of rights: see Hurdutrai v. Official Assignee of
Calcutta(4). That being so, I think it will be a fair inference from the provisions of the
Representation of the People Act to state that the Act provides for only one remedy, that remedy
being by an election petition to be presented after the election is over, and there is no remedy
provided at any intermediate stage.
It was argued that since the Representation of the People Act was enacted subject to the provisions
of the Constitution, it cannot bar the jurisdiction of the High Court to issue writs under article 226
of the Constitution. This argument however is completely shut out by reading the Act along with
article 329 (b). It will be noticed that the language used in that article and in section 80 of the Act is
almost identical, with this difference only that the article is preceded by the words "notwithstanding
anything in this Constitution". I think that those words are quite apt to eXclude the jurisdiction of
the High Court to deal with any matter which may arise while the elections are in progress.
It may be stated that section 107(1) of the Representation of People Act, 1949 (12 & 13 Geo. 6, c. 68)
in England is drafted almost in the same language as article 329(b). That section runs thus :-
"No parliamentary election and no return to Parliament shall be questioned e Xcept by a petition
complaining of an undue election or undue return (hereinafter referred to as a parliamentary
election petition) presented in accordance with this Part of this Act."
(1) [1919] A.C. 368. (3) (1940) 44 C.W.N. 709. (2) [1935] A.C. 532. (4) (1948) 52 C.W.N. 343,
349. It appears that similar language was used in the earlier statutes, and it is noteworthy that it has
never been held in England that the improper rejection of a nomination paper can be the subject of a
writ of certiorari or mandamus. On the other hand, it was conceded at the bar that the question of
improper rejection of a nomination paper has always been brought up in that country before the
appropriate tribunal by means of an election petition after the conclusion of the election. It is true
that there is no direct decision holding that the words used in the relevant provisions e Xclude the
jurisdiction of the High Court to issue appropriate prerogative writs at an intermediate stage of the

election, but the total absence of any such decision can be accounted for only on the view that the
provisions in question have been generally understood to have that effect. Our attention was drawn
to rule 13 of the rules appended to the Ballot Act of 1872 and a similar rule in the Parliamen- tary
Elections Rules of 1949, providing that the decision of the Returning Officer disallowing an
objection to a nomination paper shall be final, but allowing the same shall be subject to reversal on
a petition questioning the election or return. These rules however do not affect the main argument. I
think it can be legitimately stated that if words similar to those used in article 329 (b) have been
consistently treated in England as words apt to e Xclude the jurisdiction of the courts including the
High Court, the same consequence must follow from the words used in article 329 (b) of the
Constitution. The words "notwithstanding anything in this Constitution" give to that article the
same wide and binding effect as a statute passed by a sovereign legislature like the English
Parliament. It may be pointed out that article 329 (b) must be read as complimentary to clause (a) of
that article. Clause (a) bars the jurisdiction of the courts with regard to such law as may be made
under articles 327 and 328 relating to the delimitation of constituencies or the allotment of seats to
such constituencies. It was conceded before us that article 329 (b) ousts the jurisdiction of the courts
with regard to matters arising between the commencement of the polling and the final selection. The
question which has to be asked is what conceivable reason the legislature could have had to leave
only matters connected with nominations subject to the jurisdiction of the High Court under article
226 of the Constitution. If Part XV of the Constitution is a code by itself, i. e., it creates rights and
provides for their enforcement by a special tribunal to the e Xclusion of all courts including the High
Court, there can be no reason for assuming that the Constitution left one small part of the election
process to be made the subject-matter of contest before the High Courts and thereby upset the time-
schedule of the elections The more reasonable view seems to be that article 329 covers all "electoral
matters". The conclusions which I have arrived at may be summed up briefly as follows :--
(1) Having regard to the important functions which the legislatures have to perform in democratic
countries, it has always been recognized to be a matter of first importance that elections should be
concluded as early as possible according to time schedule and all controversial matters and all
disputes arising out of elections should be postponed till after the elections are over, so that the
election proceedings may not be unduly retarded or protracted. (2) In conformity with this
principle, the scheme the election law in this country as well as in England is that no significance
should be attached to anything which does not affect the "election"; and if any irregularities are
committed while it is in progress and they belong to the category or class which, under the law by
which elections are governed, would have the effect of vitiating the' 'election" and enable the
person affected to call it in question, they should be brought up before a special tribunal by means of
an election petition and not be made the subject of a dispute before any court while the election is
in progress. It will be useful at this stage to refer to the decision the Privy Council in Theberge v.
Laudry(1). The (1) (1876) 2 App. Cas. 102.
petitioner in that case having been declared duly elected a member to represent an electoral district
in the Legislative Assembly of the Province of Quebec, his election was after- wards, on petition,
declared null and void by judgment of the Superior Court, under the Quebec Controverted Elections
Act, 1875, and himself declared guilty of corrupt practices both personally and by his agents.
Thereupon, he applied for special leave to appeal to Her Majesty in Council, but it was refused on

the ground that the fair construction of the Act of 1875 and the Act of 1872 which preceded it
providing among other things that the judgment of the Superior Court "shall not be susceptible of
appeal" was that it was the intention of the legislature to create a tribunal for the purpose of trying
election petitions in a manner which should make its decision final for all purposes, and should not
anneX to it the incident of its judgment being reviewed by the Crown under its prerogative. In
delivering the judgment of the Privy Council, Lord Cairns observed as follows :--
"These two Acts of Parliament, the Acts of 1872 and 1875, are Acts peculiar in their character. They
are not Acts constituting or providing for the decision of mere ordinary civil rights; they are Acts
creating an entirely new, and up to that time unknown, jurisdiction in a particular Court. for the
purpose of taking out, with its own consent, of the Legislative Assembly, and vesting in that Court,
that very peculiar jurisdiction which, up to that time, had eXisted in the Legislative Assembly of
deciding election petitions, and determining the: status of those who claimed to be members of the
Legislative Assembly. A jurisdiction of that kind is eXtremely special, and one of the obvious
incidents or consequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to
be eXercised, should be eXercised in a way that should as soon as possible become conclusive; and
enable the constitution of the Legislative Assembly to be distinctly and speedily known."
After dealing with certain other matters, the Lord ChanCellor proceeded to make the following
further observations :--
"Now, the subject-matter, as has been said, of the legislation is e Xtremely peculiar. It concerns the
rights and privileges of the electors and of the Legislative Assem- bly to which they elect members.
Those rights and privileges have always in every colony, following the e Xample of the mother
country, been jealously maintained and guarded by the Legislative Assembly. Above all, they have
been looked upon as rights and privileges which pertain to the Legisla- tive Assembly, in complete
independence of the Crown, so far as they properly e Xist. And it would be a result somewhat
surprising, and hardly in consonance with the general scheme of the legislation, if, with regard to
rights and privileges of this kind, it were to be found that in the last resort the determination of
them no longer belonged to the Legis- lative Assembly, no longer belonged to the Superior Court
which the Legislative Assembly had put in its place, but belonged to the Crown in Council, with the
advice of the advisers of the Crown at home, to be determined without reference either to the
judgment of the Legislative Assem- bly, or of that Court which the Legislative Assembly had
substituted in its place."
The points which emerge from this decision may be stated as follows :--
(1) The right to vote or stand as a candidate for election is not a civil right but is a creature of
statute or special law and must be subject to the limitations emposed by it.
(2) Strictly speaking, it is the sole right of the Legislature to e Xamine and determine all matters
relating to the election of its own members, and if the legislature takes it out of its own hands and
vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction
should be eXercised in accordance with the law which creates it.

It should be mentioned here that the question as to what the powers of the High Court under articles
226 and 227 and of this Court under article 136 of the Constitution may be, is one that will have to
be decided on a proper occasion. It is necessary to refer at this stage to an argument advanced
before us on behalf of the appellant which was based on the language of article 71 (1) of the
Constitution. That provision runs thus :-
"All doubts and disputes arising out of or in connection with the election of a President or Vice-
President shall be inquired into and decided by the Supreme Court whose decision shall be final."
The argument was as follows. There is a marked contrast between the language used in article 71 (1)
and that of article 329 (b). The difference in the phraseology employed in the two provisions
suggests that they could not have been intended to have the same meaning and scope as regards
matters to be brought up before the tribunals they respectively deal with. If the framers of the
Constitution, who apparently knew how to e Xpress themselves, intended to include within the ambit
of article 329 (b) all possible disputes connected with elections to legislatures, including disputes
as to nominations, they would have used similar words as are to be found in article 71 (1). It is true
that it is not necessary to use identical language in every provision, but one can conceive of various
alternative ways of eXpression which would convey more clearly and properly what article 329 (b) is
said to convey.
It seems to me that once it is admitted that the same idea can be e Xpressed in different ways and the
same phraseology need not be employed in every provision, the argument loses much of its force.
But, however that may be, I think there is a good eXplanation as to why article 329 (b) was drafted as
it stands.
A reference to the election rules made under the Govern- ment of India Acts of 1919 and 1935 will
show that the provisions in them on the subject were almost in the same language as article 329 (b).
The corresponding rule made under the Government of India Act, 1919, was rule 31 of the electoral
rules, and it runs as follows :-
"No election shall be called in question, e Xcept by an election petition presented in accordance with
the provisions of this Part."
It should be noted that this rule occurs in Part VII, the heading of which is "The final decision of
doubts and disputes as to the validity of an election". These words throw some light on the function
which the election tribunal was to perform, and they are the very words which the learned counsel
for the appellant argued, ought to have been used to make the meaning clear.
The same scheme was followed in the election rules framed under the Government of India Act,
1935, which are contained in "The Government of India (Provincial Elections) (Corrupt Practices
and Election Petitions) Order, 1936", dated the 3rd July, 1936. In that Order, the rule corre-
sponding to rule 31 under the earlier Act, runs thus :-

"No election shall be called in question e Xcept by an election petition presented in accordance with
the provisions of this Part of the Order."
This rule is to be found in Part III of the Order, the heading of which is "Decision of doubts and
disputes as to validity of an election and disqualification for corrupt practices."
The rules to which I have referred were apparently framed on the pattern of the corresponding
provisions of the British Acts of 1868 and 1872, and they must have been intended to cover the same
ground as the provisions in England have been understood to cover in that country for so many
years. If the language used in article 329 (b) is considered against this historical background, it
should not be difficult to see why the framers of the Constitution framed that provision in its present
form and chose the language which had been consistently used in certain earlier legislative
provisions and which had stood the test of time.
And now a word as to why negative language was used in article 829 (b). It seems to me that there is
an important difference between article 71 (1) and article 329 (b). Article 71 (1) had to be in an
affirmative form, because it confers special jurisdiction on the Supreme Court which that Court
could not have eXercised but for this article. Arti- cle 329 (b), on the other hand, was primarily
intended to eXclude or oust the jurisdiction of all courts in regard to electoral matters and to lay
down the only mode in which an election could be challenged. The negative form was therefore
more appropriate, and, that being so, it is not surprising that it was decided to follow the
preeXisting pattern in which also the negative language had been adopted. Before concluding, I
should refer to an argument which was strenuously pressed by the learned counsel for the appellant
and which has been reproduced by one of the learned Judges of the High Court in these words:-"It
was neXt contended that if nomination is part election, a dispute as to the validity of nomination is
a dispute relating to election and that can be called in question only in accordance with the
provisions of article 329 (b) by the presentation of an election petition to the appropriate Tribunal
and that the Returning Officer would have no jurisdiction to decide that matter and it was further
argued that section 36 of Act XLIII of 1981 would be ultra vires inasmuch as it confers on the
Returning Officer a jurisdiction which, article 329 (b) confers on a Tribunal to be appointed in
accordance with the article."
This argument displays great dialectical ingenuity, but it has no bearing on the result of this appeal
and I think it can be very shortly answered. Under section 36 of the Representation. of the People
Act, 1951, it is the duty of the Returning Officer to scrutinize the nomination papers to ensure that
they comply with the requirements of the Act and decide all objections which be made to any
nomination. It is clear that unless this duty is discharged properly, any number of candidates may
stand for election without complying with the provisions of the Act and a great deal of confusion
may ensue. In discharging the statutory duty imposed on him, the Returning Officer does not call in
question any election. Scrutiny of nomination papers is only a stage, though an important stage, in
the election process. It is one of the essential duties to be performed before the election can be
completed, and anything done towards the completion of the election proceeding can by no stretch
of reasoning be described as questioning the election. The fallacy of the argument lies in treating a
single step taken in furtherance of an election as equivalent to election. The decision of this appeal

however turns not on the construction of the single word "election", but on the construction of the
compendious eXpression--"no election shall be called in question" in its conte Xt and setting, with
due regard to the scheme of Part XV of the Constitution and the Representation of the People Act,
1951. Evidently, the argument has no bearing on this method of approach to the question posed in
this appeal, which appears to me to be the only correct method.
We are informed that besides the Madras High Court, seven other State High Courts have held that
they have no jurisdiction under article 226 of the Constitution to entertain petitions regarding
improper rejection of nomination papers. This view is in my opinion correct and must be affirmed.
The appeal must therefore fail and is dismissed. In view of the nature and importance of the points
raised in this appeal, there should be no order to costs. PATANJALI SASTRI C.J.--I agree.
MEHR CHAND MAHAJAN J.--- I agree.
MUKHERJEA J.--I agree.
DAS J.-I agree.
CHANDRASEKHARA AIYAR J.-I agree.
Appeal dismissed.
Agent for the appellant: S. Subrahmanyam. Agent for the 1st respondent: P.A. Mehta.
Agent for the Union of India and the State of Madhya Bharat: P.A. Mehta.

Manoj Narula vs Union Of India on 27 August, 2014
Author: E B Sikri
Bench: Chief Justice, Dipak Misra, Madan B. Lokur, Kurian Joseph, S.A. Bobde
INDIA CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 289 OF

2005
Manoj Narula ... Petitioner
Versus
Union of India ...Respondent
J U D G M E N T
Dipak Misra, J. [for himself, R.M. Lodha, C.J., and S.A. Bobde, J.] A democratic polity, as
understood in its quintessential purity, is conceptually abhorrent to corruption and, especially
corruption at high places, and repulsive to the idea of criminalization of politics as it corrodes the
legitimacy of the collective ethos, frustrates the hopes and aspirations of the citizens and has the
potentiality to obstruct, if not derail, the rule of law. Democracy, which has been best defined as the
Government of the People, by the People and for the People, eXpects prevalence of genuine
orderliness, positive propriety, dedicated discipline and sanguine sanctity by constant affirmance of
constitutional morality which is the pillar stone of good governance. While dealing with the concept
of democracy, the majority in Indira Nehru Gandhi v. Raj Narain[1], stated that democracy as an
essential feature of the Constitution is unassailable. The said principle was reiterated in T.N. Seshan,
CEC of India v. Union of India and ors.[2]. and Kuldip Nayar v. Union of India & Ors.[3] It was
pronounced with asseveration that democracy is the basic and fundamental structure of the
Constitution. There is no shadow of doubt that democracy in India is a product of the rule of law and
aspires to establish an egalitarian social order. It is not only a political philosophy but also an
embodiment of constitutional philosophy. In Peoples Union for Civil Liberties and another v. Union
of India and another[4], while holding the voters rights not to vote for any of the candidates, the
Court observed that democracy and free elections are a part of the basic structure of the Constitution
and, thereafter, proceeded to lay down that democracy being the basic feature of our constitutional
set- up, there can be no two opinions that free and fair elections would alone guarantee [pic]the
growth of a healthy democracy in the country. The term fair denotes equal opportunity to all people.
Universal adult suffrage conferred on the citizens of India by the Constitution has made it possible
for millions of individual voters to participate in the governance of our country. For democracy to
survive, it is fundamental that the best available men should be chosen as the peoples

representatives for the proper governance of the country and the same can be best achieved through
men of high moral and ethical values who win the elections on a positive vote. Emphasizing on a
vibrant democracy, the Court observed that the voter must be given an opportunity to choose none
of the above (NOTA) button, which will indeed compel the political parties to nominate a sound
candidate. Accordingly, the principle of the dire need of negative voting was emphasised. The
significance of free and fair election and the necessity of the electorate to have candidates of high
moral and ethical values was re-asserted. In this regard, it may be stated that the health of
democracy, a cherished constitutional value, has to be protected, preserved and sustained, and for
that purpose, instilment of certain norms in the marrows of the collective is absolutely necessitous.
THE REFERENCE We have commenced our judgment with the aforesaid prologue as the present
writ petition under Article 32 of the Constitution was filed by the petitioner as pro bono publico
assailing the appointment of some of the original respondents as Ministers to the Council of
Ministers of Union of India despite their involvement in serious and heinous crimes. On 24.3.2006,
when the matter was listed before the Bench presided by the learned Chief Justice, the following
order came to be passed: -
A point of great public importance has been raised in this petition. Broadly, the point is about the
legality of the person with criminal background and/or charged with offences involving moral
turpitude being appointed as ministers in Central and State Governments.
We have heard in brief Mr. Rakesh Dwivedi, learned senior counsel who was appointed as amicus
curiae to assist the Court, as also the learned Solicitor General, appearing for the Union of India,
and Mr. Gopal Subramaniam, learned Additional Solicitor General appearing on behalf of the
Attorney General for India. Having regard to the magnitude of the problem and its vital importance,
it is but proper that the petition is heard by a Bench of five Judges.
We issue notice to Union of India. Formal notice need not be issued since the Union of India is
represented by learned Solicitor General.
Notices shall also be issued to the Advocates General of all the States. The notice shall state that the
State Governments and the Union of India may file their affidavits along with relevant material
within four weeks of service of notice.
The Prime Minister and some of the Ministers in Union Cabinet have been arrayed as party
respondents 2 to 7. It is not necessary to implead individual ministers and/or Prime Minister for
deciding the question above- named. Accordingly, respondent Nos. 2 to 7 are deleted from the array
of parties.
List the case after the Court reopens after the summer vacation for directions as to fi Xing a date for
its being placed before the Constitution Bench. In view of the aforesaid order and the subsequent
orders, the matter has been placed before us. Considering the controversy raised, we are required to
interpret the scope and purpose of Articles 75 and 164 of the Constitution, regard being had to the
teXt, conteXt, scheme and spirit of the Constitution.

THE PURITY OF ELECTION In the beginning, we have emphasized on the concept of democracy
which is the corner stone of the Constitution. There are certain features absence of which can erode
the fundamental values of democracy. One of them is holding of free and fair election by adult
franchise in a periodical manner as has been held in Mohinder Singh Gill and another v. Chief
Election Commissioner, New Delhi and others[5], for it is the heart and soul of the parliamentary
system. In the said case, Krishna Iyer, J. quoted with approval the statement of Sir Winston
Churchill which is as follows: -
At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a
little pencil, making a little cross on a little bit of paper no amount of rhetoric or voluminous
discussion can possibly diminish the overwhelming importance of the point. In Raghbir Singh Gill v.
S. Gurcharan Singh Tohra[6], the learned Judges, after referring to Mohinder Singh Gills case,
stated that nothing can diminish the overwhelming importance of the cross or preference indicated
by the dumb sealed lip voter. That is his right and the trust reposed by the Constitution in him is
that he will act as a responsible citizen choosing his masters for governing the country.
This Court has laid emphasis on the purity of elections in Union of India v. Association for
Democratic Reforms and another[7] and, in that conte Xt, has observed that elections in this country
are fought with the help of money power which is gathered from black sources and once elected to
power, it becomes easy to collect tons of black money which is used for retaining power and for re-
election. The Court further observed that if on an affidavit a candidate is required to disclose the
assets held by him at the time of election, the voter can decide whether he should be re-elected.
Thereafter, as regards the purity of election, the Court observed that to maintain purity of elections
and, in particular, to bring transparency in the process of election, the Commission can ask the
candidates about the eXpenditure incurred by the political parties, and the voters would have basic
elementary right to know full particulars of a candidate who is to represent them in Parliament
where laws to bind their liberty and property may be enacted because the right to get information in
a democracy is recognised all throughout and it is a natural right flowing from the concept of
democracy. Elaborating further, the Court opined that a voter has a right to know the antecedents
including the criminal past of his candidate contesting election for MP or MLA as it is fundamental
and basic for the survival of democracy, for he may think over before making his choice of electing
law-breakers as law-makers. Eventually, the Court directed the Election Commission to e Xercise its
power under Article 324 of the Constitution requiring the candidate to furnish information
pertaining to the fact whether the candidate has been convicted/ acquitted/discharged of any
criminal offence in the past, if any, and whether he has been punished with imprisonment or fine;
whether the candidate is accused in any pending case of any offence punishable with imprisonment
for two years or more, and in which charge is framed or cognizance is taken by the court of law; and
certain other information.
From the aforesaid authorities, it is perceivable that while giving emphasis on the sanctity of
election, the Court has eXpressed its concern with regard to various facets of the candidates who
contest the election and seek votes.

CRIMINALISATION OF POLITICS Criminalisation of politics is an anathema to the sacredness of
democracy. Commenting on criminalization of politics, the Court, in Dinesh Trivedi, M.P. and
others v. Union of India and others[8], lamented the faults and imperfections which have impeded
the country in reaching the eXpectations which heralded its conception. While identifying one of the
primary causes, the Court referred to the report of N.N. Vohra Committee that was submitted on
5.10.1993. The Court noted that the growth and spread of crime syndicates in Indian society has
been pervasive and the criminal elements have developed an eXtensive network of contacts at many
a sphere. The Court, further referring to the report, found that the Report reveals several alarming
[pic]and deeply disturbing trends that are prevalent in our present society. The Court further
noticed that the neXus between politicians, bureaucrats and criminal elements in our society has
been on the rise, the adverse effects of which are increasingly being felt on various aspects of social
life in India. Indeed, the situation has worsened to such an eXtent that the President of our country
felt constrained to make references to the phenomenon in his addresses to the Nation on the eve of
the Republic Day in 1996 as well as in 1997 and hence, it required to be handled with e Xtreme care
and circumspection.
In Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India and others[9], the Court, in
the conteXt of the provisions made in the election law, observed that they have been made to eXclude
persons with criminal background of the kind specified therein from the election scene as
candidates and voters with the object to prevent criminalization of politics and maintain propriety
in elections. Thereafter, the three-Judge Bench opined that any provision enacted with a view to
promote the said object must be welcomed and upheld as subserving the constitutional purpose. In
K. Prabhakaran v. P. Jayarajan[10], in the conte Xt of enacting disqualification under Section 8(3) of
the Representation of the People Act, 1951 (for brevity the 1951 Act), it has been reiterated that
persons with criminal background pollute the process of election as they have no reservation from
indulging in criminality to gain success at an election.
It is worth saying that systemic corruption and sponsored criminalization can corrode the
fundamental core of elective democracy and, consequently, the constitutional governance. The
agonized concern eXpressed by this Court on being moved by the conscious citizens, as is perceptible
from the authorities referred to hereinabove, clearly shows that a democratic republic polity hopes
and aspires to be governed by a Government which is run by the elected representatives who do not
have any involvement in serious criminal offences or offences relating to corruption, casteism,
societal problems, affecting the sovereignty of the nation and many other offences. There are
recommendations given by different committees constituted by various Governments for electoral
reforms. Some of the reports that have been highlighted at the bar are (i) Goswami Committee on
Electoral Reforms (1990), (ii) Vohra Committee Report (1993), (iii) Indrajit Gupta Committee on
State Funding of Elections (1998), (iv) Law Commission Report on Reforms of the Electoral Laws
(1999), (v) National Commission to Review the Working of the Constitution (2001), (vi) Election
Commission of India Proposed Electoral Reforms (2004), (vii) The Second Administrative Reforms
Commission (2008), (vii) Justice J.S. Verma Committee Report on Amendments to Criminal Law
(2013), and (iX) Law Commission Report (2014).

Vohra Committee Report and other Reports have been taken note of on various occasions by this
Court. Justice J.S. Verma Committee Report on Amendments to Criminal Law has proposed
insertion of Schedule 1 to the 1951 Act enumerating offences under IPC befitting the category of
heinous offences. It recommended that Section 8(1) of the 1951 Act should be amended to cover,
inter alia, the offences listed in the proposed Schedule 1 and a provision should be engrafted that a
person in respect of whose acts or omissions a court of competent jurisdiction has taken cognizance
under Section 190(1)(a), (b) or (c) of the Code of Criminal Procedure or who has been convicted by a
court of competent jurisdiction with respect to the offences specified in the proposed eXpanded list
of offences under Section 8(1) shall be disqualified from the date of taking cognizance or conviction,
as the case may be. It further proposed that disqualification in case of conviction shall continue for a
further period of siX years from the date of release upon conviction and in case of acquittal, the
disqualification shall operate from the date of taking cognizance till the date of acquittal.
The Law Commission, in its 244th Report, 2014, has suggested amendment to the 1951 Act by
insertion of Section 8B after Section 8A, after having numerous consultations and discussions, with
the avowed purpose to prevent criminalization of politics. It proposes to provide for electoral
reforms. Though it is a recommendation by the Law Commission, yet to understand the e Xisting
scenario in which the criminalization of politics has the effect potentiality to create a concavity in the
highly treasured values of democracy, we think it apt to reproduce the relevant part of the proposed
amendment. It reads as follows: -
8B. Disqualification on framing of charge for certain offences. - (1) A person against whom a charge
has been framed by a competent court for an offence punishable by at least five years imprisonment
shall be disqualified from the date of framing the charge for a period of si X years, or till the date of
quashing of charge or acquittal, whichever is earlier.
(2) Notwithstanding anything contained in this Act, nothing in sub-section (1) shall apply to a
person:
(i) Who holds office as a Member of Parliament, State Legislative Assembly or Legislative Council at
the date of enactment of this provision, or
(ii) Against whom a charge has been framed for an offence punishable by at least five years
imprisonment;
(a) Less than one year before the date of scrutiny of nominations for an election under Section 36, in
relation to that election;
(b) At a time when such person holds office as a Member of Parliament, State Legislative Assembly
or Legislative Council, and has been elected to such office after the enactment of these provisions;
(3) For Members of Parliament, State Legislative Assembly or Legislative Council covered by clause
(ii) of sub-section (2), they shall be disqualified at the eXpiry of one year from the date of framing of
charge or date of election, whichever is later, unless they have been acquitted in the said period or

the relevant charge against them has been quashed. The aforesaid vividly e Xposits concern at all
quarters about the criminalisation of politics. Criminalisation of politics, it can be said with
certitude, creates a dent in the marrows of the nation.
CORRUPTION IN THE PRESENT SCENARIO Criminality and corruption go hand in hand. From
the date the Constitution was adopted, i.e., 26th January, 1950, a Red Letter Day in the history of
India, the nation stood as a silent witness to corruption at high places. Corruption erodes the
fundamental tenets of the rule of law. In Niranjan Hemchandra Sashittal and another v. State of
Maharashtra[11] the Court has observed: -
It can be stated without any fear of contradiction that corruption is not to be judged by degree, for
corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions,
kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a
[pic]country, corrodes the sense of civility and mars the marrows of governance. It is worth noting
that immoral acquisition of wealth destroys the energy of the people believing in honesty, and
history records with agony how they have suffered. The only redeeming fact is that collective
sensibility respects such suffering as it is in consonance with the constitutional morality. Recently,
in Dr. Subramanian Swamy v. Director, Central Bureau of Investigation & Anr.[12], the Constitution
Bench, speaking through R.M. Lodha, C.J., while declaring Section 6A of the Delhi Special Police
Establishment Act, 1946, which was inserted by Act 45 of 2003, as unconstitutional, has opined
that:-
It seems to us that classification which is made in Section 6-A on the basis of status in the
Government service is not permissible under Article 14 as it defeats the purpose of finding prima
facie truth into the allegations of graft, which amount to an offence under the PC Act, 1988. Can
there be sound differentiation between corrupt public servants based on their status? Surely not,
because irrespective of their status or position, corrupt public servants are corrupters of public
power. The corrupt public servants, whether high or low, are birds of the same feather and must be
confronted with the process of investigation and inquiry equally. Based on the position or status in
service, no distinction can be made between public servants against whom there are allegations
amounting to an offence under the PC Act, 1988. And thereafter, the larger Bench further said:-
Corruption is an enemy of the nation and tracking down corrupt public servants and punishing such
persons is a necessary mandate of the PC Act, 1988. It is difficult to justify the classification which
has been made in Section 6-A because the goal of law in the PC Act, 1988 is to meet corruption cases
with a very strong hand and all public servants are warned through such a legislative measure that
corrupt public servants have to face very serious consequences. And again:
70. Office of public power cannot be the workshop of personal gain. The probity in public life is of
great importance. How can two public servants against whom there are allegations of corruption of
graft or bribe taking or criminal misconduct under the PC Act, 1988 can be made to be treated
differently because one happens to be a junior officer and the other, a senior decision maker.

Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may
be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or
position of public servant does not qualify such public servant from e X emption from equal
treatment. The decision making power does not segregate corrupt officers into two classes as they
are common crime doers and have to be tracked down by the same process of inquiry and
investigation. From the aforesaid authorities, it is clear as noon day that corruption has the
potentiality to destroy many a progressive aspect and it has acted as the formidable enemy of the
nation.
PROVISIONS RELATING TO QUALIFICATIONS AND DISQUALIFICATION OF MPs AND

MLAs/MLCs Having stated about the significance of democracy under our Constitution and holding
of free and fair elections as a categorical imperative to sustain and subserve the very base of
democracy, and the concern of this Court on being moved under various circumstances about
criminalization of politics, presently we shall look at the constitutional and the statutory provisions
which provide for qualifications and disqualifications of Members of Parliament and that of the
State Legislature.
Article 84 of the Constitution provides for qualifications for membership of Parliament. The said
Article lays down that a person shall not be qualified to be chosen to fill a seat in the Parliament
unless he is a citizen of India, and makes and subscribes before a person authorised in that behalf by
the Election Commission an oath or affirmation according to the form set out for the purpose in the
Third Schedule; and further in the case of a seat in the Council of States, not less than thirty years of
age and, in the case of a seat in the House of the People, not less than twenty five years of age; and
that apart, he must possess such other qualifications as may be prescribed in that behalf by or under
any law made by Parliament.
Article 102 provides for disqualifications for membership. It provides that a person shall be
disqualified for being chosen as, and for being, a member of either House of Parliament if he holds
any office of profit under the Government of India or the Government of any State, other than an
office declared by Parliament by law not to disqualify its holder; if he is of unsound mind and stands
so declared by a competent court; if he is an undischarged insolvent; if he is not a citizen of India, or
has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of
allegiance or adherence to a foreign State; and if he is so disqualified by or under any law made by
Parliament. The eXplanation eXpressly states what would be deemed not to be an office of profit
under the Government of India or the Government of any State. That apart, the said Article
prescribes that a person shall be disqualified for being a member of either House of Parliament if he
is so disqualified under the Tenth Schedule.
Similarly, Article 173 provides for qualification for membership of the State Legislature and Article
191 enumerates the disqualifications similar to Article 102.
The Parliament by the 1951 Act has prescribed further qualifications and disqualifications to become
a member of Parliament or to become a member of Legislative Assembly. Section 8 of the Act
stipulates the disqualification on conviction for certain offences. We need not state the nature of the

offences enumerated therein. Suffice it to mention Section 8(1) covers a wide range of offences not
only under the Indian Penal Code but also under many other enactments which have the potentiality
to destroy the core values of a healthy democracy, safety of the State, economic stability, national
security, and prevalence and sustenance of peace and harmony amongst citizens, and many others.
Sub-sections 8(3) and 8(4), which have been a matter of great debate, are reproduced below: -
8(3) A person convicted of any offence and sentenced to imprisonment for not less than two years
other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from the
date of such conviction and shall continue to be disqualified for a further period of siX years since
his release.
(4) Notwithstanding anything in sub-section (1), Sub-section (2) or sub- section (3), a
disqualification under either sub-section shall not, in the case of a person who on the date of the
conviction is a member of Parliament or the Legislature of a State, take effect until three months
have elapse from that date or, if within that period an appeal or application for revision is brought in
respect of the conviction or the sentence, until that appeal or application is disposed of by the court.
At this juncture, it is apposite to mention that the constitutional validity of sub-section (4) of Section
8 of the 1951 Act was challenged before this Court under Article 32 of the Constitution in Lily
Thomas v. Union of India and others[13] wherein the Court, referring to the decision in K
Prabhakaran (supra) and Articles 102(1)(e) and 191(1)(e) of the Constitution, held that once a person
who was a Member of either House of Parliament or House of the State Legislature becomes
disqualified by or under any law made by Parliament under Articles 102(1)(e) and 191(1)(e) of the
Constitution, his seat automatically falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) of the
Constitution and Parliament cannot make a provision as in sub-section (4) of Section 8 of the Act to
defer the date on which the disqualification of a sitting Member will have effect and prevent his seat
becoming vacant on account of the disqualification under Article 102(1)(e) or Article 191(1)(e) of the
Constitution. Eventually, the Court ruled that the affirmative words used in Articles 102(1)(e) and
191(1)(e) confer power on Parliament to make one law laying down the same disqualifications for a
person who is to be chosen as Member of either House of Parliament or as a Member of the
Legislative Assembly or Legislative Council of a State and for a person who is a sitting Member of a
House of Parliament or a House of the State Legislature and the words in Articles 101(3)(a) and
190(3)(a) of the Constitution put eXpress limitations on such power of the Parliament to defer the
date on which the disqualifications would have effect and, therefore, [pic]sub-section (4) of Section
8 of the Act, which carves out a saving in the case of sitting Members of Parliament or State
Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or
which defers the date on which the disqualification will take effect in the case of a sitting Member of
Parliament or a State Legislature, is beyond the powers conferred on Parliament by the
Constitution. Thereafter, dealing with sitting members of the Parliament and State Legislature, the
two-Judge Bench ruled that if any sitting Member of Parliament or a State Legislature is convicted
of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act, and by virtue
of such conviction and/or sentence, suffers the disqualifications mentioned in sub-sections (1), (2)
and (3) of Section 8 of the Act, his membership of Parliament or the State Legislature, as the case
may be, would not be saved by sub- section (4) of Section 8 of the Act.

Thus, the scheme of disqualification upon conviction laid down by the 1951 Act clearly upholds the
principle that a person who has been convicted for certain categories of criminal activities is unfit to
be a representative of the people. Criminal activities that result in disqualification are related to
various spheres pertaining to the interest of the nation, common citizenry interest, communal
harmony, and prevalence of good governance. It is clear that the 1951 Act lays down that the
commission of serious criminal offences renders a person ineligible to contest in elections or
continue as a representative of the people. Such a restriction does provide the salutary deterrent
necessary to prevent criminal elements from holding public office thereby preserving the probity of
representative government.
SUBMISSIONS OF THE COUNSEL In this backdrop, the proponements put forth by Mr. Dwivedi,
learned senior counsel, who was appointed as amicus curiae, are to be noted and considered. It is his
submission that under the constitutional scheme, it is the right of a citizen to be governed by a
Government which does not have Ministers in the Council of Ministers with criminal antecedents.
Though qualifications and disqualifications for the Members of Parliament and Members of the
State Legislative Assembly or the State Legislative Council are provided under the Constitution, and
they basically relate to the election process and continuance in the House and the further
disqualifications which have been enumerated under the 1951 Act have been legislated by the
Parliament being empowered under the specific provisions of the Constitution, yet when the
Ministers are appointed who constitute the spectrum of collective responsibility to run the
Government, a stronger criteria has to be provided for. A Minister is appointed by the President on
the advice of the Prime Minister as per Article 75(1) of the Constitution and a Minister enters upon
his Office after the President administers him oath of office and secrecy according to the form set
out for the said purpose in the Third Schedule and, therefore, submits Mr. Dwivedi, it is the
constitutional obligation on the part of the Prime Minister not to recommend any person to be
appointed as a Minister of the Council of Ministers who has criminal antecedents or at least who is
facing a criminal charge in respect of heinous or serious offences. The choice made by the Prime
Minister has to have its base on constitutional choice, tradition and constitutional convention which
must reflect the conscience of the Constitution. It is propounded by him that the same would serve
the spirit and core values of the Constitution, the values of constitutionalism and the legitimate
eXpectations of the citizens of this country. The power conferred on any constitutional authority
under any of the Articles of the Constitution may not be circumscribed by e Xpress or obvious
prohibition but it cannot be said that in the absence of use of any e Xpress phraseology in that regard,
it would confer an unfettered and absolute power or unlimited discretion on the said constitutional
authority. Learned senior counsel would contend that the doctrine of implied limitation has been
accepted as a principle of interpretation of our organic and living Constitution to meet the
requirements of the contemporaneous societal metamorphosis and if it is not applied to the
language of Article 75(1), the élan vital of the Constitution would stand e Xtinguished. It is urged by
him that judiciary, as the final arbiter of the Constitution, is under the constitutional obligation to
inject life to the words of the Constitution so that they do not become stagnate or sterile. In this
conteXt, Mr. Dwivedi has commended us to the views of the learned Judges in His Holiness
Kesavananda Bharati Sripadagalvaru v. State of Kerala and another[14] to highlight that the
applicability of the doctrine of implied limitation has been accepted by this Court.

Relying on the said principle, it is contended by him that the same has to be read into the language
of Article 75(1) of the Constitution to state that the Prime Minister, while giving advice to the
President for appointment of a person as Minister, is not constitutionally permitted to suggest the
name of a person who is facing a criminal trial and in whose case charge/charges have been framed.
Learned senior counsel has further submitted that high constitutional offices have to possess
institutional integrity so that the faith of the people at large is not shaken. He has emphasised on the
office of the President, the Governors, Judges of the High Courts and of the Supreme Court of the
country and the Comptroller and Auditor General of India. Such offices, as contended, are offices of
high public trust and, therefore, it is a natural necessity that in such appointments, the incumbent
should be of impeccable integrity and character and it cannot be conceived that such a person would
be involved in any kind of criminal offence. Mr. Dwivedi has made a distinction with regard to the
eligibility of a person for becoming a Member of Parliament as that is controlled by qualifications
and disqualifications and the absence of disqualifications, but to be a Minister in the Council of
Ministers which is done solely on the advice of the Prime Minister, absence of criminal antecedents
has to be a condition precedent. It is canvassed by him that when parliamentary democracy is a
basic feature of the Constitution and the Council of Ministers e Xercise all the powers as per the
democratic conventions, it has to be treated as an important constitutional institution of governance
of the nation and, therefore, it cannot be allowed to be held by persons involved in criminal offences.
He has placed reliance upon the authorities in Centre for PIL and another v. Union of India and
another[15], N. Kannadasan v. Ajoy Khose and others[16], Inderpreet Singh Kahlon v. State of
Punjab[17], Arun Kumar Agarwal v. Union of India[18], State of Punjab v. Salil Sabhlok and
others[19] and Centre for Public Interest Litigation and another v. Union of India and another[20].
Laying stress on the word advice, apart from referring to the dictionary meaning, the learned senior
counsel has urged that the framers of the Constitution have used the word advice as the Office of the
Prime Minister is eXpected to carry the burden of the constitutional trust. The advice given by the
Prime Minister to the President in the conteXt of Article 75(1) has to be a considered, deliberate and
informed one, especially taking note of the absence of criminal antecedents and lack of integrity. A
Minister, though holds the office during the pleasure of the President, yet as per the law laid down
by this Court and the convention, the advice of the Prime Minister binds the President. However,
the President, being the EXecutive Head of the State, can refuse to follow the advice, if there is
constitutional prohibition or constitutional impropriety or real eXceptional situation that requires
him to act to sustain the very base of the Constitution. Learned senior counsel would submit that the
President, in eXercise of his constitutional prerogative, may refuse to accept the advice of the Prime
Minister, if he finds that the name of a Member of Parliament is suggested to become a Minister
who is facing a criminal charge in respect of serious offences. To buttress the said submission, he
has drawn inspiration from the decisions in Samsher Singh v. State of Punjab and another[21] and
B. R. Kapur v. State of T.N. and another[22] Mr. Dwivedi has said that the situation peril to
democracy, as visualized in Samsher Singh (supra, confers the discretion on the President and he
may not accept the advice. Learned senior counsel would submit that the decision in Samsher Singh
(supra) has been followed in M.P. Special Police Establishment v. State of M.P. and others[23]
wherein the Governor in an eXceptional circumstance differed with the advice of the Council of
Ministers and granted sanction for prosecution. Emphasising on the concept of constitutional trust
in the Prime Minister which is inherent in the Constitution and which was a part of the Constituent

Assembly Debates, Mr. Dwivedi has referred to the Debates in the Constituent Assembly. It is
argued that a constitutional convention has to be read into Article 75(1) which would convey that a
person charged with serious crimes cannot be appointed as a Minister, for the individual
responsibility of the Cabinet is always comprehended as a facet of collective responsibility. For the
aforesaid purpose, he has found the stimulus from Constitutional Law by Loveland, Constitutional
and Administrative Law by David Polland, Neil Parpworth David Hughs, Constitutional and
Administrative Law by Hilaire Barnett (5th Edn.) and Constitutional Practice.
Mr. Anil Kumar Jha, learned counsel who has preferred the writ petition on behalf of the petitioner,
supplementing the arguments of Mr. Dwivedi, contended that though the choice of the Prime
Minister relating to a person being appointed as a Minister is his constitutional prerogative, yet such
choice cannot be eXercised in an arbitrary manner being oblivious of the honesty, integrity and the
criminal antecedents of a person who is involved in serious criminal offences. The Prime Minister,
while giving advice to the President for appointment of a person as a Minister, is required to be
guided by certain principles which may not be eXpressly stated in the Constitution but he is bound
by the unwritten code pertaining to morality and philosophy encapsulated in the Preamble of the
Constitution. Learned counsel has emphasised on the purposive interpretation of the Constitution
which can preserve, protect and defend the Constitution regardless of the political impact. It is
contended by him that if a constitutional provision is silent on a particular subject, this Court can
necessarily issue directions or orders by interpretative process to fill up the vacuum or void till the
law is suitably enacted. The broad purpose and the general scheme of every provision of the
Constitution has to be interpreted, regard being had to the history, objects and result which it seeks
to achieve. Learned counsel has placed reliance on S.P. Gupta v. Union of India and another[24] and
M. Nagaraj and others v. Union of India and others[25].
Mr. T.R. Andhyarujina, learned senior counsel, who was requested to assist the Court, has
submitted that in the absence of any eXpress provision for qualification of a Minister in the Union
Cabinet under Article 75 of the Constitution eXcept that he has to be a Member of either House of
the Parliament and when the oath required to be taken by a Minister under Article 75(4) as given in
the Third Schedule, does not give any requirement of his antecedent, there is no legal restriction
under the Constitution for a person unless convicted of an offence as provided under Section 8A of
the 1951 Act to be appointed as a Minister. It is his submission that Article 84 specifies certain
qualifications for filling up the seats of Parliament, but it does not state anything as to the character
and qualification of a person qualified to sit in the Parliament. Apart from the disqualifications
prescribed under Article 102(i)(e) and the provisions under the 1951 Act, there is no other
disqualification for a Member of Parliament to hold the post of a Minister. Therefore, the criminal
antecedents or any disqualification that is going to be thought of to hold the post of a Minister after
the charge is framed, as contended by the petitioner, may be in the realm of propriety but that
cannot be read into the constitutional framework.
Mr. Andhyarujina has further submitted that Section 44(4)(ii) of the Australian Constitution puts a
limitation on the member of the House which travels beyond conviction in a criminal case, for the
said provision provides that any person who has been convicted and is under sentence, or subject to
be sentenced, for any offence punishable under the law of the Commonwealth or of a State by

imprisonment for one year or longer, would be incapable of being chosen or of sitting as a senator or
a member of the House of Representatives. Learned counsel has commended us to Lanes
Commentary on the Australian Constitution, 1986 to highlight that this is an eXceptional provision
in a Constitution which disqualifies a person from being a Member of Parliament even if he is not
convicted but likely to be subject to a sentence for the prescribed offence, but in the absence of such
a provision in our Constitution or in law made by the Parliament, the Court cannot introduce such
an aspect on the bedrock of propriety. Learned counsel has also referred to the U.K. Representation
of Peoples Act, 1981 which provides that a person who is sentenced or ordered to be imprisoned or
detained indefinitely or for more than one year is disqualified and his election is rendered void and
the seat of such a member is vacated. Mr. Andhyarujina has also referred to the House of Commons
Library paper on disqualification for membership of the House of Commons wherein the practice is
that the eXistence of a criminal record may not disqualify a person from ministerial office, but
convictions for offences involving corruption, dishonesty, serious violence or serious seXual
misconduct would jeopardize a persons prospect of a ministerial career. Learned senior counsel has
also drawn our attention to a publication by Professor Rodney Brazier Is it a Constitutional issue:
Fitness for ministerial office in Public Law 1994 wherein it has been stated that whether a criminal
record should disqualify a person from membership of Government is unclear, however, conviction
for serious offences could impede a ministerial appointment. He has also referred to a passage from
Constitutional and Administrative Law by Hilaire Barnett 4th Ed. P. 354, to show that by an
unwritten rule of constitutional propriety, in United Kingdom, a person is unlikely to be made a
Minister if he has been convicted of a serious offence or even if he is facing prosecution for a serious
offence. Submission of learned amicus curiae is that there is no implied prohibition in our
Constitution on appointment of a Minister in case of a pending prosecution of a serious offence
eXcept conviction and, therefore, the principle of implied prohibition that a person who is not
convicted but is being prosecuted or charge sheeted for a criminal offence is to be debarred from
being a Member of the Legislature and, consequently, a Minister would not be attracted. Learned
senior counsel would contend that the jurisprudence is based on innocence of the accused until he is
proved guilty which is in tune with Article 14(2) of the International Covenant on Civil and Political
Rights and it cannot be brushed aside. Learned amicus curiae contended that in respect of certain
constitutional officials like President of India, Judges of courts including superior courts, Attorney
General of India, Comptroller and Auditor General of India and Governor of a State, implied
prohibition is implicit. It is urged by him that this Court, while interpreting Article 75(1), cannot
introduce the concept of rule of law to attract the principle of implied prohibition as rule of law is an
elusive doctrine and it cannot form the basis of a prohibition on the appointment of a Minister.
Mr. Andhyarujina, while submitting about the absence of an eXpress constitutional prohibition or a
statutory bar founded on the basis of the 1951 Act prescribing conviction, has also submitted that
despite the absence of a legal prohibition, there are non-legal requirements of a constitutional
behavior implicit in the character of an appointment. He has referred to a passage from
Constitutional and Administrative Law by ECS Wade and AW Bradley as well as the Constitutional
Debates and urged that a convention should be developed that persons facing charge for serious
criminal offences should not be considered for appointment as a Minister, but the Court cannot
form a legal basis for adding a prohibition for making such an appointment justiciable in the court
of law unless there is a constitutional prohibition or a statutory bar.

Mr. K. Parasaran, learned senior counsel, who was also requested to render assistance, has
submitted that the area of election in a democratic set-up is governed by the 1951 Act and the rules
framed thereunder and in the present mosaic of democracy such a controversy, in the absence of
constitutional impediment or statutory prohibition, would not come within the parameters of
judicial review. It is his proponement that the Prime Minister, in certain circumstances, regard
being had to the political situations, may have certain political compulsions to appoint a Minister so
that the frequent elections are avoided. It is his submission that any kind of additional prohibition
under Article 75(1) by way of judicial interpretation is impermissible as the Prime Minister is the
sole repository of power under the Constitution to advise the President as to who should become a
Minister if he is otherwise constitutionally eligible and there is no statutory impediment. Learned
senior counsel would contend that the 1951 Act includes certain offences and specifies the stage, i.e.,
conviction and, therefore, if anything is added to it in respect of the stage, it would be travelling
beyond the teXt which would be contrary to the principles of statutory interpretation.
Mr. Parasaran, learned amicus curiae, has drawn a distinction between the two concepts, namely,
constitutional morality and constitutional propriety on one hand and ethical acceptability on the
other and, in that regard, he has submitted that the advice of the Prime Minister, as has been stated
by the framers of the Constitution, to the Head of the EXecutive for appointment of a Minister
should conform to the standards of constitutional morality, regard being had to the constitutional
norms, democratic polity and the sanctity of democracy. In essence, the submission of Mr.
Parasaran is that the framers of the Constitution have bestowed immense trust on the Prime
Minister as would be seen from the Constitutional Debates, and, therefore, this Court should
reiterate the principle of constitutional trust and that would be a suggestive one in terms of Article
75(1) of the Constitution.
Mr. Paras Kuhad, learned Additional Solicitor General, in his turn, has contended that the doctrine
of implied limitation has not been accepted in Kesavananda Bharati case by the majority of Judges
and, therefore, the interpretation put forth by the learned friend of the Court for the petitioner is
impermissible. It is urged by him that while interpreting Article 75(1) of the Constitution, the
principle of implied limitation cannot be read into it to curtail the power of a high constitutional
functionary like the Prime Minister.
It is his further submission that in the absence of a constitutional prohibition or restriction, nothing
should be engrafted into it or implanted. It is put forth by him that the submission of learned amicus
curiae to the effect that the President can e X ercise his discretion by not accepting the
recommendations of the Prime Minister or by not acting on the advice of the Prime Minister is
contrary to the constitutional norms and the parliamentary system prevalent in our country under
the Constitution. For the aforesaid purpose, he has placed reliance on the decision in U.N.R. Rao v.
Smt. Indira Gandhi[26]. It is urged by him that if anything is added to Article 75(1), that would
tantamount to incorporating a disqualification which is not present and the principle of judicial
review does not conceptually so permit, for such a disqualification could have been easily imposed
by the framers of the Constitution or by the Parliament by making a provision under the 1951 Act.
To bolster the said submission, he has commended us to the Constitution Bench decision in G.
Narayanaswami v. G. Pannerselvam and others[27] and a three-Judge Bench decision in Shrikant v.

Vasantrao and others[28]. The choice of the Prime Minister is binding on the President and a
Minister holds the office till he enjoys the confidence of the House. Learned Additional Solicitor
General, for the said purpose, has drawn inspiration from certain passages from Samsher Singh
(supra).
It is his further submission that if the stage of framing of charge of any offence is introduced, it
would frustrate and, eventually, defeat the established concept of criminal jurisprudence that an
accused is presumed to be innocent till he is proved to be guilty and there is indeed a long distance
between the accused may have committed the offence and must have committed the offence which
must be traversed by the prosecution by adducing reliable and cogent evidence. In this regard,
reliance has been placed on Narendra Singh v. State of M.P.[29], Ranjitsing Brahmajeetsing Sharma
v. State of Maharashtra[30], S. Ganesan v. Rama Ranghuraman[31], State of U.P. v. Naresh[32] and
Kailash Gour & ors. v. State of Assam[33]. Learned counsel would suggest that the stage would
affect the concept of democratic legitimacy and a person cannot become ineligible on the basis of
perceived seriousness of the crime without providing a protection despite the person being
otherwise eligible, efficient and capable of being chosen as a Minister by the Prime Minister.
CONSTITUTIONAL PROVISIONS Having regard to the aforesaid submissions which have been put
forth from various perspectives, we shall proceed to deal with the ambit and scope of the
constitutional provisions which are relevant in the present conte X t and how they are to be
interpreted on the parameters of constitutional interpretation and on the bedrock of the precedents
of this Court. We think it seemly to refer to the relevant Articles of the Constitution which are
centripodal to the controversy. Articles 74 and 75 read as follows: -
74. (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise
the President who shall, in the eXercise of his functions, act in accordance with such advice:
Provided that the President may require the Council of Ministers to reconsider such advice, either
generally or otherwise, and the President shall act in accordance with the advice tendered after such
reconsideration.
(2) The question whether any, and if so what, advice was tendered by Ministers to the President
shall not be inquired into in any court.
75. (1) The Prime Minister shall be appointed by the President and the other Ministers shall be
appointed by the President on the advice of the Prime Minister.
(1A) The total number of Ministers, including the Prime Minister, in the Council of Ministers shall
not eXceed fifteen per cent of the total number of members of the House of the People.
(1B) A member of either House of Parliament belonging to any political party who is disqualified for
being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to
be appointed as a Minister under clause (1) for duration of the period commencing from the date of
his disqualification till the date on which the term of his office as such member would eXpire or

where he contests any election to either House of Parliament before the eXpiry of such period, till the
date on which he is declared elected, whichever is earlier.
(2) The Ministers shall hold office during the pleasure of the President.
(3) The Council of Ministers shall be collectively responsible to the House of the People.
(4) Before a Minister enters upon his office, the President shall administer to him the oaths of office
and of secrecy according to the forms set out for the purpose in the Third Schedule.
(5) A Minister who for any period of siX consecutive months is not a member of either House of
Parliament shall at the eXpiration of that period cease to be a Minister.
(6) The salaries and allowances of Ministers shall be such as Parliament may from time to time by
law determine and, until Parliament so determines, shall be as specified in the Second Schedule.
From the aforesaid Articles, it is vivid that they deal with the Council of Ministers for the Union of
India.
Article 163 pertains to the Council of Ministers of State who aid and advise the Governor. It reads as
follows:-
163. (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise
the Governor in the eXercise of his functions, eXcept in so far as he is by or under this Constitution
required to eXercise his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as respects which the Governor is
by or under this Constitution required to act in his discretion, the decision of the Governor in his
discretion shall be final, and the validity of anything done by the Governor shall not be called in
question on the ground that he ought or ought not to have acted in his discretion.
(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor
The relevant part of Article 164 is eXtracted below: -
164. (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be
appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office
during the pleasure of the Governor:
XXX XXX XXX (2) The Council of Ministers shall be collectively responsible to the Legislative
Assembly of the State.
(3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office

(4) A Minister who for any period of si X consecutive months is not a member of the Legislature of
the State shall at the eXpiration of that period cease to be a Minister. At this juncture, it is apt to
refer to the nature of oath which is meant for the office of a Minister. The Third Schedule provides
the forms of Oaths or Affirmations of the Constitution: -
Form of oath of office for a Minister for the Union: -
I, A.B., do swear in the name of God/ solemnly affirm that I will bear true faith and allegiance to the
Constitution of India as by law established, that I will uphold the sovereignty and integrity of India,
that I will faithfully and conscientiously discharge my duties as a Minister for the Union and that I
will do right to all manner of people in accordance with the Constitution and the law, without fear or
favour, affection or ill-will. The Form of Oath for office of a Minister of State is as follows: -
that I will faithfully and conscientiously discharge my duties as a Minister for the State of and
that I will do right to all manner of people in accordance with the Constitution and the law without
fear or favour, affection or ill-will. The form of oath of secrecy for a Minister for the Union is as
follows: -
I, A.B., do swear in the name of God/solemnly affirm that I will not directly or indirectly
communicate or reveal to any person or persons any matter which shall be brought under my
consideration or shall become known to me as a Minister for the Union eXcept as may be required
for the due discharge of my duties as such Minister. Similar is the oath of secrecy for a Minister for a
State. We have reproduced the forms pertaining to oath as Mr. Dwivedi stressed on the concept of
sanctity of oath that pertains to allegiance to the Constitution, performing of duties without fear or
favour and maintenance of secrecy. It is urged by him that a person with criminal antecedents
taking such an oath would violate the fundamental values enshrined in the Constitution.
DOCTRINE OF IMPLIED LIMITATION It has been highlighted before us by Mr. Dwivedi, as noted
earlier, that regard being had to the nature of office a Minister holds in a democratic set-up under
the Constitution, persons with criminal antecedents especially charged for heinous and serious
offences cannot and should not hold the said office. He has emphatically put forth that apart from
the prohibitions contained in Articles 102 and 179 of the Constitution and the conviction under the
1951 Act, the relevant stage in trial needs to be introduced to the phraseology of Article 75(1) as well
as Article 164(1) so that the Prime Ministers authority to give advice has to be restricted to the
eXtent not to advise a person with criminal antecedents to become a Minister. To substantiate the
said view, he has taken aid of the doctrine of implied limitation. In Kesavananda Bharatis case,
Sikri, CJ, while eXpressing his view on the doctrine of implied limitation, has observed that in a
written Constitution, it is rarely that everything is said e Xpressly. Powers and limitations are implied
from necessity or the scheme of the Constitution. He has further held: -
282. It seems to me that reading the Preamble the fundamental importance of the freedom of the
individual, indeed its inalienability, and the importance of the economic, social and political justice

mentioned in the Preamble, the importance of directive principles, the non-inclusion in Article 368
of provisions like Articles 52, 53 and various other provisions to [pic]which reference has already
been made an irresistible conclusion emerges that it was not the intention to use the word
amendment in the widest sense.
283. It was the common understanding that fundamental rights would remain in substance as they
are and they would not be amended out of e X istence. It seems also to have been a common
understanding that the fundamental features of the Constitution, namely, secularism, democracy
and the freedom of the individual would always subsist in the welfare state.
284. In view of the above reasons, a necessary implication arises that there are implied limitations
on the power of Parliament that the eXpression amendment of this Constitution has consequently a
limited meaning in our Constitution and not the meaning suggested by the respondents. Shelat and
Grover, JJ., in their opinion, while speaking about the eXecutive power of the President, have
observed that although the eXecutive power of the President is apparently eXpressed in unlimited
terms, an implied limitation has been placed on his power on the ground that he is a formal or
constitutional head of the eXecutive and that the real eXecutive power vests in the Council of
Ministers. The learned Judges arrived at the said conclusion on the basis of the implications of the
Cabinet System of Government so as to constitute an implied limitation on the power of the
President and the Governors. Proceeding further as regards the amending power of the
Constitution, as engrafted under Article 368 of the Constitution, said the learned Judges: -
583. The entire discussion from the point of view of the meaning of the e Xpression amendment as
employed in Article 368 and the limitations which arise by implications leads to the result that the
amending power under Article 368 is neither narrow nor unlimited. On the footing on which we
have proceeded the validity of the 24th Amendment can be sustained if Article 368, as it originally
stood and after the amendment, is read in the way we have read it. The insertion of Articles 13(4)
and 368(3) and the other amendments made will not affect the result, namely, that the power in
Article 368 is wide enough to permit amendment of each and every article of the Constitution by
way of addition, variation or repeal so long as its basic elements are not abrogated or denuded of
their identity. Hegde and Mukherjea, JJ., while discussing about implied limitations, opined thus: -
655. Implied limitations on the powers conferred under a statute constitute a general feature of all
statutes. The position cannot be different in the case of powers conferred under a Constitution. A
grant of power in general terms or even in absolute terms may be qualified by other e Xpress
provisions in the same enactment or may be qualified by the implications of the conte Xt or even by
considerations arising out of what appears to be the general scheme of the statute. And again: -
656. Lord Wright in James v. Commonwealth of Australia[34] stated the law thus:
The question, then, is one of construction, and in the ultimate resort must be determined upon the
actual words used, read not in vacuo but as occurring in a single comple X instrument, in which one
part may throw light on another. The Constitution has been described as the federal compact, and in
the construction must hold a balance between all its parts. Thereafter, the learned Judges proceeded

to state that: -
657. Several of the powers conferred under our Constitution have been held to be subject to implied
limitations though those powers are eXpressed in general terms or even in absolute terms. And
further proceeded to state thus: -
.... though plenary powers of legislation have been conferred on the Parliament and the State
Legislatures in respect of the legislative topics allotted to them, yet this Court has opined that by the
eXercise of that power neither Parliament nor the State Legislatures can delegate to other authorities
their essential legislative functions nor could they invade on the judicial power. These limitations
were spelled out from the nature of the power conferred and from the scheme of the Constitution.
But, it was urged on behalf of the Union and the States that, though there might be implied
limitations on other powers conferred under the Constitution, there cannot be any implied
limitations on the amending power. We see no basis for this distinction. Jaganmohan Reddy, J., in
his separate opinion, concurred with the view eXpressed by Sikri, C.J.
Palekar, J., has opined thus: -
Some more cases like Ranasinghes case[35] Taylor v. Attorney General of Queensland[36]; Mangal
Singh v. Union of India[37], were cited to show that constitutional laws permit implications to be
drawn where necessary. Nobody disputes that proposition. Courts may have to do so where the
implication is necessary to be drawn. After so stating, the learned Judge distinguished the cases by
observing that: -
None of the cases sheds any light on the question with which we are concerned viz. whether an
unambiguous and plenary power to amend the provisions of the Constitution, which included the
Preamble and the fundamental rights, must be frightened by the fact that some superior and
transcendental character has been ascribed to them. And eventually, ruled thus: -
1318. On a consideration, therefore, of the nature of the amending power, the unqualified manner in
which it is given in Article 368 of the Constitution it is impossible to imply any limitations on the
power to amend the fundamental rights. Since there are no limitations e Xpress or implied on the
amending power, it must be conceded that all the Amendments which are in question here must be
deemed to be valid. We cannot question their policy or their wisdom. Chandrachud, J., has observed
that: -
2087. In considering the petitioners argument on inherent limitations, it is well to bear in mind
some of the basic principles of interpretation. Absence of an eXpress prohibition still leaves scope for
the argument that there are implied or inherent limitations on a power, but absence of an e Xpress
prohibition is highly relevant for inferring that there is no implied prohibition. Khanna, J., while
speaking on implied limitation, noted the submission of the learned counsel for the petitioner in the
following terms: - 1444. Learned counsel for the petitioners has addressed us at some length on the
point that even if there are no eXpress limitations on the power of amendment, the same is subject
to implied limitations, also described as inherent limitations. So far as the concept of implied

limitations is concerned, it has two facets. Under the first facet, they are limitations which flow by
necessary implications from eXpress provisions of the Constitution. The second facet postulates
limitations which must be read in the Constitution irrespective of the fact whether they flow from
eXpress provisions or not because they are stated to be based upon certain higher values which are
very dear to the human heart and are generally considered essential traits of civilized e Xistence. It is
also stated that those higher values constitute the spirit and provide the scheme of the Constitution.
This aspect of implied limitations is linked with the e Xistence of natural rights and it is stated that
such rights being of paramount character, no amendment of Constitution can result in their erosion.
Dealing with the same, the learned Judge ruled: -
1446. So far as the first facet is concerned regarding a limitation which flows by necessary
implication from an eXpress provision of the Constitution, the concept derives its force and is
founded upon a principle of interpretation of statutes. In the absence of any compelling reason it
may be said that a constitutional provision is not e Xempt from the operation of such a principle. I
have applied this principle to Article 368 and despite that, I have not been able to discern in the
language of that article or other relevant articles any implied limitation on the power to make
amendment contained in the said article. Be it clarified, in subsequent paragraphs, the learned
Judge eXpressed the view that though the Parliament has been conferred the power of amendment
under Article 368 of the Constitution, yet it cannot be permitted to incorporate an amendment
which would destroy the basic structure or essential feature of the Constitution.
In Minerva Mills Ltd. And Others v. Union of India and Others[38], the Constitution Bench was
dealing with the validity of Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976.
Chandrachud, C.J., speaking for himself, Gupta, Untwalia and Kailasam, JJ., referred to the
majority opinion in Kesavananda Bharati (supra) and referred to the opinion given by Sikri, C.J.,
Shelat and Grover, JJ., Hegde and Mukherjea, JJ., Jaganmohan Reddy, J. and Khanna, J. and
opined thus:-
11. Khanna, J. broadly agreed with the aforesaid views of the si X learned Judges and held that the
word amendment postulated that the Constitution must survive without loss of its identity, which
meant that the basic structure or framework of the Constitution must survive any amendment of the
Constitution. According to the learned Judge, although it was permissible to the Parliament, in
eXercise of its amending power, to effect changes so as to meet the requirements of changing
conditions, it was not permissible to touch the foundation or to alter the basic institutional pattern.
Therefore, the words amendment of the Constitution, in spite of the width of their sweep and in
spite of their amplitude, could not have the effect of empowering the Parliament to destroy or
abrogate the basic structure or framework of the Constitution.
12. The summary of the various judgments in Kesavananda Bharati was signed by nine out of the
thirteen Judges. Paragraph 2 of the summary reads to say that according to the majority, Article 368
does not enable Parliament to alter the basic structure or framework of the Constitution. Whether or
not the summary is a legitimate part of the judgment, or is per incuriam for the scholarly reasons
cited by authors, it is undeniable that it correctly reflects the majority view. Thereafter, the learned
Chief Justice proceeded to state thus:- 16. ...The theme song of the majority decision in

Kesavananda Bharati is: Amend as you may even the solemn document which the founding fathers
have committed to your care, for you know best the needs of your generation. But, the Constitution
is a precious heritage; therefore, you cannot destroy its identity. In B. R. Kapur (supra), the
Constitution Bench, after referring to the decision in Kesavananda Bharti (supra), reproduced
paragraph 16 from Minerva Mills case and opined that since the Constitution had conferred a
limited amending power on Parliament, Parliament could not in the eXercise of that limited power,
enlarge that very power into an absolute power. A limited amending power was one of the basic
features of the Constitution and, therefore, the limitations on that power could not be destroyed. In
other words, Parliament could not, under Article 368, e Xpand its amending power so as to acquire
for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features.
The donee of a limited power could not by the e Xercise of that power convert the limited power into
an unlimited one.
In I.R. Coelho (Dead) by Lrs. v. State of Tamil Nadu[39], the Nine-Judge Bench, while dealing with
the doctrine of implied limitation, ruled thus:-
96. 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 si X 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. From the aforesaid authorities, it is luminescent that the principle of implied limitation is
attracted to the sphere of constitutional interpretation. The question that is required to be posed
here is whether taking recourse to this principle of interpretation, this Court can read a categorical
prohibition to the words contained in Article 75(1) of the Constitution so that the Prime Minister is
constitutionally prohibited to give advice to the President in respect of a person for becoming a
Minister of the Council of Ministers who is facing a criminal trial for a heinous and serious offence
and charges have been framed against him by the trial Judge. Reading such an implied limitation as
a prohibition would tantamount to adding a disqualification at a particular stage of the trial in
relation of a person. This is neither e Xpressly stated nor is impliedly discernible from the provision.
The doctrine of implied limitation was applied to the amending power of the Constitution by the
Parliament on the fundamental foundation that the identity of the original Constitution could not be
amended by taking recourse to the plenary power of amendment under Article 368 of the
Constitution. The essential feature or the basic structure of the doctrine was read into Article 368 to
say that the identity or the framework of the Constitution cannot be destroyed. In Minerva Mills
case, giving eXample, the Court held that by amendment, the Parliament cannot damage the
democratic republican character as has been conceived in the Constitution. Though in Article 368 of
the Constitution there was no eXpress prohibition to amend the constitutional provisions, yet the
Court in the aforesaid two cases ruled that certain features which are basic to the Constitution
cannot be changed by way of amendment. The interpretative process pertained to the word
amendment. Therefore, the concept of implied limitation was read into Article 368 to save the

constitutional integrity and identity. In B.R. Kapurs case, the Constitution Bench ruled that a non-
legislator can be made a Chief Minister or Minister under Article 164(1) only if he has
qualifications for membership of the Legislature prescribed under Article 173 and is not disqualified
from the membership thereof by reason of the disqualifications set out in Article 191. Bharucha, J.
(as his Lordship then was), speaking for the majority, opined that as the second respondent therein
had been convicted for offences punishable under Sections 13(1)(c), 13(1)(d) and 13(2) of the
Prevention of Corruption Act, 1988 and Sections 409 and 120-B of the Indian Penal Code and
sentenced to undergo rigorous imprisonment of three years, she was disqualified under Section 8(4)
of the 1951 Act as the said respondent was disqualified to contest the election. In the said case, she
was sworn in as the Chief Minister by the Governor. This Court was moved in by a writ of quo
warranto that she was not eligible to hold the post of the Chief Minister. A submission was advanced
that it was not open to the Court to read anything into Article 164, for a non-legislator could be
sworn in as the Chief Minister, regardless of the qualifications or disqualifications. The Court placed
reliance on Kesavananda Bharatis case and Minerva Mills case and opined that if a non-legislator is
made a Chief Minister under Article 164, then he must satisfy the qualification for membership of a
legislator as prescribed under Article 173. A specific query was made by the Court that even when
the person recommended, was, to the Governors knowledge, a non-citizen or under-age or lunatic or
discharged insolvent, could he be appointed as a Chief Minister. It was urged that he/she could only
be removed by the vote of no-confidence in the Legislature or at the ne Xt election. Discarding the
same, the Court opined that acceptance of such a submission would invite disaster. The Court
further ruled that when a person is not qualified to become a Member in view of Article 173, he
cannot be appointed as a Chief Minister under Article 164(1). Be it noted, there was disqualification
in the Constitution and under the 1951 Act to become a Member of the State Legislature, and hence,
the Court, appreciating the teXt and conteXt, read the disqualification into Article 164(1) of the
Constitution.
On a studied scrutiny of the ratio of the aforesaid decisions, we are of the convinced opinion that
when there is no disqualification for a person against whom charges have been framed in respect of
heinous or serious offences or offences relating to corruption to contest the election, by
interpretative process, it is difficult to read the prohibition into Article 75(1) or, for that matter, into
Article 164(1) to the powers of the Prime Minister or the Chief Minister in such a manner. That
would come within the criterion of eligibility and would amount to prescribing an eligibility
qualification and adding a disqualification which has not been stipulated in the Constitution. In the
absence of any constitutional prohibition or statutory embargo, such disqualification, in our
considered opinion, cannot be read into Article 75(1) or Article 164(1) of the Constitution.
PRINCIPLE OF CONSTITUTIONAL SILENCE OR ABEYANCE The neXt principle that can be

thought of is constitutional silence or silence of the Constitution or constitutional abeyance. The
said principle is a progressive one and is applied as a recognized advanced constitutional practice. It
has been recognized by the Court to fill up the gaps in respect of certain areas in the interest of
justice and larger public interest. Liberalization of the concept of locus standi for the purpose of
development of Public Interest Litigation to establish the rights of the have-nots or to prevent
damages and protect environment is one such feature. Similarly, laying down guidelines as
procedural safeguards in the matter of adoption of Indian children by foreigners in the case of

Laxmi Kant Pandey v. Union of India[40] or issuance of guidelines pertaining to arrest in the case of
D.K. Basu v. State of West Bengal[41] or directions issued in Vishakha and others v. State of
Rajasthan and others[42] are some of the instances.
In this conteXt, it is profitable to refer to the authority in Bhanumati and others v. State of Uttar
Pradesh through its Principal Secretary and others[43] wherein this Court was dealing with the
constitutional validity of the U.P. Panchayat Laws (Amendment) Act, 2007. One of the grounds for
challenge was that there is no concept of no-confidence motion in the detailed constitutional
provision under Part IX of the Constitution and, therefore, the incorporation of the said provision in
the statute militates against the principles of Panchayati Raj institutions. That apart, reduction of
one year in place of two years in Sections 15 and 28 of the Amendment Act was sought to be struck
down as the said provision diluted the principle of stability and continuity which is the main
purpose behind the object and reason of the constitutional amendment in Part IX of the
Constitution. The Court, after referring to Articles 243-A, 243-C(1), (5), 243-D(4), 243-D(6), 243-
F(1), (6), 243-G, 243-H, 243-I(2), 243-J, 243-K(2) and (4) of the Constitution and further
taking note of the amendment, came to hold that the statutory provision of no-confidence is
contrary to Part- IX of the Constitution. In that conteXt, it has been held as follows: -
49. Apart from the aforesaid reasons, the arguments by the appellants cannot be accepted in view of
a very well-known constitutional doctrine, namely, the constitutional doctrine of silence. Michael
Foley in his treatise on The Silence of Constitutions (Routledge, London and New York) has argued
that in a Constitution abeyances are valuable, therefore, not in spite of their obscurity but because of
it. They are significant for the attitudes and approaches to the Constitution that they evoke, rather
than the content or substance of their strictures. (P. 10)
50. The learned author elaborated this concept further by saying, Despite the absence of any
documentary or material form, these abeyances are real and are an integral part of any Constitution.
What remains unwritten and indeterminate can be just as much responsible for the operational
character and restraining quality of a Constitution as its more tangible and codified components. (P.
82) The question that is to be posed here is whether taking recourse to this doctrine for the purpose
of advancing constitutional culture, can a court read a disqualification to the already e Xpressed
disqualifications provided under the Constitution and the 1951 Act. The answer has to be in the
inevitable negative, for there are eXpress provisions stating the disqualifications and second, it
would tantamount to crossing the boundaries of judicial review.
DOCTRINE OF CONSTITUTIONAL IMPLICATIONS The neXt principle that we intend to discuss is

the principle of constitutional implication. We are obliged to discuss this principle as Mr. Dwivedi,
learned amicus curiae, has put immense emphasis on the words on the advice of the Prime Minister
occurring in Article 75(1) of the Constitution. It is his submission that these words are of immense
significance and apposite meaning from the said words is required to be deduced to the effect that
the Prime Minister is not constitutionally allowed to advise the President to make a person against
whom charge has been framed for heinous or serious offences or offences pertaining to corruption
as Minister in the Council of Ministers, regard being had to the sacrosanctity of the office and the
oath prescribed under the Constitution. Learned senior counsel would submit that on many an

occasion, this Court has eXpanded the horizon inherent in various Articles by applying the doctrine
of implication based on the constitutional scheme and the language employed in other provisions of
the Constitution.
In this regard, inclusion of many a facet within the ambit of Article 21 is well established. In R.
Rajagopal alias R.R. Gopal and another v. State of T.N. and others[44], right to privacy has been
inferred from Article 21. Similarly, in Joginder Kumar v. State of U.P. and others[45], inherent
rights under Articles 21 and 22 have been stated. Likewise, while dealing with freedom of speech
and eXpression and freedom of press, the Court, in Romesh Thappar v. The State of Madras[46], has
observed that freedom of speech and eXpression includes freedom of propagation of ideas.
There is no speck of doubt that the Court has applied the doctrine of implication to e Xpand the
constitutional concepts, but the conte Xt in which the horizon has been e Xpanded has to be borne in
mind. What is suggested by Mr. Dwivedi is that by taking recourse to the said principle, the words
employed in Article 75(1) are to be interpreted to add a stage in the disqualification, i.e., framing of
charges in serious and heinous criminal offences or offences relating to corruption. At this juncture,
it is seemly to state that the principle of implication is fundamentally founded on rational inference
of an idea from the words used in the teXt. The concept of legitimate deduction is always recognised.
In Melbourne Corporation v Commonwealth[47], Di Xon, J opined that constitutional implication
should be based on considerations which are compelling. Mason, CJ, in Political Advertising
Case[48], has ruled that there can be structural implications which are logically or practically
necessary for the preservation of the integrity of that structure. Any proposition that is arrived at
taking this route of interpretation must find some resting pillar or strength on the basis of certain
words in the teXt or the scheme of the teXt. In the absence of that, it may not be permissible for a
Court to deduce any proposition as that would defeat the legitimacy of reasoning. A proposition can
be established by reading number of articles cohesively, for that will be in the domain of substantive
legitimacy.
DiXon, J, in Australian National Airways Pty Ltd. v Commonwealth[49], said: I do not see why we
should be fearful about making implications. The said principle has been approved in Lamshed v
Lake[50], and thereafter, in Payroll Tax Case[51]. Thus, the said principle can be taken aid of for the
purpose of interpreting constitutional provision in an eXpansive manner. But, it has its own
limitations. The interpretation has to have a base in the Constitution. The Court cannot re-write a
constitutional provision. In this conte Xt, we may fruitfully refer to Kuldip Nayars case wherein the
Court repelled the contention that a right to vote invariably carries an implied term, i.e., the right to
vote in secrecy. The Court observed that where the Constitution thought it fit to do so, it has itself
provided for elections by secret ballot e.g., in the case of election of the President of India and the
Vice-President of India. Thereafter, the Court referred to Articles 55(3) and 66(1) of the Constitution
which provide for elections of the President and the Vice-President respectively, referring to voting
by electoral colleges, consisting of elected Members of Parliament and Legislative Assembly of each
State for the purposes of the former office and Members of both Houses of Parliament for the latter
office and in both cases, it was felt necessary by the framers of the Constitution to provide that the
voting at such elections shall be by secret ballot through inclusion of the words and the voting at
such election shall be by secret ballot. If the right to vote by itself implies or postulates voting in

secrecy, then Articles 55(3) and 66(1) would not have required the inclusion of such words. The
necessity for including the said condition in the said articles shows that secret ballot is not always
implied. It is not incorporated in the concept of voting by necessary implication. Thereafter, the
Court opined: -
421. It follows that for secret ballot to be the norm, it must be e Xpressly so provided. To read into
Article 80(4) the requirement of a secret ballot would be to read the words and the voting at such
election shall be by secret ballot into the provision. To do so would be against every principle of
constitutional and statutory construction. Thus analysed, it is not possible to accept the submission
of Mr. Dwivedi that while interpreting the words advice of the Prime Minister it can legitimately be
inferred that there is a prohibition to think of a person as a Minister if charges have been framed
against him in respect of heinous and serious offences including corruption cases under the criminal
law.
OTHER RELEVANT CONSTITUTIONAL CONCEPTS CONSTITUTIONAL MORALITY, GOOD

GOVERNANCE AND CONSTITUTIONAL TRUST Though we have not accepted the inspired
arguments of Mr. Dwivedi to add a disqualification pertaining to the stage into Article 75(1) of the
Constitution, yet we cannot be oblivious of the three concepts, namely, constitutional morality, good
governance and constitutional trust.
The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a

Constitution made for a progressive society. Working of such a Constitution depends upon the
prevalent atmosphere and conditions. Dr. Ambedkar had, throughout the Debate, felt that the
Constitution can live and grow on the bedrock of constitutional morality. Speaking on the same, he
said: -
Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our
people are yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is
essentially undemocratic.[52] The principle of constitutional morality basically means to bow down
to the norms of the Constitution and not to act in a manner which would become violative of the rule
of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a
laser beam in institution building. The traditions and conventions have to grow to sustain the value
of such a morality. The democratic values survive and become successful where the people at large
and the persons-in-charge of the institution are strictly guided by the constitutional parameters
without paving the path of deviancy and reflecting in action the primary concern to maintain
institutional integrity and the requisite constitutional restraints. Commitment to the Constitution is
a facet of constitutional morality. In this conte X t, the following passage would be apt to be
reproduced: -
If men were angels, no government would be necessary. If angels were to govern men, neither
eXternal nor internal controls on government would be necessary. In framing a government which is
to be administered by men over men, the great difficulty lies in this: you must first enable the
government to control the governed; and in the neXt place oblige it to control itself. A dependence
on the people is, no doubt, the primary control on the government; but eXperience has taught

mankind the necessity of au Xiliary precautions.[53] Regard being had to the aforesaid concept, it
would not be out of place to state that institutional respectability and adoption of precautions for the
sustenance of constitutional values would include reverence for the constitutional structure. It is
always profitable to remember the famous line of Laurence H. Tribe that a Constitution is written in
blood, rather than ink[54].
GOOD GOVERNANCE Having stated about the aspect of constitutional morality, we presently
proceed to deal with the doctrine of good governance. In A. Abdul Farook v. Municipal Council,
Perambalur and others[55], the Court observed that the doctrine of good governance requires the
Government to rise above their political interest and act only in the public interest and for the
welfare of its people.
In Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh and Ors.[56], the Court, referring to
the object of the provisions relating to corrupt practices, elucidated as follows:
Clean, efficient and benevolent administration are the essential features of good governance which
in turn depends upon persons of competency and good character. In M.J. Shivani and others v. State
of Karnataka and others[57], it has been held that fair play and natural justice are part of fair public
administration; non-arbitrariness and absence of discrimination are hall marks for good
governance under the rule of law. In State of Maharashtra and others v. Jalgaon Municipal
Corporation and others[58], it has been ruled that one of the principles of good governance in a
democratic society is that smaller interest must always give way to larger public interest in case of
conflict. In U.P. Power Corporation Ltd. and Anr. v. Sant Steels & Alloys (P) Ltd. and Ors.[59], the
Court observed that in this 21st century, when there is global economy, the question of faith is very
important.
In a democracy, the citizens legitimately eXpect that the Government of the day would treat the
public interest as primary one and any other interest secondary. The maxim Salus Populi Suprema
LeX, has not only to be kept in view but also has to be revered. The faith of the people is embedded
in the root of the idea of good governance which means reverence for citizenry rights, respect for
Fundamental Rights and statutory rights in any governmental action, deference for unwritten
constitutional values, veneration for institutional integrity, and inculcation of accountability to the
collective at large. It also conveys that the decisions are taken by the decision making authority with
solemn sincerity and policies are framed keeping in view the welfare of the people, and including all
in a homogeneous compartment. The concept of good governance is not an Utopian conception or
an abstraction. It has been the demand of the polity wherever democracy is nourished. The growth
of democracy is dependant upon good governance in reality and the aspiration of the people
basically is that the administration is carried out by people with responsibility with service
orientation.
CONSTITUTIONAL TRUST Having stated about good governance, we shall proceed to deal with the
doctrine of constitutional trust. The issue of constitutional trust arises in the conte Xt of the debate in
the Constituent Assembly that had taken place pertaining to the recommendation for appointment
of a Minister to the Council of Ministers. Responding to the proposal for the amendment suggested

by Prof. K.T. Shah with regard to the introduction of a disqualification of a convicted person
becoming a Minister, Dr. B.R. Ambedkar had replied: -
His last proposition is that no person who is convicted may be appointed a Minister of the State.
Well, so far as his intention is concerned, it is no doubt very laudable and I do not think any
Member of this House would like to differ from him on that proposition. But the whole question is
this whether we should introduce all these qualifications and disqualifications in the Constitution
itself. Is it not desirable, is it not sufficient that we should trust the Prime Minister, the Legislature
and the public at large watching the actions of the Ministers and the actions of the Legislature to see
that no such infamous thing is done by either of them? I think this is a case which may eminently be
left to the good-sense of the Prime Minister and to the good sense of the Legislature with the general
public holding a watching brief upon them. I therefore say that these amendments are unnecessary.
[Emphasis supplied] The trust reposed in the Prime Minister is based on his constitutional status. In
Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab[60], B.K. Mukherjea, CJ, while
referring to the scope of Article 74, observed that under Article 53(1) of the Constitution, the
eXecutive power of the Union is vested in the President but under Article 74, there is to be a Council
of Ministers with the Prime Minister at the head to aid and advise the President in the e Xercise of his
functions. The President has, thus been, made a formal or constitutional head of the e Xecutive and
the real eXecutive powers are vested in the Ministers or the Cabinet.
In Samsher Singh (supra), Ray, CJ, speaking for the majority, opined that the President as well as
the Governor is the constitutional or the formal head and eXercise the power and functions
conferred on them by or under the Constitution on the aid and advice of the Council of Ministers,
save in spheres where the Governor is required by or under the Constitution to eXercise his
functions in his discretion. The learned Chief Justice further observed that the satisfaction of the
President or the Governor in the constitutional sense in the Cabinet system of Government is really
the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor
generally eXercises his powers and functions and, thereafter, it has been held that they are required
to act with the aid and advice of the Council of Ministers and are not required by the Constitution to
act personally without the aid and advice. Krishna Iyer, J., speaking for himself and Bhagwati,J.,
opined that under the Constitution, the President and Governor, custodian of all e Xecutive and other
powers under various Articles, are to eXercise their formal constitutional powers only upon and in
accordance with the due advice of their Ministers, save in few well-known eXceptional situations.
The learned Judge has carved out certain eXceptions with which we are really presently not
concerned with.
In Supreme Court Advocates-on-Record Association and another v. Union of India[61], while

discussing about constitutional functions, the Court observed that it is a constitutional requirement
that the person who is appointed as Prime Minister by the President is the effective head of the
Government and the other Ministers are appointed by the President on the advice of the Prime
Minister and both the Prime Minister and the Ministers must continuously have the confidence of
the House of the People, individually and collectively. The Court further observed that the powers of
the President are eXercised by him on the advice of the Prime Minister and the Council of Ministers
which means that the said powers are effectively eXercised by the Council of Ministers headed by the

Prime Minister.
We have referred to these authorities singularly for the purpose that the Prime Minister has been
conferred an eXtremely special status under the Constitution.
As the Prime Minister is the effective head of the Government, indubitably, he has enormous
constitutional responsibility. The decisions are taken by the Council of Ministers headed by the
Prime Minister and that is the Cabinet form of Government and our Constitution has adopted it.
While discussing about the successful working of the Cabinet form of Government, H.M. Seervai,
the eminent author of Constitutional Law[62], observed: -
But as long as the political atmosphere remains what it is, the Constitution cannot be worked as it
was intended to be worked. It has been said that the constitution confers power, but it does not
guarantee that the power would be wisely e Xercised. It can be said equally that the Constitution
confers power but it gives no guarantee that it will be worked by men of high character, capacity and
integrity. If the Constitution is to be successfully worked, an attempt must be made to improve the
political atmosphere and to lay down and enforce standards of conduct required for a successful
working of our Constitution. [Emphasis added] In Constitutional and Administrative Law[63], the
learned authors while dealing with individual responsibility of Ministers, have said:-
3. THE INIDIVIDUAL RESPONSIBILITY OF MINISTERS The individual responsibility of ministers

illustrates further Professor Munros continuum theory. Ministers are individually accountable for
their own private conduct, the general running of their departments and acts done, or omitted to be
done, by their civil servants; responsibility in the first two cases is clearer than in others. A minister
involved in seXual or financial scandals particularly those having implications for national security,
is likely to have to resign because his activities will so attract the attention of the press that he will be
no longer able to carry out departmental duties. In Constitutional & Administrative Law[64], Hilaire
Barnett, while dealing with the conduct of Ministers, referred to the Nolan Committee[65] which
had endorsed the view that:-
public is entitled to eXpect very high standards of behaviour from ministers, as they have profound
influence over the daily lives of us all In Constitutional Practice[66], Rodney Brazier has opined:-
...a higher standard of private conduct is required of Ministers than of others in public life, a major
reason for this today being that the popular press and the investigative journalism of its more
serious rivals will make a wayward Ministers continuance in office impossible. Centuries back what
Edmund Burke had said needs to be recapitulated: -
All persons possessing a position of power ought to be strongly and awfully impressed with an idea
that they act in trust and are to account for their conduct in that trust to the one great Master,
Author and Founder of Society. This Court, in re Art. 143, Constitution of India and Delhi Laws Act
(1912)[67], opined that the doctrine of constitutional trust is applicable to our Constitution since it
lays the foundation of representative democracy. The Court further ruled that accordingly, the
Legislature cannot be permitted to abdicate its primary duty, viz. to determine what the law shall be.

Though it was stated in the conteXt of eXercise of legislative power, yet the same has signification in
the present conteXt, for in a representative democracy, the doctrine of constitutional trust has to be
envisaged in every high constitutional functionary.
ANALYSIS OF THE TERM ADVICE UNDER ARTICLE 75 (1) Having dealt with the concepts of
constitutional morality, good governance, constitutional trust and the special status enjoyed by the
Prime Minister under the scheme of the Constitution, we are required to appreciate and interpret
the words on the advice of the Prime Minister in the backdrop of the aforestated concepts. As per
the New Shorter OXford English Dictionary, one of the meanings of the word advice is the way in
which a matter is looked at; opinion; judgment. As per P. Ramanatha Aiyers Law Le Xicon, 2nd
Edition, one of the meanings given to the word advice is counsel given or an opinion e Xpressed as to
the wisdom of future conduct (Abbot L. Dict.). In Webster Comprehensive Dictionary, International
Edition, one of the meanings given to the word advice is encouragement or dissuasion; counsel;
suggestion. Thus, the word advice conveys formation of an opinion. The said formation of an
opinion by the Prime Minister in the conte Xt of Article 75(1) is eXpressed by the use of the said word
because of the trust reposed in the Prime Minister under the Constitution. To put it differently, it is
a constitutional advice. The repose of faith in the Prime Minister by the entire nation under the
Constitution has eXpectations of good governance which is carried on by Ministers of his choice. It is
also eXpected that the persons who are chosen as Ministers do not have criminal antecedents,
especially facing trial in respect of serious or heinous criminal offences or offences pertaining to
corruption. There can be no dispute over the proposition that unless a person is convicted, he is
presumed to be innocent but the presumption of innocence in criminal jurisprudence is something
altogether different, and not to be considered for being chosen as a Minister to the Council of
Ministers because framing of charge in a criminal case is totally another thing. Framing of charge in
a trial has its own significance and consequence. Setting the criminal law into motion by lodging of
an FIR or charge sheet being filed by the investigating agency is in the sphere of investigation.
Framing of charge is a judicial act by an e X perienced judicial mind. As the Debates in the
Constituent Assembly would show, after due deliberation, they thought it appropriate to leave it to
the wisdom of the Prime Minister because of the intrinsic faith in the Prime Minister. At the time of
framing of the Constitution, the debate pertained to conviction. With the change of time, the entire
compleXion in the political arena as well as in other areas has changed. This Court, on number of
occasions, as pointed out hereinbefore, has taken note of the prevalence and continuous growth of
criminalization in politics and the entrenchment of corruption at many a level. In a democracy, the
people never intend to be governed by persons who have criminal antecedents. This is not merely a
hope and aspiration of citizenry but the idea is also engrained in apposite e Xecutive governance. It
would be apt to say that when a country is governed by a Constitution, apart from constitutional
provisions, and principles constitutional morality and trust, certain conventions are adopted and
grown. In Supreme Court Advocates-on-Record Association (supra), the Court reproduced a passage
from K.C. Wheares Book The Statute of Westminster and Dominion Status (fourth edition) and we
quote: -
The definition of conventions may thus be amplified by saying that their purpose is to define the use
of constitutional discretion. To put this in slightly different words, it may be said that conventions
are non-legal rules regulating the way in which legal rules shall be applied. I. Jennings, in The Law

and the Constitution[68], stated that a convention e Xists not only due to its non-enforceability but
also because there is a reason for the rule.
I. Lovehead, in Constitutional Law A Critical Introduction[69], has said that the conventions
provide a moral framework within which the government ministers or the monarch should e Xercise
non-justiciable legal powers and regulate relations between the government and other constitutional
authorities.
In the Constituent Assembly Debates, Dr. Rajendra Prasad, in his speech as President of the
Constituent Assembly, while moving for the adoption of the Constitution of India, had observed: -
Many things which cannot be written in a Constitution are done by conventions. Let me hope that
we shall show those capacities and develop those conventions. CONCLUSION From the aforesaid, it
becomes graphically vivid that the Prime Minister has been regarded as the repository of
constitutional trust. The use of the words on the advice of the Prime Minister cannot be allowed to
operate in a vacuum to lose their significance. There can be no scintilla of doubt that the Prime
Ministers advice is binding on the President for the appointment of a person as a Minister to the
Council of Ministers unless the said person is disqualified under the Constitution to contest the
election or under the 1951 Act, as has been held in B.R. Kapurs case. That is in the realm of
disqualification. But, a pregnant one, the trust reposed in a high constitutional functionary like the
Prime Minister under the Constitution does not end there. That the Prime Minister would be giving
apposite advice to the President is a legitimate constitutional e Xpectation, for it is a paramount
constitutional concern. In a controlled Constitution like ours, the Prime Minister is e Xpected to act
with constitutional responsibility as a consequence of which the cherished values of democracy and
established norms of good governance get condignly fructified. The framers of the Constitution left
many a thing unwritten by reposing immense trust in the Prime Minister. The scheme of the
Constitution suggests that there has to be an emergence of constitutional governance which would
gradually grow to give rise to constitutional renaissance.
87. It is worthy to note that the Council of Ministers has the collective responsibility to sustain the
integrity and purity of the constitutional structure. That is why the Prime Minister enjoys a great
magnitude of constitutional power. Therefore, the responsibility is more, regard being had to the
instillation of trust, a constitutional one. It is also e Xpected that the Prime Minster should act in the
interest of the national polity of the nation-state. He has to bear in mind that unwarranted elements
or persons who are facing charge in certain category of offences may thwart or hinder the canons of
constitutional morality or principles of good governance and eventually diminish the constitutional
trust. We have already held that prohibition cannot be brought in within the province of advice but
indubitably, the concepts, especially the constitutional trust, can be allowed to be perceived in the
act of such advice.
Thus, while interpreting Article 75(1), definitely a disqualification cannot be added. However, it can
always be legitimately eXpected, regard being had to the role of a Minister in the Council of
Ministers and keeping in view the sanctity of oath he takes, the Prime Minister, while living up to
the trust reposed in him, would consider not choosing a person with criminal antecedents against

whom charges have been framed for heinous or serious criminal offences or charges of corruption to
become a Minister of the Council of Ministers. This is what the Constitution suggests and that is the
constitutional eXpectation from the Prime Minister. Rest has to be left to the wisdom of the Prime
Minister. We say nothing more, nothing less.
At this stage, we must hasten to add what we have said for the Prime Minister is wholly applicable to
the Chief Minister, regard being had to the language employed in Article 164(1) of the Constitution
of India.
Before parting with the case, we must e Xpress our unreserved and uninhibited appreciation for the
assistance rendered by Mr. Rakesh Dwivedi, Mr. Andhyarjina and Mr. Parasaran, learned senior
counsel.
The writ petition is disposed of accordingly without any order as to costs.
........................................C.J.I.
[R.M. Lodha].............................................J.
[Dipak Misra].............................................J.
[S.A. Bobde] New Delhi;
August 27, 2014 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL
JURISDICTION WRIT PETITION (CIVIL) NO. 289 OF 2005 Manoj Narula .Petitioner versus
Union of India Respondent J U D G M E N T Madan B. Lokur, J.
1. While I agree with the draft judgment of my learned brother Justice Dipak Misra, I find it
necessary to eXpress my view on the issues raised.
2. The question in the amended writ petition filed under Article 32 of the Constitution is rather
narrow, but the submissions were quite broad- based.
3. Two substantive reliefs have been claimed in the writ petition. The first relief is for a declaration
that the appointment of Respondent Nos. 3 to 7 as Ministers in the Government of India is
unconstitutional. This is based, inter alia, on the averment that these respondents have criminal
antecedents. Subsequently by an order passed on 24th March, 2006 these respondents (along with
respondent No. 2) were deleted from the array of parties since the broad question before this Court
was about the legality of the persons with criminal background and/or charged with offences
involving moral turpitude being appointed as ministers in Central and State Governments.
4. As far as the first substantive relief is concerned, the eXpressions criminal background and
criminal antecedents are eXtremely vague. Nevertheless the legal position on the appointment of a
Minister is discussed hereafter.

5. The second substantive relief is for the framing of possible guidelines for the appointment of a
Minister in the Central or State Government. It is not clear who should frame the possible
guidelines, perhaps this court.
6. As far as this substantive relief is concerned, it is entirely for the appropriate Legislature to decide
whether guidelines are necessary, as prayed for, and the frame of such guidelines. No direction is
required to be given on this subject.
7. For the sake of convenience, reference is made only to the relevant Articles of the Constitution
and the law relating to the appointment and continuance of a Minister in the Central Government.
The discussion, of course, would relate to both a Minister in the Central Government and mutatis
mutandis in the State Government.
Qualifications and disqualifications for being a legislator
8. Article 84 of the Constitution negatively provides the qualification for membership of Parliament.
This Article is quite simple and reads as follows:
84. Qualification for membership of Parliament. - A person shall not be qualified to be chosen to fill
a seat in Parliament unless he
(a) is a citizen of India, and makes and subscribes before some person authorized in that behalf by
Third Schedule;
(b) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of
a seat in the House of the People, not less than twenty-five years of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made
by Parliament.
9. The qualifications postulated by clause (c) of Article 84 have not yet been prescribed by law by
Parliament. In this conteXt, it is worth quoting the President of the Constituent Assembly Dr.
Rajendra Prasad, who said on 26th November, 1949, before formally putting the motion moved by
Dr. Ambedkar to vote, as follows:[70] There are only two regrets which I must share with the
honourable Members. I would have liked to have some qualifications laid down for members of the
Legislatures. It is anomalous that we should insist upon high qualifications for those who administer
or help in administering the law but none for those who made it e Xcept that they are elected. A law
giver requires intellectual equipment but even more than that capacity to take a balanced view of
things to act independently and above all to be true to those fundamental things of life in one word
to have character (Hear, hear). It is not possible to devise any yardstick for measuring the moral
qualities of a man and so long as that is not possible, our Constitution will remain defective. The
other regret is that we have not been able to draw up our first Constitution of a free Bharat in an
Indian language. The difficulties in both cases were practical and proved insurmountable. But that

does not make the regret any the less poignant.
10. Hopefully, Parliament may take action on the views eXpressed by Dr. Rajendra Prasad, the first
President of our Republic.
11. Article 102 provides the disqualifications for membership of either House of Parliament. This
Article too is quite simple and straightforward and reads as follows:
102. Disqualifications for membership. - (1) A person shall be disqualified for being chosen as, and
for being, a member of either House of Parliament
(a) if he holds any office of profit under the Government of India or the Government of any State,
other than an office declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is
under any acknowledgement of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
EXplanation. - For the purposes of this clause a person shall not be deemed to hold an office of profit
under the Government of India or the Government of any State by reason only that he is a Minister
either for the Union or for such State.
(2) A person shall be disqualified for being a member of either House of Parliament if he is so
disqualified under the Tenth Schedule.
12. In S.R. Chaudhuri[71] the following question arose for consideration: Can a non-member, who
fails to get elected during the period of si X consecutive months, after he is appointed as a Minister or
while a Minister has ceased to be a legislator, be reappointed as a Minister, without being elected to
the Legislature after the eXpiry of the period of siX consecutive months? This question arose in the
conteXt of Article 164 of the Constitution[72] and is mentioned here since one of the issues raised
during submissions related to the permissibility of reading implied limitations in the Constitution. It
was submitted that implied limitations can be read into the Constitution and this is an appropriate
case in which this Court should read an implied limitation in the appointment of a Minister in the
Government of India, the implied limitation being that a person with criminal antecedents or a
criminal background should not be appointed a Minister.
13. In S.R. Chaudhuri this Court eXamined the law in England, Canada and Australia and by reading
an implied limitation, answered the question in the negative. It was held that a non-elected person
may be appointed as a Minister, but only for a period of si X months. During that period the Minister

would either have to get elected to the Legislature or quit his or her position. That person cannot
again be appointed as a Minister unless elected. It was said:
32. Thus, we find from the positions prevailing in England, Australia and Canada that the essentials
of a system of representative government, like the one we have in our country, are that invariably all
Ministers are chosen out of the members of the Legislature and only in rare cases, a non- member is
appointed as a Minister, who must get himself returned to the Legislature by direct or indirect
election within a short period. He cannot be permitted to continue in office indefinitely unless he
gets elected in the meanwhile. The scheme of Article 164 of the Constitution is no different, e Xcept
that the period of grace during which the non-member may get elected has been fi Xed as siX
consecutive months, from the date of his appointment. (In Canada he must get elected quickly and
in Australia, within three months.) The framers of the Constitution did not visualise that a
non-legislator can be repeatedly appointed as a Minister for a term of si X months each time, without
getting elected because such a course strikes at the very root of parliamentary democracy. According
to learned counsel for the respondent, there is no bar to this course being adopted on the plain
language of the article, which does not e Xpressly prohibit reappointment of the Minister, without
being elected, even repeatedly, during the term of the same Legislative Assembly. We cannot
persuade ourselves to agree.
33. Constitutional provisions are required to be understood and interpreted with an object-oriented
approach. A Constitution must not be construed in a narrow and pedantic sense. The words used
may be general in terms but, their full import and true meaning, has to be appreciated considering
the true conteXt in which the same are used and the purpose which they seek to achieve. Debates in
the Constituent Assembly referred to in an earlier part of this judgment clearly indicate that a non-
members inclusion in the Cabinet was considered to be a privilege that e Xtends only for siX months,
during which period the member must get elected, otherwise he would cease to be a Minister. It is a
settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a
constitutional provision because it is the function of the court to find out the intention of the framers
of the Constitution. We must remember that a Constitution is not just a document in solemn form,
but a living framework for the Government of the people e Xhibiting a sufficient degree of cohesion
and its successful working depends upon the democratic spirit underlying it being respected in letter
and in spirit. The debates clearly indicate the privilege to eXtend only for siX months.
14. An implied limitation in the Constitution was also read in B. R. Kapur.[73] In that case, the
second respondent was not even eligible to become a legislator (having earned a disqualification
under Section 8 of the Representation of the People Act, 1951) and therefore the question of getting
elected to the State Legislature did not arise. Nevertheless, having been projected as the Chief
Ministerial nominee of the political party that obtained a majority in the elections, she was elected
as its leader and appointed as the Chief Minister of the State. The question before this Court was:
Whether a person who has been convicted of a criminal offence and whose conviction has not been
suspended pending appeal can be sworn in and can continue to function as the Chief Minister of a
State. Reliance was placed on the plain language of Article 164 of the Constitution.

15. Answering the question in the negative, this Court held in paragraph 30 of the Report:
We hold, therefore, that a non-legislator can be made a Chief Minister or Minister under Article 164
only if he has the qualifications for membership of the Legislature prescribed by Article 173 and is
not disqualified from the membership thereof by reason of the disqualifications set out in Article
191.
16. This was reiterated by this Court in paragraph 45 of the Report in the following words:
Our conclusion, therefore, is that on the date on which the second respondent was sworn in as Chief
Minister she was disqualified, by reason of her convictions under the Prevention of Corruption Act
and the sentences of imprisonment of not less than two years, for becoming a member of the
Legislature under Section 8(3) of the Representation of the People Act.
17. Finally, in paragraphs 50 and 51 of the Report, this Court held: We are in no doubt at all that if
the Governor is asked by the majority party in the Legislature to appoint as the Chief Minister a
person who is not qualified to be a member of the Legislature or who is disqualified to be such, the
Governor must, having due regard to the Constitution and the laws, to which he is subject, decline,
and the eXercise of discretion by him in this regard cannot be called in question.
51. If perchance, for whatever reason, the Governor does appoint as Chief Minister a person who is
not qualified to be a member of the Legislature or who is disqualified to be such, the appointment is
contrary to the provisions of Article 164 of the Constitution, as we have interpreted it, and the
authority of the appointee to hold the appointment can be challenged in quo warranto proceedings.
That the Governor has made the appointment does not give the appointee any higher right to hold
the appointment. If the appointment is contrary to constitutional provisions it will be struck down.
The submission to the contrary - unsupported by any authority - must be rejected.
18. Therefore, two implied limitations were read into the Constitution with regard to the
appointment of an unelected person as a Minister. Firstly, the Minister cannot continue as a
Minister beyond a period of siX months without getting elected, nor can such a person be repeatedly
appointed as a Minister. Secondly, the person should not be under any disqualification for being
appointed as a legislator. If a person is disqualified from being a legislator, he or she cannot be
appointed as a Minister.
19. Implied limitations to the Constitution were also read in B.P. Singhal.[74] In that case, an
implied limitation was read into the pleasure doctrine concerning the removal of the Governor of a
State by the President in terms of Article 156 of the Constitution. It was held that the pleasure
doctrine as originally envisaged in England gave unfettered power to the authority at whose pleasure
a person held an office. However, where the rule of law prevails, the fundamentals of
constitutionalism cannot be ignored, meaning thereby that the pleasure doctrine does not enable an
unfettered discretion to act arbitrarily, whimsically, or capriciously. It does not dispense with the
need for a cause for withdrawal of the pleasure, which can only be for valid reasons.

20. Similarly, in Salil Sabhlok[75] integrity and competence were read as implied in the
appointment of the Chairperson of the State Public Service Commission. It was held in paragraph 45
of the Report as follows: I have already held that it is for the Governor who is the appointing
authority under Article 316 of the Constitution to lay down the procedure for appointment of the
Chairman and Members of the Public Service Commission, but this is not to say that in the absence
of any procedure laid down by the Governor for appointment of Chairman and Members of the
Public Service Commission under Article 316 of the Constitution, the State Government would have
absolute discretion in selecting and appointing any person as the Chairman of the State Public
Service Commission. Even where a procedure has not been laid down by the Governor for
appointment of Chairman and Members of the Public Service Commission, the State Government
has to select only persons with integrity and competence for appointment as Chairman of the Public
Service Commission, because the discretion vested in the State Government under Article 316 of the
Constitution is impliedly limited by the purposes for which the discretion is vested and the purposes
are discernible from the functions of the Public Service Commissions enumerated in Article 320 of
the Constitution. Under clause (1) of Article 320 of the Constitution, the State Public Service
Commission has the duty to conduct e Xaminations for appointments to the services of the State.
Under clause (3) of Article 320, the State Public Service Commission has to be consulted by the
State Government on matters relating to recruitment and appointment to the civil services and civil
posts in the State; on disciplinary matters affecting a person serving under the Government of a
State in a civil capacity; on claims by and in respect of a person who is serving under the State
Government towards costs of defending a legal proceeding; on claims for award of pension in
respect of injuries sustained by a person while serving under the State Government and other
matters. In such matters, the State Public Service Commission is e Xpected to act with independence
from the State Government and with fairness, besides competence and maturity acquired through
knowledge and eXperience of public administration.
21. Thereafter in paragraph 99 of the Report, it was said:
While it is difficult to summarise the indicators laid down by this Court, it is possible to say that the
two most important requirements are that personally the Chairperson of the Public Service
Commission should be beyond reproach and his or her appointment should inspire confidence
among the people in the institution. The first quality can be ascertained through a meaningful
deliberative process, while the second quality can be determined by taking into account the
constitutional, functional and institutional requirements necessary for the appointment.
Conclusions on the first relief
22. Therefore, the position as it stands today is this: To become a Member of Parliament, a person
should possess the qualifications mentioned in Article 84 of the Constitution;
To become a Member of Parliament, a person should not suffer any of the disqualifications
mentioned in Article 102 of the Constitution;
The Constitution does not provide for any limitation in a Member of Parliament becoming a
Minister, but certain implied limitations have been read into the Constitution by decisions rendered

by this Court regarding an unelected person becoming a Minister;
One implied limitation read into the Constitution is that a person not elected to Parliament can
nevertheless be appointed as a Minister for a period of siX months;
Another implied limitation read into the Constitution is that though a person can be appointed as a
Minister for a period of siX months, he or she cannot repeatedly be so appointed;
Yet another implied limitation read into the Constitution is that a person otherwise not qualified to
be elected as a Member of Parliament or disqualified from being so elected cannot be appointed as a
Minister;
In other words, any person, not subject to any disqualification, can be appointed a Minister in the
Central Government.
Given this position in law, is it necessary to read any other implied limitation in the Constitution
concerning the appointment of a person as a Minister in the Government of India, particularly any
implied limitation on the appointment of a person with a criminal background or having criminal
antecedents?
Issue of criminal antecedents
23. The eXpression criminal antecedents or criminal background is eXtremely vague and incapable
of any precise definition. Does it refer to a person accused (but not charged or convicted) of an
offence or a person charged (but not convicted) of an offence or only a person convicted of an
offence? No clear answer was made available to this question, particularly in the conte Xt of the
presumption of innocence that is central to our criminal jurisprudence. Therefore, to say that a
person with criminal antecedents or a criminal background ought not to be elected to the
Legislature or appointed a Minister in the Central Government is really to convey an imprecise view.
24. The law does not hold a person guilty or deem or brand a person as a criminal only because an
allegation is made against that person of having committed a criminal offence be it in the form of an
off-the-cuff allegation or an allegation in the form of a First Information Report or a complaint or an
accusation in a final report under Section 173 of the Criminal Procedure Code or even on charges
being framed by a competent Court. The reason for this is fundamental to criminal jurisprudence,
the rule of law and is quite simple, although it is often forgotten or overlooked a person is innocent
until proven guilty. This would apply to a person accused of one or multiple offences. At law, he or
she is not a criminal that person may stand condemned in the public eye, but even that does not
entitle anyone to brand him or her a criminal.
25. Consequently, merely because a First Information Report is lodged against a person or a
criminal complaint is filed against him or her or even if charges are framed against that person,
there is no bar to that person being elected as a Member of Parliament or being appointed as a
Minister in the Central Government.

26. Parliament has, therefore, in its wisdom, made a distinction between an accused person and a
convict. For the purposes of the election law, an accused person is as much entitled to be elected to
the Legislature as a person not accused of any offence. But, Parliament has taken steps to ensure
that at least some categories of convicted persons are disqualified from being elected to the
Legislature. A statutory disqualification is to be found in Section 8 of the Representation of the
People Act, 1951.[76] The adequacy of the restrictions placed by this provision is arguable. For
eXample, a disqualification under this Section is attracted only if the sentence awarded to a convict
is less than 2 years imprisonment. This raises an issue: What if the offence is heinous (say an
attempt to murder punishable under Section 307 of the Indian Penal Code (IPC) or kidnapping
punishable under Section 363 of the IPC or any other serious offence not attracting a minimum
punishment) and the sentence awarded by the Court is less than 2 years imprisonment. Can such a
convict be a member of a Legislature? The answer is in the affirmative. Can this Court do anything
about this, in the form of framing some guidelines?
27. In Municipal Committee, Patiala[77] this Court referred to Parent of a student of Medical
College[78] and held that legislation is in the domain of the Legislature. It was said:
It is so well settled and needs no restatement at our hands that the legislature is supreme in its own
sphere under the Constitution subject to the limitations provided for in the Constitution itself. It is
for the legislature to decide as to when and in what respect and of what subject- matter the laws are
to be made. It is for the legislature to decide as to the nature of operation of the statutes.
28. More recently, V.K. Naswa[79] referred to a large number of decisions of this Court and held
that the Court cannot legislate or direct the Legislature to enact a law. It was said:
Thus, it is crystal clear that the court has a very limited role and in e Xercise of that, it is not open to
have judicial legislation. Neither the court can legislate, nor has it any competence to issue
directions to the legislature to enact the law in a particular manner.
29. However, a discordant note was struck in Gainda Ram[80] wherein this Court issued a direction
to the Legislature to enact legislation before a particular date. It was so directed in paragraphs 70
and 78 of the Report in the following words:
70. This Court, therefore, disposes of this writ petition and all the IAs filed with a direction that the
problem of hawking and street vending may be regulated by the present schemes framed by NDMC
and MCD up to 30-6-2011. Within that time, the appropriate Government is to legislate and bring
out the law to regulate hawking and hawkers fundamental right. Till such time the grievances of the
hawkers/vendors may be redressed by the internal dispute redressal mechanisms provided in the
schemes.
78. However, before 30-6-2011, the appropriate Government is to enact a law on the basis of the Bill
mentioned above or on the basis of any amendment thereof so that the hawkers may precisely know
the contours of their rights. This Court is giving this direction in e Xercise of its jurisdiction to protect
the fundamental rights of the citizens.[81]

30. The law having been laid down by a larger Bench than in Gainda Ram it is quite clear that the
decision, whether or not Section 8 of the Representation of the People Act, 1951 is to be amended,
rests solely with Parliament.
31. Assuming Parliament does decide to amend Section 8 of the Representation of the People Act,
1951 the content of the amended Section cannot be decided easily. Apart from the difficulty in fi Xing
the quantum of sentence (adverted to above), there are several other imponderables, one of them
being the nature of the offence. It has been pointed out by Rodney Brazier in Is it a constitutional
issue: fitness for ministerial office in the 1990s[82] that there are four categories of offences. The
learned author says:
But four types of crime may be distinguished. First, minor convictions would not count against a
politician's worthiness for office. Minor driving offences, for e Xample, are neither here nor there.
Secondly, and at the other eXtreme, convictions for offences involving moral turpitude would dash
any ministerial career. No one could remain in the Government who had been convicted of any
offence of corruption, dishonesty, serious violence, or seXual misconduct. Thirdly, and most
difficult, are offences the seriousness of which turn on the facts. A conviction for (say) assault, or
driving with eXcess alcohol in the blood, could present a marginal case which would turn on its own
facts. Fourthly, offences committed from a political motive might be condoned. Possibly a person
who had refused to pay the poll tax might be considered fit.
32. Therefore, not only is the quantum of sentence relevant but the nature of the offence that might
disqualify a person from becoming a legislator is equally important. Perhaps it is possible to make
out an eXhaustive list of offences which, if committed and the accused having been found guilty of
committing that offence, can be disqualified from contesting an election. The offences and the
sentence to be awarded for the purpose of disqualifying a person from being elected to a Legislature
are matters that Parliament may like to debate and consider, if at all it is felt necessary. Until then,
we must trust the watchful eye of the people of the country that the elected representative of the
people is worthy of being a legislator. Thereafter we must trust the wisdom of the Prime Minister
and Parliament that the elected representative is worthy of being a Minister in the Central
Government. In this conteXt, it is appropriate to recall the words of Dr. Ambedkar in the Constituent
Assembly on 30th December, 1948. He said:
His [Honble K.T. Shah] last proposition is that no person who is convicted may be appointed a
Minister of the State. Well, so far as his intention is concerned, it is no doubt very laudable and I do
not think any Member of this House would like to differ from him on that proposition. But the
whole question is this whether we should introduce all these qualifications and disqualifications in
the Constitution itself. Is it not desirable, is it not sufficient that we should trust the Prime Minister,
the Legislature and the public at large watching the actions of the Ministers and the actions of the
legislature to see that no such infamous thing is done by either of them? I think this is a case which
may eminently be left to the good-sense of the Prime Minister and to the good sense of the
Legislature with the general public holding a watching brief upon them. I therefore say that these
amendments are unnecessary.[83]

33. That a discussion is needed is evident from the material placed by the learned Additional
Solicitor General. He referred to the 18th Report presented to the Rajya Sabha on 15th March, 2007
by the Department-Related Parliamentary Standing Committee On Personnel, Public Grievances,
Law And Justice on Electoral Reforms (Disqualification Of Persons From Contesting Elections On
Framing Of Charges Against Them For Certain Offences). The Report acknowledges the
criminalization of our polity and the necessity of cleansing the political climate and had this to say:
At the same time, the Committee is deeply conscious of the criminalization of our polity and the fast
erosion of confidence of the people at large in our political process of the day. This will certainly
weaken our democracy and will render the democratic institutions sterile. The Committee therefore
feels that politics should be cleansed of persons with established criminal background. The objective
is to prevent criminalisation of politics and maintain probity in elections. Criminalization of politics
is the bane of society and negation of democracy. But the arguments against the proposal of the
Election Commission are overwhelming. As stated in the foregoing paras the Courts frame charges
even when they are conscious that the case is ultimately bound to fail. Appreciation of evidence at
the stage of framing charges being more or less prohibited, charges are still framed even when the
court is convinced that the prosecution will never succeed. There are many glaring illustrations
which are of common knowledge and any criminal lawyer can multiply instances of such nature.
Hence the proposal can not be accepted in its present form as the country has witnessed in the past
misuse of MISA, TADA, POTA etc.
34. On the issue of criminalization of politics, the learned Additional Solicitor General also referred
to the 244th Report of the Law Commission of India on Electoral Disqualifications presented in
February, 2014. Though the Report concerns itself primarily with the disqualification to be a
member of a Legislature, it does give some interesting statistics about the elected representatives of
the people in the following words: In the current Lok Sabha, 30% or 162 sitting MPs have criminal
cases pending against them, of which about half i.e. 76 have serious criminal cases. Further, the
prevalence of MPs with criminal cases pending has increased over time. In 2004, 24% of Lok Sabha
MPs had criminal cases pending, which increased to 30% in the 2009 elections.
The situation is similar across states with 31% or 1,258 out of 4,032 sitting MLAs with pending
cases, with again about half being serious cases. Some states have a much higher percentage of
MLAs with criminal records: in Uttar Pradesh, 47% of MLAs have criminal cases pending. A number
of MPs and MLAs have been accused of multiple counts of criminal charges. In a constituency of
Uttar Pradesh, for eXample, the MLA has 36 criminal cases pending including 14 cases related to
murder.
From this data it is clear that about one-third of elected candidates at the Parliament and State
Assembly levels in India have some form of criminal taint. Data elsewhere suggests that one-fifth of
MLAs have pending cases which have proceeded to the stage of charges being framed against them
by a court at the time of their election. Even more disturbing is the finding that the percentage of
winners with criminal cases pending is higher than the percentage of candidates without such
backgrounds. While only 12% of candidates with a clean record win on average, 23% of candidates
with some kind of criminal record win. This means that candidates charged with a crime actually
fare better at elections than clean candidates. Probably as a result, candidates with criminal cases

against them tend to be given tickets a second time. Not only do political parties select candidates
with criminal backgrounds, there is evidence to suggest that untainted representatives later become
involved in criminal activities. The incidence of criminalisation of politics is thus pervasive making
its remediation an urgent need. While it may be necessary, due to the criminalization of our polity
and consequently of our politics, to ensure that certain persons do not become Ministers, this is not
possible through guidelines issued by this Court. It is for the electorate to ensure that suitable (not
merely eligible) persons are elected to the Legislature and it is for the Legislature to enact or not
enact a more restrictive law.
Conclusions on the second relief
35. The discussion leads to the following conclusions:
To become a legislator and to continue as a legislator, a person should not suffer any of the
disqualifications mentioned in Section 8 of the Representation of the People Act, 1951;
There does seem to be a gap in Section 8 of the Representation of the People Act, 1951 inasmuch as a
person convicted of a heinous or a serious offence but awarded a sentence of less than two years
imprisonment may still be eligible for being elected as a Member of Parliament;
While a debate is necessary for bringing about a suitable legislation disqualifying a person from
becoming a legislator, there are various factors that need to be taken into consideration;
That there is some degree of criminalization of politics is quite evident;
It is not for this Court to lay down any guidelines relating to who should or should not be entitled to
become a legislator or who should or should not be appointed a Minister in the Central Government;
36. The range of persons who may be elected to a Legislature is very wide and amongst those, who
may be appointed a Minister in the Central Government is also very wide, as mentioned above. Any
legislator or non- legislator can be appointed as a Minister but must quit as soon as he or she earns a
disqualification either under the Constitution or under Section 8 of the Representation of the People
Act, 1951.[84] In B.P. Singhal this Court observed that a Minister is hand-picked member of the
Prime Minister's team. The relationship between the Prime Minister and a Minister is purely
political.
37. In addition to the above, how long a Minister should continue in office is best answered by the
response to a question put to the British Prime Minister John Major who was asked to list the
circumstances which render Ministers unsuitable to retain office. His written reply given to the
House of Commons on 25th January, 1994 was: There can be a variety of circumstances but the
main criterion should be whether the Minister can continue to perform the duties of office
effectively.[85]

38. This being the position, the burden of appointing a suitable person as a Minister in the Central
Government lies entirely on the shoulders of the Prime Minister and may eminently be left to his or
her good sense. This is what our Constitution makers intended, notwithstanding the view e Xpressed
by Shri H.V. Kamath in the debate on 30th December, 1948. He said:
My Friend, Prof. Shah, has just moved amendment No.1300 comprising five sub-clauses. I dare say
neither Dr. Ambedkar nor any of my other honourable Friends in this House will question the
principle which is sought to be embodied in Clause (2E) of amendment No. 1300 moved by Prof.
Shah. I have suggested my amendment No. 46 seeking to delete all the words occurring after the
words "moral turpitude" because I think that bribery and corruption are offences which involve
moral turpitude. I think that moral turpitude covers bribery, corruption and many other cognate
offences as well. Sir, my friends here will, I am sure, agree with me that it will hardly redound to the
credit of any government if that government includes in its fold any minister who has had a shady
past or about whose character or integrity there is any widespread suspicion. I hope that no such
event or occurrence will take place in our country, but some of the recent events have created a little
doubt in my mind. I refer, Sir, to a little comment, a little article, which appeared in the Free Press
Journal of Bombay dated the 8th September 1948 relating to the **** Ministry. The relevant portion
of the article runs thus:
"The Cabinet (the * * * * Cabinet) includes one person who is a convicted black marketeer, and
although it is said that his disabilities, resulting from his conviction in a Court of Law, which
constituted a formidable hurdle in the way of his inclusion in the interim Government, were
graciously removed by the Maharaja."[86]
39. In this respect, the Prime Minister is, of course, answerable to Parliament and is under the gaze
of the watchful eye of the people of the country. Despite the fact that certain limitations can be read
into the Constitution and have been read in the past, the issue of the appointment of a suitable
person as a Minister is not one which enables this Court to read implied limitations in the
Constitution.
Epilogue
40. It is wise to remember the words of Dr. Ambedkar in the Constituent Assembly on 25th
November, 1949. He had this to say about the working of our Constitution:
As much defence as could be offered to the Constitution has been offered by my friends Sir Alladi
Krishnaswami Ayyar and Mr. T.T. Krishnamachari. I shall not therefore enter into the merits of the
Constitution. Because I feel, however good a Constitution may be, it is sure to turn out bad because
those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may
turn out to be good if those who are called to work it, happen to be a good lot. The working of a
Constitution does not depend wholly upon the nature of the Constitution. The Constitution can
provide only the organs of State such as the Legislature, the E Xecutive and the Judiciary. The factors
on which the working of those organs of the State depend are the people and the political parties
they will set up as their instruments to carry out their wishes and their politics. Who can say how the

people of India and their purposes or will they prefer revolutionary methods of achieving them? If
they adopt the revolutionary methods, however good the Constitution may be, it requires no prophet
to say that it will fail. It is, therefore, futile to pass any judgement upon the Constitution without
reference to the part which the people and their parties are likely to play.[87]
41. This sentiment was echoed in the equally memorable words of Dr. Rajendra Prasad on 26th
November, 1949. He had this to say: Whatever the Constitution may or may not provide, the welfare
of the country will depend upon the way in which the country is administered. That will depend
upon the men who administer it. It is a trite saying that a country can have only the Government it
deserves. Our Constitution has provision in it which appear to some to be objectionable from one
point or another. We must admit that the defects are inherent in the situation in the country and the
people at large. If the people who are elected are capable and men of character and integrity, they
would be able to make the best even of a defective Constitution. If they are lacking in these, the
Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It
acquires life because of the men who control it and operate it, and India needs today nothing more
than a set of honest men who will have the interest of the country before them.[88]
42. The writ petition is disposed of but with no order as to costs. It must, however, be stated that all
learned counsels appearing in the case have rendered very useful and able assistance on an issue
troubling our polity.
.....J (Madan B. Lokur) New Delhi;
August 27,
2014
INDIA CIVIL APPELLATE
JURISDICTION

2005
MANOJ NARULA PETITIONER (S)
VERSUS
UNION OF INDIA RESPONDENT (S)
KURIAN, J.:
I agree with the beautiful and erudite e Xposition of law made by my esteemed brother. Yet why to
pen something more, one may naturally ask. The only answer is: in Kerala, there is a saying: when
you make a special tea, even if you add a little more milk, dont reduce even a bit of sugar! The
surviving prayer in the public interest litigation reads as follows:

(c) Issue appropriate writ/writs, order/orders, direction/directions, including the writ of mandamus
and frame possible guidelines, for appointment of Minister for the UOI as well as for the State,
especially, in view of the provisions, terms of schedule III, Article 75(4), 164(3), basic features, aims
and objects of the Constitution etc. as the Honble Court may deem fit and proper for the
perseverance and protection of the Constitution of India in both letters and spirit. Court is the
conscience of the Constitution of India. Conscience is the moral sense of right and wrong of a person
(Ref.: OXford English Dictionary). Right or wrong, for court, not in the ethical sense of morality but
in the constitutional sense. Conscience does not speak to endorse ones good conduct; but when
things go wrong, it always speaks; whether you listen or not. It is a gentle and sweet reminder for
rectitude. That is the function of conscience. When things go wrong constitutionally, unless the
conscience speaks, it is not good conscience; it will be accused of as numb conscience.
One cannot think of the Constitution of India without the preambular principle of democracy and
good governance. Governance is mainly in the hands of the E Xecutive. The eXecutive power of the
Union under Article 53 and that of the States under Article 154 vests in the President of India and
the Governor of the State, respectively. Article 74 for the Union of India and Article 163 for the State
have provided for the Council of Ministers to aid and advise the President or the Governor, as the
case may be. The eXecutive power eXtends to the respective legislative competence.
Before entering office, a Minister has to take oath of office (Article 75/164). In form, e Xcept for the
change in the words Union or particular State, there is no difference in the form of oath. Ministers
take oath to faithfully and conscientiously discharge their duties and . do right to all manner of
people in accordance with Constitution and the law, without fear or favour, affection or ill-will.
Allegiance to the Constitution of India, faithful and conscientious discharge of the duties, doing
right to people and all these without fear or favour, affection or ill-will, carry heavy weight.
Conscientious means wishing to do what is right, relating to a persons conscience (Ref.: Concise
OXford English Dictionary). The simple question is, whether a person who has come in conflict with
law and, in particular, in conflict with law on offences involving moral turpitude and laws specified
by the Parliament under Chapter III of The Representation of the People Act, 1951, would be in a
position to conscientiously and faithfully discharge his duties as Minister and that too, without any
fear or favour?
When does a person come in conflict with law? No quarrel, under criminal jurisprudence, a person
is presumed to be innocent until he is convicted. But is there not a stage when a person is presumed
to be culpable and hence called upon to face trial, on the court framing charges?
Under Section 228 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.PC),
charge is framed by the court only if the Judge (the Magistrate under Section 240 Cr.PC) is of the
opinion that there is ground for presumption that the accused has committed an offence, after
consideration of opinion given by the police under Section 173(2) Cr.PC (challan/police
charge-sheet) and the record of the case and documents. It may be noted that the prosecutor and the
accused person are heard by the court in the process. Is there not a cloud on his innocence at that
stage? Is it not a stage where his integrity is questioned? If so, is it not a stage where the person has

come in conflict with law, and if so, is it desirable in a country governed by rule of law to entrust the
eXecutive power with such a person who is already in conflict with law? Will any reasonably prudent
master leave the keys of his chest with a servant whose integrity is doubted? It may not be altogether
irrelevant to note that a person even of doubtful integrity is not appointed in the important organ of
the State which interprets law and administers justice; then why to speak of questioned integrity!
What to say more, a candidate involved in any criminal case and facing trial, is not appointed in any
civil service because of the alleged criminal antecedents, until acquitted.
Good governance is only in the hands of good men. No doubt, what is good or bad is not for the
court to decide: but the court can always indicate the constitutional ethos on goodness, good
governance and purity in administration and remind the constitutional functionaries to preserve,
protect and promote the same. Those ethos are the unwritten words in our Constitution. However,
as the Constitution makers stated, there is a presumption that the Prime Minister/Chief Minister
would be well advised and guided by such unwritten yet constitutional principles as well. According
to Dr. B. R. Ambedkar, as specifically referred to by my learned brother at pargraph-70 of the
leading judgment, such things were only to be left to the good sense of the Prime Minister, and for
that matter, the Chief Minister of State, since it was e Xpected that the two great constitutional
functionaries would not dare to do any infamous thing by inducting an otherwise unfit person to the
Council of Ministers. It appears, over a period of time, at least in some cases, it was only a story of
great e X pectations. Some of the instances pointed out in the writ petition indicate that Dr.
Ambedkar and other great visionaries in the Constituent Assembly have been bailed out.
Qualification has been wrongly understood as the mere absence of prescribed disqualification.
Hence, it has become the bounden duty of the court to remind the Prime Minister and the Chief
Minister of the State of their duty to act in accordance with the constitutional aspirations. To quote
Dr. Ambedkar:
However, good a Constitution may be, it is sure to turn out bad because those who are called to work
it happen to be a bad lot. However, bad a Constitution may be, it may turn out to be good if those
who are called to work it happen to be a good lot. The working of a Constitution does not depend
wholly upon the nature of the Constitution. Fortunately for us, our Constitution has stood the test of
time and is acclaimed to be one of the best in the world. Problem has been with the other part,
though sporadically. Kautilya, one of the great Indian eXponents of art of government, has dealt with
qualification of king and his councillors at Chapter IX in Arthasastra, said to be compiled between
BC 321-296. To quote relevant portion:
CHAPTER IX THE CREATION OF COUNCILLORS AND PRIESTS NATIVE, born of high family,
influential, well trained in arts, possessed of foresight, wise, of strong memory, bold, eloquent,
skilful, intelligent, possessed of enthusiasm, dignity and endurance, pure in character, affable, firm
in loyal devotion, endowed with e X cellent conduct, strength, health and bravery, free from
procrastination and ficklemindedness, affectionate, and free from such qualities as e Xcite hatred and
enmity-these are the qualifications of a ministerial officer. The attempt made by this court in the
above background history of our country and Constitution is only to plug some of the bleeding
points in the working of our Constitution so that the high constitutional functionaries may work it
well and not wreck it. Beauty of democracy depends on the proper eXercise of duty by those who

work it.
No doubt, it is not for the court to issue any direction to the Prime Minister or the Chief Minister, as
the case may be, as to the manner in which they should e Xercise their power while selecting the
colleagues in the Council of Ministers. That is the constitutional prerogative of those functionaries
who are called upon to preserve, protect and defend the Constitution. But it is the prophetic duty of
this Court to remind the key duty holders about their role in working the Constitution. Hence, I am
of the firm view, that the Prime Minister and the Chief Minister of the State, who themselves have
taken oath to bear true faith and allegiance to the Constitution of India and to discharge their duties
faithfully and conscientiously, will be well advised to consider avoiding any person in the Council of
Ministers, against whom charges have been framed by a criminal court in respect of offences
involving moral turpitude and also offences specifically referred to in Chapter III of The
Representation of the People Act, 1951.
...J.
(KURIAN JOSEPH) New Delhi;
August 27, 2014.
[1]
AIR 1975 SC 2299

[2] (1995) 4 SCC 611
[3] AIR 2006 SC 3127
[4] (2013) 10 SCC 1
[5] (1978) 1 SCC 405
[6] AIR 1980 SC 1362
[7] (2002) 5 SCC 294
[8] (1997) 4 SCC 306
[9] (1997) 6 SCC 1
[10] AIR 2005 SC 688
[11] (2013) 4 SCC 642
[12] Writ Petition (Civil) No. 38 of 1997 etc. pronounced on May 06, 2014 [13] (2013) 7 SCC 653 [14]
(1973) 4 SCC 225 [15] (2011) 4 SCC 1 [16] (2009) 7 SCC 1 [17] (2006) 11 SCC 356 [18] (2014) 2 SCC
609 [19] (2013) 5 SCC 1 [20] (2005) 8 SCC 202 [21] (1974) 2 SCC 831 [22] (2001) 7 SCC 231 [23]
(2004) 8 SCC 788 [24] 1981 Supp SCC 87 [25] (2006) 8 SCC 212 [26] (1971) 2 SCC 63 [27] (1972) 3
SCC 717 [28] (2006) 2 SCC 682 [29] (2004) 10 SCC 699 [30] (2005) 5 SCC 294 [31] (2011) 2 SCC 83
[32] (2011) 4 SCC 324 [33] (2012) 2 SCC 34 [34] 1936 AC 578 [35] 1965 AC 172 [36] 23 CLR 457
[37] (1967) 2 SCR 109 [38] (1980) 3 SCC 625 [39] (2007) 2 SCC 1 [40] AIR 1987 SC 232 [41] AIR
1997 SC 610 [42] (1997) 6 SCC 241 [43] (2010) 12 SCC 1 [44] (1994) 6 SCC 632 [45] AIR 1994 SC
1349 [46] AIR 1950 SC 124 [47] (1974) 74 CLR 31 [48] (1992) 177 CLR 106 [49] (1945) 71 CLR 29, 85
[50] (1958) 99 CLR 132, 144-5 [51] (1971) 122 CLR 353, 401 [52] Constituent Assembly Debates

1989: VII, 38.
[53] James Madison as Publius, Federalist 51 [54] Laurance H. Tribe, THE INVISIBLE
CONSTITUTION 29 (2008) [55] (2009) 15 SCC 351 [56] (2001) 3 SCC 594 [57] (1995) 6 SCC 289
[58] (2003) 9 SCC 731 [59] AIR 2008 SC 693 [60] AIR 1955 SC 549 [61] AIR 1994 SC 268 [62] H.M.
Seervai, Constitutional Law of India, vol. 2, 4th Ed. Pg. 2060 [63] Constitutional and Administrative
Law, 2nd Ed. Pg 368-370, David Polland, Neil Parpworth David Hughs [64] 5th Edition, pg 297-305
[65] Nolan Report, Standards in Public Life, Cm 2850-I, 1995, Lodon HMSO, Chapter 3, para 4.
[66] Constitutional Practice (Second Edition) (pg. 146-148) [67] AIR 1951 SC 332 [68] I. Jennings,
The law and the Constitution (5th Edn., ELBS: London, 1976) in his Chapter Conventions at 247.
[69] I. Lovehead, Constitutional Law-A Critical Introduction (2nd edn., Butterworths: London,
2000) at 247 [70] [71]http://parliamentofindia.nic.in/ls/debates/vol11p12.htm [72] [73] S.R.
Chaudhuri v. State of Punjab, (2001) 7 SCC 126 [74] [75] 164. Other provisions as to Ministers.(1)
The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by
the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the
pleasure of the Governor:
Provided that in the States of Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha, there shall be
a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the
Scheduled Castes and backward classes or any other work.
(1-A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a
State shall not eXceed fifteen per cent of the total number of members of the Legislative Assembly of
that State:
Provided that the number of Ministers, including the Chief Minister, in a State shall not be less than
twelve:
Provided further that where the total number of Ministers, including the Chief Minister, in the
Council of Ministers in any State at the commencement of the Constitution (Ninety-first
Amendment) Act, 2003 eXceeds the said fifteen per cent or the number specified in the first proviso,
as the case may be, then, the total number of Ministers in that State shall be brought in conformity
with the provisions of this clause within si X months from such date as the President may by public
notification appoint.
(1-B) A member of the Legislative Assembly of a State or either House of the Legislature of a State
having Legislative Council belonging to any political party who is disqualified for being a member of
that House under Paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a
Minister under clause (1) for duration of the period commencing from the date of his
disqualification till the date on which the term of his office as such member would eXpire or where
he contests any election to the Legislative Assembly of a State or either House of the Legislature of a
State having Legislative Council, as the case may be, before the e Xpiry of such period, till the date on

which he is declared elected, whichever is earlier.
(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
the State shall at the eXpiration of that period cease to be a Minister.
(5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from
time to time by law determine and, until the Legislature of the State so determines, shall be as
specified in the Second Schedule.
Note: The Article is reproduced as it is today.
[76] [77] B.R. Kapur v. State of Tamil Nadu, (2001) 7 SCC 231 [78] [79] B.P. Singhal v. Union of
India, (2010) 6 SCC 331 [80] [81] State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1 [82] [83] 8.
Disqualification on conviction for certain offences.(1) A person convicted of an offence punishable
under(a) Section 153-A (offence of promoting enmity between different groups on ground of
religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of
harmony) or Section 171-E (offence of bribery) or Section 171-F (offence of undue influence or
personation at an election) or sub- section (1) or sub-section (2) of Section 376 or Section 376-A or
Section 376-B or Section 376-C or Section 376-D (offences relating to rape) or Section 498-A
(offence of cruelty towards a woman by husband or relative of a husband) or sub-section (2) or sub-
section (3) of Section 505 (offence of making statement creating or promoting enmity, hatred or ill-
will between classes or offence relating to such statement in any place of worship or in any assembly
engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code
(45 of 1860); or
(b) the Protection of Civil Rights Act, 1955 (22 of 1955), which provides for punishment for the
preaching and practice of untouchability, and for the enforcement of any disability arising
therefrom; or
(c) Section 11 (offence of importing or eXporting prohibited goods) of the Customs Act, 1962 (52 of
1962); or
(d) Sections 10 to 12 (offence of being a member of an association declared unlawful, offence

relating to dealing with funds of an unlawful association or offence relating to contravention of an
order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967 (37 of
1967); or
(e) the Foreign EXchange (Regulation) Act, 1973 (46 of 1973); or

(f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
(g) Section 3 (offence of committing terrorist acts) or Section 4 (offence of committing disruptive
activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(h) Section 7 (offence of contravention of the provisions of Sections 3 to 6) of the Religious

Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or
(i) Section 125 (offence of promoting enmity between classes in connection with the election) or
Section 135 (offence of removal of ballot papers from polling stations) or Section 135-A (offence of
booth capturing) or clause (a) of sub-section (2) of Section 136 (offence of fraudulently defacing or
fraudulently destroying any nomination paper) of this Act, or
(j) Section 6 (offence of conversion of a place of worship) of the Places of Worship (Special
Provisions) Act, 1991, or
(k) Section 2 (offence of insulting the Indian National Flag or the Constitution of India) or Section 3
(offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour
Act, 1971 (69 of 1971) or,
(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or
(m) the Prevention of Corruption Act, 1988 (49 of 1988); or
(n) the Prevention of Terrorism Act, 2002 (15 of 2002); shall be disqualified, where the convicted
person is sentenced to
(i) only fine, for a period of siX years from the date of such conviction;
(ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a
further period of siX years since his release.
(2) A person convicted for the contravention of
(a) any law providing for the prevention of hoarding or profiteering; or
(b) any law relating to the adulteration of food or drugs; or
(c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961); and sentenced to imprisonment
for not less than siX months, shall be disqualified from the date of such conviction and shall
continue to be disqualified for a further period of siX years since his release.
(3) A person convicted of any offence and sentenced to imprisonment for not less than two years
other than any offence referred to in sub- section (1) or sub-section (2) shall be disqualified from the

his release.
(4) Held unconstitutional in Lily Thomas v. Union of India, (2013) 7 SCC 653 Notwithstanding
anything in sub-section (1), sub-section (2) or sub- section (3) a disqualification under either sub-
section shall not, in the case of a person who on the date of the conviction is a member of Parliament
or the Legislature of a State, take effect until three months have elapsed from that date or, if within
that period an appeal or application for revision is brought in respect of the conviction or the
sentence, until that appeal or application is disposed of by the court.
EXplanation.In this section
(a) law providing for the prevention of hoarding or profiteering means any law, or any order, rule or
notification having the force of law, providing for
(i) the regulation of production or manufacture of any essential commodity;
(ii) the control of price at which any essential commodity may be bought or sold;
(iii) the regulation of acquisition, possession, storage, transport, distribution, disposal, use or
consumption of any essential commodity;
(iv) the prohibition of the withholding from sale of any essential commodity ordinarily kept for sale;
(b) drug has the meaning assigned to it in the Drugs and Cosmetics Act, 1940 (23 of 1940);
(c) essential commodity has the meaning assigned to it in the Essential Commodities Act, 1955 (10
of 1955);
(d) food has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954 (37 of
1954).
[84] [85] Municipal Committee, Patiala v. Model Town Residents Association, (2007) 8 SCC 669
[86] [87] State of Himachal Pradesh v. Parent of a student of Medical College, (1985) 3 SCC 169.
This was a judgment delivered by a Bench of three learned Judges.
[88] [89] V.K. Naswa v. Union of India, (2012) 2 SCC 542 [90] [91] Gainda Ram v. MCD, (2010) 10
SCC 715. This was a judgment delivered by a Bench of two learned Judges.
[92] [93] The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill was
eventually passed and notified as an Act in 2014. [94] [95] Public Law 1994, Aut, 431-45 [96] [97]
Constituent Assembly Debates, Volume VII [98] [99] Lily Thomas v. Union of India, (2013) 7 SCC
653 [100] [101]http://hansard.millbanksystems.com/written_answers/1994/jan/25/minister s-
unsuitability-for office#S6CV0236P0_19940125_CWA_172 [102] [103] Constituent Assembly

Debates, Volume VII [104] [105] http://parliamentofindia.nic.in/ls/debates/vol11p11.htm [106]
[107] http://parliamentofindia.nic.in/ls/debates/vol11p12.htm

Shiv Ram vs State Of Rajasthan on 28 January, 2000
Rajasthan High Court
Equivalent citations: 2000 (3) WLN 563
Author: Mathur
Bench: N Mathur, D Joshi
ORDER Mathur, J.
(1). By this group of writ petitions under Art. 226 of the Constitution of India, the petitioners have
challenged the constitutional validity of Sec. 19 (g), 19 (gg) and Proviso (ii) of Section 19 of he
Rajasthan Panchayati Raj (Third Amendment) Ordinance, 1999. All the writ petitions are disposed
of by common judgment.
(2). On 17.1.2000, one of the petitions came up for admission and a notice was given to the learned
Advocate General. The case was posted for final hearing on 27.1.2000, Mr. Mahesh Bora, learned
counsel appearing for the petitioner, submitted that as the State has not filed reply, the petitioner is
entitled to interim relief i.e. stay of offending provisions providing disqualification to contest
election. Mr. Sagar Mal Mehta, learned Advocate General, submits that he is prepared to argue the
petition finally without filing the reply. In view of this, we have taken up the group of writ petitions
for final hearing at admission stage.
(3). The Rajasthan Panchayati Raj Act, 1994, came into force on 23.4.1994, hereinafter referred-to
as 'the Act of 1994'. His EXcellency the Governor of Rajasthan proclaimed the Ordinance as
published in the Rajasthan Rajpatra dated 27th December, 1999, Known as Rajasthan Rajpatra
(Third Amendment) Ordinance, 1999, herein-after referred-to as 'the Ordinance of 1999'. Para 5 of
the Ordinance of 1999 provides with the amendment in Sec. 19, which is eXtracted as follows:-
"5. Amendment of Sec. 19, Rajasthan Act No. 13 of 1994. In Sec. 19 of the Principal Act.
(i) XXXXXXX
(ii) XXXXXXX
(iii) for the eXisting clause (g), the following shall be substituted, namely:
"(g) has been convicted of any offence by a competent court and sentenced to imprisonment for si X
months or more, such sentence not having been subsequently reversed or remitted or the offender
pardoned."
(iv) After clause (g) and before clause (h), the following new clause shall be inserted, namely:-
(gg) is under trial in the competent court which has taken cognizance of the offence and framed the
charges against him of any offence punishable with imprisonment for five years or more."
(v)XXXXXXX

(vi) for the eXisting proviso (ii) the following shall be substituted, namely;
"(ii) for the purpose of clause (c), (g) and (k), any person shall become eligible for election after a
lapse of siX years from the date of his dismissal or the date of conviction, as the case may be."
(4). Thus, by amendment, a disqualification is provided for contesting the election on the post of
Panch or Sarpanch to a person, who has been sentenced to imprisonment for si X months or more by
a competent court or a person against whom, a competent court has taken cognizance of an offence
and framed the charges of an offence punishable with imprisonment for five years or more. The
proviso (ii) of Sec. 19 liberates a person from disqualification under clause (c), (g) and (k) after a
lapse of siX years from the date of dismissal or the date of conviction as the case may be;
(5). We have heard Mr. Mahesh Bora, Mr. Rajesh Joshi, Mr.P.P. Chaudhary, Mr. C.R. Punia, Mr.
R.K. Charan, learned counsel for the petitioners and Mr. Sagar Mal Mehta, learned Advocate
General, assisted by Mr. Sundeep Bhandawat.
(6). The petitioners have challenged the constitutional validity of the aforesaid provisions on several
grounds, out of which following have been canvassed before us:
(i) There eXisted no emergency, which called for His EXcellency the Governor to promulgate the
Ordinance of 1999;
(ii) The impugned amendment is hit by Articles 14 and 21 of the Constitution of India as it provides
an unreasonable restriction on a person to contest the election for the post of Panch or Sarpanch.
(7). It is submitted by the learned Advocate General that the right to elect and right to be elected are
not fundamental rights and they are only statutory rights. In view of this, there is no question of
infringement of any fundamental right of a person. Learned counsel has placed reliance on certain
decisions of the ApeX Court in N.P. Ponnuswami vs. The Returning Officer, Namakkal (1); Jagan
Nath vs. Jaswant Singh (2); Dhartipakar Madan Lal Agarwal vs. Rajiv Gandhi (3); C.
Narayanaswamy vs. C.K. Jaffer Sharief (4); Gajanan Krishnaji Bapat vs. Dattaji Raghobaji Meghe (5)
and Ram Beti vs. District Panchayat Raj Adhikari (6).
(8). It is also contended by the learned Advocate General that as the process of election has
commenced, it is not appropriate for this court to interfere at this stage. Learned counsel has invited
our attention to the provisions of Article 243-F (b) and 243 (O), which are analogous to Article
329(b) of the Constitution of India. It is submitted that the said provision provides a bar for
entertaining an election matter after the election process has commenced.
CONTENTION NO. (i):
(9). It is contended by Mr. Mahesh Bora, learned counsel for the petitioners that His E Xcellency the
Governor has been empowered to issue Ordinance to meet an emergency in which immediate action
is required. It is submitted that in the instant case, there was no emergency as to Assembly was in

session in the month of November. If the Government was genuinely interested, the bill could have
been introduced while the Assembly was in session in November, 1999. It is, thus, submitted that
there eXisted no emergency, which called-for issuing of the Ordinance. It is well settled that the
necessity of immeate action and promulgating an ordinance is purely a matter of subjective
satisfaction of His E X cellency the Governor. He is the sole Judge as to the e X istence of the
circumstances necessitating making of an Ordinance. His satisfaction is not justiciable. It cannot be
questioned on the ground of error of judgment or otherwise in court. A reference may be made to a
decision of the ApeX Court in State of Punjab vs. Satya Pal (7). In view of the settled position of law,
the first contention raised is devoid of merit and the same is, accordingly, rejected.
CONTENTION NO. (ii):
(10). It is contended that Article 21 of the Constitution of India gives a right to every person of his
life and liberty. The personal liberty includes the right to contest as election and such a right cannot
be snatched without procedure established by law. It is, thus, argued that while it is true that the
right to contest the election is not a fundamental right still a person cannot be deprived of his
statutory right even without adopting the procedure laid down by law. Thus, unless a person is held
guilty of offence, simply because a charge has been framed against him, he cannot be deprived of his
statutory right to contest election.
(11). There is almost unanimity including among political parties that there is growing neXus
between the political parties and anti social elements polluting the atmosphere of Indian democracy.
It is imperative for the proper functioning of the parliamentary democracy and the institutions
created by or under the Constitution that a person, who has been charged with the certain types of
offences and is under trial, is not allowed to joint the election fray till he gets a clean chit from the
Court. Inspite of widely acknowledge evil, persons, responsible and entrusted the job to cure, have
not come forward to do something substantial in right direction. The reasons are obvious. It is
eXpected that national interest is kept above all other interests, including so called political
constrains. What to talk of common man, Law makers knows well that history sheeters, notorious,
bad character persons involved in crimes of heinous nature like murder, dacoity or rape are
contesting elections and getting elected. But person concerned appear to be not only conscious but
over-conscious of the legal position that in the eye of law, a person is presumed to be innocent
unless proved guilty. This principle of jurisdiction cannot be read in isolation and in absolute terms.
It is now well settled that a person can be deprived of individual liberty by reasonable restrictions, if
it is necessary in the public interest. The ApeX Court dealing with the identical contentions in a bail
matter in Babu Singh vs. State of Uttar Pradesh reported in (8) observed that deprivation of freedom
by refusal of bail is not for punitive purpose but for bi-focal interests of justice to the individual
involved and the society affected and does not violate Article 21 of the Constitution of India. There is
no violation of fundamental right of a person in not permitting him to contest the election, as such,
offending provisions of the Ordinance cannot be impeached on this ground. As far as violation of
statutory rights is concerned, a reasonable restriction can be provided in the public interest not to
enter such person in election fray.

(12). We are also not oblivious of the fact that while there is increase in criminalisation in the
Country, there is also growing tendency of false implication to achieve political, business or private
motives. In a country like ours where criminal courts eXcel in slow motion, once a case is registered
against a person, the political opponent may not allow the trial to be concluded and succeed in
keeping him away from the election for ever or atleast for a substantial period. A reading of the
offending Ordinance under challenge shows that this aspect has been taken care of as only such of
the persons have been kept out of election fray against whom a charge has been framed for serious
offences.
(13). A study of the relevant provisions of the Code of Criminal Procedure and as being interpreted
by various decisions of the ApeX Court, it would be evident that the possibility of such false
implication, if not completely ruled out, has been minimised. Appropriate remedies have also been
provided under the Law to get redress from false and motivated prosecution.
(14). A person is disqualified to contest an election only when cognizance is taken and charge is
framed against him. Thus, the question arises is as to when the cognizance is taken and the charge is
framed. Criminal Law is set into motion by filing F.I.R. in commission of cognizable offence. The
duty of the Investigating Officer is not merely to bolster up prosecution case and collect such
evidence only which may procure conviction, but to bring out unvarnished truth. Chapter XII
provides procedure of investigation by police. The police after independent investigation is required
to submit its report known as "Police Report". If police finds no case, may submit report u/S. 169
CrPC. If prima facie case is found, charge sheet may be filed u/S. 173 CrPC. On receiving the police
report, first judicial scrutiny takes place, when Magistrate applies his mind to satisfy, if there is
sufficient material to take cognizance. Copy of the Police report and copies of statements and
documents are given to the accused as required by Sec. 207 and 208 CrPC. The neXt effective stage
is of framing of charge. In the Code of Criminal Procedure, there are three pairs of Sections, which
deals-with the questions of framing of charge or discharge being relatable to either a sessions trial or
trial of warrant case or summons case. Sec. 227 and 228 CrPC is with respect to sessions trial. Sec.
239 and 240 CrPC is with respect to the warrants case. Sec. 245 (1) and (2) is with respect of trial of
summons case. They are eXtracted as follows:
"Discharge.
227. If, upon consideration of the record of the case and the documents submitted therewith, and
after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers
that there is not sufficient ground for proceeding against the accused, he shall discharge the accused
and record his reasons for so doing.
"Framing of charge.
228 (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is
ground for presuming that the accused has committed an offence which-

(a) is not eXclusively triable by the Court of Session, he may, frame a charge against the accused and,
by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial
Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases
instituted on a police report;
(b) is eXclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read
and eXplained to the accused and the accused shall be asked whether he pleads guilty of the offence
charged or claims to be tried.
When accused shall be discharged.
239. If, upon considering the police report and the documents sent with it u/S. 173 and making such
e X amination, if any, of the accused as the Magistrate thinks necessary and after giving the
prosecution and the accused an opportunity of being heard, the Magistrate considers the charge
against the accused to be groundless, he shall discharge the accused, and record his reasons for so
doing.
Framing of charge.
240.(1) If, upon such consideration, eXamination, if any, and hearing, the Magistrate is of opinion
that there is ground for presuming that the accused has committed an offence triable under this
Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately
punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and eXplained to the accused, and he shall be asked whether he
pleads guilty of the offence charged or claimed to be tried.
When Accused shall be discharged.
245. (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for
reasons to be recorded, that no case against the accused has been made out which, if unrebutted,
would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at
any previous stage of the case, if for reasons to be recorded by such Magistrate, he considers he
charge to be groundless.
(15). The common language of he provisions is that at the stage of framing of charge, the court has to
apply its mind to the question whether or not, there is any ground for presuming the commission of
offence by the accused. It has been repeatedly emphasized by the Ape X Court and the other High
Courts in various decisions that as framing of charge affects person's liberty substantially, need for
proper consideration of material warranting such order.

(16). In Century Spinning & Manufacturing Co. Ltd. vs. State of Maharashtra reported in (9), the
ApeX Court warned the trial Courts not to blindly adopt the decision of the prosecution without fully
adverting to the material on record for framing the charge. While upholding the order of the trial
court discharging the accused, the court observed as follows:-
"If on the eXisting material, there is no ground for presuming them to be guilty then there can hardly
be any point in framing charges and going through the formality of a trial and then acquitting them.
Such a course would merely result in unnecessary harassment to the appellants without serving the
cause of justice."
(17). Considering the scope and about of consideration by the trial Court at the stage of framing of
charge, the ApeX Court in State of Bihar vs. Ramesh Singh reported in (10) observed that at the
initial stage of framing of charge, if there is a strong suspicion which leads the Court to think that
there is ground for presuming that the accused has committed an offence then it is not open to the
Court to say that there is no sufficient ground for proceeding against the accused. If the evidence
which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted
before it is challenged in the cross e Xamination or rebutted by the defence evidence, if any, cannot
show that the accused committed the offence, then there will be no sufficient ground for proceeding
with the trial.
(18). In Union of India vs. Prafulla Kumar Samal reported in (11), the Ape X Court after considering
the scope of Sec. 227 observed that the words "not sufficient grounds for proceedings against the
accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of
the prosecution, but he has to e Xercise his judicial mind to the facts of the case in order to determine
whether a case for trial has been made out by the prosecution. The Court further observed that the
jurisdiction under Sec. 227 of the Code is eXercised by a senior and eXperienced Judge and he
cannot act merely as a post office of a mouthpiece of the prosecution but has to consider the broad
probabilities of the case, the total effect of the evidence and the documents produced before the
court, any basic infirmities appearing in the case and so on. The Court further e Xplained that this
however does not mean that Judge should make a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a trial.
(19). In State of Karnataka vs. L.Muniswamy and others reported in (12), the court observed that at
the stage of framing of charge, the court has to apply its mind to the question whether or not, there
is any ground for presuming the commission of offence by the accused.
(20). Thus, it is well settled that for the purpose of Sec. 227 and 228, the court is required to
evaluate the material and documents on record with a view to find out if the facts emerging
therefrom taken at their fact value, disclose the e Xistence of all the ingredients constituting the
alleged offence. The purpose of Sec. 227 & 228 is to ensure that the accusation made against the
accused is not frivolous. Framing of charge on the basis of vague allegation in the absence of any
material to connect the accused with the alleged offence would amount to an abuse of the process of
the court.

(21). The accused has also remedy against the order of framing of charge byway of revision under
Sec. 397 of the Code of Criminal Procedure before the superior Court. The order of framing the
charge is held to be not an inter locutory order by the Ape X Court. In Madhu Limaye vs. The State of
Maharashtra reported in (13), the court observed as follows:
"Yet for the reasons already alluded to, we feel no difficulty in coming to the conclusion, after due
consideration, that an order rejecting the plea of the accused on a point which, when accepted will
conclude the particular proceedings, will surely be not an interlocutory order within the meaning of
Sec. 397 (3)."
(22). The accused has also right to approach the High Court u/S. 482 of the Code of Criminal
Procedure and to satisfy the court that continuance of proceedings are abuse of process of the court.
Thus, by impugned Ordinance, prohibition to contest the election is provided at the stage when
correctness of the allegations constituting the offence punishable with imprisonment for five years
has been thoroughly investigated by the police and filtered by judicial scrutiny. Thus, after the
charge is framed, the accused cannot be heard to say outside the trial that he has been falsely
implicated for certain ulterior motives. As regards the allegation of delay in trial, the e Xperience
shows that accused persons holding the public, office or political office or a resourceful accused
adopt dilatory tactics by plugging every possible loophole in the law through which the disposal of
the case may be delayed. If a person is deprived to enter into the election fray after the charge is
framed till he gets clean chit, his anxiety would be early conclusion of the trial. The co-operation of
such accused will help the courts in quick conclusion of the trial. A request can always be made to
the trial courts to take up the trial of case on priority in which the accused is holding a public or
political office and has a chance of being entering into the election fray. Thus, in our view, the
impugned amendment with an object to check criminalisation in politics and also to warn people in
public life not to indulge in criminal activities, is in larger public interest. In view of this, it cannot be
held that there is violation of Article 21 of the Constitution.
(23). It is lastly argued that the impugned amendment is hit by Article 14 of the Constitution of
India. It is submitted that the provision is arbitrary and unreasonable inasmuch as in the case of a
Member of Parliament or a Member of the Legislative Assembly, a person against whom charge has
been framed or a person, who has been convicted and sentenced to a period of si X months or above
and if the offence is not of moral turpitude, and entitled to contest the election. They can even hold
the high office of Prime Minister or the Chief Minister but on the same ground, a person is deprived
of his right to be elected as a Punch or Sarpanch. It is also submitted that selecting the offences
punishable with imprisonment of five years or above, is arbitrary inasmuch as there is no ne Xus in
providing such a cut off line. We are unable to agree with the submission of the learned counsel. As
regards election of M.P.'s and M.L.A.'s they are governed by Representation of People Act. Thus to
provide such disqualification for M.P.'s and M.L.A's is within the domain of Parliament. The
impugned Ordinance/legislation pertains to Rajasthan Legislative Assembly. Thus, in our view the
impugned Panchayat Act can not be held to be discriminatory on this ground. We only say that there
is no harm in adopting good things of juniors by the Seniors. Let the process of purification in
democratic governance come from the grass-root i.e. Panch/Sarpanch. Coming to the cut off line of
offence punishable with imprisonment for five years, a study of the penal law prevalent in the

Country especially that contained in the Indian Penal Code, brings out clearly that severity of each
punishment sanctioned by law is directly proportionate to seriousness of the offence. We have
looked into the Schedule appended to the Code of Criminal Procedure. All these offences where the
punishment is provided above five years are of serious nature. This eXcludes minor offences.
(24). Thus, it cannot be said that there is no basis for fi Xing the cut off line of five years for the
offences pending trial. In view of this, we find no substance in the third contention as well.
(25). In view of the aforesaid, we uphold the constitutional validity of the provisions of Sec. 19 (g),
(gg) and provision (ii). We find no merit in the group of petitions and each of the writ petitions is
dismissed being devoid of any merit. There shall be no order as to costs.

V. C. Shukla vs State Through C.B.I on 7 December, 1979
Equivalent citations: 1980 AIR 962, 1980 SCR (2) 380
Author: S M Fazalali
Bench: Fazalali, Syed Murtaza
PETITIONER:
V. C. SHUKLA
Vs.
RESPONDENT:
STATE THROUGH C.B.I.
DATE OF JUDGMENT07/12/1979
BENCH:
FAZALALI, SYED
MURTAZA BENCH:
FAZALALI, SYED
MURTAZA SHINGAL, P.N.
DESAI, D.A.
SEN, A.P.
(J)
CITATION:
1980 AIR 962 1980 SCR (2)
380 CITATOR INFO :
R 1980 SC1382 (81,110)
RF 1981 SC 723 (9)
R 1988 SC 922 (24)
ACT:
Special Courts Act, 1979-Section 11(1) and 11(2)-Scope
of-Order of Judge of Special Court directing a charge to
be framed against the accused- Whether an interlocutor
order- Appeal-If lies against that order-
Interlocutory order-What is.
Non-obstante clause-Interpretation of.
HEADNOTE:
Section 11(1) of the Special Courts Act, 1979
provides that "notwithstanding anything in the Code of
Criminal Procedure an appeal shall lie as of right from
any judgment, sentence or order, not being interlocutory
order, of a Special Court to the Supreme Court both on
facts and law." Sub-section (2) provides that "except as
aforesaid no appeal or revision shall lie to any court
from any judgment, sentence or order of a Special Court."
The Special Judge appointed under the Special Courts
Act, 1979 directed a charge to be framed against the

appellant under section 120B I.P.C. read with section 5(1)
(d) and section 5(2) of the Prevention of Corruption
Act, 1947. At the stage of hearing, a preliminary
objection as to the maintainability of the appeal was
raised on behalf of the State on the ground that the
order impugned being purely an interlocutory order within
the meaning of section 11(1) of the Act no appeal lay to
this Court.
On behalf of the appellant it was contended that the
term "interlocutory order" has been used in the same sense
as has been used in section 397(2) of the Code of Criminal
Procedure and the same construction placed by this Court
on the expression should apply in interpreting this
expression, particularly when the Act does not give any
remedy to the accused.
Per S. Murtaza Fazal Ali and Sen, JJ.
The order passed by the Special Judge was an
interlocutory order and the appeal filed against that
order in this Court is not maintainable. [434 Ap
1(a) The expression interlocutory order in section
11(1) has been used in the natural sense and not in a
special or in the wider sense in which lt is used in
section 397(2) of the Code. [433 G]
(b) on a true construction of section 11(1) and
taking into consideration the natural meaning of the
expression interlocutory order there can be no doubt that
the order framing charges against the appellant under the
Act was merely n interlocutory order which neither
terminated the proceeding nor finally decided the right of
the parties. Taking ib natural meaning and applying the
381
non-obstante clause the position is that the provisions of
the Code of Criminal Procedure are expressly excluded by
the non-obstante clause and, therefore, section 397(2) of
the Code cannot be called into aid for holding that the
order impugned is not an interlocutory order. [433 B-C]
(c) The term "interlocutory order" used in section
397(2) of the Code relates to various stages of the trial,
namely inquiry, trial or any other proceeding. The object
seems to be to cut down tho delays in stages through which
a criminal case passes before it culminates in an
acquittal, discharge or conviction. Having regard to the
very large ambit and range of the Code the expression
interlocutory order would have to be given a broad meaning
so as to achieve the object of the Code without disturbing
or interfering with the fairness of the trial. [392 A-C]
(d) In Amar Nath v. The State of Haryana, although
this Court held that an order summoning an accused was not
an interlocutory order being a matter of moment which
decided an important aspect of the trial it was, in a
sense, a final order which could be revised by the
Sessions Judge or the High Court under section 397 of the
Code. In the circumstances of that case this Court held
that such an order could not be said to be purely an

interlocutory order.

[394 D] D]
Amar Nath & Ors. v. State of Haryana & ors. [1978]
1 SCR 222, approved. D
(e) In Madhu Limaye v. State of Maharashtra this Court
held that an order framing a charge was not an interlocutory
order and, therefore, a revision against such an order was
competent before the Sheepish Judge or the High Court. But
in the circumstances of this case the order was not merely
interlocutory order but partook the nature of a final order
or at any rate an intermediate order so as to be taken out
of the bar contained in section 397(2) of he Code of
Criminal Procedure. [395 H; 396 H]
Madhu Limaye v. The State of Maharashtra, [1978] 1
SCR 749 approved.
(f) The term interlocutory order used in the Code of
Criminal Procedure has to be given a very liberal
construction in favour of the accused in order to ensure
complete fairness of the trial because the bar contained
in section 397(3) of the Code would apply to a variety of
cases coming up before the courts not only being offences
under the Penal Code but under numerous Acts. If the right
of revision was to be barred the provision containing the
bar must be confined within the four corners of the spirit
and the letter of the law. But the same cannot be said of
the Special Courts Act which is meant to cover only
specified number of crimes and criminals and the objective
to be attained was quick dispatch and speedy disposal of
cases. [398 D-F] G
State of Karnataka v. L. Munniswamy & ors. [1977] 3
SCR 113; Parmeshwari Devi v. State & Anr [1977] 2 SCR
160, held inapplicable.
2. The heart and soul of the Special Courts Act being
speedy disposal of cases, the provisions of the Act must
be interpreted so as to eliminate all possible delay or
means of adopting dilatory tactics by plugging every
possible loop-hole in the Act. It could not have been
intended by Parliament that, while the Criminal Procedure
Code gives a right of revision against an order which,
though not purely interlocutory, is either intermediate or
quasi-final, the Act
382
would provide a full-fledged appeal against such an
order. It is mainly for the purpose of avoiding flooding
of this Court with appeals against the orders Of the
Special Court framing the charges that a non-obstante
clause was put in section 11 to bar appeals against any
interlocutory order whether it is intermediate or quasi-
final. The Act applies only to a specified number of cases
which fulfil the conditions contained in it and in view of
its special features the liberty of the subject has been
fully safeguarded by providing a three-tier system. [408
B-F]
3. The non-obstante clause in section 11 excludes an
appeal from any interlocutory orders of a Special

Court

because such an exclusion is fully consistent with the
object of the Act. Since the non-obstante clause expressly
excludes. the provisions of the Code of Criminal Procedure
section 397(2) of the Code cannot be invoked because that
would frustrate the very object which section. 11 seeks to
subserve. [409 F-G]
4. When the Act excludes the Code then it obviously
excludes an appeal against any type of interlocutory
order. The absence of revision is more than compensated by
giving the accused a right of appeal against any judgment
or order of the Special Judge as of right and on facts and
law. Secondly the trail is held by a sitting Judge of the
High Court who would have the power of revision if he was
sitting in a High Court. Therefore it muse be presumed
that whenever a Special Judge passes any interlocutory
order or an intermediate. Order like framing of charges.
he would do so only with full and complete application of
his mind and considering the various principles and
guidelines indicated by this Court. It would not be in
keeping with the dignity decorum and status of the Special
Judge to provide for an appeal even against such an order
which he is supposed to pass with full application of mind
and due deliberation. [410 B-D]
5. (a) The non-obstante clause has the effect of
overriding and excluding the provision of the Code. [411
D]
Aswini Kumar Ghosh & Anr. v. Arabinda Bose & Anr.
[1953] SCR 1, referred to.
(b) The term interlocutory is to be understood and
taken to mean the converse of the term "final order". The
essential attribute of an interlocutory order is that it
merely decides some point or matter essential to the
progress of the suit or collateral to the issue sought but
is not a final decision or judgment on the matter under
issue. An intermediate order is one which is made between.
the commencement of an action and the entry of the
judgment. [412 C, 414 D-E]
Madhu Limaye v. The State of Maharashtra, [1978] 1
SCR 749 referred to.
(c) An order framing a charge being interlocutory
falls squarely within the ordinary and natural meaning of
the term "interlocutory order" as used in section 11(1) of
the Act. [414 F]
Salaman v. Warner [1891] 1 QBD 734; Ex Parte Moore in
Re Faithful [1885] 14 Q.B.D. 627; Bozson v. Altrincham
Urban District Council [1903] 1 KBD 547; Shubrook v.
Tufnell 9
Q.B.D. 621; Isaacs & Sons v. Salbstein & Anr. [1916] 2 KBD
139 Hunt v. Allied Bakeries Ltd. [1956] 3 All. E.R.
513; Salter Rex & Co. v. Ghosh [1971] 2 Q.B.D. 597
referred to. 383
6. A conspectus of the decisions of this Court
establishes the following propositions: (i) an order which
does not determine the right of the parties but only one

aspect of the suit or the trial is an interlocutory
order

(ii) the concept of interlocutory order has to be
explained in contra-distinction to a final order. If an
order is not a final order it would be an interlocutory
order. (iii) one of the tests generally accepted by Courts
is to see if the order is decided one way it may terminate
the proceedings but if decided the other way the
proceedings would continue because the term interlocutory
order in the Code of Criminal Procedure has been used in a
much wider sense so as to include even intermediate or
quasi-final orders. (iv) an order passed by the Special
Court discharging the accused would undoubtedly be a final
order inasmuch as it finally decides the rights of the
parties and puts an end to the controversy and thereby
terminates the entire proceedings before the Court so that
nothing is left to be done by the Court thereafter. (v)
Even if an Act does not permit an appeal against an
interlocutory order the accused is not left without any
remedy because in suitable cases the accused can always
move this Court under Article 136 even against an order
framing charges against him. Thus it cannot be said that
by not allowing an appeal against an order framing charges
the Act works serious injustice to the accused. [4241]
In the instant case the order framing charges against
the accused is purely an interlocutory order as it does
not terminate the proceedings but the trial goes on until
it culminates in acquittal or conviction. [425 B-C]
7. The argument that a statute which gives a right of
appeal should be liberally construed in favour of the
accused so as not to deprive him of the right of appeal
has no force because in the instant case the right of
appeal is expressly excluded by providing that no appeal
shall lie against an interlocutory order. Even by
stretching the language of the section no right of appeal
can be inferred when no such right has been conferred. The
non-obstante clause cannot be construed to contain a right
of appeal even against an interlocutory order. [432 G-H]
Desai, J. concurring.
1. The order framing a charge is an interlocutory
order within the meaning of section 11(1) of the Act and
an appeal against such an order is incompetent in view of
the provisions contained in section 11(2) and therefore.
the preliminary objection must be upheld. [468 E]
2. Interlocutory orders passed by a court disposing
of ancillary disputes in the course of a judicial
proceeding are steps taken by the court towards the final
adjudication and for assisting the parties in the
prosecution of their cases. They regulate the procedure
only and do not affect any right or liability of the
parties. An order does not cease to be an interlocutory
order merely because it disposes of a certain aspect of
the controversy between the parties. The test of finality
is whether the order finally disposes of the right of the
parties. The finality must be a finality in relation to
the suit. If after the order the

suit is still a live suit and the rights of the parties
are still to be determined, no appeal lies against it
under section 109A of the Code. Even if the order decides
an important and even a vital issue in the case but
leaves the suit alive Fl and provides for its trial in the
ordinary way it would still not be a final order. Another
test is that the decision whichever way it is given if it
finally disposes
384
of the matter in dispute it is final. The decision, if
given in one way it will finally dispose of the matter in
dispute, but if given in another it will allow the action
to go on it is not final but interlocutory. [454 E; H; 455
B-D; 456 D]
Kuppuswami Rao v. The King [1947] F.C.R. 180; Abdul
Rahman v. D. K. Cassim & Sons 60 I.A. 76; Mohammad Amin
Brothers Ltd. & Others v. Dominion of India and Others
[1949-50] FCR, 842; Salter Rex & Co. v. Ghosh R [1971]
2
W.B.D. 597 referred to.
3. In the context of section 397(2) read with section
482 of the Code this Court, with a view to providing a
judicial umbrella of active supervision tor reaching
possible correctable injustice by activist attitudes and
pragmatic interpretation found a third class of orders
neither interlocutory nor final but intermediate and
therefore outside the bar of section 397(2) of the Code of
Criminal Procedure. But the test remained unaltered that
every interlocutory order, merely because it disposes of
an aspect in the course of a pending proceeding even
adversely affecting a party for the time being would not
be something other than interlocutory. To be specific the
earlier test is not departed from but the power of
supervision sought to be constructed, was widened by
ascertaining a third class of orders namely, intermediate
orders which are neither interlocutory nor final. 1462 B-
D]
Amar Nath & Ors. v. Stole of Haryana & Ors. [1978] I
S.C.R. 222; Mohan Lal Magan Lal Thacker v. State of
Gujarat [1968] 2 S.C.R. 685; Madhu Limaye v. The State of
Maharahtra [1978] 1 S.C.R. 749: Parmeshwari Devi v. State
& Anr. [1977]
2 S.C R. 160 referred to.
4. (a) There is no force in the contention that
framing of a charge concludes an enquiry anterior to it
and that it is likely to result in the deprivation of the
liberty of the accused because he is asked to face the
trial. 1463 Cl
(b) The framing of a charge is an intimation to the
accused of what precise offence or what allegations of
facts he is called upon to meet. Its object is to warn an
accused of the case he is to answer. The order framing a
charge would be an intermediate order and not an
interlocutory order. In the course of a trial of a civil

or criminal proceeding there can be no stage where an
order can be made without bringing to bear on the subject
an active judicial mind and judicially determining the
dispute. Any such dispute if mechanically disposed of
may warrant

interference. Therefore emphasis was laid on the court
expecting it to seriously apply its mind at the stage of
framing a charge. It does not make tho order framing a
charge anything other than an interlocutory order. [463
G;
464 F-G]
B. N. Srikantiah & Ors. v. The State of Mysore [1959]
S.C.R. 496 at 503; State of Karnataka v. L. Muni Swami &
Ors. [1977] 3 S.C.R. 113 and Century Spinning and
Manufacturing Co. Ltd. v. State of Maharashtra A.I.R.
1972
S.C. 545, referred to.
(c) If framing a charge is an interlocutory order,
excluding the non-obstante clause, no appeal would lie
against such an order under section 11 of the Act because
there is a specific provision under section 11(2) that
except as provided in section 11(1) no appeal or revision
shall lie to any court from any judgment, sentence or
order cf Special Court. [465 D-E]
385
(d) It is well settled that there is no inherent or
common law right of A appeal in a subject and appeal is
the creature of statute. Therefore the right to appeal can
be enjoyed only within the strictly demarcated limits
conferring such right of appeal. [465 E]
In the instant case the order under challenge being
one passed by tho Special Court set up under the Act an
appeal from such an order would only be competent if it
squarely falls within section 11(1). Therefore there is no
gain- saying the fact that if the order sought to be
appealed against is an interlocutory order excluding tho
non-obstante clause by the main provision of section 11(1)
the present appeal would be incompetent. [465 D]
5. The substantive provision of section 11 ( 1 )
while providing for an appeal against any judgment
sentence or order made by a Special; Court circumscribed
the right to appeal against the orders by excluding
therefrom orders which are interlocutory. [466 D]
6. When the non-obstante clause provides for "not-
withstanding anything in the Code" the expression as per
grammatical construction would mean that something contained
in the Code is to be excluded while examining the scope
and content of the substantive provision of section 11(1).
There is nothing in the Code providing for an appeal against
an interlocutory order. While enacting the Act the
Parliament was conscious of appeals and revisions under the
Code and that is manifest from the language in section 11(2)
of the Act. If there was no provision in the Code providing
for an appeal against any interlocutory order in any
proceeding under the Code it is inconceivable that such a
wider jurisdiction of appeal was sought to be enacted under
the substantive provision of section 11 (1), [467 B-Cl
7. The paramount object in enacting the Special
Courts Act was to bring the prosecutions to a speedy

termination and commission of offences should be
judicially determined

with the utmost dispatch. This being the objective of the
Act construction of its provisions must receive such
interpretation as would facilitate the achieving of the
object underlying it and not frustrating it. That would
stand thwarted if against every interlocutory order an
appeal to the highest court as a matter of right both of
law and fact can be filed. [467 E]
8. The argument that there is unfairness in the
procedure is utterly unreal because the trial is by a
sitting judge of the High Court to be appointed with the
concurrence of the Chief Justice of India. The Special
Court would always be amenable to the jurisdiction of this
Court under Article 136. [468 B]
9. There is no substance in the contention that in
narrowly interpreting the, expression "interlocutory
order" in section 11(1) door may not be thrown open for
introduction of a procedure lacking in fairness and likely
to result in the deprivation of personal liberty. [468 D]
Singhal J. (dissenting).
1. The impugned order is not an interlocutory order.
The accused is entitled as of right to prefer an appeal.
[452 G] H
2. Section 9 of the Act provides that a Special Court
could in the trial of cases falling within its
jurisdiction follow the procedure prescribed by the Code
386
of Criminal Procedure for the trial of warrant cases
before a Magistrate. Section 239 is a valuable provision
to The advantage of the accused because it envisages a
careful and objective consideration by the Judge whether
the charge against the accused is groundless or whether
there is ground for presuming that he has committed an
offence. Similarly when an order for the framing of a
charge under section 240 is passed it amounts to a.
decision that the accused is not entitled to discharge
under section 239, that there is ground for presuming that
he has committed an offence triable under Chapter XIX and
that he should be called upon to plead guilty of it.
Therefore, an order for framing of the charge is a
serious matter for the accused. [434 H; 435 F-H]
3. Section 9 of the Special Courts Act does not
provide that an appeal against the order of the Special
Court shall be heard and decided according to the
procedure laid down in the Code. Section 11 which deals
with appeals starts with a non-obstante clause. Neither
section 11 nor any other section states that the Code
shall apply to the hearing of an appeal. At any rate the
Code has no application in so far as the right of appeal
and the form of appeal are concerned. [436 C & E]
4. lt is true that there is no right of appeal
against an interlocutory order under section 11 of the
Act. The clear propositions laid down by this Court on the
meaning of the words "final" and "interlocutory" are (i)
that an order

may be "final" for one purpose and "interlocutory" for
another and (ii) that an order may be final as to a part
and interlocutory as to a part. The meaning of the two
words has to be determined in relation to the particular
purpose For which it is required to be given. [436 G; 438
G]
Mohan Lal Magan Lal Thaker v. State of Gujarat, [1968]
2 SCR 685 referred to.
(iii) An order may also be conclusive with reference
to the stage at which it is made.
Parameswari Devi v. State [1977] 2 S.C.R. 160 referred
to.
(iv) The expression 'interlocutory order has been used
in section 397(2) of the Code in a restricted sense. It
denotes orders of a purely interim or temporary nature
which do not decide or touch the important rights or
liabilities of the parties and that any order which
substantively affects the rights of the accused is not an
interlocutory order. [441 A-B]
Amar Nath and others v. State of Haryana and others
[1976] 1 S.C.R. 222 referred to.
On this reasoning the order for the framing of a
charge against the accused in this case cannot be said to
be an interlocutory order. [442 A]
(v) An order rejecting the plea of the accused on a
point which, when accepted, will conclude a particular
proceeding is surely not an interlocutory order within the
meaning of section 397(2) of the Code. [444 A]
5. The revisional power of the Court concerned under
section 397(1) of the Code will be rendered nugatory if
the plea that an order framing or directing the framing of
a. charge against an accused is an interlocutory order and
is therefore beyond the reach of that sub-section by
virtue of sub-section (2) is accepted. The nature of that
order cannot be determined merely with reference to the
eventuality that the accused may ultimately be acquitted
on the completion of the trial. There is no reason why
section 397 should be so narrowly
387
construed and why the real nature of the order framing
the charge should be taken to be merely interlocutory
order beyond the reach of the revisional power conferred
on the Court concerned under section 397when it cannot be
denied that if the contention of the accused against
the order framing the charge against him were allowed,
that would, by itself, have concluded the proceeding
against him. The object cf section 397(1) of the Code is
to provide relief to the aggrieved party where it is
deserved, only if the order complained of is not of an
interlocutory nature. Section 11 of the Act is in that
respect quite similar B: in purpose and content to
section 397 of the Code and there is no reason why
the same meaning and effect should not be given to it.
[444 C-F]

S. Kuppuswami Rao v. The King [1947] F.C.R. 180; Mohd.

Amin Bros. v. Dominion of India [1949) F.C.R. held
inapplicable.
6. The purpose of an appeal which is in the nature of
a judicial examination of a decision by the higher court
of a decision of an inferior court is to rectify any
possible error in the order under appeal. In that sense
the revisional jurisdiction is regarded as a part and
parcel of the appellate jurisdiction. Statutes pertaining
to a right of appeal should be liberally construed and any
doubt regarding that right should be resolved in favour of
the right. [445 H]
7. Section 11 of the Act gives a right of appeal
against "any order" of a Special Court and not merely from
its "final order". It is well settled that the Dr use of the
words 'any order ' in Article 136, along with the other
difference of language, had "greatly widened' the scope of
Article 136 in regard to the appeal thereunder. Section
11 of the Act not only grants that remedy in the case of "any
order" but allows it as a matter of right whereas the remedy
under Article 136 is in terms discretionary. Section 11
takes care to state categorically that the appeal thereunder
shall relate both to the facts and the law. lt is,
therefore, a liberal and beneficial provision in favour of
the aggrieved party and excels the Remedy under section 397
of the Code. [446 D; F-G]
8. The correct way of interpreting a provision of law
with a non-obstante clause is to first ascertain what the
enacting part of the section provides according to the
natural and ordinary meaning and the non-obstante clause
is to be understood as operating to set aside as no longer
valid anything contained in the relevant existing laws
which is inconsistent with the new enactment. [447 B-C]
Aswini Kumar and another v. Arabinda Bose and another
[1953] S.C.R. 1.
9. The revisional power under the Code is
discretionary and is not available to an aggrieved party
as of right. The remedy by way of a revision petition has
been hedged round with certain limitations and
restrictions, whereas section
11 ensures a right of appeal "both on facts and on law
'. What section 11 does is to do away with the power
of revision under the Code(sub-section 2) and to
substitute for it an unlimited right of appeal against
any judgment, sentence or order of she Special Court so
long as the impugned order is not of an interlocutory
nature. The aggrieved party has really lost nothing to
which it would have been entitled under the Code for
Section 397(2) also specifically states that the power of
revision conferred by sub-section ( I ) shall not be
exercise(l in relation to an interlocutory order. The net
effect of the non-obstante clause. therefore. is to
widen the remedy available under the Code. [447 H; 448 A-
B]
10. While under the Code two correctional remedies

are open to the aggrieved party-one by way of an appeal
and

other by way of petition for
revision 388
which however is a remedy within the discretion of the
High Court or the Sessions Judge-section 11 of the Act
makes any and every judgment, sentence or order
appealable so long as the order is not of an interlocutory
nature. In respect of an interlocutory order, however, no
remedy by way of appeal or revision is permissible under
the Code and the position in that respect is not worse
under section 11 of the Act. The right of appeal under
section 11 is, therefore, wider than the appellate and
revisional remedies provided by the Code. [448 G-H]
In the instant case the decision which the Judge took
in making the impugned order clearly dealt with at least
one important stage and aspect of the case against the
accused finally and once for all. That order clearly put
him to full course of trial and there is no reason why it
should not be treated as "any order" against which he is
entitled to appeal under section 11 of the Act and why it
should be considered to be a merely interlocutory order.
[450 B-C]
11. An order framing a charge affects a person's
liberties substantially and it is the duty of the Court to
consider judicially whether the material warrants the
framing of the charge. [451 B]
12. The question whether an order is final or
interlocutory is not to be determined merely from the
character of the proceeding in which it is entered but
from the character of the relief granted or refused [451
H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 562 of 1979.
From the order dated 17-9-1979 of the Special Court at New Delhi in Criminal Case No. 1/79.
P. R. Mridul, and O. P. Sharma for the Appellant. Soli J. Sorabjee, Solicitor General of India, R. N.
Sachthey, Girish Chandra, Bipin Behari Lal and Miss Niklam Grover for the Respondent.
The Judgment of S. Murtaza Fazal Ali and A. P. Sen, JJ. was delivered by Fazal Ali, J. D. A. Desai
gave a separate opinion and P. N. Shinghal, J. gave a dissenting opinion.
FAZAL ALI, J.-This appeal is directed against an order dated 17th September 1979 passed by Justice
Joshi, Special Judge appointed under the Special Courts Act, 1979 (No. 22 of 1979) (hereinafter to
be referred as the 'Act') by which the learned Judge directed a charge to be framed against the
appellant under s. 120B of the Indian Penal Code read with s. 5 ( 1 ) (d) and s. 5 (2) of the
Prevention of the Corruption Act, 1947 and also under s. 5(2) read with s. 5(1)(d) of the said Act.
This appeal has been filed by the appellant under section 11(1) of the Act. The appeal was placed for
preliminary hearinbefore a Division Bench of this Court where Mr. Soli Sorabjee, the Solicitor

General of India, put in appearance on behalf of the respon-
dent and raised a preliminary objection to the maintainability of the appeal. The preliminary
objection raised by the Solicitor General was mainly on the ground that the order impugned being a
purely interlocutory order within the meaning of s. 11(1) of the Act, no appeal lay to this Court. The
Division Bench in view of the nature of the substantial question of law involved referred the case to a
larger Bench even at the stage of preliminary hearing because if the. appeal was admitted for
hearing, it would impliedly involve a decision on the question raised by the Solicitor General by way
of a preliminary objection.
We have heard the counsel for parties at very great length on the various aspects of the respective
points of view put forward by the counsel for the parties. It is manifest that if the preliminary
objection raised by the respondent finds favour then the appeal has to be dismissed in limine as
being not maintainable. If, however, the preliminary objection is overruled and the contention of the
appellant is accepted, the appeal will have to be admitted to hearing. In view of the limited nature of
the scope of the appeal we find it wholly unnecessary to go into the facts, circumstances or the
evidence on a consideration of which the Special Judge has based his order because that can be done
only if the appeal is to be heard on merits.' The sheet-anchor of the argument of Mr. Mridul, counsel
for the appellant, appears to be that the Special Courts Act being a statute in pari materia, the
Criminal Procedure Code, the eXpressions used and the meaning of the words employed in the Act
must have the same meaning and signification as used in the various provisions of the Criminal
Procedure Code of 1973 (hereinafter to be referred to as the 'Code'). It was submitted in the first
instance that on a prop r construction of s. 11 of the Act, the word 'interlocutory order' has been used
eXactly in the same sense as the same word has been used in S. 397(2) of the Code. The argument
merits serious consideration and has various phases and facets to be gone into after a proper
eXamination of the scheme and object of the Code and the Act. To begin with, it would appear that
the Code has made revolutionary changes in the Criminal Procedure Code of 1898 and has inserted
additional provisions with a view to ensure speedy justice without impeding fairness of the trial. In
this connection, the relevant portions of the Statement of objects and Reasons of the Code may be
eXtracted:-
"The amendments of 1955 were e Xtensive and were intended to simplify procedures
and speed up trials as far as possible. In addition, local amendments were made by
State Legislature, of which the most important were those made to bring about
separation of the Judiciary from the E Xecutive. Apart from these amendments, the
provisions of the Code of 1898 have remained practically unchanged through these
decades and no attempt was made to have a comprehensive revision of this old Code
till the Central Law Commission was set up in 1955.
........ The main task of the Commission was to suggest measures to remove anomalies
and ambiguities brought to light by conflicting decisions of the High Courts or other
wise, to consider local variations with a view to securing and maintaining uniformity,
to consolidate laws wherever possible and to suggest improvements where necessary.
Suggestions for improvements received from various sources were considered by the

Commission. ........................
3. The recommendations of the Commission were e X amined carefully by 'he

Government, keeping in view, among others, the following basic considerations:-
(i) an accused person should get a fair trial in accordance with the accepted principles
of natural justice;
(ii) every effort should be made to avoid delay in investigation and trial which is
harmful not only to the individuals involved but also to society; and
(iii) The procedure should not be complicated and should, to the utmost eXtent
possible, ensure fair-deal to the poorer sections of the community.
The occasion has been availed of to consider and adopt where appropriate
suggestions received from other quarters based on practical e X perience of
investigation and the working to criminal courts.
............
In addition to ensuring fair deal to the accused, separation as provided for in the Bill
would ensure improvement in the quality and speed of disposal, as all Judicial
Magistrates would be legally qualified and trained persons working under close
supervision of the High Court.
5. Some of the more important changes proposed to be made with a view to speeding
up the disposal of criminal cases are:-
(a) the preliminary inquiry which precedes the trial by a Court of Session, otherwise
known as committal proceedings, is being abolished as it does not serve any useful
purpose and has been the cause of consider able delay in the trial of offences;
..........."
(d) the powers of revision against interlocutory orders are being taken away as it has
been found to be one to the main contributing factors in the delay of disposal of
criminal cases;
.............."
A perusal of the objects and Reasons clearly shows that the Parliament wanted to implement the
recommendation of the Law Commission as far as possible. In the instant case, we are mainly
concerned with two important changes which have been made in the Code. Tn the first place, as
para S of the objects and Reasons shows that The preliminary inquiry which preceded the trial by a

court of sessions was known as committal proceedings has been abolished and the Magistrate before
when the chargesheet is submitted has merely to find out whether the offence is eXclusively triable
by a session court and, if so, to send the case to the sessions court. This was obviously done to cut
down considerable delay and duplication in the trial OF serious 1 criminal offences. We have laid
special stress on this part of the amendment because a serious argument was built up by the learned
counsel for the appellant on the question as to when the trial in a warrant chase starts. We shall deal
with this aspect of the matter a little later. Secondly, para 5(d) of the objects and Reasons
emphasises the fact that powers of revision against interlocutory orders have been taken away as
they were found to be the main contributing factor in the delay of the disposal of criminal cases. It
may be mentioned here that in the Codes of Criminal Procedure, prior to the Code of 1973, the word
'interlocutory order' was not used at all and, therefore, if has to be interpreted for the first time only
after the Code came into force. Section 397(2) of the Code which contains the powers of revision
against interlocutory orders runs thus:
"(2) The powers of revision conferred by sub- section (1) shall not be e Xercised in
relation to any interlocutory order passed in any appeal, inquiry, trial or other
proceeding."
It will be important to note that the word 'interlocutory order' used in this sub-section relates to
various stages of the trial? namely, appeal, inquiry, trial or any other proceeding. The object seems
to be to cutdown the delays in stages through which a criminal case passes before it culminates in an
acquittal, discharge or conviction. So far as the Code of Criminal Procedure, 1973 is concerned, it
has got a wide and diverse area of jurisdiction inasmuch as it regulates the procedure of trial not
only of the large number of offences contained in the Indian Penal Code but also in other Acts and
statutes which apply the Code of Criminal Procedure or which are statutes in pari material the Code.
Having regard, therefore, to the very large ambit and range of the Code, the e X pression
'interlocutory order' would have to the given a broad meaning so as to achieve the object of the Act
without disturbing or interfering with the fairness of the trial. Fortunately, however, there are a few
decisions which have interpreted the e Xpression 'interlocutory order' as appearing in s. 397(2) of
the Code. Before we come to the decisions, certain features may be noticed here. In the first place,
the concept of appeal against interlocutory order seems to be by and large foreign to the scheme of
the Code or for that matter the scheme of the b Code of Criminal Procedure right from 1872
uptodate. Appeal has been provided only against final orders and not against interlocutory orders.
Instead of appeal, the Code of 1898 as also the Code of 1872 contained powers of revision which
vested in the High Court to revise any order passed by a criminal court. In the previous Codes, the
term 'interlocutory' was not used. Therefore, the revisional jurisdiction was wide enough to embrace
within its scope any order whether interlocutory. intermediate or final. Secondly, by virtue of scores
of decisions of the various High Courts in India and the Privy Council, it was well settled that the
revisional jurisdiction possessed by the Sessions Judge and the High Court could be eXercised only
to eXample the legality or propriety of the order impugned and more particularly the Courts; were to
interfere only if there was an error of law or procedure. Previous to the Code, the powers of revision
enjoyed by the Sessions Judge or the District Magistrate for the Chief Judicial Magistrate through
various amendments were rather limited whereas the power of High Court was wide and unlimited.
Apart from the revisional power the High Court under the Code of 1898 possessed an inherent

power to pass order eX debito justitiae in order to prevent abuse of the process of the court. This was
a special power which was to be e Xercised by the High Court to meet a particular contingency not
eXpressly provided for in the Code of Criminal Procedure. Even in the present Code, the inherent
power of the court has been fully retained under sec. 482 which runs thus:-
"482. Nothing in this Code shall be deemed to limit or affect the inherent powers of
the High Court to make such orders as may be necessary to give effect to any order
under this Code, or to prevent abuse of the process of any Court or otherwise to
secure the ends of justice."
One of the questions that arose was as to whether an interlocutory order which could be revised by
the Sessions Judge, can be further revised under s. 482 of the Code by the High Court because s.
3.97(3) 1 permitted the power o, revision to be e Xercised only by the High Court or the Sessions
Judge but not by both of them. The limitation contained in s. 397(3) runs as follows:-
"(3) If an application under this section has been made by any person either to the
High Court or to the Sessions Judge, no further application by the same person shall
be entertained by the other of them."
Sub-section (3), however, does not limit at all the inherent power of the High Court contained in s.
482, as mentioned above. It merely curbs the revisional power given to the High Court or the
Sessions Judge under s. 397(1) of the Code. We need not dilate on this aspect because we are not
called upon to consider the interpretation of S. 397(3) of the Code, although in one of the cases cited
before us this aspect has been gone into and that is why we have indicated the same. Mr. Mridul
contended that as the Special Courts Act has fully applied the procedure of the Code to the trial of
the offences by the Special Judge, the e Xpression 'interlocutory order' has been used eXactly in the
same sense as in s. 397(2). In other words, the contention was that s. 11 of the Act is modelled on s.
397(2) of the Code by telescoping sub-section (2) of the said section into s. 11(1) of the Act. In
support of his contention reliance was placed in the case of Amar Nath & Ors. v. State of Haryana &
Ors.(1) and particularly to the following observations made by this Court:-
"It seems to us that the term 'interlocutory order' in s. 397(2) of the 1973 Code has
been used in a restricted sense and not in any broad or artistic sense. It merely
denotes orders of a purely interim or temporary nature which do not decide or touch
the important rights or the liabilities of the parties. Any order which substantially
affects the right of the accused, or decides certain rights of the parties cannot be said
to be an interlocutory order so as to bar a revision to the High Court against that
order, because that would be against the very object which formed the basis for
insertion of this particular provision in s. 397 of the 1973 Code. Thus, for instance,
orders summoning witnesses, adjourning cases, passing orders for bail, calling for
reports and such other steps in aid of the pending proceeding, may not doubt amount
to interlocutory orders against which no revision would lie under s. 397(2) of the
1973 Code. But orders which are matters of moment and which affect or adjudicate
the rights of the accused or a particular aspect of the trial cannot be said to be

interlocutory-orders so as to be outside the purview of the revisional jurisdiction of
the High Court."
In that case, one of us (Fazal Ali, J.) was a party to the decision and spoke for the Court. It is no
doubt true that this Court held that an order summoning an accused was not an interlocutory order
but being a matter of moment it decided an important aspect of the trial and was, therefore, in a
sense a final order which could be revised by the Sessions Judge or the High Court under s. 397 of
the Code. The observations made by this Court, however, have to be read in the light of the peculiar
facts of the said case. What had happened in that case was that an FIR was lodged at police station
Butana, District Karnal, mentioning a number of accused persons as having participated in the
occurrence. The police, after holding investigations, submitted a chargesheet against the other
accused persons eXcept the appellants before the Supreme Court against whom a final report under
s. 173 of the Code was given by the police. Th, report was placed before a Judicial Magistrate, First
Class who, after perusing the same, accepted the report and released the appellants. Thereafter the
complainant filed a revision before the Additional Sessions Judge against the order of the Judicial
Magistrate releasing the appellants but the revision petition was dismissed by the Judge. Thereafter
the informant filed a regular complaint before the Judicial Magistrate against all the accused
including the appellants. The learned Magistrate after having eXamined the complaint found that no
case against the appellant was established. A further revision was taken up before the Sessions
Judge who accepted the revision and directed further inquiry, on receipt of which the Magistrate
issued summons to the appellants straightaway. Against this order the appellants went up in
revision to the High Court which dismissed the petition in limine, obviously on the ground that the
order passed by the Magistrate was an interlocutory one. That is how the matter came up by special
leave before this Court. It would thus had been that before the stage of trial of the case reached the
appellants had been released by the Magistrate who accepted the final report that no case was made
against them. Even a complaint which was in the nature of a protest petition against the final report
filed before the A Magistrate was also dismissed. When the Magistrate issued summons in
pursuance of an order of further inquiry by the Sessions Judge cognizance was taken against the
appellants who were ordered to be put on trial because the order summoning the appellants
virtually amounted to asking the accused to face the trial. It was in the background of these
circumstances that this Court held that such an order being a matter of moment affecting important
rights of the parties, could not be said to be purely an interlocutory order. We have no doubt that the
decision of this Court, referred to above, was absolutely correct. In fact this part of the decision was
endorsed by a later decision of this Court in the case of Madhu Limaye v. The State of Maharashtra
The Court observed thus-
"In Amar Nath's case, as in this, the order of the Trial Court issuing process against
the accused was challenged and the High Court was asked to quash the criminal
proceeding either in eXercise of its inherent power under section 482 of the 1973
Code corresponding to section 561A of the Code of Criminal Procedure, 3898-herein
after called the 1898 Code or the old Code, or under Section 397(1) of the new Code
corresponding to section 435 of the old Code. Two points were decided in Amar
Nath's case in the following terms:- (1) "While we fully agree with the view taken by
the learned Judge that where a revision to the High Court against the order of the

Subordinate Judge is eXpressly barred under sub-s. (2) of s. 397 of the 1973 Code the
inherent powers contained in s. 482 would not be available to defeat the bar
contained in s. 397(2)."
(2) The impugned order of the Magistrate, however was not an interlocutory order.
............ But we are going to reaffirm the decision of the Court on the second point." G A Division
Bench consisting of three Judges held that an order framing a charge was not an interlocutory order
and, therefore, a revision against such an order was competent before the Sessions Judge or the
High Court. In dwelling on the various shades and aspects of an interlocutory order, Untwalia J.
who spoke for the Court, referred to previous decisions of the Court regarding the scope and ambit
of a final order in order to highlight the nature and signification of the term 'interlocutory order'.
Before analysing the decision, it may be necessary to state the facts on the basis of which the
aforesaid decision was rendered. The prosecution case was that in a press conference held at New
Delhi on September '7, 1974, the appellant before the Supreme Court is said to have made certain
statements and handed over a press hand-out containing allegedly some defamatory statements
regarding Shri A. R. Antulay, the then Law Minister of the Government of Maharashtra. The State
Government decided to prosecute the appellant for an offence under s. 500 of the Indian Penal
Code after obtaining the necessary sanction under s. 199(4) (a) of the Code. Armed with the
sanction, the Public Prosecutor filed a complaint in the court of the Sessions Judge, Greater
Bombay. The Sessions Judge took cognizance of the complaint and issued process against the
appellant. At the time when the appellant was being heard in the Sessions Court, the allegation
against him was resisted on three grounds-
(1) that the court of Sessions had no jurisdiction to take cognizance of the offence
without a formal commitment of the case to it;
(2) that the sanction given was bad inasmuch as it was not given by the appointing
authority; and (3) that the sanctioning authority had not applied i s E; mind to the
facts of the case and accorded sanction in a casual manner.
The Sessions Judge rejected all these contentions and framed charges against the appellant under s.
500, I.P.C. Thereafter, the appellant moved the High Court in revision against the order framing the
charges. Before the High Court, a preliminary objection as to the maintainability of the revision
application was taken. Before proceeding further, it may be observed that the objections taken by
the appellant in the aforesaid case related to the root of the jurisdiction of the Sessions Judge and if
accepted, would have rendered the entire proceedings void ab initio. The case before this Court was
not one based on allegations of fact on which cognizance was taken by a trial court and after-having
found that a prima facie case was made out a charge was framed against the accused. Even so, the
ratio decidendi in the aforesaid case was, in our opinion absolutely correct and we are entirely in
agreement with the learned Judges constituting the Bench that the order of the Sessions Judge
framing charges, in the circumstances of the case, was not merely an interlocutory order but partook
of the nature of a final order or, at any rate, an intermediate order so as to be taken out of the bar
contained in s. 397(2) of the Code In that case, Untwalia J., speaking for the Court observed as

follows:-
"It is to be noticed that the test laid down therein was that if the objection of the
accused succeeded, the proceeding could have ended but not vice versa. The order
can be said to be a final order only if, in either event, the action will be determined. In
our opinion, if this strict test were to be applied in interpreting the words
'interlocutory order' occurring in section 397(2), then the order taking cognizance of
all offence by a Court, whether it is so done illegally or without jurisdiction, will not
be a final order and hence will be an interlocutory one. But in our judgment such
an interpretation and the universal application of the principle that what is not a final
order must be an interlocutory order is neither warranted nor justified. If it were so it
will render almost nugatory the revisional power of the Sessions Court or the High
Court conferred on it by section 397(10)................................On the one hand, the
legislature kept intact the revisional power of the High Court and, on the other, it put
a bar on the eXercise of that power in relation to any interlocutory order. In such a
situation it appears to us that the real intention of the legislature was not to equate
the eXpression "interlocutory order" as invariably being converse of the words ''final
order". There may be all order passed during the course of a Proceeding which may
not he final in the sense noticed in Kuppuswami's case (Supra), but, yet it may not be
an interlocutory order- pure or simple. Some kinds of orders may fall in between the
two. By a rule of harmonious construction, we think that the bar in subsection (2) of
Section 397 is not meant to be attracted to such kinds of intermediate orders. They
may not be final orders for the purposes of Article 131 of the Constitution, yet it
would not be correct to characterise the as merely interlocutory orders within the
meaning of section 397 (2).
XXX XXX XXX Yet for the reasons already alluded to, we feel no difficulty in coming to
the conclusion, after due consideration, that all order rejecting, the plea of the
accused on a point which when accepted, will conclude the particular proceeding, will
surely be not an interlocutory order within the meaning of section 397(2)."
(Emphasis ours) Reading the observations made by this Court in the aforesaid case as
a whole we are unable to agree with the argument of Mr. Mridul that this Court in
any way disapproved the tests of a final order or interlocutory order accepted by the
Federal Court in case of S. Kuppu swami Rao v. The King This Court took care to
eXplain that in a situation with which the Judges were dealing in that particular case,
it would 'not be proper to treat the order framing charges as an interlocutory order
pure and simple.
Even thought the order may be intermediate it could not be said to be final so as to bar the revisional
jurisdiction of the High Court under s. 397(3) of the Code. We find ourselves in complete agreement
with the eXposition of the law by the learned Judges who decided the said case. We will deal with a
broader and a wider aspect of the matter in a later part of our judgment when we deal with the scope
and ambit of the Act. We might reiterate here even at the risk of repetition that the term
'interlocutory order' used in the Code of Criminal Procedure has to be given a very liberal

construction in favour of the accused in order to ensure complete fairness of the trial because the
bar contained in s. 397(3) OF the Code would apply to a variety of cases coming up before the courts
not only being offences under the Penal Code but under numerous Acts. If, therefore, the right of
revision was to be barred, the pro vision containing the bar must be confined within the four corners
of the spirit and the letter of the law. In other words, the revisional power of the High Court or the
Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi
final. The same, however, in our opinion, could not be said of the Special Courts Act which was
meant to cover only specified number of crimes and criminals and the objective attained was
quickest despatch and speediest disposal. Mr. Mridul further relied on a decision of this Court in the
case of State of Karnataka v. L. Muniswamy & ors. and particularly on the following observations
made by Chandrachud, J. as he then was:
"On the other hand, the decisions cited by learned counsel for the respondents in
Vadilal Panchal v. D. D. Ghadigaonkar and Century Spinning, & Manufacturing Co. v.
State of Maharashtra a show that it is wrong to say that at the stage of framing
charges the court cannot apply its judicial mind to the consideration whether or no.
there is any ground for presuming the commission of the offence by the accused. As
observed in the latter case, the order framing a charge affects a person's liberty
substantially and therefore it is the . A duty of the court to consider judicially whether
the material warrants the framing of the charge. It cannot blindly accept the decision
of the prosecution that the accused be asked to face a trial."
Great stress was laid by the learned counsel for the appellant on the fact that the Court had observed
that the stage of framing of charges was a very important matter because it affected a person's
liberty substantially and, therefore, the Court should consider judicially whether the materials
warrant framing of the charge. There can be absolutely no doubt regarding the correctness of the
observations made by Chandrachud J. This decision, however, is no authority for holding that an
order framing a charge is not an interlocutory order. In the aforesaid case, this Court was called
upon to eXercise its jurisdiction under s. 482 of the Code, that is to say, the inherent powers of the
Court was invoked to quash the proceedings in order to prevent abuse of the process of the Court.
The term 'interlocutory order' 7 appearing in s. 397 (2) of the Code did not arise for interpretation in
that case. In these circumstances, therefore, we do not think that this case can be of any assistance
to the appellant. Reference was also made to a decision of this Court in the case of Parmeshwari
Devi v. State & Anr. This case also depends on different facts and relates to the circumstances under
which a summons could be issued under s. 94(1) of the Code of 1898. In passing, however, this
Court observed:-
"The Code does not define an interlocutory order, but it obviously is an intermediate
order, made during the preliminary stages of an enquiry or trial. The purpose of sub-
section (2) of section 397 is to keep such an order outside the purview of the power of
revision so that the enquiry or trial may proceed without delay. This is not likely to
prejudice the aggrieved party for it can always challenge it in due course if the final
order goes against it. But it does 'not follow that if the order is directed against a
person who is not a party to the enquiry or trial, and he will have no

opportunity to challenge it after a final order is made affecting the parties concerned,
he cannot apply for its revision even if it is directed against him and adversely affects
his rights."
Although this Court said that the Code does not define an interlocutory order, it does not include an
intermediate order made during the preliminary stages, of an inquiry or trial. This Court laid greater
stress on the fact that an order which was directed against a person who was not a party to the
inquiry or trial and had, therefore, no opportunity to place his point of view could not be bound by
any order passed against him. This appears to be the ratio of that case. Reliance was also placed on a
decision of this Court in the case of Century Spinning & Manufacturing Co. Ltd. v. The State of
Maharashtra in order to urge that the stag, of framing of charges is a matter of moment and an order
framing a charge could not be termed as an interlocutory order. In the first place, the judgment of
the aforesaid case was rendered before the Code of 1973 was passed and, therefore, the
interpretation of interlocutory order as contained in s. 397 (2) of the Code could not have arisen for
consideration. Secondly, the decision was given on the scope and ambit of s. 251A of the Code of
1898 AS amended by the Act of 1958. Dealing with the scope of sub- sections (2) and (3) of s. 251A
of the Code of 1898, this Court observed as follows:(1) "The argument that the Court at the stage of
framing the charges has not to apply its judicial mind for considering whether or not there is a
ground for presuming the commission of the of offence by the accused is not supportable either on
the, plain language of the section or on its judicial interpretation or on any other recognised
principal of law. The order framing the charges does substantially affect the person's liberty and it is
not possible to countenance the view that the Court must automatically frame the charge merely
because the prosecuting authorities, by relying on the documents referred to in Section 173, consider
it proper to institute the case. The responsibility of framing the charges is that of the Court and it
has to judicially consider the question of doing so. Without fully adverting to the mate rial on the
record it must not blindly adopt the decision of the prosecution."
There can be no doubt that the stage of framing of the charges is all important stage and the Court
before framing the charge has to apply its mind judicially to the evidence or the material placed
before it in order to make up its mind whether there are sufficient grounds for proceeding against
the accused. But this case is not an authority for the proposition that once the Court, after
considering the materials, passes an order framing the charges, the order is a final order which
could be revised and would not be barred under s. 397 (2) of the Code which, however, did not e Xist
at the time when the decision was given. It follows Therefore that an order framing a charge was
clearly revisable by the High Court under ss. 435 and 439 of the Code of 1898. We may, however,
point out that we are in complete agreement with the principle involved in the cases discussed above
that an order framing charges against an accused undoubtedly decides an important aspect of the
trial and it is the duty of the Court to apply its judicial mind to the materials and come to a clear
conclusion that a prima facie case has been made out on the basis of which it would be justified in
framing charges The question, however, with which we are concerned in the present appeal is
essentially different. The order of the Special Judge framing the charge is a reasoned order and not a
mechanical or a casual order so as to vitiate the order of the Special Judge. In the instant case, we
are concerned with a much larger question, viz. whether or not the term 'interlocutory order' used in
s. 11(1) of the Act should be given the same meaning as this very term appearing in s. 397 (2) of the

Code. In other words, the question is whether s. 11 (1) of the Act tightens or widens the scope of the
term 'interlocutory order' as contained in s. 397 (2) of the Code and as interpreted by this Court in
the decisions, referred to above.
This brings us to the discussion of the main preliminary objection taken by the Solicitor General.
The Solicitor General submitted that s. 11, which is eXtracted below starts with a non obstante
clause which completely e X cludes the application of the provisions of the Code of Criminal
Procedure and therefore the decisions of this Court rendered on an interpretation of s. 397(2) of the
Code would have no application whatsoever in considering the scope and ambit of s. 11:
Appeal 11 . (1) Notwithstanding anything in the Code, an appeal shall lie as of right
from any judgment, sentence or order, not being interlocutory order, of a Special
Court to the supreme Court both on facts and on law.
(2) E X cept as aforesaid, no appeal or revision shall lie to any court from any
judgment, sentence or order of a Special Court.
(3) Every appeal under this section shall be preferred within a period of thirty days
from the date of any judgment. sentence or order of a Special Court: Provided that
the Supreme Court may entertain an appeal after the eXpiry of the said period of
thirty days if it is satis-
fied that the appellant had sufficient cause for not preferring the appeal within the
period of thirty days."
It was further contended that even if the non obstante clause was not there, the aim and object of
the Act being speediest disposal of cases, cutting down all possible delay, the term 'interlocutory
order' should be so interpreted so as to advance the object of the Act rather than retard it. As against
this, Mr. Mridul, counsel for the appellant, submitted that the non obstante clause does not change
the compleXion of the term 'interlocutory order' which is a term of well known significance and has
been construed by this Court in s. 397(2) of the Code and the same principle would apply in
interpreting this eXpression particularly when the Act does not give any remedy by way of revision to
the accused against an order which may not be purely interlocutory but which is undoubtedly a
matter of moment and therefore an inter mediate or a quasi final order. It was further argued that as
an order framing charges against the accused affects the liberty of the 1) subject, the Act appears to
have given a wider connotation to the term so as to provide for appeal against that order to the
highest court of the country.
In appreciating the respective arguments put forward by counsel for the parties we may have to
consider the background, the aim, the object and scheme of the Act.
It may be mentioned here that before the Act was passed a Bill was moved in the Parliament which
was adopted by the Government and the President of India was requested to make a reference to
this Court regarding the constitutional validity of the Act. The reference was heard by seven Judges

particularly on the various constitutional aspects and we would have to advert to some important
observations made by this Court in the Reference in order to highlight the main object of the Act.
To begin with we may glance through eXtracts of the speech of the Union Home Minister at the time
of introduction of the Bill in the Lok Sabha. While introducing the Bill, the Hon'ble Home Minister
laid stress on the (dominant object of the Bill which is contained in the e Xtracts from his speech
given below:-
"It is the obligation of the state not only to prosecute persons involved in such crimes
but also to make arrangements for the speedy judicial determination of such
prosecutions. The ordinary criminal courts for a variety of reasons, cannot reasonably
be eXpected to bring these trials to an early conclusion. Government, therefore,
considers that only if special courts are established at a high level lo deal e Xclusively
with such offences, the trial of these cases will not be unduly protracted." (Emphasis
ours) (Lok Sabha Debates, Vol. XXIl, No. 8, dated 28-2-79, SiXth Series p. 278).
The details to the aims and objects to the Act are further reflected in the Preamble of the Act which
contains several clauses, the relevant portions of which may be eXtracted Thus:
"Whereas Commissions of Inquiry appointed under the Commissions of Inquiry Act,

1952 have rendered reports disclosing the eXistence of prima facie evidence of
offences committed by persons who held high public or political offices in the country
and others connected with the com mission of such offences during the operation to
the Proclamation of Emergency, dated the 25th June, 1975, issued under clause (1) of
Article 352 of the Constitution:
.. .. .. ..
And Whereas the offences referred to in the recitals aforesaid were committed during
the operation of the said Proclamation of Emergency, during which a grave
emergency, was clamped on the whole country, civil liberties were curtailed to a great
eXtent, important fundamental rights of the people were suspended, strict censorship
was imposed on the press, judicial powers were severely crippled and the
parliamentary democratic system emasculated;
.. .. .. ..
And whereas the ordinary criminal courts due to congestion of work and other
reasons cannot reasonably be eXpected to bring those prosecutions to a speedy
termination;
And whereas it is imperative for the efficient functioning of parliamentary democracy

and the institutions created by or under the Constitution of India that the
commission to offences referred to in the recitals aforesaid should be judicially

determined with the utmost dispatch;
.. .. .. ..
And whereas it is eXpedient to make some procedural changes whereby avoidable

delay in the final determination of the innocence or guilt of the persons to be tried is
eliminated without interfering with the right to a fair trial;
The effect of the speech given by the Home Minister and the recitals in the Preamble bring out the
following special features of the Act :-
(1) That the Act makes a distinct departure from the trial of ordinary offences by
criminal courts in that the trial of the offences is entrusted to a very high judicial
(dignitary who is a sitting Judge of the High Court to be appointed by the Chief
Justice concerned on the recommendations of the Chief Justice of India. This
contains a built-in safeguard and a safety valve for ensuring the independence of
judiciary on the one hand and a complete fairness of trial on the other. In appointing
the Special] Judge, the Government has absolutely no hand or control so that the
Special Judge is appointed on the recommendations of the highest judicial authority
in the country, viz., the Chief Justice of India. This would naturally instil great
confidence of the people in the Special Judge who is given a very elevated status. (2)
Secondly, whereas in ordinary cases the matter is straightaway brought to the court
after the investigation is completed, the Act requires certain preliminary safeguards
before the matter is placed before the Special Court. In the first place, the allegations
made against the accused have been scrutinised by a High Powered Commission,
presided over by Mr. Justice Shah, a retired Judge of the Supreme Court, as indicated
by the Home Minister in his speech while introducing the Bill. Secondly, the matter
does not rest there but a thorough investigation has been made not by the ordinary
police but by the C.B.I. Thirdly, after the investigating is made, the matter is placed
before the Central Government which makes a declaration after being satisfied about
eXistence of prima facie evidence of the commission of an offence alleged A to have
been committed by an accused. It is only after such a declaration is made that the
matter is brought before the Special Court, designated by the Central Government. It
thus appears that before a case to the Court a three-tier system has already been
adopted which eliminates any possibility of miscarriage of justice or any element of
unfairness or foul play.
Furthermore, although the Special Judge functions as a Sessions Judge for the
purposes of the trial and follows a procedure provided for the trial of warrant cases,
the fact remains that the Judge is a high judicial dignitary, being a sitting Judge not
subordinate in any way to the Government. The Special Judge appointed, therefore,
is a very eXperienced judicial officer who must be presumed to act in an e Xtremely
must and equitable manner keeping himself alive to the rules of natural justice and
fair play.

In fact, this Court has held in a number of cases: That where a power is vested in a very high
authority, the abuse of the power is reduced to the minimum. In this connection, we may refer to
two decisions of this Court. In the case of K. L. Gupta & Ors. v. The Bombay Municipal Corporation
& Ors this Court observed as follows:-
"The fact that no appeal from the decision under s 13 was provided for is a matter of
no moment for the authority under s. 13 is no less than the Municipal Com missioner
himself or the Chief officer of the Municipal Borough or a person eXercising the
power of an EXecutive officer of any local authority. When the power had to be
eXercised by one of the highest officers of the local authorrity intimately connected
with the preparation of the development plan in all its stages, it is difficult to envisage
what other authority could be entrusted with the work of appeal or revision."
A similar view was taken by this Court in the case of Chinta Lingam & ors. v. Government of India &
Ors. This Court observed thus:
"In these circumstances the absence of a provision tor appeal or revision can be of no
consequence. At any n rate, it has been pointed out in more than one decision of this
Court that when the power has to be eXercised by one of the highest officers the fact
that no appeal has been provided for is a matter of no moment.. It was said that
though the power was discretionary but it was not necessarily discriminatory and
abuse of power could not be easily assumed. There was moreover a presumption that
public officials would discharge their duties honestly and in accordance with rules of
law."
Although these judgments were rendered in e Xplaining the scope of Art. 14 of the Constitution of
India but the principle deduced from these decisions applies to the present case in order to show
that fairness of the trial has to be presumed when a person of the status of a sitting High Court
Judge tries the case against an accused. Another important feature of the Act is that unlike other
cases, an appeal against the decision of a Special Court lies to the highest Court of the country,
namely, the Supreme Court, and the appeal lies as a matter of right both on facts and on law. In
other words, any judgment rendered by the Special Court is to be e Xamined by the highest court of
the country which is bound to consider the diverse aspects of the materials, evidence and findings
given by the Special Court without being fettered by any legal or factual restriction. Thus, an
analysis of the aforesaid features clearly reveals that no accused can have any genuine grievance
against the fairness of the trial that is meted out to him by the Act. If any error of fact or law is
committed by the Special Judge that can be corrected by this Court.
Coming back now to the question at issue, the dominant purpose of the Act is to achieve not only
speedy determination but a determination with the utmost despatch. We may refer to certain
observations made by this Court while deciding the Presidential Reference in order to emphasise the
most eXpeditious disposal of the case, a goal which the Act seeks to subserve.

In In Re The Special Courts Bill, 1978,(1), Chandrachud, C.J. speaking for the Court observed as
follows:-
". In relation to the objective mentioned in the siXth paragraph of the Preamble that
it is imperative for the functioning of parliamentary democracy and the institutions
created by or under the Constitution of India that the commission of such offences
should be judicially determined with the utmost dispatch; and the latter in relation to
their status, that is to say, in relation to the high public or political office held by
them in India.
.. .. .. ..
If it be true, and we have to assume it to be true, that offences were committed by

persons holding high public or political offices in India under cover of the declaration
of emergency and in the name of democracy, there can be no doubt that the trial of
such persons must be concluded with the utmost dispatch in the interest of the
functioning of democracy in our country and the institutions created by our
Constitution. Longer these trials will tarry, assuming the charges to be justified,
greater will be the impediments in fostering democracy, which is not a plant of easy
growth. If prosecutions which the Bill envisages are allowed to have their normal,
leisurely span of anything between 5 to 10 years, no fruitful purpose will be served by
launching them. Speedy termination of prosecutions under the Bill is the heart and
soul of the Bill."
Similarly, Krishna Iyer J. Observed as follows:-
"And so, to track down and give short shrift to these heavyweight criminaloids who
often mislead the people by public moral weight-lifting and multipoint manifestoes is
an urgent legislative mission partially undertaken by the Bill under discussion.
.. .. .. ..
It is common knowledge that currently in our country criminal courts eXcel in slow-
motion. The procedure is dilatory, the dockets are heavy, even the service of process
is delayed and, still more eXasperating, there are appeals upon appeals and revisions
and supervisory jurisdictions, H baffling and baulking speedy termination of
prosecutions, not tc speak of the contribution to delay by the Administration itself by
neglect of the basic necessaries of the judicial process."
The aforesaid observations, therefore, clearly show that the heart and soul of the Act is speedy
disposal and quick dispatch in the trial of these cases. It is, therefore, manifest that the provisions of
the Act must be interpreted so as to eliminate all possible avenues of delay or means of adopting
dilatory tactics by plugging every possible loophole in the Act through which the disposal of the case
may be delayed. Indeed if this be the avowed object of the Act, could it have been intended by the

Parliament that while the Criminal Procedure Code gives a right of revision against an order which,
though not purely interlocutory, is either intermediate or quasi final, the Act would provide a full
fledged appeal against such an order. If the interpretation as suggested by the counsel for the
appellant is accepted, the result would be that this Court would be flooded with appeals against the
order of the Special Court framing charges which will impede the progress of the trial and delay the
disposal of the case which is against the very spirit of the Act. We are of the opinion that it was for
this purpose that a non obstante clause was put in s. ll of the Act so as to bar appeals against any
interlocutory order whether it is of an intermediate nature or is quasi final. The Act applies only to
specified number of cases which fulfil the conditions contained in the provisions of the Act and in
view of its special features, the liberty of the, subject has been fully safeguarded by providing a three-
tier system as indicated above.
Let us now eXamine the scheme of the Act. Under s. 4 a Special Court is to take cognizance or try
cases as are instituted before it or transferred to it as hereinafter provided. Section S provides that if
the Central Government is of opinion that there is prima facie evidence of the commission of an
offence and that in accordance with the guidelines contained in the Preamble, the said offence
should be dealt with under this Act, the Central Government shall make a declaration to that effect.
In other words, s. 5 imposes a further screening process by providing that the Central Government
which is a very high authority should satisfy itself that a prima facie case 11 is made out before
making a declaration and sending the case to the Special Judge. Section 6 provides that after a
declaration under s. 5 is made, notwithstanding anything in the Code the prosecution in respect of
the offence which is the subject matter of the declaration A and any prosecution pending in any
Court shall stand transferred to a Special Court designated by the Central Government. Thus, we
find that s. 6 makes a distinct departure from the provisions of the Code in entrusting the trial of the
offence to a Special Judge, designated by it. We are not concerned with s. 7 which deals with the
transfer of any revision or appeal pending in any Court of Appeal or Revision which would stand
transferred for disposal to this Court. Section 5 provides for the joint trial of the offence against the
accused in accordance with the Code. Thus, the provisions of the Code are for the first time applied
by s.
8. Similarly, s. 9 (1) enjoins that a Special Court shall in the trial of cases before it follow the
procedure prescribed by the Code for trial of warrant cases before a Magistrate. Similarly, the
provisions of the Code in respect of ss. 307 and 308 are also applied by virtue of s. 9(2). Sub-section
(3) appears to be the residuary clause which applies all the provisions of the Code which are not
inconsistent with the provisions of this Act. Here also, a departure from the Code is indicated in that
the 1) provisions of the Code would apply where the same are either e Xpressly or by necessary
intendment eXcluded. Subsection (3) of s. 9 further provides that a Special Court shall be deemed to
be a Court of Sessions and shall have the powers of a Court of Sessions. This part of the section
merely creates a legal fiction but does not reduce the status of a sitting High Court Judge. Section 1
O cm- powers the Supreme Court in certain cases to direct any particular case to be transferred from
one Special Court to another. Then we come to s. 11(1) which has already been e Xtracted. The non
obstante clause which stars with the words Notwithstanding anything in the Code" e Xcludes appeals
from any interlocutory order of a Special Court. The reason for this e Xclusion is not far to seek. F In
the first place, such an eXclusion is fully consistent with the object of the Act, viz., to secure the

quickest dispatch and an eXpeditious disposal of the case so as to cut down all delays which may be
caused by providing for appeal against interlocutory orders also. As the non obstante clause
eXpressly eXcludes the provisions of the Code of Criminal Procedure, we cannot call into aid the
provisions of s. 397(2) of the Code which would amount to frustrating the very object which s. 11
seeks to advance. Mr. Mridul realising the force of the non obstante clause has submitted a very
attractive and ingenious argument. In the first place, he submitted that as the Act does not provide
for any revision against intermediate or quasi final orders. and as the object was to give a very fair
trial to the accused, hence instead of a revision, an appeal has been provided. We are, however,
unable to agree with this argument, which is not at all borne out by the plain language employed in
s. 11 (1) . When the Act eXcludes the Code then it is obvious that it e Xcludes an appeal against any
type of an interlocutory order. The absence of revision is more than compensated by giving the
accused a right of an appeal against any judgment or order of the Special Judge as of right and open
on facts and law. There is one more reason why the power of revision has been e Xcluded. The trial is
held by a sitting High Court Judge who also would have the power of revision if be was sitting in a
High Court. In these circumstances, it must be presumed that whenever a Special Judge passes any
interlocutory order or an inter mediate order like framing of charges, he would do so only with full
and complete application of his mind and considering the various principles and guidelines
indicated by this Court in several decisions, some of which have been discussed above, and,
therefore, it would not be in keeping with the dignity, decorum and status of the Special Judge to
provide for an appeal even against such an order which he is supposed to pass with full application
of mind and due deliberation It was then contended by the learned counsel for the appellant that the
non obstante clause should be interpreted according to the salutary principles laid down by this
Court. In support of his submission, he relied on a decision of this Court in the case of Aswini
Kumar Ghosh & Anr. v. Arabinda Bose & Anr. where Sastri, C.J. observed as follows:
"It should first be ascertained what the enacting part of the section provides on a fair
construction of the words used according to their natural and ordinary meaning, and
the non obstante clause is to be understood as operating to set aside as no longer
valid anything contained in relevant eXisting laws which is inconsistent with the new
enactment.
.. .. .. ..
The true scope of the enacting clause must, as we have observed, be determined on a
fair reading of the words used in. their natural and ordinary meaning."
Similar observations were made by Mukherjee J..
"In my opinion, the section on its negative side eliminates so far as the Supreme
Court Advocates are con-
cerned, all disabling provisions e Xisting under any law in regard to persons who are
not enrolled as Advocates of any particular High Court. On the positive side, the
section confers on Supreme Court Advocates the statutory privilege of practising as of

right, in any High Court in India, no matter whether he is enrolled as an Advocate of
that court or not."
Das, J. as he then was, observed as follows:-
"Tn short, there is no escape from the conclusion that the ambit, scope and effect of
the non obstante clause are to supersede the Indian Bar Councils Act and any other
Act only in so far as they regulate the conditions referred to therein.
The observations of Das, J. clearly show that the effect of non obstante clause was to supersede the
Indian Bar Councils Act and any other Act in so far as they regulate the conditions referred to
therein, If we apply this test to the present case then it is manifest that the non obstante clause
would have the effect of overriding and eXcluding the provisions of the Code. Applying the test laid
down by Sastri, C. J., we find that the position may be summed up as follows. -
(1) We should eXclude the statute concerned from consideration. in the instant case
'The Code';
(2) We should construe the words used according to their natural and ordinary
meaning instead of referring to the statute which is sought to be eXcluded.
We entirely agree with the approach indicated by Sastri, C.J. and which is also binding on us. Let us
see what is the effect of interpreting the non obstante clause according to the test laid down by the
decision, referred to above, and particularly the observations of Sastri C. J. Let us for the time being
forget the provisions of s. 397(2) of the Code or the- interpretation put by this Court on the term
'interlocutory order' as appearing in the Code because the decisions were based purely on the
interpretation of the provisions of the Code. We have, therefore, first to determine the natural
meaning of the eXpression interlocutory order'. To begin with, in order to construe the term
'interlocutory', it has to be construed in contra- distinction to or in contrast with a final order. We
are fortified by a passage appearing in The Supreme Court Practice, 1976 (Vol. I p. 853) where it is
said that an interlocutory order is to be contrasted with a final order, referring to the decision of
Salaman v. Warner. In other words, the words 'not a final order' must necessarily mean an
interlocutory order or an intermediate order. That this is so was pointed out by Untwalia J, speaking
for the Court in the case of Madhu Limaye v. State of Maharashtra, (supra) as follows:
"Ordinarily and generally the eXpression 'interlocutory order' has been understood
and taken to mean as a converse of the term 'final order'."
Thus, the eXpression 'interlocutory order' is to be understood and taken to mean converse of the
term 'final order'. Now, let us see how this term has been defined in the Dictionaries and the te Xt
books. In Webster's Third International Dictionary (Vol. II, p. 1170) the e Xpression 'interlocutory
order' has been defined thus:

"not final or definitive; made or done during the progress of an action;
INTERMEDIATE PROVISIONAL". Stroud's Judicial Dictionary (Fourth Edition, Vol.
3, p. 1410) defines the interlocutory order thus: - " 'Interlocutory order' (Judicature
Act 1873 (c.66), s. 25(8) was not confined to an order made between writ and final
judgment, but means an order other than final judgment."
Thus, according to Stroud, interlocutory order means an order other than a final judgment. This was
the view taken in the case of Smith v. Cowell and followed in Manchester & Liverpool Bank v.
Parkinson. Similarly, the term 'final order' has been defined in volume 2 of the same Dictionary (p.
1037) thus:
"The judgment of a Divisional Court on an appeal from a county court in an

interpleader issue, was a 'final order" within the old R.S., Ord. 58, r. 3 (Hughes v.
Little, 18 Q.B.D. 32); so was an order on further consideration (Cummins v. Herron,
4 Ch. D.
787); unless action was not thereby concluded.. But an order under the old R.S.C.,
ord. 25, r. 3, dismissing an action on a point of law raised by the pleadings was not
'final" within the old Ord. 58, r. 3, because had the decisions been the other way the
action would have proceeded."
Halsbury's Laws of England (Third Edition, Vol. 22, pp. 743-
744) describes an interlocutory or final order thus:
"Interlocutory judgment or order: An order which does not deal with the final rights
of the parties, but either (1) is made before judgment, and gives no final decision on
the matters in dispute, but is merely on a matter of procedure, or (2) is made after
judgment, and merely directs how the declarations of right already given in the final
judgment are to be worked out, is termed 'interlocutory'. An interlocutory order,
though not conclusive of the main dispute, may be conclusive as to the subordinate
matter with which it deals.....
In general a judgment or order which determines the principal matter in question is termed 'final'."
At page 743 of the same volume, Blackstone says thus: "Final judgments are such as
at once put an end to the action by declaring that the plaintiff has either entitled
himself, or has not, to recover the remedy he sues for...................Four different tests
for ascertaining the finality of a judgment or order have been suggested: (1) Was the
order made upon an application such that a decision in favour of either party would
determine the main dispute? (2) Was it made upon an application upon which the
main dispute could have been decided? (3) Does the order, as made, determine the
dispute? (4) If the order in question is reversed, would the action have to go on."

Corpus Juris Secundum (Vol. 49 p. 35) defines interlocutory order thus:
"A final judgment is one which disposes of the cause both as to the subject matter and
the parties as far as the court has power to dispose of it, while an interlocutory
judgment is one which reserves or leaves some further question or direction for
future determination............Generally, however, a final judgment is one which
disposes of the cause both as to the subject matter and the parties as far as the court
has power to dispose of it, while an interlocutory judgment is one which does not so
dispose of the cause, but reserves or leaves some further question or direction for
future determination. The term "interlocutory judgment" is, however, a
convenient one to indicate the determination of steps or proceedings in a cause
preliminary to final judgment, and in such sense the term is in constant and general
use even in code states."
(Emphasis ours) Similarly, Volume 60 of the same series at page 7 seeks to draw a: distinction
between an interlocutory and a final order thus:
"The word "interlocutory", as applied to rulings and orders by the trial court, has
been variously defined. It refers to all orders, rulings, and decisions made by the trial
court from the inception of an action to its final determination. It means, not that
which decides the cause, but that which only settles some intervening matter relating
to the cause. An interlocutory order is an order entered pending a cause deciding
some point or matter essential to the progress of the suit and collateral to the issues
formed by the pleadings and not a final decision or judgment on the matter in issue ..
An intermediate order has been defined as one made between the commencement of
an action and the entry of the judgment."
To sum up, the essential attribute of an interlocutory order is that it merely decides some point or
matter essential to the progress of the suit or collateral to the issues sought but not a final decision
or judgment on the matter. in issue. An intermediate order is one which is made between the
commencement of an action and the entry of the judgment. Untwalia J. in the case of Madhu
Limaye v. State of Maharashtra (supra) clearly meant to convey that an order framing charge is not
an interlocutory order but is an intermediate order as defined in the passage, e Xtracted above, in
Corpus Juris Secundum, Vol. 60. We find ourselves in complete agreement with the observations
made in Corpus Juris Secundum. It is obvious that an order framing of the charge being an
intermediate order falls squarely with in the ordinary and natural meaning of the term 'interlocutory
order'. as used in s. 11(1) of the Act. Wharton's Law Le X icon (14th Edition, p. 529) defines
interlocutory order thus:
"An interlocutory order or judgment is one made or given during the progress of an
action, but which does not finally dispose of the rights of the parties."
Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is
inescapable that an order which does not terminate the proceedings or finally decides the rights of

the parties is only an interlocutory order. In other words, in ordinary sense of the term, an
interlocutory order is one which only decides a particular aspect or a particular issue or a particular
matter in a pro-
seeding, suit or trial but which does not however conclude the trial A at all. This would be the result
if the term interlocutory order is interpreted in its natural and logical sense without having resort to
Criminal Procedure Code or any other statute. 'I hat is to say, if we construe interlocutory order in
ordinary parlance it would indicate the attributes, mentioned above, and this is what the term
interlocutory order means when used in s. 11(1) of the Act B We shall, however, e Xamen a number of
English and Indian authorities that have been cited before us by the parties as to the true intent and
import of an interlocutory order.
In the case of E X Parte Moore In Re Faithfull Lord Selbome while defining a final judgment
observed as follows:
"To constitute an order a final judgment nothing more is necessary than that there
should be a proper litis contestatio, and a final adjudication between the parties to it
on the merits.
Similarly, Brett, M.R. Observed as follows:
"The question is whether in the Chancery Division there cannot be a "final judgment"
when everything which has to be done by the Court itself is finished. Is that a final
judgment which directs certain things to E be done and certain inquiries to be made,
and certain other things to be done on those inquiries being answered ? If the Court
ordered the result of the inquiries to be reported to itself before the judgment was
given, it would not be a final judgment. But, if the Court orders something to be done
according to the answer to the inquiries, without any further reference to itself, the
judgment is final."
This authority therefore clearly indicates that a final order or a judgment would be one which
amounts to a final adjudication between the parties on merits. Practically, the same view has been
taken by Brett M.R. with whom Cotton, L.J. also concurred. In the case of Salaman v. Warner & ors.
(Supra), Lord Esher propounded an important test to judge whether an order was interlocutory or
final. In this connection, he observed as follows:
"The question must depend on what would be the result of the decision of the
Divisional Court, assuming it to be given in favour of either of the parties. If their
decision, whichever way it is given, will, if it stands, finally dispose of the matter in
dispute, I think that for the purposes of these rules it is final. On the other hand, if
their decision, if given in one way, will finally dispose Of the matter in dispute, but, if
given in the other, will allow the action to go on, then I think it is not final, but
interlocutory. That is the rule which I suggested in the case of Standard Discount Co.
v. La Grange, and which on the whole I think to be best rule for determining these

questions; the rule which will be most easily understood and involves the fewest
difficulties."
In other words, the test adopted by Lord Esher in this case has been consistently followed by this
Court in later cases and appears to us to contain the most valuable guidelines to judge whether an
order is final or interlocutory. Applying this test to the present case it would follow that if the Special
Judge did not frame a charge and discharged the accused, the proceedings would no doubt
terminate but if it framed charges against the accused the proceeding would continue. Unless,
therefore, an order results in a final termination of the proceeding ill any way it is decided, the order
is of an interlocutory nature. Fry, L.J. almost took the same view when he observed thus:
"I think that the true definition is this. I conceive 'hat an order is "final" only where it
is made upon an application or other proceeding which must whether such
application or other proceeding fail or succeed, determine the action. Conversely 1
think that an order is "interlocutory" where it cannot be affirmed that in either event
the action will be determined."
Lopes, L.J. fully agreed with Lord Esher, M.R. and observed:
"I think the definition suggested by the Master of the Rolls in the case that has been
referred to is the right definition for this purpose. I think that a Judgment or order
would be final within the meaning of the rules, when, whichever way it went, it would
finally determine the rights of the parties."
According to the test laid down by Lord Esher and other Lords, the order of the Special Judge
impugned in the appeal is undoubtedly an interlocutory order and therefore falls within the mischief
cf s. 11 (1) of the Act Similarly, another test to determine whether or not an order is an interlocutory
order was evolved by Lord Alverstone C.J. in the case of Bozson v. Altrincham Urban District
Council who observed as follows "It seems to me that real test for determining this question ought to
be this: Does the judgment or order, as made, finally dispose of the rights of the parties ? If it does,
then I think it ought to be treated as a final order, but if it does not it is then, in my opinion, an
interlocutory order." Sir Jeune P. concurred with Lord Alverstone while Lord Halsbury preferred to
follow an earlier decision in the case of Shubrook v. Tufnell. In Shubrook v. Tufnell what happened
was that an action was filed by the lessee against lessor to recover damages caused to them by the
defendant's making a drain through the adjoining land. By an order in Chambers the action was
referred to the arbitrator who sent The case to the Court for its opinion. In that case the position was
that if the case was referred back to the arbitrator, the award had to be given by him, if not, then
judgment was to be entered for the defendant. The question was whether an appeal lay to the Court
of Appeal against the reference made by the arbitrator. In view of the peculiar circumstances of the
case, Jessel, M. R. with whom Lord Lindley concurred, 'held that appeal lay as the order seeking the
opinion of the court was not an interlocutory order. It is manifest that in this case the proceedings
would have terminated. In any event if the case was referred back to the arbitrator, then the
arbitrator would have to give his award and therefore the reference proceedings terminated. If,
however, the reference was not made to the arbitrator, then the judgment was to be entered for the

defendant. Thus, the order passed in this case undoubtedly could not be said to be an interlocutory
order even in the widest sense of the term. At any rate, the preponderance of the authorities of the
English Courts favour the view that an interlocutory order is one which finally disposes of the rights
of the parties as observed by Lord Alverstone in the case of Bozson v. Altrincham Urban District
Council, (supra) cited above. We might, however, state that although Lord Halsbury had e Xpressed
his dissent from Salaman v. Warner's case (supra) yet the Federal Court as also this Court appear to
have followed and accepted the view taken by Lord Esher, as discussed above. We shall deal with the
authorities of the Federal Court and this Court on this point a little later.
Again in the case of Isaacs & Sons v Salbstein & Anr. Lord Swinfen Eady followed the Bozson's case
and particularly the obser-
vations of Lord Alverstone in that case. In this connection Lord Eady observed as follows:
"Then there is Salaman v. Warner in which it was held that a final order was one
made on- such an application or proceeding that, for whichever side the decision
might be given, it would, if it stood, finally determine the matter in litigation. Neither
decision seems quite consistent with that in Bozson v, Altrincham Urban Council
which puts the matter on the true foundation that what must be looked at is the order
under appeal. In the present case the order is clearly an interlocutory order, and the
appeal is properly in the interlocutory list."
Similarly, Lord Pickford who agreed with Lord Swinfen distinguished. Shubrook's case (supra) and
eXplained the view of Lord Halsbury thus:
"In the present case the order appealed from does not put a final end to the action,
and this is an appeal from an interlocutory and not from a final, order."
Bankes L.J. concurred. In a later case Hunt v. Allied Bakeries Ltd., it was held that all order striking,
out the whole or part of a claim on the ground that it was frivolous and ve Xatious and staying further
proceeding was merely an interlocutory order. In this connection, Lord Evershed observed thus:
"After consulting with the Chief Registrar and looking at the cases, and also after
consultation with my colleagues, I am left in no doubt at all that, rightly or wrongly,
orders dismissing actions-either because they are frivolous and' ve Xatious, or on the
ground of disclosure of no reasonable cause of action- have for a very long time been
treated as interlocutory...............For these reasons (and this decision will now
necessarily govern other cases) I hold that orders under R.S.C., Ord. 25, r. 4, striking
out the whole or part of a claim on the ground that it discloses no reasonable cause of
action, or is frivolous and veXatious, or both, and staying all further proceedings,
must be treated as interlocutor"
Lord Birket and Lord Romer agreed with Lord Evershed. This is rather important because even
though the case was struck cut on the ground that the action was frivolous and proceedings were

stayed, the order was treated to be an interlocutory one although it had decided k an important
aspect of the case. In a recent decision in the ease of Salter Re X g Co. v. Ghosh, Lord Denning
reviewed the entire case law on the subject and ultimately preferred the view taken by Lord
Alverstone in Bozson's case (supra) and Lord Esher in Salaman's case. In other words, both the
Salaman's and the Bozson's cases were endorsed by Lord Denning. In this connection, Lord Denning
observed as follows :-
"There is a note in the Supreme Court Practice (1970) under R.S.C. Ord. 59, r. 4, from
which it appears that different tests have been stated from time to time aS to what is
final and what is interlocutory. In Standard Discount Co. v. La Grange [18771 3
C.P.D. 67 and Salaman v. Warner [1891] 1 Q.B. 734 Lord Esher M.R. said that the test
was the nature of the application to the court: and not the nature of the order which
the court eventually made. But in Bozson v. Altrincham Urban District Council
[1903] 1 KB 547 the court said that the test was the nature of the order as made. Lord
Alverstone C.J. said that ".. the test is whether the judgment or order as made finally
disposed of the rights of the parties." Lord Alverstone was right in logic but Lord
Esher was right in eXperience. Lord Esher's test has always been applied in practice."
.. .. ..
"So I would apply Lord Esher's test to an order refusing a new trial. I took to the
application for a new trial and not to the order made. If the application for a new trial
were granted, it would clearly be interlocutory. So, equally, when it is refused, it is
interlocutory."
This is the position so far as the English authorities are concerned. It may be noticed here that in all
the English cases, referred to above, the word 'interlocutory' appears to have been used in its natural
sense and giving the meaning attached to it in ordinary parlance. We now come to the authorities of
the Federal Court and this Court on the subject. In the case of Hori Ram Singh v. The Crown,
Sulaiman J. referred to Salaman's case (supra) and seems to have approved the test laid down by
Lord Esher which was quoted in eXtenso in the judgment. Similarly, a reference was also made to
Bozson's case (supra) and the Judge quoted the observations of Lord Alverstone which have already
been eXtracted above. After scrutinising these authorities, Sulaiman J. Observed aS follows:-
"If the effect of the order from which it is sought to appeal is not finally to dispose of
the rights of the parties, then even though it decides an important and even a vital
issue in the case, it leaves the suit alive and provides for its trial in the ordinary way.
As the "final order" may be either in a civil or criminal case the definition given by
their Lordships in the civil case must by analogy be applied to a criminal case as well
It is still to be finally decided by the Sessions Judge whether the accused was or was
not guilty of the offences with which he had been charged. The question of want of
consent, although vital for the purposes of the proceedings as it went to the root of
the matter so far as their continuance is concerned, is after all a preliminary question

as to whether the proceedings had been properly instituted or not. The criminal case
is still a live case, and the innocence or the guilt of the accused has not been finally
determined."
Thus, it was pointed out that the concomitant of a final order would he the same whether it is a civil
case or a criminal case and the definition given by the English Judges would apply to both. This case
was noticed in S. Kuppuswami Rao v. The King which, in our opinion, is a leading case on the
subject or, if we may say so, it is the locus classicus so far as the nature of an interlocutory order is
concerned. In this case, Kania C.J. speaking for the Court referred to the decision of Sulaiman J.
(supra) and also noticed the view of Lord Esher in Salaman v. Warner (supra) as also the view of
Lord Alverstone and observed as follows:
"The question then is what is the meaning of "judgment, decree or final order of a
High Court" in this section ? The e X pression "final order" has been judicially
interpreted and its meaning is now well settled."
After referring to a number of decisions the learned Chief Justice observed as follows:-
"The effect of those and other judgments is that an order is final if it finally disposes
of the rights of the parties. The orders now under appeal do not finally dispose of
those rights, but leave them to be determined by the Courts in the ordinary way."
These observations show that the Judicial Committee considered that the words used
in the above mentioned three English decisions gave the same meaning to the
eXpression "final order", and adopted the definition as given by Lord Ester N.E.. in
Calamines case. The Judicial Committee further held that when the effect of the order
was to leave the rights to be determined by the Court in the ordinary way, the order
was not a final order."
These observations clearly show that the Judicial Committee of the Privy Council accepted the view
eXpressed in the case of Salaaming v. Warner and Boston v. Altrincham Urban District Council
(supra). It is, therefore, pertinent to note that the view of Lord Halsbury does not appear to have
been accepted either by the Privy Council or by the Federal Court either in Hori Ram Singh (supra)
case or in the case cited above. Similarly, while e Xamining the language of s. 205 of the Government
of India Act, the Chief Justice observed as follows .-
"The words "final order" were used in s. 109 of the Civil Procedure Code. That section
prescribes conditions under which an appeal lies to the Judicial Committee of the
Privy Council from a decree or final order passed on appeal by a High Court. It was
noticed that the words "final order ' were used in contrast with interlocutory order,
The learned Judge took the view that in cases in which the decision of the Point in
dispute either way did not result in finally disposing of the matter before the Court,
the decision did not amount to a final order."

Reference had also been made by the Chief Justice to the judgment of the Privy Council in Abdul
Rahman v. D. K. Cassim & Sons where Sir George Lowndes stated that the test of finality was
whether the order finally disposed of the rights of the parties. To the same effect was a decision of
the Privy Council in Ramchand Manjimal's case where after e Xamining the decisions of the English
Court, it was held that the test of finality was whether the order finally disposes of the rights of the
parties and held that the order in question was not a final Order because the rights of the parties
were left to be determined by the courts in the ordinary way. After a consideration of all the
authorities the Chief Justice observed thus .
"These and other English decisions make it clear that in England when the word
judgment or decree is used, whether it is preliminary or final, it means the
declaration or final determination of the rights of the parties in the matter brought
before the Court. In criminal proceedings, an eXamination of the discussion in paras
260-64 of Vol. IX of Halsbury's Laws of England (Hailsham Edition) shows that the
word "judgement" is intended to indicate the final order in a trial terminating in the
conviction or acquittal of the accused In our opinion, the decisions of the Courts in
India show that the word "judgment", as in England, means the determination of the
rights of the parties in the matter brought before the Court."
Another important observation made by the Chief Justice which appears to be directly in point may
be eXtracted thus:
"In our opinion, the term "judgment" itself indicates a judicial decision given on the
merits of the dispute brought ' before the Court. In a criminal case it cannot cover a
preliminary or interlocutory order."
Thus, the Chief Justice clearly indicated that in a criminal case a final order cannot cover a
preliminary or interlocutory order. Ultimately, the Chief Justice concluded by the following
observations:
"The words judgment and final order in connection with civil appeals have received a
definite judicial interpretation. In connection with civil appeals to this Court
therefore that interpretation has to be accepted. If so, the same interpretation has to
be accepted in case of appeals from criminal proceeding brought to this Court under
s. 205(1) of the Constitution Act."
This case was followed in the case of Mohammad Amin Brothers Ltd. & Ors. v. Dominion of India &
Ors. where it was held that so far as this Court is concerned the principles laid down in
Kuppuswamis case (supra) settled the law. In this connection, in the aforesaid case, Mukherjea, J.,
speaking for the Court observed as follows:
"The eXpression "final order" has been used in contradistinction to what is known as
"interlocutory order" and the essential test to distinguish the one from the other has
been discussed and formulated in several cases decided by the Judicial Committee.

All the relevant authorities A BEARING on the question have been reviewed by this
Court in their recent pronouncement in S. Kuppuswami Rao v. The King, and the law
on point, so far as this court is concerned, seems to be well settled. In full agreement
with the decisions of the Judicial (committee in Ram Chand Manjimal v.
Goverdhandas Vishindas and Abdul Rahman v. D. K. Cassim and Sons, and the
authorities of the English Courts upon which These pronouncements were based, it
has been held by this court that the test for determining the finality of an order is,
whether the judgment or order finally disposed of the rights of the parties." C Thus,
the Federal Court in its decision seems to have accepted two principles, namely,-
(1) that a final order has to be. interpreted in contradistinction to an interlocutory

order: and (2) that the test for determining the finality of an order is whether the
judgment or order finally disposed of the rights of the parties.
These principles apply to civil as also to criminal cases as pointed out by Kania C.J. in
the case of S.
Kuppuswami Rao v. The King (supra?. We find ourselves in complete agreement with the view taken
by Mukherjea J. which is based on English cases as also the view taken by the Judicial Committee
and the Federal Court.
The view taken in Kuppuswami's case (supra) was endorsed by this Court in the case of Mohan Lal
Magarl Lal Thacker v. State of Gujarat where it was held that generally speaking a judgment order
which determines the principal matter in question is termed final. The English decisions as also the
Federal Court decisions were referred to in this case and after considering the decisions, this court
observed as follows :
"The meaning of the two words "final" and "interlocutory" has, therefore, to be
considered separately in relation to the particular purpose f-or which it is required.
However, generally speaking, a judgment or order which determines the principal
matter in question is termed final. An interlocutory order, though not conclusive of
the main dispute may be conclusive as to the subordinate matter with WHICH it
deals If the decision on an issue puts an end to the suit, the order is undoubtedly a
final one but if the suit is still left alive and has yet to be tried in the ordinary way, no
finality could attach to the order.. This test was adopted in S. Kuppuswami Rao v. The
King where the court also held that the words "judgment" and 'order' have the same
meaning whether the proceeding is a civil or a criminal proceeding. In Mohammad
Amin Brothers Ltd. v. Dominion of India the Federal Court following its earlier
decision adopted against the test, viz., whether the judgment or order finally disposed
of the rights of the parties."
There is yet another aspect of the matter which has to be concerned so far as this decision is
considered, to which we shall advert when we t deal] with the last plank of the argument of the
learned counsel for the appellant. Suffice it to say at the moment that the case referred to also fully

endorses the view taken by the Federal Court and the English decisions, viz., that an order is not a
final but all interlocutory one if it does not determine or decide the rights of parties once for all.
Thus, on a consideration of the authorities, mentioned above, the. following proposition emerge:-
(1) that an order which does not determine the rights of the parties but only one
aspect of the suit or the trial is an interlocutory order;
(2) that the concept of interlocutory order has to be e X plained. in contradistinction to

a final order. In other words, if an order is not a final order, it would be an
interlocutory order;
(3) that one of the tests generally accepted by the English Courts and the Federal
Court is to see if the order is decided in one way, it may terminate the proceedings
but if decided in another way, then the proceedings would continue; because, in our
opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used
in a much wider sense so as to include even intermediate or quasi final orders;
(4) that an order passed by the Special Court discharging the accused would
undoubtedly be a final order inasmuch as it finally decides the rights of the parties
and puts an end to the controversy and thereby terminates the entire proceedings
before the court so that nothing is left to be done by the court thereafter;
(5) that even if the Act does not permit an appeal against an interlocutory order the
accused is not left without any remedy because in suitable cases, the accused can
always move this Court in its jurisdiction under Art. 136 of the Constitution even
against an order framing charges against the accused. Thus, it cannot be said that by
not allowing an appeal against an order. framing charges, the Act. works serious
injustice to the accused.
Applying these tests to the order impugned we find that the order framing of the charges is purely
an interlocutory order as it does not terminate the proceedings but the trial goes on until it
culminates in acquittal or conviction. It is true! that if the Special Court would have refused to frame
charges and discharged the accused, the proceedings would have terminated but that is only one
side of the picture. The other side of the picture is that if the Special Court refused to discharge the
accused and framed charges against him, then the order would be interlocutory because the trial
would still be alive. Mr. Mridul tried to repel the argument of the Solicitor General and eXplained
the decisions, referred to above, on the ground that the English decisions as also the Federal Court's
decisions made the observations while interpreting the provisions of the Government of India Act or
the provisions of the Constitution where the word "final" order was e Xpressly used. It was urged that
the same construction would not apply to the present case where the word 'order' is not qualified -
by the word 'final'. With due respect to the learned counsel, in our opinion, the distinction sought to
be drawn is a distinction without and difference. This court as also the Federal Court have clearly
pointed out that so far as the tests to be applied to determine whether an order is final or
interlocutory, apply as much to a civil case as to a t criminal case. Furthermore, as already indicated,

it is impossible to spell out the concept of an interlocutory order unless it is understood in
contradistinction to or in contrast with a final order. This was held in a number of cases referred to,
including Made Limeades case (supra) which has been e Xpressly stressed by us in an earlier part of
the judgement. For these reasons, therefore, the contention of the learned counsel for the appellant
on this aspect of the matter fails and is hereby overruled.
The last argument advanced by the learned counsel for the appellant, which also appears to be very
attractive, is that accepting the theists referred to above and applying to the facts of the present case,
the order impugned should be construed as a final order inasmuch as the order completely
terminates the proceedings preceding the trial. In other words, it was contended that until the
charge is actually framed the trial does not start and all proceedings up to the framing of the charges
are in the nature of an inquiry or a sort of a pre- trial proceeding which finally culminates either in
the order of discharge or in the order framing of charges. Thus, in any event, an order framing
charges must necessarily be held to be a final order and not, an interlocutory one. In support of this
contention the learned counsel relied on a decision of a Full Bench of the Jammu & Kashmir High
Court in the case of State v. Ghani Bandar in which the leading judgment was delivered by one of us
(Fazal Ali J.). It is true that the Jammu & Kashmir High Court on a consideration of a large number
of authorities of the various High Courts in India, observed as follows:
"On a careful consideration, therefore, of the authorities and analysis of the various
provisions of the Code I am of the opinion that 'trial' in a warrant case commences
only when the charge is read to the accused and he is called upon to answer the
charge and until the proceedings have reached , this stage proviso
(a) to clause (1) of s. 350 does not come !. into play and the accused has no right to
ask the Court to resummon the witnesses. In the present case, it appears, the case is
yet at an inquiry stage, and therefore, the Magistrate was not right in acceding to the
prayers of the accused."
This decision, however, in our opinion, does not appear to be of 1. any assistance to the appellant for
the reasons that we shall give here after. In the first place, the decision was rendered not on the
provisions of the Code of 1973 but under the provisions of the Criminal Procedure Code of the
Jammu & Kashmir State which were quite different from the provisions of the Code of 1973 which
does not apply to that State. Secondly, it would appear that the Criminal Procedure Code of 1872
(Act X of 1872) eXpressly contained a definition of the word trial which was defined thus:
" "Trial" means the proceedings taken in Court after a charge has been drawn up, and
includes the punishment of the offender:
It includes the proceedings under chapters XVI and XVIII, from the time when the
accused appears in Court."
Thus, the word 'trial' clearly meant the proceedings after charges had been drawn up and included
even the punishment of the offender. Furthermore, the definition was wide enough even to include

proceeding right from the time when the accused appeared in Court to the culmination of the
proceedings. This definition is to be found in s. 4 of the Act X of 1872. The said Act defined 'inquiry'
thus:
" "Inquiry" includes any inquiry which may be conducted by a Magistrate or Court
under this Act."
Both the definition of the word 'trial' as also that of 'inquiry' underwent. a radical change in the Code
of 1898. The Code of 1898 completely dropped the definition of the word 'trial' and instead widened
the definition of the term 'inquiry'. Under s. 4(j) of the Code of 1898, 'inquiry' was defined thus:
""Inquiry"- "inquiry" includes every inquiry other than a trial conducted under this
Code by a Magistrate or Court."
Thus, the position was that under the Code of 1898, trial was not defined at all but all proceedings
eXcept the trial were held to be inquiry within the meaning of s. 4(j). So far as the Code of 1973 is
concerned, with which we are dealing, while the definition of inquiry is retained, trial has not been
defined at all. In the instant case, s. 9(1) of the Special Courts Act clearly provides that the Special
Court shall hl the trial of cases before it follow the procedure prescribed by the Court for trial of
warrant cases before a Magistrate. Let us e Xamine the position and the various aspects of the
procedure laid down for the trial of warrant cases under the Code as also under the Code of 1898, as
amended in 1955. So far as the decision of the J&K High Court, referred to above, is concerned it
was given under the Criminal Procedure Code of Jammu & Kashmir prior to the amendment of 1955
which, though passed by the State Legislature, was enforced sometime after 1964. Prior to the
amendment of 1955, under the Code of 1898, the procedure for trial of warrant cases by a Magistrate
was the same whether the case was instituted on a police report or otherwise than on a police report.
The procedure is found in the unamended ss. 251 to 254 onwards which may be eXtracted thus:
"251. Procedure in warrant cases-The following procedure shall be observed by

Magistrates in the trial of warrant cases.
252. Evidence for prosecution-(1) When the accused appears or is brought before a
Magistrate, such Magistrate shall proceed to hear the complainant (if any) and take
all such evidence as may be produced in support of the prosecution:
Provided that the Magistrate shall not be bound to hear 1 any person as complainant
in any case in which the complaint has been made by a Court.
(2) The Magistrate shall ascertain, from the complainant Gr otherwise, the names of
any persons likely to be acquainted with the facts of the case and to be able to give
evidence for the prosecution, and shall summon to give evidence before himself such
of them as he thinks necessary.

253. Discharge of accused-(1) If, upon taking all the evidence referred to in section
252 and making such e Xamination (if any) of the accused as the Magistrate thinks
necessary, he finds that no case against the accused has been made out which, if
unrebutted , would warrant his conviction, he Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging
the accused at any previous stage of the case if for reasons to be recorded by such
Magistrate. he considers the charge to be groundless.
254. Charge to be framed when offence appears proved -If, when such evidence and
eXamination have been taken and made, or at any previous stage of the case, the
Magistrate is opinion that there is ground for presuming that the accused has
committed an offence tribal under this Chapter. which such Magistrate is competent
to try, and which, in his opinion could be adequately punished by him he shall frame
in writing a charge against the accused."
It is therefore, clear that under the provisions e Xtracted above, There was no question of the trial
starting until the charges were framed because under s. 252 when the accused appeared or was
brought before the Magistrate, the Magistrate had to hear the complainant and take evidence as may
be produced by him. After summoning the witnesses under s. 252(2), the Magistrate had to take the
evidence and after eXamining the same he had to determine whether a case was made out by the
prosecution which, if unrebutted, would warrant the conviction of the accused. If the Magistrate was
of the opinion from the eXamination of the evidence taken at the earlier stage that the accused had
committed an offence triable under the said Chapter, then only charge was to be framed. By the
amendment of 1955, however, Th procedure of the trial of warrant cases was split up into two parts.
By the first part a different procedure was indicated, (which is contained in s. 251) in cases starting
on the basis of a complaint whereas under s. 251A a separate procedure was evolved for cases triable
on the basis of a police report. We are, however, not concerned with either s. 251 or 251A as
amended in 1955. So far as the decision of the J & K High Court is concerned, that was given on the
basis of the Code of 1898 before the amended of 1955 and was quite correct having regard to ss. 251,
252 and ''53 of the Code of 1898, prior to the amendment of 1955, because under that procedure
there could be no question of there being, any trial until the charge was framed, because the court
had to hear the complainant, record evidence even before the charge was framed. In these
circumstances, therefore, the decision of the Full Bench of the J & K High Court cannot be called
into aid in deciding the present issue. As regard the argument that the trial preceded an inquiry
which culminated in framing of the charges or discharge of an accused, we are of the opinion that
this argument is also without any substance. Under the Code, the commitment inquiry preceding
the trial has been completely abolished as indicated while referring to the objects and reasons of the
Code. Under the code the Magistrate is not to record any evidence or hold any inquiry but only to
find out as to whether a case put up before him is e Xclusively triable by a Sessions Court and once
this is so, he is to send the case to the Court for trial. Thus, there being no inquiry as was the case in
the Code of 1898, there is no room for acceptance of the argument of the counsel for the appellant
that an inquiry precedes the trial in such a case. This contention, therefore. appears to be without
substance. Realizing this difficulty, the learned counsel for the appellant, put forward an alternative

argument, viz., that s. 238 of the Code itself consists of two separate stages one starting from s. 238
and ending up to s. 240 and the other starting from s. 242 and ending up to s. 248. We are, however,
unable to agree with this argument because it appears that the enactment of s. 251A by virtue of the
amendment of 1955 the words 'commencement of trial' were introduced for the first time which
clearly denote that the trial starts in a warrant case right from the stage when the accused appears or
is brought before the court. This appears to up to be the main intent and purpose of introducing the
words 'commencement or trial' by the amendment Act of 1955 which did not appear in the Code of
1898 or in the various amendments made before the Act of 1955 to the Code. Thus, if the trial begins
at that stage, it cannot be said that the proceedings starting with s. 251A ONWARDS amount to an
inquiry within the meaning of s. 2(j) of the Code. Furthermore, it would appear that the amendment
of 1955 in fact simplified the entire procedure for trial of warrant cases by a Magistrate by not
requiring the Magistrate to record any evidence before framing of the charge or discharging the
accused. All that the Magistrate had to do was to satisfy himself that the documents referred to in s.
173 had been furnished to the accused and if that had not been done, to direct that the documents
should be furnished. Thereafter, the Magis-
trate on consideration of the documents referred to in s. 173 only without recording any evidence,
was to eXamine the accused if he considered necessary, and after hearing the parties proceed either
to frame the charge or to discharge the accused. In other words, the simplified procedure introduced
by the amendment of 1955, which is now retained by the Code in ss. 238 to 240, amounts to a trial
from beginning to end. The fact that no evidence is to be recorded before framing of the charge and
the Magistrate has to proceed only on the documents referred to under s. 173, i.e., the statement
recorded in the case diary, and other papers or materials collected by the police, clearly shows that
these proceedings are not an inquiry at all because the scheme of the Code generally appears to be
that whenever an inquiry is held, evidence or affidavits have to be recorded by the court before
passing an order. This, therefore, an additional reason to hold that the proceedings starting from s.
251A in the previous Code and s. 238 in the Code of 1973, do not amount to an INQUIRY at all but
amount to the starting of a trial straightaway. Contrasted with the procedure which prevailed under
the Code of 1898, prior to the amendment of 1955, there was e Xpress provision for recording of
evidence before the charge and that procedure undoubtedly amounted to an inquiry which has now
been dropped by the amendment of 1955 and retained by the Code. For these reasons, therefore, we
are satisfied that the proceedings starting with s. 238 of the Code including any discharge or framing
of charges under s. 239 or s. 240 amount to a trial. the question of a pre-trial, as suggested by the
counsel for the appellant, does not arise on a plain interpretation of the language of ss. 238 and 239
which were the-same as s. 251A under the Code of 1898 as amended by the Act of 1955.
Similarly, counsel for the appellant drew analogy from the pro visions OF s. 476 to illustrate that
the order in question was a final order. Section 476 appears in Chapter XXV of the Code of 1898
which is equivalent to Chapter XXVI of the Code. The Chapter relates to proceeding in a case of
offence affecting the administration of justice. The provisions contained in this Chapter amount to a
separate and independent proceeding which deals with specific offences affecting administration of
justice. The relevant portion of s. 476 runs thus:

"476. Procedure in cases mentioned in Section 195- (1) When any Civil, Revenue or
Criminal Court is, whether on application made to it in this behalf or otherwise, of
opinion that it is eXpedient in the interests of justice that an inquiry should be made
into any offence referred to in section 195, sub- section (1), clause (b) or clause (c),
which appears to have been committed in or in relation to a proceeding in that A
Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,
record a finding to that effect and make a complaint thereof in writing signed by the
presiding officer of the Court, and shall forward the same to a Magistrate of the first
class having jurisdiction, and may take Sufficient security for the appearance of the
accused before such B, Magistrate or if the alleged offence is non-bailable may, if it
thinks necessary so to do, send the accused in custody to such Magistrate, and may
bind over any person to appear and give evidence before such Magistrate."
Section 476A is another provision which empowers a superior court to file a complaint in respect of
the offences mentioned in s. 476 and s. 476B provides for appeals to the higher court concerned.
Thus, these three provisions provided a separate and self-contained procedure which starts with an
inquiry and terminate with an order of filing a complaint or refusing to do so. This Chapter is,
therefore, restricted only to offences mentioned in s. 195 (1)(b) and (c) of the Code. Thus, in view of
the independent nature of the procedure contained in these sections, it is manifest that any order
under s. 476 either filing a complaint or refusing to file a complaint becomes a final order in any
event as such an order completely terminates the proceedings and brings the matter to an end so far
as' the First Court is concerned. 'the same power is given to a superior court under s. 476A which
also ends with the filing or refusal to file a complaint. Section 476B provides for appeal as indicated
above. It is true that separate proceedings are taken when a complaint is filed but these proceedings
are fresh proceedings starting with the complaint and ending with the conviction or acquittal of the
accused. In other words, once the Court decides to file a complaint forming an opinion whether or
not it is eXpedient in the interest of justice to do so the procedure spends itself out. In these
CIRCUMSTANCES, therefore. the analogy drawn by the counsel for the appellant cannot apply to a
trial of warrant case under sections 238 onwards.
In this connection, RELIANCE was placed by the counsel for the appellant on the decision of this
Court in the case of Mohan Lal Thacker v. state of Gujarat (supra). In this case it appears that after
inquiry Under s. 476 the Magistrate ordered filing of a complaint against which an appeal was taken
to the Additional Sessions Judge who held that the complaint was justified. A revision was taken to
the High 1 Court which dismissed the revision. The High Court, however, gave a certificate under
Art. 134(1) (c) and that is how the appeal came before this Court. It was in the background of these
provisions that it was urged before this Court that the order passed by the High Court, not being
final, the certificate ought not to have been given. This Court, however, pointed out that an order
may be final for one purpose and interlocutory for another. The main question which arose in that
case was whether the High Court could entertain a revision application against that order. This
Court pointed out that as the appellant in that case filed a revision in respect of the complaint for the
remaining offence under s. 205 read with s. 114, the order of dismissal dispose of the controversy
between parties and the proceeding regarding the question as to whether the complaint in that
regard was justified or not was not finally decided and the Court held that the order passed by the

High Court in revision was a final order within the meaning of Art. 134(1) (c). This case is, therefore,
distinguishable and does not deal with the situation with which we are confronted in the present
case.
The learned counsel for the appellant then finally submitted that the present statute which gives a
right of appeal, should be liberally construed in favour of the accused so as not to deprive him of the
right of appeal. The counsel relied on the observations of Crawford 'The Construction of Statutes'
(pp. 692-693) which may be eXtracted thus :-
"S. 336. Appeals.
.....Moreover, statutes pertaining to the right of appeal should be given a liberal

contraction in favour of the right, since they are remedial. Accordingly, the right will
not be restricted or denied unless such a construction is unavoidable."
There can be no dispute regarding the correctness of the proposition mentioned in the statement
eXtracted above, but here as the right of appeal is e Xpressly eXcluded by providing that no appeal
shall lie against an interlocutory order, it is not possible for us to stretch the language of the section
to give a right of appeal when no such right has been conferred. Even the statement e Xtracted above
clearly says that "the right will not be restricted unless such a construction is unavoidable". In the
instant case in view of the non obstante clause, s. 11(1) of the Act cannot be construed to contain a
right of appeal even against an interlocutory order and, therefore, the present clause fl falls within
the last part of the statement of Crawford, e Xtracted above. Thus this argument of the learned
counsel also is wholly devoid of any substance.
For the reasons given above, therefore, all the contentions raised by the learned counsel for the
appellant fail.
On a true construction of s. 11(1) of the Act and taking into consideration the natural meaning of the
eXpression 'interlocutory order', there can be no doubt that the order framing charges against the
appellant under the Act was merely an interlocutory order which neither terminated the proceedings
nor finally decided the rights of the parties. According to the test laid down in Kuppuswami's case
(supra) the order impugned was undoubtedly an interlocutory order. Taking into consideration,
therefore, the natural meaning of interlocutory order and applying the non obstante clause, the
position is that the provisions of the Code of Criminal Procedure are e Xpressly eXcluded by the non
obstante clause and therefore s. 397(2) of the Code cannot be called into aid in order to hold that the
order impugned is not an interlocutory order. As the decisions of this Court in the cases of Madhu
Limaye'(supra) and Amarnath & Ors. v. State of Haryana & Ors. (supra) were given with respect to
the provisions of the Code, particularly s. 397(2), they were correctly decided and would have no
application to the interpretation of s. 11(1) of the Act, which e Xpressly eXcludes the provisions of the
Code of Criminal Procedure by virtue of the non obstante clause.
We feel that one reason why no appeal was provided against an interlocutory order like framing of
the charges, as construed by us so far as the Act is concerned, may have been that it would be

against the dignity and decorum of the very high status which the Special Judge under the Act
enjoys in trying the case against an accused in that the Judge is a sitting Judge of a High Court and
therefore must be presumed to frame the charges only after considering the various principles and
guidelines laid down by other High Courts and this Court in some of the cases referred to above.
Thus, summing up the entire position the inescapable conclusion that we reach is that giving the
eXpression 'interlocutory order' its natural meaning according to the tests laid down, as discussed
above, particularly in Kuppuswamy's (supra) case and applying the non obstante clause, we are
satisfied that so far as the eXpression 'interlocutory order' appearing in s. 11(1) of the Act is
concerned, it has been used in the natural sense and not in a special or a wider sense as used by the
Code in s. 397(2). The view taken by us appears to be in complete consonance with the avowed
object of the Act to provide for a most e Xpeditious trial and quick dispatch of the case tried by the
Special Court, which appears to be the paramount intention in passing the Act.
In these circumstances, therefore, we hold that the order passed by the Special Judge was an
interlocutory order and the appeal filed against that order in this Court is clearly not maintainable.
We, therefore, uphold the preliminary objection taken by the Solicitor General and dismiss the
appeal as being not maintainable.
SHINGHAL, J.-I am unable to agree with the decision of the Court, for I believe the accused has
been deprived of a right which is his by statute-the right of a full hearing of his appeal.
The case has come to this "larger Bench" on reference by two of us. While it has been stated at one
place that the "most important question to be decided is as to whether or not the concept or
connotation of the word 'interlocutory' in section 11 purports to convey the same meaning as given
to it in section 397(2) of the Code of Criminal Procedure", the two brother judges have made a
"further mention" as follows,-
". although we would have normally admitted this appeal but as the admission of
the appeal itself would imply a decision that the order under appeal is not an
interlocutory one which has to be decided before admitting this appeal, hence we
have considered it eXpedient to make a reference to a large Bench even at the stage of
preliminary hearing."
The question for consideration therefore is whether the impugned order of Judge, Special Court No.
1, New Delhi, dated September 17, 1979, directing the framing of a charge against appellant V. C.
Shukla for the commission of offences under section 120B of the Indian Penal Code read with ss.
5(1) (d) and 5(2) of the Prevention of Corruption Act and s. 5(2) read with s. 5(1)(d) of the
Prevention of Corruption Act is not an "interlocutory order" within the meaning of s. 11(1) of the
Special Courts Act, 1979, hereinafter referred to as the Act.
In order to appreciate the controversy, it will be proper to refer, briefly, to the relevant provisions of
the Act and to those provisions of the Code of Criminal Procedure, 1973, hereinafter referred to as
the Code, which bear on it.

Section 9 of the Act provides that a Special Court shall, in the trial of cases falling within its
jurisdiction, follow the procedure prescribed by the Code for the trial of warrant cases before a
magistrate. That procedure has been prescribed in Chapter XIX of the Code and, for convenience of
reference I shall take it that wherever reference has been made to magistrate in that chapter it
relates to the Judge of the Special Court.
It is not disputed before us that the procedure mentioned under the rubric "A.-Cases instituted on a
police report" has been followed by the Judge in making the impugned order. The procedure with
which he has been concerned so far, is that laid down in ss. 238 to 240 of the Code. Section 238
requires that the Judge shall satisfy himself about compliance with s. 207 of the Code for the supply
of the copy of the police report and other documents to the accused. Then come ss. 239 and 240
which are both important. Section 239 provides that if, upon considering the police report and the
documents sent with it under s. 173, and making such e Xamination, if any, of the accused as the
Judge thinks necessary, and after giving the prosecution and the accused an opportunity of being
heard, the Judge considers the charge against the accused to be groundless, he shall discharge him.
It is obligatory, in that eventuality, for the Judge, to record his reasons for so doing. The accused is
thus entitled to an order of discharge if the Judge, after complying with the procedure prescribed by
s. 239, reaches the conclusion that the charge against him is "groundless". The section is of great
importance to the accused for it gives him an opportunity of making a statement, if the Judge thinks
it necessary to give him that opportunity, and it also gives him the opportunity of being heard at that
early stage of the case, so that, in a proper case, he can look forward to an order of discharge at the
threshold of the trial and be spared any further proceeding. In fact s. 239 envisages a careful and
objective consideration of the question whether the charge against the accused is groundless or
whether there is ground for presuming that he has committed an offence. What s. 239 prescribes is
not, therefore, an empty or routine formality. It is a valuable provision to the advantage of the
accused, and its breach is not permissible under the law.
But if the Judge, upon considering the record, including the e Xamination, if any, and the hearing, is
of the opinion that there is "ground for presuming" that the accused has committed the offence
triable under the chapter, he is required by s. 240 to frame, in writing a charge against him. The
order for the framing of the charge is also not an empty or routine formality. It is of a far-reaching
nature, and it amounts to a decision that the accused is not entitled to discharge under s. 239, that
there is, on the other hand, ground for presuming that he has committed an offence triable under
Chapter XIX and that he should be called upon to plead guilty to it and be convicted and sentenced
on that plea, or face the trial. So an order for the fram-
ing of the charge is a serious matter for the accused for he is thereafter no longer a free man as he is
put to trial according to the procedure laid down in ss. 242 and 243, and consideration of the
question whether he is to be acquitted or convicted is deferred until the case reaches the stage
envisaged by s. 246.
Unlike s. 9 of the Act which provides for following the procedure prescribed by the Code for the trial
of cases referred to in s. 8, the Act does not provide that an appeal against the order of the Special
Court shall be heard and decided according to the procedure laid down in the Code. Section 11 of the

Act deals with appeals. Sub-section (3) of that section relates to the period of limitation for the filing
of the appeal and is of no relevance for purposes of the present controversy. The rest of the section
provides as follows,-
"11.(1) Notwithstanding anything in the Code, an appeal shall lie as of right from any
judgment, sentence or order, not being interlocutory order, of a Special Court to the
Supreme Court both on facts and on law.
(2) EXcept as aforesaid no appeal or revision shall lie to any court from any judgment,
sentence or order of a Special Court."
The section thus starts with a non obstante clause. I shall have occasion to refer to its meaning and
significance in a while, but it may be mentioned here that s. 11 or, for the matter of that, any other
section of the Act, does not say, in terms, that the Code shall apply to the hearing of an appeal, or in
regard to the powers of the appellate court. At any rate, the Code has no application in so far as the
right of appeal and the forum of appeal are concerned. Both these matters are governed by s. 11 of
the Act.
But even as it is, sub-s. (1) of s. 11 provides that while an appeal shall lie "as of right" from "any"
judgment, sentence or "order" of a Special Court, both on facts and on law, it states, at the same
time, that the appeal shall lie against that order which is not an interlocutory order. There is
therefore no right of appeal against an interlocutory order of the Special Court.
What then is an "interlocutory order" ? The e Xpression has not been defined in the Act, or in the
Code even though it has been used in s. 397(2), and has been the subject- matter of controversy both
in this country and elsewhere. How uncertain is its meaning, will appear from the following
observation of Lord Denning M. R. in Salter ReX & Co. v. Ghosh,-
"The question of "final" or "interlocutory" is so uncertain that the only thing for
practitioners to do is to lock up the practice books and see what has been decided on
the point. Most orders have now been the subject of decision. If a new case should
arise, we must do the best we can with it. There is no other way."
I confess I am unable to do better. I shall therefore proceed to see what has been decided by this
Court on the point.
I shall start with the decision in Mohan Lal Magan Lal Thacker v. State of Gujarat, which has been
rendered by five Judges of this Court and relates to a criminal case. There the Magistrate, after
enquiry under s. 476 of the Code of Criminal Procedure, 1898, ordered that the appellant may be
prosecuted for offences under ss. 205, 467 and 468 read with s. 114 I.P.C. On appeal, the Additional
Sessions Judge held that the complaint was justified, but only in respect of the offence under s.
205/114 I.P.C. The High Court dismissed the appellant's revision petition, but granted certificate
under art. 134(1)(c) of the Constitution. The State urged in this Court that the High Court's order
dismissing the revision petition was not final as it did not determine the complaint filed by the

Magistrate and did not decide the controversy whether the appellant had committed the offence.
The trial had in fact still to begin.
Article 134(1) (c) as it stood at that time provided that an appeal shall lie to this Court from, inter
alia, any "final order" in a proceeding of the High Court if it certified that the case was a fit one for
appeal. This Court referred to the decisions in S. Kuppuswami Rao v. The King, Mohammad Amin
Brothers Ltd. and others v. Dominion of India and others,, State of Orissa v. Madan Gopal Rungh
Ramesh and another v. Seth Gondalal Motilal Patni and others, and other cases. It made a reference
to Halsbury's Laws of England (3rd edition) volume 22, pages 742-743 and the four tests mentioned
therein, including the test in Salaman v. Warner and others and observed as follows,-
"The question as to whether a judgment or an order is final or not has been the
subject matter of a number of decisions; yet no single general test for finality has so
far been laid down. The reason probably is that a judgment or order may be final for
one purpose and interlocutory for another or final as to part and interlocutory as to
part. The meaning of the two words "final" and "interlocutory" has, therefore, to be
considered separately in relation to the particular purpose for which it is required."
It may be mentioned that in reaching that conclusion this Court clearly mentioned that the test
applied in Salaman's case as to whether the order made upon an application was such that a
decision in favour of either party would determine the main dispute, was not followed even by Lord
Halsbury in Bozson v. Altrigcham Urban District Council. It was pointed out in that case that there
was an earlier decision of the Court of Appeal in Shubrock v. Tufnell (supra) which was not cited in
Salama's case although it appeared to be in conflict with it. That was why Halsbury L.C. preferred to
follow the "earlier decision" and not the decision in Salama. This Court observed in Mohan Lal
Magan Lal's case (supra) that a so-called interlocutory order, "though not conclusive of the main
dispute may be conclusive as to the subordinate matter with which it deals." In fact when the matter
came up for consideration again in Salter ReX & Co. v. Ghosh Lord Denning M. R. referred to
Salaman's case (supra) and preferred to follow it only to the e Xtent that the test whether an order
was final or interlocutory was the "nature of the application to the Courts and not the nature of the
order which the Court eventually made".
The aforesaid view taken by this Court in Mohan Lal Magan Lal (supra) is therefore significant, for it
does not approve of the view taken in Salaman's case and lays down at least two clear propositions
of law; (i) an order may be final for one purpose and interlocutory for another, and
(ii) it may be final as to part and interlocutory as to part, and that the meaning of the two words has
to be determined in relation to the particular purpose for which it is required to be given. A I shall
show, both these propositions are significant in this case for while an order framing the charge
against the accused does not conclude his trial, it is "final" in the sense that his right to an order of
discharge is refused to him once for all and he is put on trial.
The above observations in Mohan Lal Magan Lal have been followed by this Court in Parmeshwari
Devi v. State and another (supra) to which one of us was a party. There, during the course of the trial

of a criminal case, the complainant made an application under s. 94 of the Code of Criminal
Procedure, 1898, praying that Smt. Parmeshwari Devi, who was not a party to the case, may be
directed to produce a document. The Magistrate made an order summoning her with the document.
Smt. Parmeshwari Devi professed ignorance of the document, and stated that as she was a
"pardanishin" lady she may not be summoned by the Court. The Magistrate thereupon passed an
order directing her to attend the court so that if she made a statement on oath that she was not in
possession of the document, the court may get a chance to put her a few questions for satisfying
itself regarding the whereabouts of the document. Smt. Parmeshwari Devi applied for revision of
that order to the Sessions Court and the High Court, but to no avail. When she obtained special
leave for appeal to this Court, it was argued that the Magistrate's order was interlocutory and the
power of revision conferred by s. 397(1) of the Code could not be e Xercised in relation to it by virtue
of sub-s. (2). It was held that an order "may be conclusive with reference to the stage at which it is
made" and that such an order could not be said to be an interlocutory order so as to bar a revision
petition under s. 397(2). The stage at which the order under challenge is made, is therefore
significant for deciding its true nature.
The neXt case which bears on the controversy is State of Karnataka v. L. Muniswamy and others to
which also one of us was a party. It was alleged in that case that accused Nos. 1 and 8 to 20
conspired to commit the murder of the complainant, and that in pursuance of that conspiracy
accused Nos. 1, 8 and 10 hired accused No. 2 to e Xecute the object of the conspiracy. Accused No. 2
in turn engaged the services of accused Nos. 3 to 7, and eventually accused Nos. 1 and 6 were alleged
to have assaulted the complainant with knives thereby committing offences under ss. 324, 326 and
307 read with s. 34 I.P.C. etc. The Magistrate directed all the 20 accused to take their trial before the
Sessions Court for offences under ss. 324, 326 and 307 read with s. 34. The Sessions Judge
discharged accused Nos. 11, 12 and 16, and observed that there was some material to hold that the
remaining accused had something to do with the incident. He adjourned the case to September 1,
1975, for framing specific charges against them. Two revision petitions were filed by the accused,
one by accused Nos. 10, 13, 14 and 15 and the other by accused Nos. 17 to 20. They were allowed by
the High Court on the view that there was no sufficient ground for proceeding against them, and the
proceedings for the framing of the charge were quashed. The matter then came to this Court in
appeal. After considering s. 227 of the Code, which is substantially similar to s. 239 of the Code, this
Court upheld the revisional order of the High Court, although the controversy here referred to the
scope of s. 482 of the Code, and it was observed that "the ends of justice are higher than the ends of
mere law though justice has got to be administered according to laws made by the legislature".
Then comes Amar Nath and others v. State of Haryana and others to which one of us was a party. It
was a case of alleged murder, where an F.I.R. was lodged by the complainant. The Police sent a final
report, and the Magistrate set all the accused at liberty. The complainant filed a revision petition
against that order, but it was dismissed by the Additional Sessions Judge. He then filed a regular
complaint before the Magistrate against all the accused, but is was also dismissed. The complainant
again went in revision to the Sessions Judge and he remanded the case to the Magistrate for "further
enquiry." The Magistrate accordingly issued summons to the accused, who moved the High Court
under ss. 397 and 482 of the Code for quashing the order of the Magistrate. The High Court
dismissed the petition on the ground that as the order of the Magistrate was interlocutory, a revision

to it was barred by sub-s. (2) of s. 397 and that consequently the case could not be taken up under s.
482.
The matter came to this Court. It proceeded to e Xamine the question whether the impugned order
was interlocutory so as to justify the view that it was barred under sub-s. (2) of s. 397 and held as
follows,-
"It seems to us that the term "interlocutory order" in s. 397(2) of the 1973 Code has
been used in a restricted sense and not in any broad or artistic sense. It merely de-
notes orders of a purely interim or temporary nature which do not decide or touch
the important rights or the liabilities of the parties. Any order which substantially
affects the rights of the accused, or decides certain rights of the parties cannot be said
to be an interlocutory order so as to bar a revision to the High Court against that
order, because that would be against the very object which formed the basis for
insertion of this particular provision in s. 397 of the 1973 Code. Thus, for instance,
orders summoning witnesses, adjourning cases, passing orders for bail, calling for
reports and such other steps in aid of the pending proceeding, may no doubt amount
to interlocutory orders against which no revision would lie under s. 397(2) of the 1973
Code. But orders which are matters of moment and which affect or adjudicate the
rights of the accused or a particular aspect of the trial cannot be said to be
interlocutory order so as to be outside the purview of the revisional jurisdiction of the
High Court."
It has to be appreciated that the order of the Sessions Judge on the revision petition of the
complainant for "further enquiry", left no option to the Magistrate but to summon the accused and
proceed with their trial after framing a charge against them, but it was nevertheless held by this
Court as follows,-
"It is difficult to hold that the impugned order summoning the appellants
straightaway was merely an interlocutory order which could not be revised by the
High Court under sub-ss. (1) and (2) of section 397 of 1973 Code We are,
therefore, satisfied that the order impugned was one which was a matter of moment
and which did involve a decision regarding the rights of the appellants."
The contrary order of the High Court refusing to entertain the revision petition on its interpretation
of sub-s. (2) of s. 397 was set aside and it was asked to decide it on the merits. This view was taken
even though it was appreciated that s. 397(2) had been incorporated in the Code "with the avowed
purpose of cutting out delays."
This Court has therefore taken the view in Amar Nath's case (supra) that the e X pression
"interlocutory order" has been used in s. 397(2) of the Code in a restricted sense, that it "denotes"
orders of a purely interim or temporary nature which do not decide or touch the important rights or
liabilities of the parties and that any order which substantially affects the rights of the accused is not

an interlocutory order. On that reasoning, an order for the framing of a charge against the accused
in this case cannot be said to be an interlocutory order.
The matter again came up for consideration in Madhu Limaye v. The State of Maharashtra where
one of us was a member of the Bench which heard the case, and one of the other two Judges was a
party to the decision in Amar Nath's case. The case arose on a complaint by the Public Prosecutor in
the Court of Session, after obtaining sanction under s. 199(4) of the Code, as the alleged offence was
under s. 500 I.P.C. for defaming a Minister. Process was issued against the accused. After the Chief
Secretary had been eXamined to prove the sanction of the State Government, the accused filed an
application for the dismissal of the complaint on the ground that the allegations were made in
relation to what the Minister had done in his personal capacity and not as a Minister. The accused
made two other contentions and challenged the legality and validity of the trial. The Sessions Judge
rejected all the contentions and framed a charge under s. 500 I.P.C. The accused challenged that
order by a revision petition to the High Court. A preliminary objection was raised there to the
maintainability of the revision petition with reference to the bar under sub-s. (2) of s. 397 of the
Code. The High Court upheld the objection, and the matter came in appeal to this Court at the
instance of the accused. The question for consideration was whether the order of the Sessions Judge
framing the charge under s. 500 I.P.C. was interlocutory.
Untwalia J., who spoke for the Court, referred to the two points which arose for consideration in
Amar Nath's case, to which reference has already been made, and reaffirmed the decision on the
second point that the impugned order of the Magistrate in that case was not an interlocutory order.
He however thought it advisable to "enunciate and reiterate the view taken by the two learned
judges of this Court in Amar Nath's case (supra) but in a somewhat modified and modulated form".
Their Lordships considered S. Kuppuswami Rao and Salaman's cases (supra) and e Xamined the
question whether the test that if the decision whichever way it was given, would, if it stood, finally
disposed of the matter in dispute, was a proper test for deciding whether an order was interlocutory,
and disapproved it. They went on to hold as follows,-
"But in our judgment such an interpretation and the universal application of the
principle that what is not a final order must be an interlocutory order is neither
warranted nor justified. If it were so it will render almost nugatory the revisional
power of the Sessions Court or the High Court conferred on it by section 397(1). On
such a strict interpretation only those orders would be revisable which are orders
passed on the final determination of the action but are not appealable under Chapter
XXIX of the Code. This does not seem to be the intention of the Legislature when it
retained the revisional power of the High Court in terms identical to the one in the
1898 Code."
After referring to the rule of interpretation of statutes, their Lordships further stated that,-
"On the one hand, the Legislature kept intact the revisional power of the High Court
and, on the other, it put a bar on the e X ercise of that power in relation to any

interlocutory order. In such a situation it appears to us that the real intention of the
legislature was not to equate the e Xpression "interlocutory order" as invariably being
converse of the words "final order". There may be an order passed during the course
of a proceeding which may not be final in the sense noticed in Kuppuswami's case
(supra), but, yet it may not be an interlocutory order- pure or simple. Some kinds of
order may fall in between the two. By a rule of harmonious construction, we think
that the bar in sub-section (2) of section 397 is not meant to be attracted to such
kinds of interlocutory orders. They may not be final orders for the purposes of Article
134 of the Constitution, yet it would not be correct to characterise them as merely
interlocutory orders within the meaning of section 397(2). It is neither advisable, nor
possible, to make a catalogue of orders to demonstrate which kinds of orders would
be merely, purely or simply interlocutory and which kinds of orders would be final
and then to prepare an eXhaustive list of those types of orders which will fall in
between the two. The first two kinds are well- known and can be culled out from
many decided cases. We may, however, indicate that the type of order with which we
are concerned in this case, even though it may not be final in one sense, is surely not
interlocutory so as to attract the bar of sub-section (2) of section
397. In our opinion it must be taken to be an order of the type falling in the middle
course."
Their Lordships made a reference to Mohan Lal Magan Lal and added that even though the case
under their consideration might not be said to be squarely covered by that decision, "yet for reasons
already alluded to, we feel no difficulty in coming to the conclusion, after due consideration, that an
order rejecting the plea of the accused on a point which when accepted (emphasis provided), will
conclude the particular proceeding, will surely be not an interlocutory order within the meaning of
section 397(2)". They also pointed out an "obvious, almost insurmountable, difficulty in the way of
applying literally the test laid down in Kuppuswami Rao's case, and in holding that an order of the
kind under consideration being not a final order must necessarily be an interlocutory one".
This decision is directly in point in the present case, and I have no hesitation in following it, for
otherwise the revisional power of the Court concerned under sub-s. (1) of s. 397 of he Code will be
rendered nugatory on the mere plea that an order framing or directing the framing of a charge
against the accused is an interlocutory order and is beyond the reach of that sub-section by virtue of
sub-s. (2). The nature of that order cannot be determined merely with reference to the eventuality
that the accused may ultimately be acquitted on the completion of the trial. There is in fact no
reason why s. 397 of the Code should be so narrowly construed and why the real nature of the order
framing the charge should be taken to be a merely interlocutory order, beyond the reach of the
revisional power allowed to the court concerned under s. 397 when it cannot be denied that if the
contention of the accused against the order framing the charge against him were allowed, that
would, by itself, have concluded the proceeding against him. It is hardly necessary to say that the
object of sub-s. (1) of s. 397 of the Code is to provide relief to the aggrieved party where it is
deserved, if only the order complained of is not of an interlocutory nature. As it happens, s. 11 of the
Act is in that respect, quite similar in purpose and content to s. 397 of the Code and there is no

reason why the same meaning and effect should not be given to it.
I have made a reference to the decisions in S. Kuppuswami Rao (supra) and Mohammad Amin
Brothers Ltd. (supra), on which considerable reliance has been placed by learned Solicitor General,
while dealing with this Court's decisions mentioned above, and it will be sufficient to say that they
have been adequately dealt with in those cases. They both relate to the right of appeal under s.
205(1) of the Government of India Act, 1935 from, inter alia, any "final order". In S. Kuppuswami
Rao (supra) there were two preliminary objections, one on the ground that consent of the
Government was necessary under s. 270(1) but was not obtained, and the other on the ground that
the proceedings were against s. 197 Code of Criminal Procedure read with s. 271 of the Constitution
Act. It appears that reliance was placed by their Lordships on Salaman's case, to which also I have
made a reference; and in arriving at the decision in Mohammad Amin Brothers Ltd. case, reliance
was placed on S. Kuppuswami Rao's. case for taking the view that the law on the point, so far as the
Federal Court was concerned, seemed to have been "well- settled". These two decisions cannot
therefore avail the learned Solicitor General.
So on looking up and seeing what has been decided on the question of "final" or "interlocutory"
order, I have no doubt that the impugned order is not an interlocutory order and is clearly
appealable under s. 11 of the Act.
But even if it were a "new case", the answer, as I shall presently show, will not be different.
Sub-section (1) of s. 11 of the Act, it will be recalled, e Xpressly states that an appeal shall lie "as of
right" from "any" judgment, sentence or "order", not being an interlocutory order, to this Court both
on "facts" and on "law". The words to which emphasis has been supplied are significant, or are, at
any rate, not without significance. They provide that if "any" "order" of the Special Court is not of an
interlocutory nature, it is the "right" of the aggrieved party to prefer an appeal against it to this
Court. Sub-section (2) provides that eXcept as mentioned in sub-s. (1), no appeal or revision shall lie
to any court from any judgment, sentence or order of a Special Court. The significance of these
provisions can be better appreciated with reference to provisions like those contained in ss. 372 to
379 of the Code which place some restrictions on the right of appeal from a judgment or order of a
criminal court. These restrictions are not there in the case of an appeal under s. 11 of the Act. The
section no doubt prohibits an appeal from an interlocutory order, but a corresponding restriction in
that respect is to be found in sub-s. (2) of s. 397 of the Code which deals with the revisional power of
the High Court or the Court of Session, so that, in sum, the provision in s. 11 is clearly more liberal
than the provisions in the Code.
It has to be appreciated that an appeal, in substance, is in the nature of a judicial e Xamination of a

decision by a higher court of a decision of an inferior court. The purpose is to rectify any possible
error in the order under appeal. In that sense the revisional jurisdiction is regarded as a part and
parcel of the appellate jurisdiction:
Krishnaji Dattatraya Bapat v. Krishnaji Dattatraya Bapat. Moreover, it is well settled that statutes
pertaining to a right of appeal should be liberally construed. The position has been stated as follows

in Crawford on the Construction of Statutes, paragraph 336, with particular reference to
interlocutory orders,-
"Moreover, statutes pertaining to the right of appeal should be given a liberal

construction in favour of the right, since they are remedial. Accordingly, the right will
not be restricted or denied unless such a construction is unavoidable. In a few
statutes, however, where the statute pertains to appeals from interlocutory orders,
the rule of strict construction has been applied. But, there seems to be no real
justification for this departure from the general rule in accord with which a liberal
construction would be given by the court."
Any doubt regarding the right of appeal should therefore be resolved in favour of the right.
There is another reason for this view. Section 11 of the Act gives a right of appeal against "any" order
of a Special Court, and not merely from its "final" order. The significance of such a dispensation
came up for consideration in this Court in The Bharat Bank Ltd., Delhi v. Employees of the Bharat
Bank Ltd., Delhi and it was observed by Fazal Ali J., after comparing the language of art. 136 of the
Constitution, which, inter alia, provides for special leave to appeal to this Court from "any" order in
any cause or matter passed or made by any court or tribunal, with the provision in arts. 132, 133 and
134 which provide for appeal from a "final order", that the use of the words "any order" along with
the other difference of language had "greatly widened" the scope of art. 136 in regard to the appeal
thereunder. It has also to be appreciated that s. 11 of the Act not only grants that remedy in the case,
inter alia, of "any order", but allows it as a matter of right, whereas the remedy under art. 136 is, in
terms, discretionary. Further, s. 11 takes care to state categorically that the appeal thereunder shall
relate both to the facts and the law. It is therefore a liberal and beneficial provision in favour of the
aggrieved party and eXcels the remedy under s. 397 of the Code.
Section 11 of the Act starts with a non obstante clause, and it is necessary to eXamine its meaning
and significance also for decid-
ing whether it really enlarges or circumscribes the right of appeal granted by it.
Both Mr. Mridul and Mr. Sorabji agree, and I think rightly, that the correct way to interpret a
provision of law with a non obstante clause has been stated by Patanjali Sastri C.J., in Aswini Kumar
and another v. Arabinda Bose and another as follows,-
enactment."
It has therefore to be ascertained what the enacting part of s. 11 provides. There can be no doubt
that it provides that an appeal shall lie as of right from any judgment, sentence or order, not being

an interlocutory order, of a Special Court. As this would not have been permissible, in respect of
certain judgments, sentences and orders of a Criminal Court under the Code, e.g. in cases falling
under ss. 375 and 376, the non obstante clause operates to rid the aggrieved party of any such
limitation or disability and gives him an unfettered right of appeal so long as the judgment, sentence
or order is not of an interlocutory nature.
It has to be remembered that s. 372 of the Code categorically states that no appeal shall lie from any
judgment or order of a Criminal Court eXcept as provided by the Code or any other law for the time
being in force. So in respect of such judgments and orders from which the Code does not provide a
right of appeal, s. 397 provides for a revision of the incorrect order. But a reading of the section
shows that the revisional power cannot be invoked by the aggrieved party as of right, and all that it
does is to empower the High Court or any Sessions Judge to call for and e Xamine the record of any
proceeding before any inferior criminal court for the purpose of satisfying itself or himself as to the
correctness, legality or propriety of any finding, sentence or order, and as to the regularity of any
proceeding of such inferior court. The revisional power is therefore discretionary and is, at any rate,
not available to the aggrieved party as of right. Moreover the remedy by way of a revision petition
has been hedged round with certain limitations and restrictions, whereas s. 11 ensures a right of
appeal "both on facts and on law". In fact what s. 11 of the Act does is to do away with the power of
revision under the Code [sub-s. (2)], and to substitute for it an unlimited right of appeal against any
judgment, sentence or order of the Special Court so long as the impugned order is not of an
interlocutory nature. The aggrieved party has, thereby, really lost nothing to which it would have
been entitled under the Code, for sub-s. (2) of s. 397 also specifically states that the power of
revision conferred by sub-s. (1) shall not be e Xercised in relation to an interlocutory order. So the net
effect of the non obstante clause in s. 11 is to widen the remedy available under the Code. On the
view taken by this Court in South India Corporation (P) Ltd. v. The Secretary, Board of Revenue,
Trivandrum and another, the phrase "notwithstanding anything in the Code" is equivalent to saying
that inspite of the provisions of the Code, s. 11 shall prevail, in so far as the right of the aggrieved
party to obtain redress of its grievance against any judgment, sentence or order (not being an
interlocutory order) is concerned.
Sub-section (2) of s. 11 of the Act does not provide anything which may detract from the view I have
eXpressed, for all that it says is that eXcept as mentioned in sub-s. (1), no appeal or revision shall lie
to any court from any judgment, sentence or order of a Special Court. As has been stated, s. 372 of
the Code is equally emphatic that no appeal shall lie from any judgment or order of a criminal court
eXcept as provided by the Code or by any other law for the time being in force; and it will be recalled
that the eXercise of the revisional jurisdiction under s. 397 of the Code is entirely in the discretion of
the superior courts mentioned in that section, with the further prohibition in sub-s. (2) thereof that
the powers of revision shall not be e Xercised in relation to an interlocutory order. So while under the
Code two correctional remedies are open to the aggrieved party-one by way of an appeal and the
other by way of a petition for revision which however is a remedy within the discretion of the High
Court or the Sessions Judge- section 11 of the Act makes any and every judgment, sentence or order
appealable so long as the order is not of an interlocutory nature. In respect of an interlocutory order,
however, no remedy by way of appeal or revision is permissible under the Code, and the position in
that respect is not worse under s. 11 of the Act. The right of appeal under s. 11 is therefore wider

than the appellate and revisional remedies provided by the Code.
What then has happened in this case ? The Central Government has made a declaration under s. 5(1)
of the Act that the offence alleged to have been committed by the accused ought to be dealt with
under the Act. It has designated, under s. 6, Special Court No. 1, New Delhi, to be the court where
the prosecution for the offence shall be instituted, and it is not disputed that that court has acquired
the jurisdiction to try the accused for the offence in respect of which the declaration has been made.
That court, as has been stated, is required to try the case by following the procedure prescribed by
the Code for the trial of a warrant case before a magistrate. The accused appeared before the Judge
of the Special Court, and it has not been disputed before us that the Judge followed the procedure
laid down for cases instituted on a police report. He accordingly satisfied himself, as required by s.
238 of the Code, that he had complied with the provisions of s. 207 which require the supply to the
accused of a copy of the police report and the other documents i.e., the first information report,
statements recorded under s. 161(3) of all persons whom the prosecution proposes to e Xamine as its
witnesses, the confessions and statements (if any) recorded under s. 164 and any other document or
relevant eXtract thereof forwarded with the police report under s. 173(5). All the relevant record was
thus available to the Court as well as the accused, and under s. 239 of the Act it was the duty of the
Judge to consider it. He had also to consider whether, looking to the nature of the case and the
aforesaid evidence, it was necessary for him to e Xamine the accused. We are told that the Judge did
not consider it necessary to eXamine the accused. He therefore heard the prosecution and the
accused as required by s. 239, and we take it that, in view of the contents of the impugned order, he
did not consider the charge against the accused to be "groundless" and there was no occasion for
him to record the reasons for his discharge. On the other hand, he formed the opinion that there was
ground for presuming that the accused had committed an offence triable as a warrant-case, and he
ordered the framing of a charge or charges against him in writing. It is hardly necessary to say that
all this had to be done objectively, and the Judge must have done so. He thus reached the conclusion
that the charge against the accused was not groundless, that he was therefore not entitled to an
order of discharge, that, on the other hand, there was ground for presuming that he had committed
the offence or offences triable by him, that he should frame in writing a charge against him for that
offence, that he should read out and eXplain the charge to the accused, that he should ask him
whether he pleads guilty to the offence or claims to be tried, that he should record the plea and
convict the accused if he pleads guilty or fi X a date for the eXamination of witnesses and proceed to
try him according to the other procedure provided by the Code. The decision which the Judge took
in making the impugned order thus clearly dealt with at least one important stage and aspect of the
case against the accused finally, and once for all. That order clearly put him to a full course of trial,
and there is no reason why it should not be treated as "any order" against which he is entitled to
appeal under s. 11 of the Act and why it should be considered to be a merely interlocutory order. It
cannot be gainsaid that the position of an accused against whom an order has been made for the
framing of a charge for the commission of serious offences like those referred to in the impugned
order, is far worse than that of a person against whom no such order has been made and who is
looking forward to an order of discharge, for, in so far as he is concerned, his argument that the
charge against him is groundless has not been rejected and he has the e Xpectation that he will not be
put on trial at all.

Reference in this connection may be made to Century Spinning and Manufacturing Co. Ltd. v. State
of Maharashtra where it has been held by this Court that an order framing a charge against the
accused "does substantially affect the person's liberty". The gravity of the charge and the
responsibility of the court in that respect have been stated as follows in that case,-
"The argument that the Court at the stage of framing the charge has not to apply its
judicial mind for considering whether or not there is a ground for presuming the
commission of the offence by the accused is not supportable either on the plain
language of the section or on its judicial interpretation or on any other recognised
principle of law. The order framing the charge does substantially affect the person's
liberty and it is not possible to countenance the view that the Court must
automatically frame the charge merely because the prosecuting authorities, by relying
on the documents referred to in Section 173, consider it proper to institute the case.
The responsibility of framing the charges is that of the Court and it has to judicially
consider the question of doing so."
Reference may also be made to this Court's decision in Munniswamy to which, as has been stated,
one of us was a party.
There Chandrachud J., as he than was, while speaking for the Court, followed the view e Xpressed in
Century Spinning and Manufacturing Company (supra) and reiterated the importance of an order
framing a charge with reference to the liberty of the accused as follows,-
"As observed in the latter case, the order framing a charge affects a person's liberty
substantially and therefore it is the duty of the court to consider judicially whether
the material warrants the framing of the charge."
It is therefore the view of this Court and, if I may say so, rightly that an order framing a charge is of
great importance to the accused for it substantially affects his liberty. I am in fact unable to think
that it is merely an interlocutory order and is not open to correction by appeal under s. 11 of the Act.
It has to be appreciated that it is permissible for the accused not to plead guilty to the charge and
claim that he should be tried for it. And if he does so, he has to undergo the full procedure for the
trial and there is no reason why he should not be heard to say, in his appeal under s. 11 of the Act,
that the charge against him is wholly groundless and he is entitled to an order of discharge
straightaway.
An attempt was made to argue that the impugned order should be held to be interlocutory because it
was no less an authority than the Central Government which made the declaration referred to in s.
5(1) of the Act on framing the opinion that there was prima facie evidence of the commission of the
offence by the accused, and the impugned order was made by no less a Court than the Special Court.
The argument does not deserve any serious consideration for as is well known, there are many
decisions in which no such importance has been attached to sanctions given by the Central
Government under s. 197 Cr. P. C. for the prosecution of public servants, and, as is equally well
known, this Court quite often interferes with discretionary orders of High Courts even in matters

like grant or refusal of bail or temporary injunction etc. To say that an appeal against an order
directing the framing of a charge against the accused should be refused on the ground that such an
order is interlocutory, is to misunderstand the meaning of an interlocutory order. After all, the
question whether an order is "final" or "interlocutory" has not to be determined merely from the
character of the proceedings in which it is entered, but from the character of the relief granted or
refused. For instance, if i na given case a serious point of law relating to the bar of limitation, or the
jurisdiction of the court, or a material irregularity in the procedure adopted by it, and/or the
framing of a wholly untenable charge, is raised but is rejected by an order of the court dealing with
the case, it does not require much argument to hold that it will certainly not be permissible to
contend that such an order is interlocutory merely because its decision against the accused has not
concluded the case. It will not therefore be permissible to contend that such an order is not revisable
under the Code, or appealable under s. 11 of the Act, as the case may be. The dictionary meaning of
"interlocutory" cannot be conclusive of the true nature of an order for, after all, you cannot make a
fortress out of a dictionary.
An argument has however been made that we should hold the impugned order to be interlocutory,
for otherwise the trial of such cases will be held up and will be delayed by the appeals which the
accused may file under s. 11 of the Act as a part of their dilatory tactics, and the very purpose of
passing the Act will be defeated. That this was not the view of those who introduced the Bill, will
appear from the fact that it contained a clause providing for a right of appeal, inter alia, against all
orders, not eXcluding the interlocutory orders. That in fact continued to be the position even when
the Bill was passed by the Lok Sabha. It was not therefore the view, until after that late stage of the
Bill, that providing for the right of appeal against every order (not e Xcluding an interlocutory order)
would defeat the purpose of the statute to determine the trial of such cases with the utmost dispatch.
After all the anxiety for the "speedy termination" of such prosecutions, or determination of the trial
of such offences with "utmost dispatch," cannot be allowed to interfere with the right to a fair trial,
for that is of the very essence of the fundamental right of protection of personal liberty guaranteed
by art. 21 of the Constitution, and it has been noticed in the ninth paragraph of the preamble of the
Act. It is not permissible to whittle it down on the preteXt of mere eXpedition, which, in its true
sense and meaning, should not be equated to a hurried trial, at the cost of the personal liberty
of the citizen and in derogation to his right under the very special Act under which he is put to trial
as an accused out of the ordinary.
I have no hesitation therefore in holding that the impugned order is not "interlocutory" and the
accused is entitled of right to prefer the present appeal.
DESAI, J.-While I concur in the final order proposed by Fazal Ali J. this separate opinion has
become a compelling necessity to focus attention on the central issue avoiding the unnecessary side
issues.
A preliminary objection was raised on behalf of the respondent urging that in view of the provision
contained in section 11 (1) of the Special Courts Act, 1979 (Act for short), the present appeal which is
directed against an order framing charge by the Judge presiding over Special Court No. 1 set up
under the Act, the order being an interlocutory order, is incompetent. The question that needs to be

answered is: whether framing of charge in a trial conducted according to the procedure prescribed
for trial of warrant case filed on a police report is an interlocutory order within the meaning of Sec.
11 (1) of the Act. If it is an interlocutory order, it cannot be gainsaid that the present appeal would be
incompetent.
Section 11 may be eXtracted:
11. (1) Notwithstanding anything in the Code, an appeal shall lie as of right from any judgment,
sentence or order not being interlocutory order, of a Special Court to the Supreme Court both on
facts and on law.
(2) EXcept as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or
order of a Special Court.
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of
any judgment, sentence or order of a Special Court:
Provided that the Supreme Court may entertain any appeal after the e Xpiry of the said period of
thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within
the period of thirty days.
Section 11(1) starts with a non-obstante clause. In order to arrive at the true import, the content-the
width and breadth of appellate jurisdiction, it would be advantageous to e Xclude the non-obstante
clause and ascertain what has been provided for by the substantive provision contained in Section
11(1). Obliterating the non- obstante clause and shorn of it, Section 11 (1) provides for an appeal
from any judgment, sentence or order, not being interlocutory order, of a Special Court to the
Supreme Court both on facts and on law and this appeal lies as a matter of right. The e Xpression 'not
being interlocutory order' carves out from the orders made appealable under the section a class or
category of orders which would not be appealable. In other words, an order which if it can be styled
as an interlocutory order made by a Special Court in a proceeding before it, no appeal would lie
against it to the Supreme Court. This becomes clear from the provision in sub-section (2) which in
terms provides that eXcept as otherwise provided in sub-section 11 (1), no appeal or revision would
lie to any court from any judgment, sentence or order of a Special Court. The substantive provision
contained in Section 11(1) provides for an appeal from any judgment, sentence or order, not being
interlocutory order, as a matter of right, to this court both on facts and on law.
It is, therefore, necessary to ascertain the true import of what can be styled as an interlocutory order
which would not be appealable under Section 11 of the Act.
Ordinarily speaking, the e X pression 'interlocutory' in legal parlance is understood in

contra-distinction to what is styled as final. In the course of a judicial proceeding before a court, for
judicially determining the main dispute brought to the Court for its resolution, a number of
situations arise, where that court goes on disposing of ancillary disputes raised by parties to the
proceeding by making orders and unless the order finally disposes of a proceeding in a court, all

such orders during the course of a trial would be broadly designated 'interlocutory' orders. Such
interlocutory orders are steps, taken towards the final adjudication and for assisting the parties in
the prosecution of their case in the pending proceeding. They regulate the procedure only and do
not affect any right or liability of the parties (See Central Bank of India v. Gokal Chand A.I.R. 1967
S.C. 799). Every such interlocutory order may, for the time being, dispose of a particular point of
controversy raised in the proceeding, yet nonetheless the order would be an interlocutory order
unless by such an order the controversy between the parties is finally disposed of. Again, in legal
parlance such an order finally disposing of a dispute between the parties would be a judgment in a
civil proceeding. In a criminal proceeding when either the accused is acquitted or convicted and
sentence is pronounced upon, the order would be a judgment disposing of case before the Court
trying the accused. Till this situation is reached, a number of orders may have to be made, during
the progress of adjudication of main dispute, such orders can appropriately and legally be styled as
'interlocutory order'.
Where some facet or aspect of a controversy in the course of adjudication of the main dispute
between the parties is disposed of by an order but the order has not the effect of finally disposing of
the dispute which the parties brought to the court, the order would nonetheless be an interlocutory
order and it would not cease to be an interlocutory order merely because it disposed of a certain
aspect of the controversy between the parties. That is why in some statutes prescribing procedure
for trial of cases civil or criminal, a provision is made that e Xcept where an appeal is provided for
against an interlocutory order, all such interlocutory orders would be open to question while hearing
an appeal against the final judgment finally disposing of the dispute between the parties. It is in this
sense that the eXpression 'final order' in section 205(1) of the Government of India Act 1935 was
interpreted by the Federal Court in Kuppuswami Rao v. The King. Approving the observation of Sir
George Lowndes in Abdul Rahman v. D.K. Cassim & Sons, it was held that the test of finality was
whether the order finally disposed of the rights of the parties. The finality must be a finality in
relation to the suit. If after the order the suit is still a live suit and the rights of the parties are still to
be determined no appeal lies against it under section 109A of the Code. Even if the order decides an
important and even a vital issue in the case but it left the suit alive and provided for its trial in the
ordinary way, it would still not be a final order. When the question again came up before the Federal
Court in Mohammad Amin Brothers Ltd. & others v. Dominion of India and Others, a larger, Bench
of the Federal Court unanimously approved the aforementioned interpretation of the e Xpression
'final order' in section 205(1). The Court observed then: "All the relevant authorities bearing on the
question have been reviewed by this court in their recent pronouncement in S. Kuppuswami Rao v.
The King, and the law on the point, so far as this court is concerned, seems to be well settled. In full
agreement with the decisions of the Judicial Committee in Ram Chand Manjimal v. Goverdhandas
Vishindas and Abdul Rahman v. D. K. Cassim and Sons and the authorities of the English Courts
upon which these pronouncements were based, it has been held by this Court that the test for
determining the finality of an order is, whether the judgment or order finally disposed of the rights
of the parties. To quote the language of Sir George Lowndes in Abdul Rahman v. D. K. Cassim and
Sons, the finality must be a finality in relation to the suit. If after the order the suit is still a live suit
in which the rights of the parties have still to be determined, no appeal lies against it. The fact that
the order decides an important and even a vital issue is by itself not material. If the decision on an
issue puts an end to the suit, the order will undoubtedly be a final one, but if the suit is still left alive

and has got to be tried in the ordinary way, no finality could attach to the order."
In the aforementioned two decisions Salaman v. Warner , Bozson v. Altrincham Urban District
Council and Issac v. Salbstein were referred to and relied upon but it was urged that a different note
was sounded by Lord Halsbury in the Bozson's case when he preferred the view eXpressed in
Shubrook v. Tufnell (9 Q.B.D. 621) and therefore the aforesaid two decision particularly approving
the ratio in the case of Ramchand Manjimal and Abdul Rahman would not provide a reliable test. It
is not necessary to eXamine all the decisions in detail to find out whether there was some conflict in
the view taken in the abovementioned decisions and one taken by Lord Halsbury in view of a recent
decision in Salter ReX & Co. v. Ghosh wherein Lord Denning after e Xamining the earlier decisions
and the apparent conflict as mentioned herein above observed that the view of Lord Alverstone in
Bozson's case was right in logic but one of Lord Esher in Salaman's case was right in e Xperience and
Lord Esher's test has always been applied in practice. It is to the effect that the decision whichever
way is given, if it finally disposes of the matter in dispute, it is final. While, on the other hand, if the
decision if given in any one way, will finally dispose of the matter in dispute, but, if given in other
will allow the action to go on, it was not final but interlocutory.
It was, however, said that the test herein indicated is the one in the conte Xt of the eXpression 'final
order' in section 205(1) of the Government of India Act, which e Xpression has been bodily retained
in Articles 132, 133 and 134 of the Constitution. It was further said that the test that the e Xpression
'interlocutory order' has to be understood in contra-distinction to the e Xpression 'final order' has
not been subsequently accepted by this Court, but in fact it has been departed from and, therefore,
the later decisions specifically rendered in the conte Xt of the eXpression 'interlocutory order' as used
in Section 397(2) of the Code of Criminal Procedure, would hold the field.
In Amar Nath & Ors. v. State of Haryana & Ors. the matter came before this Court against an order
of the Magistrate issuing summons upon a complaint filed by the complainant which the High Court
declined to quash in a petition filed by the accused under sections 482 and 397 of the Criminal
Procedure Code (Code for short). The contention was that the Magistrate had issued the summons
in a mechanical manner without applying his judicial mind to the facts of the case. The High Court
dismissed the petition in limini and refused to entertain it on the ground that as the order of the
Magistrate dated November 15, 1976 was an interlocutory order, a revision to the High Court was
barred by sub- section (2) of sec. 397 of the 1973 Code. The learned Judge further held that as the
revision was barred, the Court could not take up the case under Sec. 482 in order to quash the very
order of the Judicial Magistrate. The observation of this Court which was the subject matter of rival
interpretation may be eXtracted:
"The order of the Judicial Magistrate summoning the appellants in the circumstances of the present
case, particularly having regard to what had preceded, was undoubtedly a matter of moment, and a
valuable right of the appellants had been taken away by the Magistrate's passing an order prima
facie in a mechanical fashion without applying his mind. We are, therefore, satisfied that the order
impugned was one which was a matter of moment and which did involve a decision regarding the
rights of the appellants. If the appellants were not summoned, then they could not have faced the
trial at all, but by compelling the appellants to face a trial without proper application of mind cannot

be held to be an interlocutory matter but one which decided a serious question as to the rights of the
appellants to be put on trial."
The test formulated by the Court was that any order which substantially affects the right of the
accused or decides certain rights of the parties cannot be said to be an interlocutory order. The fact
that the controversy still remains alive was considered irrelevant. The attention of the Court was not
drawn to either Kuppuswamy's case or Mohammad Amin Brothers' case. In fact, the Court relied
upon Mohan Lal Magan Lal Thacker v. State of Gujarat.
The ratio of Mohan Lal's case has to be understood in the light of the proceeding from which the
matter came to this Court. A Judicial Magistrate had made an inquiry under S. 446 of 1898 Code
against appellant Mohan Lal whether it was e Xpedient in the interest of justice to file a complaint
against him for impersonation and false identification of a surety in a criminal case. This has to be a
separate and independent proceeding started by the Court suo moto as the offence appeared to be
committed in relation to a criminal proceeding in a Court. No one e Xcept the court in such a
situation has locus standi to file a complaint which could be filed by the court, but before such a
complaint was filed it was necessary to hold an inquiry to ascertain whether it was e Xpedient in the
interest of justice to file the complaint. A party against whom a complaint is ordered to be filed has a
statutory right of appeal. The Judicial Magistrate directed a complaint.............to be filed and this
order was upheld by the Addl. Sessions Judge in appeal. Appellant Mohan Lal preferred a revision
petition which was dismissed by the High Court and when he prayed for a certificate under Art. 134,
a question arose whether the order directing a complaint to be filed was a final order or
interlocutory order for the purpose of Art. 134 which provides for an appeal to this Court in a
criminal proceeding. It is in the background of these facts that this Court approving the ratio in
Kuppuswamy Rao's case and Mohammad Amin Brothers' case, held that an interlocutory order,
though not conclusive of the main dispute, may be conclusive as to the subordinate matter with
which it deals. If the decision on issue puts an end to the suit, the order is undoubtedly a final one
but if the suit is still alive and yet to be tried in the ordinary way, no finality could attach to the
order. On behalf of the appellant it was said that Mohan Lal's case is an authority for the proposition
that an interlocutory order, though not conclusive of the main dispute, may be conclusive as to the
subordinate matter with which it deals and such an order could not be said to be an interlocutory
order. This observation has to be read in the conte Xt of the controversy in that case especially in the
conteXt of two independent proceedings one leading to filing of a complaint which will be over when
complaint is filed and another independent one of a trial upon the complaint so filed. At any rate, a
proceeding before the Magistrate commenced to find out whether it is e Xpedient in the interest of
justice to file a complaint concludes finally when an order directing the complaint to be filed is made
and the statute provides for an appeal against such an order. After the complaint is filed, it cannot
be urged that the complaint ought not to have been filed. The complaint would be tried in an
ordinary way. Therefore, the first proceeding independent by itself, came to a final end and it is in
this sense that the order was held final by this Court.
Now, in Amar Nath's case the Magistrate directed a summon to be issued on a private complaint
thereby taking cognizance of the case. The case had a zig zag journey. Earlier the Magistrate had
declined to take cognizance and dismissed the complaint. As far as the accused were concerned, the

matter came to an end. After the remand by the Sessions Judge in a revision application filed by the
complainant, the Magistrate directed to issue the summons. In a way, the proceeding was reopened.
It is in this conteXt that the Court held the order not to be interlocutory within the meaning of Sec.
397 of the Code. What particular order was treated final in this case is hardly relevant. The test to
determine the nature of order-interlocutory or final-is binding unless departed from. The test
formulated by the Court is eXtracted hereinbefore. Accepting the test without demur for the time
being, though it runs counter to the decision in S. Kuppuswami and Mohmad Amin Brothers Ltd.
cases, it may be determined whether framing of a charge under Sec. 239 of the Code is a matter of
moment and whether it disposes of any vital aspect of the case so as not to be interlocutory.
In Madhu Limaye v. The State of Maharashtra this Court was concerned with a question whether an
order repelling a challenge to the jurisdiction of the court was an interim order not amenable to the
revisional jurisdiction of the High Court under section 397. There is some dispute as to what was the
order challenged before the High Court in this case. The Public Prosecutor filed a complaint in the
court of the Sessions Judge, Greater Bombay, complaining that the accused Madhu Limaye was
guilty of defamation of Shri Antulay, the then Law Minister of Maharashtra, punishable under
section 500 of the Indian Penal Code. The complaint was filed after the Government granted
sanction in accordance with Sec. 199(4) (a) of the Code as it was of the view that the Law Minister
was defamed in respect of his conduct in the discharge of his public functions. After the Chief
Secretary to the Government of Maharashtra was e Xamined as a witness in the Sessions Court, an
application was filed on behalf of the accused to dismiss the complaint on the ground that the court
had no jurisdiction to entertain the complaint. It must be made clear at this stage that a complaint
by the person defamed alone for an offence of defamation is maintainable and is triable by the
Judicial Magistrate or the Metropolitan Magistrate as the case may be, and the Sessions Judge is not
the court of original jurisdiction for entertaining a complaint alleging defamation punishable u/s
500 I.P.C. However, in view of the provisions contained in Sec. 199(2), jurisdiction is conferred
upon the Sessions Judge to take cognizance of the offence of defamation if it is alleged to have been
committed against a person who amongst others at the time of commission was a Minister of the
State and was defamed in discharge of his public function if the complaint in writing is made by the
Public Prosecutor after obtaining sanction of the State Government. The application given by
accused Madhu Limaye was that the Court of Sessions had no jurisdiction to entertain the complaint
presented by the Public Prosecutor because the allegations were made against Shri Antulay, the then
Law Minister, were in relation to what he had done in his personal capacity and not in his capacity
of discharging his public functions as a Law Minister. It must, therefore, be clearly borne in mind
that the challenge was to the jurisdiction of the Court to entertain the complaint. This will also be
clear from what is stated in the judgment at page 751 that chiefly on the aforementioned ground and
some other ground, the jurisdiction of the Court to proceed with the trial was challenged by the
appellant. The Court negatived the challenge and framed the charges. Accused Madhu Limaye
preferred a revision petition in the High Court which was dismissed, observing that the order sought
to be revised was an interlocutory order not amenable to the revisional jurisdiction u/s 397 (1) of the
Code. Against the refusal of the High Court to entertain the petition, the matter came to this Court.
It is, therefore, incorrect to contend that the decision in Madhu Limaye's case is an authority for the
proposition that framing of the charge is not an interlocutory order but it is such an intermediate
order as not to fall within the ambit of interlocutory order. There was no challenge to the framing of

the charge but there was a challenge to the jurisdiction of the Court to entertain the complaint. Now,
where a challenge is to the Court entertaining the complaint, the decision on the question will go to
the root of the matter inasmuch as if the challenge is accepted, the complaint must fail. That again,
however, is not the test of the order being something other than an interlocutory order.
Undoubtedly, affirming the ratio in Amar Nath's case, this Court observed that the order may be
neither an interlocutory order nor final but may be an intermediate order. In trying to illustrate
what can be an intermediate order, it was illustrated that where a defendant raises a plea before a
particular court to try the suit or bar of limitation and succeeds, then the action is determined finally
in that court; but if the point is decided against him, the suit proceeds. The order deciding such a
point may not be interlocutory yet it may not be final either. For the purpose of Sec. 115 of the C.P.C.
it will be a case decided. Then the Court observed as under:
"We think it would be just and proper to apply the same kind of test for finding out the real meaning
of the eXpression 'interlocutory order' occurring in Sec. 397(2)".
This Court by process of judicial activism putting a pragmatic interpretation on the word
"interlocutory" occurring in section 397(2) provided for a judicial supervisory umbrella over
subordinate courts. However, the decision is not an authority for the proposition that framing of a
charge by itself is not an interlocutory order.
The last case in this conteXt to which attention was drawn is Parmeshwari Devi v. State & Anr. In
that case a complaint was filed on behalf of Parmeshwari Devi against three persons accusing them
of committing offences u/ss 182, 193, 197, 199, 200, 465, 466 and 471 of the Indian Penal Code. In
the course of the trial complainant made an application to the Court u/s 94 of the Code of 1898 for a
direction to the accused to file the original deed of dissolution of partnership, an attested copy of
which was filed by accused No. 2 in the court. The accused contended that the original was not in
their possession. The court made an order summoning Smt. Parmeshwari Devi to appear before the
court with the document. She contended before the court that she did not know anything about the
document and that she was a purdahnashin lady living in Calcutta and need not be summoned in
the court. Her request was rejected and she was directed to forthwith attend the court and produce
the document if it is in her possession. Smt. Parmeshwari Devi moved an application for revision
before the Addl. Sessions Judge and then before the High Court, both of which were rejected. In her
appeal to this court a contention was raised that the order of the Magistrate was an interlocutory
order and the power of revision conferred by sub-sec (1) of Sec. 397 of the Code could not be
eXercised in relation to it by virtue of sub-section (2). This Court allowing the appeal held that 'the
Code did not define an interlocutory order but obviously it is an intermediate order, made during
the preliminary stages of inquiry or trial. The purpose of sub-section (2) of Sec. 397 is to keep such
an order outside the purview of power of the revision so that the trial or inquiry may proceed
without delay. This is not likely to prejudice the aggrieved party for it can always challenge it in due
course if the final order goes against it. But it does not follow that if the order is directed against a
person who is not a party to the inquiry or trial, and he will have no opportunity to challenge it after
a final order is made affecting the parties concerned, he cannot apply for its revision even if it is
directed against him and adversely affects his rights'. After referring to Mohan Lal Thacker's case, it
was held that the order under challenge adversely affected the appellant who was not a party to the

inquiry or trial as it was solely directed against her and she would not have opportunity to challenge
it after a final order is made because such a belated challenge would have been purposeless for it
would have given her no relief. It is in this conte Xt that the Court held that the order under appeal
was not an interlocutory order within the meaning of Sec. 397(2) of the Code.
Can it be said that the tests formulated in Kuppuswamy's case and Mohammad Amin's case have
been either over-ruled or departed from in the last mentioned three cases. As has been held in
Madhu Limaye's case ordinarily and generally the eXpression 'interlocutory order' has been
understood and taken to mean as a converse of the term 'final order'. This statement of law in terms
approves and affirms the ratio of Kuppuswamy's case and Mohammad Amin Brothers' case. But
undoubtedly in the conteXt of s. 397(2) read with s. 482 of the Code, this Court with a view to
providing a judicial umbrella of active supervision for reaching possible correctible injustice by
activist attitude and pragmatic interpretation found a third class of orders neither interlocutory nor
final but intermediate and therefore outside the bar of s. 397(2) of the Code of Criminal Procedure.
But the test remains unaltered that every interlocutory order merely because it disposes of an
aspect, nay a vital aspect in the course of a pending proceeding even adversely affecting a party for
the time being would not be something other than interlocutory. To be specific the earlier test is not
departed from but the power of supervision sought to be constricted was widened by ascertaining a
third class of orders, namely, intermediate orders which are neither interlocutory nor final.
Having said this can it be said that framing of a charge is an order which would be something other
than interlocutory. For that purpose, it is necessary to keep in view the procedure prescribed for trial
of warrant cases instituted on a police report as contained in Part A of Chapter XIX of the Code. Sec.
238 provides that when in a warrant case instituted on a police report, the accused appears or is
brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself
that he has complied with the provisions of s. 207 which casts an obligation on the Magistrate to
furnish to the accused, free of cost, copies of the document therein set out. This is to be done at the
commencement of the trial which would mean that when this statutory duty cast by s. 207 is
performed by the Magistrate, the trial commences. The trial cannot commence unless the accused is
furnished with copies of requisite documents. And the duty is cast on the Magistrate to ascertain at
the commencement of the trial that s. 207 is complied with and if it is not done, as part of trial
furnish the requisite copies. Then follow Sections 239 and 240. Under sec. 239 the court after
considering the police report and the accompanying documents submitted to the court u/s 173 and
after giving the prosecution and the accused an opportunity of being heard if the Magistrate is of the
opinion that the charge against the accused is groundless, he must discharge the accused by a
speaking reasoned order. If on the other hand after proceeding with the trial as prescribed in s. 239,
if the Magistrate is of the opinion that there is ground for presuming that the accused has
committed an offence triable under Chapter XIX which such Magistrate is competent to try and
which in his opinion could be adequately punished by him, he shall frame in writing a charge against
the accused. This is to be done after the trial commences at the stage of s. 238. Indisputably,
therefore, it is an order made in the course of proceeding conducted according to procedure
prescribed in Chapter XIX. Without anything more it would be an interlocutory order.

The contention is that framing of a charge is a matter of moment and of such vital importance that it
concludes an inquiry anterior to the framing of the charge and that it is a matter of moment which is
likely to result in the deprivation of the liberty of the accused because he is asked to face the trial.
There are two limbs of the submission and both may be separately eXamined.
What is the purpose or object in framing a charge ? When the accused is brought before a court, he
is supplied with copies of documents referred to in s. 207. Now, these documents may contain a
number of matters and the accused may be at large as to what is the specific accusation, he is
supposed to meet. Charge serves the purpose of notice or intimation to the accused, drawn up
according to specific language of law, giving clear and unambiguous or precise notice of the nature
of accusation that the accused is called upon to meet in the course of a trial. Sec. 217 clearly
prescribes what the charge should contain and a bare reading of it would show that the accused
must be told in clear and unambiguous terms allegations of facts constituting the offence, the law
which creates offence with a specific name if given to it. The section which is alleged to be violated
with the name of the law in which it is contained. The fact that the charge is made is equivalent to a
statement that every legal condition required by law to constitute the offence charged was fulfilled in
the particular case. It is thus an intimation or notice to the accused of what precise offence or what
allegations of facts he is called upon to meet. The object of a charge is to warn an accused person of
the case he is to answer. It cannot be treated as if it was a part of a ceremonial. (See B. N. Srikantiah
& Ors. v. The State of Mysore. If this be the purpose of the charge, reference to the provisions
contained in Chapter XVII as to the various forms and modes of framing a charge or joinder of
charges and joinder of persons to be tried at one trial are beside the point. The importance of
framing the charge need not be overemphasised and that this should be shunned becomes appa-
rent from the observations of Bose J. in William Elaney v. The State of Madhya Pradesh which reads
as under:-
"We see no reason for straining at the meaning of these plain and emphatic provisions unless ritual
and form are to be regarded as of the essence in criminal trials. We are unable to find any magic or
charm in the ritual of a charge. It is the substance of these provisions that count and not their
outward form. To hold otherwise is only to provide avenues of escape for the guilty and afford no
protection to the innocent."
It was, however, said that framing of a charge is a matter of moment as has been held by this Court
in State of Karnataka v. L. Muni Swami & Ors. and Century Spinning and Manufacturing Co. Ltd. v.
State of Maharashtra and therefore the order framing the charge would be an intermediate order
and not an interlocutory order. These two cases only emphasize the application of judicial mind by
the court at the stage of framing the charge. The question never arose in these two cases about the
nature and character of the order framing the charge. In a criminal trial or for that matter in any
judicial proceeding, there is no stage at which the court can mechanically dispose of the proceeding.
An active judicial mind must always operate at every stage of the proceeding because any stage of it
if mechanically disposed of may cause an irreparable harm. To wit a rejection of an application for
summoning witnesses may shut out the whole case, even a rejection of an application for
adjournment may cause irremediable harm. Therefore, in the course of a trial of a civil or criminal

proceeding, it is difficult to conceive of a stage where an order can be made without bringing to bear
on the subject an active judicial mind judicially determining the dispute. Any such dispute if
mechanically disposed of may warrant an interference. Therefore, emphasis was laid on the court
eXpecting it to seriously apply its mind at the stage of framing the charge. It does not make the order
framing the charge anything other than an interlocutory order. There is no decision since the Code
of 1974 is in operation, which introduced a concept of commencement of trial at the stage anterior to
framing of charge and, eliminating an inquiry before the charge as was the requirement prior to the
amendment of 1891 Code in 1955 which would show that Court has treated order framing the charge
other than interlocutory. However, reference in this conte Xt was made to a decision of a Full Bench
of the Jammu & Kashmir High Court in State v. Ghani Bandar wherein the Court after e Xhaustively
eXamining various decisions of different High Courts bearing on the subject came to the conclusion
that on framing the charge the inquiry anterior to trial of the case is concluded. Let it be recalled
that the decision is under a Code which prescribed e Xamination of witnesses prior to framing the
charge and the word 'trial' was defined to mean the proceeding taken under the Code after a charge
has been drawn up and included a punishment of the offender. The procedure is wholly omitted in
the Code of 1974 and the stage of commencement of trial is specifically demarcated in sec. 238 and
therefore this decision would not render any assistance in deciding the point under discussion.
Merely because emphasis is laid on the court seriously applying its judicial mind at the stage of
framing charge, and therefore, it can be said to be an important stage, the order framing the charge
even after applying the ratio of the later decisions would not be an order other than an interlocutory
order. It would unquestionably be an interlocutory order.
If framing of a charges is an interlocutory order e Xcluding the non-obstante clause, no appeal would
be against such an order u/s 11 because there is a specific provision in sub-sec. (2) of sec. 11 that
eXcept as provided in sec. 11(1) no appeal or revision shall lie to any court from any judgment,
sentence or order of a Special Court. It is a well settled proposition of law that there is no inherent or
common law right of appeal in a subject and the appeal is the creature of statute and therefore the
right to appeal can only be enjoyed within the strictly demarcated limits conferring such right of
appeal. (See Shankar Karba Jadhav & Ors. v. State of Maharashtra. The order under challenge being
one passed by the Special Court set up under the Act, an appeal from such an order would only be
competent if it squarely falls within sec. 11(1). The controversy is not that an appeal would lie even
against an interlocutory order, but the contention is that the order framing charge is not an
interlocutory order within the meaning of sec. 11(1). Therefore, there is no gain-saying the fact that if
the order sought to be appealed against is an interlocutory order, e Xcluding the non-obstante clause,
by the main provision of sec. 11(1), the present appeal would be incompetent.
On behalf of the appellant it was contended that the non-obstante clause enlarges the scope of
appeal while on behalf of the respondent, it was urged that non-obstante clause eXcludes the
operation of the Code with reference to the provision of the appeals in the Code and provides for an
appeal as fossilised in the substantive provision of s. 11(1).
What is the effect of non-obstante clause is no more res integra. In fact, in Aswini Kumar Ghosh &
Anr. v. Arabinda Bose & Anr., it was observed:

enactment."
Applying this test, it would appear that the substantive provision of s. 11(1) while providing for an
appeal against any judgment, sentence or order made by a Special Court, circumscribed the right to
appeal against the orders by eXcluding therefrom orders which are interlocutory orders. If this is the
substantive provision in s. 11(1), the question is whether the non-obstante clause enlarges the
provision or restricts it with reference to the substantive provision of appeals in the Code itself. It is
necessary to bear in mind at this stage a fundamental fact. Unlike the provision contained in Order
XLVII of the Code of Civil Procedure, there is no provision in the Code of Criminal Procedure, either
the present or the earlier one which ever provided for any appeal against any interlocutory order.
The very concept of an appeal against an interlocutory order was wholly foreign to the Code of
Criminal Procedure. There is an understandable difference between an appeal and a revision. Till
the prohibition contained in s. 397(4) of the Code was enacted for the first time, interlocutory orders
were amenable to the revisional jurisdiction of the Sessions Court or the High Court under the Code
of Criminal Procedure. But the notion or idea of an appeal against an interlocutory order in any
Criminal Procedure Code was foreign to the Criminal Jurisprudence. If this was the statutory
position at the time of enactment of the Act, it would be interesting to find out whether the
Parliament wanted to make a redical departure by providing an appeal against every interlocutory
order-a term which is wider than even an intermediate order as spelt out in the cases of Amar Nath
and Madhu Limaye, by incorporating the non-obstante clause with a view to widening the
substantive provision contained in s. 11(1). If such was the object of the Parliament there was no
necessity of cutting down the operation of the word 'order' by e Xcluding therefrom interlocutory
orders. Again, when the non-obstante clause provides for 'notwithstanding anything in the Code' the
eXpression as per grammatical construction would mean that something contained in the Code is to
be eXcluded while eXamining the scope and content of the substantive provision of s. 11(1). However,
there is nothing in the Code providing for an appeal against an interlocutory order. While enacting
the Act, the Parliament was conscious of appeals and revisions under the Code and that is manifest
from the language incorporated in sub-section 2 of Sec. 11 of the Act. Now, if there was no provision
in the Code providing for an appeal against any interlocutory order in any proceeding under the
Code, it is inconceivable that eXcluding that non-eXistent provision a wider jurisdiction of appeal
was sought to be enacted under the substantive provision of s. 11(1).
Before concluding on the question of construction it is necessary also to bear in mind the purpose
behind enacting the Special Courts Act. The preamble of the Act consists of 9 paragraphs. It inter
alia provides that the ordinary criminal courts due to congestion of work and other reasons cannot
reasonably be eXpected to bring those prosecutions to a speedy termination and that commission of
offences referred to in the various recitals in the preamble should be judicially determined with the
utmost dispatch, the Parliament enacted the Act. If this was the object and motive and purpose in
enacting the Act, the construction of its provisions must receive such interpretation as would
facilitate the achievement of the object underlying it and not frustrate it. If the object was speedy

determination of cases with utmost dispatch, it would stand thwarted, if against every interlocutory
order, and they can be plenty and galore, an appeal to the highest court as a matter of right both on
law and fact can be filed. In this connection, it is better to bear in mind the observation of this court
(In Re The Special Courts Bill, 1978)- that the paramount object and purpose of the Act is the trial of
persons proceeded against under the Act should be concluded with utmost dispatch. Speedy
termination of prosecutions is the heart and soul of the Act. The provisions of the Act should
therefore receive such construction as would advance the object for which the Act is enacted and not
stultify or frustrate the same. This is a well known canon of constriction and need not be
embellished by any authority.
It was, however, said on behalf of the appellant that by denying the accused a trial by ordinary
courts a right to challenge an intermediate order by revision is denied to him and therefore in order
to obviate any unfairness in procedure guaranteed by Art. 21 as interpreted in Maneka Gandhi v.
Union of India the e Xpression 'interlocutory order' should receive such construction as would enable
the appellant not to feel the tinge of denial of opportunity to seek correction of an order by a revision
petition by enabling him to file an appeal u/s 11(1). This alleged apparent unfairness in procedure is
utterly unreal because here the trial is by a sitting Judge of the High Court to be appointed with the
concurrence of the Chief Justice of India. Such a highly placed judicial mind will pass interlocutory
orders which as stated earlier are steps leading towards final adjudication of the dispute and that the
absence of any revisional jurisdiction may hardly introduce any unfairness in the procedure.
However it must not be forgotten that the Special Court would always be amenable to the
jurisdiction of this Court under Art. 136 and Art. 136 permits a challenge to any order interlocutory
or final of any court or tribunal in the territory of India with the special leave of this court.
Therefore, there is no substance in the contention that in narrowly interpreting the e Xpression
'interlocutory order' in Sec. 11(1), door may not be thrown open for introduction of a procedure
possibly lacking in fairness and likely to result in deprivation of personal liberty.
In view of the conclusion that the order framing a charge is an interlocutory order within the
meaning of s. 11(1), the appeal against such an order is incompetent in view of the provision
contained in s. 11(2), and therefore the preliminary objection must be upheld and the appeal is
dismissed.
O R D E R In accordance with the opinion of the majority the appeal is dismissed.
P.B.R. Appeal dismissed.

State Of Maharashtra Etc. Etc vs Som Nath Thapa, Etc. Etc on 12 April, 1996
Equivalent citations: 1996 AIR 1744, 1996 SCC (4) 659
Author: H B.L.
Bench: Hansaria B.L. (J)
PETITIONER:
STATE OF MAHARASHTRA ETC. ETC.
Vs.
RESPONDENT:
SOM NATH THAPA, ETC. ETC.
DATE OF JUDGMENT: 12/04/1996
BENCH:
HANSARIA B.L.
(J) BENCH:
HANSARIA B.L.
(J) AHMADI A.M.
(CJ) SEN, S.C.
(J)
CITATION:
1996 AIR 1744 1996 SCC (4) 659
JT 1996 (4) 615 1996 SCALE (3)449
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T HANSARIA. J Bombay of yesterday, Mumbai of today: financial capital of the

nation. It woke as usual on 12th March, 1993. People started for their places of work not knowing
what was in their store. The terrorists and/or disruptionists, bent on breaking the backbone of the
nation (for reasons which need not be gone into) had, however, hatched a well laid-out conspiracy to
cripple the country by striking at its financial nerve. As Bombay set down to work, blasting of
bombs, almost simultaneously, took place at important centres of commercial actvities like Stock
EXchange, Air India, Zaveri Bazar, Katha Bazar and many luXurious hotels. A shocked Bombay and a
stunned nation first tried to provide succour to the victim as much as possible and then wanted to
know the magnitude of the loss of life and property. It surpassed all imagination, as it was ultimately
found that the blasts left more than 250 persons dead, 730 injured and property worth about Rs.27
crores destroyed. By all counts, it was thus a great tragedy; and revolting also, as it was men-made.

2. All right thinking persons and wellwishers of the nation started asking; Why it happened ? How
could it happen ? We are not concerned in these ceses with why, but with how. The gigantic task led
Bombay police, despite its capability, to seek assistance of the CBI. An arduous and painstaking
investigation by a team of dedicated officials showed that the aforesaid bomb blasts were a result of
deep rooted conspiracy concerted action of many, guided either by greed or vengeance. The finale of
investigation consisted in charge-sheeting 145 persons (of whom 38 were shown as absconders)
under various sections of the Penal Code and the Terrorists And Disruptive Activities (Prevention)
Act, 1987 (TADA), hereinafter the Act also. The Designated Court constituted under Section 9 of the
Act came to be seized of the matter and by its impugned order of 10.9.1995 it has framed charges
against 127 persons, discharing at the same time 26. One died and two became approvers. (The total
thus comes to 146)
3. Of the charged accused, four: (1) Abu Asim Azmi; (2) Amjad Aziz Meharbaksh; (3) Raju alias Raju
Code Jain; and (4) Somnath Thapa have approached this Court having felt aggrieved at their having
not been discharged. The State of Maharashtra has approached the Court seeking cancellation of
bail granted to appellant Thapa.
4. We were fortunate to have leading criminal lawyers of the country to assist us in the matter in
asmuch as Shri Ram Jethmalani appeared for Raju and Moolchand, Shri Ratinder Singh for Abu
Azim Azmi, Shri R.K. Jain for Amzad Ali and Shri Shirodkar for appellant Thapa. The State was
represented by Addl. Solicitor General, Shri KTS Tulsi. Lengthy arguments were advanced by the
learned counsel to sustain the stands taken by them. We put on record our appreciation for the able
assistance rendered by all.
5. The appeals call for eXamination of three questions of law. These are:
(a) What are the ingredients of "criminal conspiracy' as defined in Section 120-A o the Penal Code ?
(b) When can charge be framed ?
(c) What is the effect of repeal of TADA ?
After understanding and eXplaining the legal position, we would e Xamine the cases of individual
appellants and would see whether any of them deserves to be discharged. We would then eXpress
our view whether bail of Thapa has to be cancelled and whether Moolchand has to be released on
bail. Essential ingredients of criminal conspiracy:
7. It would be apposite to note at the threshold that sections 120-A and 120-B, which are the two
sections in Chapter V - A of the Code, came to be introduced by Criminal Law Amendment Act of
1913. The Statement of Objects and Reasons stated that a need was felt for the same to make
conspiracy a substantive offence. In doing so the common law of England was borne in mind.
8. Section 120-A defines criminal conspiracy as below:

"120-A. Definition of criminal conspiracy:- When two or more persons agree to do, or
cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means,
such an agreement is designated a criminal conspiracy: Provided that no agreement
eXcept an agreement to commit an offence shall amount to a criminal conspiracy
unless some act besides the agreement is done by one or more parties to such
agreement in pursuance thereof.
EXplanation:- It is immaterial whether the illegal act is the ultimate object of such
agreement, or is merely incidental to that object".
9. This definition shows that conspiracy consists in either doing an illegal act or a legal act by illegal
means. Shri Tulsi emphasised that we should bear in mind the illegality of means as well. Group
action being apparently involved, it was urged that division of performances in the chain of actions
as happens in smuggling of narcotics should also be taken note of by us. The Addl. Solicitor General
was at pains in contending that protection of the society from the dangers of concerted criminal
activity may not be lost sight of by us.
10. Shri Ram Jethmalani, who addressed us principally on the questions of law involved, filed a
compilation of relevant decisions for our benefits, wherein the essential ingredients of criminal
conspiracy have been spelt out. The decisions mainly relied by the learned counsel are R. vs.
Hawkesley, 1959 Criminal Law Report 210; and People vs. Lauria, 251 California Appeal 2d 471.
Some assistance is derived from a judgment of this Court in Natwarlal Shankarlal Mody vs. State of
Bombay, 1961 Bomboy Law Report
661. The only other foreign decision we would be required to note is United States vs. Feola 420 US
671, referred to on behalf of the State. We would finally see what was held by a two Judge Bench of
this Court in Ajay Aggarwal vs. Union of India, 1993 (3) SCC 609 strongly relied on by Shri Tulsi.
11. The thrust of Shri Ram Jethmalani's argument is that to find a person quilty of conspiracy there
has to be knowledge of either commission of any illegal act by a co-conspirator or taking recourse to
illegal means by the co-conspirator, along with the intent to further the illegal act or facilitate the
illegal means. Though at one stage the learned Addl. Solicitor General sought to contend that
knowledge by itself would be enough, he, on deeper thought, accepted that this would not be. But
then, according to him, at times intent may be inferred from knowledge, specially when no
legitimate use of the goods or services in question e Xists. To sustain this submission, he also relied
on Lauria's case. He has added a rider as well. The same is that so far as knowledge is concerned, the
prosecution, in a case of present nature cannot be called upon to establish that the conspirator had
knowledge that the goods in question would be used for blasting of bombs at Bombay. This follows,
according to the Addl. Solicitor, from the decision of the United States Supreme Court in Fegla.
12. Let us first see what was held in Hawkesley. The facts of that case are that the accused was a
partner with Z in a small taxi business. A and B, two young men with some previous criminal record,
who were fairly well known to Z but less well known to the prisoner, H, persuaded H to drive them
on credit from the taxi office in the centre of the city at about 12.25 a.m. a distance of about five

miles to the outskirts of the city. H did not know that either A or B had criminal records. On the
journey A and B informed H that the purpose of the journey was to break into a golf club. H dropped
A and B near the golf club and a police officer overheard one of them say, "We will want you back in
about an hour". H never did return to the golf club but returned to the city where he drove some
other fares which had been previously booked after which he went home taking his taxi with him.
A and B ran away from the golf club on being disturbed be the police and were later arrested
together. A and B were charged with being in possession of house-breaking implements by night and
A, B and H were charged with conspiracy to break and enter the club. A and B pleaded "guilty" to
both counts and H pleaded "not quilty" to the count of conspiracy against him. When A end B were
arrested a torch which was usually kept in the taxi was found in their possession. H made a
statement to the police in writing in which he said that on the journey he learnt that A and B were
"Going to do the club".
13. The evidence as to how a torch came into possession of A and B was conflicting. There was no
evidence that the accused knew, until the journey in the taxi had begun, that A and B intended to
commit a criminal offence or that he had any reason to suspect that they intended to do so. It was,
therefore, held that there was no evidence as to conspiracy because of lack of evidence that the
accused and A and B were acting in concert or had agreed together to commit a criminal offence. It
is brought to our notice that this Court in Natwar Lal's case (supra) had also held that knowledge of
conspiracy is necessary as appears from what was stated at page 667 of the Report. Shri Jethmalani,
therefore, submits that mere knowledge that somebody would commit an offence would not be
sufficient to establish a case of criminal conspiracy, unless there be evidence to show that all had
acted in concert or had agreed together to commit the offence in question.
14. The discussion in Lauria is more illumnating and its importance lies in the fact that learned
counsel of both the sides have sought to place reliance on this decision. Fleming, J., who decided the
case, was confronted with two leading cases of the United States Supreme Court pointing in opposits
directions - one was that of United States vs. Falcne, 311 US 205 wherein sellers of large quantities
of sugaryeast and canes were absolved from participation in a consipracy among distillelrs who
bought from them. In Direct Sales Co., vs. United States, 319 US 703, however, a wholesaler of drugs
was convicted of conspiracy to violate the federal narcotic laws by selling drugs in quantity to a co-
assused physician who was supplying them to addicts. The distinction between these two cases
appeared primarily based on the proposition that distributors of such dangerous products as drugs
are required to eXercise greater discrimination in conduct of their business than are distributors of
innocuuous substances like sugar and yeast. Fleming, J., therefore, observed that in Falcone the
seller's knowledge of the illegal use of the goods was insufficient by itself use of the goods was
insufficient by itself to make the seller privy to a conspiracy with the distillers who bought from
them, whereas in Direct Sales, the conviction was affirmed on showing that the drug wholesaler had
atively promoted the sale of the drug (morphine sulphate) in quantity and had sold that same to a
physician who practised in a small town - the quantity being 300 times more than the normal
requirement of the drug.
15. The following quotations in Lauria from the decision in Direct Sales is very pertinent :

"All articles of commerce may be put to illegal ends,.................But all do not have
inherently the same susceptibility to harmful and illegal use. This difference is
important for two purposes. One is for making certain that the seller knows the
buyer's intended illegal use. The other is to show that by the sale he intends to
further, promote and cooperate in it. This intent, when given effect by over act, is the
gist of conspiracy. While it is not identical with mere knowledge that another
proposes unlawful action, it is not uprelated to such knowledge. The step from
knowledge to intent and agreement may be taken. There is more than suspicion,
more than knowledge, acquiescence, carelessness, indifference, lack of conern. There
is informed and interested co-
operations stimulations
instigstion."
16. The learned Judge, after eXamining they precedent in the fields thereafter held
that sometimes, but not always, the criminal intent may be inferred from the
knowledge of the accused of the unlawful use made of the goods in question.
He gave two illustrations to bring home the point, one of which is that the intent may be inferred
from knowledge, when no legitimate use for the goods or services eXists. Being of this view, Fleming
, J. held that the respondent before him (Lauria) had knowledge of the-criminal activities of the
prostitutes, end the same was sufficient to charge him with that fact, even though what Lauria had
manifestly tone was allowing them, who were actively plying their trade, to use his telephone. The
prosecution in that case Sad attempted to establish conspiracy by showing that Lauria was well
aware that his co-defendants were prostitutes, who had received business calls from customers
through his telephone answering service, despite which Lauria continued to furnish them with such
service. This action of Lauria was regarded as sufficient to hold that he had conspired with the
prostitute to further their criminal activity.
17. The Additional Solicitor General has, according to us. stolen a march over the counsel for the
accused because of what was stated in Lauria's case, as he is undoubtedly right in submitting that
RDX, or for that matter bombs, cannot be put to any legitimate use but only to illegitimate use; and
it is RDX or bomb which was either handled or allowed to slip by the accused before us. So, this act
by itself would establish the intent to use the goods for illegitimate purpose.
18. Another decision to come tn the assistance of the prosecution is Feola. This decision of the
United States Supreme Court is important because the presented in that case was whether
knowledge that intended victim was a federal officer essential establish crime of conspiracy under
the relevant provision which made an assault upon a federal Of while engaged in the performance of
his official duties, an offence. Justice Blackmun, who delivered opinion far the majority, held that in
so far substantial offence is concerned, to answer question of individual guilt or innocence,
awareness the official identity of the assault victim irrelevant. It was then observed that the same
has obtain with respect to conspiracy.

19. What had happened in Feola was that he and his confederates had arranged for sale of heroin to
buyers, who turned out to be undercover agents for the Bureau of Narcotic and Dangerous Drugs.
The planning of the group was to palm off on the purchasers, for a substantial sum, a form of sugar
in place of heroin and, should that ruse fail, simply to surprise their unwitting buyers and relieve
them of the cash they had brought along for payment. The plan failed when one agent on a suspicion
being aroused, drew his revolver in time to counter an assault upon another agent from the rear. So,
instead of enjoying the rich benefits of a successful swindle, Feola and his associates found
themselves charged, to their undoubted surprise, with conspiring to assault and assaulting federal
officers.
20. The plea taken by Feola was that he had no knowledge of the victim's official identity and as
such he could not have been guilty of conspiracy charge. The Court was, therefore, first required to
find out whether for the substantive offence of charge envisaged by the punishing section, awareness
of the official identity of the victim was relevant; and the majority answered the question in
negative, because the offence consisted in assaulting a federal officer on duty; and undoubtedly
there was an assault and the victim was a federal officer on duty. The further step which the majority
took, and with respect rightly, was that the same logic would apply with respect to conspiracy
offence.
21. The Additional Solicitor General has thus a point when he contended that to establish the charge
of conspiracy in the present case, it would not be necessary to establish that the accused knew that
the RDX and/or bomb was/were meant to be used for bomb blast at Bombay, so Long as they knew
that the material would be used for bomb blast in any part of the country.
22. As in the present case the bomb blast was a result of chain of actions, it is contended on behalf of
the prosecution, on the strength of this Court's decision in Yash Pal Mittal vs. State of Punjab 1977
(4) SCC 540, which was noted in para 9 of Ajay Aggarwal's case that of such a situation there may be
division of performances by plurality of means sometimes even unknown to one another; and in
achieving the goal several offences may be committed by the conspirators even unknown to the
committed. All that is relevant is that all means adopted and illegal acts done must be and purported
to be in furtherance of the object of the conspiracy, even though there may be sometimes misfire or
over-shooting by some of the conspirators.
23. Our attention is pointedly invited by Shri Tulsi to what was stated in para 24 of Ajay Aggarwal's
case wherein Ramaswamy, J. stated that the law has developed several or different models or
technique to broach the scope of conspiracy. One such model is that of a chain, where each party
performs even without knowledge of the other, a role that aids succeeding parties in accomplishing
the criminal objectives of the conspiracy. The illustration given was what is done in the process of
procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the globe.
In such a case, smugglers. Middleman privies to a single conspiracy to smuggle and distribute
narcotics. The smugglers know that the middlemen must sell to retailers and the retailers know that
the middlemen must buy from importers. Thus the conspirators at one end at the chain know that
the unlawful business would not, and could not, stop with their buyers, and those at the other end
know that it had not begun with settlers. The action of each has to be considered as a spoke in the

hub - there being a rim to bind all the spokes together in a single conspiracy.
24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of
conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is
necessary. In some cases, intent of unlawful use being made of the goods or services in question may
be inferred from the knowledge itself. This apart, the prosecution has not to establish that a
particular unlawful use was intended, so long as the goods or service in question could not be put to
any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be
necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the
conspirators had the knowledge of what the collaborator would do, so long as it is known that the
collaborator would put the goods or service to an unlawful use. When can charge be framed ?
25. This legal question is not as knotty as the first one. This is for the reason that there are clinching
decisions of this Court on this aspect of the matter.
26. Shri Ram Jethmalani has urged that despite some variation in the language of three pairs of
sections, which deal with the question of framing of charge or discharge, being relatable to either a
sessions trial or trial of warrant case or summons case, ultimately converge to a single conclusion,
namely, that a prima facie case must be made out before charge can be framed. This is what was
stated by a two-Judge Bench in R.S. Naik vs. A. Antulay 1986 (2) SCC 716.
27. Let us note the three pairs of sections Shri Jethmalani has in mind. These are sections 227 and
228 An so far as sessions trial is concerned; sections 239 and 240 relatable to trial of warrant Cases;
and sections 245 and (2) qua trial of summons cases. They read as below:
"Section 227: Discharge - If, upon consideration of the record of the case and the
documents submitted therein, and after hearing the submissions of the accused and
the prosecution in this behalf, the Judge considers that there is not sufficient ground
for proceeding against the accused, he shall discharge the accused and record his
reasons for so doing. Section 228: Framing of Charge -
(i) If, after such consideration and hearing as aforesaid, the Judge is of opinion that
there is ground for presuming that the accused has committed an offence which
(a) is not eXclusively triable by the Court of Session, he may frame a charge against
the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate
and thereupon the Chief Judicial Magistrate shall try the offence in accordance with
the procedure for trial of warrant- cases instituted on a police report;
(b) is eXclusively trial by the Court, he shall frame in writing a charge against the
accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge
shall be read and eXplained to the accused and the accused shall be asked whether he

pleads guilty of the offence charged or claims to be tried.
(Emphasis supplied) Section 239: When accused shall be discharged - If, upon
considering the police report and the document sent with it under Section 173 and
making such eXamination, if any, of the accused as the Magistrate thinks necessary
and after giving the prosecution and the accused an opportunity of being heard, the
Magistrate considers the charge against the accused to be groundless, he shall
discharge the accused, and record his reasons for so doing.
Section 240: Framing of charges if, upon such consideration, eXamination, if any, and
hearing the Magistrate is of opinion that there is ground for presuming that the
accused has committed an offence triable under this Chapter, which such Magistrate
is competent to try and which, in his opinion, could be adequately punished by him,
he shall frame in writing a charge against the accused (2) The charge shall then be
read and eXplained to the accused, and he shall be asked whether he pleads guilty of
the offence charged or claims to be tried.
Section 245: When accused shall be discharged-(1) If, upon taking all the evidence
referred to in Section 244, the Magistrate considers, for reasons to be recorded, that
no case against the accused has been made cut which, if unrebutted, would warrant
his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall to
deemed to prevent a Magistrate from discharging the accused at any previous stage of
the case if, for reasons to be recorded by such Magistrate, he considers the charge to
be groundless."
Before adverting to what was stated in Antulay's case, let the view eXpressed in State of Karnataka
vs. L. Muniswamy), 1977 (3) SCR 113 be noted. Therein, Chandrachud, J. (as he then was) speaking
fore a three Judge Bench stated at page 119 that at the stage of framing charge the Court has to apply
its mind to the question whether or not there is any ground for presuming the commission of the
offence by the accused. As framing of charge affects a person's liberty substantially, need for proper
consideration of material warranting such order was emphasised.
29. What was stated in this regard in Street Atyachar Virodhi Parishad's case. Which was quoted
with approval in paragraph 76 of State of west Bengal vs. Mohd. Khalid, 1995 (1)SCC 684 is that
what the Court has to see, while considering the question of framing the charge, is whether the
material brought on record would reasonably connect the accused with the crime. No more is
required to be inquired into.
30. In Antulay's case, Bhagwati, CJ., opined, after noting the difference in the language of the three
pairs of section, that despite the difference there is no scope for doubt that at the stage at which the
Court is required to consider the question of framing of charge, the test of "prima facie" case has to
be applied. According to Shri Jethmalani, a prima facie case even be said to have been made out
when the evidence, unless rebutted, would make the accused liable to conviction. In our view, better
and clearer statement of law would be that if there is ground for presuming that the accused has

committed the offence, a court can justifiably say that a prima facie case against him eXists, and so,
frame charge against him for committing that offence".
31. Let us note the meaning of the word "presume". In Black's Law Dictionary it has been defined to
mean "to believe or accept upon probable evidence". (Emphasis ours). In Shorter O Xford English
Dictionary it has been mentioned that in law "presume" means "to take as proved until evidence to
the contrary is forthcoming" , Stroud's Legal Dictionary has quoted in this conteXt a certain
judgement according to which "A presumption is a probable consequence drawn from facts (either
certain or proved by direct testimony) as to the truth of a fact alleged." (Emphasis supplied). In Law
LeXicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition. 32 The
aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that
commission of the offence is a probable consequence, a case for framing of charge e Xists. To put it
differently, if the Court were to think that the accused might have committed the offence it can
frame the charge, though for conviction the conclusion is required to be that the accused has
committed the offence. It is apparent that at the stage of framing of charge, probative value of the
materials on record cannot be gone into; the materials brought on record by the prosecution has to
be accepted as true at that stage.
What is the effect of lapse of TADA ?
33. In the written submissions filed on behalf of appellant Moolchand, it has been urged that TADA
having lapsed, section 1(4) which saves, inter alia, any investigation instituted before the Act had
eXpired, itself lapsed because of which it is not open to the prosecution to place reliance on this sub-
section to continue the proceeding after eXpiry of TADA.
34. We find no force in the aforesaid submission and would refer in this connection to a recent
three-Judge Bench decision of this Court in Mohd. Iqbal Vs. State of Mahasrashtra, JT 1996 (1) SC
114, in which it has been clearly held that in view of section 1(4) of the Act, the farmers of the Act
had desired that even after its e Xpiry, the proceeding initiated under the Act should not come to an
end without the final conclusion and determination, which have, therefore, to be continued in spite
of the eXpiry of the Act. According to the Bench, there is indeed no scope for a controversy as to
whether any investigation, inquiry, trial in respect of any offence alleged under TADA shall come to
end as subsection (4) of section (1) protects and keeps alive such investigation and trial. FACTUAL
ASPECTS OF THE APPEALS
35. The Legal question having been eXamined, we may advert to the facts of each appellant to decide
whether a prima facie case against him e Xists, requiring framing of charge, as has been ordered.
Before we undertake this eXercise, it may be pointed out that the learned Designated Court in his
impugned judgment, instead of eXamining the merits of the prosecution case qua the charged
accused, has given reasons as to why he discharged 26 accused. A grievance has, therefore, been

made by all the learned counsel appearing for the accused that this was not the legal approach to be
adopted. We find merit in this grievance inasmuch as the impugned order ought to have shown that
the Designated Court applied its judicial mind to the materials placed on record against the charged
accused. This was necessary because framing of charge substantially affects the liberty of the
concerned person. Because of the large number of accused in the case (and this number being large
as regards charged accused also), the court below might have adopted the approach he had done.
But we do not think it was right in doing so. Be that as it may, now that we have been apprised by
the prosecution regarding all the materials which were placed before the Designated Court against
each of the appealing accused, we propose to e Xamine, whether on the basis of such materials, it can
reasonably be held that a case of charge eXists. We would do so separately for each of the appellants.
36. At this stage, it may be pointed out that the trial court has, apart from framing individual charge,
framed a general charge. Which, after naming all the 127 charged accused, reads as under :
"During the period from December, 1992 to April, 1993 at various places in Bombay,
District Raigad and District Thane in India and outside India in Dubai (U.A.E.)
Pakistan, entered into a criminal conspiracy and/or were members of the said
criminal conspiracy whose object was to commit Terrorist Acts in India and that you
all agreed to commit following illegal acts namely to commit terrorist acts with an
intent to overawe the Government as by Law established, to strike terror in the
people, to alienate sections of the people, to adversely affect the harmony amongst
different sections of the people i.e. Hindus and Muslims by using bombs, dynamites
handgranades and other eXplosives substances like RDX or inflammable substances
or fire-arms like AK-56 rifles, Carbines, Pistols and other lethal weapons in such a
manner as to cause or as likely to cause death of or injuries to any person or persons,
loss of, damage to and destruction of private and public properties and disruption of
supplies of services essential to the life of the community, and to achieve the
objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunition,
detonators handgranades and high e Xplosives like RDX into India and to distribute
the same amongst yourselves and your men of confidence for the purpose of
committing terrorist acts and for the said purpose to conceal and store all these arms
ammunition and eXplosives at such safe places and amongst yourselves and with your
men of confidence till its use for committing terrorist acts and achieving the objects
of criminal conspiracy and to dispose off the same as need arises. To organise
training camps in Pakistan and in India to import and undergo weapon training in
Handling of arms, ammunitions and e Xplosives to commit terrorist acts. To harbour
and conceal terrorists/co- conspirators, and also to aid, abet and knowingly facilitate
the terrorist acts and/or any act preparatory to the commission of terrorist acts and
to render any assistance financial or otherwise for accomplishing the object of the
conspiracy to commit terrorist acts, to do and commit any other illegal acts as were
necessary for achieving the aforesaid objectives of the criminal conspiracy and that
on 12.3.1993 were successful in causing bomb eXplosions at Stock EXchange Building,
Air India Building, Hotel Centaur at Santacruz, Zaveri Bazar, katha Bazar, Century
Bazar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in

lobbing handgranades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar
International Airport which left more than 257 persons dead, 713 injured and
property worth about Rs. 27.0 Crores destroyed, And attempted to cause Bomb
eXplosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its
suburbs i.e. within Greater Bombay.
And thereby committed offences punishable under Section 3(3) of TADA (P) Act,
1987 and Section 120 (B) of Indian Penal Code read with Sections 3(2) (i), (ii), 3(3),
3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427,
435, 436, 201 and 212 of Indian Penal Code and offences under Section 3 and 7 read
with Section 25 (1A), (1B),
(a) of the Arms Act, 1959, Section 9-B(1), (a), (b), (c) of the E Xplosives Act, 1884.
Section 3, 4(a), (b), 5 and 6 of the E Xplosive Substances Act, 1908 and Section 4 of
Prevention of Damage to Public Property Act, 1984 and within my cognizance.
Abu Asim Azmi
37. The specific charge relating to this appellant is as below :
"In addition to Charge First you accused Abu Asim Azmi is also charged for having
committed the following offences in pursuance of the criminal conspiracy in Charge
First.
SECONDLY that you Abu Asim Azmi in pursuance of the aforesaid criminal
conspiracy conspired advocate advised abetted and knowingly facilitated the
commission of terrorists act and acts preparatory to terrorists act i.e. bomb blast and
such other act which were committed in Bombay and its suburbs on 12.3.93 by
agreeing to do any by doing the following overt acts.
(a) That you sent Sultan-E-Rome Ali Gul, Mohmed Iqbal Ibrahim, Shakeel Ahmed,
Shah Nawaz Khan s/o Faiz Mohmed Khan, Abdul Aziz, Manzoor Ahmed Mohmed
Qureshi, Shaikh Mohmed Ethesham and Mohmed Shahid Nizamuddin Qureshi, to
undergo weapon training at Pakistan in furtherance of the objectives of the aforesaid
criminal conspiracy by booking their tickets out of your own funds through M/s.
Hans Air Services which was done by your firm M/s. Abu Travels and that you
thereby committed an offence punishable under section 3(3) of TADA (P) Act, 1987
and within my cognizance."
38. The aforesaid shows that the individual charge against bu is that he had done the act of booking
the tickets of the persons named in the charge; and this was done from his own funds through M/s.
Hans.Air Services. Learned Addl.Solicitor General states that the financial assistance by this
appellant would attract the mischief of Section 3(3) of TADA which, inter alia, punishes abetment of
a terrorist act. This would be so because of the enlarged definition of "abet" as given in section 2 (1)

(a), whose clause (iii) makes rendering of any assistance, whether financial or otherwise, to a
terrorist, an act of abetment. Our attention is also invited to section 21(2) which has provided that in
a prosecution for an offence under section 3(3) of the Act, if it is proved that the accused rendered
any, financial assistance to a person accused of, or reasonably suspected of, an offence under that
section, the Designated Court shall presume, unless the contrary is proved, that such person has
committee of the offence under that provision.
39. Shri Rajinder Singh, appearing for this appellant, did not consider it necessary to contest the
aforesaid legal position. His sole contention is that the materials sought to be relied on by the
prosecution in alleging that Abu had booked tickets out of his own funds, which is the gravamen of
the charge, has no legs to stand inasmuch as there are materials galore to show that the fund for
booking the 11 air tickets for Dubai had come, not from the fund of the appellant, but the money had
been made available to the firm of the appellant, named Abu Travel Agency, by one Maulana
Bukhari about which Shamim Ahmed working as cashier in the firm has stated. His statement
during investigation was that on 21.1.1993 two persons had come to his office and handed over a
sum of Rs.1.15 lacs along with 11 passports by saying "Bukhari Saheb Ne Bheja Hai"(Bukhari Saheb
has sent). This was pursuant to the talk Shamim earlier had with Bukhari who had inquired as to
whether the firm of the appellant could arrange for 11 air tickets to Dubai, which was answered in
affirmative. The firm of M/s. Hans Air Services was thereafter contacted and a sum of Rs. 38.000/-
was paid in cash by the appellant and Rs. 73,000/- through drafts whose numbers are on record. It,
however, happened that one ticket had to be cancelled on 11.3.1993; and because of this an amount
of Rs.9,939/- was credited in the account of appellant's firm in the books of M/s. Hans Air Services.
It is really this entry which has been pressed into service by Shri Tulsi to contend that the money for
the journey had really been paid by the appellant's firm.
40. According to Shri Rajinder Singh, the fact of aforesaid credit was not brought to the notice of the
appellant's firm. Then, as the bomb blasts took place an the ne Xt date i.e. 12th March and as Bukhari
was shot dead in the meantime, the money could not have been returned to Bukhari. It is, therefore,
urged that - the mere fact of the aforesaid amount having been credited in the name of the
appellant's firm in the books of M/s. Hans Air Services cannot at all suggest, in view of the aforesaid
statement of Shamim, which wag duly corroborated by Iftikhar, who was working at the relevant
time as a clerk in M/s. Abu Travels, that the air journey of the 11 persons was financed by this
appellant. The learned counsel has also submitted that as the Bombay Police had not asked Shamim
during interrogation about the source of money which had been paid to Hans Air Services, Shamim
had made no statement regarding that, which he had subsequently made when interrogated by the
C.B.I. Another contention to be advanced is that if the action of booking the tickets in question
would have been a part of tainted activity, the sum of Rs.73,000/- would not have been transmitted
to Hans Air Services through drafts.
41. Though it appears intriguing as to why only part of the money was sent through bank and that
too by more than one draft, the aforesaid facts brought to our notice by Shri Rajender Singh do show
that the only incriminating material, namely, crediting the amount of Rs.9,939/- in the account of
the appellants' firm in the books of M/s Hans Air Services, is a weak circumstance to say that the
appellant might have abetted the offences in question, which is the real charge against him. We may

state that as framing of charge affects a person's liberty substantially, as pointed out in
Muniswamy's case (supra), the materials on record must satisfy the mind of the Court framing the
charge that the commission of offence by the accused in question was probable. We do not think if a
conclusion can reasonably be drawn only from the above-noted incriminating fact pressed into
service by the prosecution that the appellant might have abetted the offences in question. There
being no material to frame individual charge under section 3(3) of TADA, we are of the opinion that
the general charge qua this appellant has also to fail, as the only overt act attributed to him is the
aforesaid activity of booking tickets.
42. We, therefore, allow the appeal of this appellant, which arises out of SLP(Crl.) No.3305 of 1995,
and order for his discharge.
Amjad Aziz Meharbaksh
43. The individual charge against with appellant reads as below :
"In addition to Charge First. you Amjad Abdul Aziz Meherbu X is also charged for
having committed the following offences in pursuance to the criminal conspiracy
-described in Charge First :-
SECONDLY :- that you Amjad Abdul Aziz MeherbuX in pursuance of the aforesaid
criminal conspiracy and during the period January, 1993 to February, 1993
knowingly facilitated the commission of terrorist act and acts preparatory to terrorist
act i.e. bomb blast and such other acts which were committed in Bombay and its
suburbs on 12.3.1993 by doing the following overt acts :-
That you permitted your co- accused Yakoob Abdul Razak Memon to park motor
vehicles laden with arms, ammunition and e X plosives which were part of the
consignment smuggled into the country for committing terrorist act by Mushtaq @
Ibrahim @ Tiger Abdul Razak Memon and his associates and were brought to your
premises by co-accused Abdul Gani Ismail Turq, Asgar Yusuf Mukadam and Rafiq
Madi and also handed over suit cases containing hand granades and detonators to
your co-accused Altaf Ali Mustaq Sayed at the instance of Yakoob Abdul Razak
Memon and thereby you committed an offence punishable under section 3(3) of
TADA (P) Act, 1987 and within my cognizance. THIRDLY :- That you Amjad Abdul
Aziz MeherbuX in pursuance of the aforesaid criminal conspiracy and during the
period 3.2.1993 onwards when arms, ammunition and eXplosives were smuggled into
the country for committing terrorist act by Tiger Memon and his associates were in
possession of part of the consignment i.e, arms, ammunition, handgranades and
eXplosives which were brought in motor vehicles and which were parked in your
compound at the instance of your co-accused Yakoob Abdul Razak Memon and.
therefore, you were in possession of these arms, ammunition, hand granades and
eXplosives unauthorisedly in Greater Bombay with an intent to aid terrorists by
contravening the provisions of Arms Act, 1959, EXplosives Act, 1884, EXplosives

Substances Act, 1908 and EXplosives Rules, 1983 and thereby you committed an
offence punishable under section 6 of TADA (P) Act, 1987 and within my cognizance.
AND I HEREBY direct that you all be tried by me on the said First Charge and
Charges framed for the over acts committed by you in curse of the same transaction
i.e, in pursuance of the
44. A perusal of the aforesaid charge shows that the allegation against Amjad is that he had
permitted co-accused Yakoob Abdul-Razak Memon to park motor vehicles laden with arms,
ammunition and eXplosives in his premises; and that he was possession of the same. Shri Tulsi
contends that this possession was "conscious" and as such in view of what has been held by the
Constitution Bench in Sanjay Dutt's case, 1994 (5) SC 910, the appellant was rightly charged under
section 3(3) of TADA. Our attention is invited by the learned Addl. Solicitor General to the decisions
of this Court in State of Maharashtra vs. Abdul Hamid Haji Mohammed, 1994 (2) SCC 664 and state
of West Bengal vs. Mohd. Khalid etc., 1995 (1) SCC 684, wherein possession of bomb AK-56 was
held sufficient to attract mischief of TADA.
45. In refuting the aforesaid contentions, Shri Jain submitted that the materials on record show the
after this appellant came to know about the parking of the vehicles, which were loaded with arms
and ammunition, he immediately asked Yakoob to remove tho jeep from his compound, as has been
mentioned by the designate Court itself in his order dated 25th September, 1993 by which he had
released this appellant on bail. The Designated Court had further observed in this connection that
this conduct showed that the appellant was not agreeable to allow Yakoob to park his vehicles in his
compound, which showed that he had not intentionally aided Yakoob. The Designated Court had
taken this view by relying on what had been stated by this appellant in his confession, which was
sufficiently corroborated by confession of the co-accused.
46. Shri Jain has, therefore, submitted, and rightly, that the conduct of the appellant is clearly
indicative of the fact that he was neither in conscious possession of the arms, ammunition etc. nor
had he aided Yakoob Memon in any way in the terrorist act. We would, therefore, order for the
discharge of this appellant also by allowing his appeal numbered as Criminal Appeal 810 of 1994.
The general charge would also fail qua this appellant for the reason given while dealing with the case
of the appellant Abu. Raju @ Rajucode Jain
47. We may note the individual charge against this appellant which reads as below "In addition to
charge First, you accused Raju Laxmichand Jain @ Raju Kodi, is also charged for having committed
the following offence in pursuance to the criminal conspiracy described in Charge first:-
SECONDLY:- That you accused Raju Laxmichand Jain @ Raju Kodi in pursuance of the aforesaid
criminal conspiracy and during the period from December, 1992 to April, 1993 abetted and
knowingly facilitated the commission of terrorists act and act preparatory to terrorist act i.e. serial
bomb blast and such other acts which were committed in Bombay and its suburbs on 12.3.1993 by
agreeing to do and by doing the following overt acts:-
(a) That you are a close associate of Mushtaq @ Ibrahim @ Tiger Abdul Razak

(b) That you participated in smuggling, landing and transportation and e Xplosives (RDX) which
were smuggled into the country by Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and his
associates which landed at Shekhadi on 3rd and 7th February, 1993 by sending your men and 4
jeeps for facilitating landing, transportation and distribution of arms, ammunition and eXplosives;
(C) That you lent Motor Scooter No.MP-14-B-5349 which was purchased by you in the name of your
eX-
employee P.B. Bali to Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and his associates which
was planted as Motor Scooter bomb at Katha Bazar on 12.3.1993 and e Xploded at about 14.15 hours
resulting in death of 4 persons, inuring 21 and huge loss of property worth 40 lacs;
and that you thereby committed an offence punishable under Section 3(3) of the TADA (P) Act, 1987
and within my cognizance."
48. Shri Tulsi has urged that there are sufficient materials on record to bring home the aforesaid
charge. We were handed over a summary of these materials reading as below:
i) Association with Tiger Memon: Raju Kodi, being the man of confidence of Tiger
Memon, was dealing in disposal of smuggled gold and silver since long.
He purchased M/scooter in April- 1992 and lent the same to Tiger Memon for
smuggling activities and the same scooter was used as scooter Bomb and e Xploded at
Kathya Bazar.
The Registration papers of the said scooter were recovered at the instance of the Raju
Kodi under a Panchanama dt. 12/07/1993.
Raju Kodi deposited Rs.1,61,48,000/- in the 'Hathi' account maintained by

co-accused Mulchand Shah and belonging to Tiger Memon during the period from
07/11/1992 to 4/12/1992. The same amount was subsequently used by Tiger Memon
for blast purpose. (the 'Hathi' account note was recovered at the instance of co-
accused Mulchand Sampatraj Shah. Raju Kodi purchased the said M/Scooter and 3
Jeeps under fictitious names.
Raju Kodi gave his men and four Jeeps for transportation of Arms, Ammunition and
RDX landed by Tiger Memon. These Jeeps were provided with special cavities to
conceal the arms, ammunition and RDX. These Jeeps were recovered at his instance
under Panchanama dated 1/06/1993. These Jeeps were found with "traces of RDX
vide F.S.L. Reports.
ii) The accused Azgar Yusuf Mukadam is narrating in his confessional statement
about the association of the appellant with Tiger Memon and dealing with him in
smuggling activities and Hawala money

iii) The co-accused Mulchand Sampatraj Shah is narrating in his confessional
statement about the association of the appellant with Tiger Memon and dealing with
him in smuggling activities and Hawala money.
iv) The co-accused Salim Mira Moinddin Shaikh is narrating in his confessional
statement about tie association with Tiger Memon and his smuggling activities.
v) the co-accused viz. Abdul Gani Ismail Turk is narrating in his confession about
association of the appellant with co-accused Tiger Memon and dealing in smuggling
activities and Hawala money.
vi) The co-accused Imtiyaz Yunusmiya Ghavate is narrating in his confession about
association of the appellant with Tiger Memon and dealing in smuggling activities
and Hawala Money."
May it be stated that for the purpose of the present case, we cannot enter into the probative value of
the statements made by different persons in this regard tending to support the above.
49. The Sola submission of Shri Jethmalani was that even if this appellant had knowledge about
transportation of arms, ammunition and RDX brought by Tiger Memon, it cannot be held in law
that he played a part in the conspiracy, and so, the charge under section 3(3) to the Act has to fail.
The materials do not establish even statement. We are afraid this submission cannot be accepted
because of the concept of conspiracy eXplained by us above. Any reasonable person knowing about
transportation of materials like RDX has to be imputed the intent of its use for illegal purpose there
being no material to show that RDX can be put to any Jegal use. Further, as already held, the
prosecution has no obligation under the law to establish that the appellant had know that the RDX,
and for that matter other objectionable materials would be used for the purpose of blasts which had
taken place in Bombay. The alleged fact that the jeeps provided by the appellant had cavities to
conceal arms, ammunition and RDX. and that the Jeeps were recovered at the instance of the
appellant on 1.6.1993 in which were found traces of RDX. would prima facie show that the appellant
had aided the terrorist act in question , even as per the definition of the word "abet" given in section
109 of the Penal Code. The alleged financial assistance provided would attract the enlarged
definition of abetment given in section 2(1)(a)(ii) of the Act.
50. Apropos the case of the persecution that this appellant kept silence despite knowing about the
aforesaid transportation form his driver, the submission of Shri Jethmalani is that there is nothing
to show as to when the appellant had know form his driver about this fact. The learned counsel
asked whether the information was given immediately after the driver had come back or after the
bomb blasts had taken place or after he was arrested ? May we mention that the fact of knowledge of
the aforesaid transportation was know as per the confessional statement of the appellant from his
driver. The further statement in this conte Xt is that despite knowing this he had not disclosed to
anybody about transportation , which according to the appellant was due to the fear of police. Shri
Jethmalani asked the just mentioned questions to persuade us to hold that there was no criminality
in the silence of the appellant in not informing the police about the transportation. Even if some

allowance is made to this part of the submission of the learned counsel, the law of conspiracy. being
as eXplained above, a prima facie case against this appellant under section 3(3) of the Act does e Xist.
The individual charge as well as the general charge, therefore, must be maintained in so far as he is
concerned. So his appeal- the same being criminal appeal 793/95 stands dismissed.
Somnath Thapa
51. This appellant's role in the tragedy is of a higher order inasmuch as being an Addl. Collector of
Customs, Preventive, the allegation is that he facilitated movement of arms, ammunition and
eXplosives which were smuggled into India by Dawood Ibrahim, Mohmed Dosa, Tiger Memon and
their associates, The Addl. Solicitor General was emphatic that a full proof case relating to framing
of charge against him does eXist. Shri Shirodkar was equally emphatic in submitting that materials
on record fall short of establishing a prima facie case against this appellant.
52. Let the additional charge framed against him be noted:
"The you Somnath Kakaram Thapa during the period you were posted as Additional
Collector of Customs, Preventive, Bombay and particularly during the period
January, 1993 to February, 1993 in pursuance of the aforesaid criminal conspiracy
and in furtherance of its object abetted and knowingly facilitated the commission of
terrorists' acts and preparatory to terrorists'' act i.e. bomb blast and such other acts
which were committed in Bombay and its suburbs on 12.3.93 by intentionally aiding
and abetting Dawood Ibrahim Kaskar, Mohmed Dosa and Mushtaq @ Tiger Abdul
Razak Memon and their associates and knowingly facilitated smuggling of arms,
ammunition and eXplosives which were smuggled into India by Dawood Ibrahim
Kaskar, Mohmed Dosa Mushtaq @ Ibhrahim @ Tiger Abdul Razak Memon and their
associates for the purpose of committing terrorists acts by your non interference
inspite of the fact that you had specific information and knowledge that arms
ammunition and e X plosives are being smuggled into the country by terrorists
Preventive you were legally bound to prevent it and that you thereby committed an
offence punishable under Section 3(3) of TADA (p) Act, 1987 and within my
cognizance.
53 According to Shri Tulsi the following materials make out the prima facie case against this
appellant:
(i) Association with Mohd.Dosa: S.N. Thapa has been an associate of absconding
accused Mohd. Dosa, who has played a major role in the conspiracy to cause bomb
blasts. The Tel. Nos. (RES. & official) of S.N. Thapa have been found entered in the
Tel. diary seized form Mohd. Hanif @ Raju, an employee of Mohd. Dosa.
(ii) Association with Tiger Memon: S.N. Thapa has been an associate of Tiger Memon
the prime accused in the bomb blast case, who is still absconding. He has been
facilitating the smuggling activities of Tiger Memon against illegal gratification.

(iii) Meeting with Tiger Memon and Gist of Conversation recorded on Micro
cassettes:
An absconding accused Yakub Abdul Razak Memon was arrested at New Delhi on
5.8.94. From his possession a number of include a manuscript of gist of conversation
recorded on May 19, 1994 on Sony Micro cassettes, in the garden of the house of
Yakub Memon in Karachi (Pakistan). Accused Yakub Memon, Syed Arif (Pakistani
National) Hazi Taufique Jaliawala (Pakistani National) Tiger Memon, Suleman
Memon and Yub Memon had participated in the conversation. This gist of
conversation refers to various matter which show close association of Tiger Memon
with Sh. Thapa. In the gist of conversation there is reference of ISI of Pakistan and
Tiger Memon speaking that one day Sh. Thapa had arrived at sea shore at the time of
illegal landing and that Tiger Memon had paid him Rs.22 lacs for allowing the
smuggling.
The investigation had established that the said gist of conversation is in the
hand-writing of accused Yakub Memon. Independent witnesses and the handwriting
eXpert have proved his handwriting.
(iv) Statement of L.D. Mhatre, Mhatre Customs Inspr.:
L.D. Mhatre introduced a source (witness code No.Q-3360) to S.N. Thapa and it was
decided that the source would pass on information about the illegal landings at
Shekhadi to Sh.Thapa, through Mhatre and on receipt of the information Nakabandi
may be kept at "Sai Morba-Goregoan Junction" because that was the main e Xit point
after the landing. The source gave an information of the landing to Mhatre on 29.1.93
and it was passed on to Sh.Thapa by Mhatre. Thapa kept Nakabandi on the right of
30 & 31st Jan. 1993 at Purar Phata and Behan Phata on Mhasla-Goregoan Road
leaving another route open for the escape of smuggled goods. He did not keep
Nakabandi at the pre-arranged point. He lifted the Nakabandi after two days without
any specific reasons.
The source later on informed Thapa through Mhatre that on the night of 3.2.93
instead of silver same chemicals had landed at Shekhadi. Sh.Thapa did not contact
the source to ascertain further details. Nor did he inform about it to his senior
officers. He also did not submit the Operations Report, as was required.
(v) Statement of Sh.R.K. Singh:
Shri R.K. Singh in his confession, has stated that on the night of 1.2.93 at about 2.00
At Sh.Thapa gave him a telephonic message saving that something had happened
beyond bankot in thelimits of Pune Customs and that he should personally verify.

R.K. Singh, deputed custom officers for this job. On 4.2.93 another accused M.S.
Syed, Customs Superintendent informed R.K. Singh that the smuggled goods and
already passed. R.K. Singh received Rs.3 lacs as illegal gratification for the landing
out of which he gave Rs.1 lacs to Sh.S.N. Thapa.
(v) Awareness about landing : Sh.S.K. Bhardwaj, Collector of Customs,(Prev.) issued

a letter dt.
25.1.93 addressed to Sh.R.K.

Singh and A.K. Hassan
Asstt.Collectors of Customs,
mentioning that intelligence had
been received that big quantity of weapons would he smuggled into India by ISI
alongwith gold and silver and these were likely to be landed in neXt 15-30 days
around Bombay, Shrivardhan, Bankot and Ratnagiri etc. The Collector of Customs
had directed the subordinate officers to keep a close watch & that all-time alert may
be kept. The copy of this letter was also endorsed to Sh.Thapa, who had seen it on
27.1.93.
In addition to the aforesaid letter from the statements of the customs officer, who
had accompanied Sh. Thapa for akabandi on 30th & 31st Jan., 1993, it is clear that
Sh.Thapa had knowledge that arms were likely to he smuggled by Tiger Memon. He
had infact disclosed this information to the subordinate officers at the time of
nakabandi.
Sh.Thapa was conveyed by Sh.V.M. Doyphode, another Addl.Collector of Customs

that landing of smuggled contrabants was about to take place near Mhaysla on the
night of 2.2.93 Sh. Thapa intentionally sent a mis-leading wireless message that
something had happened at Bankot therefore, maximum alert to be Wept in Alibagh
region.
Bankot is in a different direction and far away from Mhasala. Sh.Doyphode had not
mentioned about Bankot.
(vii) Vehicle and Vessel Log Book : When Nakabandi was kept on 30.1.95 by
Sh.Thapa, the Govt. Maruti van No.MH-01-8579 was also taken by Sh.Thapa with
him. However, the investigation had disclosed that the pages of the 109 book for the
period 26.1.93 to 16.2.93 were missing from the log book, as these had been torn
from it.
In Alibagh Div. of Customs Deptt. one patrol vessel Al- Nadsem is provided.
A logbook is maintained for the vessel. The investigation had disclosed that an entry
dt. 2.2.93 has been made in the logbook showing the accused J.K. Gurav, Customs

Inspr. alongwith subordinate staff did see patroling from Shrivardhan to Bankot from
2100 hrs of 2.2.93 to 0070 hrs of 3.2.93. The entry is made by J.K. Gurav, which is
not correct because when compared with the entries made in the wireless logbook of
Shrivardhan Customs office it is seen that patrolling commenced at 2345 hrs. on
2.2.93 and not on 2100 hrs. Inspr. Gurav is also an accused in the case, and had
actively conspired alongwith accused S.N. Thapa and other customs officers."
54. From the above gist it appears that the main allegation to establish the case against Thapa is his
allowing the smuggling of the aforesaid goods by not doing Nakabandi at the pre-arranged point but
at some distance therefrom leaving an escape route for the smugglers to carry the goods upto
Bombay. To appreciate this case of the prosecution, it would be useful to know the topography of the
area, as would appear from the following rough sketch handed over by Shri Tulsi:-
55. Shri Tulsi contended that Thapa had been forewarned by a communication of Shri S.K.
Bhardwaj, Collector of Customs (Preventive) dated 25.1.93 addressed to S/Shri R.K. Singh and A.K.
Hassan, Asstt. Collectors of Customs, that intelligence had been received that big quantity of
weapons would be smuggled into India by Ist alongwith gold and silver which were likely to land in
neXt 15-30 days around Bombay, Shrivardhan, Bankot and Ratnagiri etc., a copy of which was
endorsed to Thapa, who had seen the same. In fact he disclosed this information to his subordinate
officers also. (The fact that Thapa had received a copy of the letter, about which Shri Shirodkar
mentioned many a time, has no significance as copy was apparently sent to apprise Thapa of the
contents, requiring him to take such steps as would have been within the ken and competence of a
high custom official on the preventive side like him). It deserves to be noted that the information
was not only about smuggling of gold and silver alone, but of weapons and that too by the ISI-an
agency alleged to be eXtremely inimical to India. This is not all. Indeed, there are material on record
to show that Thapa had information about landing of RDX (described as 'Kala Sabun' in the under-
world) at Shekhadi and Shrivardhan on 3.2.93. According to Addl. Solicitor General, Thapa had
facilitated the movement or be used to receive fat sum of money from Tiger Memon as quid pro quo
for help in his smuggling activities.
56. Shri Shirodkar strongly refuted the contentions of the Addl.Solicitor General and, according to
him, Nakabandi had been done at the places suggested by the local officers like Inspectors Agarkar
and Kopikar, who had better knowledge of the place of the Nakabandi, and therefore, no fault can be
found with Thapa for having done Nakabandi at a wrong place. As to the motive ascribed, the
submission was that to sustain the same the only matter is of conversation found from the
possession of absconding accused Yakub Memon who was arrested at New Delhi on 5.8.94. The
conversation itself was recorded on a cassette, which, according to Shri Shirodkar, was not at all
audible as was certified by the Doordarshan Center of Bombay. The learned counsel would also
require us to bear in mind that Thapa had been granted bail not only by this Court on 5.9.1994, but
subsequently by the Designated Court on 7.2.1795, which had been done bearing in mind the
materials which had come on record till then.
57. A perusal of the statement made by aforesaid two Inspectors shows that they had made two
statements at two points of time. The first of these has been described as "original statement' by Shri

Shirodkar in his written note and the second as "further statement". In the original statement, these
two Inspectors are said to have told Thapa, on being asked which would be crucial places for laying
trap, that the same were Purar Phata and Behan Phata, at which places trap was in fact laid. But
then, in the further statement the Inspectors are said to have opined that watch should be kept at
Sai-Morba-Goregoan junction, because that was the main eXit point for smuggling done at
Shrivardhan and Shekhadi. Shri Shirodkar would not like us to rely on what was stated subsequently
by these Inspectors, as that was under pressure of investigation undertaken subsequently by the
C.B.I. We do not think that the law permits us to find out at this stage as to which of the two versions
given by two Inspectors is correct. We have said so because at the stage of framing of charge
probative value of the statement cannot be gone into, which would come to be decided at the close of
the trial. There is no doubt that if the subsequent statement be correct, Nakabandi was done not at
the proper place, as that left Sai-Morba Road free for the smugglers to carry the goods upto Bombay.
58. Shri Shirodkar submitted that the Nakabandi was organised at Purar Phata and Behan Phata
also because a trap has to be laid at a little distance from the crucial point so that it may not come to
the notice of all and sundry, which may prove abortive, as information about the same may be
passed on to the smugglers. We do not propose to e Xpress any opinion on this submission also, as
this would be a matter to be decided at the trial when defence version of the case would be
eXamined.
59. As to the motive sought to be established on the basis of a gist of the taps recorded conversation
said to have been recovered from absconding accused Yakub Memon, which contained the
statement that one day Thapa had arrived at sea shore at the time of illegal landing and Tiger
Memon had paid him Rs. 22 lacs for allowing the smuggling, the submission of the learned counsel
is that it is hard to believe that Yakub Memon would have carried in his pocket a gist like the one at
hand. Even if we were to give some benefit to the appellant on this score, that would tend to
demolish the case of the prosecution mainly relatable to motive, which is not required to be
established to bring home an accusation. As to Thapa, the allegation relates to facilitating movement
of arms, RDX etc., which act would amount to abetment, as it would be an assistance, which would
attract clause (iii) of section 2(i)(a) of the Act, defining the word 'abet'. It may be noted that the
individual charge against Thapa is for commission of offence under section 3(3) of TADA, which,
inter alia, makes abetment punishable.
60. Shri Shirodkar submitted that the investigating agency wanted to rope in Thapa any how, which
was apparent from the fact that it took recourse to even manufacturing of evidence, as telephone
number of Dawood Ibrahim was fed in the digital diary found at the residence of this appellant on
search being made. Shri Tulsi e Xplained as to how this aspect of the matter, e Xcept observing that
investigation at times is either sluggish or over zealous - it may over shoot also.
61. All told, we are satisfied that charges were rightly framed against Thapa. This takes us to the
State's appeal arising out of SLP (Crl.) No. 2196 of 1995 in which the prayer is to cancel the bail of
Thapa, which was ordered by this court on April 5, 1994 and then by the Desingated Court by its
order dated February 7, 1995. A perusal of this Court's order shows that when it had e Xamined the
matter, charge-sheet had not been submitted. It was, therefore, desired that the Designated Court

should reconsider in matter with a view to finding out whether the evidence collected in the course
of investigation showed his involvement. A perusal of Designated Court's order shows that though
according to it a case was made out by the prosecution against Thapa, it took the view that there was
want of material which could be tendered as substantive evidence to prove association of Thapa with
Tiger Memon and his associates. And so, it allowed Thapa to continue on bail. On these special facts,
we are not satisfied if a case for cancellation of bail has been made out, despite our taking the view
that charges were rightly framed against him. The State's appeal is, therefore, dismissed.
Conclusion
62. To conclude, appeals of Abu Asim Azmi and Amjad Aziz Meherbu X are allowed and they stand
discharged. Appeals of Raju @ Rajucode Jain and Somnath Thapa are dismissed. The appeal of
State is also dismissed.
63. Before parting, we may say that alongwith these appeals we had heard the case of one Mulchand
Shah, being covered by SLP (Crl. ) No.894 of 1995. But, by an order passed on 31.1.1996 that SLP
had been delinked from these cases, on the prayer of counsel for Shah and was ordered to be listed
separately. So we have not dealt with that SLP.

Union Of India vs Prafulla Kumar Samal & Anr on 6 November, 1978
Author: S M Fazalali
Bench: Fazalali, Syed Murtaza
PETITIONER:
UNION OF INDIA
Vs.
RESPONDENT:
PRAFULLA KUMAR SAMAL &
ANR. DATE OF
JUDGMENT06/11/1978
BENCH:
FAZALALI, SYED
MURTAZA BENCH:
FAZALALI, SYED
MURTAZA DESAI, D.A.
CITATION:
1979 AIR 366 1979 SCR (2) 229
1979 SCC (3) 4
CITATOR INFO :
RF 1986 SC2045 (45)
RF 1990 SC1962 (6)
ACT:
Code of Criminal Procedure, 1973, S. 227-order of
discharge by a Special Judge, scope and ambit.
HEADNOTE:
The second respondent, a Land Acquisition officer,
allegedly, by abusing his official position, concealed the
fact that the land which was the subject matter of
acquisition was really Khasmahal land belonging to the
Government and having made it appear that the first
respondent was the undisputed owner of the same, aided and
abetted him in getting a huge sum of money as
compensation.
The charge-sheet was submitted before the Special
Judge, and the prosecution requested him to frame a charge
against the respondents under ss. 5(2) and 5(1)(d) of the
Prevention of Corruption Act read with s. 120B IPC. The
Special Judge, Puri went through the charge-sheet,
statements made by the witnesses before the police and
other documents, and coming to the conclusion that there

was no sufficient ground for framing a charge against the
respondents, discharged them under s. 227 Cr.P.C.
,1973,

after giving cogent reasons for passing the order of
discharge. In revision the High Court upheld the Special
Judge's order of discharge.
Dismissing the appeal by special leave, the Court
^
HELD: 1. The considerations governing the
interpretation of s. 227 of Cr. P.C. apply mutatis
mutandis to the proceedings under the Prevention of
Corruption Act, after the charge-sheet is submitted before
the Special Judge. At the stage of s. 227, the Judge has
merely to sift the evidence in order to find out whether
or not, there is sufficient ground for proceeding against
the accused. The sufficiency of ground would take within
its fold, the nature of the evidence recorded`by the
police, or the documents produced before the court, which
exfacie disclose that there are suspicious circumstances
against the accused so as to frame a charge against him.
[231E, 233A-B]
State of Bihar v. Ramesh Singh, [1978] I SCR 257; K.
P, Raghavan & Anr. v. M. H. Abbas and Anr.. AIR 1967 SC
740; Almohan Das & Ors. v. State of West Bengal, [1969] 2
SCR 520; applied.
2. What has been acquired is merely the Raiyyati or
the lessee's interest, and as the proprietary interest
vests in the Government itself, there is no question of
either acquiring or claiming compensation for the interest
of the Government. [239B]
Collector of Bombay v. Nusserwanji Rattanji Mistri &
Ors., AIR 1955 SC 298; and The Special Land Acquisition
officer, Hosanagar v. K. S. Ramachandra Rao & Ors., AIR
1972 SC 2224: applied.
230
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 194 of 1977.
(Appeal from the Judgment and order dated 30-8-76 of the Orissa High Court in Criminal Revision
No. 88/76).
Soli J. Sorabjee, Addl. Sol. Gen. and E. C. Agarwala and Girish Chandra for the appellant.
Gobinda Mukhoty and N. R. Chowdhary for the respondent. The Judgment of the Court was
delivered by FAZAL ALI, J. This appeal is directed against the judgment dated 30th August, 1976 of
the High Court of Orissa by which the High Court has upheld the order of the Special Judge, Puri
discharging respondents No. 1 and 2.
The facts of the case lie within a narrow compass and centre round an alleged conspiracy said to
have been entered into between respondents No. 1 and 2 in order to commit offences under sections
5(2) and 5(1)(d) of the Prevention of Corruption Act (hereinafter referred to as the Act) read with
section 120-B I.P.C. The main charge against the respondents was that between 19-2-1972 to 30-3-
1972 the respondent entered into an agreement For the purpose of obtaining pecuniary advantage
for respondent No. 1 P. K. Samal and in pursuance of the said conspiracy the second respondent
Debi Prasad Jena, who was the Land Acquisition officer aided and abetted the first respondent in
getting a huge sum of money for a land acquired by the Government which in fact belonged to the
Government itself and respondent No. 1 was a skew thereof. It is averred in the chargesheet that
respondent No. 1 by abusing his official position concealed the fact that the land which was the
subject matter of acquisition and was situated in Cuttack Cantonment was really Khasmahal land
belonging to the Government and having made it appear that he was the undisputed owner of
the same, got a compensation of Rs. 4,18,642.55. The charge-sheet contains a number of
circumstances from which the inference of the conspiracy is sought to be drawn by the police. After
the charge-sheet was submitted before the Special Judge, the prosecution ousted him to frame a
charge against the respondents. The Special Judge, Puri after having gone through the charge-sheet
and statements made by the witnesses before the police as also other documents came to the
conclusion that there was no sufficient ground for framing a charge against the respondents and he
accordingly discharged them under section 227 of the Code of Criminal Procedure, 1973 hereinafter
called the Code). The Special Judge has given cogent reasons for passing the order of discharge. The
appellant went up to the High Court in revision against the order of the Special Judge refusing to
frame the charge, but the High Court dismissed the revision petition filed by the appellant and
maintained the order of discharge passed by the Special Judge. Thereafter the appellant moved this
Court by ar, application for special leave which having been granted to the appellant, the appeal is
now set for hearing before us.
The short point which arises for determination in this case is the scope and ambit of an order of
discharge to be passed by a Special Judge under section 227 of the Code. The appeal does not raise
any new question of law and there have been several authorities of the High Courts as also of this
Court on the various aspects and grounds on which an accused person can be discharged, but as
section 227 of the Code is a new section and at the time when the application for special leave was
filed, there was no direct decision of this Court on the interpretation of section 227 of the Code, the
matter was thought fit to be given due consideration by this Court.
We might, state, to begin with, that so far as the present case (offences committed under the
Prevention of Corruption Act) is concerned it is regulated by the procedure laid down by the
Criminal Law Amendment Act under which the police has to submit, charge-sheet directly to the
Special Judge and the question of commitment to the Court of Session does not arise, but the
Sessions Judge has nevertheless to follow the procedure prescribed for trial of sessions cases and the
consideration governing the interpretation of section 227 of the Code apply mutatis mutandis to
these proceedings after the charge-sheet is submitted before the Special Judge.
Before interpreting and analysing the provisions of section 227 of the Code so far as pure sessions
trials are concerned, two important facts may be mentioned. In the first place, the Code has
introduced substantial and far reaching changes in the Code of 1898 as amended in 1955 in order to
cut out delays and simplify the procedure, has dispersed with the procedure for commitment

enquiries referred to m section 206 to 213 of the Code, of 1898 and has made commitment more or
less a legal formality. Under the previous Code of 1898 the Magistrate was enjoined to take evidence
of the prosecution witnesses after giving opportunity to the accused to cross-e Xamine the witnesses
2nd was then required to hear the parties and to commit the acceded to the Court of Session unless
he chose to act under section 209 and found that there was no sufficient ground for committing the
accused person for trial. Under the Code the Committing Magistrate has been authorised to peruse
the evidence and the documents produced by the police and commit the case straightaway to the
Sessions Court if the case is one which is e Xclusively triable by the Sessions Court. Thus, it would
appear that the legislature while dispensing with the procedure for commitment enquiry under the
Code of 1898 has conferred a dual responsibility on the Trial Judge who has first to eXamine the
case on the basis of the statement of witnesses recorded by the police and the documents filed with a
view to find out whether a prima facie case for trial has been made out and then if such a case is
made out to proceed to try the same. In our view the legislature has adopted this course in order to
avoid frivolous prosecutions and prevent the accused from being tried of an offence on materials
which do not furnish a reasonable probability of conviction. In the instant case, as the offences
alleged to have been committed by the respondents fall within the provisions of the Act, the Special
Judge has been substituted for the Sessions Judge, the procedure of the Sessions Court having been
applied fully to the trial of such cases. Thus, it is manifest that the accused has not only one
opportunity and that too before the Sessions Judge for showing that no case for trial had been made
out. This was obviously done to eXpedite the disposal of the criminal cases.
Secondly, it would appear that under section 209 of the Code of 1898 the question of discharge was
to be considered by a Magistrate. This power has now been entrusted to a senior Judge, namely, the
Sessions Judge who is to conduct the trial himself and who has to decide before commencing the
trial as to whether or not charges should be framed in a particular case against the respondents The
discretion, therefore, is to be eXercised by a senior and more eXperienced Judge so as to eXclude any
abuse of power. In this view of the matter, it is manifest that if the Sessions Judge e Xercises his
discretion in discharging the accused for reasons recorded by him, his discretion should not
normally be disturbed by the High Court or by this Court.
Section 227 of the Code runs thus:-
"If, upon consideration of the record of the case and the documents submitted therewith, and after
hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that
there is not sufficient ground for proceeding against the accused, he shall discharge the accused and
record his reasons for so doing."
The words 'not sufficient ground for proceeding against the accused' clearly show that the Judge is
not a mere post office to frame the charge at the behest of the prosecution, but has to e Xercise his
judicial mind to the facts of the case in order to determine whether a case for trial has been made
out by the prosecution. In assessing this fact, it is not A necessary for the court to enter into the pros
and cons of the matter or into a weighing and balancing of evidence and probabilities which is really
his function after the trial starts. At the stage of section 227, the Judge has merely to sift the
evidence in order to find out whether or not there is sufficient ground for proceeding against the

accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by
the police or the documents produced before the court which eX facie disclose that there are
suspicious circumstances against the accused so as to frame a charge against him.:
The scope of section 227 of the Code was considered by a recent decision of this Court in the case of
State of Bihar v. Ramesh Singh(1) where Untwalia, J. speaking for the Court observed as follows:-
"Strong suspicion against the accused, if the matter remains in the region of
suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But
at the initial stage if there is a strong suspicion which leads the Court to think that
there is ground for presuming that the accused has committed an offence then it is
not open to the Court to say that there is no sufficient ground for proceeding against
the accused. The presumption of the guilt of the accused which is to be drawn at the
initial stage is not in the sense of the law governing the trial of criminal cases in
France where the accused is presumed to be guilty unless the contrary is proved. But
it is only for the purpose of deciding prima facie whether the Court should proceed
with the trial or not. If the evidence which the Prosecutor pro poses to adduce to
prove the guilt of the accused even if fully accepted before it is challenged in
cross-eXamination or rebut ted by the defence evidence; if any, cannot show that the
accused committed the offence then there will be no sufficient ground for proceeding
with the trial".
This Court has thus held that whereas strong suspicion may not take the place of the proof at the
trial stage, yet it may be sufficient for the satisfaction of ths Sessions Judge in order to frame a
charge against the accused. Even under the Code of 1898 this Court has held that a committing
Magistrate had ample powers to weigh the evidence for the limited purpose of finding out whether
or not a case of commitment to the Sessions Judge has been made out.
(1) [1978]1 S.C.R. 287.
16-817 SCI/78 In the case of K. P. Raghavan and Anr. v. M. H. Abbas and Anr.(1) this Court
observed as follows:-
"No doubt a Magistrate enquiring into a case under S. 209, Cr. P.C. is not to act as a
mere Post office and has to come to a conclusion whether the case before him is fit for
8 commitment of the accused to the Court of Session".
To the same effect is the later decision of this Court in the case of Almohan Das and ors. v. State of
West Bengal(2) where Shah, J. speaking for the Court observed as follows:-
"A Magistrate holding an enquiry is not intended to act merely as a recording

machine. He is entitled to sift and weigh the materials on record, but only for seeing
whether there is sufficient evidence for commitment; and not whether there is
sufficient evidence for conviction. If there is no prima facie evidence or the evidence

is totally unworthy of credit; it is the duty to discharge the accused: if there is some
evidence on which a conviction may reasonably be based, he must commit the case".
In the aforesaid case this Court was considering the scope and ambit of section 209 of the Code of
1898.
Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under
section 227 of the Code has the undoubted power to sift and weigh the evidence for
the limited purpose of finding out whether or not a prima facie case against the
accused has been made out: (2) Where the materials placed before the Court disclose
grave suspicion against the accused which has not been properly e Xplained the Court
will be, fully justified in framing a charge and proceeding with the trial. (3) The test to
determine a prima facie case would naturally depend upon the facts of each case and
it is difficult to lay down a rule of universal application. By and large however if two
views are equally possible and the Judge is satisfied that the evidence produced
before him while (1) A.I.R. 1967 S.C. 740.
(2) [1969] 2 S.C.R. 520.
giving rise to some suspicion but not grave suspicion against the accused, he will be
fully within his right to discharge the accused.
(4) That in eXercising his jurisdiction under section 227 of the Code the Judge which
under the present Code is a senior and e Xperienced Judge cannot act merely as a Post
office or a mouth-piece of the prosecution, but has to consider the broad probabilities
of the case, the total effect of the evidence and the documents produced before the
Court, any basic infirmities appearing in the case and so on. This however does not
mean that the Judge should make a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a trial.
We shall now apply the principles enunciated above to the present case in order to find out whether
or not the courts below were legally justified in discharging the respondents.
Respondent No. 1 was a Joint Secretary in the Ministry of Information and Broadcasting from April,
1966 to January, 1969. Later he worked as Joint Secretary in the Ministry of Foreign Trade till 12-11-
1971. Thereafter, respondent No. 1 was working as Joint Secretary, Ministry of Education and Social
Welfare. The second respondent worked as Land Acquisition officer in the Collectorate, Orissa from
February 1972 to 18th August, 1973.
In the year 1969 the All-India Radio authorities were desirous of having a piece of land for
construction of quarters for their staff posted at Cuttack. In this connection, the said authorities
approached respondent No. 1 who had a land along with structure in the Cantonment at Cuttack. As

the All-India Radio authorities found this land suitable, they approached respondent No. 1 through
his mother for selling the land to them by private negotiation. As this did not materialise, the All-
India Radio authorities moved the Collector of Cuttack to assess the price of the land and get it
acquired. Accordingly, the Tehsildar of the area directed the Revenue officer, Cuttack; to fi X the
valuation of the land of respondent No. 1. The Revenue officer reported back that the land belonged
to respondent No. 1 and was his private land and its value would be fi Xed at Rs. 3000 per guntha. It
is common ground that the land in question was situated in Cuttack Cantonment and was a
Khasmahal land which was first leased out to one Mr. Boument as far back as 1-9-1943 for a period
of 30 years. The lease was given for building purposes. In 1954. Mrs. Boument who inherited the
property after her husband's death transferred the land to respondent No. 1 with the consent of the
Khasmahal authorities. When respondent No. 1 came to know that the land in question was required
by the All-India Radio authorities, he wrote a letter to Mr. . S. Gill on 28th October, 1970 suggesting
that the land- may be acquired but price fi Xed by mutual consent. It may be pertinent to mention
here that in this, letter a copy of which being EX. D-4 (12) is to be found at page 86 of the paper-
book, respondent No. 1 never concealed the fact that the land really belonged to the
Government. In this connection, respondent No. 1 wrote thus:-
"I have represented to you against the revenue authorities quoting a higher price for
similar Government land more adversely situated and a lower price for my land
despite its better strategic location".
We have mentioned this fact because this forms the very pivot of the case of the appellant in order to
assail the judgment of the courts below. A perusal of this letter clearly shows that respondent No. 1
made no attempt to conceal that the land in question was, a Government land which was leased out
to his vendor. A copy of the original agreement which also has been filed shows that under the terms
of the lease, the same is entitled to be renewed automatically at the option of the lessee and unless
the lessee violates the conditions of the lease, there is no possibility of the lease being resumed. As it
is, the lease had been continuing from the year 1943 and there was no possibility or its not being
renewed on 1-9-1973 when the period e Xpired. In these circumstances, therefore, it cannot be said
that the letter written by respondent No. 1 referred to above was an evidence of a criminal intention
on the part of respondent No. 1 to grab the huge compensation by practising fraud on the
Government. Respondent No. 1 a high officer of the Government and was a lessee of the
Government, a fact which he never concealed and if he was able to get a good customer for
purchasing his land or acquiring the same, there was no harm In writing to the concerned authority
to fiX the proper valuation and take the land. There, was no question of any concealment or
malpractice committed by respondent No. 1.
Apart from this, the contention of the appellant that the fact that the land being Khasmahal land
belonging to the Government was deliberately suppressed by the respondents is completely falsified
by the circumstances discussed hereinafter:
The land in question was situated in a Cantonment area and it is not disputed that all
lands in the Cantonment area were Khasmahal Lands belonging to the Government.

The High Court in this connection has observed as follows:
"Government authorities admit that the land in question was known to be Khasmahal
land from the very inception. This must lead to an inference that the authorities knew
that the interest of the opposite party No. 1 in the land was that of a lessee and the
State Government was the proprietor".
The High Court has further observed that a number of witnesses who were e Xamined by the police
had stated that it was common Knowledge that all khasmahal lands in the Cantonment area in
Cuttack were Government lands Relying on the statement of Mr. T. C. Vijayasekharan, Collector,
Cuttack, the High Court observed as follows:-
"Shri Vijayasekharan who has admittedly played an important role in the land
acquisition proceeding has said that it is a matter of common knowledge that all
khasmahal lands in Cantonment area at Cuttack are Government lands. He has
further categorically stated that Shri P. M. Samantray did not put undue pressure of
any kind".
Furthermore, it would appear that Mr. B. C. Mohanty, Land Acquisition officer submitted a report
about the land in question on 15th February, 1971 in which he had clearly mentioned that the land in
question was Government land and that respondent No. 1 was a Pattidar in respect of the land as
shown in the record. Thus, one of the important premises on the basis of which the charge was
sought to be framed has rightly been found by the High Court not to e Xist at all. The records of the
Government showed the nature of the land. Respondent No. 1 at no time represented to the All-
India Radio authorities or the Government that the land was his private one and the records of the
Government clearly went to show that the land was a Government land. In these circumstances,
therefore, it cannot be said that respondent No. 1 acted illegally in agreeing to the land being
acquired by the Government.
Another important circumstance relied on by the appellant was the great rapidity with which the
land acquisition proceedings started and ended clearly shows that the respondents had joined hands
to get the lands acquired and the compensation paid to respondent No. 1. In this connection,
reliance was placed on the fact that the copies of the records of rights were prepared on 30th March,
1972 in which the land was no doubt shown as having been owned by the State. Bhujarat report was
also prepared on the same date. Respondent No. 1 presented his copy of the deed of transfer also on
the same date and respondent No. 2 made the award for Rs. 4,18,642.55 also on the same date. The
entire amount was disbursed also on the same date and possession also was handed over on the
same date. Prima facie, it would appear that the Officer acted in great hurry perhaps at the instance
of respondent No. 1. These circumstances are clearly eXplainable and cannot be said to eXclude every
reasonable hypothesis bu the guilt of respondent No. 1. Admittedly, the All-India Radio authorities
were in a great hurry to get the land acquired and take possession of the same. As respondent No. 1
was a high officer of the I.A.S. cadre there may have been a natural anxiety on the part of the small
officers posted in the district of Cuttack to oblige respondent No. 1 by completing the proceedings as
early as possible and meeting the needs of the All-India Radio.

It would, however, appear that once notices under section 9(1) and 10(1) of the Land Acquisition Act
were issued and the objection filed by the appellant was withdrawn, because there was no one else in
the field, there was no impediment in the way of acquiring the land and taking possession from
respondent No. 1. In fact, it would appear as pointed out by the High Court that as far back as 22nd
February 1972 the Land Acquisition officer who was a person other than the second respondent had
sent a letter to the Government with the counter signature of the Collector for sanctioning the
estimate of acquisition of 2 acres of land belonging to respondent No. 1. Later, however, the area of
the land was reduced from 2 acres to 1.764 acres and revised estimates as desired by the Revenue
department were sent on 7-3-1972. This estimate amounted to Rs. 4,18,642 55 and was sent through
the A.D.M's letter,on 8-3-1972. The Home Department by their letter dated 11-3-1972 sanctioned the
aforesaid estimate. There after, the Government indicated to the Collector that an award might be
passed for acquiring 1.764 acres of land. These facts apart from negativing the allegations of
criminal conduct against the respondents demonstrably prove the untruth of the circumstance
relied upon in the charge-sheet, namely, that unless the respondent No. 1 and 2 acted in concert and
conspiracy with each other, respondent No. 1 could not have known the eXact figure of the
compensation to be awarded to him. In this connection, reliance was placed on a letter written by
respondent No. 1 to the Vigilance officer, L. S. Darbari on 15th March, 1972 where he had mentioned
that as Karta of the H.U.F. he would be getting a compensation of Rs. 4,18,642.55 which is to be
paid to him on the 10th March, 1972 and it was argued that unless the two respondents were in
league with each other how could respondent No. 1 get these details. We are, however, unable to
agree with this contention.
We have already mentioned that a fresh estimate for 1.764 acres was prepared and the total
compensation was Rs. 4,18,642.55 as only the Raiyyati or the lessee's interest was proposed to be
acquired and this letter was sent to the Government for sanction and the estimate was sanctioned on
11-3-1972. It was contended that no notice was given to the Khasmahal department, so that the
Government could claim compensation of the proprietary interest. It is obvious that what has been
acquired in the present case is merely the Raiyyati or the lessee's interest and as the proprietary
interest vests in the Government itself, there is no question of either acquiring or claiming
compensation for the interest of the Government. In the case of Collector of Bombay v. Nusserwanji
Rattanji Mistri & Ors.(1) this Court observed as follows:-
"If the Government has itself an interest in the land, it has only to acquire the other
interests outstanding therein, so that it might be in a position to pass it on absolutely
for public user......................When Government possesses an interest in land which is
the subject of acquisition under the Act, that interest is itself outside such acquisition,
because there can be no question of Government acquiring what is its own. An
investigation into the nature and value of that interest will no doubt be necessary for
determining the compensation payable for the interest outstanding in the claimants,
but that would not make it the subject of acquisition".
To the same effect is a later decision of this Court in the case of The Special Land Acquisition
Officer, Hosanagar v. K. S. Ramachandra Rao & ors.(1) where this Court observed as follows:-

"Mr. M. Veerappa, the learned counsel for the State of Mysore, contends that the
Land Acquisition officer had not assessed the compensation payable for the rights of
the respondents in the land acquired...........We have gone through the Award made
by the Land Acquisition officer. The Land Acquisition officer appears to have valued
the rights of the respondents in the lands acquired. Whether the valuation made by
him is correct or not cannot be gone into these proceedings."
As the appellant was naturally interested in finalising the deal as quickly as possible, there could be
no difficulty in finding out the esti-
(1) AIR 1955 S.C. 298.
(2) AIR 1972 S.C. 2224.
mates which had been sanctioned a week before respondent No. 1 wrote the letter to the Vigilance
Department. This fact proves the bona-fide rather than any wrongful conduct on the part of
respondent No. 1 which may lead to an adverse inference being drawn against him.
Finally, it was argued that what was acquired by the Government was merely the lessee's interest,
but the respondent No. 1 appears to have got compensation as the owner. This is factually incorrect.
We have already referred to the circumstances which clearly show that the Government was fully
aware that it was only the lessee's interest which was being acquired and even the fresh estimate for
Rs. 4,18,642. 55, which was sent to the Government was shown as representing the Raiyyati interest.
Mr. Agarwala appearing for the respondents fairly conceded that having regard to the nature,
character and situation of the land, it could not be said that the amount of compensation awarded
did not represent the market value of the lessee's interest of the land.
On the other hand, in the counter-affidavit at page 87 of the paper book, it has been alleged that 16
sale-deeds eXecuted during the year 1970 and sale-deeds e Xecuted during the year 1971 pertaining to
the village in question were acquired at the rates varying from Rs. 42,165 to 750,000. The High
Court has also pointed out that the records before the Trial Judge show that the Collector
Vijayasekharan had valued the land at the rate of Rs. 1.70 lakhs per acre as far back 1: as 3-2-1970
and if two years later the valuation was raised to Rs. 2 lakhs it cannot be said that the land was in
any way over-valued.
Lastly, there does not appear to be any legal evidence to show any; meeting of mind between
respondents No. 1 and 2 at any time. Although the Collector at the time of the acquisition was a
distant relation of respondent No. 1 he had himself slashed down the rate of compensation
recommended by the Revenue officer from Rs. 2,10,000 to Rs. 2,00,000 and it was never suggested
by the prosecution that the Collector was in any way a party to the aforesaid conspiracy.
For these reasons, therefore, we find ourselves in complete agreement with the view taken by the
High Court that there was no sufficient ground for trying the accused in the instant case. Moreover,
this Court could be most reluctant to interfere with concurrent findings of the two courts in the

absence of any special circumstances.
For the reasons given above, the judgement of the High Court is affirmed and the appeal is
dismissed.
M.R. Appeal dismissed.

R.S. Nayak vs A.R. Antulay & Anr on 17 April, 1986
Author: P Bhagwati
Bench: Bhagwati, P.N. (Cj)
PETITIONER:
R.S. NAYAK
Vs.
RESPONDENT:
A.R. ANTULAY & ANR.
BENCH:
BHAGWATI, P.N.
(CJ) BENCH:
BHAGWATI, P.N.
(CJ) MISRA
RANGNATH
CITATION:
1986 AIR 2045 1986 SCR (2) 621
1986 SCC (2) 716 1986 SCALE
(1)745 CITATOR INFO :
RF 1988 SC1531 (143)
RF 1992 SC1701 (9)
ACT:
Criminal Procedure Code, 1973
Sections 245(1) and 246 - Whether a charge should be
framed against the accused or not - Test of 'prima facie'
case to be applied.
Sections 227, 239 and 245 - Comparison
between. Indian Penal Code, 1860
Sections 161 and 165 - Scope and difference between -
Motive or reward for abuse of office - Relevancy of.
Sections 415 and 420 - Ingredients of Cheating
explained.
Sections 383 and 384 - "extortion" - Ingredients of.
Prevention of Corruption Act, 1947, s. 4 -
Presumption raised under s. 4 is a presumption of law -
It will have to be drawn against an accused once
acceptance of a valuable thing by him is proved.
HEADNOTE:
The respondent was at the relevant time Chief
Minister of the State of Maharashtra. The appellant lodged
a complaint on August 9, 1982 alleging commission of

offences

by the respondent punishable under ss. 161, 165, 384 and 420
read with s. 120B, Indian Penal Ccie as also s. 5(2) read
with s. 5(1)(d) of the Prevention of Corruption Act. It
was alleged in the complaint that the respondent, as the Chief
Minister of the State, had created seven Trusts, one of them
being Indira Gandhi Pratishthan shown to be a Government
Trust and that he extended favours to those who made
donations to the said trusts. In all the trusts, except the
Indira Gandhi Pratibha Pratishthan, the respondent, his
wife, close relations and friends were associated as
trustees.
622
The complaint was registered as Special Case No.
24/82 and was transferred to the High Court of Bombay for
trial under an order of this Court dated Feb. 16, 1984.
Fifty- seven witnesses for prosecution were examined
before the Trial Judge and 43 draft charges were placed
for his consideration. The prosecution examined specific
witnesses with reference to the allegations supporting the
draft charges and documents were also produced to support
the allegations. The Trial Judge framed 21 charges against
the respondent and discharged him in respect of the
remaining 22 charges relating to the offence of cheating,
extortion and conspiracy.
The appellant, aggrieved by the order refusing to
frame charges on 22 heads by the Trial Judge, filed the
present Criminal Appeal by Special Leave.
Allowing the appeal in part,
^
HELD : (By the Court) 1.1 A prima facie case has been
established by the prosecution in respect of the allegations
for charges under ss. 120B , 161 and 165 and 420, IPC, as
also under s. 5(1) read with s. 5(2) of the Act. So far as
the three draft charges relating to the offence punishable
under s. 384, IPC are concerned, the learned Trial Judge was
right in holding that the prosecution failed to make out a
prima facie case. Therefore, except in regard to the three
draft charges under s. 384 , IPC, charges in respect of
the remaining 19 items shall be framed. The appeal is allowed
to that extent. [696 D-F]
1.2 It is still open to the Trial Judge to consider
on the material available, if anyone has to be proceeded
against as a co-conspirator when the charge of conspiracy
punishable under s. 120-B, IPC is framed. Under s. 319 of
the Code de novo trial would be necessary, but it is in
the discretion of the Trial Court to take a decision as to
whether keeping all aspects in view any other person
should be brought in as an accused to be tried for any of
the offences involved in the case. This is a matter in the
discretion of the trial court. [697 F-H]
Per Ranganath Misra, J. (Bhagwati, C.J. Concurring)
2.1 The Code of Criminal Procedure contemplates
623

discharge of the accused by the Court of Sessions under s.
227 in a case triable by it, cases instituted upon a
police report are covered by s. 239 and cases instituted
otherwise than on police report are dealt with in s. 245.
The three sections contain somewhat different provisions
in regard to discharge of the accused. Under s. 227, the
trial Judge is required to discharge the accused if he
"considers that there is no sufficient ground for
proceeding against the accused." Obligation to discharge
the accused under s. 239 arises when "the Magistrate
considers the charge against the accused to be
groundless." The power to discharge is exercisable under
s. 245(i) when "the Magistrate considers for reasons to be
recorded, that no case against the accused has been made
out which, if unrebutted, would warrant his conviction."
[677 B-E]
2.2 Sections 227 and 239 provide for discharge being
ordered before the recording of evidence and the
consideration as to whether charge has to be framed or not
is required to be made on the basis of the record of the
case, including documents and oral hearing of the accused
and the prosecution or the police report, the documents
sent along with it and examination of the accused and
after affording an opportunity to the two parties to be
heard. The stage for discharge under s. 245, on the other
hand, is reached only after the evidence referred to in s.
244 has been taken. Notwithstanding this difference in
the position there is no scope for doubt that the stage at
which the Magistrate is required to consider the question
of framing of charge under s. 245(1) is a preliminary one
and that the test of "prima facie" case has to be applied.
In spite of the difference in the language of the three
sections, the legal position is that if the Trial Court
is satisfied that a prima facie case is made out, charge
has to be framed. Therefore, in order to decide whether
the order of discharge should be sustained or set aside,
the Supreme Court has to consider whether on the material
on record, a prima facie case has been made out on behalf
of the prosecution. [677 E- G]
Mehant Abhey Dass v. S. Gurdial Singh & Ors.,
A.I.R. 1971 S.C. 834; State of Bihar v. Ramesh Singh,
[1978] 1
S.C.R. 257; Nirmaljit Singh Hoon v. State of West Bengal &
Anr., [1973] 2 S.C.R. 66; Chandra Deo Singh v. Prakash
Chandra Bose, [1964] 3 S.C.R. 629; Union of India v.
Prafulla Kumar Samal & Anr., [1979] 2 S.C.R. 229 and
Superintendent and Remembrancer
624
of Legal Affairs, West Bengal v. Anil Kumar Bhunia & Ors .,
[1979] 4 S.C.C. 274, relied upon.
In the instant case, the oral evidence is backed up
by documentary evidence. Some of the relevant documents
have interpolations and the inquiry relating to
interpolation has not become final. It is indeed difficult

at this stage to say that the evidence as a whole is
inadequate to establish

the prima facie case. The learned Trial Judge, extracted
at great length both the oral evidence as also the
contents of documents but there was not much of analysis
to justify rejection of the material. The learned Trial
Judge adopted two different standards in the matter of
weighing the same evidence when he agreed to frame 21
charges which were inter-linked and interconnected with
the rest of the prosecution story with reference to which
the draft charges had been given. If the evidence was
accepted for half the number of charges relating to
similar offences, there could hardly be any scope to
reject the 22 draft charges. Similarly in regard to the
charge of conspiracy the facts were inter-connected and
there could be no justification to reject the charge even
if the other persons implicated were not before the court.
The reasoning given by the learned Trial Judge in support
of his order of discharge in regard to the draft charges
relating to ss. 161 and 165, IPC and s. 5(2) read with s.
5(1) of the Act, concerning these transactions cannot,
therefore, be sustained. [683 D-H; 684 A-B]
3.1 Under s. 245(i) of the Code the requirement is
that the evidence must be such which if not rebutted would
warrant conviction of the accused. Under the law of
evidence the concept of rebuttable presumption is well-
known. Rebuttable presumptions of law are a result of the
general experience of a connection between certain facts
or things one being usually bound to be companion or
effect of the other. The connection, however, in this
class is not so intimate or so uniform as to be
conclusively presumed to exist in every case; yet, it is
so done that the law itself without the aid of a jury
infers one fact from the crude existence of the other in
the absence of opposing evidence. In this mode, the law
advances the nature and amount of the evidence which is
sufficient to establish a prima facie case and throws the
burden of proof upon the other party; and if no opposing
evidence is offered, the jury are bound to find in favour
of the presumption. A contrary verdict
625
might be set aside as being against evidence. The rules in
this class of presumptions as in the former have been
adopted by common consent from motives of public policy
and for the promotion of the general good; yet not as in
the former (conclusive proof) class forbidding all further
evidence but only dispensing with it till some proof is
given on the other side to rebut the presumption raised.
Thus, as men do not generally violate the Penal Code, the
law presumes every man to be innocent; but some men do
transgress it; and therefore, evidence is received to
repel this presumption. [684 B-G]
3.2 The presumption raised under s. 4 of the
Prevention of Corruption Act is a presumption of law which
a court is bound to draw, once it is proved that the
accused Government servant received or obtained a

valuable thing in the

circumstances mentioned in that section. [685 E]
In the instant case, the learned Trial Judge should
have proceeded to scan the evidence keeping in view the
concept of rebuttable presumption. He also failed to take
note of s. 4 of the Act while dealing with the charges
under ss. 161 and 165, IPC as also s. 5(1)(a) and (b) of
the Act. It is hoped that while dealing with the case
after the framing of the charges, the learned Trial Judge
will keep this legal position in mind and act accordingly.
[685 F-G]
The State of Madras v. A. Vaidyanatha Iyer, [1958]
S.C.R. 580 and K. Satwant Singh v. State of Punjab, [1960] 2
S.C.R. 592, referred to.
4.1 The main ingredients of the charge under s. 161,
IPC are :
(i) that the accused was a public servant, (ii) that
he must be shown to have obtained from any person any
gratification other than legal remuneration; and (iii)
that the gratification should be as a motive or reward
for doing or forbearing to do any official act or for
showing or forbearing to show, in the exercise of his
official function, favour or disfavour to any person.
[685 H; 686 A- C]
Ordinarily, when the first two ingredients are
established by evidence, a rebuttable presumption arises
in respect of the third. [686 C]
626
4.2 For an offence under s. 165, IPC, the essential
ingredients are : (i) the accused was a public servant
;
(ii) he accepted or obtained or agreed to accept or obtain
a valuable thing without consideration or for an
inadequate consideration knowing it to be inadequate ;
(iii) the person giving the thing must be a person
concerned or interested in or related to the person
concerned in any proceeding or business transacted or
about to be transacted by the government servant or having
any connection with the official of himself or of any
public servant to whom he is subordinate; and (iv) the
accused must have knowledge that the person giving the
thing is so concerned or interested or related. [686 C-G]
4.3 Section 165 is so worded as to cover cases of
corruption which do not come within ss. 161, 162 or
163. Indisputably the field under s. 165 is wider. If public
servants are allowed to accept presents when they are
prohibited under a penalty from accepting bribes, they would
easily circumvent the prohibition by accepting the bribe in
the shape of a present. The difference between the
acceptance of a bribe made punishable under s. 161 and
165, IPC is that under the former section the present is
taken as a motive or reward for abuse of office; under the
latter section the question of motive or reward is wholly
immaterial and the acceptance of a valuable thing without
consideration or with inadequate consideration from a

person who has or is likely to have any business to be
transacted,

is forbidden because though not taken as a motive or
reward for showing any official favour, it is likely to
influence the public servant to show official favour to
the person giving such valuable thing. [686 G-H; 687 A-C]
4.4 The provisions of ss. 161 and 165 IPC as also s.
5 of the Act are intended to keep the public servant free
from corruption and thus ultimately ensure purity in
public life. [687 C]
In the instant case, the evidence, therefore, should
have been judged keeping these aspects in view. [687 C]
5. The main ingredients of the offence of extortion in
s. 383, IPC are : (i) the accused must put any person in
fear of injury to that person or any other person; (ii)
the putting of a person in such fear must be intentional ;
(iii) the
627
accused must thereby induce the person so put in fear to
deliver to any person any property, valuable security or
anything signed or sealed which may be converted into a
valuable security; and (iv) such inducement must be done
dishonestly. [690 E-H]
Before a person can be said to put any person to fear
of any injury to that person, it must appear that he has
held out some threat to do or omit to do what he is
legally bound to do in future. If all that a man does is
to promise to do a thing which he is not legally bound to
do and says that if money is not paid to him he would not
do that thing, such act would not amount to an offence of
extortion. [691 A-B]
Habibul Razek v. King Emperor, A.I.R. 1924 All 197,
relied upon.
In the instant case, there is no evidence at all to
show that the managements of the sugar co-operatives had
been put in any fear and the contributions had been paid
in response to threats. Merely because the respondent was
Chief Minister at the relevant time and the sugar co-
operatives had some of their grievances pending
consideration before the Government and pressure was
brought about to make the donations promising
consideration of such grievances, possibly by way of
recipro-city, there is no justification that the
ingredients of the offence of extortion have been made
out. The evidence led by the prosecution falls short of
the requirements of law in regard to the alleged offence
of extortion. [691 C-D]
6.1 Cheating is defined in s. 415 of the IPC and the
ingredients for that offence are : (i) there should be
fraudulent or dishonest inducement of a person by
deceiving him; (ii) the person so induced should be
intentionally induced to deliver any property to any
person or to consent that any person shall retain any
property, or (iii) the person so induced should be
intentionally induced to do or to omit to do anything
which he would not do or omit if he were not so deceived;

and (iv) in cases covered by the

second part of the act or omission should be one which
caused or is likely to cause damage or harm to the person
induced in body, mind, reputation or property. [695 C-F]
6.2 Section 415 actually consists of two parts, each
part dealing with one way of cheating -
628
(i) Where, by deception practised upon a person
the accused dishonestly or fraudulently induced
that person to deliver property to any person or
to consent that any person shall retain any
property;
(ii) Where, by deception practised upon a
person, the accused intentionally induces that
person to do or omit to do anything which he
would not do or omit to do, if he were not so
deceived and which act or omission causes or is
likely to cause damage or harm to that person in
body, mind, reputation or property. [695 G-H;
696 A]
In the instant case, the learned Trial Judge failed to
analyse the evidence which he had at great length extracted
keeping the proper angle of approach in view. Therefore, his
conclusion is not made on a proper assessment and is not
sustainable. The evidence, oral and documentary, taken
together does justify the framing of a charge for the
offence under s. 420, IPC. However, the position is a
presumptive one open to rebuttal by the respondent. A charge
under s. 420, IPC, should, therefore, be framed by the
learned Trial Judge against the respondent. [696 B-D]
7. There must be an assumption that whatever is
published in the Government owned paper correctly
represents the actual state of affairs relating to
Governmental business until the same is successfully
challenged and the real state of affairs is shown to be
different from what is stated in the Government
publication. [693 B-C]
Harpal Singh & Anr. v. State of Himachal Pradesh,
[1981] 1 S.C.C. 560, relied upon.
Per Bhagwati, C.J. (Ranganath Misra, J. concurring)
8.1 When the court is considering under s. 245 sub-s.
(1) of the Code of Criminal Procedure whether any case
has been made out against the accused which, if unrebutted,
would warrant his conviction, it is difficult to understand
as to how the court can brush aside the presumption under s.
4 of the Prevention of Corruption Act, 1947. Sub.s. (1) of
s. 4 of that Act provides that where in any trial of an
offence
629
punishable under 8. 161 or 165 of the Indian Penal Code
or of A an offence referred to in cl. (a) or cl. (b) of
sub-s.
(1) of 8. 5 of that Act it is proved that an accused has
accepted or obtained or has agreed to accept or admitted
to obtain for himself or for any other person, any

gratification (other than legal remuneration) or any
valuable thing from any person, it shall be presumed,
unless

the contrary is proved, that he accepted or obtained or
agreed to accept or admitted to obtain, that gratification
or that valuable thing as a motive or reward such as is
mentioned in s. 161 or as the case may be, without
consideration or for a consideration which he knows to be
inadequate. When the Court is called upon to consider
whether a charge should be framed or not the question to
which the Court has to address itself is whether the
evidence led on behalf of the prosecution is such that, if
unrebutted, it would justify the conviction of the accused
and the court has, therefore, to examine the evidence as
it stands without rebuttal and come to a conclusion
whether on the basis of such evidence the court would
convict the accused and where the offence charged against
the accused is under s. 161 or s. 165 or cl. (a) or
clause (b) or sub-s.
(1) or 8. 5, the court must necessarily apply the
presumption under 8. 4 while considering whether on the
basis of the unrebutted evidence which is before it the
court would convict the accused. Therefore, even for the
purpose of considering whether a charge should be framed
or not the presumption under 8. 4 must be taken into
account. [632 A-G]
8.2 Sections 161 and 165 of the IPC have been enacted
by the Legislature with a view to eradicating corruption
in public life. The court must therefore interpret 8. 165
according to its plain language without in any manner
being anxious or astute to narrow down its interpretation.
Section
165 must be construed in a manner which would advance the
remedy and suppress the mischief which is intended to be
curbed. [634 D-E]
R.C. Jacob v. Union of India, [1963] 3 S.C.R. 800,
relied upon.
8.3 Section 165 is wider than 8. 161 and an act of
corruption not falling within s. 161 may yet come within
the wide terms of s. 165. What 8. 161 envisages is that
any
630
gratification other than legal remuneration should have
been accepted or obtained or agreed to be accepted or
attempted to be obtained by the accused for himself or for
any other person as a motive or reward for doing or
forbearing to do any official act or for showing or
forbearing to show, in the exercise of his official
function, favour or disfavour to any person, or for
rendering or attempting to render any service or
disservice to any person, while s. 165 does not require
taking of gratification as a motive or reward for any
specific official action, favour or service but strikes
at obtaining by a public servant of any valuable thing
without consideration or for a consideration which he
knows to be inadequate from any person whom he knows to
have been or to be or likely to be concerned in any

proceeding or business transacted or about to be
transacted by such public servant or having any connection
with the official functions of himself or of any
public servant to whom he is

subordinate or from whom any person whom he knows to be
interested in or related to the person so concerned.
Whereas under s. 161 it is necessary to establish that the
taking of gratification must be connected with any
specific official action, favour or service by way of
motive or reward, no such connection is necessary to be
proved in order to bring home an offence under s. 165 and
all that is necessary to establish is that a valuable
thing is accepted or obtained or agreed to be accepted or
attempted to be obtained by a public servant from any
person whom he knows to have been or to be likely to be
concerned in any proceeding or business transacted or
about to be transacted by such public servant or having
any connection with the official function of such public
servant and such valuable thing has been accepted or
obtained without consideration or for a consideration
which such public servant knows to be inadequate. [634 F-
H; 635 A- E]
The reach of s. 165 is definitely wider than that of s.
161. Moreover, it is clear from illustration (c) to s.
165 that money or currency is regarded by the Legislature as
a valuable thing and if it is accepted or obtained by a
public servant without consideration or
for inadequate consideration in the
circumstances set out in s. 165, such public servant would be
guilty of an offence under that section. [635 E-F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 658 of 1985.
From the Judgment and Order dated 23/24/29/30th April, 1985 of the Bombay High Court in
Special Case No. 24 of 1982.
Ram Jethmalani, M.V. Katarke, Jai Singhani, Mahesh Jethmalani, K.N. Ma Madhusoodhanan
Satish Maneshinde and Ms.Rani Jethmalani for the Appellants L.N. Sinha, P.P. Rao, S.B. Bhasme,
R.D. Ovalekar, D.R. Gadgil, Miteen V. Pradhan, Rajendra S. Desai, V.M. Kanade, Mahesh
Rajedhyaksha, P.P. Singh, A.S. Bhasme, A.M Khanwilkar and M.N. Shroff for the Respondents.
The following Judgments of the Court were delivered C BHAGWATI, C.J. I agree with the judgment
about to be delivered by my learned brother Ranga Nath Misra, but there are some two or three
charges in regard to which I should like to make more detailed observations since they have not
been dealt fully by my learned brother and he has left it to me to consider them in some detail. Since
the genesis of this appeal has been set out by my learned brother at length I do not propose to repeat
what has been so ably said by him and I will confine myself only to the facts relating to the charges
which are going to be dealt with by me But I may be permitted to say a few words in regard to two
points which have been discussed by my learned brother in his judgment since they are of some
importance and can without impropriety bear further discussion.
The first point arises out of a contention raised by the learned counsel appearing on behalf of the
first respondent (hereinafter referred to as the 'respondent') that the presumption under Section 4
of the Prevention of Corruption Act 1947 applies only after a charge is framed against an accused
and has no application at the stage when the court is considering the question whether a charge
should be framed or not. It is said in geometry that a point has position but no magnitude, but we
are constrained to observe that this point raised on behalf of the first respondent has not only no
magnitude but has even no position. It is wholly without substance and indeed it is surprising that it
should have been raised by the learned counsel appearing on behalf of the first respondent. When
the court is considering under Section 245 sub-section (1) of the Code of Criminal Procedure
whether any case has been made out against the accused which if unrebutted would warrant his
conviction, it is difficult to understand as to how the court can brush aside the presumption under
Section 4 of the Prevention of Corruption Act, 1947. Sub-section (1) of Section 4 of that Act provided
that where in any trial of an offence punishable under Section 161 or Section 165 of the Indian Penal
Code or of an offence referred to in clause (a) or clause (b) of sub- section (1) of Section 5 of that Act
it is proved that an accused has accepted or obtained or has agreed to accept or admitted to obtain
for himself or for any other person, any gratification (other than legal remuneration) or any valuable
thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or
obtained or agreed to accept or submitted to obtain, that gratification or that valuable thing as a
motive or reward such as is mentioned in Section 161 or as the case may be, without consideration
or for a consideration which he knows to be inadequate. When the court is called upon to consider
whether a charge should be framed or not the question to which the court has to address itself is
whether the evidence led on behalf of the prosecution is such that if unrebutted it would justify the
conviction of the accused and the Court has, therefore, to e Xamine the evidence as it stands without
rebuttal and come to a conclusion whether on the basis of such evidence the court would convict the
accused and where the offence charged against the accused is under Section 161 or Section 165 or
clause (a) or clause (b) of sub-section (1) of Section 5 the Court must necessarily apply the
presumption under Section 4 while considering whether on the basis of the unrebutted evidence
which is before it the court would convict the accused. We do not therefore see any substance in the
contention raised on behalf of the first respondent and we must proceed to dispose of this appeal on
the basis that even for the purpose of considering whether a charge should be framed or not the
presumption under Section 4 must be taken into account.
The second point on which considerable controversy was raised before us related to the scope and
ambit of Section 165 of the Indian Penal Code. I agree with my learned brother that it may not be
desirable at this stage to define the precise ambit and coverage of Section 165 because that is a
matter which will have to be considered by the Nigh Court in depth when the case goes back before
the High Court and the first respondent is called upon to face his trial on the charges framed against
him. But it is necessary to indicate the broad parameters of Section 165 and to emphasize the basic
distinction which eXists between that Section and Section
161. It may be pointed out straight away that these two sections have been enacted by the Legislature
with a view to eradicating corruption in public life. We may usefully quote here the following
pertinent observations made by this Court in Re Special Courts Bill which came by way of
Presidential Reference and which is reported in 1979 (2) S.C.R. 476 ". As I read it, this measure is

the embryonic eXpression of a necessitous legislative project, which, if full-fledged, will work a
relentless break-through towards catching, through the compulsive criminal process, the higher
inhabitants of Indian public and political decks, who have in practice, remained 'untouchable' and
'unapproachable' to the rule of law. 'Operation Clean Up' is a 'consummation devoutly to be wished',
although naive optimism cannot obfuscate the obno Xious eXperience that laws made in terrorem
against those who belong to the top power bloc prove in action to be paper tigers. The pathology of
our public law, with its class slant, is that an unmincing ombudsman or sentinel on the qui vive with
power to act against those in power, now or before, and offering legal access to the informed citizen
to complain with immunity does not e Xist, despite all the bruited umbrage of political performers
against peculations and perversions by higher echelons. Law is what law says and the moral gap
between word and deed menaces people's faith in life and law. And then, the tragedy - democracy
becomes a casualty." "The impact of 'summit' crimes in the Third World setting is more terrible than
the Watergate syndrome as perceptive social scientists have unmasked. Corruption and
repression-cousins in such situations-hijack developmental processes. And, in the long run, lagging
national progress means ebb ing peop1e's confidence in constitutional means to social justice. And
so, to track down and give short shrift to these heavy-weight criminaloids who often mislead the
people by public moral weight lifting and multipoint manifestoes is an urgent legislative mission
partially undertaken by the Bill under discussion. To punish such super offenders in top positions,
sealing off legalistic escape routes and dilutory strategies and bringing them to justice with high
speed and early finality, is a desideratum voiced in vain by Commissions and Committees in the past
and is a dimension of the dynamics of the Rule of Law. "
The Court must therefore interpret Section 165 according to its plain language without in any
manner being anxious or astute to narrow down its interpretation. Section 165 must be construed in
a manner which would advance the remedy and suppress the mischief which is intended to be
curbed. This was the canon of construction which was adopted by this Court in interpreting Section
165 in R.C. Jacob v. Union of India, [1963] 3 S.C.R. 800. There are a few decisions of ancient vintage
which have dealt with the interpretation of Section 165 but since we are not finally laying down the
true scope and ambit of Section 165 we do not propose to discuss these decisions. Suffice it to point
out at the present stage that on its plain terms Section 165 is wider than Section 161 and that an act
of corruption not falling within Section 161 may yet come within the wide terms of Section 165. What
Section 161 envisages is that any gratification other than legal remuneration should have been
accepted or obtained or agreed to be accepted or attempted to be obtained by the accused for
himself or for any other person as a motive or reward for doing or forbearing to do any official act or
for showing or forbearing to show, in the e Xercise of his official function, favour or disfavour to any
person, or for rendering or attempting to render any service or disservice to any person, while
Section 165 does not require taking of gratification as a motive or reward for any specific official
action, favour or service but strikes at obtaining by a public servant of any valuable thing without
consideration or for a consideration which he knows to be inadequate, from any person whom he
knows to have been or to be or likely to be concerned in any proceeding or business transacted or
about to be transacted by such public servant or having any connection with the official functions of
himself or of any public servant to whom he is subordinate or from whom any person whom he
knows to be interested in or related to the person so concerned. Whereas under Section 161 it is
necessary to establish that the taking of gratification must be connected with any specific official

action, favour or service by way of motive or reward, no such connection is necessary to be proved in
order to bring whom an offence under Section 165 and all that is necessary to establish is that a
valuable thing is accepted or obtained or agreed to be accepted or attempted to be obtained by a
public servant from any person whom he knows to have been or to be likely to be concerned in any
proceeding or business transacted or about to be transacted by such public servant or having any
connection with the official function of such public servant and such valuable thing has been
accepted or obtained or agreed to be accepted or attempted to be obtained without consideration or
for a consideration which such public servant knows to be inadequate. The reach of Section 165 is
definitely wider than that of Section 161. Moreover, it is clear from illustration (c) to Section 165 that
money or currency is regarded by the Legislature as a valuable thing and if it is accepted or obtained
by a public servant without consideration or for inadequate consideration in the circumstances set
out in Section 165, such public servant would be guilty of an offence under that Section Having said
this much on the interpretation of Section 165 we now proceed to e Xamine the facts on the basis of
which the High Court has declined to frame certain charges against the first respondent.
We will first deal with the 35th, 36th and 37th of the draft charges which were submitted by the
learned counsel for the appellant before the High Court and on the basis of which the High Court
was invited by him to frame charges against the first respondent These charges related to a
transaction in which according to the appellant, a sum of Rs. 8 lakhs was paid by one Ramesh
Merchant and his partners by way of contribution to Indira Gandhi Pratibha Pratishthan on 16th
April 1981 as a motive for the granting of no objection certificate by the first respondent for letting
out of certain premises by M/s Nanubhai Jewellers of which Ramesh Merchant and some others
were partners to Indo-Suez Bank. The facts giving rise to these charges in so far as relevant may be
briefly stated as follows.
There was a firm called M/s Nanubhai Jewellers which was in possession of certain ground floor
premises situate at 113/ 115, Mahatma Gandhi Road, Fort, Bombay as a tenant. There were various
changes in the constitution on this firm from time to time but we are not concerned with these
changes in the present appeal. What is material to note is that at the relevant time this firm
consisted of Mukesh Dadlani, Lal Chand Rohra, Ramesh Merchant his father and two other
partners. The rent payable by this firm was originally Rs. 3000 per month but under a new
agreement of lease dated 27th September 1979 the rent was raised to Rs. 15000 per month in
consideration of the landlords giving to the tenant power to sub-let the premises. It seems that since
1979-80 this firm was incurring losses and was not in a position to make use of the premises for its
own purposes and hence it decided to sub-let the entire premises barring about 500 sq. ft. to Indo-
Suez Bank at a monthly rent of Rs. 1,24,120 and an agreement of lease was entered into between
them on 12th December 1980. But it was not possible for this firm to sub- let the premises to Indo-
Suez Bank without a no objection certificate from the Controller of Accommodation in view of the
Bombay Land Requisition Act 1948. The partners of this firm therefore made an application to the
Controller of Accommodation on 13th January 1981 pointing out that the Indo Suez Bank had
approached them with a request to allow them to use the premises for the purpose of opening their
branch office in Bombay and that it would be advantageous to the country to make it possible for the
Indo-Suez Bank to open a branch office and requesting the Controller of Accommodation "to grant
the necessary permission............to permit the Bank to use the premises on sub-lease basis". Though

this application was dated 13th January 1981, it appears from the endorsement made on the
application that it was received in the office of the Controller of Accommodation on 11th February
1981. Thereafter on 19th February 1981 an officer from the office of the Controller of
Accommodation visited the premises and certain documents relating to the partnership of M/s
Nanubhai Jewellers were handed over by Lal Chand Rohra and the father of Ramesh Merchant to
such officer. They also handed over to such officer copies of the rent receipts for November, 1973
and November, 1980 as also a XeroX copy of the registration certificate of the firm under the
Bombay Shops and Establishments Act. Ramesh Merchant several times went to the office of the
Controller of Accommodation for no- objection certificate but he was told that the application was
under process. Now the record shows that on 14th February, 1981 a noting was made in the file
seeking a direction whether suppressed vacancy inquiry should be made to ascertain whether the
premises could be requisitioned as a suppressed vacancy or whether the no objection certificate
should be granted. Further inquiry was thereupon made for the purpose of determining whether
there was a suppressed vacancy in respect of the premises and after such inquiry was completed a
further noting was made on 2nd March 1981 recommending that in view of the facts set out in that
noting "it is for orders whether we may consider the request and grant" the no objection certificate
in this case. Shri Rawat, who was an Accommodation Officer, made an endorsement on the foot of
his further noting pointing out that according to the inquiry made by the office no vacancy had
actually occurred at any time in the premises and there was accordingly no suppressed vacancy and
moreover only a part of the premises was proposed to be sub-let by the firm of M/s Nanubhai
Jewellers and hence the premises could not be requisitioned as a suppressed vacancy and
consequently no objection certificate might be granted. The file containing these notings thereafter
went to the Additional Chief Secretary who also placed his signature below that of Shri Rawat
indicating his agreement with the endorsement made by Shri Rawat. The date below the signature of
the Additional Chief Secretary is a little doubtful but we can safely take it to be 2nd March F 1981
since there is an endorsement at the bottom of the page showing that the file was received in the
Secretariat of the Additional Chief Secretary on 12th March 1981 and obviously it must have gone to
the Secretariat to the Chief Minister after making of the endorsement by the Additional Chief
Secretary. The page of the file containing the endorsement of Shri Rawat also contains in red ink an
endorsement made by the first respondent and this endorsement reads "in view of "lA", "B" may be
done" and below this endorsement is the signature of the first respondent and below that is the date
which presently reads 16/3. We shall revert to this endorsement of the first respondent a little later
when we eXamine the arguments urged on behalf of the parties.
Now according to the evidence of Ramesh Merchant he came to know from the staff of the office of
the Controller of Accommodation in the first week of April, 1981 that file rebting to their application
for no objection certificate had been forwarded to the first respondent. Ramesh Marchant knew the
first respondent quite-well since he and his father had been stitching clothes for the first
respondent. Ramesh Merchant therefore, after consulting his partners, went to the residence of the
first respondent a day or two after he received the above information that the file had been
forwarded to the first respondent. Ramesh Merchant stated in his evidence that he told the first
respondent about the application for permission made on behalf of the firm of M/s Nanubhai
Jewellers and requested the first respondent to sanction grant of no objection certificate stating that
he and his father were partners in that firm. The first respondent stated that he knew that the file of

the firm of M/s Nanubhai Jewellers had been forwarded to him and that Lf the premises were to be
given to a Bank there could be no objection to grant of a no objection certificate. The first
respondent, however, asked Ramesh Merchant "to make a handsome donation to the Indira Gandhi
Pratibha Pratishthan" and when Ramesh Merchant asked the first respondent as to how much he
would like them to donate, the first respondent asked Ramesh Marchant to donate Rs. 10 lakhs.
Ramesh Merchant thereupon pointed out to the first respondent that there was a registered
agreement between the Government of India and the Government of France whereunder the
Government of France had permitted the State Bank of India to open its Branch at Paris and the
Government of India had consequently permitted Indo- Suez Bank to open its Branch at Bombay
and he accordingly requested the first respondent "to name a reasonable amount for donation". The
first respondent, according to the evidence of Ramesh Merchant considered his request
sympathetically and asked him to donate Rs. 8 lakhs. Ramesh Merchant thereupon told the first
respondent that he would consult his other partners and let him know. Ramesh Merchant thereafter
contacted Lal Chand Pohra and other partners and told them that he had met the first respondent in
connection with the grant of no objection certificate and the first respondent had demanded Rs. 10
lakhs for the no objection certificate but it was ultimately agreed that the firm of M/s Nanubhai
Jewellers would pay Rs; 8 lakhs by way of donation to a Government Trust namely Indira Gandhi
Pratibha Pratishthan. Lal Chand Rohra and other parties agreed to donate the amount of Rs. 8 lakhs
to Indira Gandhi Pratibha Pratishthan and a cheque for Rs. 8 lakhs was accordingly issued by the
partners of the firm of M/s Nanubhai Jewellers. Ramesh Merchant took this cheque to the first
respondent at his residence on 16th April 1981 and on being informed that a cheque had been
brought the first respondent called one of his secretaries and asked Ramesh Merchant to hand-over
the cheque to him. Ramesh Merchant accordingly handed over the cheque for Rs. 8 lakhs to the
Secretary. Ramesh Merchant was at this stage in his evidence asked the following question by the
learned counsel appearing on behalf of the appellant.
What did the accused tell you about the NOC ? and to this question the following answer was given
by Ramesh Merchant :
"The accused told me that the needful would be done in the matter."
Ramesh Merchant reiterated in cross-eXamination by the learned counsel appearing on behalf of the
first respondent:
"After I handed over the cheque the accused stated that he will do the needful in the matter."
The no objection certificate was thereafter issued by the office of the Controller of Accommodation
on 18th April 1981. On these facts the learned counsel appearing on behalf of the appellant
submitted that offences under Section 161, 165 of the Indian Penal Code and Section 5(2) read with
Section 5(1) (d) of the Prevention of Corruption Act 1947 were clearly made out on behalf of the
prosecution so as to warrant the framing of charges for the said offences against the first
respondent.

It is clear from the cross-e Xamination of Ramesh Merchant by the learned counsel on behalf of the
first respondent that the case of the first respondent was that Ramesh Merchant had not gone to
visit the first respondent on either at the two occasions depose to by him nor had Ramesh Merchant
offered the cheque of Rs. 8 lakhs to the Chief Minister but that the cheque of Rs. 8 lakhs was sent by
the father of Ramesh Merchant directly to the Secretary, Indira Gandhi Pratibha Pratishthan along
with a letter dated 16th April 1981. The learned counsel for the first respondent contended that the
donation of Rs. 8 lakhs by the partners of the firm of M/s Nanubhai Jewellers to Indira Gandhi
Pratibha Pratishthan had nothing to do with the grant of no objection certificate and that the two
were totally distinct transactions not having any connection with each other. The order of grant of
no objection certificate to the firm of M/s Nanubhai Jewellers had according to the learned counsel
for the first respondent already been made by the first respondent on 16th March 1981 and for this
purpose he relied on the endorsement in red ink made by the first respondent in the file relating to
the grant of no objection certificate at the bottom of the page containing the endorsement of Shri
Rawat. The argument of the learned counsel for the first respondent was that if the order for grant of
no objection certificate had already been made by the first respondent on 16th March 1981 there
could possibly be no connection between the grant of no objection certificate and the donation of Rs.
8 lakhs which came to be independently made on 16th April 1981. This argument is prima facie
specious and does not appeal to us. We do not see any reason why for the purpose of considering
whether a charge should be framed or not we should disbelieve the evidence of Ramesh Merchant
and Lalchand Rohra. What we have to consider is whether the evidence led on behalf of the
complainant in regard to this transaction is such that if unrebutted that would warrant the
conviction of the first respondent. We are clearly of the view that a prima facie case has been made
out on behalf of the prosecution and the evidence led before the court is such as to warrant the
conviction of the first respondent unless satisfactorily rebutted.
The first question that we must consider is whether the endorsement sanctioning the grant of no
objection certificate to the firm of M/s Nanubhai Jewellers was made by the first respondent on 16th
March 1981 or it was made on 16th April 1981 but the figure "16/4" below the endorsement of the
first respondent was at some stage tempered with and altered to "16/3" by overwriting the figure "3"
over the original figure "4". This is not the stage to come to any definite finding on this question
because after the charges are framed, evidence may have to be led on behalf of the prosecution for
the purpose of establishing overwriting of the figure "4" by the figure "3" and the first respondent
may also lead the evidence to show that there is no overwriting and the original figure always was
"3". But while we are considering the prima facie case made out against the first respondent we
cannot help observing that it does appear from the original endorsement in red ink made by the first
respondent at the bottom of the relevant page in the file (E X. 815(D) that figure "3" has been thickly
written over another figure which was presumably "4". The possibility cannot be ruled out that the
original date below the endorsement was "16/4" and the figure "4" was overwritten by figure "3"
with a view to showing as if the endorsement was made on 16th March 1981. This possibility does
seem to receive support from the circumstance that, as appearing from the stamped endorsement on
the last page of the file (EX. 815(D), the file was received back in the office of the Controller of
Accommodation on 18th April 1981. It is a little difficult to understand that, if the first respondent
made his endorsement in red ink sanctioning the grant of no objection certificate on 16th March
1981, the file should not have gone back to the Controller of Accommodation until 18th April 1981. It

is perhaps more probable that the endorsement in red ink was made by the first respondent on 16th
April 1981 and immediately thereafter the file was sent back and received in the office of the
Controller of Accommodation on 18th April 1981. There is also one other endorsement at the bottom
of the page (EX. 815(D) which says "Secretary has seen it" and it bears the date "18/4". All these
circumstances do go to indicate prima facie that the endorsement in red ink sanctioning the grant of
no objection certificate was made by the first respondent on 16th April 1981. And, if that be so, it
lends considerable support to the oral testimony of Ramesh Merchant and Lal Chand Rohra.
Ramesh Merchant clearly stated in his evidence that when he met the first respondent at his
residence "Varsha" on 11th or 12th April 1981 - perhaps the date was 14th April 1981 - the first
respondent stated that since the premises were to be sub-let to Indo-Suez Bank there should be no
difficulty in granting no objection certificate but he asked Ramesh Merchant to make a handsome
donation to Indira Gandhi Pratibha Pratishthan. The conte Xt in which the demand for a handsome
donation was made by the first respondent left Ramesh Merchant in no doubt that a handsome
donation would have to be given by his firm in consideration of getting the no objection certificate.
When asked as to how much he would like the firm of Nanubhai Jewellers to donate, the first
respondent asked Ramesh Merchant to donate Rs. 10 lakhs and when Ramesh Merchant pointed
out that the Government of India have permitted the Indo-Suez Bank to open its branch in Bombay
and the premises were being sub-let to Indo-Suez Bank and requested him to name a reasonable
figure for the donation, the first respondent considered the request of Ramesh Merchant
sympathetically and asked him to donate Rs. 8 lakhs. The circumstance that Ramesh Merchant had
to request the first respondent to name a reasonable amount for the donation and that the first
respondent considered this request reasonably, does go to show that pressure was e Xercised on
Ramesh Merchant to make a handsome donation as consideration for the grant of no objection
certificate and the ultimate figure demanded was Rs. 8 lakhs. If the donation was being made
voluntarily why should any request have been made by Ramesh Merchant to the first respondent to
name a reasonable amount and where could be the question of such a request being considered
sympathetically by the first respondent. Moreover, when Ramesh Merchant contacted Lalchand
Rohra and his other parterns after this meeting with the first respondent, he clearly told them that
the first respondent had demanded Rs. 10 lakhs for the no objection certificate but it was ultimately
agreed that the firm of M/s Nanubhai Jewellers would pay Rs. 8 lakhs by way of donation to Indira
Gandhi Pratibha Pratisthan. There is no reason to disbelieve the evidence given by Lalchand Rohra
to this effect. Since the rent which the firm of M/s. Nanubhai Jewellers was to get from Indo-Suez
Bank was phenomenal and it was more than eight times the rent payable by it to the landlord, the
partners of the firm of M/s. Nanubhai Jewellers obviously did not mind paying the donation of Rs. 8
lakhs for getting the no objection certificate. The cheque for Rs. 8 lakhs was made out and according
to the evidence of Ramesh Merchant, he went to the residence of the first respondent "Varsha" on
the same day, namely 16 April 1981 and handed over the cheque to the Secretary as directed by the
first respondent. It is significant to note that the Order sanctioning the grant of no objection
certificate was made by the first respondent on the file on 16th April 1981, i.e. on the same date on
which the cheque for Rs. 8 lakhs was received from the firm of M/s. Nanubhai Jewellers and the no
objection was issued within two days after the receipt of the cheque. These are tell-tale
circumstances which prima facie go to show that the grant of no objection certificate and the
donation of Rs. 8 lakhs were closely related transactions and that one was in fact the consideration

for the other. It may also be noted that the firm of M/s. Nanubhai Jewellers had been incurring
losses for the last more than two years and if that be so, it is difficult to understand why the partners
of this firm should have voluntarily decided to make a donation of Rs. 8 lakhs. What altruistic
motive could have inspired them to have made such a handsome donation when they themselves
were incurring losses. Prima Facie, the inference to be drawn from these circumstances is
irresistible and unless the first respondent can rebut this evidence, it is difficult to reject the
contention of the prosecution that a prima facie case has been made out against the first respondent
in respect of this transaction. It is undoubtedly true that in cross-eXamination by the learned
counsel for the first respondent Ramesh Merchant stated that no objection certificate has been
granted on the merits of the application and not as a favour to the firm of M/s Nanubhai Jewellers
but this statement cannot make any difference to the correct evaluation of the evidence because
whatever be the view of Ramesh Merchant as to whether the no objection had been granted to him
on merits or not, it is the totality of the evidence which has to be considered and even if the firm of
M/s Nanubhai Jewellers were entitled to obtain no objection certificate on merits, still the first
respondent could bargain for a handsome donation as quid pro quo for granting the no objection
certificate which was entirely within his power to do so.
We are, therefore, of the view that a prima facie case was made out on behalf of the prosecution
against the first respondent in respect of the transaction of no objection certificate and 35th, 36th
and 37th charges should have been framed against the first respondent.
That takes us to draft charges 29, 30, and 31 arising out of the donations made by M/s Hira Nandani
Builders and Hira Nandani Construction Private Limited to Indira Gandhi Pratibha Pratishthan. It
is necessary to state briefly the facts relating to this transaction in order to be able to decide whether
a prima facie case has been made out on behalf of the prosecution against the respondent in regard
to this transaction and evidence led on behalf of the prosecution is such that if unrebutted it would
warrant the conviction of the respondent on these charges. These draft charges are sought to be
made good on the basis of the oral evidence of the sole witness Hira Nandani PW-28 and the
documentary evidence produced in the course of his deposition. We will begin by first referring to
the evidence of Hira Nandani and whilst we consider that evidence we shall refer to the various
documents produced in the case.
Hira Nandani was known to the respondent for more than 15 years and in fact the respondent was a
family friend of Hira Nandani, having been a patient of the father of Hira Nandani who is a leading
Ear, Nose, and Throat specialist in Bombay. In 1974-75 Hira Nandani entered the construction
business and started a limited company called Baf-Hira Builders Private Limited. We are not
concerned with this company in the present appeal. There were also two other concerns started by
Hira Nandani in 1979 in course of the construction business but these are also not relevant for our
purpose e X cept that we may state the names of these two concerns, namely, Hira Nandani
Constructions and Hira Nagar Constructions. In January, 1981 Hira Nandani started a partership in
the name of Hira Nandani Enterprises. It is this firm which figures prominently in the history of this
case. There were also four other partnership firms started by Hira Nandani in the same year and
these were Hira Nagar Developers, Hira Nandani Developers, ApeX Constructions and Ape X
Builders. There was also a private limited company floated by Hira Nandani in the name of Hira

Nandani Constructions Private Limited. These various concerns of Hira Nandani undertook
construction contracts which were started sometime in 1980 and 1981. One of the construction
works undertaken by Hira Nandani was in the name of Hira Nandani Enterprises and this
construction work was undertaken under an agreement with Udyogik Shramik Kamgar Housing
Society. It appears that in respect of the construction work undertaken by the various concerns of
Hira Nandani there was a stalemate in or about April 1981 and the construction works were held up
for want of cement. The concerns of Hira Nandani had received some small quantities of cement but
the quantities received were wholly inadequate and no further quantities of cement were available
because cement was a controlled item and unless allotment of quota of cement was made by the
State Government, it was not possible for any builder to obtain cement. Now the record shows that
the entire control over allotment of quota of cement was retained by the respondent with himself in
his capacity as Chief Minister and no allotment could be made without his sanction or approval.
Since the concerns of Hira Nandani were starved of cement and they could not proceed with the
construction works undertaken by them without cement they made applications to the respondent
from time to time for allotment of quota of cement. We have on record four applications dated 28th
April 1981, one being EX. 355 and 355A made by Hira Nandani Construction Private Limited, the
second being EX. 356 and 356A addressed by Hira Nagar Developers, the third being E X. 357 and
357A addressed by Hira Nagar Constructions and the fourth being E X. 358 and 358A addressed by
Hira Nagar Enterprises. All these applications were addressed to the respondent in his capacity as
Chief Minister. The application of Hira Nandani Constructions Private Limited E X. 355 and 355A
pointed out that until the date of the application the company had been allotted only 30 metric
tonns of cement and requested the respondent to allot at least 250 metric tonns of cement. Similarly
the application of Hira Nagar Developers EX. 356 and 356A complained that the firm had not
received any supply of cement at all and requested the respondents to allot at least 250 metric tonns
of cement. So also the application of Hira Nagar Constructions E X. 357 and 357A stated that the firm
had received until the date of the application only 50 metric tonns of cement and requested the
respondent to allot at least 250 metric tonns of cement. And lastly the application of Hira Nandani
Enterprises EX. 358 and 358A also pointed out that no allotment of cement had been received by
them and requested the respondent that at least 100 metric tonns of cement should be allotted to
them. The record shows that pursuant to the application of Hira Nandani Construction Private
Limited EX. 355 and 355A allotment of 200 metric tonns was made to the company but this
allotment lapsed and the company could not obtain delivery of any quantity of cement under this
allotment. Subsequently, however, another order of allotment was made on 23rd July 1981 E X. 693
under which 100 metric tonns of cement was allotted and the company could obtain delivery of 100
metric tonns of cement under this order of allotment. The allotment of 200 metric tonns of cement
was also made on the application of Hira Nagar Developers E X. 356 and 356A but the firm could
obtain only 74 metric tonns of cement under this letter of allotment and the balance lapsed.
Thereafter another order of allotment was made on 23rd July, 1981 granting 25 metric tonns of
cement and this quantity of cement was lifted by the firm Hira Nagar Developers. Similarly 200
metric tonns of cement was lifted on the application of Hira Nagar Construction E X. 357 and 357A
but this allotment also lapsed and Hira Nagar Construction could not obtain the delivery of any
quantity out of 200 metric tonns allotted to them but in this case also a subsequent order of
allotment was made on 23rd July, 1981 alloting 50 metric tonns of cement and this quantity of 50
metric tonns was lifted by Hira Nagar Construction. The same position obtained in regard to Messrs

Hira Nandani Enterprises. In the case of this concern also allotment of 100 metric tonns was made
on the application EX. 358 and 358A but this allotment lapsed because it was made in such a
manner that this concern could not obtain delivery of any quantity out of 100 metric tonns allotted
to it. Subsequently on the same date as in the case of the other three concerns, that is, on 23rd July,
1981 an order was made alloting 50 metric tonns of cement to Hira Nandani Enterprises and
delivery of 50 metric tonns of cement was taken by this concern pursuant to the order of allotment.
It will thus be seen that in the case of these four concerns, namely, Hira Nandani Construction
Private Limited, Hira Nagar Developers, Hira Nagar Construction and Hira Nandani Enterprises,
only 74 metric tonns of cement could be obtained prior to 4th July, 1981 and it was admitted by Hira
Nandani in the course of his evidence that it was correct that till 15th June, 1981, that he had not
received more than 400 metric tonns of cement against the four applications dated 28th April, 1981
EXs. 355 and 355A to 358 and 358A. It was only when as a result of further representations made to
the respondent, new orders of allotment were issued on 23rd July, 1981 that some quantities of
cement could be obtained by these four concerns of Hira Nandani.
We have already referred to the fact that Hira Nandani Enterprises had undertaken construction
work under the agreement with Udyogik Shramik Kamgar Housing Society. On account of want of
cement this construction work had almost come to a stand-still in June, 1981. Hira Nandani
Enterprises had also not been able to obtain any quantity of cement in respect of the other
construction work undertaken by them at Villa Parle (East) despite the application dated 28th April,
1981 made by them to the respondent. The two applications were accordingly made to the
respondent on 24th June, 1981, one by Hira Nandani Enterprises, marked as E X. 354, pointing out
that in respect of the construction work at Villa Parle (East) they had till then received only 50
metric tonns of cement and requesting the respondent to allot atleast a further quantity of 50 metric
tonns and the other by Udyogic Shramik Kamgar Housing Society, marked as E X. 353, pointing out
that the Society had till then received only 478 metric tonns of cement and requesting the
respondent to arrange to allot atleast another 250 metric tonns. It is not clear from the record
whether 50 metric tonns of cement stated in the application of Hira Nandani Enterprises to have
been received by them had in fact been received or that merely on the basis of the allotment made
and the price paid, a statement was made that 50 metric tonns had been received. But it is not
necessary for the purpose of the present appeal to come to a finding whether 50 metric tonns had in
fact been actually received by Hira Nandani Enterprises before the application E X. 354 was made by
them. It is sufficient to state that both these applications E Xs. 353 and 354 were granted by the
respondent and two permits were issued on 4th July, 1981, one for 50 metric tonns in favour of Hira
Nandani Enterprises and the other for 200 metric tonns in favour of Udyogic Shramik Kamgar
Housing Society. Now it is common ground between the parties that one metric tonn of cement
would comprise 20 bags and 50 metric tonns would be equivalent to 1000 bags while 200 metric
tonns would be equivalent to 4000 bags. The record shows that on 4th July, 1981 being the same
date on which the two permits were issued for 50 metric tonns and 200 metric tonns respectively,
two donations were made to Indira Gandhi Pratibha Pratishthan, one for Rs. 30,000 made by Hira
Nandani Constructions Private Limited and the other for Rs. 1,20,000 made by Hira Nandani
Builders both being concerns of Hira Nandani. The donations of Rs. 30,000 by Hira Nandani
Construction Private Limited was made by means of a cheque dated 22nd June, 1981 while the
donation of Rs.1,20,000 by Hira Nandani Builders was made by a cheque dated 4th July, 1981. It

was admitted by Hira Nandani that though the cheque for Rs. 30,000 dated 22nd June, 1981 was
given to Indira Gandhi Pratibha Pratishthan alongwith the cheque dated 4th July, 1981 for Rs.
1,20,000. On these facts the prosecution contended that by obtaining for the benefit of Indira
Gandhi Pratibha Pratishthan the two donations of Rs. 30,000 and Rs. 1,20,000 in consideration of
the grant of the two permits in favour of Hira Nandani Enterprises and Udyogik Shramik Kamgar
Housing Society the first respondent had committed offences under sections 161 and 165 of the
Indian Penal Code, sub-sections 1(d) and (2) of section 5 of the Prevention of Corruption Act, 1947.
We shall presently proceed to consider whether these charges could be said to have been prima facie
made out on behalf of the prosecution. But at this stage, it is necessary to refer to two other
applications made by Hira Nandani Builders and ApeX Builders, both being concerns of Hira
Nandani. It seems that Hira Nandani Builders has started a new project at Varsova in May, 1981 and
they needed cement for this project and they accordingly made an application dated 15th June, 1981
EX. 648 and 648A for allotment of at least 500 metric tonns of cement. Ape X Builders also made
another application dated 23rd June, 1981 EX. 649 and 649A for allotment of at least 250 metric
tonns of cement and though this application was in the name of ApeX Builders it was in respect of
the same Varsova project. Now according to the evidence of V.T. Chari PW-41 who was at the
relevant time Secretary, Food and Civil Supplies Department, the respondent mentioned to him on
24th June 1981 that one Pesi Tata would be giving to him i.e. to V.T. Chari on 25th June 1981 a set of
applications for cement indicating the quantity to be sanctioned and that these proposals had his
approval and therefore the Department should take action on these cases and thereafter report to
the first respondent for confirmation. On the ne Xt day i.e. 25th June 1981 Pesi Tata saw V.T. Chari
and handed over to him three sets of applications each with a covering statement showing the
quantity asked for and the quantity to be sanctioned and according to these statements the total
quantity to be sanctioned came to 9700 metric tonns. V.T. Chari thereupon made a note in the file
on the same day i.e. 25th June 1981 setting out the above facts and stating that "necessary action
may be taken and thereafter the papers may be submitted to C.M. through Secy. F & C.S.D and Min.
F &CS." This note made by V.T. Chari in the file is E X. 420. The endorsement at the foot of this note
shows that it was addressed to the Deputy Secretary with a copy to the Minister, Food and Civil
Supplies for information. It was recorded there by V.T. Chari that he had also "submitted a note
separately to C.M. for confirmation of the action being taken by the Department". A note addressed
to the respondent was accordingly made by V.T. Chari simultaneously and it was in the following
terms :
"C.M. may kindly recall that he had mentioned to me yesterday (24th June 1981) that
Shri P.D. Tata will be giving to me to-day applications for cement indicating the
quantity to be sanctioned. C.M. observed that the cases had his approval and the
Deptt. should take necessary action thereon and report to C.M. for confirmation.
2. Shri P.D. Tata saw me to-day (25/6/81) and gave me 3 sets of applications with
statements indicating the quantity applied for and the quantity to be sanctioned. In
all there are 58 applications and the total quantity to be sanctioned comes to 9,700
metric tonns.

3. A copy of the 3 statements is anneXed to this note.
4. Necessary action is being taken separately on the applications. The main papers
will be submitted to C.M. after issue of allotment orders. C.M. may kindly see for
confirmation of action being taken by the Deptt."
This note was submitted to the respondent and it is marked E X. 421. It is the evidence of V.T. Chari
that the file containing this note was returned to him on the same day, that is, 25th June 1981 and
when the file came back to him, this note bore the signature of the respondent and the date in his
hand-writing and V.T. Chari thereupon noted on the reverse of the note "Please keep with papers
dealing with these cases" and addressed this note to the Deputy Secretary. Now the note E X. 421 as
eXhibited contained the following endorsement made by the respondent :
"'A' - Is it ? Where is 'B' ? Secy. to withdraw action and F & CS Deptt. to decide on
merit as usual. I am indeed surprised at such notings."
just above his signature and date. The evidence of V.T. Chari is that this endorsement which has
been marked EX. 421A was not there at the time when the file was received by V.T. Chari from the
respondent on 25th June 1981 and it was for the first time in September 1982 when R.D. Pradhan,
who was then Chief Secretary, called V.T. Chari to his office and showed him the note E X. 421 along
with another note EX. 419A that he saw the above endorsement of the respondent. The suggestion
therefore clearly was that this endorsement was made by the respondent some time between 25th
June 1981 and September 1982, presumably when a writ petition was filed in the High Court of
Bombay challenging the allotment of quotas for cement. It is not necessary for the purpose of
deciding the present appeal to come to a definite finding on the question whether this endorsement
was in fact made by the respondent on 25th June 1981 or it was subsequently interpolated by him.
But we are constrained to make some observations in regard to this endorsement, since the learned
Judge has adversely commented on V.T. Chari in regard to his role in this affair. We do not think the
learned Judge was justified in making adverse comments against V.T. Chari. If the respondent had
not mentioned to V.T. Chari that Pesi Tata would be giving him a set of applications for cement
indicating the quantity to be sanctioned and that these proposals had his approval and therefore the
Department should take action on these cases and thereafter report to the first respondent for
confirmation, it is eXtremely difficult to believe that V.T. Chari would have made the note EX. 420
on the file. It would be foolhardy on the part of V.T. Chari, a senior and e Xperienced I.A.S. Officer, to
make a false endorsement on the file attributing to the Chief Minister of the State something which
he never said. The note made by V.T. Chari also proceeded to state that Pesi Tata had given him 3
sets of applications each with a covering statement showing the quantity asked for and the quantity
to be sanctioned and that necessary action should be taken and thereafter the papers should be
submitted to the first respondent through Secretary, Food and Civil Supplies Department and
Minister, Food and Civil Supplies. If the first respondent had not given him the instructions set out
in the note, would V.T. Chari, if he were in his senses, ever direct the Department that the papers
should be submitted to the first respondent after taking necessary action. That would be the easiest
way for him to secure his eXposure. Then again, if no such instructions had been given to him by the
first respondent, is it possible that he would have prepared the note EX. 421 and submitted it to the

first respondent on the same day. If V.T. Chari had decided to allot 9700 metric conns of cement to
different applicants on his own, presumably with a view to obliging these applicants for
consideration or even otherwise, and to palm it off on the first respondent by falsely attributing the
authority to do so to the first respondent, it passes one's comprehension as to why he should have on
the same day submitted note EX. 421 to the first respondent which would eXpose his deception and
fraud and provide an opportunity to the respondent to immediately contradict and e Xpose him. V.T.
Chari would in that event be inviting his own ruination. It is indeed difficult to attribute such
irrationality and foolishness to a senior I.A.S. Officer like V.T. Chari. Moreover, it is interesting to
note that if the note E X. 421 submitted by V.T. Chari to the respondent was wrong and the
respondent had not given to V.T. Chari the instructions set out in that note, would the respondent
have rested content with merely making an endorsement at the foot of the note saying that he was
surprised at such notings. The first respondent would have been shocked at the statement contained
in the note falsely involving the respondent and dishonestly attributing to him authority which he
had not given and he would have immediately called upon V.T. Chari to e Xplain his conduct in
making the note and taken action against him besides stopping the allotments of cement referred to
in the the statements accompanying the note. But nothing of this sort was done by the first
respondent. It it also significant to note that on 1st July 1981 two allotments orders were issued and
on 2nd July 1981 a third allotment order was made allotting in the aggregate the precise quantity of
9700 metric tonns referred to in the note EX. 421. It is unfortunate that the statements which
accompanied the note EX. 421 were not available and could not be e Xhibited in evidence. The case of
the prosecution was that the original of EX. 421 and the three statements accompanying that note
were abstracted at some stage by the first respondent or someone on his behalf and that is the
reason why EX. 421 as produced and eXhibited in court was not the original but the photostat copy
which had been taken out in the secretariat before the original was lost. It is not necessary for the
purpose of the present appeal to resolve this controversy raised on behalf of the prosecution and to
come to a definite finding upon it. But even on the material on record, there is reason to believe that
the three statements which accompanied the note E X. 421 must have formed the basis of the three
allotment orders dated 1st July, 1981 and 2nd July, 1981 part of E X. 421, because like the statements,
the allotment orders were also three in number and the aggregate quantity allotted under the three
allotment orders was 9,700 metric tonns which is the same as the aggregate quantity shown in the
three statements. Moreover, the application dated 15th June, 1981 E X. 648 and 648A made by Hira
Nandani Builders and the application dated 23rd June, 1981 E X. 649 and 649A made by ApeX
Builders figured in the first allotment order dated 1st July, 1981 and in respect of these two
applications, it was stated in the allotment order that it had been decided to allot 300 metric tonns
of cement to Hira Nandani Builders and 250 metric tonns of cement to ApeX Builders.
Obviously, therefore these two applications formed part of the applications which were handed over
by Pesi Tata to V.T. Chari, as mentioned in EXs. 420 and 421 and the fact when it was put to Hira
Nandani that these two applications were in the possession of Pesi Tata, Hira Nandani found it
difficult to deny it. Furthermore the record shows that in respect of these two applications, letters of
allotment of 300 metric tonns of cement to Hira Nandani Builders and 250 metric tonns of cement
to ApeX Builders were issued on the same day, namely, 1st July, 1981 on which the first order of
allotment, part of EX. 421 in respect of 21 applicants, including Hira Nandani Builders and Ape X
Builders, was made by the Food and Civil Supplies Department. It would thus appear prima facie

that Hira Nandani Builders and Ape X Builders obtained 300 metric tonns and 250 metric tonns
respectively of cement on applications submitted by them through the intervention of Pesi Tata.
We may now revert to the dontions of Rs. 30,000 and Rs.1,20,000 made by Hira Nandani
Construction Prviate Limited and Hira Nandani Builders respectively. The case of the prosecution
was that these two donations were made by the two concerns of Hira Nandani in order to obtain
allotment of cement which was badly needed for the construction works undertaken by the various
concerns of Hira Nandani. This was disputed on behalf of the respondent who contended that these
two donations had been made by Hira Nandani Construction Private Limited and Hira Nandani
Builders voluntarily and they had nothing to do with the allotment of cement to the concerns of Hira
Nandani. Now there are certain salient features in regard to this transaction which in our opinion go
to show prima facie that these two donations were connected with the allotment of cement to the
concerns of Hira Nandani. In the first place, there is no reason why any of the concerns of Hira
Nandani should have made such large donations to Indira Gandhi Pratibha Pratishthan. It was
admitted by Hira Nandani that none of his concerns had made any profit and in fact he conceded in
evidence that the donations made by his two concerns to the Indira Gandhi Pratibha Pratishthan
"had no connection with the profits of the two concerns or of any of his other concerns." He also
admitted in evidence that Hira Nandani Construction Private Limited had made a donation of only
Rs. 2,422 in the calander year 1980 and a donation of only Rs. 2, 251 in the calander year 1981 and
so far as Hira Nandani Builders are concerned, they had not made any donation at all and apart
from this the only donations made by Hira Nandani Construction Private Limited and Hira Nandani
Builders were the donations of Rs. 30,000 and Rs. 1,20,000 to Indira Gandhi Pratibha Pratishthan.
It is in these circumstances prima facie difficult to understand as to what prompted Hira Nandani
Construction Private Limited and Hira Nandani Builders to make the donations of Rs. 30,000 and
Rs. 1,20,000 respectively to Indira Gandhi Pratibha Pratishthan when they were not making any
profits at all and they had not made any substantial donations to any other charities, despite large
and frequent demands on the Hira Nandani family. Moreover it is not without significance that the
two donations of Rs. 30,000 and Rs. 1,20,000 were handed over to Indira Gandhi Pratibha
Pratishthan on the same day, namely, 4th July, 1981 on which the permits were issued by the
authorities alloting 50 metric tonns to Hira Nandani Enterprises and 200 metric tonns to Udyogic
Shramik Kamgar Housing Society. When Hira Nandani was asked as to how it happened that he
paid the two cheques of Rs. 30,000 and Rs. 1,20,000 on 4th July, 1981 which was also the date of
the two permits, the answer given by him was that it was purely coincidental. It is true that
sometimes coincidences do happen but a coincidence of this kind is sufficient to prima facie support
the inference that the two donations of Rs. 30,000 and Rs. 1,20,000 were connected with the grant
of the two permits. It is interesting to note that prima facie one other correlation can also be
perceived between the two donations of Rs. 30,000 and Rs. 1,20,000 made by Hira Nandani on
behalf of his two concerns and the quota of cement allotted under the two permits. The donation of
Rs.30,000 could be said to have been worked out at the rate of Rs. 30 per bag for the permit of 50
metric tonns, that is, 1000 bags of cement while the donation of Rs. 1,20,000 could be said to have
been arrived at by applying the same rate of Rs. 30 per bag in respect of the permit of 200 metric
tonns, that is, 4000 bags of cement. When Hira Nandani was asked to eXplain how it was that for
the permit of 50 metric tonns, that is, 1000 bags, he made a payment of Rs. 30,000 which worked
out to Rs. 30 per bag and for the permit of 200 metric tonns, that is, 4,000 bags he made payment

of Rs. 1,20,000 which worked out to the same rate of Rs. 30 per bag, the only answer which Hira
Nandani could give was that it was a coincidence. It is indeed strange that coincidences should take
place in this transaction. It may also be noted and this too is not a factor without significance that
the cheque for Rs. 30,000 was made out on 22nd June, 1981 but it was retained by Hira Nandani
until 4th July, 1981 and it was only on 4th July, 1981 when the two permits were issued alloting
quota of cement that both the cheques of Rs. 30,000 and Rs. 1,20,000 were handed over by Hira
Nandani.
We, therefore, reach the conclusion that on the evidence led on behalf of the prosecution a prima
facie case must be held to have been made out against the respondent in respect of the transaction of
the donations of Rs. 30,000 and Rs.1,20,000 and 29th, 30th and 31st charges ought in the
circumstances to have been framed against the respondent.
Then we go on to consider 23rd, 24th, 25th, 41st, 42nd and 43rd of the draft charges relating to the
transactions of the National Centre for the Performing Arts (hereinafter referred to as "NCPA").
NCPA was started sometime prior to 1968 as a Centre for promotion and engagement of the
performing arts. The Government of Maharashtra granted land to NCPA from Block III Backbay
Reclamation area in two phases on leasehold basis. First, an area admeasuring 5 acres, that is,
20,200 sq. metres was granted under Government resolution dated 10th May 1968 and then
subsequently additional area admeasuring about 3 acres, that is, 10219.4 sq. metres was granted
under Government resolution dated 15th May 1970. Both the grants were on the same terms and
conditions and the ground rent payable by NCPA was Re.1 per annum in respect of each of these two
areas of land. It was provided that NCPA will construct on the plot necessary buildings and
structures for carrying out its performances including residential quarters for essential staff working
in the Centre and for visiting artists and students provided the Centre would be at liberty to make
available these facilities to outside parties at such compensation as it may deem fit so long as the
income from the land and buildings was appropriated for the objects of the Centre and further a
sum equal to 25% of the net annual profits of the Centre was credited to the Government of
Maharashtra. The Government of Maharashtra was given a right to nominate two representatives on
the Council of the Centre. Thus, a plot of about 8 acres in the Backbay Reclamation area was granted
to NCPA for the purpose of carrying on its activities. The Minister of Culture and the Chief Secretary
to the Government of Maharashtra were both nominated eX-officio Member on the Council of
NCPA.
Subsequently, with a view to enabling it to meet its operating eXpenses NCPA made an application
to the Government of Maharashtra by its letter dated 4th March 1971 requesting the Government for
permission to utilise upto one-fourth of the area granted to it for the purpose of putting up high
grade shops and offices. This request of NCPA was granted by the Government of Maharashtra. By a
Government resolution dated 31st October 1972, the Government granted permission to NCPA to
use one-fourth area of the land for putting up high grade shops and offices on condition that 50% of
the net income accruing out of the commercial user of this area would be payable to the Government
of Maharashtra subject to certain conditions which are not material for the purpose of the present
appeal. But, since it would take sometime for high grade shops and offices to be put up on one-
fourth area of the land, NCPA applied to the Government of India for a bridging loan of Rs. 3

crores and this loan was sanctioned by the Government of India in February 1974 on the security of
mortgage of three-fourths of the plot and the buildings constructed thereon. This necessitated the
sub-division of the plot appro Ximately into one fourth and three fourth and the Government of
Mahrashtra accordingly agreed to grant one lease in respect of 23689.90 sq. metres of area on which
auditoriums and schools of NCPA were to be built and another lease in respect of 7892.59 sq. metres
on which the commercial compleX might be put up. NCPA thereafter drew the first instalment of
loan of Rs. 80 lakhs from the Government of India in March 1976 and carried on construction of its
building on three-fourth area of the plot.
The result was that NCPA could use three-fourth area of the plot for carrying out its own purposes
subject to payment of 25% of the net income of the Centre to the Government of Maharashtra while
one-fourth area of the plot could be developed by NCPA for the commercial comple X with a view to
generating income. Now, at this time F.S.I. was 3.5 and applying it to the entire plot of about 8
acres, NCPA was entitled to build with a fairly large rentable area and on this basis NCPA prepared
plans of a commercial building with rentable area of 400,000 sq. ft. But, to the great dismay and
consternation of the Directors of NCPA, a Government resolution was passed an 23rd March 1978
providing that since two separate leases were given to NCPA in respect of 7,892.59 sq. metres and
23,689.90 sq. metres, that is, approXimately 1/4 and 3/4 area of the plot, the construction to be
carried "on the land should be with reference to the F.S.I. permissible for each individual plot
separately". The consequence of this Government resolution was that on the basis of F.S.I. of 3.5,
NCPA could build a commercial building having a net rentable area of only 240,000 sq. ft. instead of
400,000 sq. ft. Moreover, prior to the issue of this Government resolution, a notification was issued
by the Bombay Municipal Regional Development Authority (hereinafter referred to as "BMRDA") on
19th June, 1977 reducing the F.S.I. from 3.5 to 1.33. On the basis of this new F.S.I of 1.33, the net
rentable area of the commercial building which could be put up by NCPA was still further reduced to
90,000 sq. ft. instead of the required 400,000 sq. ft. These developments which took place in 1977-
1978 jeopardized the very eXistence of NCPA.
One J.J. Bhabha was at all material times Managing trustee of NCPA and apart from him there were
ten other trustees including J.R.D. Tata. When NCPA found itself in this difficult situation where it
would be almost impossible for it to carry out its activities, J.R.D. Tata addressed a letter dated 1st
January 1979 to the then Chief Minister requesting him to permit NCPA to construct a commercial
building with a rentable area of 400,000 sq.ft. This letter was followed by meetings with various
officers in which J.J. Bhabha participated alongwith one Ajit Kerkar. Now, Ajit Kerkar was not in
any way officially connected with NCPA. He was the Managing Director of Indian Hotels Co. Ltd. as
also Chairman of the Board of Directors of PIEM Hotels Ltd. and Taj Trade and Transport Co. Ltd.
which are admittedly Tata concerns. Though Ajit Kerkar did not hold any official position in NCPA,
he took an active part in the negotiations with the various officers of the Government of
Maharashtra in 1979 for the purpose of obtaining relaxation of the BMRDA notification dated 19th
June 1977 and Government resolution dated 23rd March 1977 so as to enable NCPA to construct a
commercial building of net rentable area of 400,000 sq.ft. The fact that Ajit Kerkar and J.J. Bhabha
both participated in these negotiations is clearly established by the Note dated 20th July 1979
addressed by Ajit Kerkar to J.J. Bhabha (part of EX. 247)and the letter dated 18th July 1979
addressed by J.J. Bhabha to Minister, Advani (part of EX.

247). It is obvious that both of them acted in unison in carrying on the negotiations for the purpose
of rescuing NCPA from the precarious position in which it found itself. But, their efforts did not
succeed.
When the respondent came to power as Chief Minister, efforts were renewed on behalf of NCPA to
obtain the necessary relaxation which would enable it to put up a commercial comple X which would
generate sufficient income. Ajit Kerkar was obviously on very good terms with the respondent. He
was appointed by the respondent as Chairman of a High Power Steering Committee to deal with the
problem of slums and dilapidated houses and he was given an office in Mantralaya. He was also
appointed a trustee of Indira Gandhi Pratibha Pratishthan on 18th October 1980. He started
negotiations with the Government of Maharashtra in February- March 1981 and put forward a
scheme under which the entire plot of 8 acres would be treated as covered by one lease so that the
net rentable area available to NCPA for building purposes would be determinable by applying to the
F.S.I. to the whole of the area of the plot instead of applying it separately to each of the two areas
into which the plot was decided. The scheme provided that the commercial development of the plot
would be confined to one-fourth of the area of the plot, the F.S.I. used for such development would
not eXceed 450,000 sq.ft., that is 1.33 for the entire plot and shops and office would be restricted to
50% of this area and the balance would be used for a hotel and the construction on the remaining
three-fourth area though in eXcess of 1.33 for the whole plot, would be e Xempted from BMRDA
Notification and would be "approXimately 1.00 for the whole plot" so that the total F.S.I. used would
be approXimately 2.33 and the income of the Government of Maharashtra would be "restricted to
50% of the net income from the commercial-cum-hotel development after meeting all e Xpenses of
NCPA." The scheme also provided for making of donations to Indira Gandhi Pratibha Pratishthan.
The discussions in this regard were carried on by Ajit Kerkar with Gavai (Chief Secretary),
Prabhakar (Special Secretary Finance) Pradeep (Secretary, Finance) and Kapoor (Secretary, Urban
Development) as also with the respondent. But, these discussions did not yield any positive results
until 24th March 1981 when Ajit Kerkar prepared a Note (EX. 229) and handed it over to Gavai in
his chamber on the same day. This note set out the scheme proposed by Ajit Kerkar but it did not
make any mention of the donations to be made to Indira Gandhi Pratibha Pratishthan. Some
reliance was placed on behalf of the respondent on the fact that this note did not make any reference
to donations to be made to Indira Gandhi Pratibha Pratishthan and it was sought to be argued that
there was in fact no such talk prior to the date of this note. But this argument is futile because Ajit
Kerkar clearly admitted in his evidence that in February 1981 he had discussed this scheme with the
respondent, Gavai, Prabhakar, Pradeep and Kapoor and that he had made it clear to the respondent
and these officers that the donee of the scheme was Indira Gandhi Pratibha Pratishthan. There can
therefore be no doubt that in February 1981 the question of donations to be made to Indira Gandhi
Pratibha Pratishthan was discussed between Ajit Kerkar on the one hand and the respondent and
other officers on the other hand. Now as mentioned above the note E X. 229 was handed over by Ajit
Kerkar to Gavai on 24th March 1981 and following upon this note there was discussion between Ajit
Kerkar and Gavai in the presence of Prabhakar on 25th March 1981 when the scheme put-forward
by Ajit Kerkar was discussed. It was agreed between Ajit Kerkar on behalf of NCPA and Gavai on
behalf of the Government of Maharashtra that the entire plot of 8 acres would be covered under one
lease on condition that the mortgage in respect of 3/4th area of the plot is redeemed, the
commercial development of the plot would be confined to 1/4th area of the plot and full FSI at the

rate of 1.33 in respect of the entire area of the plot would be available to NCPA and this would give
almost 4,50,000 sq. ft. of floor space area for construction of buildings including the eXisting
construction already made by NCPA to the eXtent of 95,000 sq. ft. Gavai and Prabhakar intimated to
Ajit Kerkar that it may not be possible to override BMRDA Notification restricting FSI to 1.33, but
that floor space area available on the basis of 1.33 FSI in respect of the entire area of the plot should
be sufficient for NCPA for construction. Gavai and Prabhakar pointed out that on 1/4th area of the
plot, NCPA could build a residential hotel in addition to high-grade shops and offices for which
permission was already given. Ajit Kerkar agreed to this suggestion provided "not less than 50% of
the area is allotted to be utilised for hotel and the balance for the purpose of shops and offices". This
condition proposed by Ajit Kerkar was found acceptable to Gavai and Prabhakar. It was also agreed
that the condition providing for payment of 25% of the net profit of the Centre to the Government of
Maharashtra would remain unchanged and so also would the provision that 50% of the net income
from the commercial compleX should be paid by NCPA to the Government of Maharashtra.
Now at this meeting held on 25th March 1981 the question of making donations to Indira Gandhi
Pratibha Pratishthan was also discussed as a part of the negotiations and Ajit Kerkar stated that the
following donations would be made by NCPA either by itself or through others :
i) Initial donation of Rs. 1 crore within 6 months of Government's confirmation.
ii) After 3 years i.e. on completion and commissioning of the commercial compleX -
Rs. 25 lakhs per year.
iii) After 8 years i.e. 5 years after the completion of the commercial compleX - Rs. 50
lakhs per year.
But he requested that these donations should be considered as deductible e Xpenses while computing
the net income so that 50% of the net income payable to the Government of Maharashtra should be
arrived at after deducting the donations from the net income. But this request for deductibility of
the donations in computation of the net income was not acceptable to Gavai and Prabhakar.
Immediately, after the aforesaid discussion between Ajit Kerkar on the one hand and Gavai and
Prabhakar on the other, they all went to the respondent and informed him of the agreement arrived
at with NCPA. The respondent approved and confirmed the agreement but it was made clear to Ajit
Kerkar and it was agreed by him that the donations made to Indira Gandhi Pratibha Pratishthan
would not be deductible as eXpenses of NCPA while computing its net income. Thus it was clearly
agreed that donations would be made to Indira Gandhi Pratibha Pratishthan by NCPA by itself or
through others but that they would not be deductible in computing the net income of the
commercial compleX of NCPA. The argument urged on behalf of the respondent which found favour
with the learned Trial Judge was that when the respondent declined the request of Ajit Kerkar to
permit deductibility of the donations made to Indira Gandhi Pratibha Pratishthan the entire scheme
foundered and thereafter there was no question of making any donations to Indira Gandhi Pratibha
Pratishthan. This contention of the respondent appears prima facie to be unsustainable for the
following reasons.

In the first place there is a noting made by Prabhakar in the Government file relating to NCPA on
29th April 1981 part of EX. 230 where it has been clearly recorded by him;
"It needs to be recorded that in the meeting held first by C.S. with Shri Ajit Kerkar
and latter when C.S. and Shri Ajit Kerkar e Xplained the agreement reached to C.M.
both on 25-3-81, it was clearly stated and agreed that the payments to the Indira
Gandhi Pratibha Pratishthan would be after NCPA's net income was computed and
were not to be considered as NCPA's eXpenses while computing net income."
This noting made at a time when no controversy had arisen at all must prima facie be accepted as
correct. Moreover, its correctness was deposed to by Prabhakar when he was in the witness bo X. Ajit
Kerkar of course disputed that any such agreement was arrived at between him on the one hand and
Gavai Prabhakar and the respondent on the other but prima facie we are inclined to accept the
testimony of Ajit Kerkar to this effect because we would prefer documentary evidence to oral
evidence in case of conflict between the two. It is a trite saying that witnesses may lie but documents
do not.
Secondly, it is significant to note that a donation of Rs. 1 crore was made by four Tata concerns to
Nirmal Sethia Foundation which was a Foundation in which the respondent, his wife, Nirmal Sethia,
his wife and Ajit Kerkar were trustees. This donation of Rs. 1 crore was made up of four cheques, one
dated 31st July, 1981 for Rs. 30 lakhs issued by Indian Hotels Company Limited, the second also
dated 31st July, 1981 for Rs.60 lakhs drawn by Lake Palace Hotel and Motel Private Limited, the
third dated 17th August, 1981 for Rs. 50 lakhs drawn by Piem Hotel Company Limited and the
fourth dated 1st September, 1981 for Rs. 10 lakhs drawn by Taj Trade and Transport Company
Limited, all four being Tata concerns. It is interesting to note that these four cheques making up in
the aggregate a donation of Rs. 1 crore were paid over to Nirmal Sethia Foundation within si X
months of the order dated 6th May, 1981 issued by the Government of Maharashtra granting
relaxation asked for by NCPA, thus apparently complying with the scheme put forward by Ajit
Kerkar under which the initial donation of Rs. 1 crore was to be made to Indira Gandhi Pratibha
Pratishthan but, as admitted by Ajit Kerkar himself in paragraph 35 of his evidence, "NCPA did not
make the proposed donation to the IGPP because the Government did not agree to eXempt the
entire amount as deductible eXpense. We agree to pay the donations to the Nirmal Sethia
Foundation because the trust agreed to eXempt the entire amount under the Income Tax Act". It is
thus obvious that the donation of Rs. 1 crore which was to be made to Indira Gandhi Pratibha
Pratishthan within siX months of the Government's confirmation under the agreement arrived at on
25th March, 1981 was diverted to Nirmal Sethia Foundation in which the respondent and his wife
were trustees alongwith Nirmal Sethia and his wife and Ajit Kerkar. It is indeed difficult to
understand as to why these four Tata concerns should have decided to make donations of an
aggregate sum of Rs. 1 crore to Nirmal Sethia Foundation which was a newly set up Foundation
without any charitable activity to its credit. It also strains one's credulity to believe that it was a mere
coincidence that the donation made to Nirmal Sethia Foundation was of Rs. 1 crore which was the
identical figure of the donation agreed to be made to Indira Gandhi Pratibha Pratishthan. When Ajit
Kerkar was asked as to how he happened to fi X the figure of Rs. 1 crore for the donation made to
Nirmal Sethia Foundation, his answer was : "I cannot say who suggested the figure of Rs. 1 crore.

There was no particular reason why the figure of Rs. 1 crore had been arived at." It is also strange
that to make the figure of Rs. 1 crore a post-dated cheque for Rs. 10 lakhs was issued by Ta; Trade
and Transport Company Limited. This cheque was sent to Nirmal Sethia Foundation on 23rd
August, 1981 and it was dated 1st September, 1981. It is difficult to understand why Taj Trade and
Transport Company Limited should have given a donation of Rs. 10 lakhs to Nirmal Sethia
Foundation by a post-dated cheque when on the date of handing over of the cheque, it did not have
sufficient funds in the bank. The only answer which Ajit Kerkar could give in e Xplanation, which is
rather strange conduct, was that Ta; Trade and Transport Company Limited "eXpected that
sufficient funds would be deposited in its account by 1.9.1981". There is another circumstance which
is of a baffling character - indeed it defies any rational conduct - and this circumstance is that the
four cheques representing the aggregate donation of Rs. 1 crore were handed over by these four Tata
concerns to Nirmal Sethia Foundation by way of donation without any resolution being passed by
the Borad of Directors in that behalf and strangely enough these four cheques paid by way of
donation were credited as deposits in the books of Nirmal Sethia Foundation. When e Xamined on
this point, Ajit Kerkar stated, "Initially all the four amounts were to be treated as deposits and were
to be treated later as donations after obtaining the sanction of the Board of Directors". This is indeed
a strange eXplanation which is prima facie difficult to believe. What would happen if the Board of
Directors of any of these four Tata concerns were to refuse to sanction the donation. Nirmal Sethia
Foundation would then have to return the amount of the donation but if this amount was already
spent by Nirmal Sethia Foundation for purchasing land for the purpose of building a hospital, how
would Nirmal Sethia Foundation be able to return the amount of the donation and even if the
amount of the donation were returned, it would be without interest because there was admittedly no
provision for payment of interest and a Tata concern making the donation would lose interest on the
amount of the donation for the period during which the amount remained with Nirmal Sethia
Foundation. Prima facie the entire episode relating to this donation of Rs. 1 crore to Nirmal Sethia
Foundation appears to be bizarre. Obviously - and here again we are e Xpressing our prima facie view
this donation of Rs. 1 crore to Nirmal Sethia Foundation was co-related to the donation of Rs. 1
crore agreed to be made to Indira Gandhi Pratibha Pratishthan and lends support to the evidence of
Prabhakar supported by his noting dated 29th April, 1981 part of EX.
230. We would not on this material be unjustified in taking the view that it was in pursuance of the
agreement arrived at on 25th March, 1981 that the donation of Rs. 1 crore was made and since
income tax eXemption was not available in case of donation to Indira Gandhi Pratibha Pratishthan,
this donation of Rs. l crore was made to Nirmal Sethia Foundation.
It is therefore clear that though Gavai, Prabhakar and the respondent did not agree to the
deductibility of the donations to be made to Indira Gandhi Pratibha Pratishthan in computing the
net income of NCPA from its commercial comple X, it was definitely agreed on 25th March, 1981 that
donations, as stated above, would be made by NCPA by itself or through others to Indira Gandhi
Pratibha Pratishthan. It appears that since the Government of Maharashtra was not agreeable to
override BMRDA notification restricting FSI to 1.33 as also to permit the donations to Indira Gandhi
Pratibha Pratishthan to be deducted in computing the income of NCPA, Ajit Kerkar informed J.J.
Bhabha, as stated by him in paragraph 19 of his deposition that his scheme was not acceptable to the
Government and that Bhabha should therefore move in the matter. J.J. Bhabha accordingly

addressed a letter dated 1st April, 1981 EX. 216 to Gavai. mis letter was collected from J.J. Bhabha's
office by Sen Gupta, EXecutive Assistant of Ajit Kerkar in order that Ajit Kerkar should be able to
personally hand over to Gavai and pursue the matter with the Government. The letter dated 1st
April, 1981 EX. 216 was accompanied by a note prepared by J.J. Bhabha. When Ajit Kerkar got this
letter dated 1st April, 1981 EX. 216 alongwith the note, he dictated to Sen Gupta an endorsement to
be made at the foot of the note and his endorsement was written out by Sen Gupta in his own
handwriting as per the dictation of Ajit Kerkar. This endorsement was written down by Sen Gupta in
the morning of 10th April, 1981 and it is marked 'B' at the foot of E X. 216. It is significant to note
what this endorsement said :
"The NCPA by itself or through others, will arrange to make the following donations
to Indira Pratibha Pratishthan, an allied organisation involved in giving similar
support to the performing and non performing acts; one time within si X months of
Govt.'s confirmation Rs. 1 crore three years after i.e. On completion and
commissioning of the commercial compleX. RS. 25 lakhs per year eight years after
five years after the completion of the commercial comple X, RS. 50 lacs per year. The
above donations may be considered as NCPA's eXpenses, while computing NCPA's
net income."
Ajit Kerkar again tried to persuade the Government of Maharashtra that the above donations to be
made to Indira Gandhi Pratibha Pratishthan should be considered as e Xpenses of NCPA while
computing its net income. But obviously this effort also did not succeed. Indeed it would have been
difficult for the Government of Maharashtra to agree to allow the donations to Indira Gandhi
Pratibha Pratishthan to be considered as eXpenses of NCPA while computing 50 per cent of the net
income of NCPA payable to the Government for two very good reasons. Firstly, it would be a fraud
on the Government because than 50 per cent of the donations to Indira Gandhi Pratibha
Pratishthan would be really paid by the Government and secondly it would have to be e Xpressly
stated in the official documents that the donations were deductible in computing the net income of
NCPA and that would have e Xposed the real nature of the transaction, namely, that the donations
were paid for getting a favour from the respondent. Neither Gavai and Prabhakar nor the
respondent therefore accepted this suggestion of Ajit Kerkar. But the other part of the agreement
reached on 25th March, 1981 was placed before the Cabinet alongwith the Cabinet Note and it was
approved by the Cabinet. The draft of the Government resolution embodying this agreement was
submitted by the Under Secretary alongwith his note which was approved by Pengulkar, Deputy
Secretary. This note which is dated 16th April, 1981 and which is part of E X. 230 referred to the J.J.
Bhabha's letter dated 1st April, 1981 EX. 216 and apointed out that in that letter NCPA had
undertaken that it would itself or through others arrange to make donations to Indira Gandhi
Pratibha Pratishthan, as set out in the endorsement marked 'B' EX. 216. It was stated in this note
that NCPA had requested that these donations may be considered as e Xpenses of NCPA while
computing its net income. Obviously reference was made by Pengulkar in this note to the request
made by NCPA in the letter of J.J. Bhabha dated 1st April, 1981 E X. 216 because Pengulkar was
seeking instructions of his superiors in regard to this request which was rejected on 25th March,
1981 but restored on 10th April, 1981. It was when this note of Pengulkar came to Prabhakar that he
recorded the note dated 29th April, 1981 marked 'B' to which we have referred in some detail. The

note of Prabhakar dated 29th April, 1981 marked 'B' supported by the oral evidence of Prabhakar
clearly establishes that NCPA had agreed to make donations set out in the endorsement marked 'B'
in EX. 216 to Indira Gandhi Pratibha Pratishthan and that it was agreed that the donations so made
would not be treated as deductible eXpenses.
It seems that Sen Gupta and Shakur Khan, representatives of NCPA again made another effort to
persuade Gavai and Prabhakar to agree that donations to be made to Indira Gandhi Pratibha
Pratishthan should be allowed to be deducted as e Xpenses before determining the net income of the
commercial compleX of NCPA. But as appears clearly from the note of Gavai dated 30th April, 1981
part of EX. 230, Gavai and Prabhakar clearly pointed out to Sen Gupta and Shakur Khan that NCPA
would have to pay these donations after 50 per cent of the net income was paid to the Government
and that such donations cannot be treated as e Xpenses. This note of Gavai also establishes beyond
doubt that NCPA had agreed to pay donations to Indira Gandhi Pratibha Pratishthan and their
request for treating the donations as deductible eXpenses was turned down by the Government of
Maharashtra. The draft Government resolution for giving effect to the Cabinet decision of 10th
April, 1981 was approved by the Chief Secretary and the Government resolution dated 6th May, 1981
was issued by the Government of Maharashtra directing that :
i) The entire plot of land admeasuring 30,419 sq. mtrs. should be covered under one single lease
provided that the mortgage in respect of 3/4th of the plot is redeemed. National Centre for the
Performing Arts will also have option to eXtend the eXisting mortgage with the Government of India
to cover the entire property.
ii) The National Centre for the Performing Arts be allowed to utilise the F.S.I. at the currently
permissible rate of 1.33 over the entire plot. The area so covered would, however be inclusive of the
eXisting construction already made by the N.C.P.A. to the eXtent of about 95,000 sq.ft.
iii) The NCPA be permitted to build a hotel of international standard in the comple X and offices and
shops ancilary and germane to such Hotel Establishment only. They may by themselves or through
any other parties develop and operate the commercial compleX.
iv) The NCPA will be required to pay to Government 25% of the net annual profits of the Centre and
also 50% of the net income from the properties put to commercial use, in terms of original
Government Resolution. J.J. Bhabha had to admit in his evidence that by reason of this Government
resolution the impediment in the way of NCPA was completely removed and according to the
evidence of Prabhakar, the benefit which NCPA received by reason of this Government resolution
could be estimated to be in the neighbourhood of several crores.
We must also refer to the donations aggregating to Rs. 26 lakhs made by Indian Hotels Company
Limited on 31st March, 1981. These donations were made to three trusts floated by the respondent
namely Mahasle Taluka Pratishthan, Ambet Pratishthan and Shri Verdhan Matadarsangh
Pratishthan. Rs. 6 lakhs were donated to Ambet Pratishthan, Rs. 10 lakhs to Mahasala Taluka
Pratishthan and Rs. 10 lakhs to Shri Verdhan Matadarsangh Pratishthan. There was also one other
trust floated by the respondent namely Raigarh Pratishthan. These four trusts were drafted by

Sheroo Kanuga PW-16 and in all these four trusts the respondent, his wife and Sheroo Kanuga were
the only trustees and it was provided in each of these four trusts that any vacancy arising the office
of trustee would be filled up from the family of the respondent. It is the evidence of Sheroo Kanuga
that the drafts of these four trust deeds were prepared by him on the basis of the trust deed of Indira
Gandhi Pratibha Pratishthan and the respondent had not e Xamined these four trust deeds but
merely the broad features were e Xplained to the respondent. Now the trust deeds in respect of these
four trusts were eXecuted by the trustees on 20th March 1981 and they were lodged with the Charity
Commissioner on 23rd March 1981. On the application of Sheroo Kanuga compliance with Rule 7A
of the Maharashtra Public Trusts Rules was dispensed with even though it was legally not
permissible to do so. Sheroo Kanuga also obtained certificates from the Income-tax Authorities
eXempting donations made to these four trusts. Sheroo Kanuga eXplained in his evidence that all
this had to be rushed through in order to enable donations to be taken from the potential donor
companies before 31st March 1981. He admitted that Indian Hotels Company Limited was the
company which was eXpected to give donations before 31st March 1981. He went on to say that the
respondent had sent to him one Jadav who was a labour leader in the Taj Group of Companies in
Bombay and he heard from Jadav that Indian Hotels Company Limited intended to make donations
before 31st March 1981. Indian Hotels Company Limited accordingly by a Resolution of its Board of
Directors dated 31st March 1981 approved of donation of Rs. 6 lakhs to Ambet Pratishthan, Rs. 10
lakhs to Mahasle Taluka Pratishthan and Rs. 10 lakhs to Shri Verdhan Matadarsangh Pratishthan
and cheques were paid to Sheroo Kanuga on behalf of these three trusts.
Now it does appear prima facie that these 3 donations aggregating Rs. 26 lakhs were paid by Indian
Hotels Company Limited pursuant to some understanding reached in the course of negotiations
leading to the agreement dated 25th March 1981. We fail to appreciate what possible reason could
have prompted Indian Hotels Company Limited to make these donations aggregating to a large
figure of Rs. 26 lakhs to the three trusts of the respondent. It is significant to note that these three
trusts along with the 4th trust of Raigarh Pratishthan were e Xecuted and registered and income-tax
eXemption certificates were obtained in the course of just 10 days before the donations came to be
made to them by Indian Hotels Company Limited. The e Xtra ordinary speed with which these four
trusts were created followed immediately after the making of donations by Indian Hotels Company
Limited clearly show prima facie of course, that there must have been some understanding between
Ajit Kerkar and the respondent.
The only eXplanation offered by Ajit Kerkar for the making of these donations to the three trusts was
that Jadav who was a labour leader in the Taj Group of Companies was pressing him to do
something for improving the conditions in the Konkan Region. Ajit Kerkar also relied on a letter
dated 15th January 1981 said to have been addressed to him by Jadav. The case of Ajit Kerkar was
that it was on account of the pressure eXerted by Jadav on behalf of over 600 employees working in
the Taj Group of Hotels who hailed from Konkan Region that Indian Hotels Company Limited
decided to make these donations to the three trusts of the respondent. This story put forward by Ajit
Kerkar prima facie does not appear to be true. If Jadav was pressing on behalf of the employees of
the Ta; Group of Hotels for doing something for the families of the employees in the Konkan Region
it is difficult to see why no donations or contributions were made by Indian Hotels Company
Limited to any other trusts such as Konkan Unnati Mitra Mandal prior to 25th March 1981.

Moreover we fail to appreciate why the employees in the Taj Group of Hotels should be so keen in
securing development of the Konkan Region instead of demanding improvement in their own living
conditions in Bombay. Moreover, the minutes of the meeting of the Board of Directors of Indian
Hotels Company Limited held on 31st March 1981 do not bear out the story put forward by Ajit
Kerkar that it was at the instance of Jadav that these donations came to be made. What is stated in
the minutes of the meeting is as follows :
"The Managing Director reported to the Board that over 600 employees working in
Grades I to V in the Taj Mahal and Taj Mahal Intercontinental Hotels, Bombay, and
who hail from the Konkan Region, had A approached the Managing Director to
contribute amounts to certain public charitable trusts recently established for the
purpose of undertaking programmes of rural development in the rural areas of the
Konkan Region. The Managing Director further reported that the Trustees of the
Trusts were very eminent public personalities and the trusts had been issued
certificate of eXemption of tax under Sec. 15CCA of the Income- tax Act, 1961,
pursuant to which donations to the Trusts would be fully e Xempt from tax in the
hands of the donors. The names of the Trusts are under :
(i) Ambet Pratishthan
(ii) Shrivardhan Matadarsangh Pratishthan
(iii) Mhasale Taluk Pratishthan".
It is difficult to understand as to how over 600 employees working in the Ta; Group of Hotels
suddenly came to know must a little prior to 31st March 1981 that three trusts had been floated by
the respondent when they were eXecuted and registered only a few days before that. How is it that
within 4 or 5 days over 600 employees of the Ta; Group of Hotels came to know about the e Xistence
of these trusts and how did they come to know that these 3 trusts were established for the purpose of
undertaking programmes of rural development in the rural areas of Konkan Region. It is also stated
in the minutes that Ajit Kerkar in his capacity as the Managing Director reported that the trustees of
these 3 trusts were very eminent public personalities. We wonder whether the respondent's wife and
Sheroo Kanuga could be said to be "very eminent public personalities". It Is also strange that though
a large sum of Rs. 26 lakhs was being paid by way of donations, J.J. Bhabha did not even bother to
inquire as to who were the eminent public personalities who were trustees of these three trusts. It is
prima facie difficult to accept the e Xplanation offered by Ajit Kerkar. We do not think we would be
unjustified, on the material on record, to take the prima facie view that these donations of Rs. 26
lakhs were also connected with the negotiations which took place on 25th March 1981 between Ajit
Kerkar on the one hand and Gavai and the respondent on the other.
We must therefore hold that a prima facie case has been made out on behalf of the prosecution for
framing 23rd, 24th, 25th, 41st, 42nd and 43rd draft charges against the respondent. The learned
Trial Judge in our opinion fell into an error in discharging the respondent in respect of these
charges.

Before we close we may make it clear that we have eXamined the evidence on record merely for the
purpose of deciding whether the evidence is of such a nature that, if unrebutted, it would warrant
the conviction of the respondent. It will be open to the respondent to rebut this evidence and to
make out his defence when the trial proceeds against him on the charges already framed by the
learned Trial Judge and the additional charges which we have directed to be framed against him.
RANGANATH MISRA, J. This appeal by special leave is directed against the order of a learned
Single Judge of the Bombay High Court dated April 30, 1985, refusing to frame charges on 22 heads
while framing charges under 21 other heads This litigation has had a chequered career. A short
account of the events relevant for the disposal of this appeal may now be indicated.
The appellant, R.S. Nayak, filed a petition of complaint on September 11, 1981, in the Court of the
Chief Metropolitan Magistrate, Esplanade, Bombay, alleging commission of several offences by the
respondent and some other persons. The learned Chief Metropolitan Magistrate declined to take
cognizance of the offences punishable under sections 161 and 165, I.P.C. and Section 5(2) of the
Prevention of Corruption Act (II of 1947) ('Act' for short) without appropriate sanction as the
respondent was, at the relevant time, holding the office of Chief Minister of the State of
Maharashtra. Several legal proceedings were taken thereafter in regard to the necessity of sanction.
Ultimately, however, the appellant lodged a fresh complaint on August 9, 1982, alleging commission
of offences by the respondent punishable under ss. 161, 165, 384 and 420 read with s. 120B, I.P.C. as
also s. 5(2) read with s. 5(1)(d) of the Act. This complaint came to be registered as Special Case No.
24/82 and was transferred to the High Court of Bombay for trial under an order made by a
Constitution Bench of this Court on February 16, 1984, in R.S. Nayak v.A.R. Antulay, [1984] 2 S.C.C.
183. This Court directed :
"Therefore, Special Case No. 24/82 and Special Case No. 3/83 (a similar complaint
filed by one P.B. Samant against the respondent) pending in the Court of the Special
Judge, Greater Bombay, Shri R.B.Sule, are withdrawn and transferred to the High
Court of Bombay with a request to the learned Chief Justice to assign these two cases
to a sitting Judge of the High Court"
This Court in a separate judgment delivered on the same day in A.R. Antulay v. Ramdas Sriniwas
Nayak & Anr.,[1984] 2 S.C.C.500, held :
". When cognizance is taken on a private complaint or to be precise, otherwise than

on a police report, the Special Judge has to try the case according to the procedure
prescribed for trial of warrant cases instituted otherwise than on police report by a
Magistrate (sections 252 to 258 of 1898 Code of Criminal Procedure) Section 252
requires that when accused is brought before a Court, the Court shall proceed to hear
the complainant and take all such evidence as may be produced in support of the
prosecution. Accused has a right to cross-eXamine complainant and his witnesses. If
upon considering the evidence so produced, the Court finds that no case against the
accused has been made out, which, if unrebutted, would warrant his conviction, the
Court shall discharge the accused (section 253 ibid). If, on the other hand, Court is of

the opinion that there is ground for presuming that the accused has committed an
offence, which the Court is competent to try, a charge shall be framed in writing
against the accused. "
(emphasis supplied) Pursuant to these judgments the case was posted for trial before
Khatri, J. of the Bombay High Court. The trial opened before Khatri, J. on April 9,
1984, and 16 witnesses were eXamined before him by July 27, 1984. Then followed
the dispute relating to fabrication of the public records, produced in the Court.
Khatri, J. ordered inspection of the files as also an inquiry into the allegations. By an
order dated April 23, 1984, he found that the prosecution allegations against the
respondent of tampering with the files by removing and interposing certain
documents and interpolating endorsements on some other documents were not well-
founded. The prosecution, thereupon, applied for transfer of the case to some other
Judge. That was refused but on the request of Khatri, J. that he may be relieved of
trying the case, the learned Chief Justice nominated Mehta, J., another Judge of that
court as the trial Judge. Fortyone more witnesses were eXamined before Mehta,
J. and after eXamination of 57 witnesses in all for the prosecution, the trial Judge was
invited to consider the framing of charges.
Fortythree draft charges were placed for his consideration. By the impugned order the learned Trial
Judge framed 21 charges and refused to frame the remaining 22 charges proposed by the
prosecution and made an order of discharge in respect of those charges. It is this order of discharge
relating to 22 charges which is assailed by the complainant in this appeal.
The respondent, a Barrister by profession, entered into politics and was for some time Minister of
Law in the State of Maharashtra and following the general election in 1980, came to be the Chief
Minister of that State up to January 20, 1982. The appellant in his complaint petition named the
respondent as the 1st accused and mentioned "others known and unknown" as the remaining
accused persons. He alleged in the petition of complaint that between August 1980 and September
1981 when respondent was functioning as Chief Minister, he retained to himself the power to deal
with the following matters :
(1) The allotment of cement quota and distribution of cement;
(2) Supply and sale of industrial alcohol, issue of licenses for wholesalers and
retailers dealing in country liquor and Indian made foreign liquor;
(3) Control of co-operatives and in particular the sugar co-operatives;
(4) Administration of urban land ceiling law, restriction of F.S.I. and e Xemptions
therefrom and in fact he himself eXercised these powers of the State.
During this period seven Trusts were created by the respondent as per the following particulars :
Serial No. Name of the Trust Date of Registration

1. Indira Gandhi Pratibha Pratishthan(IGPP) 18.10.80
2. Nirmal Sethia Pratishthan (NSPP) 29.12.80
3. Konkan Unnati Mitra Mandal (KUMM) 17.03.81
4. Raigad Zila Pratishthan (RZP) 25.03.81
5. Srivardhan Matadhar Sangh Pratishthan 25.03.81 (SMSP)
6. Mhasale Taluka Pratishthan (MTP) 25.03.81
7. Ambet Pratishthan (AP) 25.03.81 It is the prosecution case - and there is no dispute that
Srivardhan located in the District of Raigad was the Assembly Constituency of the respondent.
Konkan is the region in which the District of Raigad is located. The respondent belonged to village
Ambet which is part of Mhasale Taluka in Raigad District. The five Trusts appearing against items 3-
7 above were thus intended to place ample funds at the disposal of the respondent and provide
means and resources for his political aggrandisement. Nirmal Sethia Pratishthan was created in the
name of a friend of the respondent. In all these si X Trusts the respondent, his wife, close relations
and friends were associated as Trustees. So far as IGPP is concerned, the respondent represented
that the State Cabinet had taken a decision on October 6, 1980, to create the same. On October 7,
1980, the respondent at a Press Conference made a declaration to this effect and in official
publications also this fact was duly publicised. It is the prosecution case that the late Smt. Indira
Gandhi, the then Prime Minister, had never agreed to have her name associated with the Trust
which came to be registered with the Charity Commissioner on October 18, 1980. Though it was not
a Government Trust and Smt. Gandhi had not agreed to her name being associated with it, the
respondent personally and through others gave a lot of publicity representing as if these were facts
with a view to inducing people to believe that IGPP was a Government Trust and the late Prime
Minister had agreed to associate her name with that Trust. These representations were made with a
view to creating an appropriate impact on the mind of the people at large. According to the
prosecution, as a fact, Mrs. Gandhi had not consented to associate her name with the Trust and that
fact was disclosed on the floor of the Lok Sabha by the then Defence Minister on behalf of the Prime
Minister. It is on record that her name was deleted and the Trust later came to be known only as
Pratibha Pratishthan.
As already stated, 43 draft charges were placed before the learned Trial Judge on the basis of the
evidence of 57 prosecution witnesses and a large volume of documents. 43 draft charges were
divided into siX groups for convenience of consideration by the learned Trial Judge. These si X heads
with reference to the specific allegations and the particulars of the draft charges are shown below:
Serial No. Allegation Offence alleged Charge No.
1. Conspiracy 120B, IPC 1
2. With reference to Sugar Co-operatives :

(a) Shetkari Sahakar 165,384,420,IPC 2-4
Sakhar Karkhana
(b) Warna -do- 5-7
(c) Panjara -do- 38-40
3. (a) National Centre for

Performing Arts (NCPA) 161 & 165, IPC 23-25
5(2) read with
5(1) of the
Prevention of
. Corruption Act
(b) Indian Hotel Co
Ltd. 161IP&C;165, 41-43
5(2) read with
5(1) of the
Prevention of
. Corruption Act
4. Nanubhai Jewellers
(F.S.I) 33,35
161IP&C;165,
5(2) read with
Prevention 5(1),
. of Corruption Act
5. Industrial Alcohol -do- 32,34
6. Cement Allotments -do- 8-22,
7. transactions 26-31.
The prosecution eXamined specific witnesses with reference to the allegations supporting the draft
charges. Similarly, documents were also produced to support the allegations. The learned Trial
Judge, who was required in law to state the reasons if he discharged the accused, in an unusually
long order eXtracted the evidence of witnesses at length as also the contents of the documents and
framed 21 charges while discharging the respondent in respect of the remaining 22. The prosecution
filed an application on July 5, 1984, E Xt. 214-A, disclosing the names of the other accused persons
and those names were :
1. Mr. Ajit Kerkar, PW. 44;
2. Mr. P.G. Gavai, Chief Secretary to the Maharashtra Government at the relevant
time and a Trustee of the IGPP;
3. All officers of the State Government of Maharashtra who participated in the issue
of various Government orders knowing that the same were being issued for a
consideration;
4. Officers of the Sugar Directorate who used official pressure for collection of money
from the Sugar Co-operatives and Joint Stock Companies under instructions of the
respondent;

5. Mr. Pessi Tata, since dead, who negotiated several transactions relating to alcohol

and cement allocations ;
6. Mr. N.M. Tidke, Minister of Co-operation.
Admittedly, by July 5, 1984, the trial had already begun and several witnesses for the prosecution
had already been eXamined.
The learned Trial Judge did not accept the prosecution case regarding the offence of cheating and
eXtortion. Similarly, the charge of conspiracy was not accepted. The learned Trial Judge framed 21
charges in respect of siX transactions relating to cement and one relating to industrial alcohol for
offences under ss. 161 and 165, IPC and s. 5(2) read with s. 5(1)(d) of the Act. For these 7
transactions, 21 charges in all were framed, 3 charges for each transaction.
As pointed out by the Constitution Bench in the judgment to which reference has been made, the
relevant sections of the Code of Criminal Procedure ('Code' for short) for the trial of a case of this
type are sections 244, 245 and 246. Section 245(1) provides :
"If upon taking of the evidence referred to in s. 244, the Magistrate considers, for
reasons to be recovered, that no case against the accused has been made out which, if
unrebutted, would warrant his conviction, the Magistrate shall discharge him."
While section 246(1), on the other hand, requires :
"If when such evidence has been taken or at any previous stage of the case the
Magistrate is of opinion that there is ground for presuming that the accused has
committed an offence triable under this Chapter which such Magistrate is competent
to try and which in his opinion should be adequately punished by him, he shall frame
in writing a charge against the accused."
The Code contemplates discharge of the accused by the Court of Sessions under s. 227 in a case
triable by it; cases instituted upon a police report are covered by s. 239 and cases instituted
otherwise than on police report are dealt with in s. 245. The three sections contain some what
different provisions in regard to discharge of the accused. Under s. 227, the trial Judge is required to
discharge the accused if he 'considers that there is not sufficient ground for proceeding against the
accused.' Obligation to discharge the accused under s. 239 arises when "the Magistrate considers
the charge against the accused to be groundless." The power to discharge is e Xercisable under s.
245(1) when "the Magistrate considers, for reasons to be recorded, that no case against the accused
has been made out which, if unrebutted, would warrant his conviction..." It is a fact that ss. 227 and
239 provide for discharge being ordered before the recording of evidence and the consideration as to
whether charge has to be framed or not is required to be made on the basis of the record of the case,
including documents and oral hearing of the accused and the prosecution or the police report, the
documents sent along with it and eXamination of the accused and after affording an opportunity to
the two parties to be heard. The stage for discharge under s. 245, on the other hand, is reached only
after the evidence referred to in s. 244 has been taken. Not-withstanding this difference in the

position there is no scope for doubt that the stage at which the Magistrate is required to consider the
question of framing of charge under s. 245(1) is a preliminary one and the test of "prima facie" case
has to be applied. In spite of the difference in the language of the three sections, the legal position is
that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed.
In Mahant Abhey Dass v. S. Gurdial Singh & Ors., A.I.R. 1971 S.C. 834, this Court in case instituted
on complaint applied the prima facie test. In State of Bihar v. Ramesh Singh, [1978] 1 S.C.R. 257,
this Court again pointed out that the standard of test and judgment which is to be finally applied
before recording a finding regarding guilt or otherwise of the accused, is not to be applied at the
stage of deciding the matter under s. 227. It was further observed :
"If the evidence which the prosecution proposes to adduce to prove the guilt of the
accused even if fully accepted before it is challenged in cross- e X amination or
rebutted by the defence evidence, if any, cannot show that the accused committed the
offence, then there will be no sufficient ground for proceeding with the trial. An
eXhaustive list of circumstances to indicate as to what will lead to one conclusion or
the other is neither possible nor advisable. We may just illustrate the difference of the
law by one more eXample. If the scales of pan as to the guilt or innocence of the
accused are something like even at the conclusion of the trial, then, on the theory of
benefit of doubt the case is to end in his acquittal. But, if on the other hand, it is so at
the initial stage of making an order under s. 227 or s. 228, then in such a situation
ordinarily and generally, the order which will have to be made will be one under s.
228 (charge to be framed) and not under s. 227 (of discharge)".
Untwalia, J. who spoke for the Court in that case, quoted with approval the view eXpressed by
Shelat, J. in Nirmaljit Singh Hoon v. State of West Bengal & Anr., [1973] 2 S.C.R. 66, and what had
been said in yet another earlier decision of the Court in Chandra Deo Singh v. Prakash Chandra
Bose, [1964] 3 S.C.R. 629. In the case of Union of India v. Prafulla Kumar Samal & Anr., [1979] 2
S.C.R. 229, (a decision to which the trial Court referred), this Court was dealing with a case
involving allegations relating to offences punishable under s. 5(2) read with s.5(1)(d) of the Act and
s. 120-B, IPC as here. Fazal Ali, J. indicated that the Court has power to sift and weigh the evidence
for the limited purpose of finding out whether or not a prima facie case against the accused has been
made out. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar
Bhunia & Ors.,[1979] 4 S.C.C. 274, a three Judge Bench of this Court said:
"At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh,
(supra), the truth, veracity and the effect of the evidence which the prosecution
proposes to adduce are not to be metieulously judged. The standard of test, proof and
judgment which is to be applied finally before finding the accused guilty or otherwise
is not eXactly to be applied. At this stage, even a very strong suspicion founded upon
materials before the Magistrate which leads him to form a presumptive opinion as to
the eXistence of the factual ingredients constituting the offence alleged may justify
the framing of charge.. "

The language of sub-s. (1) of s. 245 also places the matter beyond dispute by using the same test as
suggested by Untwalia, J., in the case of Ramesh Singh, (supra).
The use of the words "if, upon taking of the evidence referred to in s. 244" in sub-s. (1) of s. 245 is
suggestive of the statutory intention that until "all such evidence as may be produced in support of
the prosecution" is taken, the stage for judicial consideration as to whether charge is to be framed is
not reached. Now it is a fact that several witnesses named by the prosecution still remain to be
eXamined in the instant case but no grievance was made before us by the appellant's counsel that the
trial Judge had acted wrongly in taking up the question of framing of charges prematurely.Obviously
this complaint could not be made since after 57 witnesses had been e Xamined it was the prosecution
itself which invited the learned Trial Judge to take up the matter of framing of charges.
Admittedly, the witnesses eXamined for the prosecution have been cross-eXamined and in the case
of some, at great length. There is no scope for doubt that the rebuttal case envisaged in s. 245(1) of
the Code is fairly clear from the cross-eXamination of prosecution witnesses as also from the
documents e X hibited before the Court, apart from direct evidence being led by the defence
independently. Under the scheme of the Code there is no scope for the accused to lead defence
evidence until the prosecution is closed and the e Xamination of the accused under s. 313 of the Code
is over. With the amendment of the Code of 1898 in 1955 and under the new Code of 1973 the
procedure relating to all varieties of criminal trials, e Xcepting warrant cases on private complaints,
has been simplified. The procedure in respect of trials according to warrant procedure in private
complaints, however, continues to be cumbersome and time-taking and it is for Parliament to
simplify the procedure for such cases keeping all aspects in view.
Lengthy arguments were advanced both by Mr. Jethmalani for the appellant and Mr. P.P. Rao for
the respondent with reference to the evidence. When an attempt was made by learned counsel on
both sides to present an analysis of the evidence and criticism was advanced by Mr. Jethmalani
against the reasons given by the trial Judge and support was indicated by Mr. Rao to such reasons,
we indicated to Mr. Rao that if we went into the matter at length even for the prima facie purpose
and indicated conclusions it might embarrass the respondent in, his defence even in respect of the
charges framed by the trial Court. In view of these observations made in course of the hearing, a
written statement on behalf of the respondent was filed on November 5, 1985, signed by the
respondent and his counsel. The relevant portion of the said statement reads thus :
"Since some charges have already been framed by learned Trial Judge with respect to
offences under ss. 161 and 165, I.P.C. and s. 5(1)(d) read with s. 5(2) of the
Prevention of Corruption Act and the ingredients of the offence under s. 165, I.P.C.
have not been specifically adverted to in the main judgment and the respondent has
in any event to argue before the trial Court regarding the scope as well as the
ingredients of the offences under ss.161 and 165, I.P.C. On which there is not much of
case law and it involves appreciation of the scheme of the relevant provisions of the
I.P.C. as well as of the Prevention of Corruption Act, the respondent is willing to face
trial straightaway in respect of A not only the charges already framed but also on the
draft charges in so far as they involved the offences alleged under ss. 161 and 165,

I.P.C. and s. 5(1)(d) read with s. 5(2) of the Prevention of Corruption Act and the
charge of conspiracy relating thereto........."
When such a statement was filed, we pointed out to Mr. Rao that while in the trial Court on the basis
of such a stand charges could straightaway be framed in regard to those offences named in the
statement in the appeal unless the order 3 of discharge made by the trial Court is vacated and the
reasons advanced by the trial Judge are set aside, it would not be proper for this Court in e Xercise of
its appellate jurisdiction to direct that charges be framed. It was further pointed out that a direction
to frame charges on the basis of the statement filed has to be on the footing that the prosecution
evidence in support of the charges was such that unless rebutted, the respondent would liable to be
convicted. This observation made by us was merely a restatement of the legal position and was not
meant to prejudice the respondent in any manner. But it cannot be disputed that in order to decide
whether the order of discharge should be sustained or set aside, we have to consider whether on the
material on record, a prima facie case has been made out on behalf of the prosecution.
As hearing proceeded, at one stage we were inclined to lay down generally the para-metres of the
provisions of s. 165, I.P.C. Mr. Rao for the respondent while making his submissions in regard to the
actual scope of the offence covered by s. 165, I.P.C. pointed out on more than one occasion that the
respondent might be prejudiced in his defence if while laying down the parametres of that offence,
we indicated a straightjacket formula. He also suggested that the matter should be left to be argued
and the learned Trial Judge should be free to come to his conclusion in law with reference to the
facts of the case about the scope and ambit of that provision that if any party was aggrieved by the
decision it would still be open to be corrected in the appellate forum. Taking these submissions into
consideration and on further deliberation, we are inclined to accept the view that it may not be
appropriate at this stage to lay down the ambit and scope of the offence under s. 165, I.P.C. at any
great length. It would be sufficient in our view to generally point out the distinction between
sections 161 and 165, I.P.C. and simultaneously deal with the provisions of s. 5(1) read with s. 5(2) of
the Act. But before doing so, we would briefly refer to the evidence in support of the charges which
the respondent has agreed to be framed for the purpose of showing that the learned Trial Judge had
prima facie taken a wrong view and it was a fit case where these charges should have also been
framed.
The complainant PW. 14 is a member of the Bhartiya Janata Party. He was elected as a State
legislator in 1978 and from 1980 onwards he was General Secretary of the Bombay City unit of the
said Party. He has supported the prosecution allegations in general. According to him, the IGPP was
publicised as a Government Trust. A statement of the respondent at the Press Conference held
immediately after the Cabinet decision and repetition of that in contemporaneous Government
publications led people to believe that IGPP was a Government Trust. The Government publications
have been eXhibited. Though an attempt has been made while cross-eXamining the witness to bring
out the position that what was published in the Government publications was not known to the
respondent, that has yet to be established. PW. 1, a Cabinet colleague of the respondent and now a
sitting Member of Parliament who has close association with one of the major sugar co-operatives as
also Directors of the other sugar co-operatives, has spoken about the demand of contribution and
the raising of contribution taking a bag of sugar produced as the unit. There is considerable evidence

in regard to allotment of cement under instructions of the respondent. Contemporaneous record
prepared by responsible public officers prima facie supports the position that the respondent had
directed allotments to be made in a manner said to be not strictly in accordance with the prevailing
procedure. The persons to whom allotments of cement have been made have in many cases
contributed large sums of money to the Trust funds. In regard to the NCPA there is
contemporaneous documentary evidence as also oral evidence to show that certain concessions were
eXtended by Government and payments had been received which have gone into the Trust funds.
While the prosecution has alleged that the payments of money were a consideration for the favour
shown to NCPA, the defence has A come out with the version that the payments made and stipulated
were unconnected and the large sum of money agreed to be paid was for the purpose of improving
the lot of the people of Konkan region. Similarly, in regard to the grant of 'No Objection Certificate'
in respect of the premises of Nanubhai Jewellers, there is evidence from the side of the prosecution
to support its allegation that the power of the State was e Xercised for a consideration while there is
no denial regarding receipt of the payment but the link is denied and disputed. Similarly, in regard
to industrial alcohol at least so far as Kolhapur Sugars are concerned, there is the evidence of PW.
50 and payment of Rs. 2,25,000 which has gone into the funds of the KUMM has been alleged and is
claimed to have been proved. The record shows that the allotment of alcohol was restored.
The oral evidence in this case is backed up by documentary evidence. Some of the relevant
documents have interpolations and the inquiry relating to interpolation has not become final. It is
indeed difficult at this stage to say that the evidence as a whole is inadequate to establish the prima
facie case. The learned Trial Judge, as already pointed out, e Xtracted at great length both the oral
evidence as also the contents of documents but there was not much of analysis to justify rejection of
the material. It may be pointed out that there is substance in Mr. Jethmalani's submission that the
learned Trial Judge adopted two different standards in the matter of weighing the same evidence,
when he agreed to frame 21 charges which were inter-linked and inter-connected with the rest of the
prosecution story with reference to which the 22 draft charges had been given. In fact it is this
position which, when properly considered by his counsel, led the respondent to file his statement
suggesting that charges for the other offences eXcepting under ss. 384 and 420, IPC, may also be
framed. If the evidence was accepted for half the number of charges relating to similar offences,
there could hardly be any scope to reject the 22 draft charges. Similarly, in regard to the charge of
conspiracy the facts were interconnected and there could be no justification to reject the charge even
if the other persons implicated were not before the Court. The reasoning given by the learned trial
Judge in support of his order of discharge in regard to the draft charges relating to ss. 161 and 165,
IPC and s. 5(2) read with s. 5(1) of the Act, concerning these transactions cannot, therefore, be
sustained. We are, in the circumstances, inclined to take the view that the statement filed by the
respondent was justified and the order of discharge made by the learned trial Judge is not
sustainable.
It is appropriate at this stage to take note of the fact that under s. 245(1) of the Code the requirement
is that the evidence must be such which if not rebutted would warrant conviction of the accused.
Under the law of evidence the concept of rebuttable presumption is well-known. As pointed out by
Taylor in his Treatise on Evidence, "rebuttable presumptions of law are a result of the general
eXperience of a connection between certain facts or things one being usually bound to be the

companion or affect of the other. The connection, however, in this class is not so intimate or so
uniform as to be conclusively presumed to e Xist in every case; yet, it is so done that the law itself
without the aid of a jury infers one fact from the crude e Xistence of the other in the absence of
opposing evidence. In this mode, the law advances the nature and amount of the evidence which is
sufficient to establish a prima facie case and throws the burden of proof upon the other pary; and if
no opposing evidence is offered, the jury are bound to find in favour of the presumption. A contrary
verdict might be set aside as being against evidence. The rules in this class of presumptions as in the
former have been adopted by common consent from motives of public policy and for the promotion
of the general good; yet, not as in the former (conclusive proof) class forbidding all further evidence
but only dispensing with it till some proof is given on the other side to rebut the presumption raised.
Thus, as men do not generally violate the Penal Code, the law presumes every man to be innocent;
but some men do transgress it; and therefore, evidence is received to repel this presumption."
(emphasis supplied by us).
The learned trial Judge should have proceeded to scan the evidence keeping this aspect of the legal
position in view which he has missed. There is another aspect which has also to be noticed here. One
of the allegations against the respondent is the commission of offences punishable under s. 5(1) read
with s. 5(2) of the Act. Section 4 of that Act provides :
'Where in any trial of an offence punishable under s. 161 or section 165 of the Indian
Penal Code, or of an offence referred to in clause (a) or clause
(b) of sub-s. (1) of s. 5 of this Act punishable under sub-section (2) thereof, it is
proved that an accused person has accepted or obtained, or has agreed to accept or
attempted to obtain, for himself or for any other person, any gratification (other than
legal remuneration) or any valuable thing from any person, it shall be presumed
unless the contrary is proved that he accepted or obtained or agreed to accept or
attempted to obtain, that gratification or that valuable thing, as the case may be, as a
motive or reward such as is mentioned in the said section 161, or, as the case may be,
without consideration or for a consideration which he knows to be inadequate."
The presumption raised under s. 4 is a presumption of law which a Court is bound to draw, once it
is proved that the accused Government servant received or obtained a valuable thing in the
circumstances mentioned in the section (see The State of Madras v. A. Vaidyanatha Iyer, [1958]
S.C.R. 580 and K. Satwant Singh v. The State of Punjab, [1960] 2 S.C.R. 592). The learned Judge
failed to take note of this statutory provision while dealing with the charges under ss. 161 and 165,
IPC as also s. 5(1)(a) and (b) of the Act. We do not intend to say anything more at this stage. But we
do hope that while dealing with the case after the framing of the charges, the learned trial Judge will
keep this legal position in mind and act accordingly.
In the face of the pronounced view of this Court that the Minister is a public servant, no attempt was
made either before the High Court or before us to argue that to the Chief Minister, ss. 161 and 165 of
the Indian Penal Code would not apply. The main ingredients of the charge under s. 161, IPC, are :

(1) that the accused was a public servant; (2) that he must be shown to have obtained
from any person any gratification other than legal remuneration; and (3) that the
gratification should be as a motive or reward for doing or forbearing to do any official
act or for showing or forbearing to show, in the eXercise of his official function, favour
or disfavour to any person.
Ordinarily, when the first two ingredients are established by evidence, a rebuttable presumption
arises in respect of the third. For the offence under s. 165, IPC the essential ingredients are :
(i) the accused was a public servant;
(ii) he accepted or obtained or agreed to accept or obtain a valuable thing without

consideration or for an inadequate consideration knowing it to be inadequate;
(iii) the person giving the thing must be a person concerned or interested in or
related to the person concerned in any proceeding or business transacted or about to
be transacted by the government servant or having any connection with the official of
him self or of any public servant to whom he is subordinate; and
(iv) the accused must have knowledge that the person giving the thing is so
concerned or interested or related.
It has been pointed out by this Court in A. Vaidyanatha Iyer's case (Supra) that s. 165 is so worded
as to cover cases of corruption which do not come within ss. 161, 162 or
163. Indisputably the field under s. 165 is wider. If public servants are allowed to accept presents
when they are prohibited under a penalty from accepting bribes, they would easily circumvent the
prohibition by accepting the bribe in the shape of a present. The difference between the acceptance
of a bribe made punishable under s. 161 and 165, IPC, is this : under the former section the present
is taken as a motive or reward for abuse of office, under the latter section the question of motive or
reward is wholly immaterial and the acceptance of a valuable thing without consideration or with
inadequate consideration from a person who has or is likely to have any business to be transacted, is
forbidden because though not taken as a motive or reward for showing any official favour, it is likely
to influence the public servant to show official favour to the person giving such valuable thing. The
provisions of ss. 161 and 165, IPC as also s. 5 of the Act are intended to keep the public servant free
from corruption and thus ultimately ensure purity in public life. The evidence in the case, therefore,
should have been judged keeping these aspects in view.
We shall now proceed to consider the charge relating to e Xtortion punishable under s. 384, IPC. The
allegation in respect of this alleged offence is to be found in paragraph 18 of the petition of
complaint which reads thus :
"That on the facts mentioned above, the accused is also guilty of an offence under s.
384, I.P.C. When a Chief Minister demands moneys from persons officially

transacting business with him or who are likely to transact business with him in the
future, it is implicit in the situation that a veiled threat is conveyed that the request or
demand will not be attended to and there will either be denial or delay in the matter
of granting to them what they are entitled to or that they will be harassed by a large
number of pink- pricks by which bureaucracy and the Government make anyone's life
miserable if the Chief Minister's demands are not complied with. Moneys are,
therefore, obtained by eXtortion and payments called donations are the direct result
of fear of injury. The accused has thus been guilty of the offence under s. 384, I.P.C."
The learned Judge considered framing of charge relating to e Xtortion, in paragraphs 97-107 of his
order. According to him, the evidence of PW. 1 Shalinitai did not establish that the accused or
anybody on his behalf held out any threat either personally to her or to the Sangli Karkhana.
According to the learned counsel, the learned Judge fell into an error in confining his consideration
of the issue by referring to the deposition of PW. 1 alone. The evidence of PW.51, Gilda, was equally
relevant and germane to the issue of eXtortion according to him and should have been referred to
and relied upon while dealing with the consideration of the charge. Mr. Jethmalani ne Xt contended
that the following features which had been established should have led the learned Judge to hold
that there was material for the view that a case in respect of the charge had been made out by the
prosecution.
(i) The respondent had decided to raise Rs. 10 crores for the IGPP out of which a moiety was to be
raised during the crushing season of 1980-81 and the remainder during the following season;
(ii) The IGPP between the date of its formation and 31.3.81 had been able to secure a very small
amount compared to the target and bulk of that small amount had come from the Government of
Maharashtra;
(iii) Considering the pomp and publicity with which IGPP had been brought into e Xistence, the
financial position appeared to be ridiculous for want of sufficient funds. The respondent had assured
the Board of Trustees at the meeting of the 6th May 1981 that the sugar cooperatives at his instance
had agreed to immediately make payment of their contribution;
(iv) The statement of the respondent was based upon the fact that at the meeting on 25th April,
1981, of the ministerial committee held in his Secretariat Chamber, he had e Xtracted promises from
the managements of the sugar co-operatives for payment of contributions to IGPP in lieu of an
assurance to them of agreeing to their pending demands with Government;
(v) After obtaining the promise of donations, the respondent adjourned consideration of the
demand of the industry to the ne Xt meeting to be held on the 28th May 1981 and insisted upon
compliance of the promise of donations before their demands could be acceded to;
(vi) The entire official machinery, particularly of the Sugar Directorate, was utilised to bring about
pressure on the Sugar Federation and its component members for eXtracting contributions. Pressure
was, therefore, brought about of Marathe, P.W. 5, through Lulla, P.W.7, and the telegram under EXt.

81 was sent to the members of the Federation;
(vii) P.W.1, Shalinitai, rightly described the conduct of the respondent as one of pestering and in
answer to such eXtortion to which she yielded, she advised the Sangli Karkhana to make the
payment in the interest of the society. According to Mr. Jethmalani, the position came to this that if
the factory had not paid, the legitimate demands pending consideration of Government would have
suffered a setback:
(viii) The donations in the instant case were the outcome of pressure and were not voluntary in
character. The fact that the Penzarakan Karkhana had issued a cheque of Rs. 2 Lakhs in spite of its
strained financial circumstances and while it had a bank balance of less than Rs. 6,000 and the
Sangli Karkhana had to arrange for a duplicate cheque as the original cheque had been left at Sangli
and had not reached the respondent in time, were indicative of the volume of pressure that must
have been brought about for collecting the donations;
(ix) Mr. Jethmalani pointed out that it was the respondent's own case that if the management had
made payments which were illegal, they themselves abetted the offence of cheating. This suggestion
had been put to three relevant prosecution witnesses. The fact that these witnesses closely
connected with the sugar co-operatives had committed even a criminal offence goes to show that
their act was not at all voluntary and the fiscal interest of the factories must have been their sole and
primary consideration for such conduct.
On the basis of these facts and circumstances, learned counsel for the appellant argued that the
three charges of eXtortion had been prima facie established and the learned trial Judge was,
therefore, not justified in refusing to frame charges for the offence under s. 384, IPC.
Mr. Rao for the respondent relied upon the definition of 'e Xtortion' in s. 383 in the Indian Penal
Code and contended that the ingredients of the offence had not been prima facie established so as to
justify framing of a charge for the said offence.
'EXtortion' is thus defined in s. 383, I.P.C. : "whoever intentionally puts any person in fear of any
injury to that person J or to any other, and thereby dishonestly induces the person so put in fear to
deliver to any person any property or valuable security, or anything signed or sealed which may be
converted into a valuable security, commits eXtortion."
The main ingredients of the offence are :
(i) the accused must put any person in fear of injury to that person or any other
person;
(ii) the putting of a person in such fear must be intentional;
(ii1) the accused must thereby induce the person so put in fear to deliver to any
person any property, valuable security or anything signed or sealed which may be

converted into a valuable security; and
(iv) such inducement must be done dishonestly.
Before a person can be said to put any person to fear of any injury to that person, it must appear that
he has held out some threat to do or omit to do what he is legally bound to do in future. If all that a
man does is to promise to do a thing which he is not legally bound to do and says that if money is
not paid to him he would not do that thing, such act would not amount to an offence of eXtortion.
We agree with this view which has been indicated in Habibul Razak v. King Emperor, A.I.R. 1924 All
197. There is no evidence at all in this case that the managements of the sugar co- operatives had
been put in any fear and the contributions had been paid in response to threats. Merely because the
respondent was Chief Minister at the relevant time and the sugar co-operatives had some of their
grievances pending consideration before the Government and pressure was brought about to make
the donations promising consideration of such grievances, possibly by way of reciprocity, we do not
think the appellant is justified in his contention that the ingredients of the offence of e Xtortion have
been made out. The evidence led by the prosecution falls short of the requirements of law in regard
to the alleged offence of eXtortion. We see, therefore, no justification in the claim of Mr. Jethmalani
that a charge for the offence of eXtortion should have been framed.
The only other allegation in respect of which there is an order of discharge is relating to cheating. In
the petition of complaint detailed factual allegations were made in paragraphs 19 to 30 in regard to
this aspect. The complaint alleged :
"That in the specific cases of contributions received by the IGPP the accused is
further guilty of committing an offence of cheating under s. 427 of the Indian Penal
Code. The accused embarked upon a systematic campaign to associate the name of
the Prime Minister of India, Mrs. Indira Gandhi with this Trust in order that the
contributions to this Trust would be easily forthcoming. This was, in fact, intended to
strengthen the impression that not only Mr. Antulay's Government but also Mrs.
Indira Gandhi was actively involved in his operations. That such an impression was
sought to be created is further borne out by the fact that for inaugurating the said
trust, a function was held at the Raj Bhavan, in Bombay on 11th October 1980. The
Prime Minister especially flew in to perform the inauguration ceremony. A picture of
the Prime Minister and the accused standing by her side while the former is signing
documents connected with the Trust appeared in most of the leading newspapers in
their issues dated 12th October 1980."
The allegations in regard to this offence are two-
fold: (i) though IGPP was not a State Government Trust, publicity was given by the respondent
himself and through his agents as also through news media owned by the State Government and the
public press to the fact that IGPP was a Government trust; and (ii) though Mrs. Gandhi had never
agreed to the Trust being named after her, the respondent associated her name for the purpose of
creating an impression in the mind of the people at large that the then Prime Minister, Mrs. lndira

Gandhi had associated herself with the respondent's trust. The fact that Mrs. Gandhi had not
consented was stated on the floor of the Parliament. The correct position was always known to the
respondent and yet he either directly or through others misrepresented these two aspects with a
view to making people part with money by way of contribution to this Trust.
The evidence in regard to these allegations is both oral and documentary. The Cabinet met on
October 6, 1980, and it is the prosecution case that the respondent gave out a Press Conference on
the following day that on the 6th October the Cabinet had decided to create a Trust by the name of
IGPP. The news relating to the Press Conference was reported in several newspapers, a few among
them being the Free Press Journal, Sakal, Lok Satta, Nav Shakti and the Indian E Xpress. The report
appearing in the Free Press Journal has been marked as E Xt. 190. That was shown to PW. 10 Arya,
the Secretary of the IGPP and on reading the Report he admitted it to be more or less correct. A
reference to the newspaper publication shows that the respondent had announced that the creation
of the Trust was the decision of the Government of Maharashtra. EXhibit 48 is the October-
November 1980 issue of a Government publication titled 'Maharastra Shasana Che Nirnay"
(decisions of the Government of Maharashtra). Therein there is reference to IGPP and a reading of it
prima facie shows that the establishment of IGPP was the decision of the Government of
Maharashtra. PW.8 the Director-General of Information and Public Relations of the Government of
Maharashtra at the relevant time has accepted this publication. It is true that he has taken the stand
that there is no ministerial approval at the pre-publication stage of the contents. That may not at all
be material because there must be an assumption that whatever is published in the Government
owned paper correctly represents the actual state of affairs relating to Governmental business until
the same is successfully challenged and the real state of affairs is shown to be different from what is
stated in the Government publication. mis position would get support from the decision of this
Court in Harpal Singh & Anr. v. State of Himachal Pradesh,[1981] 1 S.C.C. 560. The prosecution has
also relied on the Government of Maharashtra publication 'Lok Rajya'. The English and Marathi
versions of this publication for October 1980 have been proved as EXts. 179-180 respectively.
Similarly, there is another Government of Maharashtra publication known as "Maharashtra
Marches Ahead," EXt. 181, which is a publication of December 1980. These documents, according to
the prosecution, give an impression that IGPP was a Government created Trust. The Trust Deed of
the IGPP is EXt. 208 and it clearly shows that it is not a Government Trust nor was it created by the
Government. Even the respondent was not a Trustee qua Chief Minister. As a fact IGPP was
registered as a public trust with the charity commissioner.
PW.1, an erstwhile Cabinet colleague of the respondent has deposed that on the 11th October, 1980,
when she attended the function at the Raj Bhavan to which we shall presently advert, she came to
know the actual state of affairs, viz., though the respondent was trying to create an impression that
IGPP was a Government Trust, yet the same was not; but on account of her being in the Cabinet she
did not dispute the position anywhere publicly. The Cabinet Resolution has not yet seen the light of
the day. PW. 1 was specifically questioned as to whether there was a Cabinet decision in respect of
creation of IGPP as a Govt. Trust. She declined to answer the question by saying that she was bound
by the oath of secrecy and she would not be in a position to disclose that information. The
prosecution attempted to cause production of the Cabinet decision but privilege was claimed and the
claim has succeeded. Therefore, the document has not been produced before the learned trial Judge

and is not a part of the record. The propriety of the claim of privilege is subjudice before this Court
and we do not intend to say anything more about it. The core of the prosecution allegation in regard
to this part of the matter is with reference to the sugar co-operatives. Several witnesses have been
eXamined to support this aspect of the prosecution case.
So far as the second aspect, i.e. relating to the association of the name of Mrs. Gandhi is concerned,
Mr. Rao for the respondent has admitted the position that Mrs. Gandhi had at no stage given her
consent to her name being associated with the Pratibha Pratisthan. It is not disputed that under the
law, without appropriate sanction or authority, the name of the Prime Minister was not available to
be associated. There has been a denial of any such consent having been given by the then Defence
Minister on the floor of Lok Sabha. Respondent made a similar statement on the floor of the
Maharashtra Legislature on September 9, 1981, wherein, apart from endorsing the statement in
Parliament, he took the responsibility on himself of assuming Mrs. Gandhi's consent. Yet, on 16th
October, 1980, in Lok Rajya - a Maharashtra Government publication - a picture of the accused
standing by the side of the late Prime Minister was reproduced with the following inscription below
the photograph :
"Prime Minister Indira Gandhi affiXing her signature on the documents giving her
consent to name the Maharashtra Government's Trust for promoting talent in
literature and fine arts as 'Indira Gandhi Pratibha Pratishthan' at Raj Bhavan on
Saturday. Watching keenly is Chief Minister A.R. Antulay."
The learned trial Judge devoted a substantial part of the impugned order to deal with the charge
under s. 420, IPC. He referred to the statement of PW 1 that she had actually known the real state of
affairs before the contribution was made to the IGPP. He ultimately took the view that the material
placed on record did not justify a charge under 8. 420 IPC being framed. We do not propose to refer
to every item of evidence on record relating to the allegation of cheating. We are afraid that if we
follow that procedure and eXpress our opinion one way or the other with reference to each item of
evidence, either party is likely to be prejudiced when the matter goes for trial notwithstanding our
statement that we were doing so only for the purpose of finding out whether a prima facie case had
been made out. We would, therefore, not refer to the evidence any further.
Cheating is defined in 8. 415 of the IPC and the ingredients for that offence are :
(i) there should be fraudulent or dishonest inducement of a person by deceiving him;
(ii) (a) the person so induced should be intentionally induced to deliver any property
to any person or to consent that any person shall retain any property, or
(b) the person so induced should be intentionally induced to do or to omit to do

anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by the second part of (ii), the act or omission should be one
which caused or is likely to cause damage or harm to the person induced in body,

mind, reputation or property.
(See Dilbagh Rai Jarry v. Union of India & Ors., [1974] 2 F S.C.R. 178.) Section 415 actually consists
of two parts, each part dealing with one way of cheating -
1. Where, by deception practised upon a person the accused dishonestly or

fraudulently induces that person to deliver property to any person or to consent that
any person shall retain any property ;
2. Where, by deception, practised upon a person, the accused intentionally induces

that person to do or omit to do anything which he would not do or omit to do, if he
were not so deceived and which act or omission causes or is likely to cause damage or
harm to that person in body, mind, reputation or property.
The question is whether these ingredients are satisfied by the prosecution evidence. We must point
out that the learned trial Judge failed to analyse the evidence which he had at great length e Xtracted
keeping the proper angle of approach in view. Therefore, his conclusion is not made on a proper
assessment and is not sustainable. We are inclined to agree with Mr. Jethmalani that the evidence,
oral and documentary, taken together does justify the framing of a charge for the offence under
s.420, IPC. Here again, we would like to reiterate that the position is a presumptive one open to
rebuttal by the respondent. We are, therefore, of the view that a charge under s. 420, IPC, should be
framed by the learned trial Judge against the respondent.
The net result of the aforesaid discussion, therefore, is that a prima facie case has been established
by the prosecution in respect of the allegations for charges under ss.l20B, 161, and 165 and 420, IPC,
as also under s.5(1) read with s.5(2) of the Act. So far as the three draft charges relating to the
offence punishable under s. 384, IPC, are concerned, we agree with the learned trial Judge that the
prosecution failed to make out a prima facie case. Therefore, e Xcept in regard to the three draft
charges under s.384, IPC, charges in respect of the remaining 19 items shall be framed. The appeal
is allowed to that eXtent.
Lot of argument has been made by Mr. Jethmalani that other persons who have been named in the
application of the complainant EXt. 214-A, should also be proceeded against, particularly in regard
to the charge of conspiracy punishable under s.l20-B, IPC. As we have already pointed out, Pessi
Tata is dead. One of the other persons shown in E Xt. 214-A is also dead as indicated therein.
EXcepting Tidke, the Minister of Co-operation, Gavai, PW. 13, and Ajit Kerkar, PW. 44, and a few
other public officers who have been specifically named in E Xt. 214-A, names of others were not
disclosed and a prayer was made that all other officers who were involved in the matter may be
proceeded against. It may be that some of these officers or outsiders have not behaved in an
independent manner and have failed to act up to the e Xpectation of the office they held. But that by
itself may not be sufficient justification for prosecuting them criminally. Again, as pointed out by the
learned trial Court, if that is to be done at this stage, the trial which has already been sufficiently
protracted would have to be de novo and would required further time to be spent. It appears that
some of these officers like Gavai have already retired and are no more in service. Almost five long

years have intervened between the events and now. These are relevant aspects to be taken into
consideration. So far as Gavai is concerned, the learned trial Judge has e Xamined his conduct with
reference to the matter relating to NCPA and has come to the conclusion one which may not be
immediately rejected that he was anxious to watch the interests of the Government and, therefore,
did not agree with the concessions proposed by the NCPA. We are inclined, therefore, to take the
view that so far as Gavai is concerned, the trial Judge was justified in holding that he was not liable
to be proceeded against as a co-conspirator. While dealing with this aspect of the matter, the learned
Judge indicated that superior's direction was a germane consideration. We agree with Mr.
Jethmalani's submission that the superior's direction is no defence in respect of criminal acts, as
every officer is bound to act according to law and is not entitled to protection of a superior's
direction as a defence in the matter of commission of a crime. It is relevant to point out that the
other persons alleged against were not before the Court as accused persons. There was, therefore, no
question of discharging them. An application had been made to the trial Court and it is still open to
the trial Judge to consider on the matterial available if anyone has to be proceeded against as a co-
conspirator when the charge of conspiracy punishable under s. 120-B, IPC is framed. It is true that
under s. 319 of the code de novo trial would be necessary. It is in the discretion of the trial Court to
take a decision as to whether keeping all aspects in view any other person should be brought in as an
accused to be tried for any of the offences involved in the case. We do not e Xpress any definite view
in this regard and we consider it sufficient to indicate that this is a matter in the discretion of the
trial court.
There is one other aspect which required to be dealt with. The learned trial Judge while dealing with
Chari, PW. 41, in paragraph 653 observed.
"There appears to be no doubt that Chari is a disgruntled subordinate. The manner in

which he came out with the suggestion of substituting his note, E Xhibit 421, the
manner in which Chari volunteered his answers, would indicate that he had
harboured an animus against Gavai. mis aspect of Chari's evidence, therefore, cannot
be said to be reliable evidence against Gavai."
These observations against Chari appear to be totally unwarranted and the learned trial Judge
should not have, on the facts before him, come to this conclusion and castigated the public officer in
the manner referred to above. We are somewhat surprised that the learned trial Judge did not even
refer to the contents of the document, EXt. 421, with reference to which considerable evidence had
been led. In this connection the evidence of PWs. 46, 47 and 49 should also have been considered by
the learned trial Judge. These observations must, therefore, be e Xpunged. The learned trial Judge
will consider the entire evidence in its proper perspective when he finally disposes of the case.
We have no intention to make anything final at this stage e Xcept that the prosecution for the offence
under 8. 384, IPC, must fail. Any observation made by us in any part of our Judgment is confined to
the question as to whether charges should be framed and/or the order of discharge should be
upheld. Even where we have said that a charge is to be framed the position is that a frime facie case
has been made out which is open to be rebutted by the 1st respondent. The learned trial Judge is,
therefore, free to come to his own conclusions on the basis of the evidence which is already on

record and which may be led before him by the parties when the trial proceeds after the framing of
the charges and he will decide whether the charges against the 1st respondent are made out or not
on the basis of the entire evidence.
At the hearing Mr. Jethmalani for the appellant had prayed that we should give a direction to the
learned Chief Justice to nominate a Judge other than Mehta, J. to take up A the further trial of the
case and this prayer has been opposed by Mr. Rao for the respondent. It is too well settled that
litigants can have no say in regard to the choice of the judge before whom their lis must be heard.
We have no doubt that Mehta, J. had dealt with the matter in a fair way and there is no warrant on
the facts of the case for shifting the case from him to another learned Judge for trial. Recording of
the prosecution evidence is almost over and but for a few more witnesses and some documents
which might come, the prosecution has already laid its entire cards before the Court and Mehta, J.
has, with reference to all this material, taken a view which we have reversed. Though we have no
doubt in our mind that Mehta, J. acted fairly and impartially in disposing of the case in the manner
he did, it cannot be said that there is no scope for apprehension in the appellant's mind that his
complaint may not receive adequate and proper treatment at the hands of the same learned Judge
who has already eXpressed himself one way. In these circumstances, while reiterating our opinion
that we have no doubt that Mehta, J. acted fairly and impartially and without casting any reflection
whatsoever on the learned Judge, we would, following the well known dictum that justice should not
only be done but must also appear to be done, request the learned Chief Justice of the High Court to
nominate another learned Judge to take up the matter from the stage at which Mehta, J. made the
impugned order. We hope the learned Chief Justice will take prompt steps to nominate a learned
Judge to take up the trial and once such nomination is made, the learned trial Judge will proceed
eXpeditiously to dispose of the case finally.
M.L.A. Appeal allowed in part.

Virender Kumar Ohri vs Union Of India . on 30 August, 2017
Supreme Court - Daily Orders
1
ITEM NO.8 (M) COURT NO.2 SECTION

PIL
S U P R E M E C O U R T O F I N D I
A RECORD OF PROCEEDINGS
Writ Petition(s)(Civil) No(s). 341/2004
VIRENDER KUMAR OHRI Petitioner
VERSUS
UNION OF INDIA & ORS. Respondent(
Date : 30-08-2017 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE J. CHELAMESWAR
HON'BLE MR. JUSTICE S. ABDUL NAZEER
For Petitioner(s) Mr. Prashant Bhushan, AOR
For Respondent(s) Mr. Ranjit Kumar,S.G.

(UOI) Ms. Binu Tamta,Adv.
Ms. Sunita Rani Singh,Adv.
Mr. Vikas Bansal,Adv.
Mr. B.V. Balram Das,Adv.
Ms. Sushma Suri, AOR
(St. of Goa) Mr. A.N.S. Nadkarni,ASG

Mr. Salvador Santosh Rebello,Adv.
Sneha S. Prabhu Tendulkar,Adv.
Ms. Nivedita
Nair,Adv. Mr. Ajit
Yadav,Adv.
(St. of J & K) Mr. M. Shoeb Alam,AOR

Ms. Fauzia Shakil,Adv.
Mr. Ujjwal Singh,Adv.
Mr. Mojahid Karim Khan,Adv.
(sT. OF Sikkim) Ms. Aruna Mathur,Adv.

Mr. Avneesh Arputham,Adv.
Ms. Auradha Arputham,Adv.
Mr. Amit Arora,Adv.
Ms. Simran Jeet,Adv.
Signature Not Verified

Digitally signed by DEEPAK

MANSUKHANI
Date: 2017.08.30 17:19:23
IST Reason: SIGNER CARD OF
MR. DEEPAK MANSUKHANI
Mr. Arputham Aruna And Co, AOR

IS BEING USED BY MR.
OM PARKASH SHARMA
Mr. D. Mahesh Babu, AOR

□ 2
(St. of Tripura) Mr. Gopal Singh, AOR

Mr. Rituraj Biswas,Adv.
(St. of Mizoram) Mr. Shikhar Garg,Adv.

Mr. P. V. Yogeswaran,
AOR Mr. Ashok Mathur,
AOR
(St.of Chhattisgarh)Mr. C. D. Singh, AOR

Ms. Sakshi Kakkar,Adv.
Mr. Usman,Adv.
(St. of Jharkhand) Mr. Tapesh Kumar Singh, AOR

Mr. Mohd. Qaquas,Adv.
Ms. Pragati Neekhra, AOR
(St. of Manipur) Mr. Sapam Biswajit
Metei,Adv.
Mr. Naresh Kumar Gaur,Adv.
Mr. Ashok Kumar Singh, AOR
(St. of U.P.) Mr. Pramod Swarup,Sr.Adv.

Mr. Ashutosh Kumar Sharma,Adv.
Mr. Vinay Garg,Adv.
Mr. Ravi Prakash Mehrotra, AOR
Mr. Rajvinder Singh,Adv.

Mr. Hitesh Kumar Sharma,Adv.
Mr. S.V. Talwar,Adv.
Mr. Kuldip Singh, AOR
Mr. Nirnimesh Dube, AOR
Ms. Sharmila Upadhyay,
AOR

(St. of Nagaland) Mr. K. Enatoli Sema, AOR
Mr. Edward Belho,Adv.
Mr. amit Kumar
Singh,Adv. Mr. Luikang
ichael,Adv.
Mr. Z.H.Issac Haiding,Adv.

(St. of Uttarakhand)Mr. Mukesh Giri,AAG

Ms Bhuvneswari Pathak,Adv.
Ms. Shilpi Satyapriya Satyam,Adv.
Mr. Rahul Kaushik, AOR
(St. of Kerala) Mr. Nishe Rajen Shonker, AOR

Ms. Anu K. Joy,Adv.
Mr. Abdul
Kabeer,Adv.
(St. of Telangana) Mr. S. Udaya Kumar Sagar, AOR

Mr. Mrityunjai Singh,Adv.
□ 3
(St. of Bihar) Mr. E. C. Vidya Sagar, AOR

Mr. Manish Kumar,Adv.
(St. of Assam) Mr. Shuvodeep Roy, AOR

Mr. Sayooj Mohandas,Adv.
(St. of Haryana) Mr. Ajay Bansal,AAG, Haryana

Mr. Gaurav Yadava,Adv.
(St. of Punjab) Ms. Ranjeeta Rohatgi,
AOR
UPON hearing the counsel the Court made the following

O R D E R
List tomorrow the 31st August, 2017.
(OM PARKASH SHARMA) (RAJINDER KAUR)

AR CUM PS BRANCH OFFICER

Manohar Lal Sharma vs Union Of India on 27 October, 2021
Author: Hon'Ble The Justice
Bench: H Kohli, S Kant, N Ramana
REPORTABLE
IN THESUPREME COURT OF INDIA

CRIMINAL /CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO. 314 OF 2021
MANOHAR LAL PETITIONER

SHARMA
VERSUS
UNION INDIA AND ORS. RESPONDENT(S)

OF
With
WRIT PETITION (CIVIL) 826 OF 2021

NO.
With

NO.
With

NO.
With

NO.
With

NO.
With

NO.
With
Signature Not
Verified Date: 2021.10.27
11:22:27 IST
Digitally signed
by Vishal Anand

WRIT PETITION (CIVIL)

NO. 850

Reason:
With
1
□ WRIT PETITION (CIVIL) NO. 848 OF 2021
With
WRIT PETITION (CIVIL) NO. 853 OF 2021
With
With
ORDER
The Court is convened through Video Conferencing. If you want to keep a secret, you must also hide
it from yourself. −George Orwell, 1984
1. The present batch of Writ Petitions raise an Orwellian concern, about the alleged possibility of
utilizing modern technology to hear what you hear, see what you see and to know what you do. In
this conteXt, this Court is called upon to e Xamine an allegation of the use of such a technology, its
utility, need and alleged abuse. We make it clear that our effort is to uphold the constitutional
aspirations and rule of law, without allowing ourselves to be consumed in the political rhetoric. This
Court has always been conscious of not entering the political thicket. However, at the same time, it
has never cowered from protecting all from the abuses of fundamental rights. All that we would like
to observe in this regard is a reiteration of what had already been said by this Court in Kesavananda
Bharati v. State of Kerala, (Opinion of Justice Khanna) AIR 1973 SC 1461:
1535. Judicial review is not intended to create what is sometimes called judicial
oligarchy, the aristrocracy (sic) of the robe, covert legislation, or Judge−made law.
The proper forum to fight for the wise use of the legislative authority is that of public
opinion and legislative assemblies. Such contest cannot be transferred to the judicial
arena. That all constitutional interpretations have political consequences should not
obliterate the fact that the decision has to be arrived at in the calm and dispassionate
atmosphere of the court room, that Judges in order to give legitimacy to their
decision have to keep aloof from the din and controversy of politics and that the
fluctuating fortunes of rival political parties can have for them only academic

interest. Their primary duty is to uphold the Constitution and the laws without fear
or favour and in doing so, they cannot allow any political ideology or economic
theory, which may have caught their fancy, to colour the decision
2. A short conspectus of the events leading up to the present batch of petitions would not be
misplaced to highlight the scope of the issues at hand. In September 2018, Citizen Lab, which is a
laboratory based out of the University of Toronto, Canada, released a report detailing the software
capabilities of a spyware suite called Pegasus that was being produced by an Israeli Technology firm,
viz., the NSO Group. The report indicated that individuals from nearly 45 countries were suspected
to have been affected.
3. The Pegasus suite of spywares can allegedly be used to compromise the digital devices of an
individual through zero click vulnerabilities, i.e., without requiring any action on the part of the
target of the software. Once the software infiltrates an individuals device, it allegedly has the
capacity to access the entire stored data on the device, and has real time access to emails, te Xts,
phone calls, as well as the camera and sound recording capabilities of the device. Once the device is
infiltrated using Pegasus, the entire control over the device is allegedly handed over to the Pegasus
user who can then remotely control all the functionalities of the device and switch different features
on or off. The NSO Group purportedly sells this eXtremely powerful software only to certain
undisclosed Governments and the end user of its products are e Xclusively government intelligence
and law enforcement agencies as per its own website.
4. In May 2019, the global messaging giant WhatsApp Inc. identified a vulnerability in its software
that enabled Pegasus spyware to infiltrate the devices of WhatsApps users. This news was followed
by a disclosure that the devices of certain Indians were also affected, which fact was acknowledged
by the then Honble Minister of Law and Electronics and Information Technology in a statement
made in the Parliament on 20 th November 2019.
5. On 15th June 2020, Citizen Lab, in collaboration with the international human rights
organization, Amnesty International uncovered another spyware campaign which allegedly targeted
nine individuals in India, some of whom were already suspected targets in the first spyware attack.
6. On 18th July 2021, a consortium of nearly 17 journalistic organizations from around the world,
including one Indian organization, released the results of a long investigative effort indicating the
alleged use of the Pegasus software on several private individuals. This investigative effort was based
on a list of some 50,000 leaked numbers which were allegedly under surveillance by clients of the
NSO Group through the Pegasus software. Initially, it was discovered that nearly 300 of these
numbers belonged to Indians, many of whom are senior journalists, doctors, political persons, and
even some Court staff. At the time of filing of the Writ Petitions, nearly 10 Indians devices were
allegedly forensically analyzed to confirm the presence of the Pegasus software.
7. The above reports resulted in largescale action across the globe, with certain foreign governments
even diplomatically engaging with the Israeli Government to determine the veracity of the
allegations raised, while other governments have initiated proceedings internally to determine the

truth of the same.
8. Respondent−Union of India, through the Honble Minister of Railways, Communications and

Electronics and Information Technology, took the stand in Parliament on 18 th July 2021, when
asked about the alleged cyberattack and spyware use, that the reports published had no factual
basis. The Minister also stated that the Amnesty report itself indicated that the mere mention of a
particular number in the list did not confirm whether the same was infected by Pegasus or not.
Further, the Minister stated that NSO had itself factually contradicted many of the claims made in
the Amnesty report. Finally, he stated that the Indian statutory and legal regime relating to
surveillance and interception of communication is e Xtremely rigorous, and no illegal surveillance
could take place.
9. Some of the Writ Petitioners before this Court allege to be direct victims of the Pegasus attack,
while others are Public Interest Litigants. They raise the issue of the inaction on the part of the
Respondent−Union of India to seriously consider the allegations raised, relating to the purported
cyberattack on citizens of this country. Additionally, the apprehension e X pressed by some
Petitioners relates to the fact that, keeping in mind the NSO Group disclosure that it sold its Pegasus
software only to vetted Governments, either some foreign government or certain agencies of the
Respondent−Union of India are using the said software on citizens of the country without following
the due procedure established under law. Therefore, to ensure credibility of the process, most of the
Petitioners are seeking an independent investigation into the allegations.
10. Before considering the issues at hand on merits, it is necessary for this Court to summarize the
events that transpired in the Courtroom proceedings, to give some conteXt to the order being
passed.
11. On 10th August 2021, it was recorded by this Court that a copy of some of the petitions in this
batch had been served on the learned Solicitor General. The learned Solicitor General took an
adjournment at that time to get instructions.
12. On 16th August 2021, a limited affidavit was placed on record by the learned Solicitor General
that was filed by the Additional Secretary, Ministry of Electronics and Information Technology,
Union of India. The relevant parts of the limited affidavit filed by the Respondent− Union of India
are as follows:
2. I state and submit that due to the limited time at the disposal of the
deponent/respondents, it is not possible to deal with all the facts stated and the
contentions raised in the batch of petitions before this Honble Court. I am therefore,
filing this limited affidavit at this stage while reserving liberty to file further affidavit
hereafter in detail.
I, however, respectfully submit that my not dealing with any of the petitions para
wise may not be treated as my having admitted the truthfulness or otherwise of any
of the contents thereof.

3. At the outset, it is submitted that I hereby unequivocally deny any and all of the
allegations made against the Respondents in the captioned petition and other
connected petitions. A bare perusal of the captioned petition and other connected
petitions makes it clear that the same are based on conjectures and surmises or on
other unsubstantiated media reports or incomplete or uncorroborated material. It is
submitted that the same cannot be the basis for invoking the writ jurisdiction of this
Honble Court.
4. It is submitted that this question stands already clarified on the floor of the Parliament by the
Honble Minister of Railways, Communications and Electronics & Information Technology of India,
Government of India. A copy of the statement of the Honble Minister is attached herewith and
marked as AnneXure R−1. In that view of the matter, in the respectful submission of the deponent,
nothing further needs to be done at the behest of the Petitioner, more particularly when they have
not made out any case.
5. It is, however, submitted that with a view to dispel any wrong narrative spread by certain vested
interests and with an object of e Xamining the issue raised, the Union of India will constitute a
Committee of EXperts in the field which will go in to all aspects of the issue. On that day, we heard
learned senior counsel appearing on behalf of the Petitioners and the learned Solicitor General at
some length and adjourned the matter for further hearing.
13. On the neXt date of hearing, on 17 th August 2021, this Court indicated to the learned Solicitor
General, while issuing notice to the Respondent−Union of India, that the limited affidavit filed by
them was insufficient for the Court to come to any conclusion regarding the stand of the
Respondent−Union of India with respect to the allegations raised by the Petitioners. As the limited
affidavit itself recorded that the detailed facts were not adverted to due to a paucity of time, we
indicated to the learned Solicitor General that we were willing to give them further time to enable
the Respondent−Union of India to file a more detailed affidavit. The learned Solicitor General
indicated his apprehension that the disclosure of certain facts might affect the national security and
defense of the nation.
14. This Court clarified at that juncture that it was not interested in any information that may have a
deleterious impact on the security of the country. However, the Respondent−Union of India could
still place on record facts pertaining to the events highlighted by the Petitioners, without disclosing
information adjudged to be sensitive by the relevant authorities.
15. Mr. Kapil Sibal, learned senior counsel appearing for the Petitioners in Writ Petition (C) Nos.
826 and 851 of 2021, fairly stated that the Petitioners were also concerned about the national
interest and would not press for any such information. The learned Solicitor General again took
some time to seek instructions.
16. When the matter was neXt listed on 07th September 2021, the learned Solicitor General
requested an adjournment, and we directed that the matter be listed on 13th September 2021.

17. On 13th September 2021, we were again informed by the learned Solicitor General that placing
the information sought by the Petitioners on an affidavit would be detrimental to the security
interests of the nation. The learned Solicitor General submitted that such information could not be
made a matter of public debate as the same could be used by terror groups to hamper national
security. He reiterated the statement dated 18 th July 2021 made by the Honble Minister of
Railways, Communications and Electronics and Information Technology on the floor of the
Parliament regarding the statutory mechanism surrounding surveillance and interception in the
country which ensures that unauthorized surveillance does not take place. He finally submitted that,
to assuage the concerns of the public and to dispel any wrong narratives, considering the technical
nature of the issues, the Respondent−Union of India would be willing to constitute an EXpert
Committee which will go into all aspects and file a report before this Court.
18. Mr. Kapil Sibal, learned senior counsel appearing on behalf of the Petitioners in Writ Petition (C)
Nos. 826 and 851 of 2021, submitted that the Respondent−Union of India should not act in a
manner that would prevent the Court from rendering justice and should not withhold information
from the Court in a matter concerning the alleged violation of fundamental rights of citizens. He
submitted that in the year 2019, when certain reports of Pegasus hacking WhatsApp came to light,
the then Honble Minister of Law and Information Technology and Communication had
acknowledged the reports of hacking in Parliament, but the Respondent−Union of India had not
indicated what actions were taken subsequently, which information they could have disclosed on
affidavit. Learned senior counsel submitted that such inaction by the Respondent− Union was a
matter of grave concern, particularly when reputed international organizations with no reason for
bias against the nation had also accepted the fact of such an attack having been made. Mr. Sibal
finally submitted that an independent probe into the alleged incident required to take place under
the supervision of retired Judges of this Court, as was ordered by this Court in the Jain Hawala case.
He objected to the suggestion of the learned Solicitor General that the Respondent−Union of India
itself be allowed to form a Committee on the ground that any Committee formed to probe the
allegations raised by the Petitioners should be completely independent from the Respondent−Union
of India.
19. Mr. Shyam Divan, learned senior counsel appearing on behalf of the Petitioner in Writ Petition
(C) No. 849 of 2021 who claims to be one of the parties whose phone was directly affected by
Pegasus, submitted that Pegasus enabled an entity to not only surveil or spy on an individual, but
also allowed them to implant false documents and evidence in a device. He relied on affidavits filed
by two eXperts in the field of cyber security to buttress his submission regarding the nature and
function of the software. Mr. Divan submitted that once such a largescale cyberattack and threat had
been made public and brought to the knowledge of the Respondent−Union of India, it was the States
responsibility to take necessary action to protect the interests and fundamental rights of the citizens,
particularly when there eXisted the risk that such an attack was made by a foreign entity. Mr. Divan
pressed for the interim relief sought in Writ Petition (C) No. 849 of 2021, whereby a response was
sought on affidavit from the Cabinet Secretary. Mr. Divan also supported the prayer made by Mr.
Sibal regarding the constitution of a special Committee or Special Investigation Team to probe the
allegations.

20. Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of the Petitioners in Writ
Petition (C) No. 853 of 2021 submitted that the Petitioners are senior journalists who are victims of
the Pegasus attack. He submitted that if the Respondent−Union of India had made a statement on
affidavit that it had not used a malware or spied on the Petitioners in an unauthorized manner, that
would have been the end of the matter. Instead, the Respondent−Union of India had not provided
any information on affidavit. He therefore urged the Court to constitute an independent Committee
under its supervision rather than allowing the Respondent−Union of India to constitute a
Committee, as suggested by the learned Solicitor General, to avoid any credibility issues. He further
submitted that requiring the Petitioners to hand over their phones to a Committee appointed by the
Respondent−Union of India, when certain allegations had been raised against the Respondent−
Union of India, would amount to a secret e Xercise whose results would not be trusted by the
Petitioners or the public.
21. Mr. Dinesh Dwivedi, learned senior counsel appearing on behalf of the Petitioner in Writ
Petition (C) No. 848 of 2021 submitted that his client is a respected journalist whose device had
been infected with the Pegasus malware. The main thrust of his submission was that if any pleading
was not specifically denied, it would be deemed to have been admitted. As the Respondent−Union of
India had not specifically denied the Petitioners allegation, the same should therefore be deemed to
be admitted by the Respondent−Union of India. Learned senior counsel submitted that such an
attack on the privacy of the Petitioner was not only a violation of his fundamental right, but also
amounted to chilling his freedom of speech as a journalist.
22. Ms. Meenakshi Arora, learned senior counsel appearing on behalf of the Petitioner in Writ
Petition (C) No. 829 of 2021, supported the prayer made by Mr. Kapil Sibal regarding the
constitution of an independent Special Investigation Team headed by a retired Judge to investigate
the matter.
23. Mr. Colin Gonsalves, learned senior counsel appearing on behalf of the Petitioners in Writ
Petition (C) No. 909 of 2021, wherein Petitioner No. 1 is a journalist, lawyer and human rights
activist who is an affected party, while Petitioner No. 2 is a registered society which works on the
promotion and protection of digital rights and digital freedom in India, submitted that a number of
such digital interceptions were being conducted by the States and the Respondent−Union of India.
He submitted that, in light of the allegations raised against the Respondent−Union of India in the
present matter, it would not be appropriate to allow the Respondent−Union of India to form a
Committee to investigate the present allegations. Further, the learned senior counsel pointed to the
actions taken by various foreign governments in light of the purported spyware attack to highlight
the veracity of the reports by news agencies and the seriousness with which the allegations were
being viewed in other countries.
24. Mr. M. L. Sharma, petitioner−in−person in Writ Petition (Crl.) No. 314 of 2021, submitted that
the Pegasus suite of spywares was different from other spyware as it allowed an agency to gain
complete control over an individuals device. He submitted that the software could be used to plant
false evidence into an individuals device, which could then be used to implicate the said person. He
therefore submitted that the alleged use of Pegasus on the citizens of the country, was of grave

concern.
25. The learned Solicitor General rebutted the arguments of the Petitioners and submitted that there
was no reason to question the credibility of any Committee that might be constituted by the
Respondent−Union of India as only eXperts independent of any association with the Respondent−
Union of India would be a part of the same. He further stated that all technologies had the capability
of either being used or abused, and it could not be said that the use of such a software was per se
impermissible, particularly when a robust legal mechanism e Xisted to check the use of the same. He
finally reiterated that this Court should allow the Respondent−Union of India to constitute an
EXpert Committee which would be under its supervision.
26. We have considered the submissions of the learned senior counsel for the Petitioners,
Petitioner−in−person, and the learned Solicitor General for the Respondent−Union of India.
27. At the outset, certain nuances of the right to privacy in India− its facets and importance, need to
be discussed. Historically, privacy rights have been property centric rather than people centric. This
approach was seen in both the United States of America as well as in England. In 1604, in the
historical Semaynes case, 77 ER 194 (KB) it was famously held that every mans house is his castle.
This marked the beginning of the development of the law protecting people against unlawful
warrants and searches.
28. As William Pitt, the Earl of Chatham stated in March 1763 1:
The poorest man may in his cottage bid defiance to all the force of the Crown. It may
be frailits roof may shakethe wind may blow through itthe storm may enter, the rain
may enterbut the King of England cannot enter!all his force dares not cross the
threshold of the ruined tenement! Lord Brougham, Historical Sketches of Statesmen
who Flourished in the Time of George III First Series, Vol. 1 (1845).
29. As long back as in 1890, Samuel Warren and Louis Brandeis observed in their celebrated article
The Right to Privacy2:
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.numerous mechanical devices threaten to make
good the prediction that what is whispered in the closet shall be proclaimed from the
house−tops.
30. However, unlike the property centric origin of privacy rights in England and under the Fourth
Amendment in the Constitution of the United States of America, in India, privacy rights may be
traced to the right to life enshrined under Article 21 of the Constitution. When this Court e Xpounded
on the meaning of life under Article 21, it did not restrict the same in a pedantic manner. An
eXpanded meaning has been given to the right to life in India, which accepts that life does not refer
to mere animal eXistence but encapsulates a certain assured quality.

31. It is in this conteXt that we must conteXtualize the issues that are being raised in this batch of
petitions. We live in the era of information revolution, where the entire lives of individuals are
Samuel Warren and Louis Brandeis, The Right to Privacy, HARVARD LAW REVIEW, Vol. 4 (5), 193
(Dec. 15, 1890).
stored in the cloud or in a digital dossier. We must recognize that while technology is a useful tool
for improving the lives of the people, at the same time, it can also be used to breach that sacred
private space of an individual.
32. Members of a civilized democratic society have a reasonable e Xpectation of privacy. Privacy is
not the singular concern of journalists or social activists. Every citizen of India ought to be protected
against violations of privacy. It is this e Xpectation which enables us to eXercise our choices, liberties,
and freedom. This Court in K.S. Puttaswamy (Privacy−9J.) v. Union of India, (2017) 10 SCC 1, has
recognized that the right to privacy is as sacrosanct as human e Xistence and is inalienable to human
dignity and autonomy. This Court held that:
320. 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 conte Xts from the other facets of freedom and dignity
recognised and guaranteed by the fundamental rights contained in Part III.
325. 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 conte Xt 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 threefold requirement of (i) legality, which postulates the
eXistence 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. (emphasis
supplied)
33. Although declared to be inalienable, the right to privacy of course cannot be said to be an
absolute, as the Indian Constitution does not provide for such a right without reasonable
restrictions. As with all the other fundamental rights, this Court therefore must recognize that
certain limitations eXist when it comes to the right to privacy as well. However, any restrictions
imposed must necessarily pass constitutional scrutiny.
34. In K.S. Puttaswamy (Privacy−9J.) (supra), this Court considered the need to protect the privacy
interests of individuals while furthering legitimate State interests. This Court therefore directed the
State to embark upon the eXercise of balancing of competing interests. This Court observed as
follows:

310.While it intervenes to protect legitimate State interests, the State must nevertheless put into
place a robust regime that ensures the fulfilment of a threefold requirement. These three
requirements apply to all restraints on privacy (not just informational privacy). They emanate from
the procedural and content−based mandate of Article
21. The first requirement that there must be a law in e Xistence to justify an encroachment on privacy
is an eXpress requirement of Article 21. For, no person can be deprived of his life or personal liberty
eXcept in accordance with the procedure established by law. The e Xistence of law is an essential
requirement. Second, the requirement of a need, in terms of a legitimate State aim, ensures that the
nature and content of the law which imposes the restriction falls within the zone of reasonableness
mandated by Article 14, which is a guarantee against arbitrary State action. The pursuit of a
legitimate State aim ensures that the law does not suffer from manifest arbitrariness. Legitimacy, as
a postulate, involves a value judgment. Judicial review does not reappreciate or second guess the
value judgment of the legislature but is for deciding whether the aim which is sought to be pursued
suffers from palpable or manifest arbitrariness. The third requirement ensures that the means
which are adopted by the legislature are proportional to the object and needs sought to be fulfilled
by the law. Proportionality is an essential facet of the guarantee against arbitrary State action
because it ensures that the nature and quality of the encroachment on the right is not
disproportionate to the purpose of the law. Hence, the threefold requirement for a valid law arises
out of the mutual interdependence between the fundamental guarantees against arbitrariness on the
one hand and the protection of life and personal liberty, on the other. The right to privacy, which is
an intrinsic part of the right to life and liberty, and the freedoms embodied in Part III is subject to
the same restraints which apply to those freedoms. (emphasis supplied)
35. The right to privacy is directly infringed when there is surveillance or spying done on an
individual, either by the State or by any eXternal agency. Ellen Alderman and Caroline Kennedy, in
Right to Privacy, 3 foresaw this threat to privacy in 1995, while referring to governmental
eavesdropping in the United States of America, in the following words:
Perhaps the scariest threat to privacy comes in the area known as informational
privacy. Information about all of us is now collected not only by the old standbys, the
IRS and FBI, but also by the MTB, MIB, NCOA, and NCIC, as well as credit bureaus,
credit unions, and credit card companies. We now have cellular phones, which are
different from cordless phones, which are different from what we used to think of as
phones. We worry about e−mail, voice mail, and junk mail. And something with the
perky name Clipper Chip − developed specifically to allow governmental
eavesdropping on coded electronic communications is apparently the biggest threat
of all.
36. Of course, if done by the State, the same must be justified on constitutional grounds. This Court
is cognizant of the States interest to ensure that life and liberty is preserved and must balance the
same. For instance, in todays world, information gathered by intelligence agencies through
surveillance is essential for the fight against violence and terror. To access this Ellen Alderman and
Caroline Kennedy, THE RIGHT TO PRIVACY, 223 (1995). information, a need may arise to interfere

with the right to privacy of an individual, provided it is carried out only when it is absolutely
necessary for protecting national security/interest and is proportional. The considerations for usage
of such alleged technology, ought to be evidence based. In a democratic country governed by the rule
of law, indiscriminate spying on individuals cannot be allowed e Xcept with sufficient statutory
safeguards, by following the procedure established by law under the Constitution.
37. This trade−off between the right to privacy of an individual and the security interests of the
State, has been recognized world over with the renowned scholar Daniel Solove4 commenting on the
same as follows:
The debate between privacy and security has been framed incorrectly, with the trade−
off between these values understood as an all−or−nothing proposition. But protecting
privacy need not be fatal to security measures; it merely demands oversight and
regulation. We cant progress in the debate between privacy and security because the
debate itself is flawed.
The law suffers from related problems. It seeks to balance privacy and security, but
systematic problems plague the way the balancing takes place.
Daniel J. Solove, NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY AND
SECURITY (2011).
Privacy often can be protected without undue cost to security. In instances when adequate
compromises cant be achieved, the trade−off can be made in a manner that is fair to both sides. We
can reach a better balance between privacy and security. We must. There is too much at stake to fail.
(emphasis supplied)
38. Somewhat allied to the concerns of privacy, is the freedom of the press. Certain observations
made by this Court in the case of Indian E Xpress Newspapers (Bombay) Private Limited v. Union of
India, (1985) 1 SCC 641 may be eXtracted:
25. The freedom of press, as one of the members of the Constituent Assembly said, is
one of the items around which the greatest and the bitterest of constitutional
struggles have been waged in all countries where liberal constitutions prevail. The
said freedom is attained at considerable sacrifice and suffering and ultimately it has
come to be incorporated in the various written constitutions
39. It is undeniable that surveillance and the knowledge that one is under the threat of being spied
on can affect the way an individual decides to e Xercise his or her rights. Such a scenario might result
in self−censorship. This is of particular concern when it relates to the freedom of the press, which is
an important pillar of democracy. Such chilling effect on the freedom of speech is an assault on the
vital public−watchdog role of the press, which may undermine the ability of the press to provide
accurate and reliable information. Recently, in the case of Anuradha Bhasin v. Union of India,
(2020) 3 SCC 637, this Court highlighted the importance of freedom of the press in a modern

democracy in the following words:
159. In this conteXt, one possible test of chilling effect is comparative harm. In this
framework, the Court is required to see whether the impugned restrictions, due to
their broad−based nature, have had a restrictive effect on similarly placed individuals
during the period. It is the contention of the petitioner that she was not able to
publish her newspaper from 6−8−2019 to 11−10−2019. However, no evidence was
put forth to establish that such other individuals were also restricted in publishing
newspapers in the area. Without such evidence having been placed on record, it
would be impossible to distinguish a legitimate claim of chilling effect from a mere
emotive argument for a self−serving purpose. On the other hand, the learned
Solicitor General has submitted that there were other newspapers which were
running during the aforesaid time period. In view of these facts, and considering that
the aforesaid petitioner has now resumed publication, we do not deem it fit to
indulge more in the issue than to state that responsible Governments are required to
respect the freedom of the press at all times. Journalists are to be accommodated in
reporting and there is no justification for allowing a sword of Damocles to hang over
the press indefinitely. (emphasis supplied)
40. An important and necessary corollary of such a right is to ensure the protection of sources of
information. Protection of journalistic sources is one of the basic conditions for the freedom of the
press. Without such protection, sources may be deterred from assisting the press in informing the
public on matters of public interest.
41. Having regard to the importance of the protection of journalistic sources for press freedom in a
democratic society and the potential chilling effect that snooping techniques may have, this Courts
task in the present matter, where certain grave allegations of infringement of the rights of the
citizens of the country have been raised, assumes great significance. In this light, this Court is
compelled to take up the cause to determine the truth and get to the bottom of the allegations made
herein.
42. Initially, this Court was not satisfied with the Writ Petitions that were filed as the same were
completely reliant only upon certain newspaper reports. This Court has generally attempted to
discourage Writ Petitions, particularly Public Interest Litigations, which are based entirely on
newspaper reports without any additional steps taken by the Petitioner. In this respect, it may be
relevant to quote the observations of this Court in the case of Rohit Pandey v. Union of India, (2005)
13 SCC 702, which are as follows:
1. The only basis for the petitioner coming to this Court are two newspaper reports dated 25−1−
2004, and the other dated 12−2−2004. This petition was immediately filed on 16−2−2004 after the
aforesaid second newspaper report appeared.
2. We eXpect that when such a petition is filed in public interest and particularly by a member of the
legal profession, it would be filed with all seriousness and after doing the necessary homework and

enquiry. If the petitioner is so public− spirited at such a young age as is so professed, the least one
would eXpect is that an enquiry would be made from the authorities concerned as to the nature of
investigation which may be going on before filing a petition that the investigation be conducted by
the Central Bureau of Investigation. Admittedly, no such measures were taken by the petitioner.
There is nothing in the petition as to what, in fact, prompted the petitioner to approach this Court
within two−three days of the second publication dated 12−2−2004, in the newspaper Amar Ujala.
Further, the State of Uttar Pradesh had filed its affidavit a year earlier i.e. on 7− 10−2004, placing on
record the steps taken against the accused persons, including the submission of the charge−sheet
before the appropriate court. Despite one year having elapsed after the filing of the affidavit by the
Special Secretary to the Home Department of the Government of Uttar Pradesh, nothing seems to
have been done by the petitioner. The petitioner has not even controverted what is stated in the
affidavit. Ordinarily, we would have dismissed such a misconceived petition with e Xemplary costs
but considering that the petitioner is a young advocate, we feel that the ends of justice would be met
and the necessary message conveyed if a token cost of rupees one thousand is imposed on the
petitioner. (emphasis supplied)
43. While we understand that the allegations made in these petitions pertain to matters about which
ordinary citizens would not have information e Xcept for the investigating reporting done by news
agencies, looking to the quality of some of the petitions filed, we are constrained to observe that
individuals should not file half−baked petitions merely on a few newspaper reports. Such an
e X ercise, far from helping the cause espoused by the individual filing the petition, is often
detrimental to the cause itself. This is because the Court will not have proper assistance in the
matter, with the burden to even determine preliminary facts being left to the Court. It is for this
reason that trigger happy filing of such petitions in Courts, and more particularly in this Court which
is to be the final adjudicatory body in the country, needs to be discouraged. This should not be taken
to mean that the news agencies are not trusted by the Court, but to emphasize the role that each
pillar of democracy occupies in the polity. News agencies report facts and bring to light issues which
might otherwise not be publicly known. These may then become the basis for further action taken by
an active and concerned civil society, as well as for any subsequent filings made in Courts. But
newspaper reports, in and of themselves, should not in the ordinary course be taken to be ready−
made pleadings that may be filed in Court.
44. That said, after we indicated our reservations to the Petitioners regarding the lack of material,
various other petitions have been filed in Court, including by individuals who were purportedly
victims of the alleged Pegasus spyware attack. These subsequently filed petitions, as well as
additional documents filed by others, have brought on record certain materials that cannot be
brushed aside, such as the reports of reputed organizations like Citizen Lab and affidavits of e Xperts.
Additionally, the sheer volume of cross−referenced and cross− verified reports from various
reputable news organizations across the world along with the reactions of foreign governments and
legal institutions also moved us to consider that this is a case where the jurisdiction of the Court may
be eXercised. Of course, the learned Solicitor General suggested that many of these reports are
motivated and self−serving. However, such an omnibus oral allegation is not sufficient to desist
from interference.

45. It is for this reason that this Court issued notice to the Respondent−Union of India and sought
information from them. We would like to re−emphasize what is already apparent from the record of
proceedings. This Court gave ample opportunity to the Respondent−Union of India to clarify its
stand regarding the allegations raised, and to provide information to assist the Court regarding the
various actions taken by it over the past two years, since the first disclosed alleged Pegasus spyware
attack. We had made it clear to the learned Solicitor General on many occasions that we would not
push the Respondent−Union of India to provide any information that may affect the national
security concerns of the country. However, despite the repeated assurances and opportunities given,
ultimately the Respondent−Union of India has placed on record what they call a limited affidavit,
which does not shed any light on their stand or provide any clarity as to the facts of the matter at
hand. If the Respondent−Union of India had made their stand clear it would have been a different
situation, and the burden on us would have been different.
46. Such a course of action taken by the Respondent−Union of India, especially in proceedings of
the present nature which touches upon the fundamental rights of the citizens of the country, cannot
be accepted. As held by this Court in Ram Jethmalani v. Union of India, (2011) 8 SCC 1, the
Respondent−Union of India should not take an adversarial position when the fundamental rights of
citizens are at threat. This Court in that case observed as follows:
75. In order that the right guaranteed by clause (1) of Article 32 be meaningful, and
particularly because such petitions seek the protection of fundamental rights, it is
imperative that in such proceedings the petitioners are not denied the information
necessary for them to properly articulate the case and be heard, especially where such
information is in the possession of the State. To deny access to such information,
without citing any constitutional principle or enumerated grounds of constitutional
prohibition, would be to thwart the right granted by clause (1) of Article 32.
76. Further, inasmuch as, by history and tradition of common law, judicial
proceedings are substantively, though not necessarily fully, adversarial, both parties
bear the responsibility of placing all the relevant information, analyses, and facts
before this Court as completely as possible. In most situations, it is the State which
may have more comprehensive information that is relevant to the matters at hand in
such proceedings...
77. It is necessary for us to note that the burden of asserting, and proving, by relevant evidence a
claim in judicial proceedings would ordinarily be placed upon the proponent of such a claim;
however, the burden of protection of fundamental rights is primarily the duty of the State.
Consequently, unless constitutional grounds e Xist, the State may not act in a manner that hinders
this Court from rendering complete justice in such proceedings. Withholding of information from
the petitioners, or seeking to cast the relevant events and facts in a light favourable to the State in
the conteXt of the proceedings, even though ultimately detrimental to the essential task of protecting
fundamental rights, would be destructive to the guarantee in clause (1) of Article 32

78. In the task of upholding of fundamental rights, the State cannot be an adversary. The State has
the duty, generally, to reveal all the facts and information in its possession to the Court, and also
provide the same to the petitioners. This is so, because the petitioners would also then be enabled to
bring to light facts and the law that may be relevant for the Court in rendering its decision. In
proceedings such as those under Article 32, both the petitioner and the State, have to necessarily be
the eyes and ears of the Court. Blinding the petitioner would substantially detract from the integrity
of the process of judicial decision− making in Article 32 proceedings, especially where the issue is of
upholding of fundamental rights. (emphasis supplied)
47. This free flow of information from the Petitioners and the State, in a writ proceeding before the
Court, is an important step towards Governmental transparency and openness, which are celebrated
values under our Constitution, as recognized by this Court recently in the Anuradha Bhasin (supra)
judgment.
48. Of course, there may be circumstances where the State has a constitutionally defensible reason
for denying access to certain information or divulging certain information as was recognized by this
Court in the Ram Jethmalani (supra) case, as eXtracted below:
80. Withholding of information from the petitioners by the State, thereby constraining their
freedom of speech and eXpression before this Court, may be premised only on the e Xceptions carved
out, in clause (2) of Article 19, in the interests of the sovereignty and integrity of India, 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 or by law that demarcate e Xceptions,
provided that such a law comports with the enumerated grounds in clause (2) of Article 19, or that
may be provided for elsewhere in the Constitution. (emphasis supplied)
49. It is on the strength of the above eXception carved out that the Respondent−Union of India has
justified its non−submission of a detailed counter affidavit, viz., by citing security concerns. It is a
settled position of law that in matters pertaining to national security, the scope of judicial review is
limited. However, this does not mean that the State gets a free pass every time the spectre of
national security is raised. National security cannot be the bugbear that the judiciary shies away
from, by virtue of its mere mentioning. Although this Court should be circumspect in encroaching
upon the domain of national security, no omnibus prohibition can be called for against judicial
review.
50. Of course, the Respondent−Union of India may decline to provide information when
constitutional considerations eXist, such as those pertaining to the security of the State, or when
there is a specific immunity under a specific statute. However, it is incumbent on the State to not
only specifically plead such constitutional concern or statutory immunity but they must also prove
and justify the same in Court on affidavit. The Respondent− Union of India must necessarily plead
and prove the facts which indicate that the information sought must be kept secret as their
divulgence would affect national security concerns. They must justify the stand that they take before
a Court. The mere invocation of national security by the State does not render the Court a mute
spectator.

51. In the present matter, as we have indicated above, the Petitioners have placed on record certain
material that prima facie merits consideration by this Court. There has been no specific denial of any
of the facts averred by the Petitioners by the Respondent−Union of India. There has only been an
omnibus and vague denial in the limited affidavit filed by the Respondent−Union of India, which
cannot be sufficient. In such circumstances, we have no option but to accept the prima facie case
made out by the Petitioners to eXamine the allegations made.
52. Different forms of surveillance and data gathering by intelligence agencies to fight terrorism,
crime and corruption in national interest and/or for national security, are accepted norms all over
the world. The Petitioners do not contend that the State should not resort to surveillance/collection
of data in matters of national security. The complaint of the Petitioners is about the misuse or likely
misuse of spyware in violation of the right to privacy of citizens. The Respondent−Union of India
also does not contend that its agencies can resort to surveillance/collection of data relating to its
citizens where national security and national interest are not involved. The apprehension of the
Respondent−Union of India is that any inquiry in this behalf should not jeopardize national security
and the steps taken by it to protect national security. There is thus a broad consensus that
unauthorized surveillance/accessing of stored data from the phones and other devices of citizens for
reasons other than nations security would be illegal, objectionable and a matter of concern.
53. The only question that remains then is what the appropriate remedy in this case would be. Mr.
Shyam Divan, learned senior counsel appearing on behalf of the Petitioner in Writ Petition (C) No.
849 of 2021 sought an interim order from this Court directing the Cabinet Secretary to put certain
facts on an affidavit. On the other hand, most of the other senior counsel appearing on behalf of the
other Writ Petitioners sought an independent investigation or inquiry into the allegations pertaining
to the use of Pegasus software either by constituting a Special Investigation Team headed by a
retired judge or by a Judges Committee.
54. We are of the opinion that in the circumstances of the present case, when the Respondent−
Union of India has already been given multiple opportunities to file an affidavit on record, and
looking to the conduct of the Respondent−Union of India in not placing on record any facts through
their reliance on the national security defense, no useful purpose would be served by issuing
directions of the nature sought by Mr. Shyam Divan, apart from causing a further delay in
proceedings.
55. Instead, we are inclined to pass an order appointing an EXpert Committee whose functioning
will be overseen by a retired Judge of the Supreme Court. Such a course of action has been adopted
by this Court in various other circumstances when the Court found it fit in the facts and
circumstances of the case to probe the truth or falsity of certain allegations, taking into account the
public importance and the alleged scope and nature of the large−scale violation of the fundamental
rights of the citizens of the country [See Ram Jethmalani (supra); E Xtra− Judicial EXecution Victim
Families Association v. Union of India, (2013) 2 SCC 493; G.S. Mani v. Union of India, order dated
12.12.2019 in W.P. (Crl.) No. 348 of 2019].
56. The compelling circumstances that have weighed with us to pass such an order are as follows:

i. Right to privacy and freedom of speech are alleged to be impacted, which needs to be eXamined.
ii. The entire citizenry is affected by such allegations due to the potential chilling effect.
iii. No clear stand taken by the Respondent−Union of India regarding actions taken by it.
iv. Seriousness accorded to the allegations by foreign countries and involvement of foreign parties.
v. Possibility that some foreign authority, agency or private entity is involved in placing citizens of
this country under surveillance.
vi. Allegations that the Union or State Governments are party to the rights deprivations of the
citizens. vii. Limitation under writ jurisdiction to delve into factual aspects. For instance, even the
question of usage of the technology on citizens, which is the jurisdictional fact, is disputed and
requires further factual eXamination.
57. It is for reason (vi) above that we decline the Respondent− Union of Indias plea to allow them to
appoint an EXpert Committee for the purposes of investigating the allegations, as such a course of
action would violate the settled judicial principle against bias, i.e., that justice must not only be
done, but also be seen to be done.
58. At this juncture, it would be appropriate to state that in this world of conflicts, it was an
eXtremely uphill task to find and select e Xperts who are free from prejudices, are independent and
competent. Rather than relying upon any Government agencies or any, we have constituted the
Committee and shortlisted e X pert members based on biodatas and information collected
independently. Some of the candidates politely declined this assignment, while others had some
conflict of interest. With our best intentions and efforts, we have shortlisted and chosen the most
renowned eXperts available to be a part of the Committee. Additionally, we have also left it to the
discretion of the learned overseeing judge to take assistance from any e Xpert, if necessary, to ensure
absolute transparency and efficiency, as directed in paragraph 62(3).
59. With the above observations, we constitute a Technical Committee comprising of three
members, including those who are eXperts in cyber security, digital forensics, networks and
hardware, whose functioning will be overseen by Justice R.V. Raveendran, former Judge, Supreme
Court of India. The learned overseeing Judge will be assisted in this task by:
i. Mr. Alok Joshi, former IPS officer (1976 batch) who has immense and diverse
investigative eXperience and technical knowledge. He has worked as the Joint
Director, Intelligence Bureau, the Secretary(R), Research and Analysis Wing and
Chairman, National Technical Research Organisation.
ii. Dr. Sundeep Oberoi, Chairman, ISO/IEC JTC1 SC7 (International Organisation of
Standardisation/ International Electro−Technical Commission/Joint Technical Committee), a sub−
committee which develops and facilitates standards within the field of software products and
systems. Dr. Oberoi is also a part of the Advisory Board of Cyber Security Education and Research

Centre at Indraprastha Institute of Information Technology, Delhi. He is globally recognized as a
cyber security eXpert.
60. The three members Technical Committee [hereinafter referred to as the Committee] shall
comprise of:
i. Dr. Naveen Kumar Chaudhary, Professor (Cyber Security and Digital Forensics)
and Dean, National Forensic Sciences University, Gandhinagar, Gujarat.
Dr. Chaudhary has over two decades of e Xperience as an academician, cyber security
enabler and cyber security eXpert. He specializes in cyber security policy, network
vulnerability assessment and penetration testing.
ii. Dr. Prabaharan P., Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri,
Kerala. He has two decades of e Xperience in computer science and security areas. His areas of
interest are malware detection, critical infrastructural security, comple X binary analysis, AI and
machine learning. He has many publications in reputed journals.
iii. Dr. Ashwin Anil Gumaste, Institute Chair Associate Professor (Computer Science and
Engineering), Indian Institute of Technology, Bombay, Maharashtra. He has been granted 20 US
patents and has published over 150 papers and authored 3 books in his field. He has received several
National awards including the Vikram Sarabhai Research Award (2012) and Shanti Swarup
Bhatnagar Prize for Science and Technology (2018). He has also held the position of Visiting
Scientist at the Massachusetts Institute of Technology, USA.
61. The terms of reference of the Committee are as follows: A. To enquire, investigate and
determine:
i. Whether the Pegasus suite of spyware was used on phones or other devices of the
citizens of India to access stored data, eavesdrop on conversations, intercept
information and/or for any other purposes not eXplicitly stated herein?
ii. The details of the victims and/or persons affected by such a spyware attack.
iii. What steps/actions have been taken by the Respondent−Union of India after reports were
published in the year 2019 about hacking of WhatsApp accounts of Indian citizens, using the
Pegasus suite of spyware. iv. Whether any Pegasus suite of spyware was acquired by the
Respondent−Union of India, or any State Government, or any central or state agency for use against
the citizens of India?
v. If any governmental agency has used the Pegasus suite of spyware on the citizens of this country,
under what law, rule, guideline, protocol or lawful procedure was such deployment made?

vi. If any domestic entity/person has used the spyware on the citizens of this country, then is such a
use authorised?
vii. Any other matter or aspect which may be connected, ancillary or incidental to the above terms of
reference, which the Committee may deem fit and proper to investigate.
B. To make recommendations:
i. Regarding enactment or amendment to eXisting law and procedures surrounding surveillance and
for securing improved right to privacy.
ii. Regarding enhancing and improving the cyber security of the nation and its assets.
iii. To ensure prevention of invasion of citizens right to privacy, otherwise than in accordance with
law, by State and/or non−State entities through such spywares.
iv. Regarding the establishment of a mechanism for citizens to raise grievances on suspicion of
illegal surveillance of their devices.
v. Regarding the setting up of a well−equipped independent premier agency to investigate cyber

security vulnerabilities, for threat assessment relating to cyberattacks and to investigate instances of
cyberattacks in the country.
vi. Regarding any ad−hoc arrangement that may be made by this Court as an interim measure for
the protection of citizens rights, pending filling up of lacunae by the Parliament.
vii. On any other ancillary matter that the Committee may deem fit and proper.
62. The Procedure of the Committee shall be as follows: (1) The Committee constituted by this Order
is authorised to −
(a) devise its own procedure to effectively implement and answer the Terms of Reference;
(b) hold such enquiry or investigation as it deems fit;and
(c) take statements of any person in connection with the enquiry and call for the records of any
authority or individual.
(2) Justice R. V. Raveendran, former Judge, Supreme Court of India will oversee the functioning of
the Committee with respect to the methodology to be adopted, procedure to be followed, enquiry
and investigation that is carried out and preparation of the report.
(3) The learned overseeing Judge is at liberty to take the assistance of any serving or retired
officer(s), legal eXpert(s) or technical eXpert(s) in discharge of his functions. (4) We request the

learned overseeing Judge to fiX the honorarium of the members of the Committee in consultation
with them, which shall be paid by the Respondent−Union of India immediately.
(5) The Respondent−Union of India and all the State Governments, as well as agencies/authorities
under them, are directed to eXtend full facilities, including providing support with respect to
infrastructure needs, manpower, finances, or any other matter as may be required by the Committee
or the overseeing former Judge to effectively and e Xpeditiously carry out the task assigned to them
by this Court.
(6) Mr. Virender Kumar Bansal, Officer on Special Duty/ Registrar, Supreme Court of India, is
directed to coordinate between the Committee, the learned overseeing Judge and the Central/State
Governments to facilitate communication and ensure smooth functioning and e Xpeditious response
to, and implementation of, requests made by the Committee, the learned overseeing Judge or those
named in paragraph 59 above, tasked to assist him.
63. The Committee is requested to prepare the report after a thorough inquiry and place it before
this Court, eXpeditiously.
64. List the matter after 8 weeks.
...........................................CJI.
(N.V. RAMANA)..............................................J.
(SURYA KANT)..............................................J.
(HIMA KOHLI) NEW DELHI;
OCTOBER 27, 2021

Jyoti Basu & Others vs Debi Ghosal & Others on 26 February, 1982
Author: O C Reddy
Bench: Reddy, O. Chinnappa (J)
PETITIONER:
JYOTI BASU & OTHERS.
Vs.
RESPONDENT:
DEBI GHOSAL & OTHERS.
BENCH:
REDDY, O. CHINNAPPA
(J) BENCH:
REDDY, O. CHINNAPPA
(J) PATHAK, R.S.
CITATION:
1982 AIR 983 1982 SCR (3) 318
1982 SCC (1) 1982 SCALE (1)115
691 CITATOR INFO
: (7,16)
F 1983 SC1311
R 1984 SC 135 (8)
RF 1985 SC 150 (26)
E 1985 SC1133 (20)
ACT:
Representation of the People Act 1951, Ss. 82 and 86
(4) Election Petition-Parties to-Who are-Corrupt practice
alleged against person who is not a candidate-Such person
whether can be impleaded as respondent.
Election Law-Right to elect-Neither fundamental right
nor Common Law right-Statutory right subject to statutory
limitations.
Code of Civil Procedure 1908 Or.1 r. 10-Concept of
'proper parties'-Applicability of to election petitions.
HEADNOTE:
The Representation of the People Act 1951, by Section
81 prescribes who may present an election petition. It may
be by any candidate at such election, by any elector of
the constituency, and by none else. Section 82 clause (a)
provides that the petitioner in an election petition shall
join as respondents to the petition the returned
candidates

if the relief claimed is confined to a declaration that
the election of all or any of the returned candidates is
void and all the contesting candidates if a further
declaration is sought that he himself or any other
candidate has been duly elected. Clause (b) of the section
requires the petitioner to join as respondents any other
candidate against whom allegations of any corrupt practice
are made in the petition. Section 86 (4) enables any
candidate not already a respondent to be joined as
respondent.
The first appellant in the appeal is the Chief
Minister and appellants 2 and 3 State Ministers. They had
been impleaded by the first respondent as parties to an
election petition filed by him in the High Court
questioning the election of the second respondent to the
House of the People. It was averred in the election
petition that the Chief Ministers and the State ministers
who were impleaded as parties to the election petition had
colluded and conspired with the returned candidate to
commit various alleged corrupt practices. The Chief
Minister and the other Ministers denied the commission of
the various alleged corrupt practices and claimed that the
election petitioner was not entitled to implead them as
parties to the election petition, as they were not
candidates at the election. They filed an application
before the High Court to strike out their names from the
array of parties in the election petition. It was
dismissed on the ground that the appellants were proper
parties to the election petition and therefore their names
could not be struck out of the array of parties, 319
In the appeal to this Court, it was contended on
behalf of the appellants that the concept of a proper
party was not relevant in election law and that only those
persons could be impleaded as parties who were expressly
directed to be so impleaded by the Representation of the
People Act 1951, and that they were entitled to be struck
out from the array of parties. On behalf of the first
respondent it was submitted that the appellants were
proper parties to the election petition and their presence
was necessary for a complete, final and expeditious
decision on the questions involved in the action.
Allowing the Appeal,
^
HELD: 1. No one can be joined as a party to an election
petition otherwise than as provide by Section 82 and 86
(4) of the Representation of the people Act 1951. A person
who is not a candidate may not be joined as a respondent
to the election petition [331 C-D]
In the instant case the names of the appellants and
the 7th respondent in the appeal are directed to be struck
out from the array of parties in the election petition.
[331 D]
2. A right to elect, fundamental though it is to
democracy, is, anomalously neither a fundamental right nor

a Common Law Right. It is a statutory right. So is the
right

to be elected, and the right to dispute an election.
Outside of statute, there is no right to elect, no right
to be elected, and no right to dispute an election.
Statutory creations they are, and therefore, subject to
statutory limitation. An Election petition is not an
action at Common Law, nor in equity. It is a statutory
proceeding to which neither the Common Law nor the
principles of Equity apply but only those rules which the
statute makes and applies. It is a special jurisdiction,
and a special jurisdiction has always to be exercised in
accordance with the statute creating it. Concepts familiar
to Common Law and Equity must remain strangers to Election
Law unless statutorily embodied. A Court has no right to
resort to them on considerations of alleged policy because
policy in such matters, as those, relating to the trial of
election disputes, is what the statute lays down. In the
trial of election disputes, Court is put in a straight
jacket. [326 F-H; 327 A-B]
3. The contest of the election petition is designed
to be confined to the the candidates at the election. All
others are excluded. The ring is closed to all except the
petitioner and the candidates at the election. Such is the
design of the statute. [328 C]
4. While clause (b) of section 82 obliges the
petitioner in an election petition to join as a respondent
any candidate against whom allegations of any corrupt
practice are made in the petition, it does not oblige the
petitioner to join as a respondent any other person
against whom allegations of any corrupt practice are made.
While any candidate not already a respondent may seek and,
if he so seeks, is entitled to be joined as a respondent
under section 86 (4), any other person cannot, under that
provision seek to be joined as a respondent, even if
allegations of any corrupt practice are made against him.
[328 A-C]
320
5. The concept of `proper parties' is and must remain
alien to an election dispute under the Representation of
the People Act, 1951. Only those may be joined as
respondents to an election petition who are mentioned in
section 82 and section 86 (4) and no others. However
desirable and expedient it may appear to be none else
shall be joined as respondents. [328 D]
6. The provisions of the Civil Procedure Code cannot
be invoked to permit that which the Representation of the
People Act 1951 does not permit. The Civil Procedure Code
applies subject to the provisions of the Representation of
the People Act 1951 and any rule made thereunder. Section
87
(1) expressly says so . When the Act enjoins the penalty
of dismissal of the petition for non-joinder of a party
the provisions of the Civil Procedure Code cannot be used
as a curative means to save the petition. [328 F-H; 329 A-
C]

Mohan Raj v. Surendra Kumar Taparia & Ors. [1961] 1 SCR

and R. Venkateswara Rao & Anr. v. Bekkam Narasimha Reddi &
Ors. [1969]1 SCR 679, referred to.
7. Parliament has expressly provided that an
opportunity should be given to a person who is not a
candidate to show cause against being 'named' as one
guilty of a corrupt practice. Parliament, however, has
not thought fit to expressly provide for his being joined
as a party to the election petition either by the
election-petitioner or at the instance of the very person
against whom the allegations of a corrupt practice are
made. The right given to the latter is limited to show
cause against being 'named' and that right opens up for
exercise when, at the end of the election petition notice
is given to him to show cause why he should not be
'named'. The right does not extend to participation at all
stages and in all matters, a right which he would have if
he is joined as a 'party' at the commencement. [329 E-G]
8 (i) The election petitioner cannot by joining as a
respondent a person who is not a candidate at the election
subject him to a prolonged trial of an election petition
with all its intricacies and ramifications. [329-G]
(ii) Mischievous minded persons may harass public
personages like the Prime Minister of the country, the
Chief Minister of a State or a political leader of a
national dimension by impleading him as a
party to election petitions. All that would be
necessary is a seemingly plausible allegation, casually
or spitefully made, with but a facade of truth. To permit
such a public personage to be impleaded as a party to an
election petition on the basis of a mere allegation,
without even prima facie proof an allegation which
may ultimately be found to be unfounded, can cause
needless vexation to sush personage and prevent him from
the effective discharge of his public duties. It would be
against the public interest to do so. The ultimate award
of costs would be no panacea in such cases, since the
public mischief cannot be repaired. Public Policy and
legislative wisdom both point to an interpretation that
the provisions of the Representation of the People Act
1951 does not permit the joining, as parties of persons
other than those mentioned in sections 82 and 86 (4). [329
H; 330 A-D] 321
9 (i) The legislative provisions contained in section
99 enables the Court, towards the end of the trial of an
election petition, to issue a notice to a person not a
party to the proceedings to show cause why he should not
be 'named' is a sufficient clarification of the
legislative intent that such person may not be permitted
to be joined as a party to the election petition. [330 E-
F]
9 (ii) If a person who is not a candidate but against
whom allegations of any corrupt practice are made is
joined as a party he would also be entitled to
'recriminate' under section 97. Such a construction of the

statute would throw the doors of an election wide open
and convert the petition

into a 'free for all' fight. The necessary consequence
would be an unending, disorderly election dispute with no
hope of achieving the goal contemplated by sec. 86 (6) of
the Act that the trial of the election petition should be
concluded in six months.
[330 H; 331 A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1553 of 1980.
Appeal by special leave from the judgment and order dated the 3rd July, 1980 of the Calcutta High
Court in Election Petition Case No. 1 of 1980.
Somnath Chatterjee, Rathin Das and Aninda Mitter for the Appellants.
Sidhartha Shankar Ray, R.K. Lala and T.V.S.N. Chari for Respondent No. 1.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J. The first appellant, Jyoti
Basu, is the Chief Minister and appellants two and three Budhadeb Bhattacharya and Hashim Abdul
Halim, are two Ministers of the Government of West Bengal. They have been impleaded by the first
respondent as parties to an election petition filed by him questioning the election of the second
respondent to the House of the People from the 19- Barrackpore Parliamentary Constituency in the
mid-term Parliamentary election held in January, 1980. There were five candidates who sought
election from the Constituency. Mod. Ismail, the first respondent, whose candidature was sponsored
by the Communist Party of India (MarXist) was, elected securing 2,66,698 votes as against Debi
Ghosal, a candidate sponsored by the Indian National Congress led by Smt. Indira Gandhi who
secured 1,62,770 votes. The other candidates Ramjit Ram, Robi Shankar Pandey and Bejoy Narayan
Mishra secured 25,734, 12,271 and 2,763 votes respectively. The first respondent filed an election
petition in the High Court of Calcutta questioning the election of the second respondent Mohd.
Ismail on various grounds. He impleaded the returned candidate as the first respondent, and the
other three unsuccessful candidates respondents 2, 3 and 4 to the election petition. Besides the
candidates at the election, he impleaded several others as respondents. The District Magistrate and
Returning Officer was impleaded as the fifth respondent, Buddhadeb Bhattacharya, the Minister for
Information and Publicity, Government of West Bengal as the siXth respondent. Jyoti Basu, the
Chief Minister as the seventh respondent, Md. Amin, the Minister of the Transport Branch of the
Home Department as the eighth respondent, Hashim Abdul Halim, the Minister of the Legislative
and the Judicial Department as the ninth respondent and the Electoral Registration Officer as the
tenth respondent. It was averred in the election petition that the Chief Minister and the other
Ministers of the Government of West Bengal who were impleaded as parties to the election petition
had colluded and conspired with the returned candidate to commit various alleged corrupt
practices. Apart from denying the commission of the various alleged corrupt practices, the Chief
Minister and the other Ministers claimed in their written statements that the election petitioner was
not entitled to implead them as parties to the election petition. They claimed that as they were not

candidates at the election they could not be impleaded as parties to the election petition. The Chief
Minister and two of the other Ministers, Hashim Abdul Halim and and Buddhadeb Bhattacharya
filed an application before the High Court of Calcutta to strike out their names from the array of
parties in the election petition. The application was dismissed by the Calcutta High Court on the
ground that the applicants (appellants) were proper parties to the election petition and, therefore,
their names should not be struck out of the array of parties. The appellants have preferred this
appeal after obtaining special leave of this Court under Art. 136 of the Constitution.
Shri Somnath Chatterjee, learned counsel for the appellant submitted that the concept of a proper
party was not relevant in election law and that only those persons could be impleaded as parties who
were eXpressly directed to be so impleaded by the Representation of the People Act, 1951. He
claimed that in any case such persons were entitled to be struck out from the array of parties. On the
other hand Shri Sidhartha Shankar Ray, and Shri R.K. Lala, learned counsel for the first respondent
submitted that the appellants were proper parties to the election petition and their presence was
necessary for a complete, final and eXpeditious decision on the questions involved in the action.
To properly appreciate the rival contentions it is necessary to refer to the relevant provisions of the
Constitution of India and the two Representation of the People Acts of 1950 and 1951.
First the Constitution. Part XV deals with elections. Art. 324 vests in the Election Commission the
superintendence, direction and control of the preparation of the Electoral rolls and the conduct of
all elections to Parliament and to the Legislatures of the States. Art. 325 provides that there shall be
one general electoral roll for every territorial constituency and that no person shall be ineligible for
inclusion in such rolls on grounds only of religion, caste, se X or any of them. Art. 326 provides that
election to the House of the People and to the Legislative Assemblies of States shall be on the basis
of adult franchise. Art. 327 enables Parliament to make laws with respect to all matters relating to
elections to either House of Parliament or to the Houses of the Legislature of a State. Art. 328
enables the Legislature of a State, if Parliament has not made such legislation, to make laws with
respect to all matters relating to elections to the Houses of the Legislature of the State. Art. 329 bars
interference by Courts in electoral matters and clause (b), in particular, provides that no election to
either House of Parliament or to the House or either House of the Legislature of a State shall be
called in question eXcept by an election petition presented to such authority and in such manner as
may be provided for by or under any law made by the appropriate legislature.
NeXt, the Representation of People Act, 1950. This Act provides for the delimitation of the
Constituencies for the purpose of elections to the House of the people and the legislatures of States,
the qualification of voters at such elections, the preparation of electoral rolls and other matters
connected therewith.
Last, the Representation of the People Act of 1951, Part VI of the Act deals with "Disputes regarding
elections". Sec. 79 defines various terms and eXpressions used in the Parts VI and VII. Clause (b)
defines a 'candidate' as meaning "a person who has been or claims to have been duly nominated as a
candidate at any election, and any such person shall be deemed to have been a candidate as from the
time when, with the election in prospect, he began to hold himself out as a prospective candidate".

Sec. 80 imposes a statutory ban on an election being called in question e Xcept by an election petition
presented in accordance with the provisions of Part VI of the Act. Sec. 80-A vests in the High Court,
the jurisdiction to try an election petition. Sec. 81 provides for the presentation of an election
petition on one or more of the grounds specified in Sec. 100 (1) and Sec. 101 by any candidate at
such election or any elector who was entitled to vote at the election. Sec. 82 is entitled "Parties to the
petition" and is as follows:
"82. Parties to the petition-A petitioner shall join as respondents to his petition-
(a) Where the petitioner, in addition to claiming a declaration that the election of all
or any of the returned candidate is void claims a further declaration that he himself
or any other candidate has been duly elected, all the contesting candidates other than
the petitioner, and where no such further declaration is claimed, all the returned
candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in
the petition".
Sec. 83 prescribes the contents of the petition. Sec.
84 provides that a petitioner may, in addition to claiming a declaration that the election of the
returned candidate is void, claim a further declaration that he himself or any other candidate has
been duly elected. Sec. 86 deals with trial of election petitions. Sub-Sec. (4) provides for an
application by a candidate who is not already a respondent to be joined as a respondent. It is in
these terms:
"(4) Any candidate not already a respondent shall, upon application made by him to
the High Court within fourteen days from the date of commencement of the trial and
subject to any order as to security for costs which may be made by the High Court, be
entitled to be joined as a respondent".
Sec. 87 is concerned with the procedure before the High Court and it is as follows:
"87 (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition
shall be tried by the High Court, as nearly as may be, in accor-with the procedure applicable under
the Code of Civil Procedure, 1908 to the trial of suits;
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in
writing, to eXamine any witness or witnesses if it is of the opinion that the evidence of such witness
or witnesses is not material for the decision of the petition or that the party tendering such witness
or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872, shall, subject to the provisions of this Act, be
deemed to apply in all respects to the trial of an election petition".

Sec. 90 enables the returned candidate or any other party to 'recriminate' in cases where in the
election petition a declaration that a candidate other than the returned candidate has been elected is
claimed. Sec. 98 prescribes the orders that may be made by the High Court at the conclusion of the
trial of an election petition. It provides that the High Court shall make an order dismissing the
election petition or declaring the election of all or any of the returned candidates to be void and the
petitioner or any other candidate to have been duly elected. Sec. 99, enables the High Court to make,
at the time of making order under Sec.98, an order recording a finding whether any corrupt practice
has or has not been proved to have been committed at the election, and the nature of corrupt
practice; and the names of all persons, if any, who have been proved at the trial to have been guilty
of corrupt practice and the nature of that practice. The proviso to Sec. 99 (1), however, prescribes
that no person who is not a party to the petition shall be named in the order unless he had been
given notice to appear before the High Court to show cause why he should not be so named and he
had also been given an opportunity to cross eXamine any witness who had already been eXamined by
the High Court and had given evidence against him and an opportunity of calling evidence in his
defence and of being heard. Sec. 100 enumerates the grounds on which an election may be declared
void. The High Court, it is said, among other grounds, shall declare the election of a returned
candidate void in cases where corrupt practices are proved, where such corrupt practice has been
committed by a returned candidate or his election agent or by any other person with the consent of
the returned candidate or his election agent. Where the corrupt practice has been committed in the
interests of the returned candidate by an agent other than his election agent, the result of the
election in so far as it concerns the returned candidate must also be shown to have been materially
affected. Sec. 101 prescribes the grounds for which a candidate, other than the returned candidate
may be declared to have been elected. Sec. 110 provides for the procedure when an application for
withdrawal of an election petition is made to the Court. Sec. 110 (3) (c) says that a person who might
himself have been a petitioner may apply to the Court to be substituted as a petitioner in place of the
party withdrawing. Sec. 112 (3) provides for the continuance of the election petition on the death of
the sole petitioner in an election petition or of the survivor of several petitioners, by any person who
might himself have been a petitioner and who applies for substitution within the stipulated period.
The nature of the right to elect, the right to be elected and the right to dispute an election and the
scheme of the Constitutional and statutory provisions in relation to these rights have been e Xplained
by the Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency & Ors.,(1) and Jagan
Nath v. Jaswant Singh.(2) We proceed to state what we have gleaned from what has been said, so
much as necessary for this case.
A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a

fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right
to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no
right to be elected and no right to dispute an election. Statutory creations they are, and therefore,
subject to statutory limitation. An Election petition is not an action at Common Law, nor in equity.
It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but
only those rules which the statute makes and applies. It is a special jurisdiction, and a special
jurisdiction has always to be eXercised in accordance with the statutory creating it. Concepts familiar
to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A

Court has no right to resort to them on considerations of alleged policy because policy in such
matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial
of election disputes, Court is put in a straight jacket. Thus the entire election process commencing
from the issuance of the notification calling upon a constitutuency to elect a member or members
right up to the final resolution of the dispute, if any, concerning the election is regulated by the
Representation of the People Act, 1951, different stages of the process being dealt with by different
provisions of the Act. There can be no election to Parliament or the State Legislature e Xcept as
provided by the Representation of the People Act 1951 and again, no such election may be
questioned e X cept in the manner provided by the Representation of the People Act. So the
Representation of the People Act has been held to be a complete and self contained code within
which must be found any rights claimed in relation to an election or an election dispute. We are
concerned with an election dispute. The question is who are parties to an election dispute and who
may be impleaded as parties to an election petition. We have already referred to the Scheme of the
Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We
see that we must seek an answer to the question within the four corners of the statute. What does
the Act say?
Sec. 81 prescribes who may present an election petition. It may be any candidate at such election; it
may be any elector of the constituency; it may be none else. Sec. 82 is headed "Parties to the
petition" and clause (a) provides that the petitioner shall join as respondents to the petition the
returned candidates if the relief claimed is confined to a declaration that the election of all or any of
the returned candidates is void and all the contesting candidates if a further declaration is sought
that he himself or any other candidate has been duly elected. Clause
(b) of Sec. 82 requires the petitioner to join as respondent any other candidate against whom
allegations of any corrupt practice are made in the petition. Sec. 86 (4) enables any candidate not
already a respondent to be joined as a respondent. There is no other provision dealing with question
as to who may be joined as respondents. It is significant that while clause (b) of Sec. 82 obliges the
petitioner to join as a respondent any candidate against whom allegations of any corrupt practice
are made in the petition, it does not oblige the petitioner to join as a respondent any other person
against whom allegations of any corrupt practice are made. It is equally significant that while any
candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a
respondent under Sec. 86 (4), any other person cannot, under that provision seek to be joined as
respondent, even if allegations of any corrupt practice are made against him. It is clear that the
contest of the election petition is designed to be confined to the candidates at the election. All others
are eXcluded. The ring is closed to all e Xcept the petitioner and the candidates at the election. If such
is the design of the statute, how can the notion of 'proper parties' enter the picture at all ? We think
that the concept of 'proper parties' is and must remain alien to an election dispute under the
Representation of the People Act, 1951. Only those may be joined as respondents to an election
petition who are mentioned in Sec. 82 and Sec. 86 (4) and no others. However desirable and
eXpedient it may appear to be, none else shall be joined as respondents.
It is said, the Civil Procedure Code applies to the trial of election petitions and so proper parties
whose presence may be necessary in order to enable the Court 'effectually and completely to

adjudicate upon and settle all questions involved' may be joined as respondents to the petitions. The
questions is not whether the Civil Procedure Code applies because it undoubtedly does, but only 'as
far as may be' and subject to the provisions of the Representation of the People Act, 1951 and the
rules made thereunder. Sec. 87 (1) e Xpressly says so. The question is whether the provisions of the
Civil Procedure Code can be invoked to permit that which the Representation of the People Act does
not. Quite obviously the provisions of the Code cannot be so invoked. In Mohan Raj v. Surendra
Kumar Taparia & Ors.,(1) this Court held that the undoubted power of the Court (i.e. the Election
Court) to permit an amendment of the petition cannot be used to strike out allegations against a
candidate not joined as a respondent so as to save the election petition from dismissal for non-
joinder of necessary parties. It was said, "The Court can order an amendment and even strike out a
party who is not necessary. But where the Act makes a person a necessary party and provides that
the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out
parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the
Representation of the People Act and any rules made thereunder. When the Act enjoins the penalty
of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code
cannot be used as a curative means to save the petition." Again, in K. Venkateswara Rao & Anr. v.
Bekkam Narasimha Reddi and Ors.,(1) it was observed:
"With regard to the addition of parties which is possible in the case of a suit under the
provisions of O.l r. 10 subject to the added party right to contend that the suit as
against him was barred by limitation when he was added, no addition of parties is
possible in the case of an election petition eXcept under the provisions of Sub-sec. (4)
of Section 86".
The matter may be looked at from another angle. The Parliament has e Xpressly provided that an
opportunity should be given to a person who is not a candidate to show cause against being 'named'
as one guilty of a corrupt practice. Parliament however, has not thought fit to e Xpressly provide for
his being joined as a party to the election petition either by the election-petitioner or at the instance
of the very person against whom the allegations of a corrupt practice are made. The right given to
the latter is limited to show cause against 'named' and that right opens up for e Xercise when, at the
end of the trial of the election petition notice is given to him to show cause why he should not be
'named'. The right does not eXtend to participation at all stages and in all matters, a right which he
would have if he is joined as a party at the commencement. Conversely the election petitioner
cannot by joining as a respondent a person who is not a candidate at the election subject him to a
prolonged trial of an election petition with all its intricacies and ramifications. One may well
imagine how mischievous minded persons may harass public personages like the Prime Minister of
the country, the Chief Minister of a State or a political leader of a national dimension by impleading
him as a party to election petitions, all the country over. All that would be necessary is a seemingly
plausible allegation, casually or spitefully made, with but a facade of truth. Everyone is familiar with
such allegations. To permit such a public personage to be impleaded as a party to an election
petition on the basis of a mere allegation, without even prime facie proof, an allegation which may
ultimately be found to be unfounded, can cause needless ve Xation to such personage and prevent
him from the effective discharge of his public duties. It would be against the public interest to do so.
The ultimate award of costs would be no panacea in such cases, since the public mischief cannot be

repaired. That is why public Policy and legislative wisdom both seem to point to an interpretation of
the provisions of the Representation of the People Act which does not permit the joining, as parties,
of persons other than those mentioned in Sections 82 and 86 (4). It is not as if a person guilty of a
corrupt practice can get away with it. Where at the concluding stage of the trial of an election
petition, after evidence has been given, the Court finds that there is sufficient material to hold a
person guilty of a corrupt practice, the Court may then issue a notice to him to show cause under
Sec. 99 and proceed with further action. In our view the legislative provision contained in Sec. 99
which enables the Court, towards the end of the trial of an election petition, to issue a notice to a
person not a party to the proceeding to show cause why he should not be 'named' is sufficient
clarification of the legislative intent that such person may not be permitted to be joined as a party to
the election petition.
There is yet another view-point. When in an election petition in addition to the declaration that the
election of the returned candate is void a further declaration is sought that any candidate other than
the returned candidate has been duly elected, sec. 97 enables the returned candidate or any other
party to 'recriminate' i.e. to give evidence to prove that the election of such candidate would have
been void if he had been a returned candidate and a petition had been presented to question his
election. If a person who is not a candidate but against whom allegations of any corrupt practice are
made is joined as a party to the petition then, by virtue of his position as a party, he would also be
entitled to 'recriminate' under sec. 97. Surely such a construction of the statute would throw the
doors of an election petition wide open and convert the petition into a 'free for all' fight. A necessary
consequence would be an unending, disorderly election dispute with no hope of achieving the goal
contemplated by Sec. 86(6) of the Act that the trial of the election petition should be concluded in
siX months. It is just as well to remember that 'corrupt practice' as at present defined by Sec. 123 of
the Act is not confined to the giving of a bribe but e Xtends to the taking of a bribe too and, therefore,
the number of persons who may be alleged to be guilty of a corrupt practice may indeed be very
large, with the consequence that all of them may possibly be joined as respondents.
In view of the foregoing discussion we are of the opinion that no one may be joined as a party to an
election petition otherwise than as provided by Sections 82 and 86(4) of the Act. It follows that a
person who is not a candidate may not be joined as a respondent to the election petition. The appeal
is therefore, allowed with costs and the names of the appellants and the seventh respondent in the
appeal are directed to be struck out from the array of parties in the election petition. We may
mention that in arriving at our conclusion we have also considered the following decisions cited
before us: S.B. Adityen & Anr. v. S. Kandaswami & Ors.,(1) Dwijendra Lal Sen Gupta v. Herekrishna
Koner,(2) H.R. Gokhale v. Bharucha Noshir C. & Ors.,(3) and S. Iqbal Singh v. S. Gurdas Singh
Badal & Ors.(4) N.V.K, Appeal allowed

Anukul Chandra Pradhan, ... vs Union Of India & Ors on 9 July, 1997
Author: Verma
Bench: Cji, Sujata V. Manohar, B. N. Kirpal
PETITIONER:
ANUKUL CHANDRA PRADHAN, ADVOCATE, SUPREME COURT
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
BENCH:
CJI, SUJATA V. MANOHAR, B. N. KIRPAL
ACT:
HEADNOTE:
JUDGMENT:
Present:
Hon'ble the Chief Justice Hon'ble Mrs. Justice Sujata V. Manohar Hon'ble Mr.
Justice B.N. Kirpal In-Person for Petitioner Rajinder Sachar, Sr. Adv., Sanjay Parikh,
Adv, with him for Intervenor.
Pallav Sisodia, Adv, for P. Parmeshwaran, Adv. for the Respondents A.M. Khanwilkar, Adv. for
Election Commission.
J U D G M E N T The following Judgment of the Court was delivered : J U D G M E N T Verma, CJI:
By this petition under Article 32 of the Constitution challenge is made to the constitutional validity
of sub- section (5) of Section 62 of the Representation of the People Act 1951 . Section 62 relates to
right to vote and is as under:
"62. Right to vote.- (1) No person who is not, a e Xcept as eXpressly provided by this
Act, every person who is, for the time being entered in the electoral roll of: any
constituency shall be entitled to vote in that constituency. (2) No person shall vote at

an election in any constituency if he is subject to any of the a disqualifications
referred to in section 16 of the Representation of the People Act, 1950 (43 of 1950).
(3) No person shall not at a general election in more than one constituency of the
same class, and if a person votes is more an one such constituency, his votes in all
such constituencies shall be void. (4) No person shall at any election vote in the same
constituency more than once, notwithstanding that his name may have been
registered in the electoral roll for that constituency more than once, and if he does so
vote, all his votes in that constituency shall be void. (5) No person shall vote at any
election if he is confined in. a prison, whether under a sentence of imprisonment or
transportation or otherwise, or is in the lawful custody of the police Provided that
nothing in this sub-section shall apply to a person subjected to preventive detention
under any law for the time being in force."
Section 62 contains five sub-sections Sub-section (1) says that every person who is for the time being
entered in the electoral roll of any constituency shall be entitled to vote in that constituency. Sub-
section (2) debars a person from voting at the election if he is subject to any of the
disqualifications referred to in Section 16 of the Representation of the People Act 1950 which deals
with disqualifications for registration in an electoral roll. Sub section (3) forbids every person from
voting in more than one constituency of the same class. Sub-section (4) forbids every person from
voting in the same constituency more than once. Sub-section (5) debars a person to vote in an
election if he is confined in a prison whether under a sentence of imprisonment or transportation or
otherwise or is in the lawful custody of the police. The proviso to Sub- section (5) carves out an
eXception for a person subjected to preventive detention under any law for the time being in force.
Thus a person confined in a prison under a sentence of imprisonment or otherwise or in the lawful
custody of the police is debarred from voting at any election during the period of his confinement in
the prison, but this bar does not apply to a person under preventive detention. We are concerned
with the constitutional validity of sub-section (5).
The argument of Shri. Rajinder Sachar, the learned counsel for the petitioner, is that sub-section (5)
of Section 62 of the Act violates Articles 14 and 21 of the Constitution. The submission is that the
eXpression "or otherwise" in sub section (5) of Section 62 has a very wide connotation and denies
voting right even to under-trials and other persons detained in a prison for any reason, including the
reason of inability to finish bail. He submitted that the restriction applies to a person in lawful
custody of the police which would include a person detained during investigation before a
chargesheet has been filed against him. On the other hand, a person convicted and sentenced to
imprisonment but released on bail is permitted to vote. The learned counsel contended that this is
discrimination and violates Article 14 of the Constitution. lt was further contended by the learned
counsel that there is violation also of Article 21 inasmuch as the restriction placed on the prisoner's
right to vote by sub-section (5) of Section 62 of the Act denies dignity of life. In substance, the
challenge to the constitutional validity of sub-section (5) of Section 62 is based primarily on Article
14 of the Constitution.
It is settled that Article 14 permits reasonable classification which has a rational ne Xus with the
object of classification. The question is whether the classification made by sub-section (5) of Section

62 is reasonable or not There are provisions made in the election law which e Xclude persons with
criminal background of the kind specified therein, from the election scene as candidates and voters.
The object is to prevent criminalisation of politics and maintain probity in elections. Any provision
enacted with a view to promote this object must be welcome and upheld as subsisting the
constitutional purpose. The elbow room available to the legislature in classification depends on the
conteXt and the object for enactment of the provision. The e Xisting conditions in which the law has
to be applied cannot be ignored in adjudging its validity because it is relatable to the object sought to
be achieved by the legislation. Criminalisation of politics is the bane of society and negation a of
democracy. It is subversive of free and fair elections which is a basic feature of the Constitution.
Thus, a provision made in the election law to promote the object of fight and fair elections and
facilitate maintenance of law and order which are the essence of democracy must, therefore, be so
viewed. More elbow room to the legislature for classification has to be available to achieve the
professed object.
The effect of sub-section (5) of Section 62 of the Act is that any person who is confined in prison
while serving a sentence of imprisonment on his conviction for any offence or is under lawful
confinement in a prison or in a police custody for any reason is not entitled to vote in an election,
but this restriction does not apply to a person subjected to any kind of preventive detention The
learned counsel, Shri Sachar argues that persons in preventive detention cannot be classified
separately. That by itself would not result in the invalidity of whole of sub-section. (5), but can affect
the validity only of the proviso therein. The challenge in the present case is not merely to the
proviso, but to the whole of sub-section (5). This argument does not, therefore, advance the
petitioner's case. However, for the purpose of the present challenge, it is sufficient to say that
preventive detention differs from imprisonment on conviction or during investigation of the crime
of an accused which permits separate classification of the detenus under preventive detention.
Preventive detention is to prevent breach of law while imprisonment on conviction or during
investigation is subsequent to the commission of the crime. This distinction permits separate
classification of a person subjected to preventive detention.
There are other reasons justifying this classification. It is well known that for the conduct of free, fair
and orderly elections, there is need to deploy considerable police force. Permitting every person in
prison also to vote would require the deployment of a much larger police force and much greater
security arrangement in the conduct of elections. A part from the resource crunch, the other
constraints relating to availability of more police forces and infrastructure facilities are additional
factors to justify the restrictions imposed by sub-section (5) of Section 62. A person who is in prison
as a result of his own conduct and is, therefore, deprived of his liberty during the period of his
imprisonment cannot claim equal freedom of movement, speech and e Xpression with the other who
are not in prison. The classification of persons in and out of prison separately is reasonable.
Restriction on voting of a person in prison result automatically from his confinement as a logical
consequence of imprisonment. A person not subjected to such a restriction is free to vote or not to
vote depending on whether he wants to go to vote or not; even he may choose not to go and cast his
vote. In view of the restriction on movement of a prisoner, he cannot claim that he should be
provided the facility to go and vote. Moreover, if the object is to keep persons with criminal
background away from the election scene, a provision imposing a restriction on a prisoner to vote

cannot be called unreasonable.
It may also be mentioned that the nature of right to vote has been held to be a statutory right and
not a common law right because of which it depends on the nature of right conferred by the statute.
In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Other, [1952] S.C.R. 218 at
236, the Constitution Bench held :
"The right to vote or stand as a candidate for election is not a civil right but is a
creature of statute or special law and must be subject to the limitations imposed by
it."
ln Jumuna Prasad Mukhariya and Others v. Lachhi Ram and Others, [1955] 1 S.C.R. 608 at 610, the
Constitution Bench reiterated:
"...The right to stand as a candidate and contest an election is not a common law
right. It is a special right created by statute and can only be e X ercised on the
conditions laid down by the statute. The Fundamental Rights Chapter has no bearing
on a right like this created by statute...".
In Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691 at 696, the law on the point was restated, thus:
"The nature of the right to elect, the right to be elected and the right to dispute an
election and the scheme of the constitutional and statutory provisions in relation to
these rights have been eXplained by the Court in N.P. Ponnuswami v.
Returning Officer, Namakkal Constituency, [1952] S.C.R. 218 and Jagan Nath v.
Jaswant Singh, [1954] S.C.R. 892. We proceed to state what we have gleaned from
what has been said, so much as necessary for this case.
A right to elect, fundamental though it is to democracy, is, anomalously enough,

neither a fundamental right nor a common law right. It is pure and simple, a
statutory right. So is the right to be elected. So is the right to dispute an election.
Outside of statute, there is no right to elect, creations they are, and therefore, subject
to statutory limitation."
In view of the settled law on the point, in must be held that the right to vote is subject to the
limitation imposed by the statute which can be eXercised only in the manner provided by the statute;
and that the challenge to any provision in the statute prescribing the nature of right to elect cannot
be made with reference to a fundamental right in the Constitution. The very basis of challenge to the
validity of sub-section(5) of Section 62 of the Act is, therefore, not available and this petition must
fail.
Consequently, this petition is dismissed. No costs.

National Legal Ser.Auth vs Union Of India & Ors on 15 April, 2014
Author: A Sikri
Bench: K.S. Radhakrishnan, A.K. Sikri
REPORTABLE
INDIA CIVIL ORIGINAL
JURISDICTION
WRIT PETITION (CIVIL) NO.400 OF 2012
National Legal Services Authority Petitioner
Versus
Union of India and others Respondents
WITH
WRIT PETITION (CIVIL) NO.604 OF 2013
J U D G M E N T
K.S. Radhakrishnan, J.
1. Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of
Transgender community undergo, nor appreciates the innate feelings of the members of the
Transgender community, especially of those whose mind and body disown their biological se X. Our
society often ridicules and abuses the Transgender community and in public places like railway
stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as
untouchables, forgetting the fact that the moral failure lies in the societys unwillingness to contain
or embrace different gender identities and eXpressions, a mindset which we have to change.
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.
3. 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.
4. Laxmi Narayan Tripathy, claimed to be a Hijra, has also got impleaded so as to effectively put
across the cause of the members of the transgender community and Tripathys life e Xperiences also
for recognition of their identity as a third gender, over and above male and female. Tripathy says
that non-recognition of the identity of Hijras, a TG community, as a third gender, denies them the
right of equality before the law and equal protection of law guaranteed under Article 14 of the
Constitution and violates the rights guaranteed to them under Article 21 of the Constitution of India.

5. Shri Raju Ramachandran, learned senior counsel appearing for the petitioner the National Legal
Services Authority, highlighted the traumatic e X periences faced by the members of the TG
community and submitted that every person of that community has a legal right to decide their se X
orientation and to espouse and determine their identity. 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.
6. Shri Anand Grover, learned senior counsel appearing for the Intervener, traced the historical
background of the third gender identity in India and the position accorded to them in the Hindu
Mythology, Vedic and Puranic literatures, and the prominent role played by them in the royal courts
of the Islamic world etc. Reference was also made to the repealed Criminal Tribes Act, 1871 and
eXplained the inhuman manner by which they were treated at the time of the British Colonial rule.
Learned senior counsel also submitted that various International Forums and U.N. Bodies have
recognized their gender identity and referred to the Yogyakarta Principles and pointed out that
those principles have been recognized by various countries around the world. Reference was also
made to few legislations giving recognition to the trans-seXual persons in other countries. Learned
senior counsel also submitted that non-recognition of gender identity of the transgender community
violates the fundamental rights guaranteed to them, who are citizens of this country.
7. Shri T. Srinivasa Murthy, learned counsel appearing in I.A. No. 2 of 2013, submitted that
transgender persons have to be declared as a socially and educationally backward classes of citizens
and must be accorded all benefits available to that class of persons, which are being eXtended to
male and female genders. Learned counsel also submitted that the right to choose ones gender
identity is integral to the right to lead a life with dignity, which is undoubtedly guaranteed by Article
21 of the Constitution of India. Learned counsel, therefore, submitted that, subject to such
rules/regulations/protocols, transgender persons may be afforded the right of choice to determine
whether to opt for male, female or transgender classification.
8. Shri Sanjeev Bhatnagar, learned counsel appearing for the petitioner in Writ Petition No.604 of
2013, highlighted the cause of the Kinnar community and submitted that they are the most deprived
group of transgenders and calls for constitutional as well as legal protection for their identity and for
other socio-economic benefits, which are otherwise eXtended to the members of the male and female
genders in the community.
9. Shri Rakesh K. Khanna, learned Additional Solicitor General, appearing for the Union of India,
submitted that the problems highlighted by the transgender community is a sensitive human issue,
which calls for serious attention. Learned ASG pointed out that, under the aegis of the Ministry of

Social Justice and Empowerment (for short MOSJE), a Committee, called E Xpert Committee on
Issues relating to Transgender, has been constituted to conduct an in-depth study of the problems
relating to transgender persons to make appropriate recommendations to MOSJE. Shri Khanna also
submitted that due representation would also be given to the applicants, appeared before this Court
in the Committee, so that their views also could be heard.
10. We also heard learned counsel appearing for various States and Union Territories who have
eXplained the steps they have taken to improve the conditions and status of the members of TG
community in their respective States and Union Territories. 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 has 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 se Xual 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. Siddarth Narrain, eunuch, highlights Narrains feeling, as
follows: Ever since I can remember, I have always identified myself as a woman. I
lived in Namakkal, a small town in Tamil Nadu. When I was in the 10th standard I
realized that the only way for me to be comfortable was to join the hijra community.
It was then that my family found out that I frequently met hijras who lived in the city.
One day, when my father was away, my brother, encouraged by my mother, started
beating me with a cricket bat. I locked myself in a room to escape from the beatings.
My mother and brother then tried to break into the room to beat me up further. Some
of my relatives intervened and brought me out of the room. I related my ordeal to an
uncle of mine who gave me Rs.50 and asked me to go home. Instead, I took the
money and went to live with a group of hijras in Erode. Sachin, a TG, e Xpressed his
eXperiences as follows: My name is Sachin and I am 23 years old. As a child I always
enjoyed putting make-up like vibhuti or kum kum and my parents always saw me as a
girl. I am male but I only have female feelings. I used to help my mother in all the
housework like cooking, washing and cleaning. Over the years, I started assuming
more of the domestic responsibilities at home. The neighbours starting teasing me.

They would call out to me and ask: Why dont you go out and work like a man? or
Why are you staying at home like a girl? But I liked being a girl. I felt shy about going
out and working. Relatives would also mock and scold me on this score. Every day I
would go out of the house to bring water. And as I walked back with the water I would
always be teased. I felt very ashamed. I even felt suicidal.
How could I live like that? But my parents never protested. They were helpless. We have been told
and informed of similar life eXperiences faced by various others who belong to the TG community.
11. Transgender is generally described as an umbrella term for persons whose gender identity,
gender eXpression or behavior does not conform to their biological seX. TG may also takes in
persons who do not identify with their seX assigned at birth, which include Hijras/Eunuchs who, in
this writ petition, describe themselves as third gender and they do not identify as either male or
female. Hijras are not men by virtue of anatomy appearance and psychologically, they are also not
women, though they are like women with no female reproduction organ and no menstruation. Since
Hijras do not have reproduction capacities as either men or women, they are neither men nor
women and claim to be an institutional third gender. Among Hijras, there are emasculated
(castrated, nirvana) men, non- emasculated men (not castrated/akva/akka) and inter-se Xed persons
(hermaphrodites). TG also includes persons who intend to undergo Se X Re- Assignment Surgery
(SRS) or have undergone SRS to align their biological se X with their gender identity in order to
become male or female. They are generally called transseXual persons. Further, there are persons
who like to cross-dress in clothing of opposite gender, i.e transvestites. Resultantly, the term
transgender, in contemporary usage, has become an umbrella term that is used to describe a wide
range of identities and eXperiences, including but not limited to pre-operative, post-operative and
non-operative transseXual people, who strongly identify with the gender opposite to their biological
seX; male and female.
HISTORICAL BACKGROUND OF TRANSGENDERS IN INDIA:
12. 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.
13. Lord Rama, in the epic Ramayana, was leaving for the forest upon being banished from the
kingdom for 14 years, turns around to his followers and asks all the men and women to return to the
city. Among his followers, the hijras alone do not feel bound by this direction and decide to stay with
him. Impressed with their devotion, Rama sanctions them the power to confer blessings on people
on auspicious occasions like childbirth and marriage, and also at inaugural functions which, it is
believed set the stage for the custom of badhai in which hijras sing, dance and confer blessings.
14. Aravan, the son of Arjuna and Nagakanya in Mahabharata, offers to be sacrificed to Goddess Kali
to ensure the victory of the Pandavas in the Kurukshetra war, the only condition that he made was to

spend the last night of his life in matrimony. Since no woman was willing to marry one who was
doomed to be killed, Krishna assumes the form of a beautiful woman called Mohini and marries
him. The Hijras of Tamil Nadu consider Aravan their progenitor and call themselves Aravanis.
15. Jain TeXts also make a detailed reference to TG which mentions the concept of psychological se X.
Hijras also played a prominent role in the royal courts of the Islamic world, especially in the
Ottaman empires and the Mughal rule in the Medieval India. A detailed analysis of the historical
background of the same finds a place in the book of Gayatri Reddy, With Respect to Se X: Negotiating
Hijra Identity in South India Yoda Press (2006).
16. We notice that even though historically, Hijras/transgender persons had played a prominent
role, with the onset of colonial rule from the 18th century onwards, the situation had changed
drastically. During the British rule, a legislation was enacted to supervise the deeds of Hijras/TG
community, called the Criminal Tribes Act, 1871, which deemed the entire community of Hijras
persons as innately criminal and addicted to the systematic commission of non-bailable offences.
The Act provided for the registration, surveillance and control of certain criminal tribes and eunuchs
and had penalized eunuchs, who were registered, and appeared to be dressed or ornamented like a
woman, in a public street or place, as well as those who danced or played music in a public place.
Such persons also could be arrested without warrant and sentenced to imprisonment up to two
years or fine or both. Under the Act, the local government had to register the names and residence of
all eunuchs residing in that area as well as of their properties, who were reasonably suspected of
kidnapping or castrating children, or of committing offences under Section 377 of the IPC, or of
abetting the commission of any of the said offences. Under the Act, the act of keeping a boy under 16
years in the charge of a registered eunuch was made an offence punishable with imprisonment up to
two years or fine and the Act also denuded the registered eunuchs of their civil rights by prohibiting
them from acting as guardians to minors, from making a gift deed or a will, or from adopting a son.
Act has, however, been repealed in August 1949.
17. Section 377 of the IPC found a place in the Indian Penal Code, 1860, prior to the enactment of
Criminal Tribles Act that criminalized all penile- non-vaginal se Xual acts between persons, including
anal seX and oral seX, at a time when transgender persons were also typically associated with the
prescribed seXual practices. Reference may be made to the judgment of the Allahabad High Court in
Queen Empress v. Khairati (1884) ILR 6 All 204, wherein a transgender person was arrested and
prosecuted under Section 377 on the suspicion that he was a habitual sodomite and was later
acquitted on appeal. In that case, while acquitting him, the Sessions Judge stated as follows:
This case relates to a person named Khairati, over whom the police seem to have
eXercised some sort of supervision, whether strictly regular or not, as a eunuch. The
man is not a eunuch in the literal sense, but he was called for by the police when on a
visit to his village, and was found singing dressed as a woman among the women of a
certain family. Having been subjected to eXamination by the Civil Surgeon (and a
subordinate medical man), he is shown to have the characteristic mark of a habitual
catamite the distortion of the orifice of the anus into the shape of a trumpet and also
to be affected with syphilis in the same region in a manner which distinctly points to

unnatural intercourse within the last few months.
18. Even though, he was acquitted on appeal, this case would demonstrate that Section 377, though
associated with specific seXual acts, highlighted certain identities, including Hijras and was used as
an instrument of harassment and physical abuse against Hijras and transgender persons. A Division
Bench of this Court in Suresh Kumar Koushal and another v. Naz Foundation and others [(2014) 1
SCC 1] has already spoken on the constitutionality of Section 377 IPC and, hence, we e Xpress no
opinion on it since we are in these cases concerned with an altogether different issue pertaining to
the constitutional and other legal rights of the transgender community and their gender identity and
seXual orientation.
GENDER IDENTITY AND SEXUAL ORIENTATION
19. Gender identity is one of the most-fundamental aspects of life which refers to a persons intrinsic
sense of being male, female or transgender or transse Xual person. A persons seX is usually assigned
at birth, but a relatively small group of persons 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 se X assigned to
them at birth and may include pre and post-operative transse Xual 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 se X. Few
persons undertake surgical and other procedures to alter their bodies and physical appearance to
acquire gender characteristics of the seX which conform to their perception of gender, leading to
legal and social complications since official record of their gender at birth is found to be at variance
with the assumed gender identity. Gender identity refers to each persons deeply felt internal and
individual eXperience of gender, which may or may not correspond with the se X 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 e Xpressions of gender,
including dress, speech and mannerisms. Gender identity, therefore, refers to an individuals self-
identification as a man, woman, transgender or other identified category.
20. 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 and their seXual orientation may or may not change during or after
gender transmission, which also includes homo-seXuals, byseXuals, heteroseXuals, aseXual etc.
Gender identity and seXual orientation, as already indicated, are different concepts. Each persons
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.
UNITED NATIONS AND OTHER HUMAN RIGHTS BODIES ON GENDER IDENTITY AND
SEXUAL ORIENTATION

21. United Nations has been instrumental in advocating the protection and promotion of rights of
seXual minorities, including transgender persons. Article 6 of the Universal Declaration of Human
Rights, 1948 and Article 16 of the International Covenant on Civil and Political Rights, 1966 (ICCPR)
recognize that every human being has the inherent right to live and this right shall be protected by
law and that no one shall be arbitrarily denied of that right. Everyone shall have a right to
recognition, everywhere as a person before the law. Article 17 of the ICCPR states that no one shall
be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence,
nor to unlawful attacks on his honour and reputation and that everyone has the right to protection
of law against such interference or attacks. International Commission of Jurists and the
International Service for Human Rights on behalf of a coalition of human rights organizations, took
a project to develop a set of international legal principles on the application of international law to
human rights violations based on seXual orientation and seXual identity to bring greater clarity and
coherence to States human rights obligations. A distinguished group of human rights e Xperts has
drafted, developed, discussed and reformed the principles in a meeting held at Gadjah Mada
University in Yogyakarta, Indonesia from 6 to 9 November, 2006, which is unanimously adopted
the Yogyakarta Principles on the application of International Human Rights Law in relation to
SeXual Orientation and Gender Identity. Yogyakarta Principles address a broad range of human
rights standards and their application to issues of seXual orientation gender identity. Reference to
few Yogyakarta Principles would be useful.
YOGYAKARTA PRINCIPLES:
22. Principle 1 which deals with the right to the universal enjoyment of human rights, reads as
follows :-
1. THE RIGHT TO THE UNIVERSAL ENJOYMENT OF HUMAN RIGHTS All human

beings are born free and equal in dignity and rights. Human beings of all se Xual
orientations and gender identities are entitled to the full enjoyment of all human
rights.
States shall:
A. Embody the principles of the universality, interrelatedness, interdependence and

indivisibility of all human rights in their national constitutions or other appropriate
legislation and ensure the practical realisation of the universal enjoyment of all
human rights;
B. Amend any legislation, including criminal law, to ensure its consistency with the
universal enjoyment of all human rights;
C. Undertake programmes of education and awareness to promote and enhance the

full enjoyment of all human rights by all persons, irrespective of se Xual orientation or
gender identity;

D. Integrate within State policy and decision-making a pluralistic approach that
recognises and affirms the interrelatedness and indivisibility of all aspects of human
identity including seXual orientation and gender identity.
2. THE RIGHTS TO EQUALITY AND NON-DISCRIMINATION Everyone is entitled

to enjoy all human rights without discrimination on the basis of se Xual orientation or
gender identity. Everyone is entitled to equality before the law and the equal
protection of the law without any such discrimination whether or not the enjoyment
of another human right is also affected. 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 se Xual orientation or gender identity includes any

distinction, eXclusion, restriction or preference based on se Xual 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. Discrimination based
on seXual orientation or gender identity may be, and commonly is, compounded by
discrimination on other grounds including gender, race, age, religion, disability,
health and economic status.
States shall:
A. Embody the principles of equality and non-discrimination on the basis of se Xual

orientation and gender identity in their national constitutions or other appropriate
legislation, if not yet incorporated therein, including by means of amendment and
interpretation, and ensure the effective realisation of these principles;
B. Repeal criminal and other legal provisions that prohibit or are, in effect, employed
to prohibit consensual seXual activity among people of the same se X who are over the
age of consent, and ensure that an equal age of consent applies to both same-se X and
different- seX seXual activity;
C. Adopt appropriate legislative and other measures to prohibit and eliminate

discrimination in the public and private spheres on the basis of seXual orientation
and gender identity;
D. Take appropriate measures to secure adequate advancement of persons of diverse

seXual orientations and gender identities as may be necessary to ensure such groups
or individuals equal enjoyment or e Xercise of human rights. Such measures shall not
be deemed to be discriminatory;
E. In all their responses to discrimination on the basis of se Xual orientation or gender

identity, take account of the manner in which such discrimination may intersect with

other forms of discrimination;
F. Take all appropriate action, including programmes of education and training, with
a view to achieving the elimination of prejudicial or discriminatory attitudes or
behaviours which are related to the idea of the inferiority or the superiority of any
seXual orientation or gender identity or gender eXpression.
3. THE RIGHT TO RECOGNITION BEFORE THE LAW Everyone has the right to
recognition everywhere as a person before the law. Persons of diverse se X ual
orientations and gender identities shall enjoy legal capacity in all aspects of life. Each
persons 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. No one shall be forced to undergo medical procedures, including se X
reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal
recognition of their gender identity. No status, such as marriage or parenthood, may
be invoked as such to prevent the legal recognition of a persons gender identity. No
one shall be subjected to pressure to conceal, suppress or deny their se X ual
orientation or gender identity.
States shall:
A. Ensure that all persons are accorded legal capacity in civil matters, without
discrimination on the basis of se X ual orientation or gender identity, and the
opportunity to eXercise that capacity, including equal rights to conclude contracts,
and to administer, own, acquire (including through inheritance), manage, enjoy and
dispose of property;
B. Take all necessary legislative, administrative and other measures to fully respect
and legally recognise each persons self-defined gender identity;
C. Take all necessary legislative, administrative and other measures to ensure that
procedures eXist whereby all State-issued identity papers which indicate a persons
gender/seX including birth certificates, passports, electoral records and other
documents reflect the persons profound self-defined gender identity;
D. Ensure that such procedures are efficient, fair and non- discriminatory, and
respect the dignity and privacy of the person concerned;
E. Ensure that changes to identity documents will be recognised in all conte Xts where
the identification or disaggregation of persons by gender is required by law or policy;
F. Undertake targeted programmes to provide social support for all persons

eXperiencing gender transitioning or reassignment.

4. THE RIGHT TO LIFE Everyone has the right to life. No one shall be arbitrarily
deprived of life, including by reference to considerations of se Xual orientation or
gender identity. The death penalty shall not be imposed on any person on the basis of
consensual seXual activity among persons who are over the age of consent or on the
basis of seXual orientation or gender identity.
States shall:
A. Repeal all forms of crime that have the purpose or effect of prohibiting consensual
seXual activity among persons of the same seX who are over the age of consent and,
until such provisions are repealed, never impose the death penalty on any person
convicted under them;
B. Remit sentences of death and release all those currently awaiting e Xecution for
crimes relating to consensual se Xual activity among persons who are over the age of
consent;
C. Cease any State-sponsored or State-condoned attacks on the lives of persons based

on seXual orientation or gender identity, and ensure that all such attacks, whether by
government officials or by any individual or group, are vigorously investigated, and
that, where appropriate evidence is found, those responsible are prosecuted, tried
and duly punished.
6. THE RIGHT TO PRIVACY Everyone, regardless of seXual orientation or gender

identity, is entitled to the enjoyment of privacy without arbitrary or unlawful
interference, including with regard to their family, home or correspondence as well as
to protection from unlawful attacks on their honour and reputation. The right to
privacy ordinarily includes the choice to disclose or not to disclose information
relating to ones seXual orientation or gender identity, as well as decisions and choices
regarding both ones own body and consensual seXual and other relations with others.
States shall:
A. Take all necessary legislative, administrative and other measures to ensure the
right of each person, regardless of seXual orientation or gender identity, to enjoy the
private sphere, intimate decisions, and human relations, including consensual se Xual
activity among persons who are over the age of consent, without arbitrary
interference;
B. Repeal all laws that criminalise consensual se Xual activity among persons of the
same seX who are over the age of consent, and ensure that an equal age of consent
applies to both same-seX and different- seX seXual activity;

C. Ensure that criminal and other legal provisions of general application are not
applied to de facto criminalise consensual se Xual activity among persons of the same
seX who are over the age of consent;
D. Repeal any law that prohibits or criminalises the eXpression of gender identity,
including through dress, speech or mannerisms, or that denies to individuals the
opportunity to change their bodies as a means of eXpressing their gender identity;
E. Release all those held on remand or on the basis of a criminal conviction, if their
detention is related to consensual seXual activity among persons who are over the age
of consent, or is related to gender identity;
F. Ensure the right of all persons ordinarily to choose when, to whom and how to
disclose information pertaining to their se Xual orientation or gender identity, and
protect all persons from arbitrary or unwanted disclosure, or threat of disclosure of
such information by others
9. THE RIGHT TO TREATMENT WITH HUMANITY WHILE IN DETENTION

Everyone deprived of liberty shall be treated with humanity and with respect for the
inherent dignity of the human person. Se Xual orientation and gender identity are
integral to each persons dignity.
States shall:
A. Ensure that placement in detention avoids further marginalising persons on the

basis of seXual orientation or gender identity or subjecting them to risk of violence,
ill-treatment or physical, mental or seXual abuse;
B. Provide adequate access to medical care and counselling appropriate to the needs
of those in custody, recognising any particular needs of persons on the basis of their
seXual orientation or gender identity, including with regard to reproductive health,
access to HIV/AIDS information and therapy and access to hormonal or other
therapy as well as to gender-reassignment treatments where desired;
C. Ensure, to the eXtent possible, that all prisoners participate in decisions regarding
the place of detention appropriate to their seXual orientation and gender identity;
D. Put protective measures in place for all prisoners vulnerable to violence or abuse
on the basis of their seXual orientation, gender identity or gender eXpression and
ensure, so far as is reasonably practicable, that such protective measures involve no
greater restriction of their rights than is e X perienced by the general prison
population;

E. Ensure that conjugal visits, where permitted, are granted on an equal basis to all
prisoners and detainees, regardless of the gender of their partner;
F. Provide for the independent monitoring of detention facilities by the State as well
as by non-governmental organisations including organisations working in the
spheres of seXual orientation and gender identity;
G. Undertake programmes of training and awareness-raising for prison personnel

and all other officials in the public and private sector who are engaged in detention
facilities, regarding international human rights standards and principles of equality
and non- discrimination, including in relation to seXual orientation and gender
identity.
18. PROTECTION FROM MEDICAL ABUSES No person may be forced to undergo

any form of medical or psychological treatment, procedure, testing, or be confined to
a medical facility, based on se Xual orientation or gender identity. Notwithstanding
any classifications to the contrary, a persons se Xual orientation and gender identity
are not, in and of themselves, medical conditions and are not to be treated, cured or
suppressed.
States shall:
A. Take all necessary legislative, administrative and other measures to ensure full
protection against harmful medical practices based on se Xual orientation or gender
identity, including on the basis of stereotypes, whether derived from culture or
otherwise, regarding conduct, physical appearance or perceived gender norms;
B. Take all necessary legislative, administrative and other measures to ensure that no
childs body is irreversibly altered by medical procedures in an attempt to impose a
gender identity without the full, free and informed consent of the child in accordance
with the age and maturity of the child and guided by the principle that in all actions
concerning children, the best interests of the child shall be a primary consideration;
C. Establish child protection mechanisms whereby no child is at risk of, or subjected

to, medical abuse;
D. Ensure protection of persons of diverse se Xual orientations and gender identities

against unethical or involuntary medical procedures or research, including in relation
to vaccines, treatments or microbicides for HIV/AIDS or other diseases;
E. Review and amend any health funding provisions or programmes, including those
of a development-assistance nature, which may promote, facilitate or in any other
way render possible such abuses;

F. Ensure that any medical or psychological treatment or counselling does not,
eXplicitly or implicitly, treat seXual orientation and gender identity as medical
conditions to be treated, cured or suppressed.
19. THE RIGHT TO FREEDOM OF OPINION AND EXPRESSION Everyone has the
right to freedom of opinion and eXpression, regardless of seXual orientation or gender
identity. This includes the eXpression of identity or personhood through speech,
deportment, dress, bodily characteristics, choice of name, or any other means, as well
as the freedom to seek, receive and impart information and ideas of all kinds,
including with regard to human rights, seXual orientation and gender identity,
through any medium and regardless of frontiers.
States shall:
A. Take all necessary legislative, administrative and other measures to ensure full
enjoyment of freedom of opinion and e Xpression, while respecting the rights and
freedoms of others, without discrimination on the basis of seXual orientation or
gender identity, including the receipt and imparting of information and ideas
concerning seXual orientation and gender identity, as well as related advocacy for
legal rights, publication of materials, broadcasting, organisation of or participation in
conferences, and dissemination of and access to safer-seX information;
B. Ensure that the outputs and the organisation of media that is State-regulated is
pluralistic and non-discriminatory in respect of issues of seXual orientation and
gender identity and that the personnel recruitment and promotion policies of such
organisations are non-discriminatory on the basis of se Xual orientation or gender
identity;
C. Take all necessary legislative, administrative and other measures to ensure the full
enjoyment of the right to eXpress identity or personhood, including through speech,
deportment, dress, bodily characteristics, choice of name or any other means;
D. Ensure that notions of public order, public morality, public health and public
security are not employed to restrict, in a discriminatory manner, any e Xercise of
freedom of opinion and eXpression that affirms diverse seXual orientations or gender
identities;
E. Ensure that the eXercise of freedom of opinion and e Xpression does not violate the
rights and freedoms of persons of diverse seXual orientations and gender identities;
F. Ensure that all persons, regardless of seXual orientation or gender identity, enjoy
equal access to information and ideas, as well as to participation in public debate.

23. UN bodies, Regional Human Rights Bodies, National Courts, Government Commissions and the
Commissions for Human Rights, Council of Europe, etc. have endorsed the Yogyakarta Principles
and have considered them as an important tool for identifying the obligations of States to respect,
protect and fulfill the human rights of all persons, regardless of their gender identity. United
Nations Committee on Economic, Social and Cultural Rights in its Report of 2009 speaks of gender
orientation and gender identity as follows:-
SeXual orientation and gender identity Other status as recognized in article 2,

paragraph 2, includes seXual orientation. States parties should ensure that a persons
seXual orientation is not a barrier to realizing Covenant rights, for eXample, in
accessing survivors pension rights. In addition, gender identity is recognized as
among the prohibited grounds of discrimination, for eXample, persons who are
transgender, transseXual or interseX, often face serious human rights violations, such
as harassment in schools or in the workplace.
24. In this respect, reference may also be made to the General Comment No.2 of the Committee on
Torture and Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment in 2008 and also the General Comment No.20 of the Committee on
Elimination of Discrimination against Woman, responsible for the implementation of the
Convention on the Elimination of All Forms of Discrimination against Woman, 1979 and 2010
report.
SRS and Foreign Judgments
25. Various countries have given recognition to the gender identity of such persons, mostly, in cases
where transseXual persons started asserting their rights after undergoing SRS of their re-assigned
seX. In Corbett v. Corbett (1970) 2 All ER 33, the Court in England was concerned with the gender of
a male to female transse Xual in the conteXt of the validity of a marriage. Ormrod, J. in that case took
the view that the law should adopt the chromosomal, gonadal and genital tests and if all three are
congruent, that should determine a persons seX for the purpose of marriage. Learned Judge
eXpressed the view that any operative intervention should be ignored and the biological se Xual
constitution of an individual is fiXed at birth, at the latest, and cannot be changed either by the
natural development of organs of the opposite seX or by medical or surgical means. Later, in R v.
Tan (1983) QB 1053, 1063-1064, the Court of Appeal applied Corbett approach in the conte Xt of
criminal law. The Court upheld convictions which were imposed on Gloria Greaves, a post-operative
male to female transseXual, still being in law, a man.
26. Corbett principle was not found favour by various other countries, like New Zealand, Australia
etc. and also attracted much criticism, from the medical profession. It was felt that the application of
the Corbett approach would lead to a substantial different outcome in cases of a post operative inter-
seXual person and a post operative transse Xual person. In New Zealand in Attorney-General v.
Otahuhu Family Court (1995) 1 NZLR 603, Justice Ellis noted that once a transse Xual person has
undergone surgery, he or she is no longer able to operate in his or her original se X. It was held that
there is no social advantage in the law for not recognizing the validity of the marriage of a

transseXual in the seX of reassignment. The Court held that an adequate test is whether the person in
question has undergone surgical and medical procedures that have effectively given the person the
physical conformation of a person of a specified se X . In Re Kevin (Validity of Marriage of
Transse X ual) (2001) Fam CA 1074, in an Australian case, Chisholm J., held that there is no
formulaic solution to determine the seX of an individual for the purpose of the law of marriage. It
was held that all relevant matters need to be considered, including the persons life e Xperiences and
self-perception. Full Court of the Federal Family Court in the year 2003 approved the
above-mentioned judgment holding that in the relevant Commonwealth marriage statute the words
man and woman should be given their ordinary, everyday contemporary meaning and that the word
man includes a post operative female to male transseXual person. The Full Court also held that there
was a biological basis for transse Xualism and that there was no reason to e Xclude the psyche as one
of the relevant factors in determining se X and gender. The judgment Attorney- General for the
Commonwealth & Kevin and Jennifer & Human Rights and Equal Opportunity Commission is
reported in (2003) Fam CA 94.
27. Lockhart, J. in Secretary, Department of Social Security v. SRA, (1993) 43 FCR 299 and
Mathews, J. in R v. Harris & McGuiness (1988) 17 NSWLR 158, made an e Xhaustive review of the
various decisions with regard to the question of recognition to be accorded by Courts to the gender
of a transseXual person who had undertaken a surgical procedure. The Courts generally in New
Zealand held that the decision in Corbett v. Corbett (supra) and R v. Tan (supra) which applied a
purely biological test, should not be followed. In fact, Lockhart. J. in SRA observed that the
development in surgical and medical techniques in the field of se Xual reassignment, together with
indications of changing social attitudes towards transseXuals, would indicate that generally they
should not be regarded merely as a matter of chromosomes, which is purely a psychological
question, one of self-perception, and partly a social question, how society perceives the individual.
28. A.B. v. Western Australia (2011) HCA 42 was a case concerned with the Gender Reassignment
Act, 2000. In that Act, a person who had undergone a reassignment procedure could apply to
Gender Reassignment Board for the issue of a recognition certificate. Under Section 15 of that Act,
before issuing the certificate, the Board had to be satisfied, inter alia, that the applicant believed his
or her true gender was the persons reassigned gender and had adopted the lifestyle and gender
characteristics of that gender. Majority of Judges agreed with Lockhart, J. in SRA that gender
should not be regarded merely as a matter of chromosomes, but partly a psychological question, one
of self-perception, and partly a social question, how society perceives the individual.
29. The House of Lords in Bellinger v. Bellinger (2003) 2 All ER 593 was dealing with the question
of a transseXual. In that case, Mrs. Bellinger was born on 7th September, 1946. At birth, she was
correctly classified and registered as male. However, she felt more inclined to be a female. Despite
her inclinations, and under some pressure, in 1967 she married a woman and at that time she was 21
years old. Marriage broke down and parties separated in 1971 and got divorce in the year 1975. Mrs.
Bellinger dressed and lived like a woman and when she married Mr. Bellinger, he was fully aware of
her background and throughout had been supportive to her. Mr. and Mrs. Bellinger since marriage
lived happily as husband and wife and presented themselves in that fashion to the outside world.
Mrs. Bellingers primary claim was for a declaration under Section 55 of the Family Law Act, 1986

that her marriage to Mr. Bellinger in 1981 was at its inception valid marriage. The House of Lords
rejected the claim and dismissed the appeal. Certainly, the psychological factor has not been given
much prominence in determination of the claim of Mrs. Bellinger.
30. The High Court of Kuala Lumpur in Re JG, JG v. Pengarah Jabatan Pendaftaran Negara (2006)
1 MLJ 90, was considering the question as to whether an application to amend or correct gender
status stated in National Registration Identity Card could be allowed after a person has undergone
SRS. It was a case where the plaintiff was born as a male, but felt more inclined to be a woman. In
1996 at Hospital Siroros she underwent a gender reassignment and got the surgery done for
changing the seX from male to female and then she lived like a woman. She applied to authorities to
change her name and also for a declaration of her gender as female, but her request was not
favourably considered, but still treated as a male. She sought a declaration from the Court that she
be declared as a female and that the Registration Department be directed to change the last digit of
her identity card to a digit that reflects a female gender. The Malaysian Court basically applied the
principle laid down in Corbett (supra), however, both the prayers sought for were granted, after
noticing that the medical men have spoken that the plaintiff is a female and they have considered
the seX change of the plaintiff as well as her psychological aspect. The Court noticed that she feels
like a woman, lives like one, behaves as one, has her physical body attuned to one, and most
important of all, her psychological thinking is that of a woman.
31. The Court of Appeal, New South Wales was called upon to decide the question whether the
Registrar of Births, Deaths and Marriages has the power under the Births, Deaths and Marriages
Act, 1995 to register a change of seX of a person and the seX recorded on the register to non-specific
or non-specified. The appeal was allowed and the matter was remitted back to the Tribunal for a
fresh consideration in accordance with law, after laying down the law on the subject. The judgment
is reported as Norrie v. NSW Registrar of Births, Deaths and Marriages (2013) NSWCA 145. While
disposing of the appeal, the Court held as follows:-
The consequence is that the Appeal Panel (and the Tribunal and the Registrar) were
in error in construing the power in S.32DC(1) as limiting the Registrar to registering
a persons change of seX as only male or female. An error in the construction of the
statutory provision granting the power to register a persons change of se X is an error
on a question of law. Collector of Customs v. Pozzolanic Enterprises Pty. Ltd. [1993]
FCA 322; (1993) 43 FCR 280 at 287. This is so notwithstanding that the
determination of the common understanding of a general word used in the statutory
provision is a question of fact. The Appeal Panel (and the Tribunal and the Registrar)
erred in determining that the current ordinary meaning of the word se X is limited to
the character of being either male or female. That involved an error on a question of
fact. But the Appeal Panels error in arriving at the common understanding of the
word seX was associated with its error in construction of the effect of the statutory
provision of S.32DC (and also of S.32DA), and accordingly is of law: Hope v. Bathurst
City Council [1980] HCA 16, (1980) 144 CLR 1 at 10.

32. In Christine Goodwin v. United Kingdom (Application No.28957/95 - Judgment dated 11th July,
2002), the European Court of Human Rights e Xamined an application alleging violation of Articles
8, 12, 13 and 14 of the Convention for Protection of Human Rights and Fundamental Freedoms,
1997 in respect of the legal status of transseXuals in UK and particularly their treatment in the
sphere of employment, social security, pensions and marriage. Applicant in that case had a tendency
to dress as a woman from early childhood and underwent aversion therapy in 1963-64. In the mid-
1960s she was diagnosed as a transseXual. Though she married a woman and they had four children,
her inclination was that her brain seX did not fit her body. From that time until 1984 she dressed as
a man for work but as a woman in her free time. In January, 1985, the applicant began treatment at
the Gender Identity Clinic. In October, 1986, she underwent surgery to shorten her vocal chords. In
August, 1987, she was accepted on the waiting list for gender re-assignment surgery and later
underwent that surgery at a National Health Service hospital. The applicant later divorced her
former wife. She claimed between 1990 and 1992 she was se Xually harassed by colleagues at work,
followed by other human rights violations. The Court after referring to various provisions and
Conventions held as follows:-
Nonetheless, the very essence of the Convention is respect for human dignity and
human freedom. Under Article 8 of the Convention in particular, where the notion of
personal autonomy is an important principle underlying the interpretation of its
guarantees, protection is given to the personal sphere of each individuals, including
the right to establish details of their identity as individual human beings (see, inter
alia, Pretty v. the United Kingdom no.2346/02, judgment of 29 April 2002, 62, and
Mikulic v. Croatia, no.53176/99, judgment of 7 February 2002, 53, both to be
published in ECHR 2002). In the twenty first century the right of transse Xuals to
personal development and to physical and moral security in the full sense enjoyed by
others in society cannot be regarded as a matter of controversy requiring the lapse of
time to cast clearer light on the issues involved. In short, the unsatisfactory situation
in which post- operative transseXuals live in an intermediate zone as not quite one
gender or the other is no longer sustainable.
33. The European Court of Human Rights in the case of Van Kuck v. Germany (Application
No.35968/97 Judgment dated 12.9.2003) dealt with the application alleging that German Courts
decisions refusing the applicants claim for reimbursement of gender reassignment measures and the
related proceedings were in breach of her rights to a fair trial and of her right to respect for her
private life and that they amounted to discrimination on the ground of her particular psychological
situation. Reliance was placed on Articles 6, 8, 13 and 14 of the Convention for Protection of Human
Rights and Fundamental Freedoms, 1997. The Court held that the concept of private life covers the
physical and psychological integrity of a person, which can sometimes embrace aspects of an
individuals physical and social identity. For eXample, gender identifications, name and seXual
orientation and seXual life fall within the personal sphere protected by Article 8. The Court also held
that the notion of personal identity is an important principle underlying the interpretation of
various guaranteed rights and the very essence of the Convention being respect for human dignity
and human freedom, protection is given to the right of transse Xuals to personal development and to
physical and moral security.

34. Judgments referred to above are mainly related to transse Xuals, who, whilst belonging physically
to one seX, feel convinced that they belong to the other, seek to achieve a more integrated
unambiguous identity by undergoing medical and surgical operations to adapt their physical
characteristic to their psychological nature. When we eXamine the rights of transseXual persons,
who have undergone SRS, the test to be applied is not the Biological test, but the Psychological test,
because psychological factor and thinking of transseXual has to be given primacy than binary notion
of gender of that person. Seldom people realize the discomfort, distress and psychological trauma,
they undergo and many of them undergo Gender Dysphoria which may lead to mental disorder.
Discrimination faced by this group in our society, is rather unimaginable and their rights have to be
protected, irrespective of chromosomal seX, genitals, assigned birth seX, or implied gender role.
Rights of transgenders, pure and simple, like Hijras, eunuchs, etc. have also to be e Xamined, so also
their right to remain as a third gender as well as their physical and psychological integrity. Before
addressing those aspects further, we may also refer to few legislations enacted in other countries
recognizing their rights.
LEGISLATIONS IN OTHER COUNTRIES ON TGs
35. We notice, following the trend, in the international human rights law, many countries have
enacted laws for recognizing rights of transse X ual persons, who have undergone either
partial/complete SRS, including United Kingdom, Netherlands, Germany, Australia, Canada,
Argentina, etc. United Kingdom has passed the General Recommendation Act, 2004, following the
judgment in Christine Goodwin (supra) passed by the European Courts of Human Rights. The Act is
all encompassing as not only does it provide legal recognition to the acquired gender of a person, but
it also lays down provisions highlighting the consequences of the newly acquired gender status on
their legal rights and entitlements in various aspects such as marriage, parentage, succession, social
security and pensions etc. One of the notable features of the Act is that it is not necessary that a
person needs to have undergone or in the process of undergoing a SRS to apply under the Act.
Reference in this connection may be made to the Equality Act, 2010 (UK) which has consolidated,
repealed and replaced around nine different anti-discrimination legislations including the SeX
Discrimination Act, 1986. The Act defines certain characteristics to be protected characteristics and
no one shall be discriminated or treated less favourably on grounds that the person possesses one or
more of the protected characteristics. The Act also imposes duties on Public Bodies to eliminate all
kinds of discrimination, harassment and victimization. Gender reassignment has been declared as
one of the protected characteristics under the Act, of course, only the transse Xuals i.e. those who are
proposing to undergo, is undergoing or has undergone the process of the gender reassignment are
protected under the Act.
36. In Australia, there are two Acts dealing with the gender identity, (1) Se X Discrimination Act,
1984; and (ii) SeX Discrimination Amendment (SeXual Orientation, Gender Identity and Interse X
Status) Act, 2013 (Act 2013). Act 2013 amends the Se X Discrimination Act, 1984. Act 2013 defines
gender identity as the appearance or mannerisms or other gender- related characteristics of a
person (whether by way of medical intervention or not) with or without regard to the persons
designated seX at birth.

Sections 5(A), (B) and (C) of the 2013 Act have some relevance and the same are e X tracted
hereinbelow:-
5A Discrimination on the ground of se Xual orientation (1) For the purposes of this
Act, a person (the discriminator) discriminates against another person (the aggrieved
person) on the ground of the aggrieved persons seXual orientation if, by reason of:
(a) the aggrieved persons seXual orientation; or
(b) a characteristic that appertains generally to persons who have the same se Xual
orientation as the aggrieved person; or
(c) a characteristic that is generally imputed to persons who have the same se Xual
orientation as the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances
that are the same or are not materially different, the discriminator treats or would
treat a person who has a different seXual orientation.
(2) For the purposes of this Act, a person (the discriminator) discriminates against
another person (the aggrieved person) on the ground of the aggrieved persons se Xual
orientation if the discriminator imposes, or proposes to impose, a condition,
requirement or practice that has, or is likely to have, the effect of disadvantaging
persons who have the same seXual orientation as the aggrieved person.
(3) This section has effect subject to sections 7B and 7D.
5B Discrimination on the ground of gender identity (1) For the purposes of this Act,
a person (the discriminator) discriminates against another person (the aggrieved
person) on the ground of the aggrieved persons gender identity if, by reason of:
(a) the aggrieved persons gender identity; or
(b) a characteristic that appertains generally to persons who have the same gender
identity as the aggrieved person; or
(c) a characteristic that is generally imputed to persons who have the same gender
identity as the aggrieved person;
treat a person who has a different gender identity.

another person (the aggrieved person) on the ground of the aggrieved persons gender
identity if the discriminator imposes, or proposes to impose, a condition,
persons who have the same gender identity as the aggrieved person.
(3) This section has effect subject to sections 7B and 7D.
5C Discrimination on the ground of interseX status (1) For the purposes of this Act, a
person (the discriminator) discriminates against another person (the aggrieved
person) on the ground of the aggrieved persons interseX status if, by reason of:
(a) the aggrieved persons interseX status; or
(b) a characteristic that appertains generally to persons of interseX status; or
(c) a characteristic that is generally imputed to persons of interseX status;
treat a person who is not of interseX status.
another person (the aggrieved person) on the ground of the aggrieved persons
interseX status if the discriminator imposes, or proposes to impose, a condition,
persons of interseX status.
(3) This section has effect subject to sections 7B and 7D. Various other precautions
have also been provided under the Act.
37. We may in this respect also refer to the European Union Legislations on transseXuals. Recital 3
of the Preamble to the Directive 2006/54/EC of European Parliament and the Council of 5 July
2006 makes an eXplicit reference to discrimination based on gender reassignment for the first time
in European Union Law. Recital 3 reads as under :-
The Court of Justice has held that the scope of the principle of equal treatment for
men and women cannot be confined to the prohibition of discrimination based on the
fact that a person is of one or other se X. In view of this purpose and the nature of the
rights which it seeks to safeguard, it also applies to discrimination arising from the
gender reassignment of a person.
38. European Parliament also adopted a resolution on discrimination against transse Xuals on 12th
September, 1989 and called upon the Member States to take steps for the protection of transseXual

persons and to pass legislation to further that end. Following that Hungary has enacted Equal
Treatment and the Promotion of Equal Opportunities Act, 2003, which includes se Xual identity as
one of the grounds of discrimination. 2010 paper on Transgender Persons Rights in the EU Member
States prepared by the Policy Department of the European Parliament presents the specific situation
of transgender people in 27 Member States of the European Union. In the United States of America
some of the laws enacted by the States are inconsistent with each other. The Federal Law which
provides protection to transgenders is The Matthew Shepard and James Byrd. Jr. Hate Crimes
Prevention Act, 2009, which eXpands the scope of the 1969 United States Federal Hate-crime Law
by including offences motivated by actual or perceived gender identity. Around 15 States and
District of Colombia in the United States have legislations which prohibit discrimination on grounds
of gender identity and e X pression. Few States have issued e X ecutive orders prohibiting
discrimination.
39. The Parliament of South Africa in the year 2003, enacted Alteration of Se X Description and SeX
Status Act, 2003, which permits transgender persons who have undergone gender reassignment or
people whose seXual characteristics have evolved naturally or an interse Xed person to apply to the
Director General of the National Department of Home Affairs for alteration of his/her se X
description in the birth register, though the legislation does not contemplate a more inclusive
definition of transgenders.
40. The Senate of Argentina in the year 2012 passed a law on Gender Identity that recognizes right
by all persons to the recognition of their gender identity as well as free development of their person
according to their gender identity and can also request that their recorded se X be amended along
with the changes in first name and image, whenever they do not agree with the self-perceived gender
identity. Not necessary that they seemed to prove that a surgical procedure for total or partial
genital reassignment, hormonal therapies or any other psychological or medical treatment had
taken place. Article 12 deals with dignified treatment, respecting the gender identity adopted by the
individual, even though the first name is different from the one recorded in their national identity
documents. Further laws also provide that whenever requested by the individual, the adopted first
name must be used for summoning, recording, filing, calling and any other procedure or service in
public and private spaces.
41. In Germany, a new law has come into force on 5th November, 2013, which allows the parents to
register the seX of the children as not specified in the case of children with interse X variation.
According to Article 22, Section 3 of the German Civil Statutes Act reads as follows:-
If a child can be assigned to neither the female nor the male se X then the child has to be named
without a specification
42. The law has also added a category of X, apart from M and F under the classification of gender in
the passports.
Indian Scenario

43. We have referred eXhaustively to the various judicial pronouncements and legislations on the
international arena to highlight the fact that the recognition of se X identity gender of persons, and
guarantee to equality and non-discrimination on the ground of gender identity or e Xpression is
increasing and gaining acceptance in international law and, therefore, be applied in India as well.
44. Historical background of Transgenders in India has already been dealth in the earlier part of this
Judgment indicating that they were once treated with great respect, at least in the past, though not
in the present. 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/transse X ual (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).
Hijras may earn through their traditional work: Badhai (clapping their hands and
asking for alms), blessing new-born babies, or dancing in ceremonies. Some
proportion of Hijras engage in seX work for lack of other job opportunities, while
some may be self-employed or work for non- governmental organisations. (See
UNDP India Report (December, 2010).
Eunuch: Eunuch refers to an emasculated male and interse Xed 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. Some Aravani activists want the public and media to
use the term Thirunangi to refer to Aravanis.
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. Kothis are generally of
lower socioeconomic status and some engage in seX work for survival. Some
proportion of Hijra-identified people may also identify themselves as Kothis. But not
all Kothi identified people identify themselves as transgender or Hijras.
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). One can

become a Jogta (or Jogti) if it is part of their family tradition or if one finds a Guru
(or Pujari) who accepts him/her as a Chela or Shishya (disciple). 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. This term is used to differentiate them from Jogtas who are
heteroseXuals and who may or may not dress in womans attire when they worship the
Goddess. Also, that term differentiates them from Jogtis who are biological females
dedicated to the Goddess. However, Jogti Hijras may refer to themselves as Jogti
(female pronoun) or Hijras, and even sometimes as Jogtas.
Shiv-Shakthis: Shiv-Shakthis are considered as males who are possessed by or

particularly close to a goddess and who have feminine gender e Xpression. 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 E Xclusion. The Report states that the
HIV Human Immunodeficiency Virus and SeXually Transmitted Infections (STI) is now increasingly
seen in Hijras/transgenders population. The estimated size of men who have se X 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. HIV prevalence among MSM population was 7.4% against the overall adult HIV
prevalence of 0.36%. It was stated recently Hijras/TG people were included under the category of
MSM in HIV sentinel serosurveillance. It is also reported in recent studies that Hijras/TG women
have indicated a very high HIV prevalence (17.5% to 41%) among them. Study conducted by NACO
also highlights a pathetic situation. Report submitted by NACI, NACP IV Working Group Hijras TG
dated 5.5.2011 would indicate that transgenders are e Xtremely vulnerable to HIV. Both the reports
highlight the eXtreme necessity of taking emergent steps to improve their se Xual health, mental
health and also address the issue of social e Xclusion. The UNDP in its report has made the following
recommendations, which are as under:
Multiple problems are faced by Hijras/TG, which necessitate a variety of solutions

and actions. While some actions require immediate implementation such as
introducing Hijra/TG-specific social welfare schemes, some actions need to be taken
on a long-term basis changing the negative attitude of the general public and

increasing accurate knowledge about Hijra/TG communities. The required changes
need to be reflected in policies and laws; attitude of the government, general public
and health care p roviders ; and health care systems and prac tice. Key
recommendations include the following:
1. Address the gape in NACP-III: establish HIV sentinel serosurveillance sites for
Hijras/TG at strategic locations; conduct operations research to design and fine-tune
culturally- relevant package of HIV prevention and care interventions for Hijras/TG;
provide financial support for the formation of CBOs run by Hijras/TG; and build the
capacity of CBOs to implement effective rogrammes.
2. Move beyond focusing on individual-level HIV prevention activities to address the

structural determinants of risks and mitigate the impact of risks. For eXample,
mental health counseling, crisis intervention (crisis in relation to suicidal tendencies,
police harassment and arrests, support following seXual and physical violence),
addressing alcohol and drug abuse, and connecting to livelihood programs all need to
be part of the HIV interventions.
3. Train health care providers to be competent and sensitive in providing health care
services (including STI and HIV-related services) to Hijras/TG as well as develop and
monitor implementation of guidelines related to gender transition and se X
reassignment surgery (SRS).
4. Clarify the ambiguous legal status of seX reassignment surgery and provide gender
transition and SRS services (with proper pre-and post-operation/transition
counseling) for free in public hospitals in various parts in India.
5. Implement stigma and discrimination reduction measures at various settings

through a variety of ways: mass media awareness for the general public to focused
training and sensitization for police and health care providers.
6. Develop action steps toward taking a position on legal recognition of gender

identity of Hijras/TG need to be taken in consultation with Hijras/TG and other key
stakeholders. Getting legal recognition and avoiding ambiguities in the current
procedures that issue identity documents to Hijras/TGs are required as they are
connected to basic civil rights such as access to health and public services, right to
vote, right to contest elections, right to education, inheritance rights, and marriage
and child adoption.
7. Open up the eXisting Social Welfare Schemes for needy Hijras/TG and create
specific welfare schemes to address the basic needs of Hijras/TG including housing
and employment needs.

8. Ensure greater involvement of vulnerable communities including Hijras/TG
women in policy formulation and program development.
46. Social eXclusion and discrimination on the ground of gender stating that one does not conform
to the binary gender (male/female) does prevail in India. Discussion on gender identity including
self-identification of gender of male/female or as transgender mostly focuses on those persons who
are assigned male seX at birth, whether one talks of Hijra transgender, woman or male or male to
female transgender persons, while concern voiced by those who are identified as female to male
trans-seXual persons often not properly addressed. Female to male unlike Hijra/transgender
persons are not quite visible in public unlike Hijra/transgender persons. Many of them, however, do
eXperience violence and discrimination because of their seXual orientation or gender identity.
INDIA TO FOLLOW INTERNATIONAL CONVENTIONS
47. International Conventions and norms are significant for the purpose of interpretation of gender
equality. Article 1 of the Universal declaration on Human Rights, 1948, states that all human-beings
are born free and equal in dignity and rights. Article 3 of the Universal Declaration of Human Rights
states that everyone has a right to life, liberty and security of person. Article 6 of the International
Covenant on Civil and Political Rights, 1966 affirms that every human-being has the inherent right
to life, which right shall be protected by law and no one shall be arbitrarily deprived of his life.
Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant
on Civil and Political Rights provide that no one shall be subjected to torture or to cruel inhuman or
degrading treatment or punishment. United Nations Convention against Torture and Other Cruel
Inhuman and Degrading Treatment or Punishment (dated 24th January, 2008) specifically deals
with protection of individuals and groups made vulnerable by discrimination or marginalization.
Para 21 of the Convention states that States are obliged to protect from torture or ill-treatment all
persons regardless of seXual orientation or transgender identity and to prohibit, prevent and provide
redress for torture and ill-treatment in all contests of State custody or control. Article 12 of the
Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and
Political Rights state that no one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence.
48. Above-mentioned International Human Rights instruments which are being followed by various
countries in the world are aimed to protect the human rights of transgender people since it has been
noticed that transgenders/transse X uals often face serious human rights violations, such as
harassment in work place, hospitals, places of public conveniences, market places, theaters, railway
stations, bus stands, and so on.
49. Indian Law, on the whole, only recognizes the paradigm of binary genders of male and female,
based on a persons seX assigned by birth, which permits gender system, including the law relating to
marriage, adoption, inheritance, succession and taxation and welfare legislations. We have
eXhaustively referred to various articles contained in the Universal Declaration of Human Rights,
1948, the International Covenant on Economic, Social and Cultural Rights, 1966, the International
Covenant on Civil and Political Rights, 1966 as well as the Yogyakarta principles. Reference was also

made to legislations enacted in other countries dealing with rights of persons of transgender
community. Unfortunately we have no legislation in this country dealing with the rights of
transgender community. Due to the absence of suitable legislation protecting the rights of the
members of the transgender community, they are facing discrimination in various areas and hence
the necessity to follow the International Conventions to which India is a party and to give due
respect to other non-binding International Conventions and principles. Constitution makers could
not have envisaged that each and every human activity be guided, controlled, recognized or
safeguarded by laws made by the legislature. Article 21 has been incorporated to safeguard those
rights and a constitutional Court cannot be a mute spectator when those rights are violated, but is
eXpected to safeguard those rights knowing the pulse and feeling of that community, though a
minority, especially when their rights have gained universal recognition and acceptance.
50. Article 253 of the Constitution of India states that the Parliament has the power to make any law
for the whole or any part of the territory of India for implementing any treaty, agreement or
convention. Generally, therefore, a legislation is required for implementing the international
conventions, unlike the position in the United States of America where the rules of international law
are applied by the municipal courts on the theory of their implied adoption by the State, as a part of
its own municipal law. Article VI, Cl. (2) of the U.S. Constitution reads as follows:
..all treaties made, or which shall be made, under the authority of the united States,
shall be the supreme law of the land, and the judges in every State shall be bound
thereby, anything in the Constitution or laws of any State to the contrary
not-withstanding.
51. In the United States, however, it is open to the courts to supersede or modify international law in
its application or it may be controlled by the treaties entered into by the United States. But, till an
Act of Congress is passed, the Court is bound by the law of nations, which is part of the law of the
land. Such a supremacy clause is absent in our Constitution. Courts in India would apply the rules of
International law according to the principles of comity of Nations, unless they are overridden by
clear rules of domestic law. See: Gramophone Company of India Ltd. v. Birendra Bahadur Pandey
(1984) 2 SCC 534 and Tractor EXport v. Tarapore & Co. (1969) 3 SCC 562, Mirza Ali Akbar Kashani
v. United Arab Republic (1966) 1 SCR 391. In the case of Jolly George Varghese v. Bank of Cochin
(1980) 2 SCC 360, the Court applied the above principle in respect of the International Covenant on
Civil and Political Rights, 1966 as well as in connection with the Universal Declaration of Human
Rights. India has ratified the above mentioned covenants, hence, those covenants can be used by the
municipal courts as an aid to the Interpretation of Statutes by applying the Doctrine of
Harmonization. But, certainly, if the Indian law is not in conflict with the International covenants,
particularly pertaining to human rights, to which India is a party, the domestic court can apply those
principles in the Indian conditions. The Interpretation of International Conventions is governed by
Articles 31 and 32 of the Vienna Convention on the Law of Treaties of 1969.
52. Article 51 of the Directive Principles of State Policy, which falls under Part IV of the Indian
Constitution, reads as under:

Art. 51. The State shall endeavour to
a) promote international peace and security;
b) maintain just and honourable relations between nations;
c) Foster respect for international law and treaty obligation in the dealings of
organised peoples with one another; and
d) Encourage settlement of international disputes by arbitration.
53. Article 51, as already indicated, has to be read along with Article 253 of the Constitution. If the
parliament has made any legislation which is in conflict with the international law, then Indian
Courts are bound to give effect to the Indian Law, rather than the international law. However, in the
absence of a contrary legislation, municipal courts in India would respect the rules of international
law. In His Holiness Kesavananda Bharati Sripadavalvaru v. State of Kerala (1973) 4 SCC 225, it was
stated that in view of Article 51 of the Constitution, the Court must interpret language of the
Constitution, if not intractable, in the light of United Nations Charter and the solemn declaration
subscribed to it by India. In Apparel E Xport Promotion Council v. A. K. Chopra (1999) 1 SCC 759, it
was pointed out that domestic courts are under an obligation to give due regard to the international
conventions and norms for construing the domestic laws, more so, when there is no inconsistency
between them and there is a void in domestic law. Reference may also be made to the Judgments of
this Court in Githa Hariharan (Ms) and another v. Reserve Bank of India and another (1999) 2 SCC
228, R.D. Upadhyay v. State of Andhra Pradesh and others (2007) 15 SCC 337 and Peoples Union
for Civil Liberties v. Union of India and another (2005) 2 SCC 436. 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 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 e Xtremely
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 se X, 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 se Xual assault and harassment.
Discrimination on the ground of se Xual 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
56. Articles 15 and 16 prohibit discrimination against any citizen on certain enumerated grounds,
including the ground of seX. In fact, both the Articles prohibit all forms of gender bias and gender
based discrimination.
57. Article 15 states that the State shall not discriminate against any citizen, inter alia, on the ground
of seX, with regard to
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) 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.
The requirement of taking affirmative action for the advancement of any socially and educationally
backward classes of citizens is also provided in this Article.
58. Article 16 states that there shall be equality of opportunities for all the citizens in matters
relating to employment or appointment to any office under the State. Article 16 (2) of the
Constitution of India reads as follows :

16(2). No citizen shall, on grounds only of religion, race, caste, seX, descent, place of
birth, residence or any of them, be ineligible for, or discriminated against in respect
or, any employment or office under the State. Article 16 not only prohibits
discrimination on the ground of seX in public employment, but also imposes a duty
on the State to ensure that all citizens are treated equally in matters relating to
employment and appointment by the State.
59. Articles 15 and 16 sought to prohibit discrimination on the basis of se X, 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 se X 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 se X 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 se X of male or female, but
intended to include people who consider themselves to be neither male or female.
60. 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.
61. 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 e Xtended to them so that they can also live with
dignity and equal status with other genders.
ARTICLE 19(1)(a) AND TRANSGENDERS
62. Article 19(1) of the Constitution guarantees certain fundamental rights, subject to the power of
the State to impose restrictions from eXercise of those rights. The rights conferred by Article 19 are
not available to any person who is not a citizen of India. Article 19(1) guarantees those great basic
rights which are recognized and guaranteed as the natural rights inherent in the status of the citizen
of a free country. 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.
63. We may, in this connection, refer to few judgments of the US Supreme Courts on the rights of
TGs freedom of eXpression. The Supreme Court of the State of Illinois in the City of Chicago v.
Wilson et al., 75 III.2d 525(1978) struck down the municipal law prohibiting cross-dressing, and
held as follows -
the notion that the State can regulate ones personal appearance, unconfined by any
constitutional strictures whatsoever, is fundamentally inconsistent with values of
privacy, self-identity, autonomy and personal integrity that .. the Constitution was
designed to protect.
64. In Doe v. Yunits et al., 2000 WL33162199 (Mass. Super.), the Superior Court of Massachusetts,
upheld the right of a person to wear school dress that matches her gender identity as part of
protected speech and eXpression and observed as follows :-
by dressing in clothing and accessories traditionally associated with the female

gender, she is eXpressing her identification with the gender. In addition, plaintiffs
ability to eXpress herself and her gender identity through dress is important for her
health and wellbeing. Therefore, plaintiffs eXpression is not merely a personal
preference but a necessary symbol of her identity.
65. Principles referred to above clearly indicate that the freedom of e Xpression guaranteed under
Article 19(1)(a) includes the freedom to e Xpress 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 e Xpression 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 e X pressed by the transgenders behavior and
presentation. State cannot prohibit, restrict or interfere with a transgenders e Xpression 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
67. Article 21 of the Constitution of India reads as follows:

21. Protection of life and personal liberty No person shall be deprived of his life or
personal liberty eXcept according to procedure established by law. 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 e Xpressing oneself
in diverse forms, freely moving about and mi Xing 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.
69. Article 21, as already indicated, guarantees the protection of personal autonomy of an individual.
In Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 (paragraphs 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 e Xpress 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.
LEGAL RECOGNITION OF THIRD/TRANSGENDER IDENTITY
70. Self-identified gender can be either male or female or a third gender. Hijras are identified as
persons of third gender and are not identified either as male or female. Gender identity, as already
indicated, refers to a persons internal sense of being male, female or a transgender, for e Xample
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 homose Xuals 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 e Xistence 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 bound to provide them protection of life and property and secure
their dignity as well, as is done in case of other citizens.
73. We may remind ourselves of the historical presence of the third gender in this country as well as
in the neighbouring countries.
74. 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.
75. Articles 14, 15, 16, 19 and 21, above discussion, would indicate, do not e X clude
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 se X. 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 e Xample, 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.

76. Article 14 has used the eXpression person and the Article 15 has used the e Xpression 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 se Xual 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.
....J (K.S. Radhakrishnan) A.K. SIKRI,J.
78. 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.
79. 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?
80. 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.
81. 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 e Xercise 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 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 e Xperiences including but not limited to pre-
operative/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.
82. With these introductory remarks, I revert to the two facets of pivotal importance mentioned
above. Before embarking on the discussion, I may clarify that my endeavour would be not to repeat
the discussion contained in the judgment of my Brother Radhakrishnan, J., as I agree with every
word written therein. However, at times, if some of the observations are re-narrated, that would be
only with a view to bring continuity in the thought process.
(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 se X thereafter, i.e. either a
male or a female. However, as e Xplained 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 e Xactly the opposite wherein a person
born as female may behave like a male person.
83. 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 e Xtent 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 se X after
undergoing SeX Re-Assignment Surgery (SRS). Law and judgments given by the courts in other
countries have been eXhaustively and grandiloquently traversed by my learned Brother in his
judgment, discussing amongst others, the Yogyakarta principles, the relevant provisions of the
Universal Declaration of Human Rights 1948 and highlighting the statutory framework operating in
those countries.
84. 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.
85. 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.
86. The underlined message in the aforesaid documents is the acknowledgment that human rights
are individual and have a definite linkage of human development, both sharing common vision and
with a common purpose. Respect for human rights is the root for human development and
realization of full potential of each individual, which in turn leads to the augmentation of human
resources with progress of the nation. Empowerment of the people through human development is
the aim of human rights.
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 e Xist 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.
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 e Xample, 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 (e Xample, 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. In
concrete terms, it means embracing the notion of positive rights, affirmative action and
reasonable accommodation.
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. It is not necessary for me, keeping in view the topic of todays
discussion, to embark on detailed discussion on Chapter-III. 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 ha
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.
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.
93. Speaking for the vision of our founding fathers, in State of Karnataka v. Rangnatha Reddy (AIR
1978 SC 215), this Court speaking through Justice Krishna Iyer observed:
The social philosophy of the Constitution shapes creative judicial vision and
orientation. Our nation has, as its dynamic doctrine, economic democracy sans which
political democracy is chimerical. We say so because our Constitution, in Parts III
and IV and elsewhere, ensouls such a value system, and the debate in this case puts

precisely this soul in peril.Our thesis is that the dialectics of social justice should not
be missed if the synthesis of Parts III and Part IV is to influence State action and
court pronouncements. Constitutional problems cannot be studied in a
socio-economic vacuum, since socio- cultural changes are the source of the new
values, and sloughing off old legal thought is part of the process the new equity-
loaded legality. A judge is a social scientist in his role as constitutional invigilator and
fails functionally if he forgets this dimension in his compleX duties.
94. While interpreting Art. 21, this Court has comprehended such diverse aspects as children in jail
entitled to special treatment (Sheela Barse vs. Union of India [(1986)3 SCC 596], health hazard due
to pollution (Mehta M.C. v. Union of India [(1987) 4 SCC 463], beggars interest in housing (Kalidas
Vs. State of J&K [(1987) 3 SCC 430] health hazard from harmful drugs (Vincent Panikurlangara Vs.
Union of India AIR 1987 SC 990), right of speedy trial (Reghubir Singh Vs. State of Bihar, AIR 1987
SC 149), handcuffing of prisoners(Aeltemesh Rein Vs. Union of India, AIR 1988 SC 1768), delay in
eXecution of death sentence, immediate medical aid to injured persons(Parmanand Katara Vs.
Union of India, AIR 1989 SC 2039), starvation deaths(Kishen Vs. State of Orissa, AIR 1989 SC 677),
the right to know(Reliance Petrochemicals Ltd. Vs. Indian E Xpress Newspapers Bombay Pvt. Ltd.
AIR 1989 SC 190), right to open trial(Kehar Singh Vs. State (Delhi Admn.) AIR 1988 SC 1883),
inhuman conditions an after-care home(Vikram Deo Singh Tomar Vs. State of Bihar, AIR 1988 SC
1782).
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 e.g.
(a) Right to pollution-free water and air (Subhash Kumar Vs. State of Bihar, AIR 1991 SC 420).
(b) Right to a reasonable residence (Shantistar Builders Vs. Narayan Khimalal Totame AIR 1990 SC
630).
(c) Right to food (Supra note 14), clothing, decent environment (supra note 20) and even protection
of cultural heritage (Ram Sharan Autyanuprasi Vs. UOI, AIR 1989 SC 549) .
(d) Right of every child to a full development (Shantistar Builders Vs. Narayan Khimalal Totame
AIR 1990 SC 630).
(e) Right of residents of hilly-areas to access to roads(State of H.P. Vs. Umed Ram Sharma, AIR
1986 SC 847).
(f) Right to education (Mohini Jain Vs. State of Karnataka, AIR 1992 SC 1858), but not for a
professional degree (Unni Krishnan J.P. Vs. State of A.P., AIR 1993 SC 2178).
96. A corollary of this development is that while so long 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) .
97. 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.
98. 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.
99. 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.
100. More than 225 years ago, Immanuel Kant propounded the doctrine of free will, namely the free
willing individual as a natural law ideal. Without going into the detail analysis of his aforesaid
theory of justice (as we are not concerned with the analysis of his jurisprudence) what we want to

point out is his emphasis on the freedom of human volition. The concepts of volition and freedom
are pure, that is not drawn from eXperience. They are independent of any particular body of moral
or legal rules. They are presuppositions of all such rules, valid and necessary for all of them.
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 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. In
that united sense at least there is a revival of natural law theory of justice. Blackstone, in the opening
pages in his Vattelian Fashion said that the principal aim of society is to protect individuals in the
enjoyment of those absolute rights which were vested in them by the immutable laws of nature
102. 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 se X 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.
103. 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 se X 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. The psychiatric evaluation involved a serious a questions on

how Sunaina felt, when she got to know of her confusion and need for se X change, whether she is a
recluse, her socio-economic condition, among other things.
104. In the same article appearing in the Eye referred to above, the person who had undergone the
operation and became a complete girl, Sunaina (name changed) narrates the benefit which ensued
because of change in seX, in harmony with her emotional and psychological character, as is clear
from the following passage in that article:
Like many other single people in the city, she can spend hours watching Friends, and
reading thrillers and Harry Potter. A new happiness has taken seed in her and she
says it does not feel that she ever had a male body. I am a person who likes to laugh.
Till my surgery, behind every smile of mine, there was a struggle. Now its about time
that I laughed for real. I have never had a relationship in my life, because somewhere,
I always wanted to be treated as a girl. Now, that I am a woman, I am open to a new
life, new relationships. I dont have to hide anymore, I dont feel trapped anymore. I
love coding and my job. I love cooking. I am learning French and when my left foot
recovers fully, I plan to learn dancing. And, for the first time this year, I will vote with
my new name. I am looking forward to that, she says.
105. 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.
106. 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.
107. 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.
108. 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 e Xcept 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

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 e X pression). 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. Obviously transvestites, the hijra beg
from merchants who quickly, under threat of obscene abuse, respond to the silent demands of such
detested individuals. On occasion, especially festival days, they press their claims with boisterous
and ribald singing and dancing.( A Right to EXist: Eunuchs and the State in Nineteenth-Century
India Laurence W. Preston Modern Asian Studies, Vol.21,No.2 (1987), pp.371-
387).
109. 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.
110. 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 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.
111. 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-se X 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 E Xclusion, UNDP report on India Issue: December,
2010).
112. 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 se X
(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 se X 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.
113. 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.
114. 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 e Xpression,
Right to Education and Empowerment, Right against violence, Right against E Xploitation and Right
against Discrimination. Constitution has fulfilled its duty of providing rights to transgenders. Now
its time for us to recognize this and to e Xtend and interpret the Constitution in such a manner to
ensure a dignified life of transgender people. All this can be achieved if the beginning is made with
the recognition that TG as third gender.
115. 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, se X 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 se X 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.
116. 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. In addition to the powerful justification accomplished in the
accompanying opinion of my esteemed Brother, additional raison detre for this conclusion is stated
hereinafter.
117. We are in the age of democracy, that too substantive and liberal democracy. Such a democracy
is not based solely on the rule of people through their representatives namely formal democracy. It
also has other percepts like Rule of Law, human rights, independence of judiciary, separation of
powers etc.
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 conte Xt, 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.
120. In Dattatraya Govind Mahajan vs. State of Maharashtra (AIR 1977 SC
915) this Court observed:
Our Constitution is a tryst with destiny, preamble with luscent solemnity in the words
Justice social, economic and political. The three great branches of Government, as
creatures of the Constitution, must remember this promise in their fundamental role
and forget it at their peril, for to do so will be a betrayal of chose high values and
goals which this nation set for itself in its objective Resolution and whose elaborate
summation appears in Part IV of the Paramount Parchment. The history of our
countrys struggle for independence was the story of a battle between the forces of
socio-economic eXploitation and the masses of deprived people of varying degrees
and the Constitution sets the new sights of the nation..Once we grasp the dharma of
the Constitution, the new orientation of the karma of adjudication becomes clear.
Our founding fathers, aware of our social realities, forged our fighting faith and
integrating justice in its social, economic and political aspects. While contemplating
the meaning of the Articles of the Organic Law, the Supreme Court shall not disown
Social Justice.
121. Oliver Wendlle Holmes said: the life of law has been logical; it has been e Xperience. It may be
added that the life of law is not just logic or e Xperience. 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.
122. It is now very well recognized that the Constitution is a living character; its interpretation must
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.
123. 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.
124. 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.
125. 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.
126. 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.

127. 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. When Locke conceived of individual liberties,
the individuals he had in mind were independently rich males. Similarly, Kant thought of
economically self- sufficient males as the only possible citizens of a liberal democratic state. These
theories may not be relevant in todays conteXt as it is perceived that the bias of their perspective is
all too obvious to us. 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. The method of Reflective Equilibrium
was first introduced by Nelson Goodman in Fact, Fiction and Forecast (1955). However, 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 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.
128. 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)
129. 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 se Xual 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.
130. We are informed an EXpert Committee has already been constituted to make an in-depth study
of the problems faced by the Transgender community and suggest measures that can be taken by the
Government to ameliorate their problems and to submit its report with recommendations within
three months of its constitution. Let the recommendations be e X amined based on the legal
declaration made in this Judgment and implemented within siX months.
131. Writ Petitions are, accordingly, allowed, as above.
..J.
(K.S. Radhakrishnan) .J.
(A.K. Sikri) New Delhi, April 15, 2014.

Birma vs State on 17 March, 1950
Rajasthan High Court
Equivalent citations: AIR 1951 Raj 127
Author: Ranawat
Bench: Ranawat, Mehta
JUDGMENT Ranawat, J.
1. This appln. has been filed under Section 491, Criminal P. C., on behalf of Birma Nai who was
arrested on 7-1-1950, under orders of the Dist. Mag. Dholpur.
2. It is alleged on behalf of the petnr. that at the request of. the U. P. Govt. forwarding prima facie
evidence against him the Legal Remembrance of the Govt. of the United States of Matsya. ordered
the Dist. Mag., Dholpur to surrender him; to the Dist. Mag. Agra to stand his trial in a, case under
Section 395, Penal Code pending in his Court. The Dist. Mag. at first after having scrutinised the
prima fact evidence had declined to surrender Birma to the U. P. Govt., but when he received an
order from the Legal Remembrancer to the United States of Matsya be caused Birma to be arrested
on 9-1-1950, for being surrendered to the U. P. Govt.
3. It has been argued by the advocate of the petnr. that there is no law in force in the area of the
Dholpur State relating to the eXtradition of fugitive criminals. The Dist. Mag , Dholpur, had,.
therefore, no authority to order his arrest or surrender.
4. It is further alleged that there was a treaty entered into between the British Govt. & the authorities
of the Dholpur State regarding eXtradition of the fugitive criminals but it was not in corporate in any
law & that treaty cannot, therefore, be deemed to be law within the meaning: of Section 21, Const.
Ind.
5. The Govt. Advocate has conceded that there is no law in force in the area of the them Dholpur
State on the subject of the eXtradition of fugitive criminals, eXcept a treaty between the British Govt.
& the Dholpur State, He has argued that the provisions of the Treaty which was entered into
between the British Govt. & the Dholpur States should be regarded as having the force of law & the
arrest & detention of the petnr. should be. deemed legal under the provisions of that treaty.
6. The question therefore, arises whether a. treaty can be regarded as having the force of law &
whether in view of the provisions relating to the fundamenfal rights in the Const. Ind. the arrest &
detention of the petnr. can be considered legal.
7. In vol. 6 part v at paras 678 & 679 of the Halsbury's Laws of England, it is laid down as follows :
"678. Treaties.- Treaties or contracts between nation, & nation, which are also known under the
name of conventions, declarations, protocols, or general acts, are usually agreed upon by agents
appointed by the treaty making authority in either State, the English agents for such purposes being
appointed by the Crown.

Where plenipotentiaries, or agents invested with full &;. unlimited powers, are appointed, the terms
of the treaty as agreed upon by such agents are invariably (though not necessarily, it seems) reduced
into writing & signed & sealed by them, when the treaty becomes binding in general, though
subsequent ratification by the sovereign power is usual. Where the agents are acting under a limited
authority, the agreements come to are usually termed spensions, & must be either tacitly or
eXplicitly ratified by the sovereign power in the respective States.
The Great Seal of the United Kingdom is to be used for; sealing all treaties with foreign princes &
States.
679. Parliamentary Sanction to 'Treaties.- Treaties thus concluded are in general binding upon the
subject without eXpress parliamentary sanction; but the previous Consent of, or subsequent
ratification by, the legislature is legally necessary to their validity in certain cases.
Thus, though treaties relating to war & pence, the session of territory, or concluding alliances with
foreign powers are generally conceded to be binding upon the nation without e Xpress parliamentary
sanction, it is deemed safer to obtain such sanction in the case of an important session of territory.
And where taxation is imposed or a grant from the public funds rendered necessary, or where the
eXisting laws of trade & Gavigation are affected, or where the private rights of the subject are
interfered with by a treaty concluded in time of peace, it is apprehended that the previous or
subsequent consent of Parliament is in all cases required to render the treaty binding upon the
subject & enforceable by officers of the Crown. But where the treaty is made to pat an end to war, or,
possibly to prevent war, on public grounds & for the public safety, it is doubtful whether the
sanction of the Parliament would be always required. In all oases, however, the Cts. are competent
to inquire into matters involving the construction of treaties & other acts of state; & the plea of an
act of state, or that the matter Involves the construction of treaties affords no valid defence to an
action against officers of the Crown for interference with the private sights of a British subject
8. In the Parlement Belge, (1879) 4 P. D. 129, a question arose regarding validity of the treaty
involving interference with the private rights. The question in this case was whether the Crown had
power by treaty to confer upon in Belgian packet boats the status of ships of war when in British
ports .& thus render them immune from actions brought by a Brush subject. Sir E. Phillimore held
that the making of such a treaty was "a user of the treaty-making power of the Crown without
precedent, & in principle contrary to the laws of the constitution" (ibid., at p. 154).
The judgment in this case was subsequently have, by the Ct. of Appeal, but upon other grounds. In
Walker v. Baird, U892-A.O. 491:6l L. J. P. C. 92) an action was brought against an officer of the
Crown for acts of interference with the pltf's. lobster fishery, & the principle involved in the defence
was that the Crown could bind its subjects by treaty (at any rate when made to put an end to war or
to prevent war), that it is an offence by the common law to disobey the provisions of a public treaty
or modus vivendi of the kind in question & that acts of the eXecutive in enforcing obedience to such
a treaty do not give a cause of action (see ibid at p. 492). The P.C. did not give any decision as to the
powers of the Crown in such cases, but held that the deft's acts could not be justified on the ground
that they were done by the authority of the Crown for the purpose of enforcing obedience to a treaty

or agreement entered into by the Crown & a foreign power (ibid, at pp. 496, 497).
9. It would appear from the eXtracts quoted above that in England under common law a treaty
requires the sanction of the of the Parliament to make it enforceable by the officers of the Crown &
binding upon the nation in cases where it interferes with the private rights of a subject.
10. A similar question arose in the case of Mangilal v. Sarkar in the Ct. of the Final Appeal, udaipur,
regarding validity of an eXtradition treaty between the Stated of udaipur & Gwalior which was not
enacted into a law. The following eXtract from the judgment of the Ct. of Final Appeal is reproduced
below as it throws much light on the question involved in this case: A. treaty was entered into
between the Mewar State, & the Gwalior State relating to eXtradition in the year 1915.
Pursuant to the treaty, however, no eXtradition law appears to have been passed by Shriji though
eXecutive orders order to dist.. officers appear to have been passed on 3-2-1915. It is unfortunate
that in a matter like eXtradition there should have been no law eXp: eXpressly brought into force in
Mewar The law of eXtradition was stated by Lord Russel C. J. in Re; Arton (1896) 1 Q. B. (No. I), 108
: (65 L. J. M. C. 23) at p. 1112.
'The law of eXtradition is without doubt founded upon the broad principle that it is to the interest of
civilised communities that crimes, acknowledged to be such should not go unpunished & it is part of
the comity of nations that one State should afford to another every assistance towards bringing
persona guilty of such crimes to justice. But in the application of this principle in certain matters,
such as the conditions upon which, and the class of crimes in respect of which, e Xtradiction is to be
granted & the formalities to be observed upon an application for e Xtradition are primarily matters
for two political powers concerned to arrange in the first instance by treaty; having arranged them
by treaty, the neXt step is by legislative enactment to give them the form of law & to e Xpress. in an
Act of Parliament the conditions & the limitations imposed upon the grant of e Xtradition & the class
of crimes to which e X tradition is to apply. It is to the e Xpression of the legislature in Acts of
Parliament & to that alone that judicial tribunals can refer " per Lord Bushel C J. in Re.. Arton
(1896) 1 Q. B. 101, p. 111-2, (65 L. J. M. C.23).
Mere eXecution of treaty for eXtradition cannot by itself be treated as equivalent to enacting law
carrying it into effect. Treaties which are part of international law do not form part of the law of the
land unless eXpressly made so by the legislature. Oppenheim, International Law Vol. 1 p. 38. The
same is the position under the Govt. of India Act, 1935 'Implementing of treaties & e Xtradition, Sen.
VII, list I, item 3 are both matters for which there must be legislation before action can be taken.
The Mewar Govt. appears to have proceeded throughout on the basis that merely signing of the
treaty & issue of eXecutive orders to dist officials was sufficient to make its stipulations binding upon
its subjects, the Cts. & officials. But the official publication of a treaty by the Govt. under
international law will be sufficient only if the Municipal law of that State justified it. It appears that
the Mewar Govt. have been acting for many years on the footing that the treaty & the orders of Shriji
operate as Municipal law. Even, the treaty with the British Govt. made on 16-12-1868 & found in
Aitcheson's Treaties. Vol. III p. 36 does not appear to have been brought into operation by legislative
enactment. Under Article XXIV Clause 4 (1) of the Constitution all laws in force on the date of its

promulgation have been continued as such after its promulgation, but in our opinion a practice of
the kind aforesaid cannot be deemed to be a law which is continued by the Constitution."
11. It may be noted that the treaty between the British Govt. & the Dholpur State after it was signed
was not given the form of law by means of a legislative enactment. But it was being acted upon by
the Dholpur State authorities up to the time the State was merged into the United States of Matsya,
as if it was good law. Perhaps nobody may have questioned its legality. All laws that were in force in
the then Dholpur State & subsequently in the United States of Matsya continued to be the laws in
force in the area of the former Daolpur State, firstly under the provisions of the Ordinance NO. 1 of
the United States of Rajastban & subsequently by virtue of Section 372, Const. Ind. Treaties which
are part of the international law do not form part of the law of the land unless e Xpressly made so by
the legislative authority. In the present case the treaty remained a treaty only & no action was taken
to incorporate it into a law. That treaty cannot, therefore, be regarded as a part of the Municipal
law of the then Dholpur State, & the practice of surrendering fugitive criminals, which was being
followed by the former Dholpur State cannot be deemed to be a law that could be continued under
Section 872, Coast. Ind. S. 21, Const. Ind. lays down :
"that no person shall be deprived of his life or personal liberty e Xcept according to procedure
established by law."
When the eXtradition treaty of the Dholpur State is, as discussed above, held not to possess the force
of law the liberty of a citizen of India cannot be taken away under it. The detention of the petnr.
under the provisions of this treaty cannot, therefore, be held valid, because it cannot be said to be
according to procedure established by law.
12. The other argument of the learned counsel of the penr. might also be not without force that even
supposing that the eXtradition treaty was good law the detention of the petnr cannot be justified
under its terms, because under the terms of treaty only non. Dholpur State subjects could be
surrendered if they took shelter within the territories of the Dholpur State after having committed
an offence in the British territories, & there is no provision whatsoever in the tready of surrender Of
surrender of a Dholpur State subject. The petnr. was a subject of the Dholpur State & is now a
citizen of the State of Rajasthan. In view of the foregoing discussion of the legal position of the
treaty, it is not very necessary here to go into the interpretation of the terms of that treaty.
13. In conclusion it may be observed that the detention of the petnr. being not in accordance with
the procedure established by law an order under Section 491 to set him free should be made. This
petn. is accepted & it is ordered that Birma Nai be sat at liberty forthwith.
Mehta, J.
14. I agree.

State Of U.P vs Raj Narain & Ors on 24 January, 1975
Author: A Ray
Bench: Ray, A.N. (Cj), Mathew, Kuttyil Kurien, Alagiriswami, A., Sarkaria, Ranjit Singh, Untwalia,
N.L.
PETITIONER:
STATE OF U.P.
Vs.
RESPONDENT:
RAJ NARAIN & ORS.
BENCH:
RAY, A.N.
(CJ) BENCH:
RAY, A.N. (CJ)
MATHEW, KUTTYIL
KURIEN ALAGIRISWAMI,
A. SARKARIA, RANJIT
SINGH UNTWALIA, N.L.
CITATION:
1975 AIR 865 1975 SCR (3) 333
1975 SCC (4)
428 CITATOR INFO
:MV 1982 SC 149 (452,454,1184)
RF 1988 SC 782 (43,44)
RF 1989 SC 144 (4,5)
ACT:
Indian Evidence Act, ss. 123 and 162--Scope of.
HEADNOTE:
Section 123 of the Evidence Act states that no one shall
be permitted to give any evidence derived from unpublished
official records relating to any affair of State except
with the permission of the Officer at the Head of the
Department concerned who shall give or withhold such
permission as he thinks fit. Section 162 provides that
when a witness brings to Court a document in pursuance, of
summons and then raises an objection to its production or
admissibility the Court has to determine the validity of
the objection to the production or admissibility and for
so doing the Court can inspect the document except in the
cage of a document relating to the affairs of State or
take such other evidence

as may be necessary to determine its admissibility.
In connection with his election petition the respondent
made an application before the High Court for summoning
the Secretary, General Administration and Chief Secretary
of the State Government and the head clerk of the office
of the Superintendent of Police of the District for the
production of the Blue Book entitled "rules and
instructions for the protection of the Prime Minister when
on tour or in. travel", and certain other correspondence
exchanged between the Government of India and the State
Government in that connection. The Home Secretary deputed
one of his officers to go to the court alongwith the
documents but with clear instructions that he should claim
privilege in respect of those documents under s. 123 of
Evidence Act. No affidavit of the Minister concerned or
the Head of the Department was, however, filed, at that
time. In the course of examination the witness claimed
privilege in respect of the documents. The election
petitioner thereupon contended that the Head of the
Department had not filed an affidavit claiming privilege
and that the documents did not relate to the affairs of
the State. The documents in respect of which privilege was
claimed were seated and kept in the custody of the Court.
When the matter came up for hearing, however, the Home
Secretary to the State Government, filed an affidavit
claiming privilege for the documents. In respect of the
documents summoned from the office of the Superintendent
of Police an affidavit claiming privilege under s. 123 of
the Evidence Act was filed by the Superintendent of
Police.
The High Court held that (i) under s. 123 of the Evidence
Act the Minister or the, Head of the Department concerned
must file an affidavit in the first instance and since no
such affidavit had been filed in the first instance the
privilege was lost and the affidavit filed later claiming
privilege was of no avail, (ii) that it would decide the
question of privilege only when permission to produce a
document had been withheld under s. 123; (iii) that the
Blue Book in respect of which privilege was claimed was
not an unpublished official record relating to the affairs
of the State because the Union Government had referred to
a portion of it in one of its affidavits and a member of
Parliament had referred to a particular rule of the Blue
Book in Parliament; (iv) that no reasons were given why
the disclosure of the documents would be against public
interest; and (v) that it had power to inspect the
documents in respect of which privilege was claimed.
Allowing the appeal to this Court, (per A. N. Ray, C.J.,
A. Alagiriswami, R..S. Sarkaria and N. L. Untwalia, JJ) :
HELD : The foundation of the law behind ss. 123 and 162 of
the Evidence Act is the same as in English Law. It is that
injury to public interest is the reason for the exclusion
from disclosure of documents whose contents, if disclosed,
would injure public and national interest. Public interest

which demands that evidence be

23SC/75
334
withheld is to be weighed against the public interest in
the administration of justice that courts should have the
fullest possible access to all relevant materials. When
public interest outweighs the latter, the evidence cannot
be admitted. The Court will proprio motu exclude
evidence, the production of which is contrary to public
interest. It is in public interest that confidentiality
shall be safeguarded. Confidentiality is not a head of
privilege. it is not that the contents contain material
which it would be damaging to the national interest to
divulge but rather that the documents would be of a class
which demand protection. [348E-H]
Evidence is admissible and should be received by the Court
to which it is tendered unless there is a legal reason for
its rejection. Admissibility presupposes relevancy.
Admissibility also denotes the absence of any applicable
rule of exclusion. Facts should not be received in
evidence unless they are both relevant and admissible.
The principal rules of exclusion under which evidence
becomes inadmissible are two fold : (1) Evidence of
relevant facts is inadmissible when its reception offends
against public policy or a particular rule of law. A party
is sometimes estopped from proving facts and these facts
are therefore inadmissible; (2) Relevant facts are,
subject to recognised exceptions, inadmissible unless they
are proved by the best or the prescribed evidence.
Secrets of State. State papers, confidential official
documents and communications between the Government and
its officers or between such officers are privileged from
production on the ground of public policy or as being
detrimental to the public interest or service. [343H;
344A-C]
Conway v. Rimmer & Anr. [1968] 1 A.E.R. 874 & [1968] A.C.
910; Duncan v. Cammell Laird & Co. [1942] A.C. 642and
Rogers
v. Home Secretary [1973] A.C. 388, referred to.
(1) It is now the well settled practice in our country
that an objection is raised by an affidavit affirmed by
the Head of the Department. The Court may also require a
Minister to affirm an affidavit. Where no affidavit was
filed, an affidavit could be directed to be filed later
on. [349B]
(2) It is for the Court to decide whether the affidavit
is clear in regard to objection about the nature of
documents. The Court can direct further affidavit in that
behalf. If
the Court is satisfied with the affidavits, the Court
will refuse disclosure. If the Court, in spite of the
affidavit, wishes to inspect the document the Court may do
so. [349E] Grosvenor Hotel, London [1963] 3 A.E.R. 426,
referred to.
(3) In the present case it cannot be said that the Blue

Book is a published document. Any publication of parts of
the Blue Book which may be described as an innocuous part
of the document will not render the entire document a
published document. [349H]

(4) In the instant case it is apparent that the affidavit
affirmed by the Chief Secretary is an affidavit objecting
to the production of the documents. The oral evidence of
the witness as well as the aforesaid affidavit shows that
objection was taken at the first instance. [349D]
(5) If the Court is satisfied with the affidavit evidence
that the document should be protected in public interest
from production the matter ends there. If the Court would
yet like to satisfy itself, the Court may see the
document. Objection as to production as well as
admissibility contemplated in s. 162 of the Evidence Act
is decided by the Court in the enquiry. [349B-C]
State of Punjab v. Sodhi Sukhdev Singh [1961] 2 S.C.R.
371, followed.
Per Mathew, J. (Concurring) :
1(a) The foundation of the so called privilege is that the
information cannot be disclosed without injury to public
interest and not that the document is confidential or
official, which alone is no reason for its non-production.
[353C-D]
Asiatic Petroleum Company Ltd. v. Anglo Persian Oil Co.
[1916] 1 K.B. 822 at 830; Conway v. Rimmer [1968] 1
All,
E.R. 874 at 899 and Duncan v. Cammell Lavid & Co. [1942]
A.C. 624, referred
to. 335
(b) A privilege normally belongs to the parties and can be
waived. But where a fact is excluded from evidence by
considerations of public policy, there is no power to
waive in the parties. [353F-G]
Murlidhar Agarwal v. State of U.P. [1974] 2 S.C.C. 472 at
483, referred to.
In the instant case the mere fact that the witness brought
the documents to Court in pursuance to the summons and did
not file a proper affidavit would not mean that the right
to object to any evidence derived from an unpublished
official record relating to affairs of State had been for
ever waived and as no affidavit had been filed it might be
that a legitimate inference could be made that the
Minister or the Head of the Department concerned
permitted the production of the document or evidence being
given derived from it, if there was no other circumstance.
If the statement made by the witness that the document was
a secret one and that he had no been permitted by the Head
of the Department to produce it, was not really an
objection to the production of the document which could be
taken cognizance of by the Court under s. 162 of the
Evidence Act, it was an intimation to the Court that the
Head of the Department had not permitted the production
of the document in Court or evidence derived from it
being given. Whatever else the statement might indicate,
it does not indicate that the Head of the Department had
permitted the production or disclosure of the document.
[355D-F]

(2) Section 123 enjoins upon the Court the duty to see that

no one is permitted to give any evidence derived from
unpublished official records relating to affairs of State
unless permitted by the officer at the Head of the
Department. The Court therefore, had a duty not to permit
evidence derived from a secret document being given.
Before the arguments were finally concluded and before the
Court decided the question the Head of the Department
filed an affidavit objecting to the production of the
document and stating that the document in question related
to secret affairs of State, and the Court-should have
considered the validity of that objection under s. 162 of
the Evidence Act. [355G-A; 356A-B]
Crompton Ltd. v. Custom & Excise Commrs. [1972] 2 Q.B. 102
at 134 and Conway v. Rimmar & Anr. [1968] A.C. 910,
referred to.
(3) There is no substance in the argument that since the
Blue Book had been published in parts, it must be deemed
to have been published as a whole, and, therefore, the
document could not be regarded as an unpublished official
record relating to affairs of, State. If some parts of the
document which are innocuous have been published, it does
not follow that the whole document has been published.
Since the High Court did not inspect the Blue Book, the
statement by the Court that the materials contained in the
file produced by the Superintendent of Police were taken
from the Blue Book was not warranted. [362B-C; E]
(4) The mere label given to a document by the executive
is not conclusive in respect of the question whether it
relates to affairs of State or not. If the disclosure of
the contents of the document would not damage public
interest the executive cannot label it in such a manner as
to bring it within the class of documents which are
normally entitled to protection. [362E-F]
5(a) It is difficult to see how the Court can find,
without conducting an enquiry as regards the possible
effect of the disclosure of the document upon public
interest, that a document is one relating to affairs of
State as, ex hypothesis, a document can relate to affairs
of State only if its disclosure will injure public
interest. But in cases where the documents do not belong
to the noxious class and yet their disclosure would be
injurious to public interest, the inquiry to be conducted
under s. 162 is an enquiry into the validity of the
objection that the document is an unpublished official
record relating to affairs of State and. therefore,
permission to give evidence derived from it is declined.
[357H; 358A-B]
(b) Section 162 visualises an inquiry into that objection
and empowers the Court to take evidence for deciding
whether the objection is valid. The Court, therefore, has
to consider two things : (i) whether the document relates
to secret affairs of State; and (ii) whether the refusal
to permit evidence derived from it being given was in the
public interest. [358C]

336
(c) Even though the Head of the Department refused to
grant permission, it was open to the Court to go into the
question after examining the document and find out
whether, the disclosure of the document would be injurious
to public interest and the expression "as be thinks fit"
in the latter part of s. 123 need not deter the Court from
deciding the question afresh as s. 162 authorities the
Court to determine the validity of the objection finally.
[358F]
State of Punjab v. Sodhi Sukhdev Singh [1961] 2 S.C.R.
371, followed.
(d) When a question of national security is involved the
Court may not be the proper forum to weigh the matter and
that is the reason why a Minister's certificate is taken
as conclusive. As the executive is solely responsible for
national security, including foreign relations, no other
organ could judge so well of such matters. Therefore,
documents in relation to these matters might fall into a
class which per se might require protection. [359B-C]
(e) But the executive is not the organ solely responsible
for public interest. There are other elements. One such
element is the administration of justice. The claim of the
executive to exclude evidence is more likely to operate to
subserve a partial interest, viewed exclusively from a
narrow departmental angle. It is impossible for it to see
or give equal weight to another matter, namely, that
justice should be done and seen to be done. When there are
more aspects of public interest to be considered the Court
will, with reference to the pending litigation, be in a
better position to decide where the weight of public
interest predominates. It seems reasonable to assume that
a Court is better qualified than the Minister to measure
the importance of the public interest in the case before
it. Once considerations of national security are left
out. there are few matters of _public interest which
cannot safely be discussed in public. [139C-D; F-G]
Arguments for the Appellant
The principle behind s. 123 is the overriding and paramount
character of public interest and injury to public interest
is the sole foundation of the section. In cases where the
document in question obviously relates to affairs of State
it is the duty of the Court to prevent the production and
admission of the document in evidence suo motu to safeguard
public interest Matters of State referred to in the second
clause of s. 162 are identical with affairs of State
mentioned in s. 123. An objection against the production of
document should be raised in the form of an affidavit by the
Minister or the Secretary. When an affidavit was made by
the Secretary, the Court may, in a proper case, require the
affidavit of the Minister. If the affidavit is found
unsatisfactory a further affidavit may be called, and in a
proper case the person making the affidavit should be
summoned to face an examination to the relevant point. Here

too this Court did not consider that any party can raise
the objection and it is the duty of the Court to act suo
moru in cases where the documents in question obviously
relate to affairs of State. Therefore, the Court cannot
hold an inquiry into the possible injury to public
interest. That is a matter for the authority to decide.
But the Court is bound to hold a preliminary enquiry and
determine the validity of the objections which necessarily
involves an inquiry into the question as to whether the
evidence relates to an affair of State under s. 123. In
this inquiry the Court has to determine the character and
class of the document. The provisions of s. 162 make a
departure from English law in one material particular and
that is the authority given to the Court to hold a
preliminary enquiry into the character of the document.
Under s. 162 of the Evidence Act the Court has the
overriding power to disallow a claim of privilege raised
by the State in respect of an unpublished document
pertaining to matters of State, but in its discretion the
Court will exercise its power only in exceptional
circumstances when public interest demands, that is, when
the public interest served by the disclosure clearly
outweighs that served by the nondisclosure. In this case
the Chief Secretary filed an affidavit whereas the
Minister would have done it. This claim of privilege is
not rejected on account of this procedural defect.
Arguments for the Respondent
in the present case the affidavit was not filed at the
relevant time, nor is it clear that the Secretary or the
Minister of the Department concerned ever applied their
mind at the relevant time. The Supreme Court in Sukhdeo
Singh's case held that
337
the objection to the production or admissibility of
document of which privilege is claimed, should be taken by
himself by means of an affidavit. Section 162 of the
Evidence Act indicates that the objection should be filed
on the date which is fixed for the production of document
so that the Court may decide the validity of such
objection. Such objection must be by, means of an
affidavit. In A mar Chand Butail v. Union of India the
Supreme Court held that as the affidavit was not filed,
no privilege could be claimed. This Court also looked to
the document and on merits it was held that the document
was not such document whose, disclosure was not in the
public interest. On that ground also, the claim for
privilege was disallowed. In the present case the question
does not arise as the summons was issued to the Head of
the Department who was asked to appear in person or
through some other officer authorised by him for the
purpose of giving-evidence and for producing documents.
The Head of the Department was, therefore, under
obligation to comply with the summons of the Court and to
file his affidavit if he wanted to claim privilege. The

High Court was right in drawing inference from non-filing
of

the affidavit of the. Head of the Department that no
privilege was claimed. The Court has a right to look to
the document itself and take a decision as to whether the
document concerned was such which at all related to any
affairs of the State. The Court has the power of having a
judicial review over the opinion of the Head of the
Department.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1596 of 1974.
Appeal by Special Leave from the Judgment and Order dated the 20th March, 1974 of the Allahabad
High Court in Election Petition No. 5 of 1971.
Niren De, Attorney General of India, B. D. Agarwala, and 0. P. Rana, for the appellant.
Shanti Bhushan and J. P. Goyal, for respondent no. 1. Yogeshwar Prasad, S. K. Bagga and S. P.
Bagga for respondent no. 2.
The Judgment of A. N. Ray, C.J., A. Alagiriswami, R. S. Sarkaria and N. L. Untwalia, JJ, was
delivered by A. N. Ray, C.J. K. K. Mathew, J. gave his separate Opinion. RAY, C.J.-This is an appeal
by special leave from the judgment dated 20 March, 1974 of the learned Single Judge of the High
Court at Allahabad, holding that no privilege can be claimed by the Government of Uttar Pradesh
under section 123 of the Evidence Act in respect of what is described for the sake of brevity to be the
Blue Book summoned from the Government of Uttar Pradesh and certain documents summoned
from the Superintendent of Police, Rae Bareli, Uttar Pradesh.
Shri Raj Narain, the petitioner in Eelection Petition No. 5 of 1971. in the High Court of Allahabad,
made an application on 27 July, 1973 for summoning certain witnesses along with documents
mentioned in the application. The summons was inter alia for the following witnesses along with
following documents First the Secretary, General Administration, State of Uttar Pradesh Lucknow
or any officer authorised by him was summoned to produce inter alia (a) circulars received from the
Home Ministry and the Defence Ministry of the Union Government regarding the security and tour
arrangements of Shrimati Indira Nehru Gandhi, 'the respondent in Election Petition for the tour
programmes of Rae Bareli District on 1, 24 and 25 February., 1971 or any general order for security
arrangement; and (b) All correspondence between the State Government and the Government of
India and between the Chief Minister and the Prime Minister regarding Police arrangement for
meeting of the Prime Minister by State Government and in regard to their eXpenses.
(a) Second, the Chief Secretary,: Government of Uttar Pradesh, Lucknow was also summoned along
with inter alia the documents, namely, circulars received from the Home Ministry and Defence
Ministry of the Union Government regarding the security and tour arrangements of Shrimati Indira
Nehru Gandhi for the tour programmes of Rae Bareli District for 1, 24 and 25 February, 1971; (b) All

correspondence between the State Government and the Government of India and between the Chief
Minister and the Prime Minister, regarding the arrangement of Police for the arrangement of
meeting for the Prime Minister by State Government and in regard to their eXpenses.
Third, the Head Clerk of the office of the Superintendent of Police of District Rae Bareli was
summoned along with inter alia the following (a) all documents relating to the tour program of
Shkimati Indira Nehru Gandhi of District Rae Bareli for 1 and 25 February, 1971; (b) all the
documents relating to arrangement of Police and other security measures adopted by the Police and
all documents relating to eXpenses incurred on the Police personnel, arrangements of the Police,
arrangements for constructions of Rostrum, fiXation of loudspeakers and other arrangements
through Superintendent of Police, District Rae Bareli. On 3 September, 1973 the summons was
issued to the Secretary, General Administration. The summons was endorsed to the Confidential
Department by the General Department on 3 September, 1973 as will appear from paragraph 5 of
the affidavit of R. K. Kaul, Commissioner and Secretary in- charge. On 5 September, 1973 there was
an application by the Chief Standing Counsel on behalf of the Chief Secretary, Uttar Pradesh,
Lucknow for clarification to the effect that the Chief Secretary is not personally required to appear
pursuant to the summons. The learned Judge made an order on that day that the Chief Secretary
need not personally attend and that the papers might be sent through some officer. On 6 September,
1973 S. S. Saxena, Under Secretary, Confidential Department, was deputed by R. K. Kaul, Home
Secretary as well as Secretary, Confidential Department, to go to the High Court with the documents
summoned and to claim privilege. This will appear from the application of S. S. Saxena dated 19
September, 1973.
In paragraph 4 of the said application it is stated that in compliance with the summons issued by the
High Court the Home Secretary deputed the applicant Saxena to go to the Court with the documents
summoned with clear instructions that privilege is to be claimed under section 123 of the Evidence
Act in regard to the documents, namely, the Booklet issued by the Government of India containing
Rules and Instructions for the protection of the Prune Minister when on tour and in travel, and the
correspondence eXchanged between the two Governments and between the Chief Minister, U.P. and
the Prime Minister in regard to the Police arrangements for the meetings of the Prime Minister.
Saxena was eXamined by the High Court on 10 September, 1973. On 10 September, 1973 there was
an application on behalf of the Election Petitioner that the claim of privilege by Saxena evidence be
rejected. In the application it is stated that during the course of his statement Saxena admitted that
certain instructions were. issued by the Central Government for the arrangement of Prime
Minister's tour which are secret and hence he is not in a position to file those documents. The
witness claimed privilege in respect of that document. It is stated by the election petitioner that no
affidavit claiming privilege has been filed by the Head of the Department and that the documents do
not relate to the affairs of the State.
On 11 September, 1973 there was an order as follows. The application of the election petitioner for
rejection of the claim for privilege be put up for disposal. The arguments might take some time and
therefore the papers should be left by Saxena in a sealed cover in the Court. In case the objection
would be sustained, the witness Saxena. would be informed to take back the sealed cover.

On 12 September, 1973 an application was filed by Ram Sewak Lal Sinha on an affidavit that the
Superintendent of Police. Rae Bareli claimed privilege under-section 123 of the Evidence-Act. The
witness was discharged. On behalf of the election petitioner it was said that an objection would be
filed to make a request that the Superintendent of Police, Rae Bareli be produced before the Court
for cross eXami- nation. The election petitioner filed the objection to the affidavit claiming privilege
by the Superintendent of Police, Rae Bareli.
On 13 September, 1973 the learned Judge ordered that arguments on the question of privilege would
be heard on 19 September, 1973. S. S. Saxena filed an application supported by an affidavit of R. K.
Kaul. The deponent R. K. Kaul in his affidavit affirmed on 19 September,1973 stated that the
documents summoned are unpublished official records relating to affairs of the State and their
disclosure will be prejudicial to public interest for the reasons set out therein. The secrecy of security
arrangement was one of the reasons mentioned. Another reason was that arrangements of the
security of the Prime Minister, the maintenance of public order and law and order on the occasion of
the visits of the Prime Minister are essentially in nature such that to make them public would
frustrate the object intended to be served by these Rules and Instructions.
On 20 September 1973 the case was listed for arguments for deciding preliminary issues and on the
question of privilege. on 20 September, 1973 an objection was made that the Chief Standing Counsel
had no locus standi to file an objection claiming privilege. on 21 September, 1973 the arguments in
the matter of privilege were heard. On 24 September, 1973 further arguments on the question of
privilege were adjourned until 29 October, 1973. 23 October, 1973 was holiday. On 30 October, 1973
arguments were not concluded. On 30 October, 1973 the Advocate General appeared and made a
statement regarding the Blue Book to the effect that the witness Saxena was authorised by the Head
of the Department R. K. Kaul, Home Secretary to bring the Blue Book to the Court and the
documents summoned by the Court and the Head of the Department did not permit Saxena to file
the same. The witness was permitted to show to the Court if the Court so needed. Further arguments
on the question of privilege were heard on 12, 13 and 14 days of March, 1974 The judgment was
delivered on 20 March, 1974. The learned Judge on 20 March, 1974 made an order as follows "No
privilege can be claimed in respect of three sets of paper allowed to be produced. The three sets of
papers are as follows. The first set consists of the Blue Book, viz., the circulars regarding the security
arrangements of the tour programme of Shrimati Indira Nehru Gandhi and instructions received
from the Government of India and the Prime Minister's Secretariat on the basis of which Police
arrangement for constructions of Rostrum, fi Xation of loudspeakers and other arrangements were
made, and the correspondence between the State Government & the Government of India regarding
the police arrangements for the meetings of the Prime Minister. The second set also relates to
circulars regarding security and tour arrangements of Shrimati Indira Nehru Gandhi for the tour
programme of Rae Bareli and correspondence regarding the arrangement of police for the meetings
of the Prime Minister. The third set summoned from the Head Clerk of the Office of the
Superintendent of Police relates to the same." The learned Judge e Xpressed the following view.
Under section 123 of the Evidence Act the Minister or the head of the department concerned must
file an affidavit at the first instance. No such affidavit was filed at the first instance. The Court
cannot eXercise duty under section 123 of the Evidence Act suo motu. The court can function only
after a privilege has been claimed by affidavit. It is only when permission has been withheld under

section 123 of the Evidence Act that the Court will decide. Saxena in his evidence did not claim
privilege even after the Law Department noted in the file that privilege should be claimed Saxena
was allowed to bring the Blue Book without being sealed in a cover. The head of the department
should have sent the Blue Book under sealed cover along with an application and an affidavit to the
effect that privilege was being claimed. No privilege was claimed at the first instance.
The learned Judge further held as follows. The Blue Book is not an unpublished official record
within the meaning of section 123 of the Evidence Act because Rule 71(6) of the Blue Book was
quoted by a Member of Parliament. The Minister did not object or deny they correctness of 'the
quotation. Rule 71(6) of the Blue Book has been filed in the election petition by the respondent to
the election petition EXtracts of Rule 71(6) of the Blue Book were filed by the Union Government in
a writ proceeding. If a portion of the Blue Book had been disclosed, it was not an unpublished
official record. The respondent to the election petition hid no right to file even a portion of the Blue
Book in support of her defence. When a portion of the Blue Book had been used by her in her
defence it cannot be said that the Blue Book had not been admitted in evidence. Unless the Blue
Book is shown to the election petitioner he cannot show the correctness or otherwise of the said
portion of the Blue Book and cannot effectively cross-eXamine the witnesses or respondent to the
election petition. Even if it be assumed that the Blue Book has not been admitted in evidence and
Kaul's affidavit could be taken into consideration, the Blue Book is not an unpublished official
record.
With regard to documents summoned from the Superintendent of Police the High Court said that
because these owe their eXistence to the Blue Book which is not a privileged document and the
Superintendent of Police did not give any reason why the disclosure of the documents would be
against public interest, the documents summoned from the Superintendent of Police cannot be
privilege documents either.
The High Court further said that in view of the decisions. of this Court in State of Punjab v. Sodhi
Sukhdev Singh(1); Amar Chand Butail v. Union of India(2) and the English decision in Conway v.
Rimmer & Anr. (3) the Court has. power to inspect the document regarding which privilege is
claimed. But because the Blue Book is not an unpublished official record, there is no necessity to
inspect the Blue Book.
The English decisions in Duncan v. Cammell Laird & Co.(4); Conway v. Rimmer & Anr. (supra); and
Rogers v. Home Secretary(5) surveyed the earlier law on the rule of e Xclusion of documents from
production on the ground of public policy or as being detrimental to the public interest or service. In
the Cammell Laired case (supra) the respondent objected to produce certain documents referred to
in the Treasury Solicitors letter directing the respondent not to produce the documents. It was
stated that if the letter was not accepted as sufficient to found a claim, for privilege the First Lord of
Admirality would make an affidavit. He did swear an affidavit. On summons for inspection of the
documents it was held that it is not uncommon in modern practice for the Minister's objection to be
conveyed to the Court at any rate in the first instance by an official of the department who produces
a certificate which the Minister has signed stating what is necessary. If the Court is not satisfied by
this method the Court cart request the Minister's personal attendance. (1) (1961] 2 S.C.R. 371. (2)
A.I.R. 1964 S.C.,1658. (3) [1968] 1 A.E.R- 874 : [1968] A C 910.

(5) [1973] AC 388.
(4) [1942] A C- 642.
Grosvenor Hotel, London(1) group of cases turned on an order for mutual discovery of documents
and an affidavit of the respondent, the British Railway Board, objecting to produce certain
documents. The applicant challenged that the objection of the respondent to produce the document
was not properly made. The applicant asked for leave to cross- e Xamine the Minister. The Minister
was ordered to swear a further affidavit. That order of the learned-Chamber Judge was challenged in
appeal. The Court of Appeal refused to interfere with the discretion eXercised by the Chamber
Judge. The Minister filed a further affidavit. That affidavit was again challenged before the learned
Chamber Judge as not being in compliance with, the order. It was, held that the affidavit was in
compliance with the order. The learned Judge held that Crown privilege is not merely a procedural
matter and it may be enforced by the courts in the interest of the State without the intervention of
the eXecutive, though normally the eXecutive claims it. The matter was taken up to the Court of
Appeal, which held the order of the Chamber Judge. It was observed that the nature of prejudice to
the public interest should be specified in the Minister's affidavit eXcept in case where the prejudice is
so obvious that it would be unnecessary to state it. in the Cammell Laird case (supra) the House of
Lords said that documents are eXcluded from production if the public interest requires that they
should be withheld. Two tests were propounded for such eXclusion. The first is in regard to the
contents of the particular document. The second is the fact that the document belongs to a class
which on grounds of public interest must as a class be withheld from production. This statement of
law in the Cammell Laird case (supra) was e Xamined in Conway v. Rimmer & Anr. In Conway v.
Rimmer & Anr. (supra) it was held that although an objection validly taken to production on the
ground that this would be injurious to the public interest is conclusive it is important to remember
that the decision ruling out such document is the decision of the Judge. The reference to 'class'
documents in the Cammell Laird case (supra) was said in Conway v. Rimmer & Anr. (supra) to be,
obiter. The Minister's claim of privilege in the Cammell Laird case (supra) was at a time of total war
when the slightest escape to the public of the most innocent details of the latest design of submarine
founders might be a source of danger to the State.
In Conway v. Rimmer & Anr. (supra) the test propounded in Asiatic Petroleum Co. Ltd. v. Anglo
Persian Oil Co. Ltd.(2) was adopted that the information cannot be disclosed without injury to the
public interest and- not that the documents are confidential or official. With regard to particular
class of documents for which privilege was claimed it was said that the Court would weigh in the
balance on the one side the public interest to be protected and on the other the interest of the
subject who wanted production of some (1) (1963) 3 A E R 426: (1964) 1 A E R 92 :(1964) 2 A E R
674 and (1964) 3 A E R 354.
(2) [1916] 1 K B 830.
documents which he believed would support his own or defeat his adversary's case. Both were said
in Conway v. Rimmer & Anr. case (supra) to be matters of public interest. In this background it was
held in Conway v. Rimmer & Anr. (supra) that a claim made by a Minister on the basis that the

disclosure of the contents would be prejudicial to the public interest must receive the greatest
weight; but even here the Minister should go as far as he properly can without prejudicing the public
interest in saying why the contents require protection. In Conway v. Rimmer & Anr. (supra) it was
said "in such cases it would be rare indeed for the court to overrule the Minister but it has the legal
power to do so, first inspecting the document itself and then ordering its production". As to the
"class" cases it was said in Conway v. Rimmer & Anr. (supra) that some documents by their Very
nature fall into a class which requires protection. These are Cabinet papers, Foreign Office
dispatches, the security of the State, high level interdepartmental minutes and correspondence and
documents pertaining to the general administration of the naval, military and air force services.
Such documents would be the subject of privilege by reason of their contents and also by their
'class'. No catalog can be compiled for the 'class' cases. The reason is that it would be wrong and
inimical to the functioning of the public service if the public were to learn of these high level
communications, however innocent of prejudice to the State the actual comments of any particular
document might be,. In Rogers v. Homer Secretary (supra) witnesses were summoned to give
evidence and to produce certain documents. The Home Secretary gave a certificate objecting to the
production of documents. There was an application for certiorari to quash the summons issued to
the witnesses. On behalf of the Home Secretary it was argued that the Court could of its own motion
stop evidence being given for documents to be produced. The Court said that the real question was
whether the public interest would require that the documents should not be produced. The Minister
is an appropriate person to assert public interest. The public interest which demands that the
evidence be withheld has to be weighed against the public interest in the administration of justice
that courts should have the fullest possible access to all relevant material. Once the public interest is
found to demand that the evidence should be withheld then the evidence cannot be admitted. In
proper cases the Court will eXclude evidence the production of which, it sees is contrary to public
interest. In short, the position in law in an--' is that it is ultimately for the court to decide whether or
not it is in the public interest that the document should be disclosed. An affidavit is necessary.
Courts have some times held certain class of documents and information to be entitled in the public
interest to be immune from disclosure.
Evidence is admissible and should be received by the Court to which it is tendered unless there is a
legal reason for its rejection. Admissibility presupposes relevancy. Admissibility also denotes the
absence of any applicable rule of eXclusion. Facts should not be received in evidence unless they are
both relevant and admissible.
The principal rules of eXclusion under which evidence becomes inadmissible are two-fold. First,
evidence of relevant facts is inadmissible when its reception offends against public policy or a
particular rule of law. Some matters are privileged from disclosure. A party is sometimes estopped
from proving facts and these facts are therefore inadmissible. The e Xclusion of evidence of opinion
and of eXtrinsic evidence of the contents of some documents is again a rule of law. Second, relevant
facts are, subject to recognised eXceptions inadmissible unless they are proved by the best or the
prescribed evidence. A witness, though competent generally to give evidence, may in certain cases
claim privilege as a ground for refusing to disclose matter which is relevant to the issue. Secrets of
state, papers, confidential official documents and communications between .he Government and its
officers or- between such officers are privileged from production on the ground of public policy or as

being detrimental to the public interest or service.
The meaning of unpublished official records was discussed in the Cammell Laird case (supra). It was
argued-there that the documents could not be withheld because-they had already been produced
before the Tribunal of Enquiry into the loss of the "Thetis'. The House of Lords held that if a claim
was validly made in other respects to, withhold documents in connection with the pending action on
the, ground ,of public policy it would not be defeated by the circumstances that they had been given
a limited circulation at such an enquiry, because special precautions might have been taken to avoid
injury and the tribunal's sittings might be secret. In Conway v. Rimmer & Anr. (supra) it was said
that it would not matter that some details of a document might have been disclosed at an earlier
enquiry. It was said that if part of a document is innocuous but part of it is of such a nature that its
disclosure would be undesirable it should seal up the latter part and order discovery of the rest,
provided that this would not give a distorted or misleading impression.
This Court in Sukhdev Singh's case (supra) held that the principle behind section 123 of the
Evidence Act is the overriding and paramount character of public interest and injury to public
interest is the sole foundation of the section. Section 123 states that no one shall be permitted to give
any evidence derived from unpublished official records relating to_ any affairs of State e Xcept with
the permission of the Officer at the head of the department concerned, who shall give or withhold
such permission as he thinks fit. The e Xpression "Affairs ,of State" in section 123 was e Xplained with
reference to section 162 of the Evidence Act. Section 162 is in three limbs. The first limb states that a
witness summoned to produce a document shall, if it is in his possession or power, bring it to the
Court, notwithstanding any objection which there may be to its production or to its admissibility.
The validity of an such objection shall decided by the Court. The second limb of section 162 says that
the, Court,, if it sees fit, may 'inspect the document unless it refers to matters of state, or take other
evidence to enable it to determine on its admissibility. 'the third limb speaks of translation of
documents which is not relevant here. In Sukhdev Singh's case (supra) this Court said that the first
limb of section 162 required a witness to produce a document to bring it to the Court and then raise
an objection against its production or its admissibility. The second limb refers to the objection both
as to production and admissibility. Matters of State in the second limb of section 162 were said by
this Court in Sukhdev Singh's case (supra) to be identical with the e Xpression "affairs of State?' in
section 123.
In Sukhdev Singh's case (supra) it was said that an objection against the production of document
should be made in the form Of an affidavit by the Minister or the Secretary. When an affidavit is
made by the Secretary, the Court may, in a proper case, require the affidavit of the Minister. If the
affidavit is found unsatisfactory, a further affidavit may be called. In a proper case, the person
making the affidavit can be summoned to face an e Xamination. In Sukhdev Singh's case. (supra) this
Court laid down these propositions. First, it is a matter for the authority to decide whether the
disclosure would cause injury to public interest. The Court would enquire into the question as to
whether the evidence sought to be e Xcluded from production relates to an affair of State. The Court
has to determine the character and class of documents. Second, the harmonious construction of
sections 123 and 162 shows there is a power conferred on the Court under section 162 to hold a
preliminary enquiry into the character of the document. Third, the eXpression "affairs of State" in

section 123 is not capable of definition. Many illustrations are possible. "If the proper functioning of
the public service would be impaired by the disclosure of any document or class of documents such
document or such class of documents may also claim the status of documents relating to public
affairs'. Fourth, the second limb of section 162 refers to the objection both as to the production and
the admissibility of the document. Fifth, reading sections 123 and 162 together the Court cannot
hold an enquiry into the possible injury to public interest which may result from the disclosure of
document in question. That is a matter for the authority concerned to decide. But the Court is
competent and is bound to hold a preliminary enquiry and determine the validity of the objection to
its production. That necessarily involves an enquiry into the question as to whether the evidence
relates to an affairs of State under section 123 or not.
in Sukhdev Singh's case (supra) this Court said that the power to inspect the documents cannot be
eXercised where the objection relates to a documents having reference to matters of State and it is
raised under section 123 (See (1961) 2 S.C.R. at page 839). The view e Xpressed by this Court is that
the Court is empowered to take other evidence to enable it to determine the validity of the objection.
The Court, it is said, can take other evidence in lieu of inspection of the document in dealing with a
privilege claimed or an objection raised even under section 123. It is said that the Court may take
collateral evidence to determine the character or class of documents. In Sukhdev Singh's case
(supra) it has also been. said that if the Court finds that the document belongs to what is said to be
the noXious class it will leave to the discretion of the head of the department whether to permit its
production or not. The concurring views in Sukhdev Singh's case (supra) also e Xpressed the opinion
that under no circumstances the court can inspect such a document or permit giving secondary
evidence of its contents.
In Amar Chand Butail's case (supra) the appellant called upon the respondents the Union and the
State to produce certain documents. The respondents claimed privilege. This Court saw the
documents and was satisfied that the claim for privilege was not justified.
In Sukhdev Singh's case (supra) the majority opinion was given by Gajendragadkar, J. In Amar
Chand Butail's case (supra) Gagendragadkar, C.J. spoke for the Court in a unanimous decision. In
the later case this Court saw the document. In Sukhdev Singh's case (supra) this Court said that an
enquiry would be made by the 'Court as to objections to produce document. It is said that collateral
evidence could be taken. No oral evidence can be given of the contents of documents. In finding
out whether the document is a noXious document which should be eXcluded from production on the
.ground that it relates to affairs of State, it may sometimes be difficult for the Court to determine the
character of the document without the court seeing it. The subsequent Constitution Bench decision
in Amar Chand Butail's case- (supra) recognised the power of inspection by the Court of the
document.
In Slob-Divisional Officer, Mirzapur v. Raja Sri Niwas Prasad Singh(1) this Court in a unanimous
Constitution Bench decision asked the Compensation Officer to decide in the light of the decisions of
this Court whether the claim for privilege raised by the State Government should be sustained or
not. This Court gave directions for filing of affidavits by the heads of the department. This direction
was given about 10 years after the State Government had claimed privilege in certain proceedings.

In the Sub-Divisional Officer; Mirzapur case (supra) the respondent filed objections to draft
compensation assessment rolls. Compensation was awarded to the respondent. The State applied
for reopening of the objection cases. The respondent asked for production of some documents. The
State claimed privilege. The District Judge directed that compensation cases should be heard by the
Sub-Divisional Officer. The respondent's application for discovery and production was rejected by
the Compensation Officer. The District Judge thereafter directed that compensation cases should be
heard by the Sub-Divisional Officer. The respondent again filed applications for discovery and
inspection of these documents. The State Government again claimed privilege. The respondent's
applications were rejected. The respondent then filed a petition under Article 226 of the
Constitution for a mandamus to Compensation Officer to bear and determine the applications. The
High Court said (1) [1966] 2 SC R- 970, that the assessment rolls had become final and could not be
opened. This Court on appeal quashed the order of the Sub Divisional Officer whereby the
respondent's applications for discovery and production had been rejected and directed the,
Compensation Officer to decide the matter on a proper affidavit by the State.
On behalf of the election petitioner it was said that the first summons addressed to the Secretary,
General Administration required him or an officer authorised by him to give evidence and to
produce the documents mentioned therein. The second summons was addressed to the Home
Secretary to give evidence on 12 September, 1973. The third summons was addressed to the Chief
Secretary to give evidence on 12 September, 1973 and to produce certain documents. The first
summons, it is said on behalf of the election petitioner, related to the tour programmes of the Prime
Minister. The election petitioner, it is said, wanted the documents for two reasons. First, that these
documents would have a bearing on allegations of corrupt practice, viz., e Xceeding the prescribed
limits of election eXpenses. The, election petitioner's case is that rostrum, loudspeakers, decoration
would be within the eXpenditure of the candidate. Second, the candidate had the assistance of the
Gazetted Officer for furthering the prospects of the candidate's election.
On behalf of the election petitioners it is said that objection was taken with regard to certain
documents in the first summons on the ground that these were secret papers of the State, but no
objection was-taken by an affidavit by the head of the department. With regard to the other
documents which the Superintendent of Police was called to produce the contention on behalf of the
election petitioner is that the Superintendent of Police is not the head of the department and either
the Minister or the Secretary should have affirmed an affidavit.
Counsel on behalf of the election petitioner put in the forefront that it was for the Court to decide
whether the disclosure and production of documents by the State would cause prejudice to public
interest or whether non-disclosure of documents would cause harm to the interest of the subject and
to the public interest that justice should be done between litigating parties. This submission was
amplified by counsel for the election petitioner by submitting that it had to be found out at what
stage and it what manner privilege was to be claimed and in what circumstances the Court could
look into the document to determine the validity of the claim to privilege raised under section 123.
The, other contention on behalf of the election petitioner was that if a part of the document was
made public by lawful custodian of the document the question was whether the document could still
be regarded a-, an unpublished document. It was also said if there was a long document and if parts

thereof were noXious and therefore privileged whether the unanimous part could still be brought on
the record of the litigation.
Counsel for the election petitioner leaned heavily on the decision in Conway v. Rimmer & Anr.
(supra) that the Court is to balance the rival interests of disclosure and non- disclosure.
the first question which falls for decision is whether the learned Judge was right in holding that
privilege was not claimed by filing an affidavit at the first instance. Counsel on behalf of the election
petitioner submitted that in a case in which evidence is sought to be led in respect of matters derived
from unpublished records relating to affairs of State at a stage, of the proceedings when the head of
the department has not come into picture and has not had an opportunity of e Xercising discretion
under section 123 to claim privilege it will be the duty of the court. to give effect to section 123 and
prevent evidence being led till the head of the department has had the opportunity of claiming
privilege. _But in case in which documents are summoned, it is said by counsel for the election
petitioner, the opportunity of claiming privilege in a legal manner has already been furnished when
summons is received by the head of the department and if he does not claim privilege the court is
under no legal duty to ask him or to give him another opportunity.
The documents in respect of which eXclusion from production is claimed are the blue book being
rules and instructions for the protection of the Prime Minister when on tour and in travel. Saxena
came to court and gave evidence that the blue book was a document relating to the affairs of State
and was not to be disclosed. The Secretary filed an affidavit on 20 September, 1973 and claimed
privilege in respect of the blue book by submitting that the document related to affairs of State and
should, therefore, be eXcluded from production.
The several decisions to which reference has already been made establish that the foundation of the
law behind sections 123 and 162 of the Evidence Act is the same as in English law. It is that injury to
public interest is the reason for the e Xclusion from disclosure of documents whose contents if
disclosed would injure public and national interest. Public interest which demands that evidence be
withheld is to be weighed against the public interest in the administration of justice that courts
should have the fullest possible access to all relevant materials. When public interest outweigh's the
latter, the evidence cannot be admitted. The court will proprio motu e X clude evidence the
production of which is contrary to public interest. It is in public interest that confidentiality shall be
safeguarded. The reason is that such documents become subject to privilege by reason of their
contents Confidentiality is not a head of privilege. It is a consideration to bear in mind. It is not that
the contents contain material which it would be damaging to the national interest to divulge but
rather that the documents would be of class which demand protection. (See Rogers v. Home
Secretary (supra) at p. 405). To illustrate the class of documents would embrace Cabinet papers,
Foreign Office dispatches, papers regarding the security to the State and high level
interdepartmental minutes. In the ultimate analysis the contents of the document are so described
that it could be seen at once that in the public interest the documents are to be withheld. (See
Merricks and Anr. v. Nott Bower & Anr.(1). It is now the well settled Practice in our country that an
objection is raised by an affidavit affirmed by the head of the department. The Court may also
reunite a Minister to affirm an affidavit. That will arise in the course of the enquiry by the Court as

to whether the document should be withheld from disclosure. If the Court is satisfied with the
affidavit evidence, that the document should be protected in public interest from production the
matter ends there. If the Court would yet like to satisfy itself the Court may see the document. This
will be the inspection of the, document by the Court. Objection as to production as well as
admissibility contemplated in section 162 of the Evidence Act is decided by the Court in the enquiry
as eXplained by this Court in Sukhdev Singh's case (supra). In the facts and circumstances of the
present case it is apparent that the affidavit affirmed by R. K. Kaul, Chief Secretary on 20
September, 1973 is an affidavit objecting to the production of the documents. The oral evidence of
Saxena as well as the aforesaid affidavit shows that objection was taken at the first instance. This
Court has said that where no affidavit was filed an affidavit could be directed to be filed later on. The
Grosvenor Hotel, London group of cases (supra) in England shows that if an affidavit is defective an
opportunity can be given to file a better affidavit. It is for the court to decide whether the affidavit is
clear in regard to objection about the nature of documents. The Court can direct further affidavit in
that behalf. If the Court is satisfied with the affidavits the Court will refuse disclosure. If the Court in
spite of the affidavit wishes to inspect the document the Court may do so.
The neXt question is whether the learned Judge was right in holding that the blue book is not an
unpublished official record. On behalf of the election petitioner, it was- said that a part of the
document was published by the Government, viz., paragraph 71(6) in a writ proceeding. It is also
said that the respondent to the election petition referred to the blue book in the answer filed in the
Court. in the Canmell Laird case, it was said that though some of the papers had been produced
before the Tribunal of Enquiry and though reference was made to those papers in the Enquiry
Report yet a privilege could be claimed. Two reasons were given. One is that special precaution may
have been taken to avoid public injury and the other is that portions of the Tribunal's sittings may
have been secret. In the present case, it cannot be, said that the blue book is a published document.
Any publication of parts of the blue book which may be described the innocuous part of the
document will not render the entire document a published one. (1) [1964] 1 A E R 717 8-423SCI/75
For these reasons, the judgment of the High Court is set aside. The learned judge will consider the
affidavit a firmed by R. K. Kaul. The learned Judge will give, an opportunity to the head of the
department to file affidavit in respect of the documents summoned to be produced by the
Superintendent of Police. The, learned Judge, will consider the affidavits. If the learned Judge will
be satisfied On the affidavits that the documents require protection from production, the matter will
end there. If the learned Judge will feel inclined in spite of the affidavits to inspect the documents to
satisfy himself about the real nature of the documents, the learned Judge will be pleased to inspect
the same and pass appropriate orders thereafter,. If the Court will find on inspection that any part of
a document is innocuous in the sense that it does not relate to affairs of State the Court could order
disclosure of the innocuous part provided that would not give a distorted or misleading impression.
Where the Court orders disclosure of an innocuous part as aforesaid the Court should seal up the
other parts which are said to be noXious because their disclosure would be undesirable. Parties will
pay and bear their own costs.
MATHEW, J. During the trial of the election petition filed by respondent No. 1 against respondent
No. 2, respondent No. 1 applied to the Court for summons to the Secretary, General Administration
and the Chief Secretary, Government of U.P. and the Head Clerk, Office of the Superintendent of

Police, Rai Bareily, for production of certain documents. In pursuance to summons issued to the
Secretary, General Administration and the Chief Secretary, Government of U.P., Mr. S. S. Saxena
appeared in court with the documents and objected to produce:
(1) A blue book entitled "Rules and Instructions for the Protection of Prime Minister
when on tour or in travel; (2) Correspondence e X changed between the two
governments viz., the Government of India and the Government of U.P. in regard to
the police arrangements for the meetings of the Prime Minister; and (3)
Correspondence eXchanged between the Chief Minister, U.P. and the Prime Minister
in regard to police arrangements for the meetings of the latter;
without filing an affidavit of the Minister concerned or of the head of the department.
Saxena was eXamined by Court on 10-9-1973. The 1st respondent filed an application on that day
praying that as no privilege was claimed by Saxena, he should be directed to produce these
documents. The Court passed an order on 11-9- 1973 that the application be put up for disposal. As
Saxena's eXamination was not over on 10-9-1973, the Court kept the documents in a sealed cover
stating that in case the claim for privilege was sustained, Saxena would be informed so, that he could
take back the documents. E X amination of Saxena was over on 12-9-1973. On that day, the,
Superintendent of Police, Rai Bareily, filed an affidavit claiming privilege in respect of the
documents summoned from his office. The Court adjourned the argument in regard to privilege and
directed that it be heard the neXt day. On 13-9-1973 the Court adjourned the hearing to 14-9-1973 on
which date the hearing was. again adjourned to 20-9-1973. On 20-9-1973, Saxena filed in Court an
application and the Home Secretary to the Government of U.P., Shri R, K. Kaul, the head of the
department in question an affidavit claiming privilege for the documents. The argument was
concluded on 14-3-1974 and the Court passed the order on 20-3-1974 rejecting the claims for
privilege. This appeal, by special leave, is against that order. The first question for consideration is
whether the privilege was lost as no affidavit sworn by the Minister in charge or the Head of the
Department claiming privilege was filed in the first instance.
In State of Punjab v. Sodhi Sukhdev Singh(1) this Court held that the normal procedure to be
followed when an officer is summoned as witness to produce a document and when he takes a plea
of privilege, is, for the Minister in charge or the head of the department concerned to Me an affidavit
showing that he had read and considered the document in respect of which privilege is claimed and
containing the general nature of the document and the particular danger to which the State would
be, eXposed by its disclosure. According to the Court, this was required as a guarantee. that the
statement of the Minister or the head of the department which the Court is asked to accept is one
that has not been eXpressed casually or lightly or as a matter of departmental routine, but is one put
forward with the solemnity necessarily attaching to a sworn statement.
In response to the summons issued to the Secretary, General Administration and the Chief
Secretary, Government of U.P., Saxeiia was deputed to take the documents summoned to the Court
and he stated in his evidence that he could not Me the blue book as it was marked ,secret, and as he
was not permitted by the Home Secretary to produce it in Court. As no affidavit of the Minister or of

the Head of the Department was filed claiming Privilege under s. 123 of the Evidence Act in the first
instance, the Court said that the privilege was lost and the affidavit filed on 20-9-1973 by Shri R. K.
Kaul, Home Secretary, claiming privilege, was of no avail. The Court distinguished the decision in
Robinson v. State of South Australia(2) where their Lordships of the Privy Council said that it would
be contrary to the public (1) [1961] 2 S C R 371.
(2) AIR 1931 PC 254.
interest to deprive the state of a further opportunity of regularising its claim for protection by
producing an affidavit of the description already indicated by saying that these observations have no
application as, no affidavit, albeit defective, was filed in this case in the first instance. The Court
further observed that it was only when a proper affidavit claiming privilege was filed that the Court
has to find whether the document related to unpublished official record of affairs of State, that a
duty was cast on the Minister to claim privilege and that, duty could not be performed by Court, nor
would the Court be justified in suo motu ordering that the document should be disclosed. The Court
then quoted a passage from the decision of this Court in Sodhi Sukhdev Singh's case (supra) to the
effect that court has no power to hold an enquiry into the possible injury to the public interest which
may result from the disclosure of the document as that is a matter for the authority concerned to
decide but that the court is competent and indeed bound to hold a preliminary enquiry and
determine the validity of the objection and that necessarily involves an enquiry into 'the question
whether the document relates to an affair of state under s. 123 or not.
The second ground on which the learned judge held that no privilege could be claimed in respect of
the, Blue Book was that since portions of it had in fact been published, it was not an unpublished
official record relating to affairs of state. He relied upon three circumstances to show that portions
of the Blue Book were published. Firstly, the Union Government had referred to a portion of it (Rule
71/6) in an affidavit filed in Court. Secondly, respondent No. 2 had obtained a portion of the Blue
Book (Rule 71/6) and had produced it in court along with her written statement in the case and
thirdly that Shri Jyotirmoy Bosu, a Member of Parliament had referred to this particular rule in
Parliament.
The learned Judge, however, did not consider or decide whether the Blue Book related to any affair
of state, perhaps, in view of his conclusion that it was not an unpublished official record.
Section 123 of the Evidence Act states from unpublished official records relating to any affairs of
state, eXcept with the permission of the Officer at the head of the department concerned, who shall
give or withhold such permission as be thinks fit." Section 162 of the Evidence Act provides that
when a witness brings to court a document in pursuance to summons and raises an objection to its
production or admissibility, the Court has to- determine the validity of the objection to the
production or admissibility and, for so doing, the court can inspect the document e Xcept in the case
of a document relating to affairs of state or, take such other evidence as may be necessary to
determine its admissibility.

Having regard to the view of the High Court that since the'. privilege was not claimed in the first
instance by an affidavit of the Minister or of the head of the department concerned, the privilege
could not thereafter be asserted and that no inquiry into the question whether the disclosure of the
document would injure public interest can be conducted by the court when privilege is claimed, it
is necessary to see the scope of s. 123 and s. 162 of the Evidence Act.
The ancient proposition that the public has a right to every man's evidence has been reiterated by
the Supreme Court of U.S.A. in its recent decision in United States v. Ni Xon. This duty and its equal
application to the eXecutive has never been doubted eXcept in cases where it can legitimately claim
that the evidence in its possession relates to secret affairs of state and cannot be disclosed without
injury to public interest.
The foundation of the so-called privilege is that the information cannot be disclosed without injury
to public interest and not that the document is confidential or official which alone is no reason for
its non-production(1). In Durcan v. Cammel Lavid & Co.(2) Lord Simon said that withholding of
documents on the ground that their publication would be contrary to the public interest is not
properly to be regarded as a branch of the law of privilege connected with discovery and that 'Crown
privilege' is, for this reason, not a happy eXpression.
Dealing with the topics of e Xclusion of evidence on the ground of estate interest, Cross says that this
head of eXclusion of evidence differs from privilege, as privilege can be waived, but that an objection
on the score of public policy must be taken by the Judge if it is not raised by the parties or the
Crown.(3) Phipson deals with the topic under the general category "Evidence e Xcluded by public
policy". He then lists as an entirely separate category: "Facts e Xcluded by privilege," and deals there
with the subject of legal professional communication, matrimonial communication, etc., topics dealt
with by sections 124-131 of the Evidence Act(4). A privilege normally belongs to the parties and can
be waved. But where a fact is eXcluded from evidence by considerations of public policy, there is no
power to waive in the parties see in this connection Murlidhar Aggarwal v. State of U.P. (5).
Lord Reid in Beg v. Lewas(6) said that the e Xpression 'Crown privilege is wrong and may be,
misleading and that there is no question of any privilege in the ordinary sense of the word, as the
real question is whether the public interest requires that a document shall not be produced and,
whether the public interest is so strong as to override (1) gee Asiatic Petroleum Company Ltd. v
Anglo Persian Oil Co. [1916] 1 K B 822, at 830; and Conway v Rimmer (1968) 1 All ER 874, at 899.
(2) [1942] A-- C 624. (3) "Evidence", 3rd ed p 251. (4) "see Phipson on Evidence"
(5) [1974] 2 S7 C C 472, at 483.
(6) [1973] A C at, 388.
the ordinary right and interest of a litigant that he shall be able to I before a court of justice all
relevant evidence. In the same case, Lor Pearson observed that the e Xpression 'Crown privilege' is
not accur though sometimes convenient. Lord Simon of Claisdale observed in that case :

". 'Crown privilege' is a misnomer and apt to be misleading. 'It refers to the rule
that certain evidence is hadmissible on the ground that its adduction would be
contrary to the public interest. It is not a privilege which may be waived by the Crown
(see Marks v. Bayfus, 25 Q.B.D. 494 at p. 500) or by anyone else. The Crown has
prerogatives, not previlege."
I am not quite sure whether, in this area, there was any antithesi between prerogatives and privilege.
I think the source of this privilege was the prerogatives of the Crown.
"The source of the Crown'& privilege in relation to production of documents in a suit

between subject and subject (whether production is sought from a party or from
some other) can, no doubt, be traced to the prerogative right to prevent the disclosure
of State secrets, or even of preventing the escape of inconvenient intelligence,
regarding Court intrigue. As is pointed out in Pollock and Maitland's History of
English Law (2nd ed., Vol. I, p. 5 17), "the King has power to shield those who do
unlawful acts in his name, and can withdraw from the ordinary course of justice cases
in which he has any concern. If the King disseises A and transfers the land to X, then
X when he is sued will say that he cannot answer without the King, and the action will
be stayed until the King orders that it shall proceed." We find similar principles
applied to the non-disclosure of documents in the seventeenth and eighteenth
centuries. In the report of Layer's Case (1722), (16 How St. Tr. p. 294) the Attorney
General claimed that minutes of the Lords of the Council should not be produced;
and Sir John Pratt L.C.J. supported the claim, additing that "it would be for the
disservice of the King to have these things disclosed". We recall Coke's useful
principle : Nihil quod inconvenience est licitum. It is true that in the preceding
century the privilege was not upheld either in Strafford's case (1640) 3 How, St. Tr.
1382, or in the case of Seven Bishops (1638) 12 How. St. Tr. 183, but these decisions
were made in peculiar circumstances."
[see "Documents Privileged in Public

Interest"(1)]
But, with the growth of democratic government, the interest of the Crown in these
matters developed into and became identified with public interest.
(1) 39 Law Quarterly Rev. 476, at pp 476-477.
In the early days of the nineteenth century, when principles of 'public policy' received broad and
generous interpretation we find the privilege of documents recognized on the ground of public
interest. At this date, public policy and the interest of the public were to all intents synonymous".
(see "Documents Privileged in Public

Interests" (supra)

The rule that the interest of the state must )not be put in jeopardy by producing documents which
would injure it is in principle quite unconnected with the interests or claims of particular parties in
litigation and indeed, it is a matter on which the judge should, if necessary, insist, even though no
objection.is taken at all. This would show how remote the rule is from the branch of jurisprudence
relating, to discovery of documents or even to privilege(1). So the mere fact that Saxena brought the
documents to court in pursuance, to the summons and did not file an affidavit of the Minister or of
the head of the department concerned claiming privilege would not mean that the right to object to
any evidence derived from an unpublished official record relating to affair of state has been for ever
waived. As no affidavit of the Minister or of the head of the department claiming privilege had been
filed, it might be that a legitimate inteference could be made that the Minister or the head of the
department concerned permitted the production of the document or evidence being given derived
from it, if there was no other circumstance. But, Saxena stated that the Blue Book was a secret
document and he had not been permitted by the head of the department to produce it. Though that
statement was not really an objection to the production of the document which could be taken
cognizance of by the court under s. 162 of the Evidence Act, it was an intimation to the Court that
the head of the department had not permitted the production of the document in Court or
evidence.derived from it being given. Whatever else the statement might indicate, it does not
indicate that the head of the department had permitted the production or the disclosure of the
document. In other words, from the statement of Saxena that the document was a 'secret' one and
that he was not permitted to produce it in court, it is impossible to infer that the Minister or the
head of the department bad permitted the document to be produced in court or evidence derived
from it being given. Section 123 enjoins upon the court the duty to see that no one is permitted to
give any evidence derived from unpublished official records relating to affairs of state unless
permitted by the officer at the head of the department. The court, therefore, had a duty, if the Blue
Book related to secret affairs of state, not to permit evidence derived from it being given. And, in
fact, 'the Court did not allow the production of the document, for, we find a note in the proceedings
of the Court on 10-9-1973 stating that the "question about the production of this document in Court
shall be decided after argument of the parties on the point is finally (1)see : J.K.S. Simon, "Evidence
EXcluded by Consideration of State Interest", (1955) Cambridge L Journal, 62.
heard". And before the arguments were finally concluded, Kaul, the officer at the head of the
department, filed an affidavit claiming privilege. As the privilege could not have been waived, and
as, before the objection to the production of the document raised by Saxena-whether tenable in law
or not-was decided by the Court, an affidavit was filed by Kaul objecting to the production of the
document and stating that the document in question related to secret affairs of state, the Court
should have considered the validity of that objection under S. 162 of the Evidence Act. In Crompton
Ltd. v. Customs & EXcise Comrs. (C.A.) (1), Lord Denning M.R. said that if a document is the subject
of Crown Privilege, it cannot be adduced by either of the parties, that even if neither of the parties
takes the objection, the Attorney General can come to the Court and take it and that the judge
himself must take the objection if it appears to him that the production of the document would be
injurious to public interest. In Copway v. Binger & Anther(2) it was observed :
"I do not doubt that it is proper to prevent the use of any document, wherever it
comes from, if disclosure of its contents would really injure the national interest and I

do not doubt that it is proper to prevent any witness whoever be may be, from
disclosing facts which in the national interest ought not to be disclosed. Moreover, it
is the duty of the court to do this without the intervention of any Minister, if possible
serious injury to the national interest is ,really apparent. "I do not accept that in so
important a matter, it could properly play about with formalities or regard itself as
entering forbidden territory merely because a door had not been formally locked."
The question then arises as to what eXactly is the meaning of the eXpression "affairs of state".
According to Phipson(3), witnesses may not be asked, and will not be allowed, to state facts or to
produce documents the disclosure of which would be prejudicial to the public service, and this
eXclusion is not confined to official communications or documents, but e Xtends to all others likely to
prejudice the public interest, even when relating to commercial matters. He thinks that it is the duty
of the court to prevent disclosure of facts where serious injury to the national interest would
possibly be. caused, that in deciding whether a claim for Crown privilege should apply to a
document, there are two kinds of public interest to be considered by the court, and they are : (1) the
public interest that harm shall not be done to the nation or the public service; and (2) the public
interest that the administration of justice shall not be frustrated by the withholding of documents
which must be produced if justice is to be done; and that if a judge decided that, on balance, the (1)
[1972] 2 Q.B 102, at 134.
(3) "Phipson on Evidence", 11th ed. p. 240. (2) [1968] A.C. 910.
documents probably ought to be produced, it would generally be, best that he should see them
before ordering production. Cross says(1) that relevant evidence must be e Xcluded if its reception
would be contrary to state interest; but "state interest" is an ominously vague e Xpression and it is
necessary to turn to the decided cases in order to ascertain the e Xtent to which this objection to the
reception of relevant evidence has been taken. According to him, broadly speaking, the decisions fall
under two heads-those in which evidence has been eXcluded because its disclosure would be
injurious to national security (an eXpression which may be taken to include national defence and
good diplomatic relations), and those in which evidence has been e Xcluded because its reception
would be injurious to some other national interest and that although the first group of decisions has
not eXcited much comment, some of the cases included in the second may be thought to indicate an
eXcessive concern for unnecessary secrecy. In Sodhi Sukhdev Singh's case (supra) this Court held
that there are three views possible on the matter. The first view is that it is the head of the
department who decides to which class the document belongs. If he comes to the conclusion that the
document is innocent, he can give permission to its production. If, however, he comes to the
conclusion that the document is no Xious, he will withhold that permission. In any case, the Court
does not materially come into the picture. The second view is that it is for the court to determine the
character of the document and if necessary to enquire into the possible consequence of its
disclosure. On this view, the jurisdiction of the court is very much wider. A third view which does
not accept either of the two eXtreme positions would be that the court can determine the character
of the document and if it comes to the conclusion that the document belongs to the no Xious class, it
may leave it to the head of the department to decide whether its production should be permitted or

not, for, it is not the policy of s. 123 that in the case of every no Xious document the head of the
department must always withhold permission. The Court seems to have accepted the third view as
the correct one and has said "Thus, our conclusion is that reading ss. 123 and 162 together the Court
cannot hold an enquiry into the possible injury to public interest which may result from the
disclosure of the document in question. That is a matter for the authority concerned to decide; but
the Court is competent, and indeed is bound, to hold a preliminary enquiry and determine the
validity of the objections to its production, and that necessarily involves an enquiry into the question
as to whether the evidence relates to an affairs of State under s. 123 or not."
As it was held in that case that the Court has no power to inspect the document, it is difficult to see
how the Court can find, without conducting an enquiry as regards the possible effect of the
disclosure of the document upon public interest, that a document is one relating to affairs of state
as, eX- hypothesis a document can relate to affairs of state only if its disclosure will injure public
interest. It might be that there are certain classes of documents which are per se noXio s in the sense
(1) "Evidence" 3rd ed, p. 252.
that, without conducting an enquiry, it might be possible to say that by virtue of their character their
disclosure would be injurious to public interest. But there are other documents which do not belong
to the noXious class and yet their disclosure would be injurious to public interest. The enquiry to be
conducted under s. 162 is an enquiry into the validity of the objection that the document is an
unpublished official record relaing to affairs of state and therefore, permission to give evidence
derived from it is declined. The objection would be that the document relates to secret affairs of
state and its disclosure cannot be permitted; for, why should the officer at the head of the
department raise an objection to the production of a document if he is prepared to permit its
disclosure even though it relates to secret affairs of state ? Section 162 visualises an enquiry into that
objection and empowers the court to take evidence for deciding whether the objection is valid. The
court, therefore, has to consider two things; whether the document relates to secret affairs of state;
and whether the refusal to permit evidence derived from it being given was in the public interest. No
doubt, the, words used-in s. 123 "as he thinks fit" confer an absolute discretion on the head of the
department to give or withhold such permission. As I said, it is only if the officer refuses to permit
the disclosure of a document that any question can arise in a court and then s. 162 of the Evi- dence
Act will govern the situation. An overriding power in eXpress terms is conferred on the court under
s. 162 to decide finally on the validity of the objection. The court will disallow the objection if it
comes to the conclusion that the document does not relate to affairs of state or that the public
interest does not compel its non-disclosure or that the public interest served by the administration
of justice in a particular case overrides all other aspects of public interest. This conclusion flows
from the fact that in the first part of s. 162 of the Evidence Act there is no limitation on the scope of
the court's decision, though in the second part, the mode of enquiry is hedged in by- conditions. It
is, therefore, clear that even though the head of the department has refused to grant permission, it is
open to the court to go into the question after eXamining the document and find out whether the
disclosure of the document would be injurious to public interest and the e Xpression "as he thinks fit"
in the latter part of section 123 need not deter the court from deciding the question afresh as s. 162
authorises the court to determine the validity of the objection finally (see the concurring judgment
of Subba Rao, J. in Sukhdev Singh's case). It is rather difficult to understand, after a court has

inquired into the objection and found that disclosure of the document would be injurious to public
interest, what purpose would be served by reserving to the head of the department the power to
permit its disclosure because, the question to be decided by him would practically be the same,
namely, whether the disclosure of the document would be injurious to public Interests question
already decided by the court. In other words, if injury to public interest is the foundation of this so-
called privilege, when once the court has enquired into the question and found that the disclosure of
the document will injure public interest and therefore it is a document relating to affairs of state, it
would be a futile eXercise for the Minister or the head of the department to consider and decide
whether its disclosure should be permitted as be would be making an enquiry into the identical
question. It is difficult to imagine that a head of the department would take the responsibility to
come to a conclusion different from that arrived at by a court as regards the effect of the disclosure
of the document on public interest unless he has or can have a different concept of public interest.
Few would question the necessity of the rule to e Xclude that whichwould cause serious prejudice to
the state. When a question of national security is involved, the court may not be the proper forum to
weigh the matter and that is the reason why a Minister's certificate is taken as conclusive. "Those
who are responsible for the national security must be the sole judges of what national security
requires"(1). As the eXecutive is solely responsible for national security including foreign relations,
no other organ could judge so well of such matters. Therefore, documents in relation to these
matters might fall into a class which per se might require protection. But the e Xecutive is not the
organ solely responsible for public interest. It represents only an important element in it; but there
are other elements, One such element is the administration of justice. The claim of the e Xecutive to
have eXclusive and conclusive power to determine what is in public interest is a claim based on the
assumption that the eXecutive alone knows what is best for the citizen. C The claim of the e Xecutive
to eXclude evidence is more likely to operate to subserve a partial interest, viewed e Xclusively from a
narrow departmental angle. It is impossible for it to see or give equal weight to another matter,
namely, that justice should be done and seen to be done. When there are more aspects of public
interest to be considered, the court will, with reference to the pending litigation, be in a better
position to decide where the weight of public interest predominates. The power reserved to the court
is a order production even though public interest is to some 'e Xtent prejudicially affected. This
amounts to a recognition that more than one aspects of public interest will have to be surveyed. The
interests of government' for which the Minister speaks do not e Xhaust the whole public interest.
Another aspect of that interest is seen in the need for impartial administration of justice. It seems
reasonable to assume that a court is better qualified than the Minister to measure the importance of
the public interest in the case before it. The court has to make an assessment of the relative claims of
these different aspect of public interest. While there are overwhelming arguments for giving to the
eXecutive the power to determine what matters may prejudice public security, those arguments give
no sanction to giving the e Xecutive an eXclusive power to determine what matters may affect public
interest. Once considerations of national security are left out, there are few matters of public interest
which cannot safely be discussed in public. The administration itself knows of many classes of
security documents ranging from those merely reserved for official use to those which can be seen
only by a handful of Ministers of officials bound by oath of secrecy. According to Wigmore, the
eXtent to which this privilege has gone beyond "secrets of State" in the military or international
sense is by (1) Lord Parker of Weddington in The Zemora [1916] 2 A C 77, at 107.

no means clearly defined and therefore its scope and bearing are open to careful e Xamination in the
light of logic and policy. According to him, in a community under a system of representative
government, there can be only few facts which require to be kept secret with that solidity which
defies even the inquiry of courts of justice. (1) In a government of responsibility like ours, where all
the agents of the public must be responsible for their conduct, there can but few secrets. The people
of this country have a right to know every public act, everything, that is done in a public way, by
their public functionaries. They are entitled to know the particulars of every public transaction in all
its bearing. The right to know, which is derived from the concept of freedom of speech, though not
absolute, is a factor which should make one wary, when secrecy is claimed for transactions which
can, at any rate, have no repercussion on public security (2) . To cover with veil secrecy the common
routine business, is not in the interest of the public. Such secrecy can seldom be legitimately
desired. It is generally desired for the purpose of parties and politics or personal self-interest or
bureaucratic routine. The responsibility of officials to e Xplain and to justify their acts is the chief
safeguard against oppression and corruption.
"Whether it is the relations of the Treasury to the Stock EXchange, or the dealings of
;the Interior Department with public lands, the facts must constitutionally be
demandable, sooner or later, on the floor of Congress. TO concede to them a
sacrosanct secrecy in a court of justice is to attribute to them a character which for
other purposes is never maintained a character which appears to have been advanced
only when it happens to have served some undisclosed interest to obstruct
investigation into facts which might reveal a liability(3)"
To justify a privilege, secrecy must be indispensable to induce freedom of official communication or

efficiency in the transaction of official business and it must be further a secrecy which has remained
or would have remained inviolable but for the compulsory disclosure. In how many transactions of
official business is there ordinarily such a secrecy? If there arises at any time a genuine instance of
such otherwise inviolate secrecy, let the necessity. of maintaining it be determined on its merits (4).
Lord Blanesburgh said in Robinson v. State of South Australia (4) the privilege is a narrow one,
most sparingly to be eXercised, that its foundation is that the information cannot be disclosed
without injury A, to the public interests and not that the documents are confidential or ,official
which alone is no reason for their non-production. He further said that in view of the increasing
eXtension of state activities into spheres of trading, business and commerce, and of the claim of
privilege in (1) see "Evidence", 3rd ed, Vol 8, p 788.
(2) see New york Times Co V. United States, 29 L Ed 822, 403 U S 713.
(3) gee "Wigrnore on Evidence", 3rd ed-, Vol 8, page 790. (4) [1931] A. C. 704 at 798.
relation to liabilities arising therefrom, the courts must duly safeguard genuine public interests and
that they must see to it that the scope of the admitted privilege is not eXtended in such litigation.
There was some controversy as to whether the court can inspect the document for the purpose of
coming to the conclusion whether the document relates to affairs of state. In Sodhi Sukhdev Singh's

case, this Court has said that the court has no power to inspect the document. In the, subsequent
case (Amar Chand Butail v. Union of India and Others(1), this Court held that the normal method of
claiming privilege was by an affidavit sworn by the head of the department and that, if no proper
affidavit was filed, the claim for privilege was liable to be rejected. But, this Court inspected the
document to see whether it related to affairs of state. It might be that the court wanted to make sure
that public interest is protected, but whatever be the reason, the court did e Xercise the power to
inspect the document.
In England, it is now settled by the decision in CO Rimmer (2) that there is residual power in court
to decide disclosure of a document is in the interest of the public purpose, if necessary, to inspect the
document, and that the of the, head of the department that the disclosure would injure public
interest is not final.
In Robinson's case, (Supra) the Privy Council took the view that the court has power to inspect the
(document in order to decide the question whether it belongs to one category or the other.
It is also noteworthy that Lord Denning, M. R, in his dissenting judgment in the Court of Appeal in
Conway v. Rimmer has referred to the decision in Amar Chand Butail v. Union of India and Others'
(supra) and said that the Supreme Court of India also has come round to the view that there is a
residual power in the court to inspect a document to decide whether its production in court or
disclosure would be injurious to public interest.
Probably the only circumstances in which a court will not insist on inspection of the document is
that stated by Vinson, C. J. in United States v. Revenolds(3) :
"Regardless of how it is articulated, some like formula of compromise must be

applied here. Judicial control over evidence in a case cannot be abdicated to the
caprice of eXecutive officers. Yet we will not go so far as to say that the court may
automatically require a complete disclosure to the judge before the claim of privilege
will be accepted in any case. It may be possible to satisfy the court from all the
circumstances of the base, that there is a reasonable danger that compulsion of
evidence will eXpose military matters which, in the interest of national security,
should not be divulged When this is the case, the occasion for the privilege (1) A I R
1964 SC 1658.
(2) [1968] 1 All E R 874.
(3) [1952] 345 U S 1.
is appropriate, and the court should not jeopardize the security which the privilege is
meant to protect by insisting upon an e Xamination of the evidence, even by the judge
alone in chambers."

I do not think that there is much substance in the contention that since, the Blue Book had been
published in parts, it must be deemed to have been published as a whole and, therefore, the
document could not be regarded as an unpublished official record relating to affairs of state. If some
parts of the document which are innocuous have been published, it does not follow that the whole
document has been published. No authority has been cited for the proposition that if a severable and
innocuous portion of a document is published, the entire document shall be deemed to have been
published for the purpose of S. 123. In regard to the claim of privilege for the document summoned
from the office of the Superintendent of Police, Rai Bareily, the High Court has only said that all the
instructions contained in the file produced by the Superintendent of Police were the same as those
contained in the Blue Book and since no privilege in respect of the Blue Book could be claimed, the
Superintendent of Police could not claim any privilege, in respect of those documents. It is difficult
to under:stand how the High Court got the idea that the papers brought from the office of the
Superintendent of Police contained only instructions or materials taken from the Blue Book. Since
the court did not inspect the Blue Book, the statement by the court that the materials contained in
the file produced by the Superintendent of Police were ,taken from the Blue Book was not
warranted.
I am not satisfied that a mere label given to a document by the .e Xecutive is conclusive in respect of
the question whether it relates to affairs of state or not. If the disclosure of the contents of the
document would not damage public interest, the e Xecutive cannot label it in such a manner as to
bring 'it within the class of documents which ,are normally entitled to protection. N6 doubt, "the
very description-of the documents in the class may suffice sometimes to show that they should not
be produced such as Cabinet papers" (see per Lord Danning, M.R. in In re Grosvenor Hotel, London
(No. 2) (1). Harman, L. J. said(2) in that case : "the appellants' real point is that since Duncan's
Case(3) there has grown up a practice to lump documents together and treat them as a class for
which privilege is claimed and that this depends on dicta pronounced on what is really a different
subject-matter which are not binding on the court and are wrong." In Conway v. Rimmer(4) Lord
Reid said : "I do not doubt that there are certain classes of documents which ought not to be
disclosed whatever their content may be" and referred to cabinet minutes as belonging to that class.
Lord Upjohn said(5) if privilege is (1) [1965] 1 Ch- 1210, at 1246.
(2) ibid at p 1248.
(3) [1948] A: C-- 624.
(4) [1968] 1 All E R 874, at 888.
(5) ibid at p 915.
claimed for a document on the ground of 'class' the judge, if he feels any doubt about the reason for
its inclusion as a class document, should not hesitate to call for its production for his private
inspection, and to order and limit its production if he thinks fit." In the same case Lord Hodson
said(1) : "I do not regard the classification which places all documents under the heading either of
contents or class to be wholly satisfactory. The plans of warships, as in Duncan's case and

documents eXemplified by cabinet minutes are to be treated, I think, as cases to which Crown
privilege can be properly applied as a class without the necessity of the documents being considered
individually. The documents in this case, class documents though they may be, are in a different
category, seeking protection, not as State documents of political or strategic importance, but,as
requiring protection on the ground that 'candour' must be ensured."
I would set aside the order of the High Court and direct it to consider the matter afresh. The High
Court will have to consider the question whether the documents in respect of which privilege had
been claimed by Mr. R. K. Kaul, Home Secretary and the Superintendent of Police relate to affairs of
state and whether public interest would be injuriously affected by their disclosure.
If the averments in the affidavits are not full or complete, the court will be at liberty to call for
further affidavits. If, on the basis of the averments in the affidavits, the court is satisfied that the
Blue Book belongs to a class of documents, like the minutes of the proceedings of the cabinet, which
is per se entitled to protection, no further question will arise in respect of that document. In such
case, no question of inspection of that document by court will also arise. If, however, the court is not
satisfied that the Blue Book does not belong to that class and that averments in the affidavits and the
evidence adduced are not sufficient to enable the Court to make up its mind that its disclosure will
injure public interest, it will be open to the court to inspect the document for deciding the question
whether it relates to affairs of state and that its disclosure will injure public interest. In respect of the
other documents, the court will be at liberty to inspect them, if on the averments in the affidavits or
other evidence, it is not able to come to a conclusion that they relate to affairs of state or not.
if, on inspection, the court holds that any part of the Blue Book or other document does not relate to
affairs of state and that its disclosure would not injure public interest, the court will be free to (1) bid
at p. 905.
disclose that part and uphold the objection as regards the rest provided that this will not give a
misleading impression. Lord Pearce said in Conway v. Rimmer(1) "if part of a document is
innocuous but part is of such a nature that its disclosure would be undesirable, it should seal up the
latter part and order discovery of the rest, provided that this will not give a distorted or misleading
impression."
The principle of the rule of non-disclosure of records relating to affairs of state is the concern for
public interest and the rule will be applied no further than the attainment of that objective
requires(2). I would allow the appeal.
P.B.R.
Appeal allowed.
(1) [1968] 1 All E.R. 874, at 911.
(2) see Taylor on Evidence, p. 939.

Mr.Anil Bairwal vs Parliment Of India on 3 June, 2013
Central Information Commission
CENTRAL INFORMATION COMMISSION
August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110066
File No. CIC/SM/C/2011/001386

Complainants:
1. Shri Subhash Chandra Aggarwal

2. Shri Anil
Bairwal Respondents:
1. Indian National Congress/ All India Congress Committee (AICC);

2. Bhartiya Janata Party(BJP);
3. Communist Party of India (Marxist) (CPM);
4. Communist Party of India(CPI);
5. Nationalist Congress Party(NCP); and
6. Bahujan Samaj Party(BSP)
Dates of hearing: 26th September & 1st November, 2012.
Date of Decision: 3rd June 2013
Facts:
Complainant Subhash Chandra Agrawal (Shri S.C.Agrawal) has filed Complaint

No. CIC/SM/C/2011/001386 and Complainant Shri Anil Bairwal, Complaint N
CIC/SM/C/2011/000838. In both the complaints, the common issue relating to the
disclosure of the accounts and funding of Political Parties has been raised. Hence,
it h been decided to dispose of these matters through a common order.
File No. CIC/SM/C/001386:
2. By his RTI application dated 16.5.2011, complainant S.C. Aggarwal has sought
th following information from the Presidents/Secretaries of the Indian National
Congress (INC/AICC) and the Bhartiya Janata Party (BJP):
"1. Copies of Election Menifestoes by BJP for Lok Sabha elections in the years
it formed NDA govenment with Shri Atal Bihari Vajpayee as Prime Minister.
2. Were all the promises made in these election manifestoes fulfilled after
BJP having formed government at the Centre.
3.If not, list of promises highlighted in BJP election manifestoes but

remained unfulfilled after BJP came to power.
4. Outline of receipts (separately by cash/online/cheque etc) by BJP in last
two years separately for each year for which updated account information
may be there.
5. Outline of payments (separately by cash/online/cheque etc.) made by BJP in
last
three years separately for each year for which updated account information
may be there.
6. Is it compulsory for every BJP legislature either at Centre or in States or
in bodies etc to contribute towards party funds?
7. If yes, please provide complete and detailed information including also
defaulters in making such contributions to party fund in last three
years.
8. Is BJP aware of any of its legislatures (both at Centre and in States)/civic
bod member etc. involved in corrupt and other malpractices in last three
years?
9. If yes, please provide complete details including action taken by party and
othe against such persons.
10.Has B.J.P. suggested any proposals to Union government /Election
Commission towards electoral reforms?
11.If yes, please provide complete details including reply received from
concerned ones if any.
12. Any other related information;
13.File notings on movement of this RTI petition and on all aspects mentioned
in this RTI petition."
3. Shri Moti Lal Vora, Treasurer, AICC, in his letter dated 20th May, 2011,
had informed the complainant that AICC did not come under the purview of the RTI Act.
4. Shri Shanti Prasad Aggarwal, Rashtriya Prabhari of BJP, in his letter dated
28th 2011, had informed the complainant that BJP was not a public authority and,
therefore, t Party was not obliged to provide the requisite information.
5. Complainant Anil Bairwal, in his RTI application dated 29.10.2010 had

sought following information from the under mentioned Political Parties:
INC/AICC
BJP
NCP
CPI(M)
CPI
BSP
"1. a) Sources of the 10 maximum voluntary contributions received by

your party from Financial Year 2004-05 to Financial Year 2009-10?
b) The modes of these donations (Cheque, cash, DD etc.)?
c) The amounts of these donations?

d) The Financial Years in which these contributions were made?
You may provide this information in the following format:
S.No. Source/Name of Mode of Amount of Financial

Contributor Contribution Contrinbution year in
contribut
was made
1
2
3
4
5
2. Sources/Names of all Voluntary Contributors along with their

addresse who have made single contributions of more than Rs. 1 lakh to your
party from Financial Year 2004-05 to Financial Year 2009-10?
You may provide this information in the following format:
S.No Source/Name of Contributor Address of

Contributor
.
6. By his letter dated 15th November, 2010, Shri Moti Lal Vora, Treasurer, AICC, had informed the
complainant that AICC did not come under the purview of the RTI Act.
7. Shri Chandan Bose, PRO, Nationalist Congress Party, in his letter dated 27th November, 2010,
had informed the complainant as under:
"It is very important to mention here that NCP is a non-government organization.

Hence, we do not have much more resources nor surplus staff to e Xpedite unusual
work, which is not in our routine job.
We generate funds from the membership drive and through other resources also, i.e.
voluntary contributions from the well-wishers, and followers etc. State units of NCP
have major role in membership drive from which we are getting funds in lakhs. State
units of NCP at district level, block level and panchayat level organize membership
camps frequently and every two years, we file the details regarding our membership
and all necessary requisites in Election Commission and other government
authorities.
However, I would like to inform you that ours is a National Party duly recognized by
Election Commission of India and that from the day of inception of our party, we
have been regularly filing our returns to the Income Tax authorities and also to the
Election Commission of India along with whatever voluntary contributions received.

It is pertinent to mention here that our all obligation towards authorities are up to
date.
If you feel like, you may collect all the information you desired, from the above said
authorities.
In case you want any clarification, please feel free to contact us."
8. Shri K.C. Bansal of CPI, in his letter dated 6th November, 2010, had informed the complainant of
the sources of ten maximum voluntary contributions received by the Party for the financial years
2004-05 to 2009-10.
9. Importantly, other Political Parties chose not to respond to the RTI application.
10. Shri Subhash Chandra Agrawal had filed a complaint dated 6th September, 2011, before this
Commission in which he had mentioned that All India Congress Committee and Bhartiya Janata
Party, being national parties, had got premium land in Delhi/New Delhi at zonal variant
institutional rate which was much less than the prevailing market rate and, therefore, it was not
correct on their part to plead that they did not fall under the purview of the RTI Act. It was his
contention that both AICC/INC and BJP fell under the ambit of section 2(h) of the RTI Act.
11. Likewise, Shri Anil Bairwal had filed a complaint dated the 14th March, 2011, before the
Commission against the responses received from INC/AICC, NCP & CPI, contending therein that
the Political Parties, being beneficiaries of the Government, fell under the ambit of Section 2(h) of
the RTI Act and, therefore, they were mandated to disclose full and complete information to him.
12. As the matters in hand raised comple X issues of law, the Chief Information Commissioner in his
Order dated 31st July, 2012 had constituted a Full Bench comprising of the following:-
Shri Satyananda Mishra, Chief Information Commissioner; Smt. Annapurna DiXit,

Information Commissioner; and Shri M.L. Sharma, Information Commissioner
13. The Full Bench held the first hearing on 26th September, 2012. The following were present:
Complainants:
1. Shri S.C. Agrawal, along with Shri Prashant Bhushan and Pranav Sachdeva.
2. Shri Anil Bairwal, along with Shri Jagdeep S. Chhokar, Shri Trilochan Sastry, Ms.
Shivani Kapoor, Shri Manoj Kumar & A.K. Aneja.
Respondents:
1. Shri Chandan Bose, PRO, NCP.

2. Shri D. Raja, CPI Election Commission:
1. Shri K.F. Wilfred, Principal Secretary, Election Commission.
14. The Full Bench held its second hearing on 1st November, 2012. The following were present:
Complainants:
1. Shri S.C. Agrawal.
2. Shri Anil Bairwal, along with Shri Jagdeep S. Chhokar, Ms. Shivani Kapoor, Shri
Manoj Kumar & Shri A.K. Aneja.
Respondents:
1. Advocate Shubhashis R. Soren for BJP.
2. Shri S. Ramachandran Pillai of CPI(M).
3. Advocates Shail Kumar Dwivedi & G.V. Rao for BSP.
4. Shri Chandan Bose, PRO, NCP and Advocate Amit Anand Tiwari for NCP.
15. Shri S.C. Agrawal has filed a written representation before the Commission in
which he has vehemently pleaded for declaring Political Parties as public authorities
under section 2(h) of the RTI Act. The salient points made in his representation are
enumerated herein-
below :-
(i) The Political Parties hold constitutional status and wield constitutional powers
under the Tenth Schedule of the Constitution in as much as they have the power to -
"a) disqualify legislators from Parliament and State Assemblies;
b) bind legislators in their speeches and voting inside the house;
c) decide what laws are made;

d) decide whether Government remains in power or which
Government should come to power;
e) decide public policies that affect lives of millions of people."
(ii) As per Article 102 (2) of the Constitution, a person can be

disqualified

being a member of either House of Parliament under the Tenth Schedule and that a
similar provision e X ists for the State Legislators under Article 191(2) of the
Constitution. Furthermore, as per Article 102(2), if a member of a House belonging to
a Political Party votes or abstains from voting in the House contrary to the directions
issued by the Political Party, he is liable to be disqualified from being a Member of
the House.
(iii) The Political Parties have been given statutory status under Section 29A of the
(iv) Under Section 29A (5) of the Representation of People Act, 1951, the Political
Parties are required to bear true faith and allegiance to the Constitution of India as by
law established.
(v) The Political Parties give tickets to the candidates and the people vote on party
symbols and, thus, the Political Parties are important instrumentalities of democratic
governance.
(vi) The Political Parties are substantially financed by the 'appropriate Government'
in multiple ways and are eXempt from Income Tax.
16. To canvass his case, Shri Agrawal has furnished a copy of letter dated 2.9.2011 of the CPIO of the
Land and Development Office(L&DO), Ministry of Urban Development, addressed to him providing
information regarding allotment of land by Land and Development Office to various Political
Parties. The details of the land allotment to various Political Parties as furnished by the L&DO are
eXtracted below :-
"LIST OF POLITICAL PARTIES WHICH HAVE BEEN ALLOTTED LAND BY LAND &
DEVELOPMENT OFFICE FOR THEIR OFFICE BUILDINGS S.No. Name of Party Location, Area &
Date of allotment
1. All India Congress Committee Plot at Dr. Rajinder Prasad Road, New Delhi of Indian National
Congress (also known as Jawahar Bhawan), Area = 9518.42 sq.yds. allotted on 8.9.75.
Pocket-9A, Kotla Road, Area = 8092 sq. m.
Allotted on 19.11.2007
2. Rashtriya Janata Dal Plot Nos. 34, 57, 58 & 59 at Kotla Road, New Delhi Area = 1904 sq. m.
allotted on 3.7.2007.
3. Communist Party of India Plot Nos. 27, 28 & 29 at Market Road

Institution (Marxist) New Delhi
Area = 1197 sq. m. allotted on
24.11.1967 Plot Nos. 10, 11, 12 & 13 at
Kotla Road

Area = 2535 sq. m. allotted on 11.12.2008.
4. Samajwadi Party Plot No. 1, Vasant Kunj Institutional
Area, New Delhi
Area = 1 acre, Allotted on 21.1.2009.
5. Communist Party of India Plot No. 15, Kotla Marg, New Delhi
Area = 0.3 acres. Allotted on 2.12.1967
6. Bharatiya Janata Party Between Dr. Rajendra Prasad Road and Raisina
Roa (National Level) New Delhi.
Area = 1.87 acres. Allotted on 8.3.2001.
7. Janata Dal(United) Plot No.4, Vasant Vihar Institutional Area,
New
Area = 2000 sq. m. allotted on 27.4.2010
8. Bharatiya Janata Party Alternative allotment at Plot No.4 & 5, Kotla
Ro (Delhi State) New Delhi
Area = 1060.80 sq. m. allotted on 12.5.2010
9. All India Anna Dravida Plot No. 13 & 25, Pushp Vihar, M.B. Road,
Saket, Munnetra Kazhakham New Delhi,
Area = 1008 Sq. m. Allotted on 30.7.2010
10. Delhi Pradesh Congress Plot No. 2, Rouse Avenue Institutional Area
Committee Area = 1127 sq. yds. Allotted on

15.5.1987
11. All India Trinamool Congress Plot Nos. 2 and 3, at DDU Marg, New Delhi
Area = 1000 sq. m. allotted on 01.03.2011.
17. In addition to the above, Shri Agrawal has also furnished information regarding the allotment of
accommodation to various Political Parties on rental basis and the outstanding dues against them,
as received by him from the Directorate of Estates vide their letter dated 24.8.2011. The relevant
information is eXtracted below:
S.No. Name of the Party Accommodation Monthly re

charged
1. Indian National Congress 26, Akbar Road 3015 +Furnitu
Committee (I) charges
2. Indian National Congress 24, Akbar Road 42817 +Furniture
charges
3. Indian National Congress 5, Raisina Road 34189 +Furniture
charges
4. Indian National Congress CII/109, 8078
Chanakyapuri
5. Bhartiya Janata Party 11, Ashoka Road
66896 +
Furniture
charges
6. Bharatiya Janata Party 14, Pandit Pant 15077 + Furniture
Marg charges
7. C.P.I. AB-4, Purana Quila
1550 Road
8. Nationalist Congress Party 10, Dr. B.D. Marg 1320

9. President Bahujan Samaj Party 4, G.R.G. Road 1320
10. Samajwadi Party 18, Copernicus 12138

Road
11. Shri Prakash Karat, General 8, Teen Murti Lane
1550 Secretary, CPI(M)
18. Shri Anil Bairwal has also filed a detailed representation before this Commission to contend that
Political Parties fall in the ambit of section 2(h) of the RTI Act. In his representation, Shri Bairwal
has made the following salient points :-
(i) All the Political Parties have been claiming tax e Xemption under section 13A of the
Income Tax Act. As per his representation, various Political Parties claimed Income
Tax eXemption as given in the following Table:
Party Tax Payable Tax payable Tax payable Tax

exempted in exempted in exempted in exempted
FY 2006-07(Rs FY 2007-08 (Rs FY 2008-09 (Rs years
crores) crores) crores) crores)
BJP 26.86 40.68 73.71 141.25

INC 57.00 75.05 168.87 300.92
BSP 15.44 23.60 0.80 39.84
CPI(M) 6.98 4.62 6.53 18.13
CPI 0.01 0.21 0.02 0.24
NCP 0.90 0.68 8.06 9.64
( Source : Compilation from copies of Income Tax Returns received from Income Tax
Department under RTI Act)
(ii) State has been indirectly financing various Political Parties by way of free air time
on All India Radio. As per his calculation, the amount spent by the State on the
Political Parties under this Head is as follows:
S.No. Name of the Time allotted Rate charged Amount spent party for broadcast by AIR in time by
the State for at the AIR category-3 for AIR (Rs lakhs) during every 10 LS'09(Min) for seconds
Political Parties
1. BJP 140 800 6.72
2. BSP 70 800 3.36
3. CPI 50 800 2.40
4. CPI(M) 70 800 3.36

5. INC 160 800 7.68
6. NCP 50 800 2.40
7. RJD 55 800 2.64 Total 595 800 28.56 (Source : Compilation from Spot Buy Rates and Time
Allocated to various Political Parties received from All India Radio and Election Commission of
India under various RTI applications).
(iii). The complainant has also argued that the State has spent huge amounts on the Political Parties
in the matter of free air time on Doordarshan. The table given by him is reproduced below:-
S. Name Time Rate Amount spent by the

Time Rate
of the allotted charged by state for the allotted for Charged
No. Party for national national network telecast at By
telecast at network of during LS'09 the regional
the national DD at non (Rs.crores) regional network
network of prime time network at non
DD every 10 during prime
during seconds LS'09 time
Lok (Min.) every 10
Sabha'09 seconds
(Min)
1 BJP 140 15,000 1.26 215 10,000

INC
2 INC 160 15,000 1.44 240 10,000
3 BSP 70 15,000 0.63 100 10,000
4 CPI 50 15,000 0.45 75 10,000
5 CPI(M) 70 15,000 0.63 105 10,000
6 NCP 50 15,000 0.45 80 10,000
7 RJD 55 15,000 0.49 85 10,000
Total 595 5.35 900
( Source : Compilation from Spot Buy Rates and Time Allocated to various Political Parties received
from Doordarshan and Election Commission of India under the RTI Act).
(iv) The valuation of the properties allotted by the Government, as estimated by the complainant
Shri Bairwal, as given in his representation, is as follows :-
Party Office and address Area Area in

Sq.Fts. (with allotment dates) (1 sq.m.=10.76
Sq. fts,
1 sq. yd.=
9 sq.fts.,
1 Acre=
4840

sq.yds.)

(A) (B)
INC 1. Plot at Dr. Rajinder 9518.42 sq.
85665.78 Prasad Road, New yds.
Delhi(Allotted
on 08.09.1975)
2. Pocket 9A, Kotla Road, 8092 sq. m.

87069.92 New Delhi(allotted on
19.11.2007
BJP 1. Between Dr. Rajendra 1.87 acres81457.20
Prasad Road and Raisinha
Road(allotted on
08.03.2001)
2. Plot No.4 & 5 Kotla 1060.80 11414.21 68.49

Road New Delhi (allotted sq.m
on 12.05.2010)
CPI(M) Plots No.27, 28 & 29 at 1197 sq.m. 12879.72 77.28

Market Road Institutional
Area, New Delhi(allotted
on 11.04.1967)
Plot No.10, 11, 12 & 13 2535 sq.m. 27276.60 163.66
Kotla Road, New Delhi
(allotted on 11.12.2008)
CPI Plot No. 15 Kotla Marg, .3 acres 13068.00 78.41
New Delhi(allotted on
2.12.1967)
RJD Plots No. 34,57,58 & 59 1904 sq.m. 20487.04 122.92
at
Kotla Road, New
Delhi(allotted on 03.07.2007)
SP Plot No.1, Vasant Kunj 1 Acre 43560.00 261.36
Institutional Area, New
Delhi (Allotted on
21.01.2009)
JD Plot No.4, Vasant Vihar 2000 sq.m. 21520.00 129.12
Institutional Area, New
Delhi(allotted on 24.10.2010)
AIADMK Plot Nos.2 and 3 at DDU Marg, 1008 sq.m. 846.08 65.08
New Delhi(Allotted
on 01.03.2011)
AITC Plot Nos.2 and 3 at DDU 1000 sq. m.10760.00 64.56
Marg, New Delhi (Allotted on
01.03.2011)
Total of current Market Values of the plots of land allotted to the 2556.02
Political Parties(Rs. In Crores)
(v) Under Rules 11 and 12 of the Registration of Electors Rules, 1960, two

co

of the Electoral Rolls are supplied to the recognized Political Parties, free of cost. This is another
instance of indirect financing of the Political Parties by the State.
(vi) The Central Govt. and the State Governments have allotted various houses/buildings/other
types of accommodation to various Political Parties either free of cost or at concessional rates. This
also amounts to indirect financing of Political Parties by the respective Governments.
(vii) The Political Parties are continuously engaged in the performance of public duty and it is,
therefore, important that they become accountable to the public. Transparency in the working and
financial operations of the Political Parties is essential in the larger public interest.
19. Senior Advocate, Shri Prashant Bhushan addressed the Commission on 26th September, 2012
on behalf of complainant Shri S.C. Agrawal. He vehemently contended that the entire political
system in India revolved around the Political Parties. They perform a public function and, therefore,
warrant to be declared 'public authority' under section 2(h) of the RTI Act. In amplification of his
above broad submission, he has advanced the following arguments:-
(i) Tenth Schedule to the Constitution vests tremendous powers with the Political
Parties in as much as they can oust an elected member - whether MP or MLA - from
out of the Party if he steps out of the party line. The vast power of the Political Parties
has been recognised in this Schedule and, therefore, if purposive interpretation of the
Tenth Schedule is made, then the Political Parties can be deemed to be covered under
Section 2(h) of the RTI Act.
(ii) As per Section 29C of the Representation of People Act, 1951, all donations of and
above Rs. 20,000/- made to Political Parties are required to be reported to the
Income Tax Department. This obligation cast on the Political Parties points towards
their public character.
(iii) By virtue of powers conferred on it under Article 324 of the Constitution read
with section 29A of the Representation of People Act, 1951, and Rules 5 and 10 of the
Conduct of Election Rules, 1961, and other powers vested in it, the Election
Commission of India made and promulgated the Election Symbols (Reservation and
Allotment) Order, 1968. Under this Order, Election Commission allots symbols to
various Political Parties. The Election Commission is an instrumentality of the State.
Allotment of election symbols by the Election Commission to various Political Parties
is suggestive of the public character of the Political Parties.
(iv) The Political Parties get huge tax e Xemptions under section 13 A of the Income
Tax Act, 1961, which amounts to indirect financing of the Political Parties in terms of
Section 2(h)(d)(i) of the RTI Act.
(v) The Central Government and the State Governments have allotted huge plots of
land/buildings/other accommodation in prime locations to all Political Parties all

over the country either, free of cost, or on hugely concessional rates. This also
amounts to indirect financing of the Political Parties.
(vi) Doordarshan of India allots free air time to the Political Parties during the
elections. This is another instance of indirect financing of the Political Parties.
(vii) As the Political Parties are the life blood of the entire constitutional scheme in a
democratic polity and as they are indirectly financed by the Central Government and
the State Governments in various ways, as discussed hereinabove, the Political
Parties need to be declared public authority under section 2(h) of the RTI Act.
20. Shri A.K. Aneja, appearing on behalf of the complainants, in his brief submission has drawn the
Commission's attention to section 80 GGB of the Income Tax Act which provides that contribution
made by an individual or Company to a Political Party is deductible from the total income of the
assesee. This provision is eXclusively applicable to the Political Parties and is suggestive of indirect
financing of the Political Parties by the State.
21. Complainant Shri Anil Bairwal has also filed detailed e Xtra submissions before the Commission
arguing that the Political Parties need to be declared Public Authority under section 2(h) of the RTI
Act. His first and foremost submission is that Political Parties have a 'binding ne Xus with the
populace'. He goes on to say that "As the Central Institution of democracy, they embody the will of
the people and carry all their e Xpectations that democracy will be truly responsive to their needs and
help solve the most pressing problems that confront them in the daily lives".
22. His second submission is that there is need for accountability and transparency in the
functioning of the Political Parties. It is his contention that transparency in the functioning of
Political Parties was recommended by the Law Commission of India in their 170th Report on
"Reform of Electoral Laws (1999)". The relevant para of the Law Commission's report as eXtracted
by him is given below :-
"On the parity of the above reasoning, it must be said that if democracy and
accountability constitute the core of our constitutional system, the same concepts
must also apply to and bind the Political Parties which are integral to parliamentary
democracy. It is the Political Parties that form the Government, man the Parliament
and run the governance of the country. It is therefore, necessary to introduce internal
democracy, financial transparency and accountability in the working of the Political
Parties. A political party which does not respect democratic principles in its internal
working cannot be eXpected to respect those principles in the governance of the
country. It cannot be dictatorship internally and democratic in its functioning
outside".(emphasis added by the complainant)
23. Shri Bairwal has also relied on this Commissions decision dated 29.04.2008 in File No.
CIC/AT/A/2007/01029 & 01263-01270 wherein transparency in the functioning of Political Parties
has been underlined. He particularly draws our attention to para 28 of the decision eXtracted below

:-
"28. Political Parties are a unique institution of the modern constitutional State.
These are essentially civil society institutions and are, therefore, non governmental.
Their uniqueness lies in the fact that in spite of being non governmental, Political
Parties come to wield or directly or indirectly influence, e Xercise of governmental
power. It is this link between State power and Political Parties that has assumed
critical significance in the conteXt of the Right of Information - an Act which has
brought into focus the imperatives of transparency in the functioning of State
institutions. It would be facetious to argue that transparency is good for all State
organs, but not so good for the Political Parties which control the most important of
those organs. For eXample, it will be a fallacy to hold that transparency is good for the
bureaucracy but not good enough for the Political Parties which control those
bureaucracies through political eXecutives".
24. The Commission has further observed :
"38. The laws of the land do not make it mandatory for Political Parties to disclose
the sources of their funding, and even less so the manner of eXpending those funds.
In the absence of such laws, the only way a citizen can gain access to the details of
funding of Political Parties is through their Income Tax Returns filed annually with
Income Tax authorities. This is about the closest the Political Parties get to
accounting for the sources and the e Xtent of their funding and their eXpenditure.
There is unmistakable public interest in knowing these funding details which would
enable the citizen to make an informed choice about the Political Parties to vote for.
The RTI Act emphasizes that "democracy requires an informed citizenry", and that
transparency of information is vital to flawless functioning of constitutional
democracy. It is nobody's case that while all organs of the State must e X hibit
maximum transparency, no such obligation attaches to Political Parties. Given that
Political Parties influence the eXercise of political power, transparency in their
organization, functions and, more particularly, their means of funding is a
democratic imperative, and, therefore, is in public interest".
25. Another strand of his submissions is that the Public Authority, as defined under section 2(h) of
the RTI Act, is a broader term than the 'State' as defined under Article 12 of the Constitution. In
other words, it is possible that an entity may fall short of being 'State' and yet may be a 'Public
Authority' under the RTI Act. In fact, 'Public Authority' and the 'State' are different and distinct
from each other. Shri Bairwal has relied on para 25 of the judgment of Punjab and Haryana High
Court in WP(C) No. 19224/2006 along with 23 other cases as eXtracted below :-
"25. Above-all, the deep and pervasive control as required under Article 12, is not
required and essential ingredient for invoking the provisions of RTI Act. The primary
purpose of instrumentality of the State is in relation to enforcement of the
fundamental rights through Courts, whereas the RTI Act is intended to achieve,

access to information and to provide an effective framework for effecting the right to
information recognized under Article 19 of the Constitution. The complainants are
not claiming any kind of monetary benefits or property from the empire of the
petitioner-institutions. To my mind, the enforcement of fundamental rights through
Courts and the question of applicability of writ jurisdiction on an instrumentality of
the State for the purpose of determination of substantive rights and liabilities of the
parties are altogether (entirely) different than that of the field of RTI Act, only meant
to impart the information. Hence, in my view, the ambit and scope of phrase of
instrumentality of the State under Article 12 of the Constitution is entirely different
and distinct than that of the regime of RTI Act. If the intention of the Legislature was
to so restrict the meaning to the e Xpression of public authority, straightjacketing the
same within the four corners of the State, as defined under Article 12, then there was
no need/occasion to assign a specific broader definition of public authority under
section 2(h) of RTI Act in this relevant connection".
26. The complainant has also argued that while determining whether a particular entity is a Public
Authority or not, narrow interpretation of the words used in the statute would frustrate the object of
the Act. The purpose of this Act is transparency and accountability in the functioning of entities
which impact citizens' daily lives. The Political Parties are such entities. He has relied on para 41 of
the Delhi High Court judgment delivered by Justice Ravindra Bhat in Indian Olympic Association
-Vs- Veerish Malik and others(WP)(C) No. 876/2007 as eXtracted below :-
"The Act marks a legislative milestone in the post independence era to further
democracy. It empowers citizens and information applicants to demand and be
supplied with information about public records. Parliamentary endeavor is to e Xtend
it also to public authorities which impact citizens daily lives. The Act mandates
disclosure of all manner of information and abolishes the concept of locus standi of
the information applicant; no justification for applying (for information) is necessary;
decisions and decision making processes, which affect lives of individuals and groups
of citizens are now open to eXamination. Parliamentary intention apparently was to
empower people with the means to scrutinize government and public processes, and
ensure transparency. At the same time, the need of society at large, and Governments
as well as individuals in particular, to ensure that sensitive information is kept out of
bounds have also been accommodated under the Act."
27. Yet another submission of the complainant is that the Political Parties are being indirectly
financed by the State in various ways viz. allotment of land, free of cost, or at nominal rates and
eXemptions from the Income Tax etc. Paras 3.1 to 3.7 of his representation are eXtracted below :-
"3.1 All Political Parties claim to work for the people and in the national interest.
Income tax returns of Political Parties obtained by ADR using the RTI Act reveal that
on an average only about 20 per cent of the income of Political Parties comes from
donations that they disclose to the Election Commission under section 29C of the

Representation of People Act. The sources of the remaining 80 per cent of the income
are shrouded in mystery. This is what gives rise to all kinds of speculation about the
pernicious influence of illegal money.
3.2 After various RTI applications filed to the central agencies, it was discovered that
Political Parties enjoy a number of "facilities" provided to them by the government.
This is a clear instance of being "financed indirectly by funds provided by the
appropriate government" which puts Political Parties squarely under the definition of
'public authority' as provided for in section 2(h)(d)(ii) of the RTI Act.
3.3 In addition to the 100% eXemption on income under section 13A of the Income
Tax Act, all the major Political Parties have been provided "facilities" for residential
and official use by Directorate of Estates (DOE), Government of India, in New Delhi.
They have been given offices and residential accommodations at prime locations in
New Delhi(Lutyen's Delhi) such as Akbar Road, Raisina Road, Chanakyapuri. The
rentals charged are a fraction of the market rent. These facilities are not just provided
to them at nominal rates but their maintenance, upgradation, modernization,
renovation, etc. are also done at State e Xpense. Similar "facilities" are also provided at
various State capitals, details of which are eXtremely difficult to obtain.
3.4 Money is also spent by Election Commission of India on Political Parties for providing
"facilities" to Political Parties such as free electoral rolls, Doordarshan and All India Radio also
provide free broadcast facilities to the Political Parties at election time which results in loss of
revenue in terms of air time which has a market value.
3.5 If closely monitored and totalled, the total of public funds spent on Political Parties would
possibly amount to hundreds of crores.
3.6 There have been several Judicial pronouncements and also decisions by the Central Information
Commission that have held that allotment of real estate, rental on subsidized rated, e Xemption from
tax of various types including income tax amount to "indirect financing" in terms of section 2(h)(d)
(ii) of the RTI Act. A few of the more useful citations are given below.
3.6.1 Land : The case that is relevant here is Civil Writ Petition No. 16750 of 2010, The Sutlej Club
vs. State Information Commission and another decided on 09.05.2011, commonly referred to as
CWP No. 19224 of 2006 alongwith 23 connected cases. The Punjab and Haryana High Court held as
follows :
"72. Now adverting to the financial help of petitioner-Sutlej Club, Ludhiana(at Sr. No.15) is
concerned, the SIC mentioned that as per revenue record, the land owned by the Provincial
Government is given to the Club which amounts to substantial financial assistance by the State
Government. The fact that the valuable land upon which the Club was constructed, belongs to the
Government and no rent/lease is paid by it to the Government shows that there is a substantial
financial assistance by the State to the Club. The cost of prime land provided to the club would be

much more than its normal revenue eXpenditure. Apart from land provided for construction of the
club building, the Government has also incurred a part of eXpenditure on its construction.....In my
view, the SIC has recorded the correct finding of fact based on the material on record, by virtue of
impugned order dated 8.7.2010.
3.6.2 Land and Income Tax concessions : A directly relevant case here, dealing with both, land and
income tax, was decided by the Central Information Commission on 11.01.2012. It was Mr. Tilak Raj
Tanwar vs Government of NCT of Delhi, File No. : CIC/AD/A/2011/001699. After considering all
aspects of the issue, the Commission decided as follows :
"12. The Commission while relying upon the various decisions given hereinabove is
convinced that the Mount St. Mary's School may be considered as being
"substantially financed" by the appropriate Governmen, in view of the 5 acres of
prime land granted to it at subsidized rates and income tax concessions being
enjoyed by the school and that, therefore, it can be declared as a Public authority".
3.6.3 EXemption from Tax : The case that is relevant here is Civil Writ Petition No. 16086 of 2008,
Punjab Cricket Association, SAS Nagar(Mohali) vs State Information Commission, Punjab and
another, decided on 09.05.2011, commonly referred to as CWP No. 19224 of 2006 alongwith 23
connected cases. The Punjab and Haryana High Court held as follows :
"68. Now adverting to the case of petitioner -PCA (at Sr. No.12), it is admitted
position that it is enjoying tax e Xemption from entertainment tax which is an direct
financial aid by the State to it. Although the SIC has negatived the plea of the
complainant-information seeker, but to my mind, the SIC has slipped into deep legal
error in this regard because the PCA is saving heavy amount from e Xemption of
entertainment tax which naturally is an incidence of financial aid by the Government.
3.6.4 Tax eXemption and nominal rent : Another case relevant here is Board of Control for Cricket
India and another vs Netaji Cricket Club and others [2005 AIR (SC) 5921]. The Supreme Court
observed as follows :
"80. The Board is a society registered under the Tamil Nadu Societies Registration
Act. It enjoys a monopoly status as regard regulation of the sport of cricket in terms
of its Memorandum of Association and Articles of Association. It controls the sport of
cricket and lays down the law therefor. It, inter alia, enjoys benefits by way of tax
eXemption and right to use stadia at nominal annual rent.
3.7 While it may well be argued that the above quoted decisions refer to institutions
such as schools, clubs which, in some characteristics, are different from Political
Parties but these decisions do recognize, accept and establish the principle that
eXemption from tax and allotment or permission to use land and other real estate is
an accepted form of "financing", though it may be considered "indirect" as it is not in
the physical form of money. And this principle is one of the factors that makes

Political Parties come under the definition of "public authority" as given in section
2(h) of the RTI Act."
28. More importantly, the complainant has contended that Political Parties have constitutional and
statutory status. It is his contention that incorporation of Articles 102(2) and 191(2) through the
42nd Amendment and the 10th Schedule to the Constitution has given constitutional status to the
Political Parties. According to him, it is a fallacy to say that any individual can form a political party.
A body or entity does not become a political party in the legal sense until it is registered by the
Election Commission of India under section 29A of the Representation of the People Act, 1951, and
this registration lends it the colour of Public Authority.
29. Lastly, the complainant has also contended that in e X ercise of its powers, the Election
Commission of India under Elections Symbols (Reservation and Allotment) Order, 1968,
promulgated under article 324 of the Constitution and Rules 5 & 10 of the Conduct of Election
Rules, 1961, grants symbols to various Political Parties for election purposes for the recognition of
Political Parties and can suspend or withdraw recognition of recognized Political Parties on their
failure to observe model code of conduct or not following the lawful directions and instructions of
the Commission. It is indicative of the public character of the Political Parties.
30. It may be further mentioned that Shri S. Sudhakar Reddy, General Secretary, Communist Party
of India, sent a letter dated 24.9.2012 to the Commission stating therein that the Political Parties do
not come under the ambit of section 2(h) of the RTI Act. The relevant paragraphs of his letter are
eXtracted below:-
"Com. A.B. Bardhan, the then General Secretary has written a letter eXpressing
willingness to keep the accounts of our Party transparent. In our view, Political
Parties do not come under Section 2(h)(d)(ii) of the RTI Act. Notwithstanding this,
we have always been prepared to be transparent in our accounts.
We submit our accounts to Election Commission of India every year and every year
we submit our accounts to the Income Tad Department also. The accounts of our
Party are audited by internal audit committee and also by the Chartered Accountant.
It is then submitted to our Party National Council for obtaining their approval. We
are prepared to make all the income and eXpenditure of our Party transparent."
31. On the other hand, Shri A.B. Bardhan, General Secretary, CPI, in letter dated 21.3.2011
addressed to Shri Anil Bairwal has stated that CPI is a Public Authority under section 2(h) of the
RTI Act. The relevant portion of his letter is eXtracted below :-
"(a) Yes, we are Public Authority under section 2(h)(d)(ii) "nongovernment

organizations" substantially financed, directly or indirectly, by funds provided by the
appropriate Government.
(b) We have our internal Appellate Authority "Central Control Commission".

32. It would, thus, appear that CPI has a contradictory stand in the matter, even while vouching for
transparency in their accounts.
33. Shri Ambeth Rajan has filed a counter affidavit dated 31.10.2012 on behalf of Bahujan Samaj
Party (BSP) in which he has taken the plea that the Political Parties are not public authorities under
section 2(h) of the RTI Act. Taking his argument further, he would submit that BSP is a political
party that has not been notified as public authority by means of any Notification of the appropriate
government to the effect that BSP is under control of or substantially financed by the appropriate
government. He has also contended that State funding on the electoral rolls during elections is done
merely to meet statutory obligations under the Registration of Electoral Rules, 1960. Similarly, tax
eXemption under section 13A of the IT Act is subject to the compliance of the provisions of Income
Tax Act. Further more, allotment of government/public land to the Political Parties on concessional
rates does not cloth the party into a public authority within the meaning of section 2(h) of the RTI
Act. Paras 04, 08 & 10 of his representation are eXtracted below:-
"4. That at the outset, I submit that the complainant has had no legal right to file
application under Section 6(1) of the Right to Information Act, 2005, against the
answering respondent for the reason that the Political Parties are not the public
authorities under Section 2(h) of the Right to Information Act, 2005. The Bahujan
Samaj Party being one of the siX national Political Parties duly recognized by the
Election Commission of India is, therefore, not a 'Public Authority' within the
meaning of Section 2(h) of Right to Information Act, 2005. Therefore, the present
complaint petition is liable to be dismissed.
- That I hereby submit that the BSP is a political party. It has not been notified as a
public authority by means of any notification of appropriate government to the effect
that BSP is owned, controlled or substantially financed by the appropriate
government. Merely because some concessions, rebate and subsidy has been granted
like it has been granted to any other political party, the BSP does not automatically
become a body owned, controlled or substantially financed by the appropriate
government.
10. That in view of the above, the present complaint petition against the answering
respondent is legally not maintainable only on the ground that there is a State
funding on free air time during elections on Doordarshan and All India Radio. The
State funding on the electoral roll during elections is done to meet statutory
obligations under Registration of Electoral Rules, 1960, which mandates that two
copies of the electoral roll, one printed copy and another in CD is supplied to

recognized Political Parties, free of cost. Further Tax eXemption u/s 13A of the
Income Tax Act is again subject to the compliance of the provisions of the Income
Tax Act. The allotment of Government/public offices of Political Parties on
concessional rent does not clothe the political party into a public authority within the
meaning of Section 2(h) of Right to Information Act, 2005."
34. Shri Amit Anand Tiwari, counsel for Nationalist Congress Party(NCP), has argued at length to
canvass that NCP is not a public authority. He has also filed a detailed representation in this regard.
It is his contention that the NCP does not fall within the ambit of section 2(h) of the RTI Act. He has
refuted the arguments advanced by the complainants that the Political Parties are substantially
financed by the Government. His contention is that free airtime granted to NCP during the election
time on national television and national radio is not suggestive of government financing in as much
as during elections, it is a popular practice in most of the democracies. He has referred to the case of
Canada in this conteXt. Further, according to him, supply of free electoral rolls during elections to
NCP, again, is not indicative of financing by the Government. It is his contention that under rule
11(C) of the Registration of Electoral Rolls, 1960, the Registration Officer is mandated to provide
two copies of Electoral Rolls, free of cost, to Political Parties registered under section 29A of the
Representation of People Act. This is a statutory requirement and cannot be construed as
substantially financing. Similarly, allotment of party office to NCP at economical rates cannot be
construed as substantial financing in as-much- as the Government makes this facility available not
only to Political Parties recognized by the Election Commission but also to other segments of
population such as journalists etc. Further more, it is Shri Tiwari's contention that e Xemption from
Income Tax granted under section 13A of the Income Tax Act also does not mean that the NCP is
substantially financed by the Government. He has given the e Xample of Income Tax eXemption to
the farmers but by virtue of this, the farmers cannot be designated as public authority under section
2(h) of the RTI Act.
35. Without prejudice to the above arguments, Adv. Tiwari has argued that even if it is admitted that
the Government is funding the Political Parties in the manner mentioned herein above, it cannot be
said to be 'substantial financing'. It is his contention that the NCP receives less than 1.55% of its total
funding from the Government and, therefore, cannot be construed as public authority. Paragraphss
13.1 and 13.2 of his representation are eXtracted below:-
"13.1 In Mohd. Safdar Iman v Indian Institute of Welfare (dated 5.1.2008), this
Hon'ble Commission held that the respondent institute was not a public authority
mainly because it received not more than 20% of grant-in-aid from the government,
which cannot be deemed to be substantial financing. In Sh. Shanmuga Patro v Rajiv
Gandhi Foundation (Decision No. 6010/IC(A)/2010), THIS Hon'ble Commission has
considered DAV College case and its own decision in Mohd. Safdar Imam" and held
that since the respondent body received a very nominal amount of grants from the
Government amounting to barely 4%, it cannot be said to be a public authority on
account of being substantially financed by the Government. In DAV College & Trust
and Management Society v. Director of Public Institutions & Ors. (AIR 2008 P&H
117), the Punjab & Haryana High Court held that where the appellant society was

receiving 45% of grant-in-aid from Government, it was being substantially financed
by the Government, thus a 'public authority' under section 2(h) of the RTI Act.
13.2 From the above stated judicial precedents and definitions, it becomes clear that
every financing would not bring a person within the purview of section 2(h). Such
financing must be apparently considerable and done through subscribing of shares or
advancing of loans etc. In cases where financing has been less than 20% of the total
finance of the authority or body or organization, same was held not to be substantial
financing within the meaning of Section 2(h)."
36. Adv. Tiwari has filed additional submissions dated 1.11.2012 for NCP in which he has made the
following salient points :-
(i) The power eXercised by the Political Parties under the 10th Schedule of the Constitution cannot
be construed to mean that the Political Parties are public authorities under section 2(h) in as much
as these powers can be eXercised only when an elected Member has voted or abstained from voting
against the whip of the political party or he has voluntarily given up the membership of such
political party. Even in such cases, the political party cannot disqualify a Member of Legislature. All
that it can do is to move an application seeking disqualification of such elected Member before the
Chairman/Speaker of the House who has e Xclusive authority to declare such elected Member to be
disqualified or otherwise.
(ii) No doubt, Political Parties have played a significant role in public life but public interest is not
the criterion for declaring a body or institution as public authority under section 2(h) of the RTI Act.
(iii) If Political Parties are declared to be public authorities,, then they will be flooded with
applications by pseudo information seekers to maliciously engage the party workers only in
responding to the RTI applications thereby causing detriment to their political functioning. The law
laid down by the High Court in the Indian Olympic Association case, Commonwealth Games
Committee case and Sanskriti School case is not applicable to the Political Parties in as much as
there was evidence of huge direct financing by the Government to these bodies/entities which is not
true in case of Political Parties.
(iv) Public interest argument is not valid in case of Political Parties under section 11 of the RTI Act.
If this argument is accepted, then the identities of the contributors would have to be disclosed and
the contributors may not like this to happen. Such disclosure may e Xpose them to harassment and
threats by other Political Parties.
(v) In decision dated 8.7.2009 of a Single Bench of this Commission in Complaint No.
CIC/MISC/2009/0001 & CIC/MISC/2009/0002, it was held that Political Parties are not covered
under section 2(h) of the RTI Act.
(vi) In the decision dated 5.2.2010 of Goa State Information Commission (Shri Pandu Ram -Vs- the
President, Maharashtrabadi Gomantak Party), it was held that MGP was not established or

constituted under any enactment of State Legislature or by any Notification or order by the
Government. Nor was it owned or substantially financed by the State Government and, therefore,
was not a public authority.
37. Shri Shanti Prasad Aggarwal of the BJP, in his letter dated 28.5.2011, addressed to the
complainant S.C. Agrawal has taken the stand that the BJP is not a public authority under the RTI
Act.
38. Similarly, Shri Moti Lal Vora, Treasurer, AICC, in letter dated 20.5.2011 addressed to
complainant S.C. Agrawal has taken the stand that the INC/AICC does not come under the purview
of public office and, hence, is not liable to provide information under the RTI Act.
39. After hearing the arguments, the Commission decided to address a letter dated 8.11.2012 to the
following Political Parties:-
o Nationalist Congress Party

o Bahujan Samaj Party
o Bhartiya Janata Party
o Communist Party of India
o Communist Party of India(Marxist)
o INC/ All India Congress Committee
seeking from them the following information :-
"(A) Details of lands/buildings allotted by Govt. and its instrumentalities

to
(a) in Delhi
(b) in State Capital(s)
(c) at Distt; HQrs;
In the following format, category wise :-
(i) Year of allotment
(ii) Postal address of plots/buildings.
(iii) Size of plots/buildings.
(iv) Whether any consideration paid to Central or State
Govt. amount thereof.
(v) Whether the lands/buildings were allotted at market
rate concessional rate.
(vi)
The estimated value of plots/buildings at
present(proper
(B) Amount of contributions received by your Party during the last
five years i.e. 2007-08 to 2011-12, year-wise.
(C) Incomes received by your Party from any other sources during the
last financial years i.e. 2007-08 to 2011-12."

40. Only two parties viz. NCP and CPI(M) chose to respond to the Commission's notice. The other
Political Parties simply ignored it.
41. Shri S.R. Kohli, Parliamentary Secretary, NCP, in letter dated 22.11.2012 informed the
Commission that his party was not covered under section 2(h) of the RTI Act and, therefore, it was
not bound to supply any information.
42. However, Shri Prakash Karat, General Secretary, CPI(M) wrote a detailed letter dated 21.11.2012
to the Commission in which he gave details of the two buildings allotted to CPI(M) viz : A.K.
Gopalan Bhawan - Plot Nos. 27, 28 & 29 at Market Road, measuring 1197.33 Sq Mts. allotted on
22.11.1983 and Kotla Road Plot Nos. 10, 11, 12 & 13, measuring 2534.46 sq. mts., allotted on
11.12.2008. As regards A.K. Gopalan Bhawan plot, he informed the Commission that the Party had
deposited security amount of Rs. 31.42 lacs with licence fee of Rs. 78,574/-. As regards Kotla Road
plot, the Party had paid premium of Rs.53.80 lacs with ground rent of Rs. 1,34,512/- per annum.
Shri Karat has also clarified that the Party has only lease-hold rights on the plots under reference.
Shri Karat has also given details of the income of the party from 2007- 08 to 2011-12. But as regards
the question of the quantum of tax eXemption availed by the Party, he took the following stand
"Parliament took the decision to e Xempt the income of the Political Parties from Income Tax
liabilities with the aim to strengthen the democratic polity in the country as Political Parties and
their activities are its important components."
He also added that it is not a fact that all persons making contributions enjoy full tax eXemption on
the amounts contributed to Political Parties.
43. It needs to be underlined that it has been the tenor of the arguments advanced by the
complainants herein that the Political Parties are substantially financed, albeit indirectly, by the
appropriate Government(Central Government in this case) by way of :-
Allotment of large tracts of land in prime areas of Delhi either free of cost or at concessional rates;
Allotment of houses on rental basis on concessional rates.
Exemption from Income Tax u/s 13-A of the I.T. Act

Free air time on All India Radio;
Free air time on Door Darshan, and
Provisioning of free electoral rolls etc.
44. The Commission had written to the Secretary, Ministry of Urban Development, Government of
India, New Delhi, to confirm the position regarding the allotment of plots to various Political
Parties, as claimed by the complainants. The Deputy Land & Development Officer, in his letter dated
21.5.2013, has written to the Secretary of the Commission regarding the allotment of land to various
Political Parties. The operative portion of his letter is reproduced below:-

"I am directed to refer to your letter No. Secy/CIC/2013/Misc./02 dated 7th March,
2013 and 16th April, 2013 on the above mentioned subject and to provide
information available in this office in respect of Table-1 as under :-
S.No. Name of party Location Area

1. All India Committee of Dr. Rajender Prasad Road 4736.1 sq.
Indian National Congress (also known as Jawahar 4583.32
sq.
Bhawan Trust), Kotla Road, 8093 sq.
mt Pkt.9A.
2. Rashtriya Janata Dal Kotla Road Plot Nos. 34, 1904 sq.mts
57, 58 & 59
3. Communist Party of Market Road, Plot Nos. 1197.33
sq. India(Marxist) 27, 28 & 29
4. Samajwadi Party Vasant Kunj, Plot No.1 1 acre
5. Communist Party of India Kotla Road, Plot No.15 0.3 acre
6. Bhartiya Janata Party Between Dr. Rajinder 1.87 acre
(National Level) Prasad Road-Raisina Road

7. Janata Dal(United) Vasant Vihar, Plot No.4 2000
s
8. Bhartiya Janata Party Kotla Road, Plot No.4 & 5, 1060.8
(Delhi State) alternative
9. All India Anna Dravida Pushp Vihar, M.B. Road, 1008
10. Delhi Pradesh Congress Rouse Avenue, Plot No.2 1127.7

Committee
11. All India Trinamool DDU Marg, Plot No.2 & 3 1000
s Congress
It is informed that the information provided in the Table-I is factually correct and the
allotments were made to these Political Parties on institutional land rates of this
office. Copies of allotment letters in respect of above mentioned Political Parties are
enclosed herewith."
45. The terms and conditions of allotment to AICC/INC are contained in the
DL&DO's letter dated 19.7.2007. Para 2(i) of the said letter is reproduced below :-
"(i) The allottee will pay the premium of land @ Rs. 88 Lakh per acre provisionally
plus 2.5% thereof as annual ground rent. This rate was valid up to 31.3.2000. The
allottee shall have to pay difference of premium in case the land rates are revised
retrospectively by the Government. w.e.f. 1.4.2000. The allottee shall submit an
undertaking to this effect on a non-judicial stamp paper worth Rs. 10/-."
46. The land has been allotted to other Political Parties also more or less on the same
terms and conditions. However the earlier allotments made to various Political
parties were at lower rates.

47 The Commission has received another letter dated 15.5.2013 from the Director of
Estates enclosing therewith allotment of government accommodation to various
Political Parties on monthly rental as eXtracted below:-
Sl. Name of parties Address of Allotment License Current monthly No. Govt. Letter deed rent
charged Accommo from parties dation
1. Indian National Congress 26, Akbar Enclosed---------Rs.8,632/- + Committee Road Furniture

charges
2. Indian National Congress 24, Akbar Enclosed Enclosed Rs.68,571/-
Road Fu
ch
3. Indian National Congress 5, Enclosed ------
Raisina Fu
Road ch
4. Indian National Congress C-II/109, Enclosed -------- Fu

Chanakya- ch
puri
5. Bhartiya Janata Party 11,Ashoka --------- --------- Fu
Road ch
6. Bhartiya Janata Party 14,Pandit Pant

Enclosed Enclosed Fu
Marg ch
7. C.P.I. AB-4, --------- ----------

Purana
Quila
Road
8. Nationalist Congress 10, Dr.B. ---------- ----------
Party D. Marg
9. President
Samaj PartyBahujan 4, G.R.G.
Road Enclosed Enclosed
10. Samajwadi Party 18, Coper- Enclosed Enclosed
Nicus
Road
11. Shri Prakash Karat, 8, Teen --------- ---------
General Secretary, Murti
CPI(M) Lane
48 Before proceeding further in this matter, it would be pertinent to have a

l
registration, recognition and functioning of Political Parties as per the eXisting law/rules. The
following salient points need to be underlined :-
The Political Parties are registered with the Election Commission of India(ECI) under
section 29A of the Representation of People Act, 1951. For the purposes of R.P. Act

and elections, an association/body gets the status of political party only on its
registration with the ECI under section 29A.
Para 16A of the Election Symbols (Reservation & Allotment) Order, 1968, empowers ECI to suspend
or withdraw the recognition of a political party if it refuses to follow the lawful directions and
instructions of the Commission or if it refuses to observe the provisions of the Model Code of
Conduct.
As per Supreme Court judgment in Common Cause -Vs- Union of India (AIR 1996 SC-3081), ECI is
empowered under Article 324 of the Constitution to require the Political Parties to submit details of
eXpenditure incurred by them in connection with elections.
ECI has directed the Political Parties to submit their accounts within 90 days after general elections
in case of Lok Sabha and within 75 days in the case of Assembly elections.
Under Section 29C of the R.P. Act, a Political Party is required to report to the ECI in respect of
contributions received by it in eXcess of Rs. 20,000/- from any person or Company.
The contributions made to the Political Parties are e Xempt from the Income Tax, both for the donor
and the donee.
Recognition of Political Parties is governed by the provisions of Election Symbols (Reservation and
Allotment), 1968, which is an order issued by ECI under Article 324 of the Constitution read with
Rules 5 & 10 of the Conduct of Election Rules, 1961, to provide for specification, reservation &
allotment of symbols and recognition of Political Parties and matters related thereto.
DECISION NOTICE AND REASONS
49. The Political Parties constitute one of the most important institutions in a constitutional
democracy. Prof. Harold J Laski in his classic te Xt "Grammar of Politics" has termed them 'natural',
though not 'perfect'. According to him, the life of a democratic State is built upon the party system.
Without Political Parties, there would be no means available of enlisting the popular decisions in a
politically satisfactory manner. To quote him "The life of the democratic State is built upon the
party-system and it is important at the outset to discuss the part played by party in the arrangement
of affairs. Briefly, that part may be best described by saying that parties arrange the issues upon
which people are to vote. It is obvious that in the confused welter of the modern State, there must be
some selection of problems as more urgent than others. It is necessary to select them as urgent and
to present solutions of them which may be acceptable to the citizen-body. It is that task of selection,
the party undertakes.
It acts, in Mr. Lowell's phrase, as the broker of ideas. From the mass of opinions, sentiments, beliefs,
by which the electorate moves, it chooses out those it judges most likely to meet with general
acceptance. It organizes persons to advocate its own view of their meaning. It states that view as the
issue upon which the voter has to make up his mind. Its power enables it to put forward for election

candidates who are willing to identity themselves with its view. Since its opponents will do the same,
the electorate, thereby, is enabled to vote as a mass and decision that would otherwise be chaotic,
assumes some coherency and direction.
What, at least, is certain, is that without parties there would be no means available to us of enlisting
the popular decision in such a way as to secure solutions capable of being interpreted as politically
satisfactory."
50. All modern democracies operate on a party system, some with two as in the USA and some
others with multiple Political Parties like in India. The Political Parties mobilize public opinion
around their ideologies and beliefs and contest elections to form government. No democracy can
eXist today without Political Parties. An ordinary citizen does not have direct access to the
government eXcept through his elected representative and cannot hope to be part of the government
without being a member of a Political Party. His membership of a legislature depends on his
membership of a Political Party to begin with. It is, thus, through the Political Parties that the
citizens of a democracy operationalise the democratic state. This is precisely what Prof Laski has
meant when he says that the eXistence of Political Parties gives the citizens of a country a viable
means to give shape to their political aspirations and beliefs by forming a government of their
choice. It will, therefore, not be an eXaggeration to say that no Political Party, no democracy. In view
of this central importance that they enjoy that the Political Parties have been given in our country
such enormous powers and benefits, through both constitutional and statutory arrangements so that
they can fulfill their just roles in representing their constituents.
51. The Political Parties, for eXample, play a critical role in the disqualification of legislators on
ground of defection. As per paragraph 02 of the Tenth Schedule, a Member of a House belonging to
any Political Party can be disqualified in certain circumstances. Paragraphs 01, 02 & 03 of Article 02
are eXtracted below:-
"2. Disqualification on ground of defection. - (1) Subject to the provisions of

paragraphs 3, 4 and 5, a member of a House belonging to any political party shall be
disqualified for being a member of the House--
(a) if he has voluntarily given up his membership of such political party;
or
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political
party to which he belongs or by any person or authority authorized by it in this behalf, without
obtaining, in either case, the prior permission of such political party, person or authority and such
voting or abstention has not been condoned by such political party, person or authority within
fifteen days from the date of such voting or abstention.

EXplanation - For the purposes of this sub-paragraph, --
(a) an elected member of a House shall be deemed to belong to the political party, if any, by which
he was set up as a candidate for election as such member;
(b) a nominated member of a House shall, --
(i) where he is a member of any political party on the date of

his
nomination as such member, be deemed to belong to such political party;
(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case
may be, first becomes, a member before the eXpiry of siX months from the date on which he takes
his seat after complying with the requirements of article 99 or, as the case may be, article 188.
(2) An elected member of a House who has been elected as such otherwise than as a candidate set up
by any political party, shall be disqualified for being a member of the House if he joins any political
party after such election. (3) A nominated member of a House shall be disqualified for being a
member of the House if he joins any political party after the e Xpiry of siX months from the date on
which he takes his seat after complying with the requirements of article 99 or, as the case may be,
article 188."
52. We may also take notice of certain statutory provisions in this regard. Section 29A of the
Representation of People (RP) Act, 1951, empowers the Election Commission of India (ECI) to
register Political Parties for the purposes of this Act. In other words, without such registration, a
Political Party cannot participate in the electoral process. Sub section (1) of 29-A is eXtracted below
:-
"(1) Any association or body of individual citizens of India calling itself a political
party and intending to avail itself of the provisions of this Part shall make an
application to the Election Commission for its registration as a political party for the
purposes of this Act."
53. Further, in eXercise of its powers under Article 324 of the Constitution read with section 29A of
the RP Act, 1951, and rules 05 and 10 of the Conduct of Election Rules, 1961, the Election
Commission has issued the Election Symbols (Reservation & Allotment) Order, 1968. This Order
has been issued for the purity of the elections in the Lok Sabha and the Legislative Assemblies of
States and in the interest of conduct of such elections in a fair and efficient manner and for "the
specification, reservation, choice and allotment of symbols for the recognition of Political Parties".
This order lays down conditions for recognition of the National Parties and the State Parties. The
Election Commission allots symbols to National and State Political Parties under para 08 of the
Order. This order also provides for allotment of symbols to unrecognized Political Parties. Para 16-A
of the order empowers the Commission to suspend or withdraw permission of a recognized political

party for its failure to observe the model code of conduct or follow lawful directions and instructions
of the Commission. Importantly, as per para 07 of the order, the Election Commission can issue
Notifications in the Gazette of India publishing therein the list specifying the National Parties/State
parties and the symbols respectively reserved for them. It can also issue Gazette Notifications in
respect of unrecognized Political Parties and addresses of their Headquarters etc.
54. At this stage, it would be useful to crystalise the outcome of discussion held hereinbefore. In
our view, the following facts clearly emerge:-
(A) Legal/General
(a) that the Political Parties are the building blocks of a constitutional
(b) that under Tenth Schedule of the Constitution, a Political Party can
have
Member of the House disqualified in certain circumstances;
(c) that a Political Party is required to be registered by the Election Commission of India under
section 29A of the Representation of People Act, 1951;
(d) that under section 29C of the RP Act, 1951, a Political Party is required to submit a report for
each Financial Year to the Election Commission of India in respect of contributions received by it in
eXcess of 20,000/- rupees from any person as also contributions in e Xcess of 20,000/- rupees
received from non-Government companies;
(e) that in eXercise of its powers under Article 324 read with section 29A of the RP Act, 1951 , and
rules 5 & 10 of the Conduct of Election Rules, 1961, the Election Commission has issued Election
Symbols(Reservation & Allotment) Order, 1968, under which election symbols are allotted to
various National/State Political Parties;
(f) that Election Commission can suspend or withdraw recognition of a recognized political party in
the event of violation of provisions of Election Symbol(Reservation & Allotment) Order, 1968;
(g) that Central Information Commission's order dated 29.4.2008 directing the Political Parties to
disclose their Income Tax Returns holds the field and is being complied with.
(B) Financial
(a) that the Land & Development Office of the Ministry of Urban Development has allotted large
tracts of land in Delhi to various Political Parties either free of cost or at concessional rates;
(b) that the Directorate of Estates, Ministry of Urban Development, has allotted accommodation in
Delhi to various Political Parties on rental basis at concessional rates;

(c) that Political Parties have been claiming and granted total tax eXemption under section 13A of
the Income Tax Act for all their income;
(d) that the State has been indirectly financing Political Parties by way of free air time on All India
Radio and Doordarshan of India during the elections; &
(e) that recognized Political Parties are issued copies of electoral rolls by the Election Commission,
free of cost, at the time of elections.
55. Section 2(h) of the RTI Act defines 'public authority' as follows :-
(h) "public authority" means any authority or body or institution of self-
Government established or constituted,--
(a) by or under the Constitution;

(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or made by the appropriate Government,

and includes any -
(i) body owned, controlled or substantially financed;
(ii) non-Government Organisation substantially financed,
directly or indirectly by funds provided by the appropriate Government;"
56. The issue to be determined is whether these si X political parties have the ingredients which
would qualify them to be public authorities within the meaning of section 2(h) of the Right to
Information (RTI) Act.
57. It is quite obvious that out of the many ways a public authority can be established or constituted,
those provided in (a), (b), (c) and (d) above would not apply to these political parties. They have not
been established or constituted by and under the Constitution; nor by any other law made by
Parliament or the State Legislature; nor are these bodies owned or controlled by any appropriate
government. We have to eXamine if these political parties would qualify under the remaining
provisions. It is also true that these political parties have not been established or constituted by any
specific notification issued or order made by an appropriate government as provided in (d) of this
particular section. However, it is pertinent to remember that they have been brought into e Xistence
first as political parties and then as national level political parties by the Election Commission of
India thereby entitling them to a host of benefits, the principal among them being the right to accept
contribution from both individual citizens and private companies and also to get complete income
tax eXemption on all their incomes. The other important benefit that accrues to these political
parties on account of their recognition by the Election Commission of India as national level
political parties is the common symbol on which their candidates can contest elections. Thus, if not
strictly within the letter of this particular provision (d), but at least, in spirit, these political parties
can be said to have been constituted by their registration by the Election Commission of India, a fact

akin to the establishment or constitution of a body or institution by an appropriate government.
58. Having said this, the neXt classification under which these political parties can be placed is what
is provided in section 2(h)(ii). According to this provision, any non- governmental organisation
which is substantially financed, directly or indirectly, by funds provided by the appropriate
government would become a public authority for the purpose of the Right to Information Act. Now,
the question is whether these political parties are being substantially financed, directly or indirectly,
by funds provided by the appropriate government. Both the parties in this case have placed
considerable importance in favour of and against this position. While the complainants have
submitted that the land and buildings provided to these political parties in the national capital at
Delhi and probably elsewhere in the States and the complete income tax eXemption provided to
them would amount to substantial financing, the political parties themselves have strongly argued
that whatever benefits they might have received from the Central Government would hardly amount
to any substantial financing. While it is true that the eXpression "substantial" has not been defined
in the Right to Information Act, in a number of decisions, the superior courts have held that
"substantial financing" need not be "majority financing". In other words, there must be evidence of
state funding which is not "insubstantial" of such non-governmental bodies to bring them within the
ambit of this particular provision. Keeping this in view, let us see if the tangible and intangible
financial benefits eXtended to these political parties would amount to substantial financing.
59. The Delhi High Court in its decision dated 14.5.2010 in Krishak Bharati Cooperative Ltd.
-Vs- Ramesh Chand Bawa (W.P. (C) 6129/2007 and W.P.(C) 7770/2008) has interpreted the words
"and includes" as follows :-
"13.
The eXpression "and includes" {Ref : Sec.2(d)}connotes that those entities which
answer the description following those words need not fall within the definition of
entities that precedes those words. The word "includes" is generally understood in
statutory interpretation as enlarging meaning of the phrases in the body of the
statute".
60. In t h e s a i d d e c i s i o n ( s u p r a ) , t h e H i g h C o u r t h a s a l s o o b s e r v e d " 1 9 .
In the conteXt of the RTI Act it may well be that a body which is neither a "state' for the purposes of
Article 12 nor a body discharging public functions for the purpose of Article 226 of the Constitution
might still be a 'public authority' within the meaning of Section 2(h)(d)(i) of the RTI Act. To state
differently, while a 'body' which is either a 'State' for the purposes of Article 12 or a 'body'
discharging public functions for the purpose of Article 226 is likely to answer the description of
'public authority' in terms of Section 2(h)(d)(i) of the RTI Act, the mere fact that such body is
neither, will not take it out of the definition of 'public authority' under Section 2(h)(d)(i) of the RTI
Act.

--------------------------------------------------------------------------"
61. It may now be pertinent to allude to certain decisions of the High Courts and this Commission in
this regard:-
(i) In Indian Olympic Association and others -Vs- Veeresh Malik & others (WP)(C) No. 876/2007
the Delhi High Court in its decision dated 7th January 2010, held that Indian Olympic Association is
a public authority under section 2(h). The relevant paragraph is eXtracted below:-
"Having regard to the pre-eminent position enjoyed by the IOA, as the sole
representative of the IOC, as the regulator for affiliating national bodies in respect of
all Olympic sports, armed with the power to impose sanctions against institutions
- even individuals, the circumstance that it is funded for the limited purpose of air
fare, and other such activities of sports persons, who travel for events, is not a
material factor. The IOA is the national representative of the country in the IOC; it
has the right to give its nod for inclusion of an affiliating body, who, in turn, select
and coach sportsmen, emphasizes that it is an Olympic sports regulator in this
country, in respect of all international and national level sports. The annual reports
placed by it on the record also reveal that though the IOA is autonomous from the
Central Government, in its affairs and management, it is not discharging any public
functions. On the contrary, the funding by the government consistently is part of its
balance sheet, and IOA depends on such amounts to aid and assist travel,
transportation of sportsmen and sports managers alike, serves to underline its public,
or predominant position. Without such funding, the IOA would perhaps not be able
to work effectively. Taking into consideration all these factors, it is held that the IOA
is "public authority" under the meaning of that eXpression under the Act."
(ii) In the same judgment, the Delhi High Court also held the Sanskriti School to be public authority.
The relevant paragraph is eXtracted below:-
"As discussed earlier, grants by the Government retain their character as public
funds, even if given to private organizations, unless it is proven to be part of general
public policy of some sort. Here, by all accounts, the grants - to the tune of Rs. 24
crores were given to the school, without any obligation to return it. A truly private
school would have been under an obligation to return the amount, with some
interest. The conditionality of having to admit children of employees of the Central
Government can hardly be characterized as a legitimate public end; it certainly would
not muster any permissible classification test under article 14 of the Constitution. The
benefit to the school is recurring; even if a return of 10% (which is far less than a
commercial bank's lending rate) is assumed for 6 years, the benefit to the school is to
the tune of Rs. 14.88 crores. This is apart from the aggregate grant of Rs. 24.8 crores,
and the nominal concessional rate at which the school was allotted land for
construction.

On a consideration of all the above factors, this court holds that the school fulfils the
essential elements of being a non-government organization, under Section 2(h) of the
Act, which is substantially financed by the Central Government, through various
departments, and agencies. It is therefore, covered by the regime of the Act."
(iv) In decision dated 22.4.2010 in Amardeep Walia -vs- Chandigarh Lawn Tennis Association (File
No. CIC/LS/C/2009/900377), the Central Information Commission held Chandigarh Lawn Tennis
Association to be public authority. Para 19 of the order is eXtracted below:-
"19. The gravamen of the above judgments is that for a private entity to qualify to be a
public authority, substantive financing does not mean 'majority' financing. What is
important is that the funding by the appropriate Government is achieving a "felt need
of a section of the public or to secure larger societal goals." The ratio of the above
judgments, particularly of Delhi High Court, applies to the present case on all the
fours. A huge property has been placed at the disposal of CLTA by the Chandigarh
Administration at a notional rental of Rs.100/- per annum. Besides, grant of one lakh
rupees was also given to CLTA in FY 2008-09. Concededly, CLTA fulfills the felt need
of a section of the society by way of imparting training to the budding tennis players.
It is, therefore, held that CLTA is a Public Authority."
(v) In another decision dated 21.1.2011 in Pradeep Bhanot -Vs- Chandigarh Club, Chandigarh (File
No. CIC/LS/A/2010/001184), the Central Information Commission held that the Chandigarh Club
was a public authority. The broad facts in this case were that a plot of land measuring 3.85 lacs sq.ft.
was leased out to the Club at the rent of Rs. 1,08,208/- per month w.e.f. 20.7.2005 to 19.7.2010 with
annual increase of 5%. The Finance Department of Chandigarh Administration had submitted
before the Commission that the aforesaid rent was not at par with the market rent. Considering the
totality of circumstances, the Commission had concluded that Chandigarh Club was public authority
under section 2(h). Paras 03 & 04 of the order are eXtracted below :-
"3. We have now received a response from the Finance Department of the
Chandigarh Administration under the signatures of the Joint Secretary, Finance.
Paras 02 & 03 thereof are eXtracted below :-
"2. In this regard it is informed that the bodies like Chandigarh Club etc are providing
the public service and while fiXing the rate of rent in such bodies, this aspect is taken
into consideration. In view of the public services being provided by these bodies, the
said bodies can not be termed as commercial sites. Due to this reason, the rent of
Chandigarh Club was fiXed as Rs 1,08,208/- per month with effect from 20.7.2000
with annual increase of 5%. It is not out of place to mention here that other similarly
situated bodies like Chandigarh Golf Club and Chandigarh Golf Association which are
also providing the public services have been kept at par with Chandigarh Club while
determining the rate of rent. In case we consider the Chandigarh Club as commercial
site, then the rent comes out to be rupees to 3157400 per month. Keeping in view the
urban character of the city, rent being charged from the Chandigarh Club is not at par

with the market rent. Further, by charging the rent at a lower rate, it will make amply
clear that the Chandigarh Administration is indirectly financing the promotion of
services being rendered by the Chandigarh Club.
3. In view of the aforesaid circumstances and in view of the fact that said club is being
indirectly financed for promotion of public services by the Chandigarh
Administration the same is squarely covered under the definition of 'public authority'
as defined under section 2 (h) (ii) of the RTI Act, 2005."
4. In view of the categorical position taken by the Chandigarh Administration

eXtracted above and the fact that there is vast differential between the monthly rental
being paid by the Chandigarh Club and the commercial rent that the premises could
fetch in the open market (as estimated by the Finance Deptt), we are of the opinion
that the Chandigarh Club is being indirectly financed by the Chandigarh
Administration. In this view of the matter, we hold that the Chandigarh Club is
'public authority' u/s 2 (h) (ii) of the RTI Act. Hence, the club management is hereby
directed to put in place a mechanism for servicing the RTI Act."
( v i i ) F u r t h e r - m o r e , in A m r i t M e h t a -V s - I n d i a I n t e r n a t i o n a l C e n t r e ( F i l e No.
CIC/WB/A/2009/000965/LS) decided on 1.2.2011, the Commission held that India International
Centre is a public authority under section 2(h). The broad facts in this case were that 4.69 acres of
prime land was given on perpetual lease to IIC against deposition of Rs. 1,68,840/- as per
agreement signed on 22.4.1960 between the President of India and IIC. The yearly rent payable by
IIC to the Central Government was Rs. 8,442/- which has remained unchanged during the last five
decades. In the facts of the case, the Commission had held as follows :-
"XVIII. In view of the above discussion, it clearly emerges that a huge chunk of land
measuring 4.69 acres was allotted to IIC in 1968 at a premium of Rs. 1,68,840/- only,
obviously, at a concessional rate. The agreement between the parties eXpressly speaks
of concessional allotment of land. Further, IIC was required to pay rent of Rs. 8,442/-
per year to the Central Government and this amount has remained unchanged during
the l a s t 52 y e a r s . T h i s is a l s o c l e a r l y i n d i c a t i v e of the r e n t b e i n g
nominal/concessional in nature. These facts clearly establish that the Central
Government has indirectly financed IIC. The RTI Act does not define 'substantial
financing'. The eXpression 'substantial financing' has to be interpreted in the conte Xt
of a specific case. This has been so held by the Punjab and Haryana High Court in
Civil Writ Petition No. 19224/2006(The Hindu Urban Cooperative Bank Ltd. -Vs-
State Information Commission, Punjab) eXtracted above. Considering the fact that a
huge chunk of land was allotted to IIC in 1960 in the very heart of the capital city of
Delhi at a premium of Rs.1,68,840/- only and also considering the fact that IIC is
paying rent of only Rs. 8,442/- per year to the Central Government over all these
years, in our opinion, amounts to indirect substantial financing of IIC by the Central
Government. In this view of the matter, we hold that IIC is a Public Authority under
section 2(h) of the RTI Act."

(vii) Yet another decision of this Commission needs to be adverted to in this connection. 6,000 Sq.
Mts. of land was allotted to Delhi Public School, Rohini, by DDA at a highly subsidised rate of Rs. 65
lacs per acre in February, 1997. Another plot of land measuring 10,000 sq. mtrs. was also allotted to
DPS, Rohini, for a play ground on temporary basis on payment of nominal ground rent of only Rs.
10/- per annum. The question before the Commission was whether DPS, Rohini, can be deemed to
be a Public Authority in terms of section 2(h) of the RTI Act. Vide decision dated 23.8.2011 in File
No. CIC/SG/C/2010/001036/AD, this Commission held that in the facts and circumstances of the
case, DPS, Rohini, is a Public Authority under section 2(h). The reasoning given by the Commission
is encapsulated in the para eXtracted hereinafter.
"Considering the above factual matriX of the case at hand, one can sum up that 6000
sq. mts of land has been given to the school at a concessional rate of Rs. 65 lacs per
acre and 1-0,000 sq. mts of land at a highly subsidised nominal ground rent of Rs.
10/- per Annum by DDA. The School is under the governance, control and regulation
of the Delhi Schools Education Act 1973, Rule 50 whereof mandates disclosure of
information in the form of reports etc. to the Director of the Directorate of Education,
the Administrator and concerned authority from the Central Government, as already
discussed above. The Directorate of Education has appointed two nominees in the
key Managing Committee of the School thereby ensuring position of power of
managing affairs of the School and having control over the Respondent School."
62. The question before the Commission is whether INC/AICC, BJP, CPI(M), CPI, NCP and BSP can
be held to be Public Authorities under section 2(h) of the RTI Act. The complainants have adduced
the following three principal grounds to persuade the Commission to hold that the aforesaid
Political Parties are Public Authorities viz:-
(i) Indirect substantial financing by the Central Government;
(ii) Performance of public duty by the Political Parties; and
(iii) Constitutional/legal provisions vesting Political Parties with rights and liabilities.
63. Now we will take these facets one by one.
Substantial financing of Political Parties by the Central Govt.
64. The complainant has vehemently pleaded that Political Parties are substantially financed by the
Central Government in multiple ways. The first and foremost method of indirect financing is
allotment of large tracts of land in prime areas of Delhi either, free of cost, or at concessional rates.
Information supplied by complainant Shri Anil Bairwal is depicted in a tabular form at para 18(iv) of
this order. This information has been confirmed to the Commission by L&DO as per details given in
para 43 of this order.

65. Even allowing for the margin of error in the estimation of the value of land allotted to various
political parties by complainant Shri Bairwal, we have reasons to believe that this land has been
allotted at hugely concessional rates. The lease value of these properties in the open market has not
been placed before us. Even so, we strongly believe that the premium and the lease rent being
charged from the Political Parties does not reflect the true value of these properties. This, in our
considered opinion, amounts to indirect financing and when added to the income tax e Xemption
enjoyed by these political parties, it would amount to substantial financing.
66. We may also like to add that the complainants have proffered information before the
Commission in regard to the lands allotted at Delhi by the Central Government. We are informed
that such allotments have also been made at the State capitals by the State Governments. If so, this
only reinforces the complainants' contention that the appropriate Governments have indirectly
financed Political Parties in a big way.
67. Another method of financing of Political Parties by the Central Government is allotment of
houses on rental basis on concessional rates. Information given by the complainant, Shri Bairwal in
this regard is mentioned at para 17 of this order which need not be repeated. The Directorate of the
Estates, Ministry of Urban Development has also corroborated allotment of various properties to
these political parties on rental basis. The rent being charged from the Political Parties is shown in
the last column of the said table. The rental value of these properties in the open market has not
been placed before us. Even so, we strongly believe that the rent being charged from the Political
Parties does not reflect the true rental value of these properties. This arrangement also contributes
to the indirect financing of Political Parties.
68. Of the various benefits that the central government e Xtends to these political parties, the total
eXemption from payment of income tax on their incomes, very obviously, constitutes the most
important benefit. Section 13 A of the Income Tax Act reads as follows:
"Any income of a political party which is chargeable under the head income from house property or
income from other sources or capital gains or any income by way of voluntary contributions received
by a political party from any person shall not be included in the total income of the previous year of
such political party:
Provided that -
(a) such political party keeps and maintains such books of account and other documents as would
enable the assessing officer to properly deduce its income therefrom;
(b) in respect of each such voluntary contribution in e Xcess of Rs. 20,000, such political party keeps
and maintains a record of such contribution and the name and address of the person who has made
such contribution; and
(c) the accounts of such a political party are audited by an accountant as defined in the e Xplanation
below subsection 2 of section 288:

Provided further that if the treasurer of such political party or any other person authorised by that
political party in this behalf fails to submit a report under subsection 3 of section 29C of the
Representation of the People Act 1951 for the financial year, no eXemption under this section shall
be available for that political party for such financial year."
69. Since these political parties have not paid any income tax, the e Xact quantum of money that the
Central Government has forgone in the process has not been worked out specifically. However, since
the level of income of all these political parties would place them in the highest slab of income tax, at
least 30% of their total income would have been collected as income tax but for the total e Xemption
given to them by law. By a simple calculation, this would show that the Central Government has
bestowed financial benefits on the si X political parties to the e Xtent of the amount shown against
each as per the following table:
Party Tax Payable Tax payable Tax payable Tax payable

exempted in exempted in exempted in exempted in 3
FY 2006-07(Rs FY 2007-08 (Rs FY 2008-09 (Rs years (Rs
crores) crores) crores) crores)
BJP 26.86 40.68 73.71 141.25

INC 57.00 75.05 168.87 300.92
BSP 15.44 23.60 0.80 39.84
CPI(M) 6.98 4.62 6.53 18.13
CPI 0.01 0.21 0.02 0.24
NCP 0.90 0.68 8.06 9.64
70. Thirty per cent of their income which these political parties would have otherwise paid by way of
income tax has been given up in their favour by the Central Government. No one can dispute that
this is substantial financing, though indirectly. Added to this the concessional allotment of land and
buildings in prime locations in the national capital and, probably, in several state headquarters, if
not at district level also, the total amount of direct and indirect financing/funding of these political
parties is considerable. On behalf of the political parties, it has been argued that the income tax
e X emption cannot be said to be a form of financing. In support of this argument, they have
submitted that such concessions and eXemptions are routinely eXtended to many charitable and
non-profit non-governmental organisations across the country. Therefore, according to them, if
those numerous non- governmental organisations are not considered to be public authorities, there
is no reason why the political parties should be considered so. We cannot accept this argument.
There is a great difference between the tax e Xemption given to charitable and non-profit non-
governmental organisations and that given to the political parties. The e Xemption given to the
former is strictly conditional: full or part eXemption is given to these organisations only if they
pursue the objectives outlined in their respective charters, be it the memorandum of association and
bye-laws in case they are societies or the trust deeds, in case they are private trusts. There are other
strict conditions laid down in the Income Tax Act which the assessee must comply with. In other
words, if any of these non-governmental organisations are found not to be pursuing their objectives
or spending the tax eXempt amount on activities other than what is enshrined in their respective

charters or not comply with the conditions, their entire income becomes subject to taxation,
sometimes with penalty. On the other hand, the tax e Xemption given to the political parties is
complete, the only condition being that they must report to the Election Commission of India, every
year, the details of all the contributors who contribute Rs. 20,000 or more to the political party
concerned. Thus, the political parties enjoy an almost unfettered eXemption from payment of
income tax, a benefit not enjoyed by any other charitable or non-profit non-governmental
organisations.
71. It has been also argued before us that Political Parties are beneficiaries of free air time on All
India Radio. The amounts spent by the State in this regard on AIR for Lok Sabha Elections - 2009 in
respect of various Political Parties is depicted in para 18(ii) of this order. Similarly, the amounts
spent by the State on free air time on Doordarshan on various Political Parties is depicted in para
18(iii). These amounts may be small but they contribute to the kitty of Political Parties at the
Government cost.
72. In view of the above, we are of the considered opinion that Central Government has contributed
significantly to the indirect financing of Political Parties in-question.
73. However, the question remains whether the aforesaid financing can be held to be 'substantial
financing' in terms of section 2(h)(d)(i) of the RTI Act. Justice Ravindra Bhat of Delhi High Court in
judgment dated 7.1.2010 in Indian Olympic Association -vs- Veeresh Malik and Ors. (WP)(C) No.
876/2007 has observed that the eXpression 'Public Authority' has to be interpreted liberally and not
restrictively. Paras 45 & 46 of his order are eXtracted below :-
"45. Now, if the parliamentary intention was to e Xpand the scope of the definition
"public authority" and not restrict it to the four categories mentioned in the first part,
but to comprehend other bodies or institutions, the ne Xt question is whether that
intention is coloured by the use of the specific terms, to be read along with the
controlling clause 'authority ... of self government" and "established or constituted by
or under" a notification. A facial interpretation would indicate that even the bodies
brought in by the eXtended definition :
(i) "Body owned, controlled or substantially financed;
(ii) Non-Government organization substantially financed, directly or indirectly by

funds provided by the appropriate Government." are to be constituted under, or
established by a notification, issued by the appropriate government. If, indeed, such
were the intention, sub-clause (i) is a surplusage, since the body would have to be one
of self government, substantially financed, and constituted by a notification, issued
by the appropriate government. Secondly - perhaps more importantly, it would be
highly anomalous to eXpect a'non-government organization" to be constituted or
established by or under a notification issued by the government. These two internal
indications actually have the effect of e Xtending the scope of the definition "public
authority"; it is, thus, not necessary that the institutions falling under the inclusive

part have to be constituted, or established under a notification issued in that regard.
Another significant aspect here is that even in the inclusive part, Parliament has
nuanced the term; sub-clause (i) talks of a "body, owned, controlled or substantially
financed" by the appropriate government (the subject object relationship ending with
sub-clause (ii). In the case of control, or ownership, the intention here was that
irrespective of the constitution (i.e. it might not be under or by a notification), if there
was substantial financing, by the appropriate government, and ownership or control,
the body is deemed to be a public authority. This definition would comprehend
societies, co-operative societies, trusts, and other institutions where there is control,
ownership, (of the appropriate government) or substantial financing. The second
class, i.e. non-government organization, by its description, is such as cannot be
"constituted" or "established" by or under a statute or notification.
46. The term "non-government organization" has not been used in the Act. It is a
commonly accepted eXpression. Apparently, the eXpression was used the first time, in
the definition of "international NGO" (INGO) in Resolution 288(X) of ECOSOC on
February 27, 1950 as "any international organization that is not founded by an
international treaty". According to Wikipedia "...Non- governmental organization
(NGO) is a term that has become widely accepted as referring to a legally constituted,
non-governmental organization created by natural or legal persons with no
participation or representation of anygovernment. In the cases in which NGOs are
funded totally or partially by governments, the NGO maintains its non-governmental
status and e X cludes government representatives from membership in the
organization. Unlike the term intergovernmental organization, "non-governmental
organization" is term in general use but is not a legal definition. In many jurisdictions
these types of organization are defined as "civil society organizations" or referred to
by other names..." Therefore, inherent in the conte X t of a "non-government"
Organization is that it is independent of government control in its affairs, and is not
connected with it. Naturally, its e Xistence being as a non-state actor, the question of
its establishment or constitution through a government or official notification would
not arise. The only issue in its case would be whether it fulfills the "substantial
financing" criteria, spelt out in Section 2(h). Non-government organizations could be
of any kind; registered societies, co-operative societies, trusts, companies limited by
guarantee or other juristic or legal entities, but not established or controlled in their
management, or administration by state or public agencies."
74. As to the question of 'substantial financing', the Delhi High Court in the said judgment has held
that 'majority' test is not appropriate to decide whether or not an Organisation is substantially
financed, directly or indirectly, by the appropriate Government. It has been observed that financing
in percentage terms in relation to the total budget of the body is not important. To quote:-
"60. This court therefore, concludes that what amounts to "substantial" financing
cannot be straight-jacketed into rigid formulae, of universal application. Of necessity,
each case would have to be eXamined on its own facts. That the percentage of funding

is not "majority" financing, or that the body is an impermanent one, are not material.
Equally, that the institution or organization is not controlled, and is autonomous is
irrelevant; indeed, the concept of nongovernment organization means that it is
independent of any manner of government control in its establishment, or
management. That the organization does not perform - or pre-dominantly performs -
"public" duties, too, may not be material, as long as the object for funding is
achieving a felt need of a section of the public, or to secure larger societal goals. To
the eXtent of such funding, indeed, the organization may be a tool, or vehicle for the
eXecutive government's policy fulfillment plan. This view, about coverage of the
enactment, without any limitation, so long as there is public financing."
75. A similar view has been taken by the Karnataka High Court in Bangalore International Airport
Limited - Vs - Karnataka Information Commission (WP 12076/2008) The operative para of the
order dated 9.2.2010 is eXtracted below :-
"It is to be noticed that as observed earlier, wording, "non-government organisation

substantially financed, directly or indirectly" is required to be split into two. Whether
the non-government organisation is substantially financed directly that is the cash
flow would come from the Government agency or indirectly which would necessarily
mean that the eXemptions are granted to the non-government organisation. In the
case on hand, it is to be noticed that a perusal of the agreements would conclusively
go to show that the petitioner- BIAL is a beneficiary of innumerable e Xemptions
which, if one were to translate into cash flow would certainly cascade into a
substantial amount. Another factor which is required to be taken note of is large
chunk of land to the eXtent of 4000 acres of prime agricultural land is acquired by
paying enormous amounts as compensation to the farmers who owned the lands. It is
estimated that this amount would run into hundred of crores ."
. The Learned Judge further held that :-
"Let us now consider what are the implications of the words 'substantially financed'.
It is obvious that as per Section 2(h)(i) "body substantially financed" would be a body
where the ownership may not lie with the Government, nor the control. Hence clearly
the wording 'substantially financed' would have to be given meaning at less than 50%
holding. The company law gives significant rights to those who own 26% of the shares
in a company. Perhaps this could be taken to define the criterion of 'substantial
finance'. The finance could be as equity or subsidies in land or concession in
taxation".
76. The gravamen of the above judgments is that for a private entity to qualify to be a public
authority, substantial financing does not mean majority financing. What is important is that the
funding by the appropriate Government is achieving a "felt need of a section of the public or to
secure larger societal goals". The ratio of the above judgments, particularly of Delhi High Court,
applies to the present case. Large tracts of land in prime areas of Delhi have been placed at the

disposal of the Political Parties in-question at e Xceptionally low rates. Besides, huge Government
accommodations have been placed at the disposal of Political Parties at hugely cheap rates thereby
bestowing financial benefits on them. The Income Tax e Xemptions granted and the free air time at
AIR and Doordarshan at the time of elections also has substantially contributed to the financing of
the Political Parties by the Central Government. We have, therefore, no hesitation in concluding that
INC/AICC, BJP, CPI(M), CPI, NCP and BSP have been substantially financed by the Central
Government and, therefore, they are held to be public authorities under section 2(h) of the RTI Act.
Performance of Public Duty
77. The Political Parties are the life blood of our polity. As observed by Laski "The life of the
democratic state is built upon the party system". Elections are contested on party basis. The Political
Parties select some problems as more urgent than others and present solutions to them which may
be acceptable to the citizens. The ruling party draws its development programs on the basis of its
political agenda. It is responsible for the growth and development of the society and the nation.
Political Parties affect the lives of citizens, directly or indirectly, in every conceivable way and are
continuously engaged in performing public duty. It is, therefore, important that they became
accountable to the public.
78. Political Parties are the unique institution of the modern constitutional State. These are
essentially political institutions and are non-governmental. Their uniqueness lies in the fact that
inspite of being non-governmental, they come to wield or directly or indirectly influence e Xercise of
governmental power. It would be odd to argue that transparency is good for all State organs but not
so good for Political Parties, which, in reality, control all the vital organs of the State.
79. In the W.P. No.12076 of 2008 dated 9.2.2010 in the case of Bangalore International Airport
Limited vs Karnataka Information Commission, the Karnataka High Court has held that:-
"A public authority may be described as a person or administrative body entrusted

with functions to perform for the benefit of the public and not for private profit. Not
every such person or body is e Xpressly defined as a public authority or body, and the
meaning of a public authority or body may vary according to the statutory conte Xt;
one of the distinguishing features of an authority not being a public authority, is
profit making. It is not incumbent that a body in order to be a public body must
always be constituted by a statute; for an authority to be a 'public authority' it must
be an authority eXercised or capable of being eXercised for the benefit of the public"
80. The purity of elections assumes critical significance in this conteXt. In Union of India vs.
Association of Democratic Reforms & Anr (AIR 2002 SC 2112), the Supreme Court has laid
emphasis on the purity of elections in the following words:-
"To maintain the purity of elections and in particular to bring transparency in the
process of election, the Commission can ask the candidates about the e Xpenditure
incurred by the Political Parties and this transparency in the process of election

would include transparency of a candidate who seeks election or re-election. In a
democracy, the electoral process has a strategic role. The little man of this country
would have basis elementary right to know full particulars of a candidate who is to
represent him in Parliament where laws to bind his liberty and property may be
enacted."
81. The National Commission to Review the Working of the Constitution in its report submitted in
March 2002 has recommended that Political Parties as well as individual candidates be made
subject to a proper statutory audit of the amounts they spend. In Common Cause (A Registered
Society vs. Union of India) (AIR 1996 SC 3081), the Supreme Court has dealt with the income and
eXpenditure incurred by the Political Parties and has laid emphasis on transparency on election
funding.
82. The people of India must know the source of e Xpenditure incurred by Political Parties and by the
candidates in the process of election. These judicial pronouncements unmistakably commend
progressively higher level of transparency in the functioning of Political Parties in general and their
funding in particular.
83. We may also add that the preamble to the Constitution of India aims at securing to all its
citizens: JUSTICE, social, economic and political; LIBERTY of thought, e Xpression, belief, faith and
worship; and, EQUALITY of status and of opportunity. Coincidentally, the preamble of RTI Act also
aims to promote these principles in the form of transparency and accountability in the working of
the every public authority. It also aims to create an 'informed citizenry' and to contain corruption
and to hold government and their instrumentalities accountable to the governed. Needless to say,
Political Parties are important political institutions and can play a critical role in heralding
transparency in public life. Political Parties continuously perform public functions which define
parameters of governance and socio-economic development in the country.
84. In view of the nature of public functions performed by Political Parties and the dicta of the High
Court eXtracted above, we conclude that Political Parties in question are Public Authorities under
section 2(h) of the RTI Act.
Constitutional/legal provisions vesting Political Parties with rights and liabilities
85. The appellants have also contended that Political Parties have constitutional and legal rights and
liabilities and, therefore, need to be held to be Public Authorities. The argument runs thus. Political
Parties are required to be registered with the ECI under section 29A of the R.P. Act, 1951 - a Central
Legislation. An association or body gets the status of a political party on its registration. ECI awards
symbols to Political Parties under the Election Symbols(Reservation and Allotment) Order, 1968,
only after registration. The ECI calls for details of eXpenses made by the Political Parties in the
elections. Contributions of the value of Rs. 20,000/- and above received from any person or a
Company by a Political Party are required to be intimated to ECI under section 29C of the R.P. Act.
ECI is vested with the superintendence, direction and control of elections under Article 324 of the
Constitution. ECI is also vested with the authority to suspend or withdraw recognition of a political

party in certain contingencies. More importantly, Political Parties can recommend disqualification
of Members of the House in certain contingencies under the Tenth Schedule. The contention is that
the aforesaid constitutional/statutory powers of Political Parties bring them in the ambit of section
2(h).
86. We find the above submissions quite compelling and unerringly pointing towards their character
as public authority.
Stand of Political Parties
87. It may be recalled that the INC/AICC and the BJP have made a bland assertion that they are not
Public Authorities under the RTI Act. CPI(M) has disclosed some information to the Commission
regarding allotment of land to it by the Central Government on certain terms and conditions but has
not conceded that it is Public Authority under section 2(h) of the RTI Act. The contentions of the
above parties have to be rejected in the light of findings recorded herein above.
88. Interestingly, the CPI office bearers have taken a contradictory stand. While Shri A.B. Bardhan
in his letter dated 21.3.2011 addressed to Shri Anil Bairwal has stated that CPI is a Public Authority
under section 2(h), on the other hand Shri Sudhakar Reddy, vide letter dated 24.9.2012 sent to the
Commission, has taken the stand that Political Parties do not fall in the ambit of section 2(h). As the
stand of CPI is confusing, it does not call for any comments.
89. However, the submissions made by Shri A.A. Tiwari, counsel for Nationalist Congress Party
need to be dealt with at some length. It is his contention that free air time granted to the NCP during
the elections on National Television and National Radio does not amount to government financing
of NCP as it is a popular practice in other democracies of the world. According to him, free
provisioning of electoral rolls of Political Parties is a statutory requirement and cannot be construed
as substantial financing. Similarly, allotment of plots of land/Government accommodation to
Political Parties at economical rates cannot be construed as substantial financing. Similarly, tax
eXemption under section 13A given to Political Parties under the provisions of the statute also
cannot be construed as financing of Political Parties by the Central Government.
90. The arguments of Shri Tiwari cannot be accepted by us in the light of statutory provisions and
the case law referred to hereinabove and they have to be rejected. We may further add that his
contention that NCP has received less than 1.55% of its total funding from the Government also
cannot be accepted by us as he has not produced any figures before us to substantiate this claim.
Further, assuming that these figures are true, this contention is liable to be rejected on the ground
that NCP, being a Political Party, performs public functions, which along with other reasons
mentioned above, qualifies it to be Public Authority under section 2(h).
91. Yet another contention of Shri Tiwari is that if Political Parties are held to be Public Authorities,
then the political rivals would maliciously flood their CPIOs with numerous RTI applications at the
time of elections thereby wasting their time and energy and, thus, causing detriment to their
political functioning. In our view, the validity of a statute cannot be questioned only on the basis of

presumption of its possible misuse. On the contrary, we are of the opinion that bringing the Political
Parties in the ambit of RTI Act is likely to usher an era of transparency in their functioning. Besides
it would result in strengthening of democracy and democratice institutions in the country. In view of
the above discussion, we do not find any merit in the submissions of Adv. Tiwari and reject the
same.
92. In view of the above discussion, we hold that INC, BJP, CPI(M), CPIO, NCP and BSP have been
substantially financed by the Central Government under section 2(h)(ii) of the RTI Act. The
criticality of the role being played by these Political Parties in our democratic set up and the nature
of duties performed by them also point towards their public character, bringing them in the ambit of
section 2(h). The constitutional and legal provisions discussed herein above also point towards their
character as public authorities. The order of the Single Bench of this Commission in Complaint No.
CIC/MISC/2009/0001 and CIC/MISC/2009/0002 is hereby set aside and it is held that AICC/INC,
BJP, CPI(M), CPI, NCP and BSP are public authorities under section 2(h) of the RTI Act.
93. The Presidents, General/Secretaries of these Political Parties are hereby directed to designate
CPIOs and the Appellate Authorities at their headquarters in 06 weeks time. The CPIOs so
appointed will respond to the RTI applications e Xtracted in this order in 04 weeks time. Besides, the
Presidents/General Secretaries of the above mentioned Political Parties are also directed to comply
with the provisions of section 4(1) (b) of the RTI Act by way of making voluntary disclosures on the
subjects mentioned in the said clause.
94. The complaints are disposed off as per the above directions.
(Mrs. Annapurna Dixit) (M. L.

Shar
Information Commissioner Information Commis
( Satyananda Mishra )
Chief Information Commissioner
Authenticated true copy. Additional copies of orders shall be supplied against application and
payment of the charges, prescribed under the Act, to the Additional Registrar of this Commission.
( Aakash Deep Chakravarti ) Joint Secretary (Law) & Additional Registrar

The Secretary, Ministry Of ... vs Cricket Association Of Bengal & ... on 9 February, 1995
Equivalent citations: 1995 AIR 1236, 1995 SCC (2) 161
Author: P Sawant
Bench: Sawant, P.B.
PETITIONER:
THE SECRETARY, MINISTRY OF INFORMATION & BROADCASTING,
Vs.
RESPONDENT:
CRICKET ASSOCIATION OF BENGAL &
ANR. DATE OF JUDGMENT09/02/1995
BENCH:
SAWANT,
P.B.
BENCH:
SAWANT, P.B.
MOHAN, S.
(J)
JEEVAN REDDY, B.P. (J)
CITATION:
1995 AIR 1236 1995 SCC (2) 161
JT 1995 (2) 110 1995 SCALE (1)539
ACT:
HEADNOTE:
JUDGMENT:
1. Leave granted.
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 e Xercise 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 con-
trolled 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
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 e Xpression 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. Al- though, 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 e Xcept 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 e Xcept 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 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 T.V. Centre which in turn relays it through its own
frequencies to all the viewers who have T.V.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 T.V. 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 T.V. 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 T.V. 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].

7. This takes us to the content of the fundamental right to the freedom of speech and e Xpression
guaranteed by Article 19 [1] (a) and the implications of the restrictions permitted to be imposed on
the said right, by Article 19 [2]. We will first deal with the decisions of this Court where the
dimensions of the right are delineated.
8. In Romesh Thappar v. The State of Madras [1950 SCR 594] the facts were that the Provincial
Government in eXercise of its powers under Section 9 [1-A] of Madras Maintenance of Public Order
Act, 1949, by an order imposed a ban upon the entry and circulation of the petitioner's journal
'Cross Roads'. The said order stated that it was being passed for the pur-
pose of securing the public safety and the maintenance of public order. The petitioner approached
this Court under Article 32 of the Constitution claiming that the order contravened the petitioner's
fundamental right to freedom of speech and eXpression. He also challenged the validity of Section 9
[1-A] of the impugned Act. The majority of the Court held that the freedom of speech and e Xpression
includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation.
In support of this view, the Court referred to two decisions of the U.S. Su- preme Court viz., [1]
EXparte Jackson [96 US 727] and [ii] Lovell v. City of Griffin [303 US 444] and quoted with
approval the following passage therefrom: "Liberty of circulation is as essential to that freedom as
the liberty of publication. Indeed, without circulation the publication would be of little value".
Section 9 [1-A] of the impugned Act authorised the Provincial Government, "for the purpose of
securing the public safety or the maintenance of public order, to prohibit or regulate the entry into
or the circulation, sale or distribution in the Province of Madras or any part thereof or any document
or class of documents". The question that the Court had to answer was whether the impugned Act
insofar as it contained the aforesaid provision was a law relating to a matter which undermined the
security of, or tended to overthrow the State. The Court held that "public order" is an e Xpression of
wide connotation and signifies that state of tranquility which prevails among the members of a
political society as a result of the internal regulations enforced by the Government which they have
established. The Act was passed by the Provincial Leg- islature under Section 100 of the
Government of India Act, 1935, read with Entry I of List II of the Seventh Scheduled to that Act.
That Entry, among others, comprised "public order" which was different from "public safety" on
which subject the Provincial Legislature was not competent to make a law. The Court distinguished
between "public order" and "public safety" and held that public safety was a part of the wider
concept of public order and if it was intended to signify any matter distinguished from and outside
the content of the eXpression "public order", it would not have been competent for the Madras
Legislature to enact the provision so far as it related to public safety. "Public safety" ordinarily
means security of the public or their freedom from danger. In that sense, anything which tends to
prevent danger to public health may also be regarded as securing public safety. The meaning of the
eXpression must, however, vary according to the conte Xt. The Court then rejected the argument that
the securing of the public safety or maintenance of public order would include the security of the
State which was covered by Article 19 [2] and held that where a law purports to authorise the
imposition of restrictions on a fundamental right in language wide enough to cover restrictions both
within and without the limits of constitutionally permissible legislative actions affecting such right,
it is not possible to uphold it even insofar as it may be applied within the constitutional limits as it is
not severable. So long as the possibility of its being applied for purposes not sanctioned by the

Constitution cannot be ruled out, it may be held to be wholly unconstitutional and void. In other
words, clause [2] of Article 19 having allowed the imposition of restrictions on the freedom of speech
and eXpression only in cases where danger to the State is involved, an enactment which is capable of
being applied to cases where no such danger could arise, cannot be held to be constitutional and
valid to any eXtent.
9. The above view taken by this Court was reiterated in Brij Bhushan & Anr. v. The State of Delhi
[1950 SCR 6051 where Section 7 [1] (c) of the East Punjab Public Safety Act, 1949 as e Xtended to the
Province of Delhi, providing that the Provincial Government or any authority authorised by it in this
behalf, if satisfied that such action was necessary for preventing or combating any activity
prejudicial to the public safety or the maintenance of public order, may pass an order that any
matter relating to a particular subject -or class of subjects shall before publication be submitted for
scrutiny, was held as unconstitutional and void. The majority held that the said provision was
violative of Article 19 [1] [a] since it was not a law relating to a matter which undermined the
security of, or tended to overthrow the State within the meaning of the then saving provision
contained in Article 19 [2]. The Court further unanimously held that the imposition of pre-
censorship of a journal was a restriction on the liberty of the press which was an essential part of the
right to freedom of speech and eXpression declared by article 19 [1](a).
10. In Hamdard Dawakhana [Wakf] Lal Kuan, Delhi & Anr. v. Union of India & Ors. [(1960) 2 SCR
671], the Court held that the object of the Drugs and Magic Remedies [Objectionable
Advertisements] Act, 1954 was the prevention of self-medication and self-treatment by prohibiting
instruments which may be used to advocate the same or which tended to spread the evil. Its object
was not merely the stopping of advertisements offending against morality and decency. The Court
further held that advertisement is no doubt a form of speech but its true character is reflected by the
object for the promotion of which it is employed. It is only when an advertisement is concerned with
the eXpression or propagation of ideas that it can be said to relate to freedom of speech but it cannot
be said that the right to publish and distribute commercial advertisements advertising an
individual's personal business is a part of the freedom of speech guaranteed by the Constitution. The
provisions of the Act which prohibited advertisements commending the efficacy, value and
importance in the treatment of particular diseases of certain drugs and medicines did not fall under
Article 19 [1] (a) of the Con- stitution. The scope and object of the Act, its true nature and character
was not interference with the right of freedom of speech but it dealt with trade and business. The
provisions of the Act were in the interest of the general public and placed reasonable restrictions on
the trade and business of the petitioner and were saved by Article 19 [6]. The Court further held that
the first part of Section 8 of the impugned Act which empowered any person authorised by the State
Government to seize and detain any document article or thing which such person had reason to
believe, contained any advertisement contravening the provisions of the Act imposed an
unreasonable restriction on the fundamental rights of the petitioner and was unconstitutional.
According to the Court, the said operation of Section 8 went far beyond the purposes for which the
Act was enacted and failed to provide proper safeguards in regard to the e Xercise of the powers of
seizure and detention as had been provided by the legislature in other statutes. However, if this
operation was eX-

cised from the section the remaining portion would be unintelligible and could not be upheld.
11. In Sakal Papers [P] Ltd. & Ors.. v. The Union of India [(1962)] 3 SCR 842] what fell for
consideration was the Newspaper [Price and age] Act, 1956 which empowered the Central
Government to regulate the prices of newspapers in relation to their pages and size and also to
regulate the allocation of space for advertising matters and the Central Government order made
under the said Act, viz., the Daily Newspaper [Price and Page] Order, 1960 which fiXed the
maximum number of pages that might be published by the newspaper according to the price
charged and prescribing the nature of supplements that could be issued. The Court held that the Act
and the Order were void being violative of Article 19 [1] (a) of the Constitution. They were also not
saved by Article 19 [2]. The Court asserted that the freedom of speech and e Xpression guaranteed
by Article 19 [1]
(a) included the freedom of the press. For propagating his ideas a citizen had the right to publish
them, to disseminate them and to circulate them, either by word or mouth or by writing. The right
eXtended not merely to the matter which he was entitled to circulate but also to the volume of
circulation. Although the impugned Act and the Order placed restraints on the volume of
circulation, their very object was directed against circulation. Thus both interfered with the freedom
of speech and eXpression. The Court held that Article 19 [2] did not permit the State to abridge the
said right in the interest of general public. The Court also held that the State could not make a law
which directly restricted one guaranteed freedom for securing the better enjoyment of another
freedom. Freedom of speech could not be restricted for the purpose of regulating the commercial
aspect of the activities of newspapers. In this connection, the following observations of the Court are
relevant:
"Its object thus is to regulate something which, as already stated, is directly related to
the circulation of a newspaper. Since circulation of a newspaper is a part of the right
of freedom of speech the Act must be regarded as one directed against the freedom of
speech. It has selected the fact or thing which is an essential and basic attribute of the
conception of the freedom of speech, viz., the right to circulate one's views to all
whom one can reach or care to reach for the imposition of a restriction. It seeks to
achieve its object of enabling what are termed the smaller newspapers to secure
larger circulation by provisions which without disguise are aimed at restricting the
circulation of what are termed the larger papers with better financial strength. The
impugned law far from being one, which merely interferes with the right of freedom
of speech incidentally, does so directly though it seeks to achieve the end by
purporting to regulate the business aspect of a newspaper. Such a course is not
permissible and the courts must be ever vigilant in guarding perhaps the most
precious of all the freedoms guaranteed by our Constitution. The reason for this is
obvious. The freedom of speech and e X pression of opinion is of paramount
importance under a democratic Constitution which envisages changes in the
composition of legislatures and governments and must be preserved. No doubt, the
law in question was made upon the recommendation of the Press Commission but
since its object is to affect directly the right of circulation of newspapers which would

necessarily undermine their power to influence public opinion it cannot but be
regarded as a dangerous weapon which is capable of being used against democracy
itself.
XXXXXX The legitimacy of the result intended to be achieved does not necessarily
imply that every means to achieve it is permissible; for even if the end is desirable
and permissible, the means employed must not transgress the limits laid down by the
Constitution, if they directly impinge on any of the fundamental rights guaranteed by
the Constitution it is no answer when the constitutionality of the measure is
challenged that apart from the fundamental right infringed the provision is otherwise
legal.
Finally it was said that one of its objects is to give some kind of protection to small or
newly started newspapers and, therefore, the Act is good. Such an object may be
desirable but for attaining it the State cannot make inroads on the right of other
newspapers which Art. 19 [1] (a) guarantees to them. There may be other ways of
helping them and it is for the State to search for them but the one they have chosen
falls foul of the Constitution. To repeat, the only restrictions which may be imposed
on the rights of an individual under Art. 19 [1] (a) are those which cl. [2] of Art 19
permits and no other".
12. In Bennett Coleman & Co. & Ors. v. Union of India & Ors. [(1972) 2 SCC 788], the majority of the
Constitution Bench held that newspapers should be left free to determine their pages, their
circulation and their new edition within their quota which has been fi Xed fairly. It is an abridgment
of 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 its page
structure and circulation of different editions of same paper. The compulsory reduction to ten pages
offends Article 19 [1] (a) and infringes the freedom of speech and e Xpression. FiXation of page limit
will not only deprive the petitioners of their economic viability, but will also restrict the freedom of
eXpression by reason of the compulsive reduction of page level entailing reduction of circulation and
including the area of coverage for news and views. Loss of advertisements may not only entail the
closing down, but will also affect the circulation and thereby impinge on freedom of speech and
eXpression. The freedom of press entitles newspapers to achieve any volume of circulation. It was
further held that the machinery of import control cannot be utilised to curb or control circulation or
growth or freedom of newspapers.The news print control policy was in effect a newspaper control
policy and a newspaper control policy is ultra vires the Import Control Act and the Import Control
Order. The majority further held that by the freedom of press is meant the right of citizens to speak
and publish and eXpress their views. The freedom of the press embodies the right of the people to
read and it is not ante-thetical to the right of the people to speak and e Xpress. The freedom of speech
and eXpression is not only in the volume of circulation but also in the volume of news and views. The
press has the right of free publication and their circulation without any obvious restraint on
publication. If the law were to single out press for laying down prohibitive burdens on it that would
restrict circulation, penalise 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]. The First Amendment to the American Constitution
contains no eXception like our Article 19 [2]. Therefore, American decisions have evolved their own
eXceptions. The American decisions establish that a Government regulation is justified in America
as an important essential Government interest which is unrelated to the suppression of free
eXpression. The true test is whether the effect of the impugned action is to take away or abridge
fundamental rights. The object of the law or eXecutive action is irrelevant when it is established that
the petitioner's fundamental right is infringed.
13. In Indian EXpress Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India & Ors. [(1985) 1 SCC
641 ], the Court held that the eXpression "freedom of the press" has not been used in Article 19, but
it is comprehended within Article 19 [1]
(a). This eXpression means a freedom from interference from authority which would have the effect
of interference with the content and circulation of newspapers. There cannot be any interference
with that freedom in the name of public interest. The purpose of the press is to advance the public
interest by publishing facts and opinions without which democratic electorate cannot make
responsible judgments. Freedom of the press is the heart of social and political intercourse. It is the
primary duty of the Courts to up- ,,hold the freedom of the press and invalidate all laws or
administrative actions which interfere with it contrary to the constitutional mandate. The freedom
of eXpression has four broad social purposes to serve: [i] it helps an individual to attain self
fulfilment, [ii] it assists in the discovery of truth, [iii] it strengthens the capacity of an individual in
participating in decision-making and [iv] it provides a mechanism by which it would be possible to
establish a reasonable balance between stability and social change. All members of the society
should be able to form their own beliefs and communicate them freely to others. In sum, the
fundamental principle involved here is the people's right to know. Freedom of speech and
e X pression should, therefore, receive a generous support from all those who believe in the
participation of people in the administration. It is on account of this special interest which society
has in the freedom of speech and eXpression that the approach of the Government should be more
cautious while levying taxes on matters concerning newspaper industry than while levying taxes on
other matters.The Courts are there always to strike down curtailment of freedom of press by
unconstitutional means. The delicate task of determining when it crosses from the area of
profession, occupation, trade, business or industry into the area of freedom of e Xpression and
interferes with that freedom is entrusted to the Courts. In deciding the reasonableness of
restrictions imposed on any fundamental right the Court should take into consideration the nature
of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the
disproportion of the imposition and the prevailing conditions including the social values whose
needs are sought to be satisfied by means of the restrictions. The imposition of a tax like the custom
duty on news print is an imposition of tax on knowledge and would virtually amount to a burden
imposed on a man for being literate and for being conscious of his duty as a citizen to inform himself
of the world around him. The pattern of the law imposing custom duty and the manner in which it is
operated, to a certain eXtent, eXposes the citizens who are liable to pay the custom duties to the
vagaries of eXecutive discretion.

14. In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana and others [(1988) 3 SCC 410 ],
it was held that the right of citizens to eXhibit films on Doordarshan subject to the terms and
conditions to be imposed by the Doordarshan is a part of the fundamental right of freedom of
eXpression guaranteed under Article 19 [1] (a) which can be curtailed only under circumstances set
out under Article 19 [2]. The right is similar to the right of citizen to public his views through any
other media such as newspapers, magazines, advertisement hoarding etc. subject to the terms and
conditions of the owners of the media. The freedom of eXpression is a preferred right which is
always very zealously guarded by the Supreme Court. However, on the question whether a citizen
has a fundamental right to establish a private broadcasting station or T.V. centre, the Court
reserved its opinion for decision in an appropriate case. The matter had come up before this Court
against an interim injunction order issued by the High Court as a result of which 12th and 13th
episodes of the film "Honi- Anhoni" could not be telecast on the scheduled dates. The Court held
that it was not the case of the writ petitioners before the High Court that the e Xhibition of the said
serial was in contravention of any specific law or direction issued by the Government. They had also
not alleged that the Doordarshan had shown any undue favour to the appellant and the sponsoring
institutions resulting in any financial loss to the public e Xchequer. The objection to the eXhibition of
the film had been raised by them on the basis that it was likely to spread false or blind beliefs among
the members of the public. They had not asserted any right conferred on them by any statute or
acquired by them under a contract which entitled them to secure an order of temporary injunction.
The appellant before this court had denied that the e Xhibition of the serial was likely to affect
prejudicially the wellbeing of the people. The Union of India and Doordarshan had pleaded that the
serial was being telecast after following the prescribed procedure and taking necessary precautions.
The writ petitioners had not produced any material. apart from their own statements to show" that
the eXhibition of the serial was prima facie prejudicial to the community. This Court held that the
High Court had overlooked that the issue of an order of interim injunction would infringe the
fundamental right of the producer of a serial. In the absence of any prima facie evidence of gross
prejudice that was likely to be caused to the public generally by the eXhibition of the serial, it was not
just and proper to issue an order of temporary injunction.
15. In S. Rangarajan v. P. Jagjivan Ram & Ors. [(1989) 2 SCC 574], it was held that the-freedom of
speech under Ar- ticle 19 [1] (a) means the right to e Xpress one's opinion by words of mouth,
writing, printing, picture or in any other manner. It would thus include the freedom of
communication and,their right to propagate or publish opinion. The communication of ideas could
be made, through any medium, newspaper, magazine or movie. But this right is subject to
reasonable restriction in the larger interests of the community and the country set out in Article 19
[2]. These restrictions are intended to strike a proper balance between the liberty guaranteed and
the social interests specified in Article 19 [2]. This is the difference between the First Amendment to
the U.S. Constitution and Article 19 of our Constitution. The decisions bearing on the First
Amendment are, therefore, not useful to us e Xcept the broad principle and purpose of the guarantee.
The Court, in this connection, referred to the U.S. decisions in Mutual Film Corporation v.
Industrial Commission [236 US 230 (1915)], Burslyn v. Wilson [343 US 495] and Schenck v. United
States [249 US 47]. The Court further held that there should be a compromise between the interest
of freedom of eXpression and social interests. The Court cannot simply balance the two interests as if
they are of equal weight. The Court's commitment to 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 interests. It should be inseparably locked up with the
action contemplated like the equivalent of a "spark in a powder keg". Though movie enjoys the
guarantee under Article 19 [1] (a), there is one significant difference between the movie and
other modes of communication. Movie motivates thought and action and assures a high degree of
attention and retention. In view of the scientific improvements in photography and production, the
present movie is a powerful means of communication. It has a unique capacity to disturb and arouse
feelings. It has much potential for evil as it has for good. With these qualities and since it caters for
mass audience who are generally not selective about what they watch, the movie cannot be equated
with other modes of communication. It cannot be allowed to function in a free marketplace just as
does the newspaper or magazines. Censorship by prior restraint is, therefore, not only desirable but
also necessary. But the First Amendment to the U.S. Constitution does not permit any prior
restraint, since the guarantee of free speech is in unqualified terms. Censorship is permitted mainly
on the ground of social interests specified under Article 19 [2] with emphasis on maintenance of
values and standards of society. Therefore, censorship with prior restraint must necessarily be
reasonable that could be saved by the well accepted principles of judicial review. The standard to be
applied by the board or courts for judging the film should be that of an ordinary man of common
sense and prudence and not that of an out of the ordinary or hypersensitive man. The board should
eXercise considerable circumspection on movies affecting the morality or decency of our people and
cultural heritage of the country. The moral values in particular, should not be allowed to be
sacrificed in the guise of social change or cultural assimilation. The path of right conduct shown by
the great sages and thinkers of India and the concept of 'Dharam' [righteousness in every respect],
which are the bedrock of our civilisation, should not be allowed to be shaken by unethical standards.
But this does not mean that the censors should have an orthodo X or conservative outlook. Far from
it, they must be responsive to social change and they must go with the current climate. However, the
censors may display more sensitivity to movies which will have a markedly deleterious effect to
lower the moral standards of those who see it.
16. However, the producer may project his own message which the others may not approve of it. But
he has a right to 'think out' and put the counter-appeals to reason. It is a part of a democratic give
and take to which one could complain. The State cannot prevent open discussion and open
eXpression, however hateful to its policies. Everyone has a fundamental right to form his own
opinion on any issue of general concern. He can form and inform by any legitimate means. The
democracy is a government by the people via open discussion. The democratic form of government
itself demands its citizens an active and intelligent participation in the affairs of the community. The
public discussion with people's participation is a basic feature and a rational process of democracy
which distinguishes it from all other forms of government.
17. Dealing with the film in question, the Court further observed that the film in the present case
suggests that the eXisting method of reservation on the basis of caste is bad and reservation on the
basis of economic backwardness is better. The film also deprecates e Xploitation of people on caste
consideration. This is the range and rigours of the film. There is no warrant for the view that the

eXpression in the film by criticism of reservation policy or praising the colonial rule will affect the
security of the State or sovereignty and integrity of India. There is no utterrance in the film
threatening to overthrow the government by unlawful or unconstitutional means or for secession;
nor is there any suggestion for impairing the integration of the country. Two Revising Committees
have approved the film. The members thereof come from different walks of life with variegated
eXperiences. They represent the cross-section of the community. They have judged the film in the
light of the objectives of the Act and the guidelines provided for the purpose. There is nothing wrong
or contrary to Constitution in approving the film for public eXhibition. The producer or as a matter
of fact, any other person has a right to draw the attention of the government and people that the
eXisting method of reservation in educational institutions overlooks merits. Whether this view is
right or wrong is another matter altogether and at any rate, the Court is not concerned with its
correctness or usefulness to the people. The Court is only concerned whether such a view could be
advocated in a film. To say that one should not be permitted to advocate that view goes against the
first principle of our democracy. If the film is unobjectionable and cannot constitutionally be
restricted under Article 19 [2], freedom of e Xpression cannot be suppressed on account of threat of
demonstration and processions or threats of violence. That would tantamount to negation of the
rule of law and a surrender to blackmail and intimidation. It is the duty of the State to protect the
freedom of eXpression since it is a liberty guaranteed against the State. The State cannot plead its
inability to handle the hostile audience problem. Freedom of e Xpression which is legitimate and
constitutionally protected cannot be held to ransom by an intolerant group of people. The
fundamental freedom under Article 19 [1] (a) can be reasonably restricted only for the purposes
mentioned in Article 19 [2] and the restriction must be justified on the anvil of necessity and not the
quicksand of convenience or eXpediency. Open criticism of government policies and operations is
not a ground for restricting eX- pression.
18. The views taken by this Court in the aforesaid decisions have thereafter been repeated and
reproduced in the subsequent decisions.
19. In Printers (Mysore) Ltd. & Anr v. Asst. Commercial Tax Officer & Ors. [(1994) 2 SCC 434], it is
reiterated that the special treatment given to the newspapers has a philosophy and historical
background. Freedom of press has been placed on a higher footing than other enterprises. Though
freedom of press is not eXpressly guaranteed as a fundamental right, it is implicit in the freedom of
speech and eXpression. Freedom of press has always been a cherished right in all democratic
countries. Therefore, it has rightly been described as the Fourth Estate. The democratic crede is of
a State are judged today by the eXtent of freedom the press enjoyed in that State. This decision
quotes from the. opinion of Douglas, J. in Terminiello v. Chicago [93 L.ed 1131: 337 US 1 (1949)]
that "acceptance by Government of a dissident press is a measure of the maturity of the nation".
20. In Life Insurance Corporation of India v. Professor Manubhai D. Shah [(1992) 3 SCC 6371, the
respondent-E X - ecutive Trustee of the Consumer Education and Research Centre [CERC],
Ahmedabad, after making research into the working of the Life Insurance Corporation [LIC],
published a study paper portraying the discriminatory practice adopted by the LIC by charging
unduly high premia from those taking out life insurance policies and thus denies access to insurance
coverage to a vast majority of people who cannot afford to pay the high premium. A member of the

LIC wrote a counter article and published it in the daily newspaper "Hindu". The respondent replied
to the same in the said newspaper. The member of LIC then published his counter- reply in LIC's
house magazine. The respondent requested the LIC to publish his rejoinder also in the said
magazine. That request was turned down. On these facts, the respondent filed a writ petition
before the High Court challenging the action of the LIC, among other things, on the ground that his
fundamental right under Article 19 [1]
(a) of the Constitution was violate by LIC by refusing to publish his reply. The High Court held that
under the pre- te X t and guise of publishing a house magazine, the LIC cannot violate the
fundamental rights of the petitioner. This Court endorsing the view taken by the High Court held
that the LIC is 'State' within the meaning of Article 12. The LIC Act requires it to function in the best
interest of the community. The community is, therefore, entitled to know whether or not this
requirement of the statute is being satisfied in the functioning of the LIC. The respondent's efforts in
preparing the study paper was to bring to the notice of the community that the LIC had strayed from
its path by pointing out that its premium rates were unduly high when they could be low if the LIC
avoided the wasteful indulgences. The endeavour was to enlighten the community of the drawbacks
and shortcomings of the LIC and to pinpoint the area where improvement was needed and was
possible. By denying to the policy-holders, the information contained in the rejoinder prepared by
the respondent, the LIC cannot be said to be acting in the best interest of the community. There was
nothing offensive in the rejoinder which fell within the restriction clauses of Article 19 [2]. Nor was
it prejudicial to the members of the community or based on imaginary or concocted material. On the
basis of the fairness doctrine the LIC was under an obligation to publish the rejoinder. The
respondent's fundamental right to speech and e Xpression clearly entitled him to insist that his
views on the subject should reach those who read the magazine so that they have complete picture
before them instead of a one-side or distorted picture The Court also pointed out that the attitude of
the LIC in refusing to publish the rejoinder in their magazine financed from public funds, can be
described as both unfair and unreasonable unfair because fairness demanded that both view-points
were placed before the readers and unreasonable because there was no justification for refusing
publication. The monopolistic State instrumentality which survives on public funds cannot act in an
arbitrary manner on the specious plea that the magazine is an in-house one and it is a matter of its
eXclusive privilege to print or refuse to print the rejoinder. By refusing to print and publish the
rejoinder', the LIC had violated respondent's fundamental right. The Court must be careful to see
that it does not even unwittingly' aid the effort to defeat the parties' right. Every free citizen has an
undoubted right to lay what sentiments he pleases before the public. Freedom to air one's views is
the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would
sound a death-knell to democracy and would help usher in autocracy or dictatorship. This Court has
always placed a broad interpretation on the value and content of Article 19 [1] (a), making it subject
only to the restrictions permissible under Article 19 [2]. Efforts by intolerant authorities to curb or
suffocate this freedom have always been firmly repelled, more so when public authorities have
betrayed autocratic tendencies. The Court then went on to observe:
broadly construed to include the freedom to circulate one's views by words of mouth
or in writing or through audio-visual instrumentalities. It, therefore, includes the
right to propagate one's views through the print media i.e., periodicals, magazines or

journals or through any other communication channel e.g. the radio and the
television. The right eXtends to the citizen being permitted to use the media to
answer the criticism levelled against the view propagated by him. The print media,
the radio and the tiny screen play the role of public educators, so vital to growth of a
healthy democracy. These communication channels are great purveyors of news and
views and make considerable impact on the minds of the readers and viewers and are
known to mould public opinion on vital issues of national importance. Modem
communication mediums advance public interest by informing the public of the
events and developments that have taken place and thereby educating the voters, a
role considered significant for the vibrant functioning of a democracy. Therefore, in
any set-up, more so in a democratic set-up like ours, dissemination of news and views
for popular consumption is a must and any attempt to deny the same must be
frowned upon unless it falls within the mischief of Article 19 [2].This freedom must,
however,be eXercised with circumspection and care must be taken not to trench on
the rights of other citizens or to jeopardise public interest.
A constitutional provision is never static, it is ever-evolving and ever-changing and,

therefore, does not admit of a narrow, pedantic or syllogistic approach. The Con-
stitution-makers employed broad phraseology while the fundamental tights so that
they may be able to cater to the needs of a changing society. Therefore, constitutional
provisions must receive a broad interpretation and the scope and ambit of such
provisions, in particular the fundamental rights, should not be cut down by too astute
or too restricted an approach, unless the conteXt otherwise requires.
21.The facts in the other case which was disposed of simultaneously by the same judgment were that
the Doordarshan refused to telecast a documentary film on the Bhopal Gas Disaster titled 'Beyond
Genocide' produced by the respondent Ciment Foundation on the grounds that [i] the film was
outdated, [ii] it had lost its relevance, [iii] it lacked moderation and restraint, [iv] it was not fair and
balanced, [v] political parties were raising various issues concerning the tragedy, [vi] claims for
compensation by the victims were sub judice, [vii] the film was.likely to create commotion in the
already charged atmosphere and [viii] the film criticised the action of the State Government and it
was not permissible under the guidelines. The respondent filed a writ petition in the High Court on
the ground of violation of his fundamental right under Article 19 [1] (a) and for a mandamus to the
Doordarshan to telecast the film. The High Court held that the respondent's right under Article 19
[1] (a) obliged the Doordarshan to telecast the film and directed the Doordarshan to telecast the film
at a time and date, convenient to it keeping in view the public interest, and on such terms and
conditions as it would like to impose in accordance with the law. In the appeal against the said
decision filed in this Court, the Court held that once it has recognised that the film maker has the
fundamental right under Article 19 [1] (a) to eXhibit the film, the onus lies on the party which claims
that it was entitled to refuse enforcement of this right by virtue of law made under Article 19 [2] to
show that the film did not conform to requirements of that law. Doordarshan being a
State-controlled agency funded by public funds could not have denied access to screen e Xcept on
valid grounds. The freedom conferred on a citizen by Article 19 [1] (a) includes the freedom to
communicate one's ideas or thoughts through a newspaper, a magazine or a movie. Traditionally,

prior restraints, regardless of their form, are frowned upon as threats to freedom of e Xpression since
they contain within themselves forces which if released have the potential of imposing arbitrary-
and at times direct conflict with the right of another citizen. Censorship by prior restraint, therefore,
seems justified for the protection of the society from the ill-effects that a motion picture may
produce if unrestricted eXhibition is allowed. Censorship is thus permitted to protect social interests
enumerated in Article 19 [2] and Section 5-B of the Cinema to graph Act. For this reason, need for
prior restraint has been recognised and our laws have assigned a specific role to the censors, as such
is the need in a rapidly changing societal structure. But since permissible restrictions, albeit
reasonable, are all the same restrictions, they are bound to be viewed as anathema, in that, they are
in the nature of curbs or limitations on the e Xercise of the right and are, therefore, bound to be
viewed with suspicion, thereby throwing a heavy burden on the authorities that seek to impose them
to show that the restrictions are reasonable and permissible in law. Such censorship must be
reasonable and must answer the test of Article 14.
22. In this connection, it will be interesting also to know the content of the right to freedom of
speech and eXpression under the First Amendment to the American Constitution where the freedom
of press is eXclusively mentioned as a part of the said right unlike in Article 19 [1] (a) of our
Constitution. Further, the restrictions on the right are not spelt out as in our Constitution under
Article 19 [2]. But the U.S. Supreme court has been reading some of them as implicit in the right. In
principle, they make no difference to the content of the right to the freedom of speech and
eXpression under our Constitution.
23. In National Broadcasting Company v. United States of America [319 US 190238 : 87 L ed 1344],
it was held, inter alia, that the wisdom of regulations adopted by the Federal Communications
Commission is not a matter for the courts, whose duty is at an end when they find that the action of
the Commission was based upon findings supported by evidence, and was made pursuant to
authority granted by Congress.
24. In Joseph Burstyn v Lewis A. Wilson [343 US 495: 96 L ed 1098] a licence granted for the
eXhibition of a motion picture was rescinded by the appropriate New York authorities -on the
ground that the picture was "sacrilegious" within the meaning of a statute requiring the denial of a
licence if a film was "sacrilegious". The statute was upheld by the State courts. The Supreme Court
unanimously reversed the decision of the State courts. Disapproving a contrary theory e Xpressed in
Mutual Film Corp. v. Industrial Com. of Ohio [236 US 230: 59 L ed 442], si X members of the
Supreme Court in an opinion of Clerk, J. held that the basic principles of freedom of speech and
press applied to motion pictures, even though their production, distribution, and e Xhibition is a
large-scale business conducted for profit. The court recognised that motion pictures are not
necessarily subject to the precise rules governing any other particular method of e Xpression, but
found it not necessary to decide whether a State may censor motion pictures under a clearly drawn
statute, and limited its decision to the holding that the constitutional guarantee of free speech and
press prevents a state from banning a film on the basis of a censor's conclusion that it is "
sacrilegious". Reed, J. in a concurrent opinion emphasised that the question as to whether a state
may establish a system for the licensing of motion pictures was not foreclosed by the court's opinion.
Frankfurter, J. with Jackson and Burton, JJ. held that the term "sacrilegious" as used in the statute

was unconstitutionally vague.
25. In Red Lion Broadcasting Co. etc. el. al. v. Federal Communications Commission et. al. and
United Slates et. al. v. Radio Television News Directors Association et al. [395 US 367: 23 L Ed 2d
3711 which two cases were disposed of by common judgment, the facts were that in the first case, the
Broadcasting Company carried as a part of "Christian Crusade" series, a 15-minute broadcast in
which a third person's honesty and character were at-
tacked. His demand for free reply time was refused by the broadcasting station. Federal
Communications Commission [FCC] issued a declaratory order to the effect that the broadcasting
station had failed to meet its obligation under the FCC's fairness doctrine. The Court upheld the
FCC's directions.
26.In the second case, the FCC after the commencement of the litigation in the same case made the
personal attack aspect of the fairness doctrine more precise and more readily enforceable. The Court
upheld the FCC's rules overruling the view taken by the Court of Appeals that the rules were
unconstitutional as abridging the freedom of speech and press.
27.The Court dealing with the two cases held:
"Just as the Government may limit the use of sound-amplifying equipment

potentially so noisy that it drowns out civilized private speech, so may the
Govenrnment limit the use of broadcast equipment. The right of free speech of a
broadcaster, the user of a sound track, or any other individual does not embrace a
right to snuff out the free speech of others.
XXXXXXX for public broadcasting were limited in number, it was essential for the
Government to tell some applicants that they could not broadcast at all because there
was room for only a few.
X XX XX XX Where there are substantially more individuals who want to broadcast

than there are frequencies to allocate, it is idle to posit an unabridgeable First
Amendment right to broadcast comparable to the right of every individual to speak,
write, or publish. If 100 persons want broadcast licences but there are only 10
frequencies to allocate, all of them may have the same "right" to a license; but if there
is to be any effective communication by radio, only a few can be licensed and the rest
must be barred from the airwaves. It would be strange if the First Amendment, aimed
at protecting and furthering communications, prevented the government from
making radio communication possible by requiring licenses to broadcast and by
limiting the number of licenses so as not to overcrowd the spectrum.
This has been the consistent view of the Court. Congress unquestionably has the
power to grant and deny licenses and to eliminate eXisting stations... No one has a
First Amendment right to a license or to monopolize a radio frequency; to deny a

station license because "the public interest" requires it "is not a denial of free speech.
By the same token, as far as the First Amendment is concerned those who are
licensed stand no better than those to whom licenses are refused. A license permits
broadcasting, but the licensee has no constitutional right to be the one who holds the
license or to monopolize a radio frequency to the e Xclusion of his fellow citizenis.
There is nothing in the First Amendment which prevents the Govenunent from
requiring a licensee to share his frequency with others and to conduct himself as a
proXy or fiduciary with obligations to present those views and voices which are
representative of his community and which would otherwise, by necessity, be barred
from the airwaves.
This is not to say that the First Amendment is irrelevant to public broad-
casting. On the contrary, it has a major role to play as the Congress itself recognized,
which forbids FCC interference with "the right of free speech by means of radio
communication.
Because of the scarcity of radio frequencies, the Government is permitted to put

restraints on licensees in favour of others whose views should be e Xpressed on this
unique medium. But the people as a whole retain their interest in free speech by radio
and their collective right to have the medium function consistently with the ends and
purposes of the First Amenchnent. It is the right of the viewers and listeners, not the
right of the broadcasters, which is paramount... It is the purpose of the First
Amendment to preserve an uninhibited marketplace of ideas in which truth will
ultimately prevail, rather than to countenance monopolization of that market,
whether it be by the Government itself or a private licensee... It is the right of the
public to receive suitable access to social, political, esthetic, moral, and other ideas
and eXperiences which is crucial here. That right may not constitutionally be abridged
either by Congress or by the FCC... right on licensees to prevent others from
broadcasting on t 'their" frequencies and no right to an unconditional monopoly of a
scarce resource which the Government has denied others the right to use.
XXXXXXX Nor can we say that it is inconsistent with the First Amendment goal of
producing an informed public capable of conducting its own affairs to require a
broadcaster to permit answers to personal attacks occurring in the course of
discussing controversial issues, or to require that the political opponents of those
endorsed by the station be given a chance to communicate with the public.
Otherwise, station owners and a few networks would have unfettered power to make
time available only to the highest bidders, to communicate only their own views on
public issues, people and candidates, and to permit on the air only those with whom
they agreed. There is no sanctuary in the First Amendment for unlimited private
censorship operating in a medium not open to all. "Freedom of the press from
governmental interference under the First Amendment does not sanction repression

of that freedom by private interests. X X X X X X X licensees given the privilege of using
scarce radio frequencies as proXies for the entire community, obligated to give
suitable time and attention to matters of great public concern.
To condition the granting or renewal of licenses on a willingness to present

representative community views on controversial issues is consistent with the ends
and purposes of those constitutional provisions forbidding the abridgment of
freedom of speech and freedom of the press. Congress need not stand idly by and
permit those with licenses to ignore the problems which beset the people or to
eXclude from the airways anything but their own views of fundamental questions....
Licenses to broadcast do not confer ownership of designated frequencies, but only the
temporary privilege of using them."
28.Referring to the contention that although at one time the lack of available frequencies for all who
wished to use them justified the Government's choice, of those who would best serve the public
interest by acting as proXy for those who would present differing views, or by giving the latter access
directly to broadcast facilities, the said condition no longer prevailed to invite continuing control,
the Court held:
"Scarcity is not entirely a thing of the past. Advances in technology, such as

microwave transmission, have led to more efficient utilisation of the frequency
spectrum, but uses for that spectrum have also grown apace. Portions of the
spectrum must be reserved for vital uses unconnected with human communication,
such as radio-navigational aids used by aircraft-and vessels. Conflicts have even
emerged between such vital functions as defense preparedness and e Xperimentation
in methods of averting n-ddair collisions through radio warning devices. "Land
mobile services" such as police, ambulance, fire department, public utility, and other
communications system have been occupying an increasingly crowded portion of the
frequency spectrum and there are, apart from licensed amateur radio operators'
equipment, 5,000,000 transmitters operated on the "citizens' band" which is also
increasingly congested. Among the various uses for radio frequency space, including
marine, aviation, amateur, military, and common carrier users, there are easily
enough claimants to permit use of the whole with an even smaller allocation to
broadcast radio and television uses than now eXists.
Comparative hearings between competing applicants for broadcast spectrum space

are by no means a thing of the past. The radio spectrum has become so. congested
that at times it has been necessary to suspend new applications. The very high
frequency television spectrums, in the country's major markets, ahmost entirely
occupied, although space reserved for ultra high frequency television transmission,
which is a relatively recent development as a commercially viable alternative, has not
yet been completely filled.

The rapidity with which technological advances succeed one another to create more
efficient use of spectrum space on the one hand, and to create new uses for that space
by ever growing numbers of people on the other, makes it unwise to speculate on the
future allocation of that space. It is enough to say that the resource is one of
considerable and growing importance whose scarcity impelled its regulation by an
agency authorised by Congress. Nothing in this record, or in our own researches,
convinces us that the resource is no longer one for which there are more immediate
and potential uses than can be accommodated, and for which wise planning is
essential. This does not mean, of course, that every possible wavelength must be
occupied at every hour by some vital use in order to sustain the congressional
judgment. The substantial capital investment required for many uses, in addition to
the potentiality for confusion and interference inherent in any scheme for continuous
kaleidoscopic reallocation of all available space may make this unfeasible. The
allocation need not be made at such a breakneck pace that the objectives of the
allocation are themselves imperiled.
Even where there are gaps in spectrum utilization, the fact remains that e Xisting
broadcasters have often attained their present position because of their initial
government selection in competition with others before new technological advances
opened new opportunities for further uses. Long e X perience in broadcasting,
confirmed habits of listeners and viewers, network affiliation, and other advantages
in program procurement give eXisting broadcasters a substantial advantage over new
entrants, even where new entry is technologically possible. These advantages are the
fruit of a preferred position conferred by the Government. Some present possibility
for new entry by competing stations is not enough, in itself, to render
unconstitutional the Government's effort to assure that a broadcaster's programming
ranges widely enough to serve the public interest. In view of the scarcity of broadcast
frequencies, the Government's role in allocating those frequencies, and the
legitimate claims of those unable without governmental assistance to gain access to
those frequencies for eXpression of their views, we hold the regulations and ruling at
issue here are both authorized by statute and constitutional."
29. In Columbia Broadcasting System etc. etc. v. Democratic National Committee etc. etc.[412 US 94
: 36 L Ed 2d 772], in separate decisions rejecting the contentions that the general policy of certain
radio and television broadcast licensees of not selling any editorial advertising time to individuals or
groups wishing to speak out on public issues violated the Federal Communications Act of 1934 and
the First Amendment, such contentions having been asserted in actions instituted by a national
Organisation of businessmen opposed to United States involvement in Vietnam and by the
Democratic National Committee, the US Court of Appeals for the District of Columbia Circuit
reversed the Commission. However, the US Supreme Court reversed the Court of Appeals. Burger,
C.J. eXpressing the views of the siX members of the Court held:
"...[1] the First Amendment issues involved in the case at bar had to be evaluated
within the framework of the statutory and regulatory scheme that had developed over

the years, affording great weight to the decisions of Congress and the e Xperience of
the Federal C o m m un ic at io n s C om m is s ion , and [2] under the Federal
Communications Act and the Commission's "fairness doctrine," broadcast licensees
had broad journalistic discretion in the area of discussion of public issues. It was also
held, eXpressing the views of five members of the court [Part IV of the opinion], that
[3] neither the public interest standards of the Federal Communications Act nor the
First Amendment, assuming that there was governmental action for First
Amendment purposes, required broadcasters to accept editorial advertisements,
notwithstanding that they accepted commercial advertisements, and [4] the
Commission was justified in concluding that the public interest would not be served
by a system affording a right of access to broadcasting facilities for paid editorial
advertisements, since such a system would be heavily weighted in favor of the
financially affluent, :would jeopardize effective operation of the Commission's
"fairness doctrine", and would increase government involvement in broadcasting by
requiring the Commission's daily supervision of broadcasters' activities. a
broadcaster's refusal to accept any editorial advertisements was not governmental
action for purposes of the First Amendment, since private broadcasters, even though
licensed and regulated to some eXtent by the government, were not instrumentalities
or "partners" of the government for First Amendment purposes, and since the
Commission, in declining to reject the broadcasters' policies against accepting
editorial -advertisements, had not fostered or required such policy".
30.It may be mentioned here that unlike in this country, in United States, the private individuals
and institutions are given licences to have their own broadcasting stations and hence the right of the
private broadcasters against the right of others who did not own the broadcasting stations but
asserted their right of free speech and e Xpression were pitted against each other in this case and the
decision has mainly turned upon the said balancing of rights of both under the First Amendment. It
was in substance held that any direction to the private broadcasters by the Government to sell
advertising time to speak out on public issues violated the protection given by the First Amendment
to the private broadcasters against Government control.
31.In Federal Communications Commission et al. v. WNCN Listeners Guild et al. [450 Us 582 : 67 L
Ed 2d 521], a number of citizen groups interested in fostering and preserving particular
entertainment formats petitioned for review of the Policy Statement of Federal Communications
Commission [FCC] in the US Court of Appeals for the District of Columbia Circuit. The Court held
that the Policy Statement was contrary to the Communications Act of 1934. The US Supreme Court
reversed the decision of the Court of Appeals by majority, holding, inter alia, that the Policy
Statement was not inconsistent with the Communications Act since the FCC provided a rational
eXplanation for its conclusion that reliance on the market was the best method of promoting
diversity in entertainment formats and that the FCC's judgment regarding how the public interest is
best served was entitled to substantial judicial deference and its implementation of the public
interest standard, when based on a rational weighing of competing policies was not to be set aside.
Marshall and Brennan, JJ., however, held that in certain limited circumstances, the FCC may be
obliged to hold a hearing to consider whether a proposed change in a licensee's entertainment

programme format is in the public interest and that the FCC's Policy Statement should be vacated
since it did not contain a safety valve procedure that allowed the FCC the fle Xibility to consider
applications for eXemptions based on special circumstances and since it failed to provide a rational
eXplanation for distinguishing between entertainment and non-entertainment programming for
purposes of requiring Commission review of format changes.
32.In City of Los Angeles & Department of Water and Power v. Preferred Communications, Inc. [476
US 488: 90 L ed 2d 480], a cable television company asked a public utility and the city of Los
Angeles's water and power department for permission to lease space on their utility poles in order to
provide cable television service to part of the city. The respondent-company was told that it must
first obtain franchise from the appellant-City which refused to grant one on grounds that the
company had failed to participate in an auction that was to award a single franchise in the area. The
respondent sued claiming violation of his right under the free speech clause of the First
Amendment. It was alleged in the complaint that there was sufficient physical capacity and the
economic demand in the area at issue to accommodate more than one cable company and that the
city's auction process allowed it to discriminate among applicants. As against this, the appellant
argued that lack of space on public utility structures, the limited economic demand, and the
practical and aesthetic disruptive effects on the public right of way justified its decision. The District
Court dismissed the complaint. On appeal, the US Court of Appeals reversed and remanded ',or
further proceedings. The US Supreme Court affirmed the Court of Appeals. Rehnquist, J. e Xpressing
the unanimous decision of the Court held:
"...[1]that the cable television company's complaint should not have been dismissed,
since the activities in which it allegedly, sought to engage plainly implicated First
Amendment interests where they included the communications of messages on a
wide variety of topics and in a wide variety of formats, through original programming
or by eXercising editorial discretion over which stations or programs to include in its
repertoire, but [2] that it was not desirable to eXpress any more detailed views on the
proper resolution of the First Amendment question without a more thoroughly
developed record of proceedings in which the parties would have an opportunity to
prove those disputed factual assertions upon which they relied."
33.The position of law on the freedom of speech and press has been eXplained in [16 Am Jur 2d 3431
as under:
"The liberty of the press was initially a right to publish without a license that which
formerly could be published only with one, and although this freedom from previous.
restraint upon publication could not be regarded as eXhausting the guaranty of
liberty, the prevention of that restraint was a leading purpose in the adoption of the
First Amendment. It is well established that liberty of the press historically
considered and taken up by the Federal Constitution, means principally, although not
eXclusively, immunity from previous restraints or censorships. Stated differently, the
rule is that an essential element of the liberty of the press is its freedom from all
censorships over what shall be published and eXemption from control, in advance, as

to what shall appear in print....
X X X X X X The freedom of speech and press embraces the right to distribute

literature, and necessarily protects the right to receive literature which is distributed.
It is said that liberty in circulating is as essential to the freedom as liberty of
publishing, since publication without circulation would be of little value.
The right or privilege of free speech and publication, guaranteed by the constitutions
of the United States and of the several states, has its limitations and is not an
absolute right, although limitations are recognised only in eXceptional cases.
XXXXXX The question of when the right of free speech or press becomes wrong by
eXcess is difficult to determine. Legitimate attempts to protect the public, not from
the remote possible effects of noXious ideologies, but from present eXcesses of direct,
active conduct are not presumptively bad because they interfere with and in some of
their manifestations restrain the eXercise of the First Amendment rights. The issue in
every case is whether the words used are used hi such circumstances and are of such
a nature as to create a clear and present danger that they will bring about substantive
evils which the federal or state legislatures have a right to prevent; it is a question of
proXimity and degree.
XXXXXXX The freedoms of speech and press are not limited to particular media of
eX-
pression. Verbal eXpression is, of course, protected, but the right to e Xpress one's
views in an orderly fashion eXtends to the communication of ideas by handbills and
literature as well as by the spoken word. Picketing carried on in a non labor conte Xt,
when free from coercion, intimidation, and violence, is constitutionally guaranteed as
a right of free speech."
34. In "Civil Liberties & Human Rights" authored by David Feldman, the justification for and limits
of freedom of eXpression are stated in the following words. The liberty to e Xpress one's self freely is
important for a number of reasons. Firstly, self-eXpression is a significant instrument of freedom of
conscience and self- fulfillment. Second justification concerns epistemology. Freedom of e Xpression
enables people to contribute to debates about social and moral values. The best way to find the best
or truest theory or model of anything is to permit the widest possible range of ideas to circulate.
Thirdly, the freedom of eXpression allows political discourse which is necessary in any country
which aspires to democracy. And lastly, it facilitates artistic scholarly endeavours of all sorts.
35. The obvious connection between press freedom and freedom of speech is that the press is a
medium for broadcasting information and opinion. Firstly, media freedom as a tool of
self-e X pression is a significant instrument of personal autonomy. Secondly, as a channel of
communication, it helps to allow the political discourse in a democracy. Thirdly, it helps to provide
one of the essential conditions in scholarships making possible the eX- change and evaluation of

theories, eXplanations and discoveries, and lastly, it helps to promulgate a society's cultural values
and facilitates the debate about them, advancing the development and survival of civilisation.
36.Referring to the reasons for regulating the broadcasting media, the learned author has stated
that, first, the Government realises the potential of channels of mass communication for
contributing to democracy or undermining it. They hoped to foster a public service ethos in
broadcastings so that it would be a medium for educating and improving the population. Secondly
in order to do this its was necessary to keep the media of mass communications from having
programme policy dictated entirely by market forces. A strong pubic sector and regulation of the
independent sector when one started to operate, were called for. Thirdly, when commercial
broadcasters appeared on the scene, 1 and a regulatory scheme was being developed for them, it was
thought to be important to preserve a diversity of ideas by preventing oligopolistic concentrations of
power in the hands of a few, usually rich and conservative media magnates, and to ensure that
licences were granted only to people who could be e Xpected not to abuse the privilege. The need to
preserve propriety has been a motivating factor in the regulation of commercial broadcasting over
much of the world. Fourthly, government hoped to ensure that civilised standards were maintained,
to uphold social values. Fifthly, wave lengths for broadcasting were limited. This purely technical
consideration sharply distinguishes broadcasting from newspapers, and justifies a higher level of
regulation. In theory, if not in practice, there is nothing to prevent any number of newspapers being
pub-
lished simultaneously. The only controlling mechanism needed is that of market forces. This is not
true of broadcasting. Some control over the allocation of wave- lengths is 'needed in order to ensure
that there are sufficient for all legitimate broadcasters. Lastly, another legitimate object of national
regulation is to protect the intellectual property rights of programme makers and broadcasters. It is
permissible on this ground for an Organisation to prevent people from getting access to
programmes without paying proper licence fees. One way of preventing this is to encode programme
transmissions and to restrict access to decoders to people who pay the fee.
37. The freedom to receive and to communicate information and ideas without interference is an
important aspect of the freedom of free speech and eXpression. We may in this connection refer to
Article 10 of the European Convention on Human Rights which states as follows:
" 10.1. Everyone has the right to freedom of e Xpression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This article shall not
prevent States from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The eXercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
-prescribed by law and are necessary in a democratic society, in the interests of na-
tional security, territorial integrity or public safety, for the prevention of disorder or

crime, for the protection of health or morals. for the protection of the reputation or
rights of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary."
38.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.
39. Eric Barendt in his book titled " Broadcasting Law [1993 Edn.] which presents a comparative
study of the law in five' legal systems, viz., Great Britain, France, Germany, Italy and United States
of America, has dealt with the subject succinctly. He has referred to a number of reasons which are
generally put forward to justify broadcasting regulations and has dealt with each of them. The first
reason advanced is that because the airwaves are a public resource, the Government or some agency
on its behalf, is entitled to license their use for broadcasting on the terms it sees fit. A similar
argument can now be deployed in respect of cable broadcasting where an authority must give
permission before roads can be dug up for laying cable. The learned author states that the case is
unconvincing for it infers that it is right for the Government to regulate broadcasting from the fact
that it has opportunity to do this. It would be perfectly possible for Government to allocate
frequencies for cable franchises without programme conditions on the basis of a competitive tender
and allow the resale by the purchaser. The argument, according to the author, therefore, does not
work. It does not justify broadcasting regulations but almost e Xplains how it is feasible. The author,
however, does not accept the objection to this reason for regulation that thereby Government acts
improperly by using their licensing power to purchase broadcasters' constitutional right to speech.
According to the author, this argument is less persuasive as it assumes that broadcasters enjoy the
same constitutional rights of free speech as individuals talking in a bar or leafletting in a high street.
The author then deals with the second reason given for regulation of broadcasting, viz., scarcity of
frequencies and points out that this argument referred to in Red Lion Broadcasting case [supra] is
less clear than appears at first sight, since it is not clear whether the scarcity of frequencies refers
to the limited number allocated by the Government as available for broadcasting or to the actual
numerical shortage of broadcasting stations. If it is the former, the scarcity is an artificial creation of
the Government rather than a natural phenomenon since it reserves a number of frequencies for the
use of the army, police and other public services. The Government is then not in a good position to
argue for restrictions on broadcasters' freedom. The author then points out that as far as the actual
scarcity of broadcasting stations is concerned, there has been an increase in the last 20 years in the
broadcasting stations in the United States while there are fewer newspapers than there used to be.
Similar developments have occurred in European countries in the same period, especially, since the
advent of cable and satellite. Further the scarcity argument cannot be divorced from economic
considerations. The shortage of frequencies and the high cost of starting up broadcasting channel
e X plain their dearth in comparison with the number of newspapers and magazines in 1961.
However, it is now probably as difficult to finance a new newspaper as it is a private television
channel, if not more so. Lastly, the author points out that the scarcity argument is much less tenable
than it used to be. Cable and satellite have significantly increased the number of available or
potentially available channels so that there are more broadcasting outlets than there are national or
local daily newspapers. Dealing with the third reason advocated for giving differential treatment to

the broadcasting, viz., the character of the broadcasting media, the author points out that it is said
that television and radio, are more influential on public opinion than the press, or at least are widely
thought to be so. The majority of the US Supreme Court in FCC v. Pacifica Foundation [438 US 726]
said that they intrude into the home and are more pervasive and are more difficult to control than
the print media. In particular, it is hard to prevent children from being e Xposed to broadcast while it
is relatively easy to stop them looking at magazines and papers which in any case they will not be
able to read or purchase. These grounds underpin the e Xtension of legal control in Britain over
violent and seXually eXplicit programmes through the establishment of Broadcasting Standard
Council and the strengthening of the impartiality rules. In Third Television Case [57 B Verf GE 295,
3 22-3 (198 1)] the Ger- man Constitutional Court dealing with a different version of this argument
has held that regulation is necessary to guarantee pluralism and programme variety, whether or not
there is a shortage of frequencies and other broadcasting outlets. The free market will not provide
for broadcasting the same variety found in the range of press and magazine titles. Hence programme
content should be regulated and the media monopolies should be cut down by the application of
anti-trust laws. Thus both the US and the German arguments lay stress on the power of television
and its unique capacity to influence the public. According to the learned author, the arguments are
difficult to assess. Broadcasting does not intrude into the home unless listeners and viewers want it
to be. From the point of view of constitutional principles it is not easy to justify imposition of greater
limits on the medium on the ground that it is more influential than the written words. It cannot be
right to subject more persuasive types of speech to greater restraints than those-imposed on less
effective varieties. The author, however, accepts the view of the majority of the US Supreme Court in
Pacifica case [supra] which regarded broadcasting, particularly television, as a uniquely pervasive
presence in the lives of most people. More time is spent watching television than reading. The
presence of sound and picture in any home makes it an e Xceptional potent medium. It may also be
harder to stop children having access to 'adult material' on television than to pornographic
magazines. This may not apply to subscription channels, enjoyment of which is dependent on a
special decoder. He also agrees that eXperience in the United States and more recently in Italy
suggests that a free broadcasting market does not produce the same variety as the press and book
publishing markets do. However, the author states that these three justifications for broadcasting
regulation are inconclusive and it is doubtful whether the case is powerful enough to justify the
radically different legal treatment of the press and broadcasting media. A separate question,
according to the author, is whether it is appropriate to continue to treat radio in the same way as
television since there is generally a large choice of local, if not national radio programmes and it is
hard to believe that it eXercises a dominating influence on the formation of public attitudes. The
same question arises In respect of cable television. Although a licence has to be obtained from a
licensing authority, several franchises may be physically accommodated and a wide band cable
system may be able to carry upto 30 or 40 or even more channels. The scarcity rational, therefore,
seems inapplicable to cable, and further it is hard to believe that this mode of broadcasting e Xercises
such a strong influence that stringent programme regulation is justifiable. Dealing with the last
reason advocated by a leading American scholar, Lee Bollinger in his article "Freedom of the Press
and Public Access" and his essay "The Rational of Public Regulation of the Media" and in
"Democracy and the MassMedia" [Cambridge (1990)] for the divergent treatment of the press and
broadcasting media, the author points out that Bollinger accepts that there is no fundamental
difference in the character of the two mass media, but argues that broadcasting being still relatively

new means of mass communication, it is understandable that society has wanted to regulate it just
as it has treated the cinema with more caution than it has the theater. This argument of Bollinger is
based on the history of the two media. Bollinger's second argument is that society is entitled to
remedy the deficiencies of an unregulated press with a regulated broadcasting system which may be
preferable to attempting to regulate both sectors... According to Bollinger, regulation poses the
danger of Government control, a risk which is reduced if one branch of the media is left free. The
author attacks this reason given by Bollinger and states that it is an unsatisfactory compromise. If
the regulation of the press is al-
ways wrong and perhaps unconstitutional and if there is no significant difference between the two
media, it follows that the latter should also be wholly unregulated. The author also points out that
Bollinger's argument attempts to justify the unequal treatment of the liberties of the broadcasters
and newspaper proprietors and editors when in all material respects, their position is identical.
40. The author then refers to the rights of viewers and listeners which is referred to in Red Lion
Broadcasting case [supra] by White, J. of the US Supreme Court in the following words:
"But the people as a whole retain their interest in free speech by radio and their
collective right to have the medium function consistently with the ends and purposes
of the First Amendment. It is the right of viewers and listeners, not the right of the
broadcasters, which is paramount".
41.The author concludes by pointing out that the cases from a variety of jurisdictions show that the
broadcasters programme freedom when eXercised within the constraints imposed by the regulatory
authority, has priority over the rights claimed by viewers to see a particular programme or to retain
a particular series in the schedule. On the other hand, the interests of viewers and listeners justify
the imposition of programme standards which would not be countenanced for the press or
publishing. It is recognised by the constitutional courts of European countries that viewers and
listeners have interests, and they should be taken into account in the interpretation' of broadcasting
freedom. But the balancing of the rights of the broadcasters and viewers is done by regulatory
authority. Courts are understandably reluctant to contemplate the interference with administrative
discretion which would result from their recognition of individual rights.
42. Dealing with the right to access to broadcasting, the author points out that the theoretical
argument in this connection is that freedom of speech means freedom to communicate effectively to
a mass audience and nowadays that entails access to the mass media. The rights to access provide
some compensation for the eXpropriation by the public monopoly of the freedom to broadcast. In
the absence of a justification for that monopoly, there would be a right to broadcast in the same way
that everyone has a right to say or write what he likes in his own home. This would justify the
recognition of access to both public and private channels. The -author states that these arguments
are unacceptable. Freedom of speech does not entail any right to communicate effectively in the
sense that a citizen can call upon the State to provide him with the most effective means for the
purpose. He points out that no legal system provides its citizens with the means and opportunities
to address the Public in the way each considers most appropriate. Moreover, to grant everyone a

right to use an access channel, even if available all the time, would be to give every adult a worthless
right to use it for a second a year. Limited access rights, enjoyed only by important political and
social groups may be more valuable. But even their recognition would involve some interference
with the editorial freedom of channel controllers and programme schedulers and it may be more
difficult as a Consequence to achieve a balanced range or programmes. Further, a channel might
find it hard to create any clear identity for itself, if it had to devote a substantial amount of time to
relaying the programmes made by pressure groups. There are also practical objections to access
rights. It may be very difficult to decide, for e Xample, which groups are to be given access, and when
and how often such programmes are to be shown. There is a danger that some groups will be unduly
privileged. These points weigh particularly heavily against the recognition of constitutional rights,
for courts are not competent to formulate them with any precision. Dealing with the constitutional
rights of access to the broadcasting media, the author concludes that individuals and groups do not
have constitutional rights of access to the broadcasting media. Access rights can only be framed
effectively by legislature or by specialist administrative agencies. It does not mean that statutory or
other access rights do not have a constitutional dimension. The courts may lay down that some
provisions should be made for access as a matter of constitutional policy. This, however, does not
mean that there are individual constitutional rights to access.
43. In this connection, the author also points out that the development of cable poses new access
problems. Operator of the cable may himself have rights of free speech which would be infringed by
a requirement to honour access claims. The scarcity and economic arguments which are employed
to justify broadcasting regulation and, therefore, access provision, may be less applicable in the
conteXt of cable.
44. 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 e Xpression includes right to acquire
information and to disseminate it. Freedom of speech and e X pression is necessary, for self
eXpression which is an important means of free conscience and self fulfillment. It enables people to
contribute to debates of 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 e Xpression 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 impossible to reach.
45. This fundamental right can be limited only by reasonable restrictions under a law made for
purpose mentioned in Article 19 [2] of the Constitution.
46. 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 specifically spelt out under Article 19 [2] of our Constitution.
Hence no restrictions can be placed on the right to freedom of speech and e Xpression on grounds
other than those specified under Article 19 [2].
47. What distinguishes the electronic media like they 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.
48. 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 e Xclusive 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
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 e Xpression and freedom of information of others. The
claim to monopoly made on this ground may, however, lose all its raison d'etre 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 license 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
represen-
tative of all sections of the society and is free from control of the political and administrative
eXecutive of the State.

49. 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
[hereinafter referred to as the "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 license and to pre-censor under the respective legislations has to be read
in the conte X t 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 e Xpression. 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 conte Xt 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.
50. 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 -
(a) of wireless telegraphs on ships within India 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 wider 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 the Central Government may, by the notification,
think fit to impose."
51. 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 Hertzian waves, galvanic, electric or magnetic means.

EXplanation.- "Radio waves" or "Hertzian waves" means electromagnetic waves of
frequencies lower than 3,000 giga-cycles per second propagated in space without
artificial guide."
52. 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 wayes 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 "electro-magnetic waves"], as is made clear by E Xplanation 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 electro-magnetic waves of frequencies
of less than 3000 give-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. 53. 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 S. 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.

54. 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 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 cams foreign e X change and is neither
controlled by any Governmental agency nor receives any financial assistance or grants, of
whatsoever nature.
55. 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 eXpenses incurred for travelling,
boarding, lodging and other daily eXpenses for the participating cricketeers and the concerned
accompanying visiting officials. 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 e Xpenses 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.
56.Against this background, we may now e Xamine the questions of law raised by the parties. The
contention of the Min- istry 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 license to telecast through a media of its choice, based [according to NM] upon the
commercial interests, infringes viewers' right under Article 19 [1] (a) is untenable. It is further
contended that the commercial interests of the organizer 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 e Xploit 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.
57. According to NUB 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-a-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.
58. It is further urged that a broadcaster does not have a right as such to access to the airwaves
without a license either for the purposes of telecast or for the purposes of uplinking. Secondly, there
is no general right to a license 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 license does not confer any special right inasmuch as the refusal of a
license 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 marshaling of the resources for the largest public good.
The 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 U.S.
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 Marshall scarce resources to ensure their optimum enjoyment by all including those
who are not affluent enough to dominate the media.
59. 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 e Xercise 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 licenses 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.
60. It is then contended that a free speech right of a viewer has been recognised as that having a
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.
61.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 NM that the principal contentions of the CAB/BCCI are that they are entitled
to market their right to telecast event at the highest possible value it may command and if the DD 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, the DD did not refuse to telecast the event per se. It is then submitted that the
CAB/BCCI are not telecasters. They arc 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
the DD is such as to deny generally, an access to the media and the control e Xercised 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 who seek frequencies to telecast, would better subserve the
principle underlying Article 19 [1] (a) in the socioeconomic 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.
62. 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 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 e Xclusive
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 same, the benefit of such right or claim,
much less can the MIB or DD can insist that such negotiation and finalisation only be done with it or
not otherwise.
63. 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 DD 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.
64. It is further 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.
65. 65. At no other stage either the DD or MIB stated that reasonable restrictions as enumerated in
Article 19 [2] arc 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 the
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 signal 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.
66. 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).
67 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 Telecom- munication to allow the telecasting of the event.
68. 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 license 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 NM is obliged and
dutybound 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 license 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 e Xclusivity 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 license
shall not be granted.
(b) The 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.
69. 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, any one 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 organizations 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 organizations.
70. 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 signal through the channels of DD or MIB. What is required to ensure is that the secured
channel 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
in-built 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.
71. It is also contended that in no other country the right to televise or broadcast is in the e Xclusive
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 e Xclusive 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 12th November, 1993 relied upon by the MIB for the purpose is not a proof of such policy. The
said minutes are 'e X ecutive decision' of a few Secretaries of the various departments of the
Government.
72. 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
license 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.
73.It is then contended that both BCCI and CAB are non- profit making organizations 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 e Xpenses
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 cricketeers from
school level, payments to the cricketeers, insurance and benevolent funds for the cricketeers,
training of umpires, payments of 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 e Xpenses
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,
instadia 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 organizer 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. The 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 organizers as
and by way of production fee.

74. Merely because an organization may cam 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 utilizing 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 utilization and fulfillment of its object. The said object cannot be achieved without such
revenue.
75.Rebutting the argument that the Organisation of sports is an industry and, therefore, monopoly
under Article 19 [6] is permissible, it is pointed out that even if, in matters relating to business and
profession, the State can create monopoly under Article 19 [6], it can still not infringe Article 19 [1]
(a). While the State may monopolise the te Xtile industry, it cannot prohibit the publication of books
and articles on teXtiles.
76.It is also contended that the eXercise of right claimed in the present case is by BCCI/CAB and its
office bearers who are citizens of India. Merely because foreign equipment and technical and
personnel are used as collaborators to eXercise the said right more effectively, it does not dilute the
content of Article 19 [1] (a) nor does it become an e Xercise of right by a non-citizens. In this
connection, it is emphasised that the DD is also using Worldtel, a foreign agency. Most of the
newspapers in India are printed on machines imported from abroad. A newspaper may also have a
foreigner as its manager. However, that does not take away the right of the newspaper under Article
19 [1] (a). They are only instances of technical collaboration. Apart from it, every citizen has a right
to information as the same cannot be taken away on grounds urged by the NEB.
77.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 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.
78.It can hardly be denied that sport is an e Xpression of self In an athletic Nor 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 e Xpression. 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 e Xercise 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 place 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 e Xploring the said media
and in not employing the best means available to them to popularise the game. That while pursuing
their objective of popularising 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 popularise 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 e Xpenses, 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 par with business organisations sponsoring sporting events
for profit and the access claimed by them to telecasting as assertion of commercial interest.
79. The second contention of NM 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.

80.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 Con-
stitution does not eXplicitly state the restrictions on the right of freedom of speech and e Xpression as
our Constitution does. Hence, the decisions in question have done no more than impliedly reading
such restrictions. The decisions of the U.S. Supreme Court, therefore, in the conte Xt 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 license. 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.
81. 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 e Xpression 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 e X pression 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 limitations 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 e Xpression 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 which is evolved in the U.S. in the conte Xt 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.
82. As -stated earlier, we are not concerned in the present case with the right of the private
broadcasters, but only with the limited right for telecasting particular cricket matches for particular
hours of the day and for a particular period. It is not suggested that the said right is objectionable on
any of the grounds mentioned in Article 19 [2] or is against the proper use of the public resources.
The only objection taken against the refusal to grant the said right is that of the limited resources.
That objection is completely misplaced in the present case since the claim is not made on any of the
frequencies owned, controlled and utilised by the D.D. The right claimed is for uplinking the signal
generated by the BCCI/CAB to a satellite owned by another agency. The objection, therefore, is
devoid of any merit and untenable in law. It also displays a deliberate obdurate approach.
83. The third contention advanced on behalf of the MIB is only an eXtended aspect of the fist
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 e Xploit 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.
84.It is unnecessary to repeat what we have stated while dealing with the first contention earlier,
with regard to the character of BCCI/CAB, the nature of and the purpose for which the right to
access to telecast is claimed by them. As pointed out, it is not possible to hold that what the
BCCI/CAB are in the present cast claiming is a commercial right to eXploit the event unless one
takes a perverse view of the matter. The eXtent of perversity is apparent from the contention raised
by them that to engage a foreign agency for the purpose is to make it a device for a noncitizen to
assert his rights under Article 19 [1] (a). It cannot be denied that the right to freedom of speech and
eXpression under Article 19 [1] (a) includes the right to disseminate information by the best possible

method through an agency of one's choice so long as the engagement of such agency is not in
contravention of Article 19 [2] of the Constitution and does not amount to improper or unwarranted
use of the frequencies. Hence the choice of BCCI/ CAB of a foreign agency to telecast the matches,
cannot be objected to. There is no suggestion in the present case that the engagement of the foreign
agency by the BCCI/CAB is violative of the provisions of Article 19 [2]. On the other hand, the case
of NUB, as pointed out earlier, is that the BCCI/CAB want to engage the foreign agency to maximise
its revenue and hence they are not e Xercising their right under Article 19 [1] (a) but their commercial
right under Article 19 [1] (g). We have pointed out that that argument is not factually correct and
what in fact the BCCI/CAB is asserting is a right under Article 19 [1] (a). While asserting the said
right, it is incidentally going to earn some revenue. In the circumstances, it has the right to choose
the best method to earn the maximum revenue possible. In fact, it can be accused of negligence and
may be attributed improper motives, if it fails to eXplore the most profitable avenue of telecasting
the event, when in any case, in achieving the object of promoting and popularising the sports, it has
to endeavour to telecast the cricket matches. The record shows that all applications were made and
purported to have been made to the various agencies on behalf of CAB for the necessary licences and
permissions. All other Ministries and Departments understood them as such and granted the
necessary permissions and licences. Hence, by granting such permission, the Government was not
in fact granting permission to the foreign agency to eXercise its right under Article 19 [1] (a). If,
further, that was the only objection in granting permission, a positive approach on the part of the
NM could have made it clear in the permission granted that it was being given to CAB. In fact, when
all other Government Departments had no difficulty in construing the application to that effect and
granting the necessary sanctions/permissions at their end, it is difficult to understand the position
taken by the MIB in that behalf. One wishes that such a contention was not advanced.
85.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 a paramount importance, and the said View has
significance in a 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 conte Xt 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 e Xpress 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 1-1/2 per cent of the population has an access to the print media which is not
subject to precensorship. 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 conte Xt 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 the D.D., 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 over-flowing 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 T.V. set of their own, crowd around T.V.
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.
86.The last argument on behalf of the MIB is that since in the present case, the 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 the DD claimed e Xclusive 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 signal 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 im-
pose their terms for creating signal or for telecasting them unless it was sought through their
frequencies. When the DD refused to telecast cricket matches e Xcept 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 the DD 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 the DD 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. The 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 the DD 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 BCCl/CAB to telecasting. Nor can the DD
plead encroachment on the right of viewers as a ground since the telecasting of events on the terms
of the DD cannot alone be said to safeguard the right of viewers in such a case and in fact it was not

so.
87.Coming to the facts of the present case, which have given rise to the present proceedings, the
version of MIB is as follows:
On March 15, 1993, the CAB wrote a letter to the Director General of Doordarshan that a Si X-Nation
International Cricket Tournament will be held in November, 1993 as a part of its Diamond Jubilee
Celebrations and asked DD to send a detailed offer for any of the two alternatives, namely, (i) that
DD would create 'Host Broadcaster Signal' and also undertake live telecast of all the matches in the
tournament or (ii) any other party may create the 'Host Broadcaster Signal' and DD would only
purchase the rights to telecast in India. CAB in particular emphasised that in either case, the foreign
T.V. rights would be with CAB. The CAB also asked DD to indicate the royalty amount that would be
paid by the DD. On March 18, 1993 the Controller of Programmes (Sports), DD, replied to the letter
stating amongst other things that during the meeting and during the telephonic conversation, CAB's
President Dalmia had agreed to send them in writing the amount that he e Xpected as rights fee
payable to CAB eXclusively for India, without the Star TV getting it. On March 19, 1993, CAB
informed DD that they would be agreeable to DD creating the Host Broadcaster Signal and also
granting DD eXclusive right for India without the Star TV getting it and the CAB would charge DD
US $800,000 (US Dollars eight lakh] only] for the same. The CAB, however, made it clear that they
would reserve the right to sell/license the right world-wide, eXcluding India and Star TV. The CAB
also stated that DD would be under an obligation to provide a picture and commentary subject to
payment of DD's technical fees. On March 31, 1993, DD sent its bid as 'Host Broadcaster' for a sum
of Rs. 1 crore stating inter alia, that CAB should grant signals to it eXclusively for India with-
out the Star TV getting it. The DD also stated that they would be in a position to create the 'Host
Broadcaster Signal' and offer a live telecast of all the matches in the tournament. Thereafter, on May
4, 1993, the DD by a fax message reminded the President of CAB about its offer of March 31, 1993.
To that CAB replied on May 12, 1993 that as the Committee of CAB had decided to sell/allot
worldwide TV rights to one party only, they would like to know whether DD would be interested in
the deal and, if so, to send their offer for worldwide TV rights latest by May 17, 1993, on the
following basis, namely, outright purchase of TV rights and sharing of rights fee. On May 14, 1993
DD by its fax addressed to CAB stated that it was committed to its earlier bid of Rs. 1 crore, namely,
eXclusive TV right in India alone. The DD also stated that as there was a speculation that Pakistan
may not participate in the tournament, which may affect viewership and consequent commercial
accruals, DD would have to rethink on the said bid also, in such an eventuality and requested CAB
to reply to the said letter at the earliest.
88. On June 14, 1993, according to the NUB, without obtaining the required clearances from the
Government for telecasting, the CAB entered into an agreement with the World Production
Establishment (W/PE) representing the interests of TWI [Trans World International], for
telecasting all the matches. The said agreement provided for the grant of sole and e Xclusive right to
sell/licence or otherwise eXploit throughout the world 'EXhibition Rights' in the tournament. CAB
shall only retain radio rights for the territory of India. The CAB under the agreement was to receive
not less than US $550,000 as guaranteed sum. If any income from the rights fee is received in

eXcess of the guaranteed sum, it was to be retained wholly by WPE until it was eventually split into
70:30 per cent as per the agreement. If the rights fee/income received was less than guaranteed
sum, WPE was to pay the difference to CAB. The WPE was to pay, where possible, television license
fee in advance of the start of the tournament.
89. On June 18, 1993, DD sent a fax to CAB stating therein that from the press reports, it had learnt
that CAB had entered into an agreement with TWI for the TV coverage of the tournament, and the
DD had decided not to telecast the matches of the tournament by paying TWI, and that DD was not
prepared to enter into any negotiations with TWI to obtain the television rights for the event. On
June 30, 1993, DD also informed similarly to International Management Group, Hong Kong.
90. On September 2, 1993, the Department of Youth Affairs and Sports, Ministry of Human
Resources Development, addressed a letter to the CAB informing it that the Government had no
objection to the proposed visit of the Cricket Teams of Pakistan, South Africa, Sri Lanka, West
Indies and Zimbabwe, to India for participation in the tournament. The Department further stated
that no foreign national shall visit any restricted/protected/prohibited area of India without
permission from the Ministry of Home Affairs. It was also clarified that the sanction of foreign
eXchange was subject to the condition that CAB would utilize only the minimum foreign e Xchange
required for the purpose and shall deposit foreign e X change obtained by it by way of fee,
sponsorship, advertisements, broadcasting rights, etc. through normal banking channels under
intimation to the Reserve Bank of India. On September 17, 1993 on the application of CAB made on
September 7, 1993, VSNL advised CAB to approach the respective Ministries and the Telecom
Commission for approval (a) regarding import of earth station and transmission equipment and (b)
for frequency clearance from Telecom Commission. The satellite to be used for the transmission
coverage, was also required to be specified. It was further stated that CAB should approach VSNL
for uplinking signal to INTELSAT at Wash- ington. The TWI was advised to apply VSNL for
necessary coordination channels and DD phone facility covering each location. On October 9, 1993,
TWI wrote to VSNL seeking frequency clearance from the Ministry of Communications. The TWI
informed VSNL that they will be covering the tournament and that they were formally applying for
its permission to uplink their signal as per the list attached to the letter. They also sought
frequency clearance for the walkie-talkie .On October 13, 1993, the Ministry of Home Affairs
informed the CAB that the Ministry had 'no objection' to the filming of the cricket matches at any of
the places mentioned in the CAB's letter and that the 'no objection' pertains to the filming of the
matches on the cricket grounds only. The Ministry also gave its 'no objection' to the use of walkie-
talkie sets in the play grounds during the matches subject to the permission to be obtained from
WPC.
91. On October 18, 1993, the CAB addressed a letter to DD for telecasting rights for telecasting
matches mentioning its earlier offer of rights for telecasting and pointed out that the offer of Rs.10
million made by DD vide its fax message dated March 31, 1993 and on the condition the CAB should
not grant any right to Star TV was uneconomical, and considering the enormous organizational cost,
they were looking for a minimum offer of Rs.20 million. The CAB also pointed out that the offers
received by them from abroad including from TWI, were much higher than Rs.20 million and that
the payment under the offers would be made in foreign eXchange. The CAB also stated that they

were given to understand that DD was not interested in increasing their offer and hence they
entered into a contract with TWI for telecasting the matches. However, they were still keen that DD
should come forward to telecast the matches since otherwise people in India would be deprived of
viewing the same. Hence they had made TWI agree to co-production with DD and they also prayed
the DD for such co-production. The CAB's letter further stated that during a joint meeting the
details were worked out including the supply of equipment list by the respective parties, and it was
decided in principle to go for a joint production. The CAB stated that it was also agreed that DD
would not claim eXclusive right and CAB would be at liberty to sell the rights to Star TV. Thereafter
CAB learnt from newspaper reports that DD had decided not to telecast the matches. Hence they
had written a letter to DD dated September 15, 1993 to confirm the authenticity of such news, but
they had not received any reply from DD. It was pointed that in the meanwhile they had been
repeatedly approached by Star TV, Sky TV and other network to telecast matches to the Indian
audience and some of them on an eXclusive basis. But they had not taken a decision on their offers,
since they did not want to deprive DD's viewers. It was further recorded that the CAB had also learnt
recently that DD would be interested in acquiring the rights of telecast provided it was allowed to
produce the matches directly, and the matches produced by TWI were made available to it live,
without payment of any technical fees. After recording this, the CAB made fresh set of proposals, the
gist of which was as follows:
1. TWI and Doordarshan would cover 9 (nine) matches each in the tournament
independently, which are as follows:
Trans World International

November
08 South. Africa v. Zimbabwe (Bangalore)
11 India v. S. Africa (Delhi Chandigarh)
13 W.Indies v. S.Africa (Bombay, Brabourne)
16 Pakistan v. S.Africa (Cuttack)
19 S.Africa v.Sri Lanka (Guwahati)
21 India v. Pakistan (Chandigarh)
23 First Semi Final (Calcutta)
- Second Semi Final (Calcutta)
- Final (Calcutta)
Doordarshan
November
07 India v. Sri Lanka (Kanpur)
09 W.Indies v. Sri Lanka (Bombay,Wankhede) 15 Sri Lanka v. Zimbabwe (Patna) 16

India v. W. Indies (Ahmedabad) 18 India v. Zimbabwe (Indore) 21 W. Inidies
v.Zimbabwe (Hyderabad)
2. TWI will do the coverage of thesematches with their own equipment, crew and
commentators. Similarly, Doordarshan will also have their own crew, equipment and
commentators for the matches produced by them.
3. Doordarshan will be at liberty to use their own commentators for matches

produced by TWI for telecast in India. Similarly, TWI may also use their own

commentators if they televised matches produced by Doordarshan in other networks.
4. TWI will allow Doordarshan to pick up the Signal and telecast live within India,
free of charges. Similarly, Doordarshan will allow TWI to have the Signal for
live/recorded/highlights telecast abroad, free of charges.
5. Doordarshan will not pay access fees to CAB, but shall allow 4 minutes advertising
time per hour (i.e. 28 minutes in 7 hours). The CAB will be at liberty to sell such time
slot to the advertisers and the proceeds so received will belong to CAB.
6. Contract will be entered upon by the CAB and Doordarshan directly for the above
arrangements. TWI will give a written undergoing for the coverage breakup as
mentioned in point 1.
7. Score Card and Graphics shall be arranged by CAB and the e Xpenses for such
production or income derived from sponsorship shall be on the account of CAB. Both
TWI and Doordarshan will use such Score Cards and Graphics as arranged by CAB.
92. The CAB requested the DD to communicate their final decision in the matter before October 21,
1993.
93. On October 26, 1993 VSNL sent a communication to INTESLSAT at Washinton seeking
information of uplinking timings for TV transmission asked for by CAB/TWI. On October 27, 1993
the Tele-
communications Department sent a letter to the Central Board of E Xcise and Customs on the
question of temporarily importing electronic production equipment required for transmission of
one-day matches of the tournament and conveying ' no objection' of the Ministry of
Communications to the proposal, subject to the organizers coordinating with WTC (DoT) for
frequency clearance, from the "Standing Advisory Committee on Frequency Allocation (SACFA)",
for TV up-linking from different places and coordinating with VSNL, Bombay for booking TV
transponders.
94. On October 27, 1993, DD informed CAB with reference to its renewed offer of October 18, 1993
that the terms and conditions of the offer were not acceptable to it and that they have already
intimated to them that DD will not take signal from TWI - a foreign Organisation. They also made it
clear that they had not agreed to any joint production with TWI. On October 29, 1993, CAB replied
to DD that they were surprised at the outright rejection of the various alternative proposals they had
submitted. They had pointed out that the only reason given for rejection was that DD will not take
signals from TWI, which was a foreign organization. Since they had also suggested production of
live matches by DD the question of taking signal from TWI did not arise. CAB further stated that
purely in deference to DD's sensitivity about taking signal from TWI, CAB would be quite happy to
allow DD to produce its own picture of matches and DD may like to buy rights and licenses from
CAB at 'a price which will be mutually agreed upon, and that these rights would be on noneXclusive

basis on Indian territory. On October 30, 1993, DD sent a message to CAB stating that DD will not
pay access fee to CAB to telecast the matches. However, for DD to telecast the matches live, CAB has
to pay technical charges/ production fee at Rs.5 lakh per match. In that case DD will have e Xclusive
rights for the signal generated and the parties interested to take the signal will have to negotiate
directly with the DD. On October 31, 1993 DD sent a fax message to CAB to the same effect.
95. On November 1, 1993 VSNL deputed its engineers/staff to be at the venues where the matches
were being played to coordinate with TWI for TV coverage. On November 2, 1993, TWI paid US
$29,640 and [Pounds] 121,400 to VSNL as fees for INTELSAT charges. On the same day, the
Finance Ministry permitted the equipment of TWI to be imported on certain conditions by waiving
the customs and additional duties of customs. On November 4, 1993, CAB addressed a letter to DD
referring to DD's fax message of October 31, 1993 asking for certain clarification on the offer made
by DD. In this letter, CAB stated that since, DD had asked for fees for production and telecast of
matches, it was presumed that all revenue generated from the matches or entire timeslot for
advertisements, would belong to CAB and that they shall have the right to charge access fees
including other charges from parties abroad, and DD would telecast those matches for which CAB
will pay the charges. The choice of the matches to be telecast by DD would be determined by CAB.
On No- vember 5, 1993, the DD rejected the terms.
96. On November 8, 1993, CAB filed a writ petition in the Calcutta High Court praying, among
others, that the respondents should be directed to provide telecast and broadcast of all the matches
and also provide all arrangements and facilities for telecasting and broadcasting of the matches by
the agency appointed by the CAB, VI_., TWI. Interim reliefs were also sought in the said petition.
On the same day, the High Court directed the learned advocate of the Union of India to obtain
instructions in the matter and in the meanwhile. passed the interim orders making it clear that
they would not prevent DD from telecasting any match without affecting the e Xisting arrangements
between CAB and TWI. The writ petition was posted for further hearing on November 9, 1993 on
which day, the learned Single Judge confirmed the interim orders passed on November 8, 1993 and
respondents were restrained from interfering with the frequency lines given to respondents NO.10
[TWI]. On 10th November, 1993, VSNL advised INTELSAT at Washington seeking cancellation of
its request for booking. On November 11, 1993, the learned Judge partly allowed the writ by
directing All India Radio to broadcast matches. On November 12, 1993 in the appeal filed by the
Union of India against the aforesaid orders of the Division Bench, the High Court passed interim
order to the following effect:
(a) that CAB would pay DD a sum of Rs.5 lakh per match and the revenue collected by DD on
account of sponsorship will be kept in separate account.
(b) that DD would be the host broadcaster.
(c) that Ministry of Telecommunication would consider the question of issuing a license to TWI
under the Telegraphs Act and decide the same within three days.

97. On November 12, 1993, the Film Facilities Officer of the MIB informed the Customs Department
at New Delhi, Bombay and Calcutta airports, that as TWI had not obtained required clearances from
the Government for the coverage of the tournament, they should not be permitted to remove
eXposed film outside India till it was cleared by the Government. On the same day, DD asked the
CAB providing various facilities at each match venue as this was pre-requisite for creating host
broadcaster signal in India. CAB sent a reply on the same day and called upon the DD to telecast
matches within India pursuant to the High Court's order. On the same day again the Collector of
Customs, Bombay called upon CAB to pay customs duty on the equipment as there was a breach in
the terms of the, eXemption order.
98. On the same day, i.e., November 1993, again the Committee of Secretaries decided that the
telecast of all sporting events would be within the e Xclusive purview of the DD/MIB. It was also
decided that for the purposes of obtaining necessary clearances for telecasting different types of
events for the country, a Single Window service would be followed where the concerned
Administrative Min- istry would be the 'Nodal' Ministry to which' the application will be submitted
and it would thereafter be the function of the 'Nodal' Ministry to obtain permissions from the
concerned Ministry/Agencies.
99. On 14th November, 1993, the High Court in clarification of its order of No-
vember 12, 1993 directed, among others, as follows: [a] In case the signal is required to be generated
by TWI separately, such necessary permission should be given by DD and/or other competent
authorities. .
[b] The differences with regard to the placement of cameras etc., if any, between cricket authority
and DD should be mutually worked out, and if this cannot be done, the dispute should be decided by
the Head of the Police in the place where the match was being played.
[c] The equipment of TWI which had been seized by the Customs Authority should be released upon
undertaking that the same would not be used for any. other purpose and [d] The VSNL should take
proper steps for uplinking, and should not take any steps to defeat the orders of the Court. The TWI
should comply with all financial commitments to VSNL.
100. On November 15, 1993, the CAB and another filed the present Writ Petition No. 836 of 1993.
On November 15. 1993, this Court passed an order directing the Secretary Ministry of
Communications to hold meeting on the same day by 4.30 P.M. and communicate his decision by
7.30 P.M. The Customs Authorities were directed to release the equipments. On the same day at
night another order was passed partly staying the orders of the Chairman, Telecommunications and
Secretary, Dot. TWI was permitted to generate its own signals and Customs Authorities were
directed to release the goods forthwith.
101. , The DD filed Contempt Petition in the High Court on the same day against CAB and another,
for noncompliance with the orders of the High Court. The DD also filed the present Special Leave
Petitions in this Court on the same day.

102. What emerges from the above correspondence is as follows. The CAB as early as on 15th March,
1993, had offered to the DD two alternatives, viz., either the DD would create host broadcaster
signal and undertake live telecast of all the matches in the tournament or any other party may create
the host broadcaster signal and DD would purchase from the said party the rights to telecast the said
signal in India. The CAB made it clear that in either case, the foreign TV rights would remain with it.
The CAB also asked the DD to indicate the royalty that it will be willing to pay in either case. To that,
on 18th March, 1993, the DD rejoined by asking in turn the amount of royalty that the CAB e Xpected
if the rights were given to it e Xclusively for India without the. Star TV getting it. On 19th March,
1993, the CAB informed the DD that they would charge US $8 lakhs for giving the DD the right to
create the host broadcaster signal and also for granting it e Xclusive right for India without the Star
TV getting it It was however, emphasised that the CAB would reserve the right to sell/license the
right of broadcasting worldwide eXcluding India and the Star TV. The CAB also stated that the DD
would be under an obligation to provide a picture and commentary subject to payment of DD's
technical fees. On 31st March, 1993, the DD sent its bid as host broadcaster for a sum of Rs.1 crore
[i.e.. about US $3.33 lakhs at the then eXchange rate]. Obviously, this was less than 50 per cent of
the royalty which was demanded by the CAB. The CAB was, therefore, justified in looking for other
alternatives and that is what they did before the DD by a fax message of 4th May, 1993 reminded the
CAB about DD's offer of Rs. 1 crore [i.e., US $3.33 lakhs]. To that message, the CAB replied on 12th
May, 1993 that it had decided to sell/allot worldwide TV rights to only one party and, therefore, they
would like to know whether the DD would be interested in the said deal and if so, to send their offer
for worldwide TV rights, latest by 17th May, 1993. To this, on 14th May, 1993, the DD by Fax, replied
that it was interested only in eXclusive TV rights for India alone without the Star TV getting it and
that it stood by its earlier offer of Rs. 1 crore [i.e., US $3.33 lakhs]. The DD went further and stated
that as there was a speculation that-Pakistan might not participate in the tournament which
eventuality was likely to affect viewership and commercial accruals, it will have to rethink on that
bid also meaning thereby that even the offer of Rs. 1 crore may be reduced.
103. According to the MIB, the CAB, thereafter, entered into an agreement with World Production
Establishment representing the interests of TWI for telecasting all the matches without obtaining
clearance from the Government for telecasting, and granted TWI sole and e Xclusive right to sell or
otherwise eXploit all eXhibition rights of the tournament. Under the agreement with TWI, the CAB
was to receive US $ 5.50 lakhs as guaranteed sum and in addition, if any rights fee income was
received in eXcess of the guaranteed sum, it was to be. split in the ratio of 70:30 between the parties,
i.e. 70 per cent to the CAB and 30 per cent to TWI. Learning of this, the DD informed the CAB that it
had decided not to telecast the matches of the tournament by paying TWI TV rights fee and that it
was not prepared to enter into any negotiations with TWI for the purpose.
104. Again on 18th October, 1993, CAB addressed a letter to DD for telecasting the matches
mentioning its earlier offer of rights for telecasting and pointed out that the offer of Rs. 1 crore made
by DI) on the condition that the CAB should not grant any right 'to Star TV was uneconomical. CAB
also pointed out that considering the enormous organisational costs involved, they were looking for
a minimum offer of Rs.20 million.In this connection, they pointed out that the offers received by
them from abroad-including from TWI were much higher than Rs.20 million and under those
offers, the payment was also to be received in foreign eXchange. The CAB further stated in that letter

that they were given to understand that DD was not interested in increasing their offer and hence
they entered into a contract with TWI for telecasting the matches. Yet, they were keen that DD
should telecast the matches since otherwise people in India would be deprived of viewing the same.
They had, therefore, made the TWI agree for co-production with DD. They, therefore, requested the
DD to agree to such co-production. The CAB also stated in the said letter that in fact in a joint
meeting, details of such arrangement were worked out including the supply of equipment list by the
respective parties and it was decided in principle to go in for joint production. In the meeting, it was
further agreed that DD would not claim eXclusive rights and the CAB would be at liberty to sell the
rights to Star TV. However, since subsequently they had learnt from newspaper reports that DD had
decided not to telecast the matches, by their letter of 15th September, 1993 they had asked DD to
confirm the authenticity of the news items. The DD, however, had not responded to the said letter.
In the meanwhile, many other networks had repeatedly approached them for telecasting matches to
the Indian audience and some of them on e Xclusive basis. But they had still kept the matter pending
since they did not want to deprive the viewers of the DD of the matches. They further added that
they had also learnt that DD would be interested in acquiring rights of telecast provided it was
allowed to produce some matches directly and the matches produced by TWI are made available to
it live without payment of any technical fee. The CAB, therefore, in the circumstances, suggested a
fresh set of proposals for DD's consideration and requested response before 21st October, 1993. On
27th October, 1993, DD responded to the said letter in the negative and stated that the offer made
was not acceptable to it and they had already communicated to that effect earlier, stating that they
will not take any signal from TWI. DD further denied that they had agreed to any joint production
with TWI. The CAB by its letter of 29th October, 1993 pointed out, in response to this letter, that
since they had also suggested production of live matches by DD, question of taking signals from TWI
did not arise, and in deference to DD's sensitivity about taking signals from TWI, CAB would be
quite happy to allow DD to produce its own picture of matches and DD may buy rights and licences
from it at a price which will be mutually agreed upon.
105. Thus, the controversy between the parties was with regard to the terms for the telecasting of the
matches. It must be noted in this connection that the DD had never stated to the CAB that it had no
frequency to spare for telecasting the matches. On the other hand, if the CAB had accepted the terms
of the DD, DD was ready to telecast the matches. Therefore, the argument based on resource crunch
as advanced on behalf of the MIB/ DD, is meaningless in the present case.
106. All that we have to eXamine in the present case is whether the MIB/DD had stipulated
unreasonable conditions for telecasting the matches. It is apparent from the above correspondence
between the parties that CAB wanted a minimum of U.S. $8 lakhs, i.e., Rs.2.40 crores. However, DD
insisted that it would be the host broadcaster and will have eXclusive telecasting rights for India and
for these rights. it will pay only Rs. 1 crore. i.e. US $3.33 lakhs. It had also threatened to reduce the
said offer of Rs. one crore because Pakistan was not likely to participate in the tournament. When it
was pointed out by the CAB that this offer was uneconomical taking. into consideration the
enormous costs involved and that they were looking for a minimum of Rs. 2 crores and had received
higher offers from other parties under which the payments will also be made in foreign e Xchange,
DD stuck to its earlier offer and refused to raise it. In the meanwhile, the CAB received an offer of
U.S. $5.50 lakhs, i.e., Rs. 1.65 crores from TWI as guaranteed sum plus a share to the eXtent of 70

per cent in the rights income fee. The CAB being the sole organiser of the event had every right to
e X plore the maximum revenue possible and there was nothing wrong or improper in their
negotiating with TWI the terms and conditions of the deal. However, the only response of DD to
these arrangements which were being worked out between the CAB and TWI was that it would not
telecast the matches of the tournament by paying TWI the fees for purchasing the rights from that
Organisation. Even then the CAB did not shut its doors on DD, and by its letter of 18th October,
1993 informed the DD that it was keen that DD should telecast the matches so that people in India
are not deprived of viewing the matches. They also informed the DD that it was with this purpose
that they had made TWI agree for co-production with the DD and had made a fresh set of proposals.
However, these proposals were on materially different terms. To this, the DD replied by its letters of
27th October, 1993 that the terms and conditions of the offer were not acceptable to it. The CAB by
its letter of 29th October, 1993 again offered the DD that if their only objection was to taking signals
from TWI, since they had suggested production of live matches by DD in their fresh proposals, there
was no question of taking signals from TWI and they should reconsider the proposals. To this, the
only reply of the DD was that they will not pay any Access Fee to CAB to telecast the matches and if
DD were to telecast the matches, the CAB will have to pay Technical/Production Fee at the rate of
Rs.5 lakhs per match, and in that case the DD will have e Xclusive rights for the signal generated, and
the parties interested will have to take the signals from the DD after negotiating directly with it. In
other words, the DD took the stand that not only it will not pay any charges to the CAB for the rights
of telecasting the matches, but it is CAB which will have to pay the charges, and that the DD will be
the sole producer of signals and others will have to buy the signals from it..
107. Thus the correspondence between the parties shows that each of the parties was trying to score
over the other by taking advantage of its position. The blame for the collapse of the negotiations has
to be shared by both. The difference, if any, was only in the degree of unreasonableness. If anything,
this episode once again emphasises the need to rescue the electronic media from the government
monopoly and bureaucratic control and to have an independent authority to manage and control it.
108. Coming now to the change in the, stand of the other Departments of the Government for
granting facilities to the agency engaged by the CAB, the facts make a revealing reading. The actions
of the various Departments of the Government, referred to earlier, show firstly, that the Min- istries
of Human Resources Development, of Home Affairs, of Finance, of Communications, and the VSNL
had no objection whatsoever to the arrangements which the CAB had entered into with TWI, the
foreign agency, for covering the cricket matches. In fact they granted all the necessary permissions
and facilities to the CAB/TWI in all respects subject to certain conditions with which neither the
CAB nor TWI had any quarrel. Secondly, these various Departments had accepted TWI as the
agency of CAB for the purposes of the said coverage and they had no objection to the TWI covering
the matches on the ground that it was a foreign agency. This was the situation till the writ petition
was filed by the CAB in the Calcutta High Court on 8th November, 1993. It is necessary to remember
in this connection that the decision or the DD to intimate CAB that it will not pay even access fee to
the CAB to telecast the tournament and that it was for the CAB to pay the technical/pro-
duction fee of Rs. 5 lakhs per match with DD having e Xclusive right for the signal generated, and
others will have to buy it after negotiating directly with the DD, was taken on 30th/31st October,

1993. It is in that conteXt that further developments which are relevant for our purpose and which
took place during the pendency of the Court proceedings, have to be viewed. It is only on 12th
November, 1993 that the Committee of Secretaries came out with the concept of the ! nodal
ministry. By itself, the decision to form the nodal ministry to coordinate the activities of all the
concerned ministries and departments is une Xceptional. But the time of taking the decision and its
background was not without its significance. However, there is no adequate material on record to
establish a neXus between the MIB/DD and the aforesaid actions of the other authorities.
109. The neXus in question was sought to be established by the CAB by pointing out to the letter
addressed by the Deputy Secretary in MIB with the approval of the Secretary, of that Ministry to
Department of Youth Affairs and Sports of the Ministry of Human Resources Development. It in
terms refers to the meeting of the committee of Secretaries on 12th November, 1993 and states that
according to the so- called "e Xtant policy" of the Government, as endorsed by the Committee of
Secretaries, the telecasting of sporting events is within the e X clusive purview of DD/MIB.
Accordingly, the NIB opposes the grant of any permission to M/s. WPE or its agency TWI or any
Indian company to cover the matches for general reception in India through uplinking facility eXcept
in collaboration with DD with only the latter being the sole agency entrusted with the task of
generating TV signal from the venue of the matches. It further states that the MIB opposes [i]
import of any satellite earth station for the coverage of the series, [ii] the grant of any ad-hoc
eXemption for the import of equipment by WTE or TWI without their first producing the approval of
the competent authority permitting its use within India, in terms of the provisions of Indian
Telegraph Act, 1885 and the Wireless Telegraph Act, 1933 in the absence of which possession of
such equipment within India constitutes an offence, [iii] M/s. WTE or TWI being permitted to
undertake shooting of the cricket matches at different places and grant of visa or RAP to its
personnel for visiting India, and [iv] the grant of any permission to any aircraft leased by M/s.
WPE/TWI for landing at any international or national airport.
110. It was urged that the question of the absence of permission/licence of the requisite authorities
under the Indian Telegraph Act and the Wireless Telegraph Act was never raised or made a ground
for denial of the right to the BCCI/CAB to telecast the matches or to uplink the signal through TWI
till after CAB had approached the Calcutta High Court on 8th November, 1993. It was contended
that the MIB woke up suddenly to the relevant provisions of the statute after the Court proceedings.
We are, however, not satisfied that these events conclusively establish that the other Departments
acted at the behest of the DD/MIB.
111. The circumstances in which the High Court case to pass its interim order dated 12th November,
1993 may now be noticed. The MIB and DD's appeals are directed against the said order 'and writ
petition is filed by the CAB for direction to respondent Nos. 1 to 9, which include, among others,
Union of India.
112. In the writ petition filed by the CAB before the High Court on 8th November, 1993, the learned
Single Judge on the same day passed an order of interim injunction commanding the respondents to
provide all adequate facilities and cooperation to the petitioner and/or their appointed agency for
free and uninterrupted telecasting and broadcasting of the cricket matches in question to be played

between 10th and 20th November, 1993, and restrained the respondents from tampering with,
removing, seizing or dealing with any equipment relating to transmission, telecasting or
broadcasting of the said matches, belonging to the CAB and their appointed agency, in any manner
whatsoever. On the neXt day, i.e., 9th November, 1993 the said interim order was made final. On the
11th November, 1993, on the application of the CAB complaining that the equipment brought by
their agency, viz., TWI [respondent No. IO to the petition] were seized by the Bombay Customs
authorities under the direction issued by the Ministry of Communications and the MIB, another
order was passed by the learned Judge directing all Government authorities including Customs
authorities to act in terms of the interim orders passed earlier on 8th/9th November, 1993. While
passing this order in the presence of the learned counsel for the respondents who pleaded ignorance
about the seizure of the equipment by the Customs authorities, the learned Single Judge observed,
among other things, as follows:
"It is submitted by the learned Counsel on behalf of the respondent that since Doordarshan has been
denied telecasting of the tournament by the respondent No. 6, Akasliban has also decided to stop
broad-
casting and in support of his contention has produced a letter dated 10th of November, 1993 issued
by the Station Director, Calcutta, for Director General, All India Radio to Shri S.K. Kundu, Central
Government's Advocate whereupon it appears that it was admitted, that All India Radio had
planned to provide running commentary of the matches of the above tournament organised by the
Cricket Association of Bengal, but as Doordarshan was denied the facility of nominating the Host
Broadcaster's Signal and it consequently decided not to cover those matches, All India Radio also
had decided to drop the coverage of those matches since the principles on which Doordarshan based
its decision, viz.,, the protection of inherent interest of the National Broad- casters to generate the
signal of sports, applied equally to the All India Radio.
I fail to understand the logic behind the said letter and the stand taken by the All India Radio in the
matter which appears to me wholly illogical and ridiculous, Doordarshan might have some dispute
with the. regarding the right to be the Host Broadcasters Signal including financial questions, but
the All India Radio, which itself volunteered to broadcast the matches themselves, and when,
admittedly, no financial transaction is involved between the All India Radio and the respondent
No.6, denial of the All India Radio to broadcast the said matches only on the ground that since
Doordarshan was denied by the respondent No.6 to be 1 the Host Broadcaster's Signal, the All India
Radio stopped broadcasting the matches following the same principle, appears to be absolutely
whimsical and capricious.
XXXXXX Such denial by the All India Radio certainly is an act done against the public interest and
thus cannot be supported and/ or upheld to deprive the general people of India of such small
satisfaction...
X X X X X X Accordingly, I find the action of the All India Radio in stopping the broadcasting of
aforesaid tournament is wholly illegal, arbitrary and mala fide....

This writ application accordingly succeeds and allowed to the eXtent as stated above, and let a writ
in the nature of mandamus to the eXtent indicated above be issued."
113. The Union of India preferred an appeal against the said decision and in the appeal moved an
application for staying the operation of the orders passed by the learned Single Judge on 8th/9th
November, 1993. Dealing with the said application, the Division Bench in its order dated other
things, as follows:
"Mr. R.N. Das, learned Counsel appearing for and on behalf of the Union of India and others
including the Director General of Doordarshan, appearing with Mr. B. Bhattacharya and Mr.
Prodosh Mallick submitted inter alia, that the Doordarshan authority is very much inclined and
keen to telecast the Hero Cup matches in which several parties from abroad are participating
including India. But it was pointed out that the difficulties have been created by Cricket Association
of Bengal in entering into an agreement with Trans World International [UK] Inc. World Production
the respondent No.10 of the writ petition wherein the Cricket Association of Bengal has given
eXclusive rights to telecast to that authority. It was submitted by Mr. Das that under Section 4 of the
Indian Telegraph Act, 1885 the Central Government have the e Xclusive privilege of establishing,
maintaining and working telegraph and that it was further submitted that the e Xpression telegraph
includes telecasts through Doordarshan. it was further provided that proviso to Section 4 [1] of the
said Act provides 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. Relying upon the provisions it was submitted that neither the
CAB nor the TWI respondent No. 10 of the writ application have obtained any licence for the
purpose of telecasting the matches direct from India."
114. The Court then referred to the correspondence between the CAB and the DD between 31st
March, 1993 and 31st Octo- ber, 1993 and the letters of no objection issued to the CAB by the
Ministry of Communications and the VSNL and to the acceptence by the VSNL of the payments
from TWI as per the demand of the VSNL itself for granting facilities of uplinking the signal and
recorded its primafacie finding that the DD was agreeable to telecast matches live for India on a
consideration of Rs.5 lakhs per match which was accepted under protest and without prejudice by
the CAB and the only dispute was with regard to the revenue to be earned through advertisements
during the period of the matches. The Court said that it was not adjudicating on as to what and in
what manner the revenue through advertisements would be created and distributed between the
parties. It left the said points to be decided on merits in the appeal pending before it and proceeded
to observe as follows:
"... but it present having regard to the interest of millions of Indian viewers who are
anxiously eXpecting to see such live telecast, we record as Doordarshan is inclined to
telecast the matches for the Indian viewers on receipt of Rs.5 lakh per match and to
enjoy the eXclusive right of signalling within the country being host broadcaster, we
direct the CAB to pay immediately a sum of Rs.5 lakhs per match for this purpose and
the collection of revenue on account of sponsorship or otherwise in respect of 28
minutes which is available for commercial purpose be realised by the Doordarshan

on condition that such amount shall be kept in a separate account and shall not deal
with and dispose of the said amount until further orders and we make it clear
regarding the entitlement and the manner in which the said sum will be treated
would abide by the result of the appeal or the writ application. Accordingly, it is
made clear that Doordarshan shall on these conditions start immediately telecasting
the live matches of the Hero Cup for the subsequent matches from the ne Xt match in
India. Mr. Das Id. counsel appearing on behalf of the appellant submits that they
were in a position technically or otherwise to telecast immediately. With regard to the
right of TWI to telecast the matches outside India is concerned, we also record that
on time of hearing the counsel appearing on behalf of the appellant showed an order
in three lines that the authority concerned has summarily and without giving any
reason and/or any hearing whatsoever directed to VSNL not to allow the TWI to
transmit or to telecast from India in respect of the Hero Cup matches but it was
submitted by the learned Counsel appearing for the appellant that they are very much
keen to consider the matter in proper perspective in accordance with laws, having
regard to the national impact on this question. It appears that on the basis of the
representation made by VSNL, TWI came into the picture and subsequently TWI
entered into an agreement with the CAB. At this stage, we are not called upon to
decide the validity or otherwise of such an agreement entered into by the parties. As a
matter of fact, we are referring this without prejudice to the rights and contentions
of the parties. It further appears that the Government of India through the
Department of Communication stated that the said department had no objection with
regard to the permission to the CAB for temporarily importing electronic product
equipments required for transmitting one day matches of the Hero Cup as a part of
Diamond Jubilee Celebration to be started from November 7 to 27, 1993, the Ministry
has no objection to proposal "subject to the organisers Co-ordinating with WPC
[DOT] for frequency clearance from the Standing Advisory Committee on frequency
allocation {SACFA} for TV uplinking from different places and coordinating with
VSNL, Bombay for booking of TV transponders etc. It appears that the said no
objection certificate has created a legitimate eXpectation, particularly in view of the
fact that the money demanded by VSNL in this behalf was duly paid by TWI and all
arrangements have been made by TWI for performing the job. As we find that no
formal permission is required under proviso to Section 4 [1] of Indian Telegraph Act
is there in favour of the party, having regard to the facts stated above and having
regard to National and International impact on this question and having regard to
the fact that any decision taken will have the tremendous impact on the International
sports, we direct the appellant No.5 who is respondent No.6 in the writ application.
The Secretary, Ministry of Telecommunication, Sanchar Bhavan, New Delhi,
Government of India to consider the facts and circumstances of the case clearly
suggesting that there had already been an implied grant of permission, shall grant a
provisional permission or licence without prejudice to the rights and contentions of
the parties in this appeal and the writ application and subject to the condition that
the respondent No.6 in the writ application will be at liberty to impose such
reasonable terms and conditions consistent with the provision to Section 4 [1]of the

Indian Telegraph Act, having regard to the peculiar facts and circumstances of the
case. If TWI comply with such terms and conditions that may be imposed without
prejudice to their rights and contentions in the interest of sports and subject to the
decision in this appeal or the writ application shall be entitled to telecast for
International viewers outside India. The Secretary, Ministry of Telecommunication,
Sanchar Bhavan, New Delhi, Government of In- dia, is directed to decide this
question as directed by us within three days from today and all the parties will be
entitled to be heard, if necessary. We must put in on record our anxiety that the
matter should be taken in the spirit of sports not on the spirit of prestige or personal
interest and should approach the problem dispassionately rising above all its narrow
interest and personal ego. In order to comply with this order any order of
detention of the equipments of TWI should not be given effect to."
115. The Court also made it clear that in order to comply with its order, any order of detention of the
equipments of TWI should not be given effect to. Notwithstanding this order or probably in
ignorance of it, the Collector of Customs, Bombay wrote to the CAB that it had given an undertaking
to fulfill all the conditions of the ad hoc order dated 2nd November, 1993 under which e Xemption
was given to it for importing the equipments. However, it had not fulfilled the conditions laid down
at [1] and [iii] of para 2 of the said ad hoc eXemption order and, therefore, it should pay an amount
of Rs.3,29,07,711/as customs duty on the equipment imported by TWI. They also threatened that if
no such duty was paid, the goods would be confiscated. In view of the said show cause notice, the
CAB moved the Division Bench and on 14th November, 1993. The lawyer of TWI also wrote a letter
in the meanwhile on 13th November, 1993 to the Customs authorities at Bombay stating therein that
as TWI had sent a letter enclosing a copy of the order of the Division Bench passed on 12th
November, 1993 directing them not to give effect to the detention of the equipments and
complaining that in spite of it they had not released the goods and, therefore, they had committed a
contempt of the Court. This grievance of CAB and TWI along with the complaint of the DD for not
permitting them to place their cameras at the requisite places, were heard by the Division Bench on
14th November, 1993 when the match was already being played in Bombay. The Bench observed
that the Court was given to understand that none of the parties was inclined to go higher up against
its earlier order and that what was required was certain clarification of that order in the changed
circumstances. The learned counsel for the CAB stated that they were not going to oppose the DD
placing their cameras but the dispute had arisen as to the signalling to be made for the telecast.
According to the learned counsel for the Union of the India, there could be only one signalling from
the field and DD should be treated as host broadcaster and the TWI should take signal from it. This
was opposed by the learned counsel for the CAB who contended. that DD had been given e Xclusive
right as host broadcaster so far as the telecasting of matches in India was concerned. The telecasting
of matches abroad was to be done by TWI. The Division Bench held that the DD will have the
eXclusive right of signalling for the purposes of telecasting within the country, and they were to be
treated as host broadcasters so far as telecasting within India was concerned. As far as TWI is
concerned, if it was authorised and permitted in terms of their earlier order, it would be entitled to
telecast outside the country and to send their signal accordingly. They also stated that in case the
signalling was required to be made by the TWI separately the necessary permission should be given
by the DD or other competent authorities. They resolved the dispute with regard to the placement of

cameras by directing that DD will have first priority and if there was any dispute on that account it
would be resolved by the local head of the Police Administration at the venue concerned. They also
directed the Customs authorities, Bombay to release the equipments imported for the purposes of
TWI with the condition that the said equipments will be used only for transmission of the matches
and they shall not deal with or dispose of the said equipments or remove it outside the country
without the permission of the Court. In particular, they also directed the VSNL to take proper steps
for uplinking and not to take any step to defeat the purpose.
116. Against the said order of the Division Bench, the present appeals are preferred by the Ministry
of Information and Broadcasting and others whereas the writ petition is filed by the CAB for
restraining the respondents, (which include, among others, Union of India [No. 1], Secretary,
Ministry of Information & Broadcasting [No.2], Director General, Doordarshan [No.3], Secretary,
Ministry of Communi- cations [No.5], Director, Department of Telecommunications [No.6], and
Videsh Sanchar Nigam Limited [No.9], from preventing, obstructing and interfering with or
creating any hurdles in the implementation of agreement dated 14.6.1993 between the
petitioner-CAB and respondent No. 10, i.e., TWI.
117. The matter was heard by this Court on 15th November, 1993. It appears from the record that
although the High Court had directed the Secretary, Ministry of Communications to decide the
question of granting of licence under Section 4 [1] of the Telegraph Act within 3 days from 12th
November, 1993 by its order of the same day, the Secretary had fi Xed the meeting for consideration
of the application only on the 16th November, 1993. 'Mat itself was a breach of the High Court's
order. This Court, therefore, directed the Secre- tary to hear the matter at 4.30 p.m. on 15th
November, 1993 and communicate its decision to TWI or its counsel or to the CAB or its counsel
immediately thereafter but before 7.30 p.m. on the same day. This Court also directed the Customs
authorities to release the equipment forthwith which they had not done in spite of the High Court's
order. The TWI and CAB were, however, restrained from using the said equipment till the licence
was issued by the Secretary, Department of Telecommunication.
118. Pursuant to the direction given by this Court, the Secretary by his order of 15th November, 1993
after referring to the judgment of the High Court and its implication and after taking into
consideration the arguments of the respective parties, held as follows:
"In this connection, we have to take into account an important point brought to our notice by the
Director General Doordarshan. It is true that Section 4 of the Indian Telegraph Act of 1885 enables
the government to give licences to agencies other than Doordarshan or the government departments
to telecast. In fact, such a permission had been given in January 1993 when the cricket matches were
telecast by the same TWI. However, subsequently, I am given to understand that the government
policy in the Ministry of I&B has been that the uplinking directly by private parties/foreign agencies
from India for the purpose of broadcasting should not be permitted. It is true that in a cricket match
we are not considering security aspects. But, the point to be considered is whether uplinking. given
in a particular case will have its consequences on other such claims which may not be directly linked
to sports and which will have serious implications. Within the government, as per Allocation of
Business Rules, it is the Ministry of I&B which has the responsibility for formulation and

implementation of the policies relating to broadcasting/telecasting.
As was made clear earlier, in this case, we are considering two aspects. One is the generation of
signals and the second is their communication. The Department of Telecommunication comes in the
picture so far as the communication aspect is concerned.
Taking into account the facts mentioned above, the only reasonable conclusion I reach is that
permission may be given to TWI for telecast overseas through the VSNL, while Doordarshan will be
telecasting within the country. The TWI will have to get the signals from Doordarshan for uplinking
through the VSNL by making mutual arrangements. So far as VSNL is concerned, there should be no
difficulty in transmitting the signals through Intelsat as already agreed upon.
In my view, the above decision takes into account the needs of the millions of viewers both within
the country and abroad who are keen to watch the game and at the same time ensures that there is
no conflict with the broad government policy in the Ministry of I&B which is entrusted with the task
of broadcasting. It also takes into account the overall aspects and the reasonable e Xpectation created
within the TWI by the series of clearances given by the different authorities of the Government of
India".
119. This order which was passed around 7.30 p.m. was challenged by the CAB, and being an urgent
matter, was heard by the Court late at night on the same day. The Court stayed the order of the
Secretary to the eXtent that it imposed a condition that the TWI will have to get the signals from the
DD for uplinking through the VSNL by making mutual arrangements. The Court directed that the
TWI can generate its own signal by focusing its cameras only on the ground where the matches were
being played, as directed by the Ministry of Home Affairs and that they will take care not to focus
their cameras anywhere else.
120. For telecasting the triangular series and the West Indies tour to India in 1994 season, the same
disputes arose between the parties. By their letter of 25th August, 1994, the BCCI requested the
Director, Sports, of the Ministry of Human Resources Development, Department of Youth Affairs
and Sports to grant permission to it or TWI/SPN to telecast the triangular series and matches to be
played between India and West Indies. By their letter of 30th August, 1994 written to the Secretary,
Department of Sports, the MIB opposed the grant of uplinking facilities to any foreign agency. On
14th September, 1994, Ishan Television India Ltd. [with a tie-up with ESPN which had contract with
BCCI, applied to the VSNL for uplinking facilities for telecasting of the said matches. The VSNL
thereafter wrote to the NM for their "no objection" and the NUB opposed the grant of "no objection"
certificate and objected to VSNL writing to the MIB directly for the purpose. The MM also stated
that their view in the matter was very clear that satellite uplinking from Indian soil would be within
the eXclusive competence of the MIB/DoT/DOS-and that the telecast of sporting events would be
the eXclusive privilege of DD. By their letter of 26th September, 1994, the 'nodal' Ministry, i.e.,
Ministry of Human Resources Development [Department of Youth Affairs and Sports addressed to
all the Ministries and Departments including the MIB called for the remarks on the letter of the
BCCI addressed to the nodal Ministry. The MIB again wrote to the Sports Department of the nodal
Ministry, opposing grant of Single Window service to the BCCI. On 3rd October, 1994, the VSNL

returned the advance which it had received from Ishan TV for uplinking facilities. On 7th October,
1994, this Court passed the following order:
"Pending the final disposal of the matters by this interim order confined to telecast
the International Cricket Matches to be played in India from October 1994 to
December 1994, we direct respondent Nos. 1 and 6 to 9 in Writ Petition No.836/ 93
to grant forthwith necessary permission/sanctions and uplinking facilities for
production, transmission and telecasting of the said matches. We also direct
respondent Nos.2, 3 and 4 in writ petition No.836/93 and all other Government
Agencies not to obstruct/restrict in any manner whatsoever production, transmission
and telecasting of the said matches for the said period by the petitioner-applicant
only on the ground where the Cricket Matches would be played and the signals are
generated under the direct supervision of the VSNL personnel. So far as the
production, transmission and telecasting of these matches in India is concerned, the
Doordarshan shall have the eXclusive right in all respects for the purpose, and the
petitioner-applicant shall not prevent Doordarshan from doing so, and in particular
shall afford all facilities for Doordarshan to do so.
So far as the placement of cameras are concerned both petitioner-applicant as well as

Doordarshan shall have equal rights. This shall be ensured by Shri Sunil Gavaskar in
consultation with such technical eXperts as he may deem necessary to consult. He is
requested to do so. As far as the remuneration for Shri Sunil Gavaskar and the
technical eXpert is concerned, both Doordarshan as well as the petitioner- applicant
will share the remuneration equally which will be fi Xed by this Court. As regards the
revenue generated by the advertisement by Doordarshan is concerned, Doordarshan
will deposit the said amount in a separate account and preferably in a nationalised
Bank. The Doordarshan will have the eXclusive right to advertisement. All the IAs are
disposed of accordingly".
121. Since certain disputes arose between the parties, on 18th October, 1994, this Court had to pass
the following order:
"The BCCI will ensure that all Cricket Associations and staging Centres shall e Xtend
every facility to the personnel authorised by the Doordarshan to enter into the
Cricket Ground for production, transmission and telecasting of the matches without
any late or hindrance. The BCCI will also ensure that all Cricket Associations staging
the matches will make available every facility and render such assistance as may be
necessary and sought by the Doordarshan for effective telecasting of the matches at
the respective grounds and stadia.
The BCCI shall not permit the ESPN to enter into any contract either with A.T.N. or
any other Agency for telecasting in any manner all over India, whether through the
Satellite footprints or otherwise, Cricket Matches which are being telecast in India by
the Doordarshan. If the ESPN has entered into any such contract either with A.T.N.

or any other Agency, that contract should be cancelled forthwith.
Since this Court is seized of the present matter, no court should entertain any writ
petition, suit or application which is connected in any manner with the discharge of
obligation imposed on the respective parties to the present proceedings. If any such
writ petition suit or application is already entertained, the Courts should not proceed
with the same till further orders of this Court.
The BCCI and the Doordarshan will mutually solve the problem of the Control Room
and Storage Room facilities needed by the Doordarshan, preferably in one meeting
La Bombay on 20th October, 1994".
122. The law on the subject discussed earlier makes it clear that the fundamental right to freedom of
speech and eXpression includes the right to communicate effectively and to as large a population not
only in this country but also abroad, as is feasible. There are no geographical barriers on
communication. Hence every citizen has a right to use the best means available for the purpose. At
present, electronic media, viz., T.V. and radio, is the most effective means of communication. The
restrictions which the electronic media suffers in addition to those suffered by the print media, are
that [i] the airwaves are a public property and they have to be used for die benefit of the society at
large, [ii] the frequencies are limited and [iii] media is subject to pre-censorship. The other
limitation, viz., the reasonable restrictions imposed by law made for the purposes mentioned in
Article 19 [2] is common to all the media. In the present case, it was not and cannot be the case of
the NM that the telecasting of the cricket matches was not for the benefit of the society at large or
not in the public interest and, therefore, not a proper use of the public property. It was not the case
of the MIB that it was in violation of the provisions of Article 19 [2]. There was nothing to be pre-
censored on the grounds mentioned in Article 19 [2]. As regards the limitation of resources, since
the DD was prepared to'telecast the cricket matches, but only on its terms it could not plead that
there was no frequency available for telecasting. The DD could also not have ignored the rights of the
viewers which the High Court was at pains to emphasise while passing its orders and to which we
have also made a reference. The CAB/BCCI being the organisers of the event had a right to sell the
telecasting rights of its event to any agency. Assuming that the DD had no frequency to spare for
telecasting the matches, the CAB could certainly enter into a contract with any agency including a
foreign agency to telecast the said matches through that agency's frequency for the viewers in this
country [who could have access to those frequen-
cies] as well as for the viewers abroad. The orders passed by the High Court in effect gave a right to
DD to be the host broadcaster for telecasting in this country and for the TWI, for telecasting for the
viewers outside this country as well as those viewers in this country who have an access to the TWI
frequency. The order was eminently in the interests of the viewers whatever its merits on the other
aspects of the matter.
123. The orders passed by the High Court have to be viewed against the backdrop of the events and
the position of law discussed above. The circumstances in which the High Court passed the orders
and the factual and legal considerations which weighed with it in passing them speak for

themselves. However, since the cricket matches have already been telecast, the question of the
legality or otherwise of the orders has become academic and it is not necessary to pronounce our
formal verdict on the same. Hence we refrain from doing so.
124. We, therefore, hold as follows:
[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 free-
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 the DD the revenues generated by the
advertisements on T.V. 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.
125. The civil appeals are disposed of accordingly.
126. In view of the disposal of the civil appeals, the writ petition filed by the Cricket Association of
Bengal also stands disposed of accordingly.
B.P. JEEVAN REDDY, J.
127. Leave granted in Special Leave Petitions.
128. While I agree broadly with the conclusions arrived at by my learned brother Sawant,J. in Para
24 of his judgment, I propose to record my views and conclusions on the issues arising in these
matters in view of their far- reaching importance.

129. Cricket is an interesting game. Radio, and more particularly the television has made it the most
popular game in India. It has acquired tremendous mass appeal. Television has brought the game
into the hearths and homes of millions of citizens across the country, enhancing its appeal
several-fold. Men, women and children who had no interest in the game earlier have now become its
ardent fans
- all because of its broadcast by radio and television. This has also attracted the attention of business
and commerce. They see an e Xcellent opportunity of advertising their products and wares. They are
prepared to pay huge amounts therefor. The cricket clubs which conduct these cricket matches have
come to see an enormous opportunity of making money through these matches. Previously, their
income depended mainly upon the ticket money. Now, it probably does not count at all. The real
income comes from the advertisements both in-stadia as well as the spot advertisements over radio
and television. The value of instadia advertisement has increased enormously on account of its
constant eXposure on television during the progress of the game. Lured by this huge revenues,
organisers of these events now propose to sell the broadcasting rights used compendiously to denote
both radio and television rights - of these events to the highest bidder, be he foreign agency or a
local one. They find that Doordarshan is not in a position to or willing to pay as much as the foreign
agencies are. Accordingly, they have sold these rights to foreign agencies. But - and here lies the rub
- broadcasting the event, particularly telecasting, requires import, installation and operation of
certain equipment by these foreign agencies for which the law (Indian Telegraph Act) requires a
prior permission - licence
- to be granted by Government of India. Earlier, they wanted uplinking facility too through Videsh
Sanchar Nigam Ltd., a Government of India-owned company. Now they suggest, it may not be
necessary. They say, they can uplink directly from their earth station installed, or parked, as the case
may be, near the playing field to their designated communication satellite which will beam it back to
earth The revolution in communications/ information technology is throwing up new issues for the
courts to decide and this is one of them.
130. The Doordarshan says that all these years it has been telecasting the cricket events in India and
has helped it popularise. So also is the plea of All India Radio (AIR). They are Government agencies
- departments of Government. AIR and Doordarshan enjoy a monopoly in this country in the matter
of broadcasting and telecasting. They cannot think of any other agency doing the same job. They are
not prepared to reconcile themselves to any other agency, more particularly, a foreign agency being
invited to broadcast/ telecast these events and they themselves being asked to negotiate and
purchase these rights from such foreign agencies. They say, they alone should be allowed to telecast
and broadcast these events; that they alone must act as the 'host broadcaster', which means they
alone shall generate the host broadcasting signal, which the interested foreign agencies can
purchase from them. They are, of course, not prepared to pay as much amounts as the foreign
agencies. They are seeking to keep away the foreign agencies with the help of the legal provisions in
force in this country. If they are successful in that, it is obvious, they may - they can - dictate terms
to the organisers of these events. If they cannot, the organisers will be in a position to dictate their
terms. But here again, there is another practical, technological, problem. The foreign agencies do
beam their programmes over Indian territory too, but for receiving these programmes you require -

period - a dish antenna, which costs quite a bit. Our TV sets cannot receive these programmes
through the ordinary antenna. Doordarshan alone has the facility of telecasting programmes which
can be received through ordinary antennae. Millions in this country, who arc deeply interested in
the game, cannot afford these dish antennae but they want to watch the game and that can be
provided only by the Doordarshan. And this is its relevance. Doordarshan says, if the organisers
choose to sell their telecasting rights to a foreign agency, they would have nothing to do with the
event. They would not telecast it themselves. If the foreign agencies can telecast them, well and good
- they can do so in the manner they can, but Doordarshan would not touch the event even by a long
barge- pole. But, the Doordarshan complains, they are being compelled by the courts to telecast
these events in public interest; such orders have been passed in writ petitions filed by individuals or
groups of individuals purporting to represent public interest; the 1995 (2) Doordarshan is thus made
to lose at both ends - and the organisers are laughing all the way; telecasting an event requires good
amount of preparation; advertisements have got to be collected well in time; it cannot be done at the
last minute; without advertisements, telecasting an event results in substantial loss to public
eXchequer - it says. These are the problems which have given rise to these appeals and writ petitions.
They raise inter alia grave constitutional questions touching the freedom of speech and e Xpression
guaranteed by Article 19(1)(a) of the Constitution. The interpretation of Section 4(1) of the Indian
Telegraph Act, the right to establish private broadcasting and telecasting facilities/ stations - in
short, the, whole gamut of the law on broadcasting and telecasting has become involved in the issues
arising herein.
FACTUAL CONSPECTUS-
131. Cricket Association of Bengal (CAB) organised an international cricket tournament under the
name and style of "Hero Cup Tournament" to commemorate and celebrate its diamond jubilee
celebrations. Apart from India, national teams of West Indies, South Africa, Sri Lanka and
Zimbabwe to participate though the national team of Pakistan withdrew therefrom having agreed to
participate in the first instance. The Hero Cup Tournament comprised several one day matches and
its attraction was not confined to India but to all the cricket loving countries which, in effect, means
all the commonwealth countries. The tournament was to be held during the month of November,
1993. Until 1993, Doordarshan was acting as the host broadcaster in respect of all the cricket
matches played in India. It generated the 'host broadcaster signal', which signal could be assigned or
sold to foreign television organisations for being broadcast in their countries. However, an e Xception
was made by the Government of India - for reasons we do not know - in respect of an earlier
tournament; a foreign agency was permitted to telecast the matches in addition to Doordarshan.
This eXception appears to have set a precedent. On March 15, 1993 the Cricket Association of Bengal
wrote to Doordarshan asking it to send their detailed offer which could be any one of the two
alternatives mentioned in the letter. The two alternatives mentioned were: "(a) that you
(Doordarshan) would create 'host broadcaster signal' and also undertake live telecast of all the
matches in the tournament or (b) that'any other party may create the 'host broadcaster signal' and
you would only purchase the rights to telecast in India." The Doordarshan was requested to clearly
spell in their offer the royalty amount they were willing to pay. It was further made clear that "in
either case it may also please to noted that foreign T.V. rights will be retained by this association".
The letter also suggested the. manner in which and by which date the royalty amount was to be paid

to it. The offer from Doordarshan was requested to be sent by March 31, 1993. On March 18, 1993
Doordarshan wrote to CAB asking it to send in writing the amount it e Xpects as rights' fee payable to
it for granting eXclusive telecasting rights "without the Star T.V. getting it". On March 19, 1993, CAB
wrote to Doordarshan stating that "we are agreeable to your creating the Host Broadcaster Signal
and also granting you eXclusive rights for India without the Star TV getting it. And we would charge
you US $ 800,000 (US Dollars Eight Hundred Thousand only) for the same. We 'Will, however,
reserve the right to sell/licence right worldwide, eXcluding India and Star TV. You would be under
an obligation to provide the picture and commentary, subject to the payment of your technical fees".
On March 31, 1993 Doordarshan replied back stating that the e Xclusive rights for India without Star
TV getting it may be granted to Doordarshan at a cost of Rupees one crore. Evidently, because no
response was forthwith coming from CAB, the Doordarshan sent a reminder on May 4, 1993. On
May 12, 1993, CAB wrote to Doordarshan. By this letter, CAB informed Doordarshan that they have
now decided "to sell/allot worldwide TV Rights for the tournament to one party only, instead of
awarding separate areawise and companywise contracts". In view of this revised decision, the CAB
called upon Doordarshan to let them know whether Doordarshan is in the deal and if so to submit
its detailed offer for worldwide TV rights by May 17, 1993. The Doordarshan was given an option
either to purchase TV rights outright or to purchase TV rights on the basis of sharing of rights fee.
Even before receiving this letter of CAB dated May 12, 1993, Doordarshan addressed a letter to CAB
on May 14, 1993 stating that while Doordarshan is still committed to its bid of Rupees one crore,
there is speculation that Pakistan may not participate in the tournament which would adversely
affect the viewership and commercials. In such an eventuality, the Doordarshan said, it will have to
re-think its bid.
132. On June 18, 1993 Doordarshan sent a fax message to CAB referring to the press reports that
CAB has entered into amendment with Transworld Image (TWI) for the TV coverage of the said
tournament and that, therefore, Doordarshan has decided not to telecast the tournament matches
organised by paying TWI. It stated that Doordarshan is not prepared to enter Into any negotiation
with TWI to obtain TV rights for the event. will not
133. Months passed by and then on October 18, 1993, CAB wrote a detailed letter to Doordarshan. In
this letter, CAB stated that though they were eXpecting an offer Doordarshan was offering only a
sum of Rupees one crore and that they have received offers from agencies abroad including TWI
which were much higher than Rupees two crores and that too in foreign e X change. Since
Doordarshan was not interested in increasing its offer, the letter stated, CAB entered into a contract
with TWI for the telecast of matches. Even so, the letter stated, the CAB is still keen that
Doordarshan comes forward to telecast the matches since it does not wish to deprive 800 millions
people of this country and that accordingly they have made TWI agree for co-production with
Doordarshan. It was also stated that Doordarshan should not claim e Xclusive rights and the CAB
would be at liberty to sell the rights to Star TV. The letter further stated that the Doordarshan has
not been responding to their letters and that meanwhile several foreign TV organisations and
networks have been approaching them to telecast their matches to the Indian audience. The letter
also referred to their information received from some other sources that Doordarshan is interested
in acquiring the rights of tele cast provided its allowed produce some matches directly and that
matches produced by TWI are made available to Doordarshan without payment of technical fees.

The letter indicated the matches which Doordarshan would be allowed to telecast directly and the
matches which TWI was to telecast directly. This offer was, however, subject to certain conditions
which inter alia included the condition that Doordarshan will not pay access fee to CAB but shall
allow four minutes' advertising time per hour 9i.e. a total of twenty eight minutes in seven hours)
and that CAB will be at liberty to sell such time slots to advertisers and receive the proceeds therefor
by itself.
134. On October 27, 1993 Doordarshan replied that they are not interested in the offer made by CAB
in its letter dated October 18, 1993. They stated that they have never agreed to any joint production
with TWI. On October 29, 1993, CAB again wrote to Doordarshan e Xpressing their regret at the
decision of the Doordarshan conveyed in their letter dated September 27, 1993 and stated..........
purely in deference to your sensitivity about taking a signal from TWI, CAB would be quite happy to
allow you production of your own picture of matches; you may like to buy rights and licence from
CAB, at a price to be mutually agreed upon. We would also like to clarify that these rights will be on
non- eXclusive basis for Indian territory". Doordarshan's response was requested at the earliest. On
October 30, 1993, Doordarshan confirmed its message sent that day e Xpressing their refusal to pay
any access fee to CAB and stating further that if Doordarshan has to telecast the matches live, CAB
has to pay technical charges/ production fee at the rate of Rupees five lacs per match and that
Doordarshan shall have eXclusive rights for the signal generated. There was a further eXchange of
letters, which it is unnecessary to refer.
135. While the above correspondence was going on between CAB and Doordarshan, the CAB applied
for and obtained the following permissions from certain departments. They are:
(a) On September 2, 1993, the Government of India, Ministry of Human Resource Development
(Department of Youth Affairs and Sports) wrote to CAB stating that government has no objection to
the proposed visit of the cricket teams of the participating countries in November 1993. The
government also eXpressed its no objection to provide the conversion facility for guarantee money
and prize money for foreign players subject to a particular cell'ing.
(b) Videsh Sanchar Nigam Limited (VSNL) indicated its charges for providing uplinking facility to
INTELSAT and accepted the said charges when paid by the CAB/TWI.
(c) On October 13, 1993 the Government of India, Ministry of Home Affairs wrote to CAB e Xpressing
its no objection to the filming of cricket matches and to the use of walkie- talkie sets in the
playground during the matches. It also e Xpressed its no objection in principle to the production and
technical staff of TWI visiting India.
(d) On October 20, 1993, the Department of Telecommunications addressed a letter to the Central
Board of EXcise and Customs eXpressing its no objection to temporary import of electrical
production equipment required for transmission of the said matches between November 7-27, 1993
subject to the organisers coordinating with wireless planning committee for frequency clearance and
also with VSNI.

(e) On November 2, 1993, the Ministry of Finance (Department of Revenue) addressed a letter to
Collector of Customs, Sahar Airport, Bombay intimating him of the grant of eXemption from duty
for the temporary import of electrical equipment by TWI, valued at Rs.4.45 crores subject to certain
conditions.
136. Inasmuch as no agreement could be arrived at between CAB and Doordarshan, the Department
of Telecom- munications addressed a letter to VSNL on November 3, 1993 (on the eve of the
commencement of the matches) to the following effect: "Refer to your letter No. 18IP(TWI)/93-TG
dated 13.10.1993 and discussion of Shri V.Babuji with W.A. on 2.11.1993 regarding uplink facility for
telecasting by TWI of C.A.B. Jubilee Cricket matches. You are hereby advised that uplink facilities
for this purpose should NOT repeat NOT be provided for T.W.I. This has the approval of Chairman
(TC) and Secretary, DoT. Kindly confirm receipt." The VSNL accordingly intimated CAB of its
inability to grant uplinking facility and also returned the amount received earlier in that behalf
137. Faced with the above developments, the CAB approached the Calcutta High Court by way of a
writ petition being Writ Petition No.F.M.A.T.Nil of 1993 asserting that inspite of their obtaining all
permissions including the TV uplinking facilities from VSNL as contemplated by the proviso to
Section 4 of the Indian Telegraph Act, Doordarshan - and other governmental authorities at the
instance of Doordarshan - are seeking to block and prevent the telecast of the matches by TWI.
The reliefs sought for in the writ petition are the following:
(1) A mandamus commanding Respondents 1, 3 and 4 (Union of India, Director General,

Information and Broadcasting and Director General, Doordarshan) and other respondents to ensure
uninterrupted and unobstructed telecast and broadcast of Hero Cup tournament between November
1028, 1993 and to take all appropriate measures for such telecast and broadcast.
(ii) A mandamus to the respondents to provide all arrangements and facilities for telecast and
broadcast of the Hero Cup tournament by the appointed agencies of the petitioners.
(iii) A mandamus restraining the respondents from- seizing, tempering with, removing or dealing
with any equipment relating to transmission telecast and broadcast of the said tournament; and
(iv) Restraining the respondents from interfering or disrupting in any manner the live transmission
and broadcast of the said tournament by the petitioners and their agents.
138. A learned Single Judge of the Calcutta High Court heard the matter on November 8, 1993. The
learned Judge directed the matter to come up on the neXt day with a view to enable the Advocate for
the Union of India to obtain necessary instructions in the matter. At the same time, he granted an
interim order of injunction in terms of prayers (i) and (j) in the writ petition effective till the end of
the neXt day. Prayers (i) and (j) in the writ petition read as follows:
(i) Interim order commanding the Respondents, their servants, agents, employees or
otherwise to provide all adequate assistance and cooperation to the Petitioners

and/or their appointed Agency for free and uninterrupted telecast and broadcast of
HERO CUP TOURNAMENT between 10th November, 1993 and 28th November,
1993;
(i) An interim order of injunction restraining the Respondents their servants,
agents, employees and others from tempering with, removing, seizing or dealing with
any equipments relating to transmission telecast and broadcast of HERO CUP
TOURNAMENT belonging to and/or their appointed agency in any manner
whatsoever.
139. The order made it clear that the said order shall not prevent Doordarshan from telecasting any
match without affecting any arrangement arrived at between CAB and TWI.
140.On the neXt day, i.e., November 9, 1993, the learned Single Judge heard the Advocate for the
Union of India but declined to vacate the interim order passed by him on the previous day. He
further restrained the respondents to the writ petition from interfering with the frequency lines
given to the Respondent No.10, i.e., TWI as per request made by VSNL to SAT in view of the fact
that VSNL had accepted the proposal of CAB and TWI and had also received the fees therefor. On
November 11, 1993, the learned Judge passed another order, on the representation of the learned
counsel for the writ petitioners, that the equipment brought by TWI for the purpose of production of
transmission and telecasting of cricket matches which was seized by the Bombay customs
authorities, allegedly under the instructions of the Ministry of Telecommu-
nications and Ministry of Information and Broadcasting, be released. The learned Judge directed
that all the governmental authorities including the customs authorities shall act in accordance with
the interim orders dated 8/9th November, 1993. Meanwhile, it appears, certain individuals claiming
to be interested in watching cricket matches on television filed independent writ petitions for a
direction to the Doordarshan to telecast the matches. The learned Judge eXpressed the opinion that
by their internal fight between Respondents 1 to 5 on one hand and Respondent No.6 (reference is
to the ranking in the writ petition) on the other, millions of viewers in India are deprived of the
pleasure of watching the matches on television. He then referred to the representation that at the
instance of Doordarshan and others, All-India Radio (AIR) too has stopped broadcasting the
matches. The learned Judge observed that there is no reason for AIR to do so and accordingly
directed the Union of India and others including the Ministry of Information and Broadcasting to
broadcast the remaining cricket matches on AIR as well.
141. Aggrieved by the orders of the learned Single Judge aforementioned, the Union of India and
other governmental agencies filed a writ appeal (along with an application for stay) which came up
for orders on November 12, 1993 before a Division Bench of the Calcutta High Court. It was
submitted by the learned counsel for the Union of India that though the Doordarshan is very much
keen to telecast the matches, the CAB has really created problems by entering into an agreement
with TWI. He submitted that under Section 4 of the Telegraph Act, 1885, the Central Government
has the eXclusive provilege of establishing, maintaining and working telegraph and that the
definition of the eXpression "telegraph" includes telecast. He submitted that neither CAB nor TWI

have obtained any licence or permission as contemplated by the proviso to Section 4(1) of the Indian
Telegraph Act and, therefore, TWI cannot telecast the matches from any place in Indian territory.
After referring to the rival contentions of the parties and the correspondence that passed between
them, the Division Bench observed that there were two dimensions to the problem arising before
them, viz., (i) the right to telecast by Doordarshan within India and (2) right of TWI to telecast
outside India for viewers outside India. Having regard to the urgency of the matter and without
going into the merits of the rival contentions, and keeping in view the interest of millions of viewers,
the Division Bench observed: "we record, as Doordarshan is inclined to telecast the matches for the
Indian viewers on receipt of Rs.5 lakhs per match and to enjoy the eXclusive right of signalling
within the country being the host broadcaster, we direct the CAB to pay immediately a sum of Rs.5
lakhs per match for this purpose and the collection of revenue on account of sponsorship or
otherwise in respect of 28 minutes which is available for commercial purpose be realised by the
Doordarshan on condition that such amount shall be kept in a separate account and shall not be
dealt with and dispose of the said amount until further orders" to be passed in the said writ appeal.
The Doordarshan was accordingly directed to immediately start telecasting the matches. The Bench
then took up the question whether TWI is entitled to telecast the matches from Indian territory. It
noted that no formal order as required under the proviso to Section 4(1) of the Telegraph Act has
been granted in favour of either CAB or TWI. Purporting to take notice of the national and
international impact of the issue, the Bench directed the 5th appellant before them, viz.., the
Secretary, Ministry of Telecommunications, Government of India "to consider the facts and
circumstances of the case clearly suggesting that there had already been an implied grant of
permission, shall grant a provisional permission or licence without prejudice to the rights and
contentions of the parties in this appeal and the writ application and subject to the condition that
Respondent No.6 (5th appellant in appeal) in the writ application will be at liberty to impose such
reasonable terms and conditions consistent with the provision to Section 4(1) of the Indian
Telegraph Act having regard to the peculiar facts and circumstances of the case." (emphasis added).
The Secretary was directed to decide the said question within three days from the date of the said
order after hearing all the parties before the Division Bench, if necessary,
142. On November 14, 1993, the matter was again taken up by the Division Bench, on being
mentioned by the parties. The first problem placed before the Bench was placement of cameras. The
Doordarshan authorities complained that they have not been given suitable place for the purpose of
telecasting. Doordarshan further submitted that there can only be one signalling from the field and
that in terms of the orders of the Division Bench, Doordarshan should be the host broadcaster and
TWI should take the signal from Doordarshan. This request was opposed by the CAB and TWI. The
Bench directed that according to their earlier order the TWI is entitled to telecast outside the
country and to send their signal accordingly and in case the signalling is required to be made by TWI
separately, the necessary permission should be given by the Doordarshan and other competent
authorities therefor. Regarding placement of cameras, certain directions were given.
143. Aggrieved by the orders of the Division Bench dated 12/14th November, 1993, the Secretary,
Ministry of Informa- tion and Broadcasting, Government of India, Director General, Doordarshan
and Director General, Akashvani filed two Special Leave Petitions in this court, viz.,
S.L.P.(C)Nos.18532-33 of 993. Simultaneously, CAB filed an independent writ petition in this court

under Article 32 of the Constitution being W.P.(C) No.836 of 1993. The prayers in this writ petition
are practically the same as are the prayers in the writ petition filed in the Calcutta High Court. The
additional prayer in this writ petition related to release of equipment imported by TWI which was
detained by customs authorities at Bombay. On November 15, 1993, this court directed the
Secretary, Ministry of Telecommunications, Government of India to hold the meeting, as directed by
the Calcutta High Court, at 4.30P.M. on that very day (November 15, 1993) and communicate the
decision before 7.30P.M. to TWI or its counsel or to CAB or its counsel. The customs authorities
were directed to release the equipment forthwith. The TWI was, however, restrained from using the
equipment for telecast purpose unless a licence is issued by the Secretary, Ministry of
Telecommunications in that behalf.
144. Pursuant to the orders of this court, Shri N.Vithal, Chairman, Telecommunications and
Secretary, DoT passed orders on November 15, 1993 which were brought to the notice of this court
on that very day. This court stayed the said order to the e Xtent it imposed a condition that TWI will
get their signal from Doordarshan for uplinking through VSNL. The TWI was permitted to generate
their own signal by focussing their cameras on the ground. It was observed that the said order shall
not be treated as a precedent in future since it was made in the particular facts and circumstances of
that case.
145. The matches were telecast in accordance with the directions given by this court and the High
Court but the Special Leave Petitions and the Writ Petition remained pending. While so, a new
development took place in 1994 which now requires to be mentioned.
146. In connection with World Cup Matches scheduled for the year 1996, certain correspondence
took place between Doordarshan and the Board of Cricket Control, India (BCCI). While the said
correspondence was in progress, each side re- affirming their respective stand, BCCI arranged
certain international cricket matches to be played between the national teams of India, West Indies
and New Zealand during the months of October-December, 1994. BCCI entered into an agreement
with ESPN, a foreign agency, for telecasting all the cricket matches organised by BCCI in India for
the neXt five years for a consideration of US $30 million. Doordarshan was totally eXcluded. ESPN
in turn made an offer to Doordarshan to purchase the right to telecast the matches in India from
ESPN at a particular consideration which the Doordarshan declined.
147. On September 20, 1994, we commenced the hearing of these matters. While the hearing was in
progress, the BCCI filed a writ petition, being Writ Petition No.628 of 1994, for issuance of a writ,
order or direction to the respondents (Government of India and its various departments and
agencies) to issue and grant the necessary licences and/or permissions in accordance with law to
BCCI or its appointed agencies for production, transmission and live, telecast of the ensuing
international cricket matches to be played during the months of October-December, 1994 and to
restrain the Doordarshan and other authorities from interfering with or obstructing in any manner
the transmission, production, uplinking and telecast of the said matches. This writ petition was
occasioned because the authorities were said to be not permitting ESPN to either bring in the
necessary equipment or to telecast the matches from the Indian territory. The said writ petition was
withdrawn later and Interlocutory Applications filed by the BCCI in the pending special leave

petition and writ petition seeking to be impleaded in those matters and for grant of reliefs similar to
those prayed for in Writ Petition No.628 of 1994. Since the hearing was yet to be concluded, we
passed certain orders similar to those passed by this court earlier - confined, of course, to the
matches to be played during the months of October-December, 1994. CONTENTIONS URGED BY
THE PARTIES AND THE QUESTIONS ARISING FOR CONSIDERATION.
148. The CAB and BCCI have taken a common stand, were represented by the same counsel and
have also filed common written submissions. It is not possible to reproduce all their contentions as
put forward in their written submissions because of the number of pages they run into. It would
suffice if I set out their substance. The submissions are:
(a) CAB and BCCI are non-profit-making sporting organisations devoted to the promotion of cricket
and its ideals. They organise international cricket tournaments and series from time to time which
call for not only good amount of Organisation but substantial e Xpense. Payments have to be made to
the members of the teams participating. Considerable amount of money has to be e Xpended on the
training of players and providing infrastructural facilities in India. All this requires funds which
have to be raised by these organisations on their own. Accordingly, CAB entered into an agreement
with TWI for telecasting the Hero Cup Tournament matches to be played in the year 1993. The
necessary permissions were applied for and granted by the Ministries of Home, Defence, Human
Resource Development and Telecommunications. The Ministry of Telecommunications/VSNL
accepted the monies for the purpose of providing uplinking facilities, which does amount to implied
grant of permission under the proviso to Section 4(1) of the Telegraph Act. In any event, the
acceptance of the monies made it obligatory upon the ministries to grant the said licence. It is only
on account of the interference and lobbying by Doordarshan and Ministry of Information and
Broadcasting that the other ministries went back and refused to permit the telecast. The action of
the Doordarshan and the Ministry of Information and Broadcasting is malafide, unreasonable and
authoritarian besides being illegal.
(b) The game of cricket provides entertainment to public. It Is a form of e Xpression and is, therefore,
included within the freedom of speech and eXpression guaranteed by Article 19(1)(a) of the
Constitution. This right includes the right to telecast and broadcast the matches. This right belongs
to the organiser of the matches which cannot be interfered with by anyone. The organiser is free to
choose such agency as it thinks appropriate for telecasting and broadcasting its matches. The
Doordarshan or the Ministry of Information and Broadcasting can claim no right whatsoever to
telecast or broadcast the said matches. If they wish to do so, they must negotiate with the organiser
and obtain the right. They have no inherent right, much less a monopoly, in the matter of telecasting
and broadcasting these matches. It is not their events. If the organisers, CAB and BCCI herein,
choose to entrust the said rights to a foreign agency, such foreign agency is merely an agency of the
organisers and the mere fact that it happens to be a foreign agency is no ground for depriving the
organisers, who as Indian citizens, are entitled to the fundamental right guaranteed by Article
19(1)(a). The said right can be restricted or regulated only by a law made with reference to the
grounds mentioned in clause (2) of Article 19 and on no other ground.

(c) Section 4 of the Indian Telegraph Act must be understood and construed in the light of Article
19(1)(a). So read and understood, it is only a regulatory provision. If a person applies for a licence
for telecasting or broadcasting his speech and e Xpression - in this case the game of cricket - the
appropriate authority is bound to grant such licence unless it can seek refuge under a law made in
terms of clause (2) of Article 19. The appropriate authority cannot also impose such conditions as
would nullify or defeat the guaranteed freedom. The conditions to be imposed should be reasonable
and relevant to the grant.
(d) Doordarshan or AIR has no monopoly in the matter of telecasting/broadcasting. Radio and
television are only a medium through which freedom of speech and e Xpression is eXpressed. Article
19(2) does not permit any monopoly as does clause (6) in the matter of Article 19(1)(g). Section 4,
which contemplates grant of telegraph licences is itself destructive of the claim of monopoly by
Doordarshan/AIR.
(e) Right to disseminate and receive information is a part of the right guaranteed by Article 19(1)(a).
Televising the cricket match is a form of dissemination of information. The mere fact that the
organisers earn some income from such activity does not make it anytheless a form of e Xpression. It
has been held repeatedly by this court in the matter of freedom of press that the mere fact that
publication of newspaper has also certain business features is no ground to treat it as a business
proposition and that it remains an activity relatable to Article 19(1)(a). Business activity is not the
main but only an incidental activity of CAB/BCCI,. the main activity being promotion of cricket. It
follows that whenever any citizen of this country seeks to e X ercise this right, all necessary
permissions have to be granted by the appropriate authorities. The only ground upon which it can
be refused is with reference to law made in the interest of one or the other ground mentioned in
Article 19(2) and none else.
(f) With the technological advance and the availability of a large number of frequencies and
channels, being provided by the increasing number of satellites, the argument of limited frequencies
and/or scarce resource is no longer tenable. The BCCI does not want allotment of frequency - not
even the uplinking facility, since it has the facility to uplink directly from the earth station to
Gorizon-Russian satellite with which ESPN has an arrangement All that the BCCI wants is a
licence/permission for importing and operating the station, wherever the match is played. In such
an eventuality, Doordarshan does not come into picture at all. Of course, in connection with Hero
Cup matches, the CAB wanted uplinking facility for the reason that it wanted uplinking to
INTELSAT, which is provided only through VSNL. If an organiser does not want uplinking to
INTELSAT, he need not even approach VSNL. As a matter of fact, major networks in United States
have their own satellites.
149. On the other hand, the submissions on behalf of the Doordarshan and the Ministry of
Information and Broadcasting are the following:
(i) The CAB or for that matter BCCI did not even apply for a licence under the proviso to Section 4(1)
nor was such licence granted by the appropriate authority at any time or on any occasion. The
grant of permission by other departments including the collection of fees by VSNL does not amount

to and cannot take the place of licence under the proviso to Section 4(1). In the absence of such a
licence, the CAB/BCCI or their agents had no right to telecast or broadcast the matches from the
Indian territory. The argument of implied permission - or the alternate argument that the
authorities were bound to grant such permission - is misconceived, more par-
ticularly, in the absence of even an application for grant of licence under Section 4 of the Telegraph
Act.
(ii) The Calcutta High Court was not right in giving the directions it did. Particularly the direction
given in its order dated November 12, 1993 to the Secretary, Ministry of Telecommunications,
Government of India, was contrary to law. While directing the Secretary to consider the facts and
circumstances of the case, the High Court eXpressly opined that there was already an implied grant
of permission. After eXpressing the said opinion, the direction to consider was a mere formality
and of little significance. The charge of malafides and arbitrary and authoritarian conduct levelled
against Doordarshan and the Ministry of Information and Broadcasting is wholly unfounded and
unsustainable in the facts and circumstances of the case. In the absence of a licence under Section 4
of the Telegraph Act, VSNL could not have granted uplinking facility and it is for that reason that the
Department of Telecommunications wrote its letter dated November 3, 1993 to VSNL.
(iii) Realising the lack of coordination among the various ministries concerned in granting
permission in such a matter, the Government of India has since taken a policy decision in the
meeting of the Committee of Secretaries held on November 12, 1993. It has been decided that
satellite uplinking from the Indian soil should be within the e Xclusive competence of the Ministry of
Information and Broadcasting/ Department of Space/Department of Tele- communications and
that similarly the telecast of sports events shall be within the e X clusive purview of the
Doordarshan/Ministry of Information and Broadcasting who in turn could market their rights to
other par-ties on occasion in whole or in part. It has been further decided that in respect of any such
event, the organiser shall contact the specified nodal ministry which in turn will coordinate with all
other concerned departments. In short, what may be called a 'single window system' has been
evolved which is indeed in the interest of organisers of such events.
(iv) So far as the contention based upon Article 19(1)(a) is concerned, the contentions of CAB/BCCI
are misleading and over-simplistic. The right guaranteed by Article 19(1)(a) is not limited to
organisers of such sports events. The said right is guaranteed equally to the broadcaster and the
viewers. Among them, the right of the viewers is the more important one. The decisions rendered by
this court in the matter of freedom of press are not strictly relevant in the matter of
broadcast/telecast. Telecasting a sports event is distinct from the event itself It is evident that the
CAB/ BCCI are seeking to earn as much as possible by selling the telecasting rights. It is nothing but
commerce and an activity solely relatable to Article 19(1)(g) and not to Article 19(1)(a). Inviting bids
from all over the world and selling the telecast rights to the highest bidder has nothing to do with
Article 19(1)(a). In any event, the predominant element in such activity is that of business. The
interest of general public is, therefore, a relevant consideration in such matters. The public interest
demands that foreign agencies should not be freely permitted to come and set up their telecasting
facilities in India in an unrestricted fashion. The occasion for inviting foreign agencies may possibly

arise only if Doordarshan and AIR refuse to telecast or broadcast the event which they have never
done. The Doordarshan was and is always ready to undertake the telecasting on reasonable terms
but the CAB and BCCI were more interested in deriving maximum profit from the event.
Doordarshan cannot certainly compete with foreign agencies who are offering more money not
merely for obtaining the right to telecast these events but with the real and ultimate object of
gaining a foothold in the Indian telecasting scene. Through these events, the foreign telecasting
organisations, particularly ESPN, are seeking entry into Indian market and it is for this reason that
they are prepared to pay more. Their interest is something more than mere commercial.
(v)The present situation is that the Doordarshan and AIR has got all the facilities of telecasting and
broadcasting the events in India. They have been doing it for over the last several decades and they
have the necessary infrastructure. The Doordarshan is taking all steps for updating its equipment
and for training its technicians to handle the latest equipment. It is also entering into tic,-ups with
certain foreign agencies for the purpose. They have always been prepared for any reasonable terms.
Both Doordarshan and AIR are agencies of the State. Until recently, 97% of the telecasts made by
Doordarshan did not earn any income. They only involved e Xpense. Its income was derived mainly
from the remaining three per cent of its activities including sports events like cricket. Recently, there
has been a slight change in policy but the picture largely remains the same. There is nothing
illegitimate or unreasonable in Doordarshan seeking to earn some money in the matter of telecast of
such events.
(vi) The very nature of television media is such that it necessarily involves the marshaling of the
resource for the greatest public good. The state monopoly is created as a device to use the resource
for public good. It is not violative of the right of free speech so long as the paramount interest of the
viewers is subserved and access to media is governed by the 'fairness doctrine'. Section 4 of the
Telegraph Act cannot be faulted on any ground. Indeed, in none of the petitions filed by the
CAB/BCCI has the validity of the monopoly of Doordarshan questioned. If the argument of the
CAB/BCCI is accepted it would mean a proliferation of television stations and telecasting facilities
by all and sundry, both domestic and foreign, which would not be in the interest of the country.
Indeed, the other side has not placed any material to show that such free grant of licences would
serve the public interest.
(vii) Section 4 of the Telegraph Act is in no way in cons is tent with the monopoly of
Doordarshan/AIR. Indeed, it supports it. The American decisions are not really relevant to the
Indian conteXt. The availability of more or unlimited number of frequencies or channels is no
ground to permit free and unrestricted import, establishment and operation of Radio/Television
stations, earth stations or other such equipment.
150. In the light of the contentions advanced, the following questions arise for consideration:
1.(a) Whether a licence or permission can be deemed to have been granted to CAB under the proviso
to Section 4 of the Indian Telegraph Act, 1885 for telecasting the Hero Cup Tournament matches
played in November, 1993?

(b) If it is found that there was no such permission, was it open to the Calcutta High Court to give
the impugned directions?
(c) Whether the charge of malafides and arbitrary and authoritarian conduct attributed to
Doordarshan by CAB justified?
2.(a) Whether organising a cricket match or other sports event a form of speech and eXpression
guaranteed by Article 19(1)(a) of the Constitution?
(b) If the question in clause (a) is answered in the affirmative, the further question is whether the
right to telecast such event is also included within the right of free speech and eXpression?
(c) Whether the organiser of such sports events can claim the right to sell the telecasting rights of
such events to such agency as they think proper and whether they have the right to compel the
government to issue all requisite permissions, licences and facilities to enable such agency to
telecast the events from the Indian soil? Does the right in Article 19(1)(a) take in all such rights?
(d) If the organiser of sports does have the rights mentioned in (c), whether the government is not
entitled to impose any conditions thereon e Xcept charging technical fees or service charges, as the
case may be?
3. Whether the impact of Article 19(1)(a) upon Section 4 of the Telegraph Act is that. whenever a
citizen applies for a licence under the proviso to Section 4(1) it should be granted unless the refusal
can be traced to a law within the meaning of Article 19(2)?
4. Whether the virtual monopoly eXisting in favour of Doordarshan in the matter of telecasting from
Indian soil violative of Article 19(1)(a) of the Constitution?
ANSWERS TO THE QUESTIONS QUESTION NO. 1:
151. The facts narrated in Part-II show that neither CAB nor BCCI ever applied for a licence under
the first proviso to sub-section (1) of Section 4 of the Telegraph Act. The permissions obtained from
other departments, viz., from the Ministry of Human Resource, VSNL, Ministry of Home Affairs,
Ministry of Finance or the Central Board of E Xcise and Customs cannot take the place of licence
under Section 4(1). Indeed, this fact was recognised by the Division Bench of the Calcutta High
Court and it is for the said reason that it directed the Secretary to the Telecom Department to decide
the question whether such licence should be granted to CAB in connection with Hero Cup matches.
But while directing the Secretary to consider the said question, it chose to make certain observations
which had the effect of practically foreclosing the issue before the Secretary. The Division Bench
observed that the Sec- retary should proceed on the assumption that there was an implied grant of
permission. As a matter of fact, the Secretary was directed to grant the licence in so many words,
thus leaving no discretion in him to eXamine the matter in accordance with law. It became an empty
formality. I am of the opinion that while asking the Secre- tary to decide the issue under proviso to
Section 4(1), his discretion and judgment could not have been restricted or forestalled in the above

manner. Be that as it may, in pursuance of the said directions and the directions of this Court - the
Secretary passed certain orders, the legality of which has now become academic for the reason that
both the events, viz., the Hero Cup matches as well as the recent international matches (October-
December, 1994) are over. The only thing that remains to be considered is whether the charge of
malafides and arbitrary and authoritarian conducted attributed to the Doordarshan by CAB and
BCCI is justified. Firstly neither the CAB nor its foreign agent had applied for or obtained the
licence/permission under Section 4(1). The permissions granted by other departments are no
substitute for the licence under the proviso to Section 4(1). 'Mere is nothing to show that seizure of
imported equipment by customs authorities was at the instance of Doordarshan; it appears to be for
non-compliance with the requirements subject to which permission to import was granted.
Secondly, this issue, in my opinion, cannot be e Xamined in isolation but must be judged in the light
of the entire relevant conteXt. The Doordarshan did enjoy monopoly of telecasting in India which is
the product of and appears to be sustained by Section 4(1) of the Telegraph Act. There was no
occasion when a foreign agency was allowed into India without the consent of or without reference
to Doordarshan to telecast such events. All these years, it was Doordarshan which was telecasting
these matches. On one previous occasion, a foreign agency was allowed but that was by the
Doordarshan itself or at any rate with the consent of and in cooperation with the Doordarshan. It is
for this reason that the Doordarshan was asserting its e Xclusive right to telecast the event taking
place on Indian soil and was not prepared to purchase the said right from a foreign agency to whom
the CAB and BCCI sold all their rights. It is also worth noticing that neither CAB nor BCCI or for
that matter any other sports organisation had ever before invited a foreign agency to telecast or
broadcast their events - at any rate, not without the consent of Doordarshan. The agreement with
TWI entered into by CAB and the agreement with ESPN entered into by the BCCI were unusual and
new developments for all concerned. Like the bureaucracy everywhere, the Indian bureaucracy is
also perhaps slow in adjusting to the emerging realities, more particularly when they see a threat to
their power and authority in such developments. In the circumstances, their objection to a foreign
agency coming in and telecasting such events without even obtaining a licence under the proviso to
Section 4(1) of the Telegraph Act cannot be termed malafide or arbitrary. So far as the charge of
authoritarianism is concerned, it is equally unsustainable for the reason that the CAB/ BCCI had no
legal right nor any justification in insisting upon telecasting their events through foreign agencies
without even applying for and/or obtaining a licence required by law. The correspondence between
them shows that each was trying to get the better of the other; it was like a game of fencing. In my
opinion, therefore, the charge of malafides or for that matter, the charge of arbitrary or
authoritarian conduct levelled against the Doordarshan and/or other governmental authorities is
unacceptable in the facts and circumstances of this case.
QUESTION NOS. 2.3 AND 4:
152. The contentions of Sri Kapil Sibal, learned counsel for the BCCI/CAB have been set out
hereinbefore. What do they really mean and imply? It is this: the game of cricket provides
entertainment to public at large. The entertainment is organised and provided by the petitioners.
Providing entertainment is a form of eXpression and, therefore, covered by Article 19(1)(a) of the
Constitution. E X cept in accordance with a law made in terms of clause (2) of Article 19, no
restriction can be placed thereon. The organiser of the game has the right to telecast and broadcast

the game. None can stop it - neither the Doordarshan nor AIR. The monopoly in favour of
Doordarshan and AIR is inconsistent with Article 19(1)(a) as well as Section 4 of the Telegraph Act.
If Section 4(1) is construed as conferring or affirming such monopoly, it is void and unconstitutional
may fall foul of Article 19(1)(a). The first proviso to Section 4(1) is bad for the added reason that it or
the Act does not furnish any guidance in the matter of e Xercise of discretion conferred upon the
Central Government thereunder. The organiser of the Same is free to choose such agency as he
thinks appropriate for telecasting and broadcasting the game - whether domestic or foreign - and if
the organiser asks for a licence under the proviso to Section 4(1) for importing and operating the
earth station or other equipment for the purpose, it must be granted. No conditions can be placed
while granting such permits eXcept collection of technical fees. This in substance is the contention.
It must be said at once that this may indeed be the first decision in this country, when such an
argument is being addressed, though such arguments were raised in certain European courts and
the European Court of Human Rights, with varying results as we shall indicate in a little while.
153. There may be no difficulty in agreeing that a game of cricket like any other sports event
provides entertainment - and entertainment is a facet, a part, of free speech. [See Burstyn v. Wilson
(96 L.Ed.1098)], subject to the caveat that where speech and conduct are joined in a single course of
action, the free speech values must be balanced against competing societal interests. [Los Angeles v.
Preferred Communications (1986 - 476 U.S.488 = 90 L.Ed.2d.480)]. It attracts a large audience. But
the question is whether the organiser of the event can say that his freedom of e Xpression takes in the
right to telecast it from the Indian soil without any restrictions or regulations. The argument really
means this, I have a right to propagate my e Xpression, viz., the game, by such means as I think
appropriate, I may choose to have a television station of my own or I may invite a foreign agency to
do the job. Whatever I wish, the State must provide to enable me to propagate my game. I may make
money in the process but that is immaterial'. In effect, this is an assertion of an absolute and
unrestricted right to establish private radio and television stations, since there is no distinction in
principle between having a mobile earth station (which beams its programmes to a satellite via
VSNL or directly to another satellite which in turn beams it back to earth) and a stationary television
station. Similarly, there is no distinction in law between a permanent telecasting facility and a
facility for a given occasion. Question is, is such a stand acceptable within the framework of our
Constitution? (The question relating to interpretation of Section 4(1), 1 will deal with it separately.) I
may clarify that I am concerned herein with 'live telecast' which requires the telecast equipment to
be placed at or near the field where the event is taking place, i.e., telecasting from the Indian
territory. This clarification is appended in view of the contention urged that nothing prevents the
organisers - 1 or for that matter, anybody - from video recording the event and then take the video
cassette out of this country and telecast it from outside stations. Undoubtedly, they can do so. Only
thing is that it will not be a live telecast and it would also not be a telecast from the Indian soil.
154. Article 19(1)(a) declares that all citizens shall have the right of freedom of speech and
eXpression. Clause (2) of Article 19, at the same time, provides that nothing in sub-clause (1) of
clause (1) shall affect the operation of any e Xisting law or prevent the State from making any law,
insofar as such law imposes reasonable restrictions on the e Xercise of the right conferred by the said
sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly
relations with the foreign States, public order, decency or morality or in relation to contempt of

court, defamation or incitement of an offence. The grounds upon which reasonable restrictions can
be placed upon the freedom of speech and e Xpression are designed firstly to ensure that the said
right is not eXercised in such a manner as to threaten the sovereignty and integrity of India, security
of the State, friendly relations with the foreign States, public order, decency or morality. Similarly,
the said right cannot be so eXercised as to amount to contempt of court, defamation or incitement of
an offence. EXisting laws providing such restrictions are saved and the State is free to make laws in
future imposing such restrictions. The grounds aforesaid are conceived in the interest of ensuring
and maintaining conditions in which the said right can meaningfully ad peacefully be e Xercised by
the citizens of this country.
155. The freedom of speech and eXpression is a right given to every citizen of this country and not
merely to a few. No one can e Xercise his right of speech in such a manner as to violate another man's
right of speech. One man's right to speak ends where the other man's right to speak begins. Indeed,
it may be the duty of the State to ensure that this right is available to all in equal measure and that it
is not hijacked by a few to the detriment of the rest. This obligation flows from the preamble to our
Constitution, which seeks to secure. to all its citizens liberty of thought, e Xpression, belief and
worship. State being a product of the Constitution is as much committed to this goal as any citizen of
this country. Indeed, this obligation also flows from the injunction in Article 14 that "the State shall
not deny to any person equality before the law" and the direction in Article 38(2) to the effect: "the
State, shall, in particular - endeavour to eliminate inequalities in status, facilities and opportunities,
not only amongst individuals but also amongst groups of people. Under our Constitutional
scheme, the State is not merely under an obligation to respect the fundamental rights guaranteed by
Part-III but under an equal obligation to ensure conditions in which those rights can be
meaningfully and effectively enjoyed by one and all.
156.The fundamental significance of this freedom has been stressed by this Court In a large number
of decisions and it is unnecessary to burden this judgment with those decisions. Freedom of speech
and eXpression, it has been held repeatedly, is basic to and indivisible from a democratic polity. It
encompasses freedom of press. It includes right to impart and receive information. The question
now in issue is: does it include the freedom to broadcast and telecast one's views, ideas and opinions
and whether, if one wishes to do so, is the State bound to provide all necessary licences, permits and
facilities therefor? This requires an eXamination of the history of broadcasting and telecasting in this
country as well as in certain leading democracies in the world. In this judgment, the e Xpression
"broadcasting media" wherever used denotes the electronic media of radio and television now
operated by AIR and Doordarshan - and not any other radio/TV services INDIA:
157. Though several countries have enacted laws on the subject of broadcasting, India has not. The
Indian Telegraph Act, enacted in 1885 (as amended from time to time) is the only enactment
relevant in this behalf Clause (1) of Section 3 defines the e Xpression "telegraph" in the following
words:
""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 3,000 giga-cycles per second propagated in space without
artificial guide.
158. Sub-section (1) of Section 4 which occurs in Part-11 entitled "Privileges and Powers of the
Government" confers the eXclusive privilege of establishing, maintaining and working telegraphs In
India upon the Central Government. At the same time, the first proviso to sub-section empowers the
Central Government itself to grant a licence on such conditions and in consideration of such
payments as it thinks fit, to establish, maintain or work a telegraph within any part of India. Section
4 may be set out for ready reference:
"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-
(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 Om wireless telegraphs 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 author-
ity of any power so delegated shall be subject to such restrictions and conditions the
Central Government may, by the notification, think fit to impose."
159. The arguments before us have proceeded on the footing that the radio broadcasting and
telecasting fall within the definition of "telegraph", which means that according to Section 4, the
Central Government has the eXclusive privilege and right of establishing, maintaining and working
the radio and television stations and/or other equipment meant for the said purpose. The power to
grant licence to a third party for a similar purpose is also vested in the Central Government itself the
monopoly-holder. The first proviso says that the Central Government may grant such a licence and
if it chooses to grant, it can impose such conditions and stipulate such payments therefor as it thinks

fit. The section is absolute in terms and as rightly pointed out by the petitioners' counsel, it does not
provide any guidance in the matter of grant of licence, viz., in which matters the Central
Government shall grant the licence and in which matters refuse. The provision must, however, be
understood in the conteXt of and having regard to the times in which it was enacted.
160. In Life Insurance Corporation of India etc. v. Manubhai D.Shah (1992 (3) S.C.C.637),
Ahmadl,J. (as the learned Chief Justice then was) held that the refusal of Doordarshan to telecast a
film "Beyond Genocide" on Bhopal gas disaster (which film was certified by censors and had also
received the Golden Lotus Award) on the ground of lacking moderation, restraint, fairness and
balance is bad. The court noted that while the Doordarshan conceded that the film depicted the
events faithfully, it failed to point out in what respects it lacked in moderation etc. Merely because it
was critical of government, it was held, Doordarshan cannot refuse to telecast it. It was pointed out
pertinently that the refusal to telecast was not based upon the ground that the list of award-winning
films was long and that having regard to inter se priorities among them, it was not possible to
telecast the film or that the film was not consistent with the accepted norms evolved by
Doordarshan. In this connection, the learned Judge, speaking for the Bench, observed:
"The words "freedom of speech and e X pression" must, therefore, be broadly

construed to include the freedom to circulate one's views by words of mouth or in
writing or through audio-visual instrumentalities. 11, therefore, includes the right to
propagate one's views through the print media or through any other communication
channel e.g. The radio and the television. Every citizen of this free country, therefore,
has the right to air his or her views through the printing and/or the electronic media
subject of course to permissible restrictions imposed under Article 19(2) of the
Constitution. The print media, public educators, so VItal to the growth of a healthy
democracy. Freedom to air one's views is the lifeline of any democratic institution
and any attempt to stifle, suffocate or gag this right would sound a death-knell to de-
mocracy and would help usher in autocracy or dictatorship. It cannot be gainsaid that
modern communication mediums advance public interest by informing the public of
the events and developments that have taken place and thereby educating the voters,
a role considered significant for the vibrant functioning of a democracy. Therefore, in
any set-up, more so in a democratic set-up like ours, dissemi-
nation of news and views for popular consumption is a must and any attempt to
deny the same must be frowned upon unless it falls within the mischief of Article
19(2) of the Constitution. It follows that a citizen for propagation of his or her ideas
has a right to publish for circulation his views in periodicals, magazines and journals
or through the electronic media since it is well known that these communication
channels are great purveyors of news and views and make considerable impact on
the minds of the readers and viewers and are known to mould public opinion on vital
issues of national importance. Once it is conceded, and it cannot indeed be disputed,
that freedom of speech and e X pression includes freedom of circulation and
propagation of ideas, there can be no doubt that the right e Xtends to the citizen being
permitted to use the media to answer the criticism levelled against the view

propagated by him. Every free citizen has an undoubted right to lay what sentiments
he pleases before the public; to forbid this, e Xcept to the eXtent permitted by Article
19(2), would be an inroad on his freedom. This freedom must, however, be eXercised
with circumspection and care must be taken not to trench on the rights of other
citizens or to jeopardise public interest. It is manifest from Article 19(2) that the right
conferred by Article 19(1)(a) is subject to' imposition of reasonable restrictions in the
interest of, amongst others, public order, decency or morality or in relation to
defamation or incitement to an offence. It is, therefore, obvious that subject to
reasonable restrictions placed under Article 19(2) a citizen has a right to publish,
circulate and disseminate his views and any attempt to thwart or deny the same
would offend Article 19(1)(a)." (Emphasis added)
161. Similarly, it was held in Odyssey Communications Pvt.Ltd. v. Lokvidayan Sanghatana & Ors.
(1988 Suppl.(1) S.C.R.486):
"It can no longer be disputed that the right of a citizen to e X hibit films on the
Doordarshan subject to the terms and conditions to be imposed by the Doordarshan
is a part of the fundamental right of freedom of eXpression guaranteed under Article
19(1)(a) of the Constitution of India which can be curtailed only under circumstances
which are set out in clause (2) of Article 19 of the Constitution of India. The right is
similar to the right of a citizen to publish his views through any other media such as
newspapers, magazines, advertisement boardings etc. subject to the terms and
conditions of the owners of the media. We hasten to add that what we have observed
here does not mean that a citizen has a fundamental right to establish a private
broadcasting station, or television centre. On this question, we reserve our opinion. It
has to be decided in an appropriate case."
The- Court held that since the Union of India and Doordarshan have failed to produce any material
to show that "the eXhibition of the serial was prima facie prejudicial to community", the refusal
cannot be sustained.
162. Be that as it may, by virtue of Section 4, radio and television have remained a monopoly of the
Central Government Though in the year 1990, Parliament enacted the 'Prasar Bharati (Broadcasting
Corporation of India) Act, 1990, it never came into force because the Central Gov- ernment did not
choose to issue a notification appointing the date (from which the Act shall come into force) as
contemplated by Section 1(3) of the said Act. Be that as it may, Government monopoly over
broadcasting media is nothing unusual and it is not solely because of the fact that India was not an
independent country, or a democracy, until 1947-50. Even in well-established democracies, the
position has been the same, to start with, as would be evident from a brief resume of the
broadcasting history in those countries which we may now proceed to e Xamine. It would help us
understand how the freedom of speech and e Xpression is understood in various democracies with
reference to and in the conte Xt of right to broadcast and telecast - compendiously referred to here-
inafter as broadcasting.

Broadcasting Law in other Countries:
163. The history of broadcasting in United States and other European countries has been basically
different, perhaps because of historical factors besides constitutional principles. In the United
States, courts have regarded freedom of speech almost entirely as a liberty against the State, while
the constitutional courts in Europe have looked upon it as a value which may sometimes compel the
government to act to ensure the right. Constitutions of most of the countries in western Europe, e.g
Germany, Italy and France are of post World War-II vintage whereas the First Amendment to the
United States Constitution is more than 200 years old. These modem European Constitutions cast
an obligation upon their governments to promote broadcasting freedom and not merely to refrain
from interfering with it. The Constitution of Germany e Xpressly refers to the right to broadcast as
part of freedom of speech and e X pression. So far as the United Kingdom is concerned, the
development there has to be understood in the conte Xt of its peculiar constitutional history coupled
with the fact that it has no written constitution. Even so, freedom of thought and e Xpression has
been an abiding faith with that nation. It has been a refuge for non-conformists and radical thinkers
all over the world - a fact, which does not beg any proof And yet broadcasting in all these countries
was a State or a public monopoly to start with. Only much later have these countries started
licensing private broadcasting stations. The main catalyst for this development has been Article 10
of the European Convention on Human Rights which guarantees freedom of e Xpression to all the
citizens of the member countries and refers specifically to radio and television. It says:
"10(1) Everyone has the right to freedom of eXpression. This right shall include
freedom to hold opinions and to receive and import information and ideas without
interference by public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting, television or cinema
enterprises. (2)The eXercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society, in the
interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority and impartiality
of the judiciary."
(Emphasis added) More about this provision later.
164. In the United States, of course, radio and television have been operated by private undertakings
from the very beginning. As pointed out by the United States Supreme Court in Columbia
Broadcasting System v. Democratic National Committee [(1973) 412 U.S.94 - 36 L.Ed.2d.772], at the
advent of the radio, the government had a choice either to opt for government monopoly or
government control and that it chose the latter. The role of the government has been described as
one of an overseer" and that of the licensee as a "public trustee". The position obtaining in each
country may now be noted briefly.

UNITED KINGDOM*:
165. The first licence to operate eight radio stations was granted to British Broadcasting Company
(BBC) in 1922. In 1927, British Broadcasting Company was replaced by British Broadcasting
Corporation. The Sykes Committee, appointed in 1920s, considered the overall state control of radio
essential in view of its influence on public opinion but rejected operation of the medium by the
State. The other committee appointed in 1920s, viz., Crawford Committee, also recommended that
radio should remain a public monopoly in contra-distinction to the United States system of 'free and
uncontrolled transmission'. It, however, recommended that the government company should be
reorganised as a commission either under *This part of the judgment dealing with the broadcasting
law obtaining in United Kingdom and other European countries is drawn largely from the Book
"Broadcasting Law A Comparative Study" (1993 Edition) by Eric Barendt, Goodman Professor of
Media Law, University College, London and his article "The influence of the German and Italian
Constitutional courts on their National Broadcasting systems", published in 'Public Law, Spring
1991'.
a statute or as a public company limited by guarantee. In 1927, a Royal Charter was granted with a
view to ensure the independence of BBC, which charter has been renewed from time to time. It
prohibits the BBC from eXpressing its own opinion on current political and social issues and from
receiving revenue from advertisement or commercial sponsorship. The power to give directions is
reserved to the government. In 1935, the Corporation was licensed by the Post-Master General to
provide a public television service, which was introduced in the following year. The monopoly of
BBC continued till 1954. In that year, the British Parliament enacted the Television Act, 1954 es-
tablishing the Independent Television Authority (ITA) to provide television broadcasting services
additional to those of the BBC. The function of the Authority was to enter into contracts with
programme companies for the broadcast of commercial programmes. In 1972, ITA was redesignated
as Independent Broadcasting Authority (IBA). In 1984, IBA acquired powers in respect of direct
broadcasting by satellite.
166.The Peacock Committee appointed in 1980s to e Xamine the question whether BBC should be
compelled to take advertising, rejected the idea but advocated deregulation of radio and television.
The government accepted the proposal and, accordingly, the Parliament enacted the Broadcasting
Act, 1990. Section 1 established the Independent Television Commission (ITC) with effect from
January 1, 1991 in the place of IBA and the Cable Authority. The ITC is vested with the power to
licence and regulate non-BBC television services including Channels 3 and 4 and the proposed
Channel 5 besides cable and satellite services. Section 2 requires that the ITC discharge its functions
in the manner it considers best to ensure a wide range of TV programme services and also to ensure
that the programmes are of high quality and cater to a variety of tastes and interests. In 1991, ITV
decided to grant 16 new channels 3 licences to private bodies with effect from January 1, 1993. The
allocation was to be made by calling for tenders - the highest bidder getting it - subject, of course, to
the bidder satisfying the qualifying criteria. The eligibility criteria prescribed guards against
granting licences to non- EEC nationals, political bodies, religious bodies and advertising agencies.
It also guards against concentration of these licences in the hands of few individuals or bodies.
Sections 6 and 7 impose strict programme controls on the licencees while Sections 8 and 9 regulate

the advertisements. The programme controls include political impartiality, eschewing of e Xcessive
violence, due regard for decency and good taste among others. The programmes should not also
offend religious feelings of any community. Section 10 provides for government control over
licenced services. Section 11 provides for monitoring by ITC of the programmes broadcast by
licenced services. It is obvious that this Act has no application to BBC, which is governed by the
Royal Charter, as stated hereinabove. The Act has also set up a Radio Authority to e X ercise
comparable powers over radio services. It is said that this Act ultimately imposed as many restraints
on broadcasters freedom as there were in force earlier.
FRANCE:
167. Para II of the Declaration of the Rights of Man adopted by the National Assembly in 1789** -
affirmed in the preamble to the Constitution of the Fifth Republic (1958) and treated as binding on
all branches of the government - guarantees freedom of dissemination of thought and opinion.
This provision - the child of the French Revolution - has greatly influenced the development of
broadcasting freedom in that country. Initially, licences were granted to private radio stations to
function along side the public network but with the out-break of the WorldWar 11, the licences of
private broadcasters were suspended and later revoked. From 1945 to 1982, broadcasting remained
a State monopoly. The government eXercised tight control over the radio. An ordinance issued in
1959 legalised government control. In 1964, public monopoly was re-affirmed by law. In 1974, the
State Organisation, Office de la radiodiffusion-television Francaise (ORTF) was divided into seven
separate institutions catering to radio and television broadcasts in the country. This was done with a
**Para 11 reads: "XI. The unrestrained communication of thoughts and opinions being one of the
most precious rights of man, every citizen may speak, write and publish freely, provided he is
responsible for the abuse of this liberty in cases determined by law. " At the same time, Para 4 sets
out the limitation implicit in all freedoms comprised in the concept of political liberty. It says: .......
The eXercise of the natural rights of every man has no other limits than those which are necessary to
secure to every other man the free eXercise of the same rights; and these limits are determinable
only by the law."
view to introduce competition among the public television companies. The government e Xercised a
significant degree of control over all these units. No private broadcasting was allowed since
broadcasting services were regarded as essentially public. The State monopoly in the matter of
broadcasting was upheld by Conseil constitutionnel (Constitutional Court) in 1978. In 1982,
however, a significant change took place. The State recognised the right of citizens to have a "free
and pluralist broadcasting system". Even so, permission to institute a private broadcasting station
was dependent on prior authorization of the government. This provision was upheld by the Conseil
Constitutionnel as compatible with Para 11 of the Declaration of the Rights of Man, In 1985, the law
was amended providing for private broadcasting and television stations. In 1986, the government
sought to privatise one of the public television channels which immediately provoked controversy.
The Conseil constitutionnel ruled (in 1986) that principle of pluralism of sources of opinion was one
of constitutional significance, against which the concrete provisions of the proposed Bill must be
assessed II observed that access to a variety of views was necessary for the effective guarantee of
the freedom of speech protected by the Declaration of the Rights of man. At the same time, it found

nothing wrong with the decision to favour private television but held that it was for the Parliament
to determine the appropriate structure for broadcasting in the light of freedom of communication
and other relevant constitutional values, like public order, rights of other citizens and pluralism of
opinion. The law was accordingly amended. Wherever private broadcasting is allowed it is governed
by a contract between the applicant and the administrative authority.
GERMANY.
168. After the occupying authorities withdrew from West Germany in 1949, the pattern that
emerged was one of nine regional public broadcasting organisations. They formed into an
association, the Arbeitsgemeinschaft der offentlich- techtlichen Rundfunkanstalten der
Bundersrepublik Deutschland (ARD), in 1950 and under its auspices the first public television
channel was formed. Article 5 of the Basic Law of 1949 states, "(E)very one shall have the right freely
to eXpress and disseminate his opinion by speech, writing, and pictures and freely to inform himself
from generally accessible sources. Freedom of the press and freedom of reporting by means of
broadcasts and films are guaranteed. There shall be no censorship." In a decision rendered in 1961,
the Federal Constitutional Court held inter alia that in view of the shortage of frequencies and the
heavy cost involved in establishing a TV station, public broadcasting monopoly is justifiable, though
not constitutionally mandatory. It held further that broadcasting, whether public or private, should
not be dominated by State or by commercial forces and should be open for the transmission of a
wide variety of opinion. [(12 BVerfGE 205-
196)]. There was a long battle before private commercial broadcasting was introduced. Many of the
States in West Germany were opposed to private commercial broadcasting. The Constitutional Court
ruled in 1981 The Third Television Case - 57 BVer EfG 295) that private broadcasting was not
inconsistent with Article 5 of the Basic Law but it observed that unlike the press, private
broadcasting should not be left to market forces in the interest of ensuring that a wide variety of
voices enjoy access to it. It recognised that the regulation of private broadcasting can be different in
content from the regulation applying to public broadcasting. In course of time, private television
companies came into eXistence but in the beginning they were confined to cable. In the Fourth
Television Case decided in 1986 (73 BVerfGE 118), the court held in the present circumstances, the
principal public service functions of broadcastings are the responsibility of the public institutions
whereas private broadcasters may be subjected to less onerous programme restrictions. Only after
the decision of the Constitutional Court in 1987 were the private companies allocated terrestrial
frequencies. It appears that notwithstanding the establishment of private companies , it is the public
broadcasting companies which dominate the scene and attract more advertisement revenue. The
German constitutional court has e X ercised enormous influence in shaping the contours of
broadcasting law. It has interpreted the broadcasting freedom in a manner wholly different from the
United States Supreme Court casting an obligation upon the State to act to ensure the right to all
citizens.
ITALY:

169. In Italy too, the broadcasting was under State control, to start with. In 1944, Radio audizioni
Italia (RAI) was created having a monopoly in broadcasting. It still holds the concession for public
radio and broadcasting. Article 21(1) of the Italian Constitution, 1947 provides that "(E)veryone has
the right to eXpress himself freely verbally, in writing, and by any other means". This provision was
relied upon by potential private broadcasters in support of their claim for setting up private
commercial stations. In a decision rendered in 1960 (Decision 59/60 (1960) Giurisprudenza
Constituzionale 759) the Constitutional Court of Italy upheld RAI's monopoly with reference to
Article 43 of the Constitution which enables legislation to reserve (or e Xpropriate subject to com-
pensation) for the state, businesses which are concerned with vital public service or are natural
monopolies and which are of pre-eminent public interest. It denied the right of applicants to
establish private radio or television stations. it-opined that private broadcasting would inevitably be
dominated by a few corporations and, therefore, not in public interest, an aspect which was
reaffirmed in a decision in 1974. (Decision 225/74 (1974) Giurisprudenza Constituzionale 1775). It
held that broadcasting provides an essential service in a democratic society and could legitimately
be reserved for a public institution, provided certain conditions were met. In particular, it said that
radio and television should be put under parliamentary, and not eXecutive control to ensure their
independence and that rules should be drawn up to guarantee the access of significant political and
social groups. Accordingly, the Parliament enacted the Legge in April, 1975 which provided for a
greater control by a Parliamentary Commission over the programmes and their content. In 1976, the
Constitutional Court ruled (Decision 202/76 (1976) Giurisprudenza Constituzionale 1276) that while
at the national level, the monopoly of RAI is valid, at the local level, it is not, since at the local level
there is no danger of private monopolies or oligopolies emerging a hope belied by subsequent
developments.
This ambiguous decision resulted in establishment of a large number of private radio stations in
Italy notwithstanding the re-affirmation of RAI's national monopoly in 1981 by the court. One of the
major rather the largest - private television and radio networks which thus came into eXistence is the
$7 billion Fininvest Company, controlled by Silvio Berlusconi (the E X-Prime Minister of Italy, who
resigned in December, 1994). It owns three major TV networks in Italy. This development prompted
the Constitutional Court, in 1988, to call for a prompt and comprehensive regulation of private
broadcasting containing adequate anti-trust and other anti- monopolistic provisions to safeguard
pluralism. Accordingly, a law was made in 1990 which devised a system for licensing private radio
and television stations. AUSTRIA:
170. Broadcasting has been a State monopoly in Austria throughout. This monopoly was challenged
-as inconsistent with Article IO of the European Convention before the Austrian Constitutional
Court which repelled the attack with reference to clause (2) of Article 10. It held that inasmuch as a
law made by the State, viz., Constitutional Broadcasting Law had introduced a licencing system
within the meaning of the last sentence in Article 10(1) of the Convention and since the said system
was intended to secure objectivity and diversity of opinions, no further need be done. It held that the
Austrian Broadcasting Corporation with the status of an autonomous public law corporation is a
sufficient compliance not only with the national laws but also with Article 10 of the Convention and
that granting licence to every applicant would defear the objectives of pluralism, diversity of views
and range of opinions underlying the said Austrian law. Several individuals and organisations, who

were refused television/radio licences, lodged complaints with the European Human Rights
Commission, which referred the matter for the opinion of the European Human Rights Court
[EHRC] (at Strasbourg). The court held that the refusal to consider the applications for licence
amounted to a violation of Article 10 (Informationsverein Lentia & Ors. v. Austria - 15 Human
Rights law Journal 31 - judgment dated 24th November, 1993). The reasoning of the Court is to be
found in paragraphs 38 and 39 which read thus:
"38. The Court has frequently stressed the fundamental role of freedom of e Xpression
in a democratic society, in particular where, through the press, it serves to impart
information and ideas of general interest, which the public is moreover entitled to
receive (see, for eXample, mutatis mutandis, the Observer and Guardian v. the United
Kingdom judgment of 26 November 1991, Series A no.216, pp. 29-30, $59 - 13 HRLJ
16 (1992)). Such an undertaking cannot be successfully accomplished unless it is
grounded in the principle of pluralism, of which the State is the ultimate guarantor.
This observation is especially valid in relation to audio-visual media, whose
programmes are often broadcast very widely.
39. 0 'all the means of ensuring that these values are respected, a public monopoly is
the one which imposes the greatest restrictions on the freedom of e Xpression, namely
the total impossibility of broadcasting otherwise than through a national station and,
in some cases, to a very limited eXtent through a local cable station. The far reaching
character of such restrictions means that they can only be justified where they
correspond to a pressing need.
As a result of the technical progress made over the last decades, justification of these
restrictions can no longer today be found in considerations relating to the number of
frequencies and channels available; the Government accepted this. Secondly, for the
purposes of the present case they have lost much of their raison d'etre in view of the
multiplication of foreign programmes aimed at Austrian audiences and the decision
of the Administrative Court to recognise the lawfulness of their retransmission by
cable (see paragraph 21 above). Finally and above all, it cannot be argued that there
are no equivalent less restrictive solutions; it is sufficient by way of eXample to cite
the practice of certain countries which either issue licences subject to specified
conditions of variable content or make provision for forms of private participation in
the activities of the national corporation."
The Court then dealt with the argument that "Austrian market was too small to sustain a sufficient
number of stations to avoid regroupings and the constitution of the private monopolies" and
rejected it in the following words:
"42. The court is not persuaded by the Government's argument. Their assertions are
contradicted by the eXperience of several European States, of a comparable size of
Austria, in which the coeXistence of private and public stations, according to rules
which vary from country to country and accompanied by measures preventing the

development of private monopolies, shows the fears eXpressed to be groundless."
171. The Court finally concluded; "43. In short, like the Commission, the Court
considers that the interferences in issue were disproportionate to the aim pursued
and were, accordingly, not necessary in a democratic society. There has therefore
been a violation of Article IO."
172. In our opinion, the reasoning of EHRC is unacceptable for various reasons which we shall set
out at the proper stage.
OTHER WESTERN EUROPEAN COUNTRIES.
173. In Denmark, private broadcasting was permitted by Legislation enacted in 1985. In Portugal,
private broadcasting was allowed only in 1989, by amending the Constitution. In Switzerland too,
private broadcasting has been allowed only recently. Private broadcasting is, however, subject to
strict programme control. UNITED STATES OF AMERICA:
174. In the United States, there was no law regulating the establishment and working of
broadcasting companies till 1927. In that year, Radio Act, 1927 was enacted by Congress creating the
Federal Radio Commission with authority to grant three year licences to operate radio stations on
an assigned frequency. In the year 1934, the Congress enacted the Federal Communications Act.
This Act placed the telephone and wireless communications under one authority, viz., Federal
Communications Commission (FCC). The Commission had the authority to assign frequency for
particular areas, to prescribe the nature of the service to be provided for different types of stations
and to decide licence applications. The only guideline issued to the Commission was that it should
eXercise its powers keeping in view the "pub-
lic interest, convenience and necessity".. It is under these guidelines that the FCC evolved the
Fairness Doctrine in 1949. Notwithstanding the First Amendment, the United States Supreme Court
held that the freedom of speech did not entail a right to broadcast without a licence. It held: "unlike
other modes of eXpression, radio inherently is not available to all" vide N.B.C. v. U.S. [319 US 190
(1943)]. The Fairness Doctrine was approved by the Supreme Court in Red Lion Broadcasting
Company v. F.C.C. [395 US 367 (1969)]. The Court observed: "Although broadcasting is clearly a
medium affected by a First Amendment interest, differences in the characteristics of news media
justify differences in the First Amendment standards applied to them Where there are substantially
more individuals who want to broadcast than there are frequencies to allocate, it is idle lo posit an
unbridgeable First Amendment right to broadcast comparable to the right of every individual to
speak, write or publish ... those who are licenced stand no better than those to whom licences are
refused A license permits broadcasting, but the licensee has no constitutional right to be the one
who holds the license or to monopolize a radio frequency to the eXclusion of his fellow citizens ....
The people as a whole retain their interest in free speech by radio and their collective right to have
the medium function consistently with the ends and purposes of the First Amendment. It is the right
of the viewers and listeners, not the right of the broadcasters which is paramount. It is the right of
the public to receive suitable access to social, political, esthetic moral and other ideas and eXpe-

riences which is crucial here In 1967'70, public broadcasting was established on a national basis
through the institution of the Corporation for Public Broadcasting (CPB), viz., the Public
Broadcasting Service (PBS) for television and National radio service. The CPB is funded by
appropriations made by the Congress. In 1978, the Supreme Court affirmed in FCC. v. National
Citizens Committee for Broadcasting (436 U.S.775) that:
"in making [its] licensing decisions between competing applicants, the Commission
has long given "primary significance" to "diversification of control of the media of
mass communications." This policy is consistent with the statutory scheme and with
the First Amendment goal of achieving "the widest possible dissemination of
information from diverse and antagonistic sources."*** Pe- titioners argue that the
regulations are invalid because they seriously restrict the opportunities for
eXpression of both broadcasters and newspapers. But as we stated in Red Lion, "to
deny a station licence because 'the public interest' requires it 'is not a denial of free
speech'." The regulations are a reasonable means of promoting the public interest in
diversified mass communications; thus they do not violate the First Amendment
rights of those who will be denied broadcast licenses pursuant to them.
175. It is significant to notice the statement that "to deny a station licence because 'the public
interest' requires it 'is not a denial of free speech"' - a holding to which we shall have occasion to
advert to later. Yet another relevant observation of Burger,C.J. is to the following effect:
*** As far back as 1948, the Court held in US v. Paramount Pictures (92 L. Ed. 126 1)
that no monopoly can be countenanced in the matter of First Amendment rights.
"The Commission (F.C.C.) was justified in concluding that the public interest in
providing access lo market place of "ideas and e Xpressions " would scarcely be served
by a system so heavily weighted in favour of the financially affluent or those with
access to wealth........
(Emphasis added)
176. In 1970s, however, it was argued that programming restraints were contrary to the First
Amendment besides being unproductive. and that broadcasting licencees should enjoy the same
rights as newspaper editors and owners. In course of time. the government moved towards
deregulation of broadcasting and ultimately in 1987 the Fairness doctrine was repealed by FCC. An
attempt by Congress to restore the said rule by an enactment was vetoed by the President.
177. Having eXamined the systems obtaining in the United States and major west European
countries, Eric Barendt says:
"These developments illustrate the widely divergent approaches to broadcasting

regulation in the United States and (for the most part) in Europe. This is partly an
aspect of the more sceptical attitude to government and to administrative regulation

which has prevailed in the USA, at any rate. in the last twenty years. The First
Amendment has been interpreted as conferring on broadcasters rights, which have
not been derived from the comparable provisions in continental countries. Another
eXplanation is that in the USA private commercial broadcasting enjoyed for a long
time a de facto monopoly, while in Britain, France, Germany and Italy there was a
public monopoly. It is interesting that there has been a continuity to US broadcasting
law, which (perhaps sadly) is not found in these European jurisdictions. The Federal
Communications Act has remained in force since its passage in 1934, though it has
been amended on a handful of occasions."
(Eric Barendt: Broadcasting Law - Page31)
178. We may now proceed to eXamine what does "Broadcasting freedom" mean and signify?
BROADCASTING FREEDOM Meaning and content of.
179. There is little doubt that broadcasting freedom is implicit in the freedom of speech and
eXpression. The European Court of Human Rights also has taken the view that broadcasting like
press is covered by Article 10 of the Convention guaranteeing the right to freedom of e Xpression. But
the question is what does broadcasting freedom mean? Broadly speaking, broadcasting freedom can
be said to have four facets, (a) freedom of the broadcaster, (b) freedom of the listeners/viewers to a
variety of view and plurality of opinion, (c) right of the citizens and groups of citizens to have access
to the broadcasting media, and (d) the right to establish private radio/TV stations. We shall e Xamine
them under separate heads.
(a) FREEDOM OF THE BROADCASTER:
180. The first facet of the broadcasting freedom is freedom from State or Governmental control, in
particular from the censorship by the Government. As the Peacock Committee put it,
pre-publication censorship has no place in a free society. Pre-publication censorship is prohibited in
Ger- many by Article 5 of the Basic Law. This principle applies in equal measure both to public and
private broadcasting. It is, however, necessary to clarify here that public broadcasting is not to be
equated with State broadcasting. Both are distinct. Broadcasting freedom in the case of public
broadcasting means the composition of these bodies in a manner so as to genuinely guarantee their
independence. In Germany, the Constitutional Court has ruled that freedom from State control
requires the legislature to frame some basic rules to ensure that Government is unable to e Xercise
any influence over the selection, content or scheduling of programmes. Laws providing to the
contrary were held bad. Indeed, the court also enunciated certain guidelines for the composition and
selection of the independent broadcasting authorities on the ground that such a course is necessary
to ensure freedom from Government control. It should be noted that an unfettered freedom for
licensees to select which programmes appear on their schedule to the complete disregard of the
interests of public appears more like a property right than an attribute of freedom of speech. It is for
this reason that the German constitutional court opined in 1981 (57 BVerfGE 295) and in 1987 (73
BVerfGE II

8) that television and radio is an instrument of freedom serving the more fundamental freedom of
speech in the interest of both broadcasters and the public. The court opined that broadcasting
freedom is to be protected insofar as it's e Xercise promotes the goals of free speech, i.e., an informed
democracy and lively discussion of a variety of views. The freedom of broadcaster cannot be
understood as merely an immunity from government intervention but must be understood as a
freedom to safeguard free speech right of
-all the people without being dominated either by the State or any commercial group. This is also the
view taken by the Italian and French courts.
(b) LISTENERS/VIEWERS RIGHT.
181. Broadcasting freedom involves and includes the right of the viewers and listeners who retain
their interest in free speech. It is on this basis that the European courts have taken the view that
restraints on freedom of broadcasters are justifiable on the very ground of free speech. It has been
held that freedom of eXpression includes the right to receive information and ideas as well as
freedom to impart them. "The free speech interests of viewers and listeners in e Xposure to a wide
variety of material can best be safeguarded by the imposition of programme standards, limiting the
freedom of radio and television companies. What is important according to this perspective is that
the broadcasting institutions are free to discharge their responsibilities of providing the public with
a balanced range of programmes and a variety of views. These free speech goals require positive
legislative provision to prevent the domination of the broadcasting authorities by the government or
by private corporations and advertisers, and perhaps for securing impartiality........
182. The Fairness Doctrine evolved by FCC and approved by the United States Supreme Court in
Red Lion protected the interest of persons by providing a right of reply to personal attacks. But
difficulties have arisen in the matter of enforcing the listeners'/viewers' rights through courts.
(c) ACCESS TO BROADCASTING:
183. The third facet of broadcasting freedom is the freedom of individuals and groups of individuals
to have access to broadcasting media to eXpress their views.
The first argument in support of this theory is that public is entitled to hear range of opinions held
by different groups so that it can make sensible choices on political and social issues. In particular,
these views should be eXposed on television, the most important contemporary medium. It is indeed
the interest of audience that justified the imposition of impartiality rules and positive programme
standards upon the broadcasters. The theoretical foundation for the claim for access to broadcasting
is that freedom of speech means the freedom to communicate effectively to a mass audience which
means through mass media. This is also the view taken by our court as pointed out supra.
184. An important decision on this as'pect is that of the United States Supreme Court in Columbia
Broadcasting System v. Democratic National Committee [412 US 94 (1973)]. The CBS denied to
Democrats and a group campaigning for peace in Vietnam any advertising time to comment upon

contemporary political issues. Its refusal was upheld by the FCC, but the District of Columbia Circuit
Court of Appeals ruled that an absolute ban on short pre-paid editorial advertisements infringed the
First Amendment and constituted impermissible discrimination. The Supreme Court, however,
allowed the plea of CBS holding that recognition of a right of access of citizens and groups would be
inconsistent with the broadcasters' freedom. They observed that if such right were to be recognised,
wealthy individuals and pressure groups would have greater opportunities to purchase advertising
time. It rejected the "view that every potential speaker is 'the best judge of what the listening public
ought to hear ". (Burger,C.J.) Some Judges eXpressed the opinion that the broadcaster enjoyed the
same First Amendment rights as the newspapers whereas the minority represented by Brennan and
Marshall,JJ. was of the view that freedom of groups and individuals to effective e Xpression justified
recognition of some access rights to radio and television.
185. It appears that this aspect has been debated more intensively in Italy. The Italian constitutional
court held that the monopoly of RAI can be justified only on certain conditions, one of them being
that access must be allowed so far as possible to the political, religious and social groups,
representing various strands of opinion in society. It opined that statutory provision for access was
required by Article 21 of the Constitution guaranteeing freedom of e Xpression. The Italian courts
viewed access as a goal or a policy rather than a matter- of fundamental right while at the same time
protecting the individual's right of reply. On this aspect, Barendt says: There are also practical
objections to access rights. It may be very difficult to decide, for e Xample, which group are to be
given access, and when and how often such programmes are shown. There is a danger some groups
will be unduly privileged........
(d)THE RIGHTS TO ESTABLISH PRIVATE BROADCASTING STATIONS:
186. The French Broadcasting Laws of 1982 and 1989 limit the right of citizens to establish private
broadcasting stations in the light of the necessity to respect individual rights, to safeguard pluralism
of opinion and to protect public interests such as national security and public order. No private
radio or television channel or sta-
tion can be established without prior authorisation from the regulatory body, Conseil superieur de
l'audiovisuel. In Britain, the ITC and the Radio Authority must grant the necessary licence for
establishing a private television or radio station. In none of the European countries is there an
unregulated right to establish private radio/television station. It is governed by law. Even in United
States, it requires a licence from FCC.
187. Let us eXamine the position obtaining in Italy and Germany where constitutional provisions
corresponding to Article 19(1)(a) - indeed more e X plicit in the case of Germany - obtain.
Notwithstanding Article 21, referred to hereinbefore, the Italian Constitutional Court continues to
hold that public monopoly of broadcasting is justified, atleast at national level till adequate anti-
trust laws are enacted to prevent the development of private media oligopolies. In fact, this
principle has been applied in the case of local broadcasting and private broadcasting allowed at local
level. The Italian Constitutional Court is of the view that Article 21 of the Italian Constitution does
no doubt confer right to speak freely but this right is to be eXercised by "using means already at

one's disposal, not a right to use public property, such as the airwaves ". The analogy with the right
to establish private schools was held to be a weak one and rejected by the Constitutional Court.
More particularly, it is of the view that it is impossible to justify recognition of a right which only a
handful of individuals and media companies can enjoy in practice.
188. In Germany too, the Constitutional Court has not recognised a right in the citizens to establish
private television/radio stations at their choice. The question was left open in what is called the
Third Television case. This question has, however, lost its significance in view of the laws made in
1980s permitting private broadcasting. What is relevant is that even after the enactment of the said
laws, the Constitutional Court held in SiXth Television case (decided in 1991) that establishment of
private broadcasting stations is not a matter of right but a matter for the State (legislature) to
decide. If the State, legislation does permit such private broadcasting, it has been held at the same
time, it cannot impose onerous programme and advertising restrictions upon them so as to imperil
their eXistence.
189. So far as the United States is concerned,where licencing of private broadcasting stations has
been in vogue since the very beginning, the Supreme Court said in C.B.S. v. Democratic Committee
[36 L.Ed.2d.772 (1973)] that "(B)ecause the broadcast media utilize a valuable and limited public
resource, there is also present an unusual order of First Amendment values". It then affirmed the
holding in Red Lion that "no one has a First Amendment right to a license or to monopolize a radio
frequency; to deny a station license because 'the public interest' requires it 'is not a denial of free
speech ... ****. The **** It is true that reference to "the public interest" in the above e Xtract must be
understood in the light of the guidance provided to F.C.C., which inter alia directs the F.C.C. to
perform its functions consistent with public interest, the fact yet remains that even the guidance so
provided was understood to be within the ambit of First Amendment and consistent with the free
speech right guaranteed by it. It was held in National Broad-
casting Company v. United States (1943 319 U.S. 190) that the guidance provided to F.C.C. to
eXercise its powers "as public convenience, interest or necessity requires" did not violate the First
Amendment.
court also affirmed that "it is idle to posit an unabridgeable First Amendment right to broadcast
comparable to the right of every individual to speak, write or publish." It is relevant to mention
here that the distinction made between the Press and the broadcasting media vis-a-vis the First
Amendment has been justified by an American jurist Bollinger as based on First Amendment values
and not on notions of eXpediency. He says that in "permitting different treatment of the two
institutions. (the) Court has imposed a compromise - a compromise, however, not based on
notions of eXpediency, but rather on a reasoned and principled accommodation of competing First
Amendment values". [75 Michigan law Review 1, 26-36 (1976) quoted in "Constitutional Law" by
Stone, Seidman and others (Second Edition) at 1427-28].
190. It is true that with the advances in technology, the argument of few or limited number of
frequencies has become weak. Now, it is claimed that an unlimited number of frequencies are
available. We shall assume that it is so. Yet the fact remains that airwaves are public property that

they are to be utilised to the greatest public good; that they cannot be allowed to be monopolised or
hijacked by a few privileged persons or groups; that granting license to everyone who asks for it
would reduce the right to nothing and that such a licensing system would end up in creation of
oligopolies as the eXperience in Italy has shown - where the limited e Xperiment of permitting private
broadcasting at the local level though not at the national level, has resulted in creation of giant
media empires and media magnates, a development not conducive to free speech right of the
citizens. It would be instructive to note the lament of the United States Supreme Court regarding the
deleterious effect the emergence of media empires had on the freedom of Press in that country. In
Miami Herald Publishing Company v. Tor- nillo (1974 - 418 U.S. 24 1), the Court said:
"Access advocates submit that......the press of today is in reality very different from
that known in the early years of our national eXistence.....
The elimination of competing newspapers in most of our large cities, and the
concentration of control of media that results from the only newspaper's being owned
by the same interests which own a television station and a radio station, are
important components of this trend towards concentration of control of outlets to
inform the public.
The result of these vast changes has been to place in a few hands the power to inform
the American people and shape public opinion. Much of the editorial opinion and
commentary that is printed is that of syndicated columnists distributed nationwide
and, as a result, we are told, on national and world issues there tends to be a
homogeneity of editorial opinion, commentary, and interpretive analysis. The abuses
of bias and manipulative reportage are, likewise, said to be the result of the vast
accumulations of unreviewable power in the modem media empires. In effect, it is
claimed, the public has lost any ability to respond or to contribute in a meaningful
way to the debate on issues. The obvious solution, which was available to dissidents
at an earlier time when entry into publishing was relatively ine Xpensive, today would
be to have additional newspapers. But the same economic factors which have caused
the disappearance of vast numbers of metropoli-
tan newspapers, have made entry into the market place of ideas served by the print
media almost impossible. It is urged that the claim of newspapers to be "surrogates
for the public" carries with it a concomitant fiduciary obligation to account for that
stewardship. From this premise it is reasoned that the only effective way to insure
fairness and accuracy and to provide for some accountability is for government to
take affirmative action. The First Amendment interest of the public in being informed
is said to be in peril because the "marketplace of ideas " is today a monopoly
controlled by the owners of the market........
(Emphasis added) Of course, there is another side to this picture: the media gaints in United States
are so powerful that Government cannot always manipulate them - as was proved in the Pentagon
Papers' case [New York Times v.United States - (1971) 403 U.S.713)] and in the case of President's

Claim of Privilege [United States v. Ni Xon - (1974) 418 U.S.683)]. These considerations - all of them
emphasised by Consti- tutional Courts of United States and major west-European countries -
furnish valid grounds against reading into Article 19(1)(a) a right to establish private broadcasting
stations, whether permanent or temporary, stationary or mobile. Same holding holds good for earth
stations and other telecasting equipment which the petitioners want to bring in through their
chosen agencies. As eXplained hereinbefore, there is no distinction in principle between a regular TV
station and an earth station or other telecasting facility. More about this aspect later.
191. Having noticed the judicial wisdom of the Constitutional Courts in leading democracies, we may
turn to the issues arising herein.
The Nature of grounds specified in Article 19(2) of the Constitution
192. A look at the grounds in clause (2) of Article 19, in the interests of which a law can be made
placing reasonable restrictions upon the freedom of speech and e Xpression goes to show that they
are all conceived in the national interest as well as in the interest of society. The first set of grounds,
viz., the sovereignty and integrity of India, the security of the State, friendly relations with foreign
States and public order are grounds referable to national interest whereas the second set of grounds,
viz., decency, morality, contempt of court, defamation and incitement to offence are conceived in the
interest of society. The inter-connection and the interdependence of freedom of speech and the
stability of society is undeniable. They indeed contribute to and promote each other. Freedom of
speech and eXpression in a democracy ensures that the change desired by the people, whether in
political, economic or social sphere, is brought about peacefully and through law. That change
desired by the people can be brought about in an orderly, legal and peaceful manner is by itself an
assurance of stability and an insurance against violent upheavals which are the hallmark of
societies ruled by dictatorships, which do not permit this freedom. The stability of, say, the British
nation and the periodic convulsions witnessed in the dictatorships around the world is ample proof
of this truism. The converse is equally true. The more stable the society is, the more scope, it
provides for eXercise of right of free speech and e Xpression. A society which feels secure can and
does permit a greater latitude than a society whose stability is in constant peril. As observed by Lord
Sumner in Bowman v. Secular Society Ltd. (1917 A.C.406):
"The words, as well as the acts, which tend to endanger society differ from time to time in
proportion as society is stable or insecure in fact, or is believed by its reasonable members to be
open to assault. In the present day meetings or processions are held lawful which a hundred and
fifty' years ago would have been deemed seditious, and this is not because the law is weaker or has
changed, but because, the times having changed, society is stronger than before. \. After all, the
question whether a given opinion is a danger to society is a question of the times and is a question of
fact. I desire to say nothing that would limit the right of society to protect itself by process of law
from the dangers of the movement, whatever that right may be, but only to say that, e Xperience
having proved dangers once thought real to be now negligible, and dangers once very possibly
imminent to have now passed away, there is nothing in the general rules as to blasphemy and
irreligion which prevents us from varying their application to the particular circumstances of our
time in accordance with that eXperience.

193. It is for this reason that our founding fathers while guaranteeing the freedom of speech and
eXpression provided simultaneously that the said right cannot be so e Xercised as to endanger the
interest of the nation or the interest of the society, the case may be. This is not merely in the interest
of nation and society but equally in the interest of the freedom of speech and e Xpression itself, the
reason being the mutual relevance and inter-dependence aforesaid.
194. Reference may also be made in this connection to the decision of the United States Supreme
Court in F.C.C. v. National Citizens Committee for Broadcasting [(1978) 436 U.S.775], referred to
hereinbefore, where it has been held that "to deny a station licence because the public interest
requires it is riot a denial of free speech". It is significant that this was so said with reference to First
Amendment to the United States Constitution which guarantees the freedom of speech and
eXpression in absolute terms. The mason is obvious. The right cannot rise above the national
interest and the interest of society which is but another name for the interest of general public. It is
true that Article 19(2) does not use the words "national interest", "interest of society" or "public
interest" but as pointed hereinabove, the several grounds mentioned in clause (2) are ultimately
referable to the interests of the nation and of the society. As observed by White,j., speaking for the
United States Supreme Court, in Red Lion:
"It is the purpose of the First Amendment to preserve an uninhibited marketplace of

ideas in which truth will ultimately prevail, rather than to countenance
monopolization of that market, whether it be by the Government itself or a private
licensee. Associated Press v United States, 326 US 1, 20, 89 L Ed 2013, 2030, 65 S Ct
1416 (1945); New York Times Co. v Sullivan, 376 US 254, 270, 11 L Ed 2d 686, 700,
84 S Ct 710, 95 ALR2d 1412 (1964); Abrams v United States, 250 US 616, 630, 63 L
Ed 1173, 1180, 40 S Ct 17 (1919) (Holmes,J., dissenting). "[S]peech concerning
public affairs is more Om self-eXpression; it is the essence of self-government."
Garrison v Louisiana, 379 US 64, 74-75, 13 L Ed 2d 125, 133, 85 S Ct 209 (1964). See
Brennan, The Supreme Court and the Meiklejohn interpretation of the First
Amendment, 79 Hary L Rev 1 (1965). It is the right of the public to receive suitable
access to social, political, esthetic, moral, and other ideas and e Xperiences which is
crucial here."
(Emphasis added)
195. We may have to bear this in mind while delineating the parameters of this freedom. It would
also be appropriate to keep in mind the observations in Columbia Broadcasting System v.
Democratic National Committee (36 L.Ed.2d.772), Burger,C.J. quoted the words of Prof, Chafee to
the following effect:
"Once we -get away from the bare words of the First Amendment, we must construe it
as part of a Constitution which creates a government for the purpose of performing
several very important tasks. The First Amendment should be interpreted so as not to
cripple the regular work of the government.

196. We must also bear in mind that the obligation of the State to ensure this right to all the citizens
of the country (emphasised hereinbefore) creates an obligation upon it to ensure that the
broadcasting media is not monopolised, dominated or hijacked by privileged, rich and powerful
interests. Such monopolisation or domination cannot but be prejudicial to the freedom of speech
and eXpression of the citizens in general - an aspect repeatedly stressed by the Supreme Court of
United States and the Constitutional Courts of Germany and Italy.
197. The importance and significance of television in the modern world needs no emphasis. Most
people obtain the bulk of their information on matters of contemporary interest from the
broadcasting medium.
The television is unique in the way in which it intrudes into our homes. The combination of picture
and voice makes it an irresistibly attractive medium of presentation. Call it idiot bo X or by any other
pejorative name, it has a tremendous appeal and influence over millions of people. Many of them
are glued to it for hours on end each day. Television is shaping the food habits, cultural values, social
mores and what not of the society in a manner no other medium has done so far. Younger
generation is particularly addicted to it. It is a powerful instrument, which can be used for greater
good as also for doing immense harm to the society. It depends upon how it is used. With the
advance of technology, the number of channels available has grown enormously. National borders
have become meaningless. The reach of some of the major networks is international they are not
confined to one country or one region. It is no longer possible for any government to control or
manipulate the news, views and information available to its people. In a manner of speaking, the
technological revolution is forcing inter-nationalism upon the world. No nation can remain a
fortress or an island in itself any longer. Without a doubt, this technological revolution is presenting
new issues, compleX in nature - in the words of Burger,C.J., "comple X problems with many hard
questions and few easy answers". Broadcasting media by its very nature is different from Press.
Airwaves are public property. The fact that a large number of frequencies/channels are available
does not make them anytheless public property. It is the obligation of the State under our
constitutional system to ensure that they are used for public good.
198. Now, what does this public good mean and signify in the conte Xt of the broadcasting medium?
In a democracy, people govern themselves and they cannot govern themselves properly unless they
are aware - aware of social, political, economic and other issues confronting them. To enable them
to make a proper judgment on those issues, they must have the benefit of a range of opinions on
those issues. Right to receive and impart information is implicit in free speech. This plurality of
opinions, views and ideas is indispensable for enabling them to make an informed judgment on
those issues to know what is their true interest, to make them responsible citizens, to safeguard their
rights as also the interests of society and State. All the constitutional courts of leading democracies,
reference to which has been made hereinbefore, have recognised and reiterated this aspect. This is
also the view of the European Court of Human Rights. In Castells v. Spain (14 EHRR 445) - quoted
in 1994 Public Law at 524 - the court held that free political debate is "at the very core of the concept
of a democratic society".

199. From the standpoint of Article 19(1)(a), what is paramount is the right of the listeners and
viewers and not the right of the broadcaster - whether the broadcaster is the State, public
corporation or a private individual or body. A monopoly over broadcasting, whether by government
or by anybody else, Is inconsistent with the free speech right of the citizens. State control really
means governmental control, which in turn means, control of the political party or parties in power
for the time being. Such control is bound to colour the views, information and opinions conveyed by
the media. The free speech right of the citizens is better served in keeping the broadcasting media
under the control of public. Control by public means control by an independent public corporation
or corporations, as the case may be, formed under a statute. As held by the Constitutional Court of
Italy, broadcasting provides an essential service in a democratic society and could legitimately be
reserved for a public institution, provided certain conditions are met. The corporation(s) must be
constituted and composed in such a manner as to ensure its independence from government and its
impartiality on public issues. When presenting or discussing a public issue, it must be ensured that
all aspects of it are presented in a balanced manner, without appearing to espouse any one point of
view. This will also enhance the credibility of the media to a very large e Xtent; a controlled media
cannot command that level of credibility. For the purpose of ensuring the free speech rights of the
citizens guaranteed by Article 19(1)(a), it is not necessary to have private broadcasting stations, as
held by the Constitutional Courts of France and Italy. Allowing private broadcasting would be to
open the door for powerful economic, commercial and political interests, which may not prove
beneficial to free speech right of the citizens - and certainly so, if strict programme controls and
other controls are not prescribed. The analogy with press is wholly inapt. Above all, airwaves
constitute public property. While, the freedom guaranteed by Article 19(1)(a) does include the right
to receive and impart information, no one can claim the fundamental right to do so by using or
employing public property. Only where the statute permits him to use the public property, then only
- and subject to such conditions and restrictions as the law may impose - he can use the public
property, viz., airwaves. In other words, Article 19(1)(a) does not enable a citizen to impart his
information, views and opinions by using the airwaves. He can do so without using the airwaves. It
need not be emphasised that while broadcasting cannot be effected without using airwaves,
receiving the broadcast does not involve any such use. Airwaves, being public property must be
utilised to advance public good. Public good lies in ensuring plurality of opinions, views and ideas
and that would scarcely be served by private broadcasters, who would be and who are bound to be
actuated by profit motive. There is a far greater likelihood of these private broadcasters indulging in
mis- i n f o r m a t i o n , d i s i n f o r m a t i o n and m a n i p u l a t i o n of news and views than the
government-controlled media, which is at least subject to public and parliamentary scrutiny. The
eXperience in Italy, where the Constitutional Court allowed private broadcasting at the local level
while denying it at the national level should serve as a lesson; this limited opening has given rise to
giant media oligopolies as mentioned supra. Even with the best of programme controls it may prove
counter-productive at the present juncture of our development; the implementation machinery in
our country leaves much to be desired which is shown by the ineffectiveness of the several
enactments made with the best of the intentions and with most laudable provisions; this is a reality
which cannot be ignored. It is true that even if private broadcasting is not allowed from Indian soil,
such stations may spring up on the periphery of or outside our territory, catering e Xclusively to the
Indian public. Indeed, some like stations have already come into e Xistence. The space, it is said, is
saturated with communication satellites and that they are providing and are able to pro vide any

number of channels and frequencies. More technological developments must be in the offing. But
that cannot be a ground for enlarging the scope of Article 19(1
(a). It may be a factor in favour of allowing private broadcasting - or it may not be. It may also be
that the Parliament decides to increase the number of channels under the Doordarshan, diversifying
them into various fields, commercial, educational, sports and so on. Or the Parlia- ment may decide
to permit private broadcasting, but if it does so permit, it should not only keep in mind the
eXperience of the countries where such a course has been permitted but also the conditions in this
country and the compulsions of technological developments and the realities of situation resulting
from technological developments. We have no doubt in our mind that it will so bear in mind the
above factors and all other relevant circumstances. We make it clear, we are not concerned with
matters of policy but with the content of Article 19(1)(a) and we say that while public broadcasting is
implicit in it, private broadcasting is not. Matters of policy are for the Parliament to consider and
not for courts. On account of historical factors, radio and television have remained in the hands of
the State eXclusively. Both the networks have been built up over the years 'With public funds. They
represent the wealth and property of the nation. It may even be said that they represent the material
resources of the community within the meaning of Article 39(b). They may also be said to be
'facilities' within the meaning of Article 38, They must be employed consistent with the above
articles and consistent with the constitutional policy as adumbrated in the preamble to the
Constitution and Parts III and IV. We must reiterate that the Press whose freedom is implicit in
Article 19(1)(a) stands on a different footing. The petitioners - or the potential applicants for private
broadcasting licenses - cannot invoke the analogy of the press. To repeat, airwaves are public
property and better remain in public hands in the interest of the very freedom of speech and
eXpression of the citizens of this country.
200. It would be appropriate at this stage to deal with the reasoning of the European Court of
Human Rights in the case of Informationsverein Lentia. The first thing to be noticed in this behalf is
the language of Article 10(1) of the European convention, set out hereinbefore. Clause (1) of Article
10 not only says that everyone has the right to freedom of e Xpression but also says that the said right
shall include freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. The clause then adds that Article 10
shall not, however, prevent the State from requiring the licensing of broadcasting, television or
cinema enterprises. Clause (2) of course is almost in para materia with clause (2) of Article 19 of our
Constitution. What is, however, significant is that Article 10(1) e Xpressly conferred the right "to
receive and impart information and ideas without interference by public authority". The only power
given to public authority, which in the conte Xt means the State/Government, is to provide the
requirement of license and nothing more. It is this feature of clause (1) which has evidently
influenced the decision of the European court. The decision cannot, therefore, be read as laying
down that the right of free e Xpression by itself implies and includes the right to establish private
broadcasting stations. It is necessary to emphasise another aspect. While I agree with the statement
in Para 38 to the effect that freedom of eXpression is fundamental to a democratic society and that
the said right "cannot be successfully accomplished unless it is grounded in the principle of
pluralism, of which the State is the ultimate guarantor", I find it difficult to agree that such
pluralism cannot be ensured by a public/statutory corporation of the nature already in eXistence in

Austria and that it is necessary to provide for private broadcasting to ensure pluralism, as held in
Para 39. The fact that as a result of technological advances, the argument of limited number of
frequencies is no longer available, cannot be a ground for reading the right to private broadcasting
into freedom of eXpression. The decision as such is coloured by the particular language of clause (1)
of Article 10, as stated above. I must also say that the last observation in Para 39 viz., that there can
be other less restrictive solutions is also not a ground which we can give effect to under the legal
system governing us. The question in such cases always is whether the particular restriction placed
is reasonable and valid and not whether other less restrictive provisions are possible. I may also
mention that the arguments which weighed with other constitutional courts, viz., that airwaves
represent public property and that they cannot be allowed to be dominated or monopolised by
powerful commercial, economic and political interests does not appear to have been argued or
considered by the European Court. As has been emphasised by other constitutional courts, the very
free speech interest of the citizens requires that the broadcasting media is not dominated or
controlled by such powerful interests.
201. There is yet another aspect of the petitioners' claim which requires to be e Xplained. According
to their own case, they have sold the telecasting rights with respect to their matches to a foreign
agency with the understanding that such foreign agency shall bring in its own equipment and
personnel and telecast the matches from the Indian territory. Once they have sold their rights, the
foreign agency is not their agent but an independent party. It is a principal by itself The foreign
agency cannot claim or enforce the right guaranteed by Article 19(1)(a). Petitioners cannot also
claim because they have already sold the rights. In other words, the right to telecast is no longer with
them but with the foreign firm which has purchased the telecasting rights. For this reason too, the
petitioners' claim must be held to be unacceptable.
202. Having held that Article 19(1)(a) does not encompass the right to establish, maintain or run
broadcasting stations or broadcasting facilities, we feel it necessary to clarify the true purport of the
said freedom in the conteXt of broadcasting media. This is necessary to ensure that I am not
misunderstood or misinterpreted. Indeed, what I propose to say hereafter flows logically from what
I have said heretofore.
203. It has been held by this Court in Life Insurance Corporation v. Manubhai Shah that the
freedom of speech and eXpression guaranteed to the citizens of this country "Includes the right to
propagate one's views through print media or through any other communication channel, e.g., the
radio and the television. Every citizen of this free country, therefore, has the right to air his or her
views through the printing course to permissible restrictions imposed under Article 19(2) of the
Constitution". It has also been held in the said decision that "the print media, the radio and the tiny
screen play the role of public educators, so vital to the growth of a healthy democracy. Freedom to
air one's views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag
this right would sound a death-knell to democracy and would help usher in autocracy or
dictatorship. It follows that a citizen for propagation of his or her ideas has a right to publish for
circulation his views in periodicals, magazines and journals or through the electronic media since it
is well known that these communication channels are great purveyors of news and views and make
considerable impact on the minds of the readers and viewers and are known to mould public

opinion on vital issues of national importance." To the same effect is the holding in Odyssey
Communications referred to supra. Once this is so, it follows that no monopoly of this media can be
conceived for -the simple reason that Article 19(2) does not permit State monopoly unlike clause (6)
of Article 19 vis-a-vis the right guaranteed by Article 19(1)(g).
204. All the Constitutional Courts whose opinions have been referred to hereinbefore have taken the
uniform view that in the interest of ensuring plurality of opinions, views, ideas and ideologies, the
broadcasting media cannot be allowed to be under the monopoly of any one - be it the monopoly of
Government or or an individual, body or Organisation. Government control in effect means the
control of the political party or parties in power for the time being. Such control is bound to colour
and/or the electronic media subject of and in some cases, may even distort the news, views and
opinions eXpressed through the media. It is not conducive to free eXpression of contending
viewpoints and opinions which is essential for the growth of a healthy democracy. I have said
enough hereinbefore in support of the above propositions and we do not think it necessary to repeat
the same over again here. I have also mentioned hereinbefore that for ensuring plurality of views,
opinions and also to ensure a fair and balanced presentation of news and public issues, the
broadcast media should be placed under the control of public, i.e., in the hands of statutory
corporation or corporations, as the case may be. This is the implicit command of Article 19(1)(a). I
have also stressed the importance of constituting and composing these corporations in such a
manner that they ensure impartiality in political, economic and social and other matters touching
the public and to ensure plurality of views, opinions and ideas. This again is the implicit command
of Article 19(1)(a). This medium should promote the public interest by providing information,
knowledge and entertainment of good quality in a balanced way. Radio and Television should serve
the role of public educators as well. Indeed, more than one corporation for each media can be
provided with a view to provide competition among them (as has been done in France) or for
convenience, as the case may be.
205. Now, coming to the Indian Telegraph Act, 1885, a look at its scheme and provisions would
disclose that it was meant for a different purpose altogether. When it was enacted, there was neither
Radio***** nor, of course, television, though it may be that radio or television fall within the
definition of "telegraph" in Section 3(1). EXcept Section 4 and the definition of the eXpression
"telegraph", no other provision of the Act appears to be relevant to broadcasting media. Since the
validity of Section 4(1) has not been specifically challenged before us, we decline to e Xpress any
opinion thereon. The situation is undoubtedly unsatisfactory. This is the result of the legislation in
this country not keeping pace with the technological developments. While all the democracies in the
world have enacted laws specifically governing the broadcasting media, this country has lagged
behind, rooted in the Telegraph Act of 1885 which is wholly inadequate and unsuited to an
important medium like radio and television, i.e., broadcasting media. It is absolutely essential, in
the interests of public, in the interests of the freedom of speech and eXpression guaranteed by
Article 19(1)(a) and with a view to avoid confusion, uncertainty and consequent litigation that
Parliament steps in soon to fill the void by enacting a law or laws, as the case may be, governing the
broadcasting media, i.e., both radio and television media. The question whether to permit private
broadcasting or not is a matter of policy for the Parliament to decide. If it decides to permit it, it is
for the Parliament to decide, subject to what conditions and restrictions should it be permitted.

(This aspect has been dealt with supra.) The fact remains that private broadcasting, even if allowed,
should not be left to market forces, in the interest of ensuring that a wide variety of voices enjoy
access to it. SUMMARY
206. In this summary too, the eXpres-
***** It was only in 1895 that G.Marconi succeeded in transmitting wireless signals
be-
tween sending and receiving points without the use of connecting wires over a distance of tw o
kilometers.
sion "broadcasting media" means the electronic media now represented and operated by AIR and
Doordarshan and not any other services.
I (a).Game of cricket, like any other sports event,provides entertainment. Providing entertainment is
implied in freedom of speech and e Xpression guaranteed by Article 19(1)(a) of the Constitution
subject to this rider that where speech and conduct are joined in a single course of action, the free
speech values must be balanced against competing societal interests, The petitioners (CAB and
BCCI) therefore have a right to organise cricket matches in India, whether with or without the
participation of foreign teams. But what they are now seeking is a license to telecast their matches
through an agency of their choice - a foreign agency in both the cases - and through telecasting
equipment brought in by such foreign agency from outside the country. In the case of Hero Cup
Matches organised by CAB, they wanted uplinking facility to INTELSAT through the government
agency VSNL also. In the case of later international matches organised by BCCI they did not ask for
this facility for the reason that their foreign agent has arranged direct uplinking with the Russian
satellite Gorizon. In both cases, they wanted the permission to import the telecasting equipment
along with the personnel to operate it by moving it to places all over the country wherever the
matches were to be played. They claimed this license, or permission, as it may be called, as a matter
of right said to be flowing from Article 19(1)(a) of the Constitution. They say that the authorities are
bound to grant such license/ permission, without any conditions, all that they are entitled to do, it is
submitted, is to collect technical fees wherever their services are availed, like the services of VSNL in
the case of Hero Cup Matches. This plea is in principle no different from the right to establish and
operate private telecasting stations. In principle, there is no difference between a permanent TV
station and a temporary one; similarly there is no distinction in principle between a stationary TV
facility and a mobile one; so also is there no distinction between a regular TV facility and a TV
facility for a given event or series of events. If the right claimed by the petitioners (CAB and BCCI) is
held to be constitutionally sanctioned one, then each and every citizen of this country must also be
entitled to claim similar right in respect of his event or events, as the case may be. I am of the
opinion that no such right flows from Article 19(1)(a).
(b) Airwaves constitute public property and must be utilised for advancing public good. No
individual has a right to utilise them at his choice and pleasure and for purposes of his choice
including profit. The right of free speech guaranteed by Article 19(1)(a) does not include the right to

use airwaves, which are public property. The airwaves can be used by a citizen for the purpose of
broadcasting only when allowed to do so by a statute and in accordance with such statute. Airwaves
being public property, it is the duty of the State to see that airwaves are so utilised as to advance the
free speech right of the citizens which is served by ensuring plurality and diversity of views, opinions
and ideas. This is imperative in every democracy where freedom of speech is assured. The free
speech right guaranteed to every citizen of this country does not encompass the right to use these
airwaves at his choosing. Conceding such a right would be detrimental to the free speech rights of
the body of citizens inasmuch as only the privileged few - powerful economic, commercial and
political interests - would come to dominate the media. By manipulating the news, views and
information, by indulging in misinformation and disinformation, to suit their commercial or other
interests, they would be harming and not serving - the principle of plurality and diversity of views,
news, ideas and opinions. This has been the e Xperience of Italy where a limited right, i.e., at the local
level but not at the national level was recognised. It is also not possible to imply or infer a right from
the guarantee of free speech which only a few can enjoy.
(c) B r o a d c a s t i n g m e d i a is i n h e r e n t l y d i f f e r e n t f r o m P r e s s or o t h e r m e a n s of
communication/information. The analogy of press is misleading and inappropriate. This is also the
view eXpressed by several Constitutional Courts including that of the United States of America.
(d) I must clarify what I say; it is that the right claimed by the petitioners (CAB and BCCI) - which in
effect is no different in principle from a right to establish and operate a private TV station - does not
flow from Article 19(1)(a); that such a right is not Implicit in it. The question whether such right
should be given to the citizens of this country is a matter of policy for the Parliament. Having regard
to the revolution in information technology and the developments all around, Parliament may, or
may not, decide to confer such right. If it wishes to confer such a right, it can only be by way of an
Act made by Parliament. The Act made should be consistent with the right of free speech of the
citizens and must have to contain strict programme and other controls as has been provided for
eXample, in the Broadcasting Act, 1991 in the United Kingdom. This is the implicit command of
Article 19(1)(a) and is essential to preserve and promote plurality and diversity of views, news,
opinions and ideas.
(e) There is an inseparable inter-connection between freedom of speech and the stability of the
society, i.e., stability of a nation-State. They contribute to each other. Ours is a nascent republic. We
are yet to achieve the goal of a stable society. This country cannot also afford to read into Article
19(1)(a) an unrestricted right to licensing (right of broadcasting) as claimed by the petitioners
herein.
(f) In the case before us, both the petitioners have sold their right to telecast the matches to a foreign
agency. They have parted with the right. The right to telecast the matches, including the right to
import, install and operate the requisite equipment is thus really sought by the foreign agencies and
not by the petitioners. Hence, the question of violation of their right under Article 19(1)(a) resulting
from refusal of license/permission to such foreign agencies does not arise.

2. The Government monopoly of broadcasting media in this country is the result of historical and
other factors. This is true of every other country, to start with. That India was not a free country till
1947 and its citizens did not have constitutionally guaranteed fundamental freedoms till 1950
coupled with the fact that our Constitution is Just about forty five years into operation e Xplains the
Government monopoly. As pointed out in the body of the judgment, broadcasting media was a mo-
nopoly of the Government, to start with, in every country e Xcept the United States where a conscious
decision was taken at the very beginning not to have State monopoly over the medium. Until
recently, the broadcasting media has been in the hands of public/statutory corporations in most of
the West European countries. Private broadcasting is comparatively a recent phenomenon. The
eXperience in Italy of allowing private broadcasting at local level (while prohibiting it at national
level) has left much to be desired. It has given rise to powerful media empires which development is
certainly not conducive to free speech right of the citizens.
3 (a). It has been held by this Court - and rightly - that broadcasting media is affected by the free
speech right of the citizens guaranteed by Article 19(1)(a). This is also the view e Xpressed by all the
Constitutional Courts whose opinions have been referred to in the body of the judgment. Once this
is so, monopoly of this medium (broadcasting media), whether by Government or by an individual,
body or Organisation is unacceptable. Clause (2) of Article 19 does not permit a monopoly in the
matter of freedom of speech and eXpression as is permitted by clause (6) of Article 19 vis-a-vis the
right guaranteed by Article 19(1)(g).
(b) The right of free speech and eXpression includes the right to receive and impart information. For
ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the
benefit of plurality of views and a range of opinions on all public issues. A successful democracy
posits an 'aware' citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable
the citizens to arrive at informed judgment on all issues touching them. This cannot be provided by
a medium controlled by a monopoly - whether the monopoly is of the State or any other individual,
group or Organisation. As a matter of fact, private broadcasting stations may perhaps be more
prejudicial to free speech right of the citizens than the government controlled media, as e Xplained in
the body of the judgment. The broadcasting media should be under the control of the public as
distinct from Government. This is the command implicit in Article 19(1)(a). It should be operated by
a public statutory corporation or corporations, as the case may be, whose constitution and
composition must be such as to ensure its/their impartiality in political, economic and social
matters and on all other public issues. It/they must be required by law to present news, views and
opinions in a balanced way ensuring pluralism and diversity of opinions and views. It/they must
provide equal access to all the citizens and groups to avail of the medium.
4. The Indian Telegraph Act, 1885 is totally inadequate to govern an important medium like the
radio and television, i.e., broadcasting media. The Act was intended for an altogether different
purpose when it was enacted. This is the result of the law in this country not keeping pace with the
technological advances in the field of information and communications. While all the leading
democratic countries have enacted laws specifically governing the broadcasting media, the law in
this country has stood still, rooted in the Telegraph Act of 1885. EXcept Section 4(1) and the

definition of telegraph, no other provision of the Act is shown to have any relevance to broadcasting
media. It is, therefore, imperative that the parliament makes a law placing the broadcasting media
in the hands of a public/statutory corporate or the corporations, as the case.may be. This is
necessary to safeguard the interests of public and the interests of law as also to avoid uncertainty,
confusion and consequent litigation.
5. The CAB did not ever apply for a license under the first proviso to Section 4 of the Telegraph Act
nor did its agents ever make such an application. The permissions, clearances or eXemption
obtained by it from the several departments (mentioned in judgment) are no substitute for a license
under Section 4(1) proviso. In the absence of such a license, the CAB had no right in law to have its
matches telecast by an agency of its choice. The legality or validity of the orders passed by Sri
N.Vithal, Secretary to the Government of India, Telecommunications Department need not be gone
into since it has become, academic. In the facts and circumstances of the case, the charge of
malafides or of arbitrary and authoritarian conduct attributed to Doordarshan and Ministry of
Information and Broadcasting is not acceptable. No opinion need be e Xpressed on the allegations
filed by BCCI in these matters. Its intervention was confined to legal questions only.
6. Now the question arises, what is the position till the Central Government or the Parliament takes
steps as contemplated in Para (4) of the summary, i.e., if any sporting event or other event is to be
telecast from the Indian soil? The obvious answer flowing from the judgment [and Paras (1) and (4)
of this summary is that the organiser of such event has to approach the, nodal Ministry as specified
in the decision of the Meeting of the Committee of Secretaries held on November 12, 1993. I have
no reason to doubt that such a request would be considered by the nodal Ministry and the AIR and
Doordarshan on its merits, keeping in view the public interest. In case of any difference of opinion
or dispute regarding the monetary terms on which such telecast is to be made, matter can always be
referred to an Arbitrator or a panel of Arbitrators. In case, the nodal Ministry or the AIR or
Doordarshan find such broadcast/telecast not feasible, then they may consider the grant of
permission to the organisers to engage an agency of their own for the purpose. Of course, it would be
equally open to the nodal Ministry (Government of India) to permit such foreign agency in addition
to AIR/ Doordarshan, if they are of the opinion that such a course is called for in the circumstances.
207. For the above reasons, the appeals, writ petition and applications are disposed of in the above
terms. No costs.

SUPREME COURT OF Page 1 of 21
CASE NO.:
PETITIONER:
People’s Union of Civil Liberties (P.U.C.L.) & Anr.
RESPONDENT:
Union of India & Anr.
BENCH:
P. V. Reddi
JUDGMENT:
J U D G M E N T
| Printed using casemine.com by licensee : lakshya
P. Venkatarama Reddi, J.
The width and amplitude of the right to information about

the candidates contesting elections to the Parliament or State
Legislature in the context of the citizen’s right to vote broadly
falls for consideration in these writ petitions under Article 32 of
the Constitution. While I respectfully agree with the conclusion
that Section 33(B) of the Representation of the People Act, 1951
does not pass the test of constitutionality, I have come across a
limited area of disagreement on certain aspects, especially
pertaining to the extent of disclosures that could be insisted
upon by the Court in the light of legislation on the subject.
Moreover, the importance and intricacies of the subject-matter
and the virgin ground trodden by this Court in Union of India Vs.
Association for Democratic Reforms [(2002) 5 SCC 294] to bring
the right to information of the voter within the sweep of Article
19(1)(a) has impelled me to elucidate and clarify certain crucial
aspects. Hence, this separate opinion.
I. (1). Freedom of expression and right to information
In the Constitution of our democratic Republic, among the
fundamental freedoms, freedom of speech and expression
shines radiantly in the firmament of Part III. We must take
legitimate pride that this cherished freedom has grown from
strength to strength in the post independent era. It has been
constantly nourished and shaped to new dimensions in tune
with the contemporary needs by the constitutional Courts.
Barring a few aberrations, the Executive Government and the
Political Parties too have not lagged behind in safeguarding this
valuable right which is the insignia of democratic culture of a
nation. Nurtured by this right, Press and electronic media have
emerged as powerful instruments to mould the public opinion
and to educate, entertain and enlighten the public.
Freedom of speech and expression, just as equality clause

and the guarantee of life and liberty has been very broadly
construed by this Court right from 1950s. It has been variously
described as a ’basic human right’, ’a natural right’ and the like.
It embraces within its scope the freedom of propagation and
inter-change of ideas, dissemination of information which would
help formation of one’s opinion and viewpoint and debates on
matters of public concern. The importance which our
Constitution- makers wanted to attach to this freedom is evident
from the fact that reasonable restrictions on that right could be
SUPREME COURT OF Page 2 of
placed by law only on the limited grounds specified in Article
19(2), not to speak of inherent limitations of the right.
In due course of time, several species of rights

unenumerated in Article 19(1)(a) have branched off from the
genus of the Article through the process of interpretation by
this apex Court. One such right is the ’right to information’.
Perhaps, the first decision which has adverted to this right is
State of U.P. Vs. Raj Narain [(1975) 4 SCC 428]. ’The right to
know’, it was observed by Mathew, J. "which is derived from the
concept of freedom of speech, though not absolute is a factor
which should make one wary, when secrecy is claimed for
transactions which can, at any rate, have no repercussion on
public security". It was said very aptly-
"In a Government of responsibility like ours, where
all the agents of the public must be responsible for
their conduct, there can be but few secrets. The
people of this country have a right to know every
public act, everything that is done in a public way,
by their public functionaries."
The next milestone which showed the way for concretizing

this right is the decision in S.P. Gupta Vs. Union of India [(1981)
Suppl. SCC Page 87] in which this Court dealt with the issue of
High Court Judges’ transfer. Bhagwati, J. observed-
"The concept of an open government is the direct
emanation from the right to know which seems to be
implicit in the right of free speech and expression
guaranteed under Article 19(1)(a). Therefore,
disclosure of information in regard to the functioning
of the Government must be the rule and secrecy an
exception..."
Peoples’ right to know about governmental affairs was

emphasized in the following words:
"No democratic Government can survive without
accountability and the basic postulate of
accountability is that the people should have
information about the functioning of the Government.
It is only when people know how Government is
functioning that they can fulfill the role which
democracy assigns to them and make democracy a
really effective participatory democracy."
These two decisions have recognized that the right of the

citizens to obtain information on matters relating to public acts
flows from the fundamental right enshrined in Article 19(1)(a).
The pertinent observations made by the learned Judges in these
two cases were in the context of the question whether the
privilege under Section 123 of the Evidence Act could be
claimed by the State in respect of the Blue Book in the first case
i.e., Raj Narain’s case (supra) and the file throwing light on the
consultation process with the Chief Justice, in the second case.
Though the scope and ambit of Article 19(1)(a) vis--vis the right
to information did not directly arise for consideration in those
two landmark decisions, the observations quoted supra have
certain amount of relevance in evaluating the nature and
character of the right.
Then, we have the decision in Dinesh Trivedi Vs. Union of

India [(1997) 4 SCC 306]. This Court was confronted with the
issue whether background papers and investigatory reports
which were referred to in Vohra Committee’s Report could be
compelled to be made public. The following observations of
Ahmadi, C.J. are quite pertinent:--
"In modern Constitutional democracies, it is
axiomatic that citizens have a right to know about the
affairs of the Government which, having been elected
by them, seeks to formulate sound policies of
governance aimed at their welfare. However, like all
other rights, even this right has recognized
limitations; it is, by no means, absolute."
The proposition expressed by Mathew, J. in Raj Narain’s

Case (supra) was quoted with approval.
The next decision which deserves reference is the case of

Secretary, Ministry of I & B vs. Cricket Association of Bengal
[(1995) 2 SCC Page 161]. Has an organizer or producer of any
event a right to get the event telecast through an agency of his
choice whether national or foreign? That was the primary
question decided in that case. It was highlighted that the right to
impart and receive information is a part of the fundamental right
under Article 19(1)(a) of the Constitution. On this point, Sawant,
J. had this to say at Paragraph 75-

"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.. . ."
Jeevan Reddy, J. spoke more or less in the same voice:

"The right of free speech and expression
includes the right to receive and impart
information. For ensuring the free speech right
of the citizens of this country, it is necessary
that the citizens have the benefit of plurality of
views and a range of opinions on all public
issues. A successful democracy posits an
’aware’ citizenry. Diversity of opinions, views,
ideas and ideologies is essential to enable the
citizens to arrive at informed judgment on all
issues touching them."
A conspectus of these cases would reveal that the right to

receive and impart information was considered in the context of
privilege pleaded by the State in relation to confidential
documents relating to public affairs and the freedom of
electronic media in broadcasting/telecasting certain events.
I. (2). Right to information in the context of the voter’s right
to know the details of contesting candidates and the right of the
media and others to enlighten the voter.
For the first time in Union of India Vs. Association for

Democratic Reforms’ case (supra), which is the forerunner to the
present controversy, the right to know about the candidate
standing for election has been brought within the sweep of
Article 19(1)(a). There can be no doubt that by doing so, a new
dimension has been given to the right embodied in Article 19(1)
(a) through a creative approach dictated by the need to improve
and refine the political process of election. In carving out
this right, the Court had not traversed a beaten track but
took a fresh path. It must be noted that the right to information
evolved by this Court in the said case is qualitatively different
from the right to get information about public affairs or the right
to receive information through the Press and electronic media,
though to a certain extent, there may be overlapping. The right
to information of the voter/citizen is sought to be enforced
against an individual who intends to become a public figure and
the information relates to his personal matters. Secondly, that
right cannot materialize without State’s intervention. The State
or its instrumentality has to compel a subject to make the
information available to public, by means of legislation or orders
having the force of law. With respect, I am unable to share the
view that it stands on the same footing as right to telecast and
the right to view the sports and games or other items of
entertainment through television (vide observations at
Paragraph 38 of of Association for Democratic Reforms case).
One more observation at Paragraph 30 to the effect that "the
decision making process of a voter would include his right to
know about public functionaries who are required to be elected
by him" needs explanation. Till a candidate gets elected and
enters the House, it would not be appropriate to refer to him as a
public functionary. Therefore, the right to know about a public

act done by a public functionary to which we find reference in
Raj Narain’s case (supra) is not the same thing as the right to
know about the antecedents of the candidate contesting for the
election. Nevertheless, the conclusion reached by the Court that
the voter has such a right and that the right falls within the realm
of freedom of speech and expression guaranteed by Article
19(1)(a) can be justified on good and substantial grounds. To
this aspect, I will advert a little later. Before that, I would like to
say that it would have been in the fitness of the things if the
case [U.O.I. vs. Association for Democratic Reforms] was
referred to the Constitution Bench as per the mandate of Article
145(3) for the reason that a new dimension has been added to
the concept of freedom of expression so as to bring within its
ambit a new species of right to information. Apparently, no such
request was made at the hearing and all parties invited the
decision of three Judge Bench. The law has been laid down
therein elevating the right to secure information about a
contesting candidate to the position of a fundamental right. That
decision has been duly taken note of by the Parliament and
acted upon by the Election Commission. It has attained finality.
At this stage, it would not be appropriate to set the clock back
and refer the matter to Constitution Bench to test the
correctness of the view taken in that case. I agree with my
learned brother Shah, J. in this respect. However, I would prefer
to give reasons of my own-may not be very different from what
the learned Judge had expressed, to demonstrate that the
proposition laid down by this Court rests on a firm
Constitutional basis.
I shall now proceed to elucidate as to how the right to

know the details about the contesting candidate should be
regarded as a part of the freedom of expression guaranteed by
Article 19(1)(a). This issue has to be viewed from more than one
angle-from the point of view of the voter, the public viz.,
representatives of Press, organizations such as the petitioners
which are interested in taking up public issues and thirdly from
the point of view of the persons seeking election to the
legislative bodies.
The trite saying that ’democracy is for the people, of the

people and by the people’ has to be remembered for ever. In a
democratic republic, it is the will of the people that is paramount
and becomes the basis of the authority of the Government. The
will is expressed in periodic elections based on universal adult
suffrage held by means of secret ballot. It is through the ballot
that the voter expresses his choice or preference for a
candidate. "Voting is formal expression of will or opinion by the
person entitled to exercise the right on the subject or issue", as
observed by this Court in Lily Thomas Vs. Speaker, Lok Sabha
[(1993) 4 SCC 234] quoting from Black’s Law Dictionary. The
citizens of the country are enabled to take part in the
Government through their chosen representatives. In a
Parliamentary democracy like ours, the Government of the day
is responsible to the people through their elected
representatives. The elected representative acts or is supposed
to act as a live link between the people and the Government. The
peoples’ representatives fill the role of law-makers and
custodians of Government. People look to them for ventilation
and redressal of their grievances. They are the focal point of the
will and authority of the people at large. The moment they put in
papers for contesting the election, they are subjected to public
gaze and public scrutiny. The character, strength and weakness
of the candidate is widely debated. Nothing is therefore more
important for sustenance of democratic polity than the voter
making an intelligent and rational choice of his or her

representative. For this, the voter should be in a position to
effectively formulate his/her opinion and to ultimately express
that opinion through ballot by casting the vote. The concomitant
of the right to vote which is the basic postulate of democracy is
thus two fold: first, formulation of opinion about the candidates
and second, the expression of choice by casting the vote in
favour of the preferred candidate at the polling booth. The first
step is complementary to the other. Many a voter will be
handicapped in formulating the opinion and making a proper
choice of the candidate unless the essential information
regarding the candidate is available. The voter/citizen should
have at least the basic information about the contesting
candidate, such as his involvement in serious criminal offences.
To scuttle the flow of information-relevant and essential would
affect the electorate’s ability to evaluate the candidate. Not only
that, the information relating to the candidates will pave the way
for public debate on the merits and demerits of the candidates.
When once there is public disclosure of the relevant details
concerning the candidates, the Press, as a media of mass
communication and voluntary organizations vigilant enough to
channel the public opinion on right lines will be able to
disseminate the information and thereby enlighten and alert the
public at large regarding the adverse antecedents of a
candidate. It will go a long way in promoting the freedom of
speech and expression. That goal would be accomplished in two
ways. It will help the voter who is interested in seeking and
receiving information about the candidate to form an opinion
according to his or her conscience and best of judgment and
secondly it will facilitate the Press and voluntary organizations
in imparting information on a matter of vital public concern. An
informed voter-whether he acquires information directly by
keeping track of disclosures or through the Press and other
channels of communication, will be able to fulfil his
responsibility in a more satisfactory manner. An enlightened and
informed citizenry would undoubtedly enhance democratic
values. Thus, the availability of proper and relevant information
about the candidate fosters and promotes the freedom of
speech and expression both from the point of view of imparting
and receiving the information. In turn, it would lead to the
preservation of the integrity of electoral process which is so
essential for the growth of democracy. Though I do not go to the
extent of remarking that the election will be a farce if the
candidates’ antecedents are not known to the voters, I would
say that such information will certainly be conducive to fairness
in election process and integrity in public life. The disclosure of
information would facilitate and augment the freedom of
expression both from the point of view of the voter as well as the
media through which the information is publicized and openly
debated.
The problem can be approached from another angle. As

observed by this Court in Association for Democratic Reforms’
case (supra), a voter ’speaks out or expresses by casting vote’.
Freedom of expression, as contemplated by Article 19(1)(a)
which in many respects overlaps and coincides with freedom of
speech, has manifold meanings. It need not and ought not to be
confined to expressing something in words orally or in writing.
The act of manifesting by action or language is one of the
meanings given in Ramanatha Iyer’s Law Lexicon (edited by
Justice Y.V. Chandrachud). Even a manifestation of an emotion,
feeling etc., without words would amount to expression. The
example given in Collin’s Dictionary of English language (1983
reprint) is: "tears are an expression of grief", is quite apposite.
Another shade of meaning is: "a look on the face that indicates
mood or emotion; eg: a joyful expression". Communication of

emotion and display of talent through music, painting etc., is
also a sort of expression. Having regard to the comprehensive
meaning of phrase ’expression’, voting can be legitimately
regarded as a form of expression. Ballot is the instrument by
which the voter expresses his choice between candidates or in
respect to propositions; and his ’vote’ is his choice or election,
as expressed by his ballot (vide ’A Dictionary of Modern Legal
Usage’; 2nd Edition, by Garner Bryan A). "Opinion expressed,
resolution or decision carried, by voting" is one of the meanings
given to the expression ’vote’ in the New Oxford Illustrated
Dictionary. It is well settled and it needs no emphasis that the
fundamental right of freedom of speech and expression should
be broadly construed and it has been so construed all these
years. In the light of this, the dictum of the Court that the voter
"speaks out or expresses by casting a vote" is apt and well
founded. I would only reiterate and say that freedom of voting by
expressing preference for a candidate is nothing but freedom of
expressing oneself in relation to a matter of prime concern to
the country and the voter himself.
I. (3) Right to vote is a Constitutional right though not a

fundamental right but right to make choice by means of ballot is
part of freedom of expression.
The right to vote for the candidate of one’s choice is of the

essence of democratic polity. This right is recognized by our
Constitution and it is given effect to in specific form by the
Representation of the People Act. The Constituent Assembly
debates reveal that the idea to treat the voting right as a
fundamental right was dropped; nevertheless, it was decided to
provide for it elsewhere in the Constitution. This move found its
expression in Article 326 which enjoins that "the elections to
the House of the People and to the Legislative Assembly of
every State shall be on the basis of adult suffrage; that is to say,
every person who is a citizen of India and who is not less than
21* years of age, and is not otherwise disqualified under the
Constitution or law on the ground of non-residence,
unsoundness of mind, crime, corrupt or illegal practice-shall
be entitled to be registered as voter at such election" (* Now 18
years). However, case after case starting from Ponnuswami’s case
[(1952) SCR 218] characterized it as a statutory right. "The right
to vote or stand as a candidate for election", it was observed in
Ponnuswami’s case "is not a civil right but is a creature of
statute or special law and must be subject to the limitations
imposed by it." It was further elaborated in the following words:
"Strictly speaking, it is the sole right of the

Legislature to examine and determine all matters
relating to the election of its own members, and if
the legislature takes it out of its own hands and
vests in a special tribunal an entirely new and
unknown jurisdiction, that special jurisdiction
should be exercised in accordance with the law
which creates it."
In Jyoti Basu Vs. Debi Ghosal [1982 (3) SCR 318] this
Court again pointed out in no uncertain terms that: " a right to
elect, fundamental though it is to democracy, is, anomalously
enough, neither a fundamental right nor a common law right. It
is pure and simple a statutory right." With great reverence to
the eminent Judges, I would like to clarify that the right to vote,
if not a fundamental right, is certainly a constitutional right. The
right originates from the Constitution and in accordance with the
constitutional mandate contained in Article 326, the right has

been shaped by the statute, namely, R.P. Act. That, in my
understanding, is the correct legal position as regards the
nature of the right to vote in elections to the House of people
and Legislative Assemblies. It is not very accurate to describe it
as a statutory right, pure and simple. Even with this
clarification, the argument of the learned Solicitor General that
the right to vote not being a fundamental right, the information
which at best facilitates meaningful exercise of that right cannot
be read as an integral part of any fundamental right, remains to
be squarely met. Here, a distinction has to be drawn between
the conferment of the right to vote on fulfillment of requisite
criteria and the culmination of that right in the final act of
expressing choice towards a particular candidate by means of
ballot. Though the initial right cannot be placed on the pedestal
of a fundamental right, but, at the stage when the voter goes to
the polling booth and casts his vote, his freedom to express
arises. The casting of vote in favour of one or the other
candidate tantamounts to expression of his opinion and
preference and that final stage in the exercise of voting right
marks the accomplishment of freedom of expression of the
voter. That is where Article 19(1)(a) is attracted. Freedom of
voting as distinct from right to vote is thus a species of freedom
of expression and therefore carries with it the auxiliary and
complementary rights such as right to secure information about
the candidate which are conducive to the freedom. None of the
decisions of this Court wherein the proposition that the right
to vote is a pure and simple statutory right was declared and
reiterated, considered the question whether the citizen’s
freedom of expression is or is not involved when a citizen
entitled to vote casts his vote in favour of one or the other
candidate. The issues that arose in Ponnuswami’s case and
various cases cited by the learned Solicitor-General fall broadly
within the realm of procedural or remedial aspects of
challenging the election or the nomination of a candidate. None
of these decisions, in my view, go counter to the proposition
accepted by us that the fundamental right of freedom of
expression sets in when a voter actually casts his vote. I,
therefore, find no merit in the submission made by the learned
Solicitor General that these writ petitions have to be referred to a
larger bench in view of the apparent conflict. As already stated,
the factual matrix and legal issues involved in those cases were
different and the view, we are taking, does not go counter to the
actual ratio of the said decisions rendered by the eminent
Judges of this Court.
Reliance has been placed by the learned Solicitor General

on the Constitution Bench decision in Jamuna Prasad Vs.
Lachhi Ram [(1955) 1 SCR Page 608]. That was a case of special
appeal to this Court against the decision of an Election Tribunal.
Apart from assailing the finding of the Tribunal on the aspect of
’corrupt practice’, Sections 123(5) and 124(5) (as they stood
then) of the R.P. Act were challenged as ultra vires Article
19(1)(a). The former provision declared the character
assassination of a candidate as a major corrupt practice and the
latter provision made an appeal to vote on the ground of caste a
minor corrupt practice. The contention that these provisions
impinged on the freedom of speech and expression was
unhesitatingly rejected. The Court observed that those
provisions did not stop a man from speaking. They merely
prescribed conditions which must be observed if a citizen
wanted to enter the Parliament. It was further observed that the
right to stand as a candidate and contest an election is a special
right created by the statute and can only be exercised on the
conditions laid down by the statute. In that context, the Court
made an observation that the fundamental right chapter had no

bearing on the right to contest the election which is created by
the statute and the appellant had no fundamental right to be
elected as a member of Parliament. If a person wants to get
elected, he must observe the rules laid down by law. So holding,
those Sections were held to be intra vires. I do not think that
this decision which dealt with the contesting candidate’s rights
and obligations has any bearing on the freedom of expression of
the voter and the public in general in the context of elections.
The remark that ’the fundamental right chapter has no bearing
on a right like this created by statute’ cannot be divorced from
the context in which it was made.
The learned senior counsel appearing for one of the

interveners (B.J.P.) has advanced the contention that if the right
to information is culled out from Article 19(1)(a) and read as an
integral part of that right, it is fraught with dangerous
consequences inasmuch as the grounds of reasonable
restrictions which could be imposed are by far limited and
therefore, the Government may be constrained to part with
certain sensitive informations which would not be in public
interest to disclose. This raises the larger question whether
apart from the heads of restriction envisaged by sub-Article (2)
of Article 19, certain inherent limitations should not be read into
the Article, if it becomes necessary to do so in national or
societal interest. The discussion on this aspect finds its echo in
the separate opinion of Jeevan Reddy, J. in Cricket
Association’s case (supra). The learned Judge was of the view
that the freedom of speech and expression cannot be so
exercised as to endanger the interest of the nation or the
interest of the society, even if the expression ’national interest’
or ’public interest’ has not been used in Article 19(2). It was
pointed out that such implied limitation has been read into the
first amendment of the U.S. Constitution which guarantees the
freedom of speech and expression in unqualified terms.
The following observations of the U.S. Supreme Court in

Giltow Vs. New York [(1924) 69 L.Ed. 1138] are very relevant in
this context:
"It is a fundamental principle, long established,

that the freedom of speech and of the Press
which is secured by the Constitution does not
confer an absolute right to speak or publish,
without responsibility, whatever one may
choose, or an unrestricted and unbridle license
that gives immunity for every possible use of
language, and prevents the punishment of those
who abuse this freedom."
Whenever the rare situations of the kind anticipated by the

learned counsel arise, the Constitution and the Courts are not
helpless in checking the misuse and abuse of the freedom. Such
a check need not necessarily be found strictly within the
confines of Article 19(2).
II. Sections 33-A & 33-B of the Representation of People
(3rd Amendment) Act, 2002-whether Section 33-A by
itself effectively secures the voter’s/citizen’s right to
information-whether Section 33-B is unconstitutional?
II. (1). Section 33-A & 33-B of the Representation of People

(3rd Amendment) Act:
Now I turn my attention to the discussion of core question,
that is to say, whether the impugned legislation falls foul of
Article 19(1)(a) for limiting the area of disclosure and whether

the Parliament acted beyond its competence in deviating from
the directives given by this Court to the Election Commission in
Democratic Reforms Association case. By virtue of the
Representation of the People (Amendment) Act, 2002 the only
information which a prospective contestant is required to
furnish apart from the information which he is obliged to
disclose under the existing provisions is the information on two
points: (i) Whether he is accused of any offence punishable with
imprisonment for two years or more in a pending case in which
a charge has been framed and; (ii) Whether he has been
convicted of an offence (other than the offence referred to in
sub-Sections (1) to (3) of Section 8) and sentenced to
imprisonment for one year or more. On other points spelt out in
this Court’s judgment, the candidate is not liable to furnish any
information and that is so, notwithstanding anything contained
in any judgment or order of a Court OR any direction, order or
instruction issued by the Election Commission. Omission to
furnish the information as per the mandate of Section 33B and
furnishing false information in that behalf is made punishable.
That is the sum and substance of the two provisions namely,
Section 33A and 33B.
The plain effect of the embargo contained in Section 33B is

to nullify substantially the directives issued by the Election
Commission pursuant to the judgment of this Court. At present,
the instructions issued by the Election Commission could only
operate in respect of the items specified in Section 33A and
nothing more. It is for this reason that Section 33B has been
challenged as ultra vires the Constitution both on the ground
that it affects the fundamental right of the voter/citizen to get
adequate information about the candidate and that the
Parliament is incompetent to nullify the judgment of this Court. I
shall briefly notice the rival contentions on this crucial issue.
II. (2). Contentions:
Petitioners’ contention is that the legislation on the subject
of disclosure of particulars of candidates should adopt in
entirety the directives issued by this Court to the Election
Commission in the pre-ordinance period. Any dilution or
deviation of those norms or directives would necessarily violate
the fundamental right guaranteed by Article 19(1)(a) as
interpreted by this Court and therefore the law, as enacted by
Parliament, infringes the said guarantee. This contention has
apparently been accepted by my learned brother M.B. Shah, J.
The other view point presented on behalf of Union of India and
one of the interveners is that the freedom of legislature in
identifying and evolving the specific areas in which such
information should be made public cannot be curtailed by
reference to the ad hoc directives given by this Court in pre-
ordinance period and the legislative wisdom of Parliament,
especially in election matters, cannot be questioned. This is the
position even if the right to know about the candidate is
conceded to be part of Article 19(1)(a). It is for the Parliament to
decide to what extent and how far the information should be
made available. In any case, it is submitted that the Court’s
verdict has been duly taken note of by Parliament and certain
provisions have been made to promote the right to information
vis--vis the contesting candidates. Section 33B is only a part of
this exercise and it does not go counter to Article 19(1)(a) even
though the scope of public disclosures has been limited to one
important aspect only.
II. (3). Broad points for consideration
A liberal but not a constricted approach in the matter of

disclosure of information in relation to candidates seeking

election is no doubt a desideratum. The wholesale adoption of
the Court’s diktats on the various items of information while
enacting the legislation would have received public approbation
and would have been welcomed by public. It would have been in
tune with the recommendations of various Commissions and
even the statements made by eminent and responsible political
personalities. However, the fact remains that the Parliament in
its discretion did not go the whole hog, but chose to limiting the
scope of mandated disclosures to one only of the important
aspects highlighted in the judgment. The question remains to be
considered whether in doing so, the Parliament out-stepped its
limits and enacted a law in violation of the guarantee enshrined
in Article 19(1)(a) of the Constitution. The allied question is
whether the Parliament has no option but to scrupulously adopt
the directives given by this Court to the Election Commission. Is
it open to the Parliament to independently view the issue and
formulate the parameters and contents of disclosure, though it
has the effect of diluting or diminishing the scope of disclosures
which, in the perception of the Court, were desirable? In
considering these questions of far reaching importance from the
Constitutional angle, it is necessary to have a clear idea of the
ratio and implications of this Court’s Judgment in the
Association for Democratic Reforms case.
II. (4) Analysis of the judgment in Association for Democratic
Reforms case-whether and how far the directives given therein
have impact on the Parliamentary legislation-Approach of
Court in testing the legislation.
The first proposition laid down by this Court in the said

case is that a citizen/voter has the right to know about the
antecedents of the contesting candidate and that right is a part
of the fundamental right under Article 19(1)(a). In this context,
M.B. Shah, J. observed that-
"...Voter’s speech or expression in case of
election would include casting of votes, that is
to say, voter speaks out or expresses by casting
vote."
It was then pointed out that the information about the candidate
to be selected is essential as it would be conducive to
transparency and purity in the process of election. The next
question considered was how best to enforce that right. The
Court having noticed that there was void in the field in the sense
that it was not covered by any legislative provision, gave
directions to the Election Commission to fill the vacuum by
requiring the candidate to furnish information on the specified
aspects while filing the nomination paper. Five items of
information which the Election Commission should call for from
the prospective candidates were spelt out by the Court. Two of
them relate to criminal background of the candidate and
pendency of criminal cases against him. Points 3 & 4 relate to
assets and liabilities of the candidate and his/her family. The last
one is about the educational qualifications of the candidate. The
legal basis and the justification for issuing such directives to the
Commission has been stated thus (vide paragraphs 19 & 20) :
"19. At the outset, we would say that it is not

possible for this Court to give any directions for
amending the Act or the statutory Rules. It is for
Parliament to amend the Act and the Rules. It is
also established law that no direction can be
given, which would be contrary to the Act and
the Rules.
x x x
20. However, it is equally settled that in case

when the Act or Rules are silent on a particular
subject and the authority implementing the
same has constitutional or statutory power to
implement it, the Court can necessarily issue
directions or orders on the said subject to fill
the vacuum or void till the suitable law is
enacted."
Again, at paragraph 49 it was emphasized-

"It is to be stated that the Election Commission
has from time to time issued instructions/orders
to meet with the situation where the field is
unoccupied by the legislation. Hence, the norms
and modalities to carry out and give effect to the
aforesaid directions should be drawn up
properly by the Election Commission as early as
possible."
Thus, the Court was conscious of the fact that the Election
Commission could act in the matter only so long as the field is
not covered by legislation. The Court also felt that the vacuum
or void should be suitably filled so that the right to information
concerning a candidate would soon become a reality. In other
words, till the Parliament applied its mind and came forward with
appropriate legislation to give effect to the right available to a
voter-citizen, the Court felt that the said goal has to be
translated into action through the media of Election
Commission, which is endowed with ’residuary power’ to
regulate the election process in the best interests of the
electorate. Instead of leaving it to the Commission and with a
view to give quietus to the possible controversies that might
arise, the Court considered it expedient to spell out five points
(broadly falling into three categories) on which the information
has to be called for from the contesting candidate. In the very
nature of things, the directives given by the Court were intended
to operate only till the law was made by legislature and in that
sense ’pro tempore’ in nature. The five directives cannot be
considered to be rigid theorems-inflexible and immutable, but
only reflect the perception and tentative thinking of the Court at
a point of time when the legislature did not address itself to the
question.
When the Parliament, in the aftermath of the verdict of

this Court, deliberated and thought it fit to secure the right to
information to a citizen only to a limited extent (having a bearing

on criminal antecedents), a fresh look has to be necessarily
taken by the Court and the validity of the law made has to be
tested on a clean slate. It must be remembered that the right to
get information which is a corollary to the fundamental right to
free speech and expression has no fixed connotation. Its
contours and parameters cannot be precisely defined and the
Court in my understanding, never meant to do so. It is often a
matter of perception and approach. How far to go and where to
stop? These are the questions to be pondered over by the
Legislature and the Constitutional Court called upon to decide
the question of validity of legislation. For instance, many
voters/citizens may like to have more complete information-a
sort of bio-data of the candidate starting from his school days
such as his academic career, the properties which he had before

and after entering into politics, the details of his income and tax
payments for the last one decade and sources of acquisition of
his and his family’s wealth. Can it be said that all such
information which will no doubt enable the voter and public to
have a comprehensive idea of the contesting candidate, should
be disclosed by a prospective candidate and that the failure to
provide for it by law would infringe the fundamental right under
Article 19(1)(a)? The preponderance of view would be that it is
not reasonable to compel a candidate to make disclosures
affecting his privacy to that extent in the guise of effectuating
the right to information. A line has to be drawn somewhere.
While there cannot be a lip service to the valuable right to
information, it should not be stretched too far. At the same time,
the essence and substratum of the right has to be preserved and
promoted, when once it is brought within the fold of
fundamental right. A balanced but not a rigid approach, is
needed in identifying and defining the parameters of the right
which the voter/citizen has. The standards to be applied to
disclosures vis--vis public affairs and governance AND the
disclosures relating to personal life and bio-data of a candidate
cannot be the same. The measure or yardstick will be somewhat
different. It should not be forgotten that the candidates’ right to
privacy is one of the many factors that could be kept in view,
though that right is always subject to overriding public interest.
In my view, the points of disclosure spelt out by this Court

in the Association for Democratic Reforms case should serve as
broad indicators or parameters in enacting the legislation for the
purpose of securing the right to information about the
candidate. The paradigms set by the Court, though pro tempore
in nature as clarified supra, are entitled to due weight. If the
legislature in utter disregard of the indicators enunciated by this
Court proceeds to make a legislation providing only for a
semblance or pittance of information or omits to provide for
disclosure on certain essential points, the law would then fail to
pass the muster of Article 19(1)(a). Though certain amount of
deviation from the aspects of disclosure spelt out by this Court
is not impermissible, a substantial departure cannot be
countenanced. The legislative provision should be such as to
promote the right to information to a reasonable extent, if not to
the fullest extent on details of concern to the voters and citizens
at large. While enacting the legislation, the legislature has to
ensure that the fundamental right to know about the candidate is
reasonably secured and information which is crucial, by any
objective standards, is not denied. It is for the Constitutional
Court in exercise of its judicial review power to judge whether
the areas of disclosure carved out by the Legislature are
reasonably adequate to safeguard the citizens’ right to
information. The Court has to take a holistic view and adopt a
balanced approach, keeping in view the twin principles that the
citizens’ right to information to know about the personal details
of a candidate is not an unlimited right and that at any rate, it
has no fixed concept and the legislature has freedom to choose
between two reasonable alternatives. It is not a proper
approach to test the validity of legislation only from the stand-
point whether the legislation implicitly and word to word gives
effect to the directives issued by the Court as an ad hoc
measure when the field was unoccupied by legislation. Once
legislation is made, this Court has to make an independent
assessment in the process of evaluating whether the items of
information statutorily ordained are reasonably adequate to
secure the right of information to the voter so as to facilitate him
to form a fairly clear opinion on the merits and demerits of the
candidates. In embarking on this exercise, as already stated, this
Court’s directives on the points of disclosure even if they be

tentative or ad hoc in nature, cannot be brushed aside, but
should be given due weight. But, I reiterate that the shape of
legislation need not be solely controlled by the directives issued
to the Election Commission to meet an ad hoc situation. As I
said earlier, the right to information cannot be placed in straight
jacket formulae and the perceptions regarding the extent and
amplitude of this right are bound to vary.
III. Section 33-B is unconstitutional
III. (1). The right to information cannot be frozen and stagnated.
In my view, the Constitutional validity of Section 33B has

to be judged from the above angle and perspective. Considered
in that light, I agree with the conclusion of M.B. Shah, J. that
Section 33B does not pass the test of Constitutionality. The
reasons are more than one. Firstly, when the right to secure
information about a contesting candidate is recognized as an
integral part of fundamental right as it ought to be, it follows that
its ambit, amplitude and parameters cannot be chained and
circumscribed for all time to come by declaring that no
information, other than that specifically laid down in the Act,
should be required to be given. When the legislation delimiting
the areas of disclosure was enacted, it may be that the
Parliament felt that the disclosure on other aspects was not
necessary for the time being. Assuming that the guarantee of
right to information is not violated by making a departure from
the paradigms set by the Court, it is not open to the Parliament
to stop all further disclosures concerning the candidate in
future. In other words, a blanket ban on dissemination of
information other than that spelt out in the enactment,
irrespective of need of the hour and the future exigencies and
expedients is, in my view, impermissible. It must be remembered
that the concept of freedom of speech and expression does not
remain static. The felt necessities of the times coupled with
experiences drawn from the past may give rise to the need to
insist on additional information on the aspects not provided for
by law. New situations and march of events may demand the
flow of additional facets of information. The right to information
should be allowed to grow rather than being frozen and
stagnated; but the mandate of Section 33B prefaced by the non
obstante clause impedes the flow of such information conducive
to the freedom of expression. In the face of the prohibition under
Section 33B, the Election Commission which is entrusted with
the function of monitoring and supervising the election process
will have to sit back with a sense of helplessness inspite of the
pressing need for insisting on additional information. Even the
Court may at times feel handicapped in taking necessary
remedial steps to enforce the right to information. In my view,
the legislative injunction curtailing the nature of information to
be furnished by the contesting candidates only to the specific
matters provided for by the legislation and nothing more would
emasculate the fundamental right to freedom of expression of
which the right to information is a part. The very objective of
recognizing the right to information as part of the fundamental
right under Article 19(1)(a) in order to ensure free and fair
elections would be frustrated if the ban prescribed by Section
33B is taken to its logical effect.
III. (2) Impugned legislation fails to effectuate right to
information on certain vital aspects.
The second reason why Section 33B should be

condemned is that by blocking the ambit of disclosures only to
what has been specifically provided for by the amendment, the
Parliament failed to give effect to one of the vital aspects of
information, viz., disclosure of assets and liabilities and thus
failed in substantial measure to give effect to the right to

information as a part of the freedom of expression. The right to
information which is now provided for by the legislature no
doubt relates to one of the essential points but in ignoring the
other essential aspect relating to assets and liabilities as
discussed hereinafter, the Parliament has unduly restricted the
ambit of information which the citizens should have and thereby
impinged on the guarantee enshrined in Article 19(1)(a).
III. (3) How far the principle that the Legislature cannot
encroach upon the judicial sphere applies.
It is a settled principle of constitutional jurisprudence that

the only way to render a judicial decision ineffective is to enact a
valid law by way of amendment or otherwise fundamentally
altering the basis of the judgment either prospectively or
retrospectively. The legislature cannot overrule or supersede a
judgment of the Court without lawfully removing the defect or
infirmity pointed out by the Court because it is obvious that the
legislature cannot trench on the judicial power vested in the
Courts. Relying on this principle, it is contended that the
decision of apex Constitutional Court cannot be set at naught in
the manner in which it has been done by the impugned
legislation. As a sequel, it is further contended that the question
of altering the basis of judgment or curing the defect does not
arise in the instant case as the Parliament cannot pass a law in
curtailment of fundamental right recognized, amplified and
enforced by this Court.
The contention that the fundamental basis of the decision

in Association for Democratic Reforms case has not at all been
altered by the Parliament, does not appeal to me. I have
discussed at length the real scope and ratio of the judgment and
the nature and character of directives given by this Court to the
Election Commission. As observed earlier, those directions are
pro tempore in nature when there was vacuum in the field. When
once the Parliament stepped in and passed the legislation
providing for right of information, may be on certain limited
aspects, the void must be deemed to have been filled up and the
judgment works itself out, though the proposition laid down and
observations made in the context of Article 19(1)(a) on the need
to secure information to the citizens will hold good. Now the new
legislation has to be tested on the touchstone of Article 19(1)(a).
Of course, in doing so, the decision of this Court should be
given due weight and there cannot be marked departure from
the items of information considered essential by this Court to
effectuate the fundamental right to information. Viewed in this
light, it must be held that the Parliament did not by law provide
for disclosure of information on certain crucial points such as
assets and liabilities and at the same time, placed an embargo
on calling for further informations by enacting Section 33B. That
is where Section 33B of the impugned amendment Act does not
pass the muster of Article 19(1)(a), as interpreted by this Court.
IV. Right to information with reference to specific aspects:
I shall now discuss the specifics of the problem. With a

view to promote the right to information, this Court gave certain
directives to the Election Commission which, as I have already
clarified, were ad hoc in nature. The Election Commission was
directed to call for details from the contesting candidates
broadly on three points, namely, (i) criminal record (ii) assets
and liabilities and (iii) educational qualification. The third
amendment to R.P. Act which was preceded by an Ordinance
provided for disclosure of information. How far the third
amendment to the Representation of the People Act, 2002
safeguards the right of information which is a part of the
guaranteed right under Article 19(1)(a), is the question to be

considered now with specific reference to each of the three
points spelt out in the judgment of this Court in Association for
Democratic Reforms case.
IV. (1). Criminal background and pending criminal cases against
candidates-Section 33-A of the R.P. (3rd Amendment) Act.
As regards the first aspect, namely criminal record, the

directives in Association for Democratic Reforms case are two
fold: "(i) whether the candidate is convicted/
acquitted/discharged of any criminal case in the past-if any,
whether he is punished with imprisonment or fine and (ii) prior
to six months of filing of nomination, whether the candidate is
an accused in any pending case of any offence punishable with
imprisonment for two years or more and in which charge is
framed or cognizance is taken by the Court of law." As regards
the second directive, the Parliament has substantially proceeded
on the same lines and made it obligatory to the candidate to
furnish information as to whether he is accused of any offence
punishable with imprisonment for two years or more in a
pending case in which a charge has been framed by the
competent Court. However, the case in which cognizance has
been taken but charge has not been framed is not covered by
Clause (i) of Section 33A(I). The Parliament having taken the
right step of compelling disclosure of the pendency of cases
relating to major offences, there is no good reason why it failed
to provide for the disclosure of the cases of the same nature of
which cognizance has been taken by the Court. It is common
knowledge that on account of variety of reasons such as the
delaying tactics of one or the other accused and inadequacies of
prosecuting machinery, framing of formal charges get delayed
considerably, especially in serious cases where committal
procedure has to be gone through. On that account, the
voter/citizen shall not be denied information regarding
cognizance taken by the Court of an offence punishable with
imprisonment for two years or more. The citizen’s right to
information, when once it is recognized to be part of the
fundamental right under Article 19(I)(a), cannot be truncated in
the manner in which it has been done. Clause (i) of Section
33(A)(I) therefore falls short of the avowed goal to effectuate the
right of information on a vital aspect. Cases in which cognizance
has been taken should therefore be comprehended within the
area of information accessible to the voters/citizens, in addition
to what is provided for in Clause (i) of Section 33A.
Coming to Clause (ii) of Section 33A(I), the Parliament
broadly followed the pattern shown by the Court itself. This
Court thought it fit to draw a line between major/serious
offences and minor/non-serious offences while giving direction
No.2 (vide Para 48). If so, the legislative thinking that this
distinction should also hold good in regard to past cases cannot
be faulted on the ground that the said clause fails to provide
adequate information about the candidate. If the Parliament felt
that the convictions and sentences of the long past related to
petty/non serious offences need not be made available to
electorate, it cannot be definitely said that the valuable right to
information becomes a casuality. Very often, such offences by
and large may not involve moral turpitude. It is not uncommon,
as one of the learned senior counsel pointed out that the
political personalities are prosecuted for politically related
activities such as holding demonstrations and visited with the
punishment of fine or short imprisonment. Information regarding
such instances may not be of real importance to the electorate
in judging the worth of the relative merits of the candidates. At
any rate, it is a matter of perception and balancing of various
factors, as observed supra. The legislative judgment cannot be

faulted merely for the reason that the pro tempore directions of
this Court have not been scrupulously followed. As regards
acquittals, it is reasonable to take the view that such information
will not be of much relevance inasmuch as acquittal prima facie
implies that the accused is not connected with the crime or the
prosecution has no legs to stand. It is not reasonable to expect
that from the factum of prosecution resulting in the acquittal, the
voters/citizens would be able to judge the candidate better. On
the other hand, such information in general has the potential to
send misleading signals about the honesty and integrity of the
candidate.
I am therefore of the view that as regards past criminal

record, what the Parliament has provided for is fairly adequate.
One more aspect which needs a brief comment is the

exclusion of offences referred to in sub-Sections (1) and (2) of
Section 8 of the R.P. Act, 1951. Section 8 deals with
disqualification on conviction for certain offences. Those
offences are of serious nature from the point of view of national
and societal interest. Even the existing provisions, viz., Rule 4A
inserted by Conduct of Elections (Amendment) Rules, 2002
make a provision for disclosure of such offences in the
nomination form. Hence, such offences have been excluded
from the ambit of Clause (ii) of Section 33A.
IV. (2). Assets and liabilities
Disclosure of assets and liabilities is another thorny issue.

If the right to information is to be meaningful and if it is to serve
its avowed purpose, I am of the considered view that the
candidate entering the electoral contest should be required to
disclose the assets and liabilities (barring articles of household
use). A member of Parliament or State Legislature is an elected
representative occupying high public office and at the same
time, he is a ’public servant’ within the meaning of Prevention of
Corruption Act as ruled by this Court in the case of P.V.
Narasimha Rao Vs. State [(1998) 4 SCC 626]. They are the
repositories of public trust. They have public duties to perform.
It is borne out by experience that by virtue of the office they hold
there is a real potential for misuse. The public awareness of
financial position of the candidate will go a long way in forming
an opinion whether the candidate, after election to the office had
amassed wealth either in his own name or in the name of family
members viz., spouse and dependent children. At the time when
the candidate seeks re-election, the citizens/voters can have a
comparative idea of the assets before and after the election so
as to assess whether the high public office had possibly been
used for self-aggrandizement. Incidentally, the disclosure will
serve as a check against misuse of power for making quick
money-a malady which nobody can deny, has been pervading
the political spectrum of our democratic nation. As regards
liabilities, the disclosure will enable the voter to know, inter alia,
whether the candidate has outstanding dues payable to public
financial institutions or the Government. Such information has a
relevant bearing on the antecedents and the propensities of the
candidate in his dealings with public money. ’Assets and
liabilities’ is one of the important aspects to which extensive
reference has been made in Association for Democratic Reforms
case. The Court did consider it, after an elaborate discussion, as
a vital piece of information as far as the voter is concerned. But,
unfortunately, the observations made by this Court in this
regard have been given a short shrift by the Parliament with little
realization that they have significant bearing on the right to get
information from the contesting candidates and such

information is necessary to give effect to the freedom of
expression.
As regards the purpose of disclosure of assets and

liabilities, I would like to make it clear that it is not meant to
evaluate whether the candidate is financially sound or has
sufficient money to spend in the election. Poor or rich are alike
entitled to contest the election. Every citizen has equal
accessibility in public arena. If the information is meant to
mobilize public opinion in favour of an affluent/financially sound
candidate, the tenet of socialistic democracy and the concept of
equality so firmly embedded in our Constitution will be
distorted. I cannot also share the view that this information on
assets would enable the public to verify whether unaccounted
money played a part in contesting the election. So long as the
Explanation-I to Section 77 of R.P. Act, 1951 stands and the
contributions can legitimately come from any source, it is not
possible for a citizen/voter to cause a verification to be made on
those lines. In my opinion, the real purposes of seeking
information in regard to assets and liabilities are those which I
adverted to in the preceding paragraph. It may serve other
purposes also, but, I have confined myself to the relevancy of
such disclosure vis--vis right to information only.
It has been contended with much force that the right to

information made available to the voters/citizens by judicial
interpretation has to be balanced with the right of privacy of the
spouse of the contesting candidate and any insistence on the
disclosure of assets and liabilities of the spouse invades his/her
right to privacy which is implied in Article 21. After giving
anxious consideration to this argument, I am unable to uphold
the same. In this context, I would like to recall the apt words of
Mathew J, in Gobind Vs. State of M.P. [(1975) 2 SCC 148]. While
analyzing the right to privacy as an ingredient of Article 21, it
was observed:
"There can be no doubt that privacy-

dignity claims deserve to be
examined with care and to be denied
only when an important
countervailing interest is shown to be
superior" (emphasis supplied).
It was then said succinctly:
"If the Court does find that a claimed

right is entitled to protection as a
fundamental privacy right, a law
infringing it must satisfy the
compelling State interest test. Then
the question would be whether a
State interest is of such paramount
importance as would justify an
infringement of the right."
It was further explained-
"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."
By calling upon the contesting candidate to disclose the assets

and liabilities of his/her spouse, the fundamental right to
information of a voter/citizen is thereby promoted. When there is
a competition between the right to privacy of an individual and
the right to information of the citizens, the former right has to
be subordinated to the latter right as it serves larger public
interest. The right to know about the candidate who intends to
become a public figure and a representative of the people would
not be effective and real if only truncated information of the
assets and liabilities is given. It cannot be denied that the family
relationship and social order in our country is such that the
husband and wife look to the properties held by them as
belonging to the family for all practical purposes, though in the
eye of law the properties may distinctly belong to each of them.
By and large, there exists a sort of unity of interest in the
properties held by spouses. The property being kept in the name
of the spouse benami is not unknown in our country. In this
situation, it could be said that a countervailing or paramount
interest is involved in requiring a candidate who chooses to
subject himself/herself to public gaze and scrutiny to furnish the
details of assets and liabilities of the spouse as well. That is one
way of looking at the problem. More important, it is to be noted
that the Parliament itself accepted in principle that not only the
assets of the elected candidates but also his or her spouse and
dependent children should be disclosed to the constitutional
authority and the right of privacy should not come in the way of
such disclosure; but, the hitch lies in the fact that the disclosure
has to be made to the Speaker or Chairman of the House after he
or she is elected. No provision has been made for giving
access to the details filed with the presiding officer of the
House. By doing so, the Parliament has omitted to give effect to
the principle, which it rightly accepted as a step in aid to
promote integrity in public life. Having accepted the need to
insist on disclosure of assets and liabilities of the elected
candidate together with those of other family members, the
Parliament refrained from making a provision for furnishing the
information at the time of filing the nomination. This has
resulted in jeopardizing the right to information implicitly
guaranteed by Article 19(1)(a). Therefore, the provision made in
Section 75A regarding declaration of assets and liabilities of the
elected candidates to the presiding officer has failed to
effectuate the right to information and the freedom of expression
of the voters/citizens.
IV. (3). Educational qualifications
The last item left for discussion is about educational

qualifications. In my view, the disclosure of information
regarding educational qualifications of a candidate is not an
essential component of the right to information flowing from
Article 19(1)(a). By not providing for disclosure of educational
qualifications, it cannot be said that the Parliament violated the
guarantee of Article 19(1)(a). Consistent with the principle of
adult suffrage, the Constitution has not prescribed any
educational qualification for being Member of the House of the
People or Legislative Assembly. That apart, I am inclind to think
that the information relating to educational qualifications of
contesting candidates does not serve any useful purpose in the
present context and scenario. It is a well known fact that barring
a few exceptions, most of the candidates elected to Parliament

or the State Legislatures are fairly educated even if they are not
Graduates or Post-Graduates. To think of illiterate candidates is
based on a factually incorrect assumption. To say that well
educated persons such as those having graduate and post-
graduate qualifications will be able to serve the people better
and conduct themselves in a better way inside and outside the
House is nothing but overlooking the stark realities. The
experience and events in public life and the Legislatures have
demonstrated that the dividing line between the well educated
and less educated from the point of view of his/her calibre and
culture is rather thin. Much depends on the character of the
individual, the sense of devotion to duty and the sense of
concern to the welfare of the people. These characteristics are
not the monopoly of well educated persons. I do not think that it
is necessary to supply information to the voter to facilitate him
to indulge in an infructuous exercise of comparing the
educational qualifications of the candidates. It may be that
certain candidates having exceptionally high qualifications in
specialized field may prove useful to the society, but it is natural
to expect that such candidates would voluntarily come forward
with an account of their own academic and other talents as a
part of their election programme. Viewed from any angle, the
information regarding educational qualifications is not a vital
and useful piece of information to the voter, in ultimate analysis.
At any rate, two views are reasonably possible. Therefore, it is
not possible to hold that the Parliament should have necessarily
made the provision for disclosure of information regarding
educational qualifications of the candidates.
V. Conclusions:
Finally, the summary of my conclusions:
1. Securing information on the basic details concerning the
candidates contesting for elections to the Parliament or
State Legislature promotes freedom of expression and
therefore the right to information forms an integral part of
Article 19(1)(a). This right to information is, however,
qualitatively different from the right to get information
about public affairs or the right to receive information
through the Press and electronic media, though, to a
certain extent, there may be overlapping.
2. The right to vote at the elections to the House of people or
Legislative Assembly is a constitutional right but not
merely a statutory right; freedom of voting as distinct from
right to vote is a facet of the fundamental right enshrined in
Article 19(1)(a). The casting of vote in favour of one or the
other candidate marks the accomplishment of freedom of
expression of the voter.
3. The directives given by this Court in Union of India Vs.
Association for Democratic Reforms [(2002) 5 SCC 294]
were intended to operate only till the law was made by the
Legislature and in that sense ’pro tempore’ in nature. Once
legislation is made, the Court has to make an independent
assessment in order to evaluate whether the items of
information statutorily ordained are reasonably adequate
to secure the right of information available to the
voter/citizen. In embarking on this exercise, the points of
disclosure indicated by this Court, even if they be tentative
or ad hoc in nature, should be given due weight and
substantial departure therefrom cannot be countenanced.
4. The Court has to take a holistic view and adopt a balanced
approach in examining the legislation providing for right to
information and laying down the parameters of that right.
5. Section 33B inserted by the Representation of People (3rd

Amendment) Act, 2002 does not pass the test of

constitutionality firstly for the reason that it imposes
blanket ban on dissemination of information other than
that spelt out in the enactment irrespective of the need of
the hour and the future exigencies and expedients and
secondly for the reason that the ban operates despite the
fact that the disclosure of information now provided for is
deficient and inadequate.
6. The right to information provided for by the Parliament

under Section 33A in regard to the pending criminal cases
and past involvement in such cases is reasonably
adequate to safeguard the right to information vested in
the voter/citizen. However, there is no good reason for
excluding the pending cases in which cognizance has been
taken by Court from the ambit of disclosure.
7. The provision made in Section 75A regarding declaration

of assets and liabilities of the elected candidates to the
Speaker or the Chairman of the House has failed to
effectuate the right to information and the freedom of
expression of the voters/citizens. Having accepted the
need to insist on disclosure of assets and liabilities of the
elected candidate together with those of spouse or
dependent children, the Parliament ought to have made a
provision for furnishing this information at the time of filing
the nomination. Failure to do so has resulted in the
violation of guarantee under Article 19(1)(a).
8. The failure to provide for disclosure of educational

qualification does not, in practical terms, infringe the
freedom of expression.
9. The Election Commission has to issue revised instructions

to ensure implementation of Section 33A subject to what is
laid down in this judgment regarding the cases in which
cognizance has been taken. The Election Commission’s
orders related to disclosure of assets and liabilities will
still hold good and continue to be operative. However,
direction No.4 of para 14 insofar as verification of assets
and liabilities by means of summary enquiry and rejection
of nomination paper on the ground of furnishing wrong
information or suppressing material information should not
be enforced.
Accordingly, the writ petitions stand disposed of without
costs.
Namit Sharma vs Union Of India on 13 September, 2012
Author: S Kumar
Bench: A.K. Patnaik, Swatanter Kumar
REPORTABLE
INDIA CIVIL ORIGINAL
JURISDICTION
WRIT PETITION (CIVIL) NO. 210 of

2012
Namit Sharma Petitioner
Versus
Union of India Respondent
J U D G M E N T
Swatanter Kumar, J.
1. The value of any freedom is determined by the e Xtent to which the citizens are able to enjoy such
freedom. Ours is a constitutional democracy and it is axiomatic that citizens have the right to know
about the affairs of the Government which, having been elected by them, seeks to formulate some
policies of governance aimed at their welfare. However, like any other freedom, this freedom also
has limitations. It is a settled proposition that the Right to Freedom of Speech and E Xpression
enshrined under Article 19(1)(a) of the Constitution of India (for short the Constitution)
encompasses the right to impart and receive information. The Right to Information has been stated
to be one of the important facets of proper governance. With the passage of time, this concept has
not only developed in the field of law, but also has attained new dimensions in its application. This
court while highlighting the need for the society and its entitlement to know has observed that
public interest is better served by effective application of the right to information. This freedom has
been accepted in one form or the other in various parts of the world. This Court, in absence of any
statutory law, in the case of Secretary, Ministry of Information and Broadcasting, Government of
India & Ors. v. Cricket Association of Bengal & Anr. [(1995) 2 SCC 161] held as under :
The 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 e X press 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
monopolized either by a partisan central authority or by private individuals or
oligarchy organizations. 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.
2. The legal principle of A mans house is his castle. The midnight knock by the police bully breaking
into the peace of the citizens home is outrageous in law, stated by Edward Coke has been e Xplained
by Justice Douglas as follows:
The free State offers what a police state denies the privacy of the home, the dignity
and peace of mind of the individual. That precious right to be left alone is violated
once the police enter our conversations.
3. The States which are governed by Policing and have a policy of greater restriction and control
obviously restrict the enjoyment of such freedoms. That, however, does not necessarily imply that
this freedom is restriction-free in the States where democratic governance prevails. Article 19(1)(a)
of the Constitution itself is controlled by the reasonable restrictions imposed by the State by
enacting various laws from time to time.
4. The petitioner, a public spirited citizen, has approached this Court under Article 32 of the
Constitution stating that though the Right to Information Act, 2005 (for short Act of 2005) is an
important tool in the hands of any citizen to keep checks and balances on the working of the public
servants, yet the criterion for appointment of the persons who are to adjudicate the disputes under
this Act are too vague, general, ultra vires the Constitution and contrary to the established principles
of law laid down by a plethora of judgments of this Court. It is the stand of the petitioner that the
persons who are appointed to discharge judicial or quasi-judicial functions or powers under the Act
of 2005 ought to have a judicial approach, eXperience, knowledge and eXpertise. Limitation has to
be read into the competence of the legislature to prescribe the eligibility for appointment of judicial
or quasi-judicial bodies like the Chief Information Commissioner, Information Commissioners and
the corresponding posts in the States, respectively. The legislative power should be e Xercised in a
manner which is in consonance with the constitutional principles and guarantees. Complete lack of
judicial eXpertise in the Commission may render the decision making process impracticable,
infleXible and in given cases, contrary to law. The availability of e Xpertise of judicial members in the
Commission would facilitate the decision-making to be more practical, effective and meaningful,
besides giving semblance of justice being done. The provision of eligibility criteria which does not
even lay down any qualifications for appointment to the respective posts under the Act of 2005
would be unconstitutional, in terms of the judgments of this Court in the cases of Union of India v.
Madras Bar Association, [(2010) 11 SCC 1]; Pareena Swarup v. Union of India [(2008) 14 SCC 107];
L. Chandra Kumar v. Union of India [(1997) 3 SCC 261]; R.K. Jain v. Union of India [(1993) 4 SCC
119]; S.P. Sampath Kumar v. Union of India [(1987) 1 SCC 124].

5. It is contended that keeping in view the powers, functions and jurisdiction that the Chief/State
Information Commissioner and/or the Information Commissioners e X ercise undisputedly,
including the penal jurisdiction, there is a certain requirement of legal acumen and e Xpertise for
attaining the ends of justice, particularly, under the provisions of the Act of 2005. On this premise,
the petitioner has questioned the constitutional validity of sub-Sections (5) and (6) of Section 12 and
sub- Sections (5) and (6) of Section 15 of the Act of 2005. These provisions primarily deal with the
eligibility criteria for appointment to the posts of Chief Information Commissioners and
Information Commissioners, both at the Central and the State levels. It will be useful to refer to
these provisions at this very stage.
Section 12 (5) The Chief Information Commissioner and Information Commissioners shall be
persons of eminence in public life with wide knowledge and e X perience in law, science and
technology, social service, management, journalism, mass media or administration and governance.
(6) The Chief Information Commissioner or an Information Commissioner shall not be a Member of
Parliament or Member of the Legislature of any State or Union territory, as the case may be, or hold
any other office of profit or connected with any political party or carrying on any business or
pursuing any profession.
XXX XXX XXX Section 15 (5) The State Chief Information Commissioner and the State Information
Commissioners shall be persons of eminence in public life with wide knowledge and e Xperience in
law, science and technology, social service, management, journalism, mass media or administration
and governance.
(6) The State Chief Information Commissioner or a State Information Commissioner shall not be a
Member of Parliament or Member of the Legislature of any State or Union territory, as the case may
be, or hold any other office of profit or connected with any political party or carrying on any
business or pursuing any profession.
6. The challenge to the constitutionality of the above provisions inter alia is on the following
grounds :
(i) Enactment of the provisions of eligibility criteria for appointment to such high offices, without
providing qualifications, definite criterion or even consultation with judiciary, are in complete
violation of the fundamental rights guaranteed under Article 14, 16 and 19(1)(g) of the Constitution.
(ii) Absence of any specific qualification and merely providing for e Xperience in the various specified
fields, without there being any neXus of either of these fields to the object of the Act of 2005, is
violative of the fundamental constitutional values.
(iii) Usage of eXtremely vague and general terminology like social service, mass media and alike
terms, being indefinite and undefined, would lead to arbitrariness and are open to abuse.

(iv) This vagueness and uncertainty is bound to prejudicially affect the administration of justice by
such Commissions or Tribunals which are vested with wide adjudicatory and penal powers. It may
not be feasible for a person of ordinary eXperience to deal with such subjects with legal accuracy.
(v) The Chief Information Commissioner and Information Commissioners at the State and Centre
level perform judicial and/or quasi-judicial functions under the Act of 2005 and therefore, it is
mandatory that persons with judicial eXperience or majority of them should hold these posts.
(vi) The fundamental right to equality before law and equal protection of law guaranteed by Article
14 of the Constitution enshrines in itself the persons right to be adjudged by a forum which e Xercises
judicial power in an impartial and independent manner consistent with the recognised principles of
adjudication.
(vii) Apart from specifying a high powered committee for appointment to these posts, the Act of
2005 does not prescribe any mechanism for proper scrutiny and consultation with the judiciary in
order to render effective performance of functions by the office holders, which is against the basic
scheme of our Constitution.
(viii) Even if the Court repels the attack to the constitutionality of the provisions, still, keeping in
view the basic structure of the Constitution and the independence of judiciary, it is a mandatory
requirement that judicial or quasi-judicial powers ought to be e Xercised by persons having judicial
knowledge and eXpertise. To that eXtent, in any case, these provisions would have to be read down.
Resultantly, limitation has to be read into the competence of the legislature to prescribe requisite
qualifications for appointment of judicial or quasi-judicial bodies or tribunals.
Discussion
7. The Constitution of India eXpressly confers upon the courts the power of judicial review. The
courts, as regards the fundamental rights, have been assigned the role of sentinel on the qui vive
under Article 13 of the Constitution. Our courts have eXercised the power of judicial review, beyond
legislative competence, but within the specified limitations. While the court gives immense
weightage to the legislative judgment, still it cannot deviate from its own duties to determine the
constitutionality of an impugned statute. Every law has to pass through the test of constitutionality
which is stated to be nothing but a formal test of rationality.
8. The foundation of this power of judicial review, as eXplained by a nine-Judges Bench in the case
of Supreme Court Advocates on Record Association & Ors. v. Union of India [(1993) 4 SCC 441], is
the theory that the Constitution which is the fundamental law of the land, is the will of the people,
while a statute is only the creation of the elected representatives of the people; when, therefore, the
will of the legislature as declared in the statute, stands in opposition to that of the people as declared
in the Constitution - the will of the people must prevail.
9. In determining the constitutionality or validity of a constitutional provision, the court must weigh
the real impact and effect thereof, on the fundamental rights. The Court would not allow the

legislature to overlook a constitutional provision by employing indirect methods. In Minerva Mills
Ltd. & Ors. v. Union of India & Ors. [(1980) 3 SCC 625], this Court mandated without ambiguity,
that it is the Constitution which is supreme in India and not the Parliament. The Parliament cannot
damage the Constitution, to which it owes its eXistence, with unlimited amending power.
10. An enacted law may be constitutional or unconstitutional. Traditionally, this Court had provided
very limited grounds on which an enacted law could be declared unconstitutional. They were
legislative competence, violation of Part III of the Constitution and reasonableness of the law. The
first two were definite in their scope and application while the cases falling in the third category
remained in a state of uncertainty. With the passage of time, the law developed and the grounds for
unconstitutionality also widened. D.D. Basu in the Shorter Constitution of India (Fourteenth
Edition, 2009) has detailed, with reference to various judgments of this Court, the grounds on which
the law could be invalidated or could not be invalidated. Reference to them can be made as follows:-
Grounds of unconstitutionality . A law may be unconstitutional on a number of

grounds:
i. Contravention of any fundamental right, specified in Part III of the Constitution.

(Ref. Under Art. 143, (Ref. AIR 1965 SC 745 (145): 1965 (1) SCR 413) ii. Legislating on
a subject which is not assigned to the relevant legislature by the distribution of
powers made by the 7th Sch., read with the connected Articles. (Ref.
Under Art. 143, AIR 1965 SC 745) iii. Contravention of any of the mandatory
provisions of the Constitution which impose limitations upon the powers of a
Legislature, e.g., Art. 301. (Ref. Atiabari Tea Co. v. State of Assam, AIR 1961 SC 232)
iv. In the case of a State law, it will be invalid in so far as it seeks to operate beyond
the boundaries of the State. (State of Bombay v. Chamarbaughwala R.M.D., AIR 1957
SC 699) v. That the Legislature concerned has abdicated its essential legislative
function as assigned to it by the Constitution or has made an e Xcessive delegation of
that power to some other body. Hamdard Dawakhana Wakf v. Union of India, AIR
1960 SC 554 (568)
11. On the other hand, a law cannot be invalidated on the following grounds:
a) That in making the law (including an Ordinance), the law- making body did not
apply its mind (even though it may be a valid ground for challenging an eXecutive
act), (Ref. Nagaraj K. V. State of A.P., AIR 1985 SC 551 (paras 31, 36), or was
prompted by some improper motive. (Ref. Rehman Shagoo v. State of J & K, AIR
1960 SC 1(6); 1960 (1) SCR 681)
b) That the law contravenes some constitutional limitation which did not e Xist at the
time of enactment of the law in question. (Ref. Joshi R.S. v. Ajit Mills Ltd., AIR 1977
SC 2279 (para 16)

c) That the law contravened any of the Directive contained in Part IV of the
Constitution. (Ref. Deep Chand v. State of U.P., AIR 1959 SC 648 (664)
12. Since great emphasis has been placed on the violation of fundamental rights, we may notice that
no prejudice needs to be proved in cases where breach of fundamental rights is claimed. Violation of
a fundamental right itself renders the impugned action void {Ref. A.R. Antulay v. R.S. Nayak & Anr.
[(1988) 2 SCC 602]}.
13. A law which violates the fundamental right of a person is void. In such cases of violation, the
Court has to e X amine as to what factors the Court should weigh while determining the
constitutionality of a statute. First and the foremost, as already noticed, is the competence of the
legislature to make the law. The wisdom or motive of the legislature in making it is not a relative
consideration. The Court should eXamine the provisions of the statute in light of the provisions of
the Constitution (e.g. Part III), regardless of how it is actually administered or is capable of being
administered. In this regard, the Court may consider the following factors as noticed in D.D. Basu
(supra).
(a) The possibility of abuse of a statute does not impart to it any element of invalidity.
(b) Conversely, a statute which violates the Constitution cannot be pronounced valid merely because
it is being administered in a manner which might not conflict with the constitutional requirements.
In the case of Charan Lal Sahu v. UOI [(1990) 1 SCC 614 (667) (para 13), MUKHERJEE, C.J. made
an unguarded statement, viz., that In judging the Constitutional validity of the Act, the subsequent
events, namely, how the Act has worked out, have to be looked into. It can be supported only on the
test of direct and inevitable effect and, therefore, needs to be eXplained in some subsequent
decision.
(c) When the constitutionality of a law is challenged on the ground that it infringes a fundamental
right, what the Court has to consider is the direct and inevitable effect of such law.
(d) There is presumption in favour of constitutionality of statutes. The law courts can declare the
legislative enactment to be an invalid piece of legislation only in the even of gross violation of
constitutional sanctions.
14. It is a settled canon of constitutional jurisprudence that the doctrine of classification is a

subsidiary rule evolved by courts to give practical content to the doctrine of equality. Over-emphasis
of the doctrine of classification or anxious or sustained attempt to discover some basis for
classification may gradually and imperceptly erode the profound potency of the glorious content of
equality enshrined in Article 14 of the Constitution. (Ref. LIC of India v. Consumer Education &
Research Centre [(1995) 5 SCC 482]. It is not necessary that classification in order to be valid, must
be fully carried out by the statute itself. The statute itself may indicate the persons or things to
whom its provisions are intended to apply. Instead of making the classification itself, the State may
lay down the principle or policy for selecting or classifying the persons or objects to whom its

provisions are to apply and leave it to the discretion of the Government or administrative authority
to select such persons or things, having regard to the principle or policy laid down by the
Legislature.
15. Article 14 forbids class legislation but does not forbid reasonable classification which means :
i) It must be based on reasonable and intelligible differentia; and
ii) Such differentia must be on a rational basis.
iii) It must have neXus to the object of the Act.
16. The basis of judging whether the institutional reservation, fulfils the above-mentioned criteria,
should be a) there is a presumption of constitutionality; b) the burden of proof is upon the writ
petitioners, the person questioning the constitutionality of the provisions; c) there is a presumption
as regard the States power on the e Xtent of its legislative competence; d) hardship of few cannot be
the basis of determining the validity of any statute.
17. The principles for adjudicating the constitutionality of a provision have been stated by this Court
in its various judgments. Referring to these judgments and more particularly to the cases of Ram
Krishna Dalmia v. Justice S.R. Tendolkar AIR 1958 SC 538 and Budhan Chodhry v. State of Bihar
AIR 1955 SC 191, the author Jagdish Swarup in his book Constitution of India (2nd Edition, 2006)
stated the principles to be borne in mind by the Courts and detailed them as follows:
(a) that a law may be constitutional even though it relates to a single individual if on
account of some special circumstances or reasons applicable to him and not
applicable to others, that single individual may be treated as a class by himself;
(b) that there is always a presumption in favour of the constitutionality of an

enactment and the burden is upon him who attacks it to show that there has been a
clear transgression of the constitutional principles;
(c) that it must be presumed that the Legislature understands and correctly
appreciates the need of its own people, that its laws are directed to problems made
manifest by eXperience and that its discriminations are based on adequate grounds;
(d) that the legislature is free to recognize decrees of harm and may confine its
restrictions to those cases where the need is deemed to be the clearest;
(e) 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; and

(f) that while good faith and knowledge of the eXisting conditions on the part of a
Legislature are to be presumed, if there is nothing on the face of the law or the
surrounding circumstances brought to the notice of the Court on which the
classification may reasonably be regarded as based, the presumption of
constitutionality cannot be carried to the eXtent of always holding that there must be
some undisclosed and unknown reasons for subjecting certain individuals or
corporations to hostile or discriminating legislation.
18. These principles have, often been reiterated by this Court while dealing with the constitutionality
of a provision or a statute. Even in the case of Atam Prakash v. State of Haryana & Ors. [(1986) 2
SCC 249], the Court stated that whether it is the Constitution that is eXpounded or the constitutional
validity of a statute that is considered, a cardinal rule is to look to the Preamble of the Constitution
as the guiding light and to the Directive Principles of State Policy as the Book of Interpretation. The
Constitution being sui generis, these are the factors of distant vision that help in the determination
of the constitutional issues. Referring to the object of such adjudicatory process, the Court said :
....we must strive to give such an interpretation as will promote the march and
progress towards a Socialistic Democratic State. For e Xample, when we consider the
question whether a statute offends Article 14 of the Constitution we must also
consider whether a classification that the legislature may have made is consistent
with the socialist goals set out in the Preamble and the Directive Principles
enumerated in Part IV of the Constitution.
19. Dealing with the matter of closure of slaughter houses in the case of Hinsa Virodhak Sangh v.
Mirzapur Moti Kuresh Jamat & Ors. [(2008) 5 SCC 33], the Court while noticing its earlier
judgment in the case of Government of Andhra Pradesh & Ors. v. Smt. P. Laxmi Devi [(2008) 4 SCC
720], introduced a rule for e Xercise of such jurisdiction by the courts stating that the Court should
eXercise judicial restraint while judging the constitutional validity of the statute or even that of a
delegated legislation and it is only when there is clear violation of a constitutional provision beyond
reasonable doubt that the Court should declare a provision to be unconstitutional. Further, in the
case of P. Lakshmi Devi (supra), the Court has observed that even if two views are possible, one
making the statute constitutional and the other making it unconstitutional, the former view must
prevail and the Court must make efforts to uphold the constitutional validity of a statute, unlike a
policy decision, where the eXecutive decision could be rendered invalid on the ground of malafide,
unreasonableness and arbitrariness alone.
20. In order to eXamine the constitutionality or otherwise of a statute or any of its provisions, one of
the most relevant considerations is the object and reasons as well as the legislative history of the
statute. It would help the court in arriving at a more objective and justful approach. It would be
necessary for the Court to eXamine the reasons of enactment of a particular provision so as to find
out its ultimate impact vis-a-vis the constitutional provisions. Therefore, we must e Xamine the
contemplations leading to the enactment of the Act of 2005.
A) SCHEME, OBJECTS AND REASONS

21. In light of the law guaranteeing the right to information, the citizens have the fundamental right
to know what the Government is doing in its name. The freedom of speech is the lifeblood of
democracy. The free flow of information and ideas informs political growth. It is a safety valve.
People are more ready to accept the decisions that go against them if they can in principle seem to
influence them. In a way, it checks abuse of power by the public officials. In the modern times,
where there has been globalization of trade and industry, the scientific growth in the communication
system and faster commuting has turned the world into a very well-knit community. The view
projected, with some emphasis, is that the imparting of information qua the working of the
government on the one hand and its decision affecting the domestic and international trade and
other activities on the other, impose an obligation upon the authorities to disclose information.
OBJECTS AND REASONS
22. The Right to Information was harnessed as a tool for promoting development; strengthening the
democratic governance and effective delivery of socio-economic services. Acquisition of information
and knowledge and its application have intense and pervasive impact on the process of taking
informed decision, resulting in overall productivity gains. It is also said that information and
knowledge are critical for realising all human aspirations such as improvement in the quality of life.
Sharing of information, for instance, about the new techniques of farming, health care facilities,
hazards of environmental degradation, opportunities for learning and earning, legal remedies for
combating gender bias etc., have overtime, made significant contributions to the well being of poor
people. It is also felt that this right and the laws relating thereto empower every citizen to take
charge of his life and make proper choices on the basis of freely available information for effective
participation in economic and political activities.
23. Justice V.R. Krishna Iyer in his book Freedom of Information eXpressed the view:
The right to information is a right incidental to the constitutionally guaranteed right

to freedom of speech and e Xpression. The international movement to include it in the
legal system gained prominence in 1946 with the General Assembly of the United
Nations declaring freedom of information to be a fundamental human right and a
touchstone for all other liberties. It culminated in the United Nations Conference on
Freedom of Information held in Geneva in 1948.
Article 19 of the Universal Declaration of Human Rights says:
Everyone has the right to freedom of information and e Xpression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers. It may be a
coincidence that Article 19 of the Indian Constitution also provides every citizen the
right to freedom of speech and e X pression. However, the word information is
conspicuously absent. But, as the highest Court has e X plicated, the right of
information is integral to freedom of eXpression.

India was a member of the Commission on Human Rights appointed by the
Economic and Social Council of the United Nations which drafted the 1948
Declaration. As such it would have been eminently fit and proper if the right to
information was included in the rights enumerated under Article 19 of our
Constitution. Article 55 of the U.N. Charter stipulates that the United Nations shall
promote respect for, and observance of, human rights and fundamental freedoms and
according to Article 56 all members pledge themselves to take joint and separate
action in co-operation with the Organisation for the achievement of the purposes set
forth in Article 55.
24. Despite the absence of any eXpress mention of the word information in our
Constitution under Article 19(1)(a), this right has stood incorporated therein by the
interpretative process by this Court laying the unequivocal statement of law by this
Court that there was a definite right to information of the citizens of this country.
Before the Supreme Court spelt out with clarity the right to information as a right
inbuilt in the constitutional framework, there e Xisted no provision giving this right in
absolute terms or otherwise. Of course, one finds glimpses of the right to information
of the citizens and obligations of the State to disclose such information in various
other laws, for eXample, Sections 74 to 78 of the Indian Evidence Act, 1872 give right
to a person to know about the contents of the public documents and the public officer
is required to provide copies of such public documents to any person, who has the
right to inspect them. Under Section 25(6) of the Water (Prevention and Control of
Pollution) Act, 1974, every State is required to maintain a register of information on
water pollution and it is further provided that so much of the register as relates to any
outlet or effluent from any land or premises shall be open to inspection at all
reasonable hours by any person interested in or affected by such outlet, land or
premises, as the case may be. Dr. J.N. Barowalia in Commentary on the Right to
Information Act (2006) has noted that the Report of the National Commission for
Review of Working of C ons titution under the Chairmans hip of Justice
M.N.Venkatachaliah, as he then was, recognised the right to information wherein it is
provided that major assumption behind a new style of governance is the citizens
access to information. Much of the common mans distress and helplessness could be
traced to his lack of access to information and lack of knowledge of decision-making
processes. He remains ignorant and unaware of the process which virtually affects his
interest.
Government procedures and regulations shrouded in the veil of secrecy do not allow the litigants to
know how their cases are being handled. They shy away from questioning the officers handling their
cases because of the latters snobbish attitude. Right to information should be guaranteed and needs
to be given real substance. In this regard, the Government must assume a major responsibility and
mobilize skills to ensure flow of information to citizens. The traditional insistence on secrecy should
be discarded.

25. The Government of India had appointed a Working Group on Right to Information and
Promotion of Open and Transparent Government under the Chairmanship of Shri H.D. Shourie
which was asked to eXamine the feasibility and need for either full- fledged Right to Information Act
or its introduction in a phased manner to meet the needs of an open and responsive Government.
This group was also required to e Xamine the framework of rules with reference to the Civil Services
(Conduct) Rules and Manual of Office Procedure. This Working Group submitted its report in May
1997.
26. In the Chief Ministers Conference on Effective and Responsive Government held on 24th May,
1997, the need to enact a law on the Right to Information was recognized unanimously. This
conference was primarily to discuss the measures to be taken to ensure a more effective and
responsive government. The recommendations of various Committees constituted for this purpose
and awareness in the Government machinery of the significance and benefits of this freedom
ultimately led to the enactment of the Freedom of Information Act, 2002 (for short, the Act of
2002). The proposed Bill was to enable the citizens to have information on a statutory basis. The
proposed Bill was stated to be in accord with both Article 19 of the Constitution of India as well as
Article 19 of the Universal Declaration of Human Rights, 1948. This is how the Act of 2002 was
enacted.
27. In terms of the Statement of Objects and Reasons of the Act of 2002, it was stated that this law
was enacted in order to make the government more transparent and accountable to the public. It
was felt that in the present democratic framework, free flow of information for citizens and non-
Government institutions suffers from several bottlenecks including the e Xisting legal framework,
lack of infrastructure at the grass root level and an attitude of secrecy within the Civil Services as a
result of the old framework of rules. The Act was to deal with all such aspects. The purpose and
object was to make the government more transparent and accountable to the public and to provide
freedom to every citizen to secure access to information under the control of public authorities,
consistent with public interest, in order to promote openness, transparency and accountability in
administration and in relation to matters connected therewith or incidental thereto.
28. After the Act of 2002 came into force, there was a definite attempt to e Xercise such freedom but
it did not operate fully and satisfactorily. The Civil Services (Conduct) Rules and the Manual of the
Office Procedure as well as the Official Secrets Act, 1923 and also the mindset of the authorities were
implied impediments to the full, complete and purposeful achievement of the object of enacting the
Act of 2002. Since, with the passage of time, it was felt that the Act of 2002 was neither sufficient in
fulfilling the aspirations of the citizens of India nor in making the right to freedom of information
more progressive, participatory and meaningful, significant changes to the eXisting law were
proposed. The National Advisory Council suggested certain important changes to be incorporated in
the said Act of 2002 to ensure smoother and greater access to information. After e Xamining the
suggestions of the Council and the public, the Government decided that the Act of 2002 should be
replaced and, in fact, an attempt was made to enact another law for providing an effective
framework for effectuating the right to information recognized under the Article 19 of the
Constitution. The Right to Information Bill was introduced in terms of its statements of objects and
reasons to ensure greater and more effective access to information. The Act of 2002 needed to be

made even more progressive, participatory and meaningful. The important changes proposed to be
incorporated therein included establishment of an appellate machinery with investigative powers to
review the decision of the Public Information Officer, providing penal provisions in the event of
failure to provide information as per law, etc. This Bill was passed by both the Houses of the
Parliament and upon receiving the assent of the President on 15th June, 2005, it came on the statute
book as the Right to Information Act, 2005.
SCHEME OF ACT of 2005 (COMPARATIVE ANALYSIS OF ACT OF 2002 AND ACT OF 2005)
29. Now, we may deal with the comparative analysis of these two Acts. The first and the foremost
significant change was the change in the very nomenclature of the Act of 2005 by replacing the word
freedom with the word right in the title of the statute. The obvious legislative intent was to make
seeking of prescribed information by the citizens, a right, rather than a mere freedom. There e Xists a
subtle difference when people perceive it as a right to get information in contra-distinction to it
being a freedom. Upon such comparison, the connotations of the two have distinct and different
application. The Act of 2005 was enacted to radically alter the administrative ethos and culture of
secrecy and control, the legacy of colonial era and bring in a new era of transparency and
accountability in governance. In substance, the Act of 2005 does not alter the spirit of the Act of
2002 and on the contrary, the substantive provisions like Sections 3 to 11 of both the Acts are similar
eXcept with some variations in some of the provisions. The Act of 2005 makes the definition clause
more elaborate and comprehensive. It broadens the definition of public authority under Section 2(h)
by including therein even an authority or body or institution of self-government established or
constituted by a notification issued or order made by the appropriate Government and includes any
body owned, controlled or substantially financed by the Government and also non- governmental
organization substantially financed by the appropriate Government, directly or indirectly. Similarly,
the eXpression Right to Information has been defined in Section 2(j) to include the right to
inspection of work, documents, records, taking certified samples of material, taking notes and
eXtracts and even obtaining information in the form of floppies, tapes, video cassettes, etc. This is an
addition to the important step of introduction of the Central and State Information Commissions
and the respective Public Information Officers. Further, Section 4(2) is a new provision which places
a mandatory obligation upon every public authority to take steps in accordance with the
requirements of clause (b) of sub-Section (1) of that Section to provide as much information suo
moto to the public at regular intervals through various means of communication including internet
so that the public have minimum resort to use of this Act to obtain information. In other words, the
aim and object as highlighted in specific language of the statute is that besides it being a right of the
citizenry to seek information, it was obligatory upon the State to provide information relatable to its
functions for the information of the public at large and this would avoid unnecessary invocation of
such right by the citizenry under the provisions of the Act of 2005. Every authority/department is
required to designate the Public Information Officers and to appoint the Central Information
Commission and State Information Commissions in accordance with the provisions of Sections 12
and 15 of the Act of 2005. It may be noticed that under the scheme of this Act, the Public
Information Officer at the Centre and the State Levels are e X pected to receive the
requests/applications for providing the information. Appeal against decision of such Public
Information Officer would lie to his senior in rank in terms of Section 19(1) within a period of 30

days. Such First Appellate Authority may admit the appeal after the e Xpiry of this statutory period
subject to satisfactory reasons for the delay being established. A second appeal lies to the Central or
the State Information Commission, as the case may be, in terms of Section 19(3) within a period of
90 days The decision of the Commission shall be final and binding as per Section 19(7). Section 19 is
an eXhaustive provision and the Act of 2005 on its cumulative reading is a complete code in itself.
However, nothing in the Act of 2005 can take away the powers vested in the High Court under
Article 226 of the Constitution and of this Court under Article 32. The finality indicated in Sections
19(6) and 19(7) cannot be construed to oust the jurisdiction of higher courts, despite the bar created
under Section 23 of the Act. It always has to be read and construed subject to the powers of the High
Court under Article 226 of the Constitution. Reference in this regard can be made to the decision of
a Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India and Ors.
[(1997) 3 SCC 261].
30. EXemption from disclosure of information is a common provision that appears in both the Acts.
Section 8 of both the Acts open with a non- obstante language. It states that notwithstanding
anything contained in the respective Act, there shall be no obligation to give any citizen the
information specified in the eXempted clauses. It may, however, be noted that Section 8 of the Act of
2005 has a more elaborate eXemption clause than that of the Act of 2002. In addition, the Act of
2005 also provides the Second Schedule which enumerates the intelligence and security
organizations established by the Central Government to which the Act of 2005 shall not apply in
terms of Section 24.
31. Further, under the Act of 2002, the appointment of the Public Information Officers is provided
in terms of Section 5 and there eXists no provision for constituting the Central and the State
Information Commission. Also, the Act does not provide any qualifications or requirements to be
satisfied before a person can be so appointed. On the other hand, in terms of Section 12 and Section
15 of the Act of 2005, specific provisions have been made to provide for the constitution of and
eligibility for appointment to the Central Information Commission or the State Information
Commission, as the case may be.
32. Section 12(5) is a very significant provision under the scheme of the Act of 2005 and we shall
deal with it in some elaboration at a subsequent stage. Similarly, the powers and functions of the
Authorities constituted under the Act of 2005 are conspicuous by their absence under the Act of
2002, which under the Act of 2005 are contemplated under Section 18. This section deals in great
detail with the powers and functions of the Information Commissions. An elaborate mechanism has
been provided and definite powers have been conferred upon the authorities to ensure that the
authorities are able to implement and enforce the provisions of the Act of 2005 adequately. Another
very significant provision which was non-eXistent in the Act of 2002, is in relation to penalties. No
provision was made for imposition of any penalty in the earlier Act, while in the Act of 2005 severe
punishment like imposition of fine upto Rs.250/- per day during which the provisions of the Act are
violated, has been provided in terms of Section 20(1). The Central/State Information Commission
can, under Section 20(2), even direct disciplinary action against the erring Public Information
Officers. Further, the appropriate Government and the competent authority have been empowered
to frame rules under Sections 27 and 28 of the Act of 2005, respectively, for carrying out the

provisions of the Act. Every rule made by the Central Government under the Act has to be laid
before each House of the Parliament while it is in session for a total period of 30 days, if no specific
modifications are made, the rules shall thereafter have effect either in the modified form or if not
annulled, it shall come into force as laid.
33. Greater transparency, promotion of citizen-government partnership, greater accountability and

reduction in corruption are stated to be the salient features of the Act of 2005. Development and
proper implementation of essential and constitutionally protected laws such as Mahatma Gandhi
Rural Guarantee Act, 2005, Right to Education Act, 2009, etc. are some of the basic objectives of
this Act. Revelation in actual practice is likely to conflict with other public interests, including
efficiency, operation of the government, optimum use of limited fiscal resources and the
preservation of confidentiality of sensitive information. It is necessary to harness these conflicting
interests while preserving the parameters of the democratic ideal or the aim with which this law was
enacted. It is certainly eXpedient to provide for furnishing certain information to the citizens who
desire to have it and there may even be an obligation of the state authorities to declare such
information suo moto. However, balancing of interests still remains the most fundamental
requirement of the objective enforcement of the provisions of the Act of 2005 and for attainment of
the real purpose of the Act.
34. The Right to Information, like any other right, is not an unlimited or unrestricted right. It is
subject to statutory and constitutional limitations. Section 3 of the Act of 2005 clearly spells out that
the right to information is subject to the provisions of the Act. Other provisions require that
information must be held by or under the control of public authority besides providing for specific
e X emptions and the fields to which the provisions of the Act do not apply. The doctrine of
severability finds place in the statute in the shape of Section 10 of the Act of 2005.
35. Neither the Act of 2002 nor the Act of 2005, under its repeal provision, repeals the Official
Secrets Act, 1923. The Act of 2005 only repeals the Freedom of Information Act, 2002 in terms of
Section 31. It was felt that under the Official Secrets Act, 1923, the entire development process had
been shrouded in secrecy and practically the public had no legal right to know as to what process
had been followed in designing the policies affecting them and how the programmes and schemes
were being implemented. Lack of openness in the functioning of the Government provided a fertile
ground for growth of inefficiency and corruption in the working of the public authorities. The Act of
2005 was intended to remedy this widespread evil and provide appropriate links to the government.
It was also eXpected to bring reforms in the environmental, economic and health sectors, which
were primarily being controlled by the Government.
36. The Central and State Information Commissions have played a critical role in enforcing the
provisions of the Act of 2005, as well as in educating the information seekers and providers about
their statutory rights and obligations. Some section of eXperts opined that the Act of 2005 has been
a useful statutory instrument in achieving the goal of providing free and effective information to the
citizens as enshrined under Article 19(1)(a) of the Constitution. It is true that democratisation of
information and knowledge resources is critical for peoples empowerment especially to realise the
entitlements as well as to augment opportunities for enhancing the options for improving the quality

of life. Still of greater significance is the inclusion of privacy or certain protection in the process of
disclosure, under the right to information under the Act. Sometimes, information ought not to be
disclosed in the larger public interest.
37. The courts have observed that when the law making power of a State is restricted by a written
fundamental law, then any law enacted, which is opposed to such fundamental law, being in e Xcess
of fundamental authority, is a nullity. Inequality is one such eXample. Still, reasonable classification
is permissible under the Indian Constitution. Surrounding circumstances can be taken into
consideration in support of the constitutionality of the law which is otherwise hostile or
discriminatory in nature, but the circumstances must be such as to justify the discriminatory
treatment or the classification, subserving the object sought to be achieved. Mere apprehension of
the order being used against some persons is no ground to hold it illegal or unconstitutional
particularly when its legality or constitutionality has not been challenged. {Ref. K. Karunakaran v.
State of Kerala & Anr. [(2000) 3 SCC 761]}. To raise the plea of Article 14 of the Constitution, the
element of discrimination and arbitrariness has to be brought out in clear terms. The Courts have to
keep in mind that by the process of classification, the State has the power of determining who
should be regarded as a class for the purposes of legislation and in relation to law enacted on a
particular subject. The power, no doubt, to some degree is likely to produce some inequality but if a
law deals with liberties of a number of individuals or well defined classes, it is not open of the charge
of denial of equal protection on the ground that has no application to other persons. Classification,
thus, means segregation in classes which have a systematic relation usually found in common
properties and characteristics. It postulates a rational basis and does not mean herding together of
certain persons and classes arbitrarily, as already noticed. The differentia which is the basis of the
classification and the object of the Act are distinct things and what is necessary is that there must be
a neXus between them. The basis of testing constitutionality, particularly on the ground of
discrimination, should not be made by raising a presumption that the authorities are acting in an
arbitrary manner. No classification can be arbitrary. One of the known concepts of constitutional
interpretation is that the legislature cannot be e Xpected to carve out classification which may be
scientifically perfect or logically complete or which may satisfy the eXpectations of all concerned.
The Courts would respect the classification dictated by the wisdom of the Legislature and shall
interfere only on being convinced that the classification would result in pronounced inequality or
palpable arbitrariness tested on the touchstone of Article 14 of the Constitution. {Ref. Welfare
Association of Allottees of Residential Premises, Maharashtra v. Ranjit P. Gohil [(2003) 9 SCC
358]}.
38. The rule of equality or equal protection does not require that a State must choose between
attacking every aspect of a problem or not attacking the problem at all, and particularly with respect
to social welfare programme. So long as the line drawn, by the State is rationally supportable, the
Courts will not interpose their judgment as to the appropriate stopping point. A statute is not invalid
because it might have gone further than it did, since the legislature need not strike at all evils at the
same time and may address itself to the phase of the problem which seemed most acute to the
legislative mind. A classification based on e Xperience was a reasonable classification, and that it had
a rational neXus to the object thereof and to hold otherwise would be detrimental to the interest of
the service itself. This opinion was taken by this Court in the case of State of UP & Ors. v. J.P.

Chaurasia & Ors. [(1989) 1 SCC 121]. Classification on the basis of educational qualifications made
with a view to achieve administrative efficiency cannot be said to rest on any fortuitous
circumstances and one has always to bear in mind the facts and circumstances of the case in order to
judge the validity of a classification. In the case of State of Jammu & Kashmir v. Sh. Triloki Nath
Khosa & Ors. [(1974) 1 SCC 19], it was noted that intelligible differentia and rational ne Xus are the
twin tests of reasonable classification.
39. If the law deals equally with members of a well defined class, it is not open to the charge of
denial of equal protection. There may be cases where even a single individual may be in a class by
himself on account of some special circumstances or reasons applicable to him and not applicable to
others. Still such law can be constitutional. [Ref. Constutional Law of India by H.M. Seervai (Fourth
Edition) Vol.1]
40. In Maneka Gandhi v. Union of India & Anr. [(1978) 1 SCC 248] and Charanlal Sahu v. Union of
India (supra), the Court has taken the view that when the constitutionality of a law is challenged on
the ground that it infringes a fundamental right, what the Court has to consider is the direct and
inevitable effect of such law. A matter within the legislative competence of the legislature has to be
left to the discretion and wisdom of the framers, so long as it does not infringe any constitutional
provision or violate any fundamental right. The law has to be just, fair and reasonable. Article 14 of
the Constitution does not prohibit the prescription of reasonable rules for selection or of
qualifications for appointment, eXcept, where the classification is on the face of it, unjust.
41. We have noticed the challenge of the petitioner to the constitutionality of Section 12(5) and (6)
and Section 15(5) and (6) of the Act of 2005. The challenge is made to these provisions stating that
the eligibility criteria given therein is vague, does not specify any qualification, and the stated
e X perience has no neXus to the object of the Act. It is also contended that the classification
contemplated under the Act is violative of Article 14 of the Constitution. The petitioner contends
that the legislative power has been eXercised in a manner which is not in consonance with the
constitutional principles and guarantees and provides for no proper consultative process for
appointment. It may be noted that the only distinction between the provisions of Sections 12(5) and
12(6) on the one hand and Sections 15(5) and 15(6) on the other, is that under Section 12, it is the
Central Government who has to make the appointments in consonance with the provisions of the
Act, while under Section 15, it is the State Government which has to discharge similar functions as
per the specified parameters. Thus, discussion on one provision would sufficiently cover the other as
well.
42. Sub-Section (5) of Section 12 concerns itself with the eligibility criteria for appointment to the
post of the Chief Information Commissioner and Information Commissioners to the Central
Information Commission. It states that these authorities shall be persons of eminence in public life
with wide knowledge and eXperience in law, science and technology, social service, management,
journalism, mass media or administration and governance.
43. Correspondingly, Sub-Section (6) of Section 12 states certain disqualifications for appointment
to these posts. If such person is a Member of Parliament or Member of the legislature of any State or

Union Territory or holds any other office of profit or connected with any political party or carrying
on any business or pursuing any profession, he would not be eligible for appointment to these posts.
44. In order to eXamine the constitutionality of these provisions, let us state the parameters which
would finally help the Court in determining such questions.
a) Whether the law under challenge lacks legislative competence?
b) Whether it violates any Article of Part III of the Constitution, particularly, Article 14?
c) Whether the prescribed criteria and classification resulting therefrom is discriminatory, arbitrary
and has no neXus to the object of the Act?
d) Lastly, whether it a legislative e X ercise of power which is not in consonance with the
constitutional guarantees and does not provide adequate guidance to make the law just, fair and
reasonable?
45. As far as the first issue is concerned, it is a commonly conceded case before us that the Act of
2005 does not, in any form, lack the legislative competence. In other words, enacting such a law falls
squarely within the domain of the Indian Parliament and has so been enacted under Entry 97
(residuary powers) of the Union List. Thus, this issue does not require any discussion.
46. To eXamine constitutionality of a statute in its correct perspective, we have to bear in mind
certain fundamental principles as afore-recorded. There is presumption of constitutionality in
favour of legislation. The Legislature has the power to carve out a classification which is based upon
intelligible differentia and has rational neXus to the object of the Act. The burden to prove that the
enacted law offends any of the Articles under Part III of the Constitution is on the one who questions
the constitutionality and shows that despite such presumption in favour of the legislation, it is
unfair, unjust and unreasonable.
47. Another most significant canon of determination of constitutionality is that the courts would be
reluctant to declare a law invalid or ultra vires on account of unconstitutionality. The courts would
accept an interpretation which would be in favour of the constitutionality, than an approach which
would render the law unconstitutional. Declaring the law unconstitutional is one of the last resorts
taken by the courts. The courts would preferably put into service the principle of reading down or
reading into the provision to make it effective, workable and ensure the attainment of the object of
the Act. These are the principles which clearly emerge from the consistent view taken by this court
in its various pronouncements.
48. The provisions of Section 12(5) do not discuss the basic qualification needed, but refer to two
components: (a) persons of eminence in public life; and (b) with wide knowledge and e Xperience in
the fields stated in the provision. The provision, thus, does not suffer from the infirmity of providing
no criteria resulting in the introduction of the element of arbitrariness or discrimination. The
provisions require the persons to be of eminence and with knowledge in the stated fields. Knowledge

and eXperience in these fields normally shall be preceded by a minimum requisite qualification
prescribed in that field. For e X ample, knowledge and e X perience in the field of law would
pre-suppose a person to be a law graduate. Similarly, a person with wide knowledge and e Xperience
in the field of science and technology would invariably be e Xpected to be at least a graduate or
possess basic qualification in science & technology. The vagueness in the e Xpression social service,
mass media or administration and governance does create some doubt. But, certainly, this
vagueness or doubt does not introduce the element of discrimination in the provision. The persons
from these various walks of life are considered eligible for appointment to the post of Chief
Information Commissioner and Information Commissioners in the respective Information
Commissions. This gives a wide zone of consideration and this alleged vagueness can always be
clarified by the appropriate government in e Xercise of its powers under Section 27 and 28 of the Act,
respectively.
Constitutional Validity of Section 12(6)
49. Similarly, as stated above, sub-Section (6) of Section 12 creates in a way a disqualification in
terms thereof. This provision does have an element of uncertainty and indefiniteness. Upon its
proper construction, an issue as to what class of persons are eligible to be appointed to these posts,
would uneXceptionally arise. According to this provision, a person to be appointed to these posts
ought not to have been carrying on any business or pursuing any profession. It is difficult to say
what the person eligible under the provision should be doing and for what period. The section does
not specify any such period. Normally, the persons would fall under one or the other unacceptable
categories. To put it differently, by necessary implication, it e Xcludes practically all classes while not
specifying as to which class of persons is eligible to be appointed to that post. The e Xclusion is too
vague, while inclusion is uncertain. It creates a situation of confusion which could not have been the
intent of law. It is also not clear as to what classification the framers of the Act intended to lay down.
The classification does not appear to have any neXus with the object of the Act. There is no
intelligible differentia to support such classification. Which class is intended to be protected and is
to be made eXclusively eligible for appointment in terms of Sections 12(5) and (6) is something that
is not understandable. Wherever, the Legislature wishes to eXercise its power of classification, there
it has to be a reasonable classification, satisfying the tests discussed above. No Rules have been
brought to our notice which even intend to e Xplain the vagueness and inequality eXplicit in the
language of Section 12(6). According to the petitioner, it tantamounts to an absolute bar because the
legislature cannot be stated to have intended that only the persons who are ideal within the terms of
Sub-section (6) of Section 12, would be eligible to be appointed to the post. If we read the language
of Sections 12(5) and 12(6) together, the provisions under sub- Section (6) appear to be in conflict
with those under sub-Section (5). Sub- Section (5) requires the person to have eminence in public
life and wide knowledge and eXperience in the specified field. On the contrary, sub- Section (6)
requires that the person should not hold any office of profit, be connected with any political party or
carry on any business or pursue any profession. The object of sub-section (5) stands partly
frustrated by the language of sub-Section (6). In other words, sub-section (6) lacks clarity,
reasonable classification and has no neXus to the object of the Act of 2005 and if construed on its
plain language, it would result in defeating the provisions of sub-Section (5) of Section 12 to some
eXtent.

50. The legislature is required to eXercise its power in conformity with the constitutional mandate,
particularly contained in Part III of the Constitution. If the impugned provision denies equality and
the right of equal consideration, without reasonable classification, the courts would be bound to
declare it invalid. Section 12(6) does not speak of the class of eligible persons, but practically debars
all persons from being appointed to the post of Chief Information Commissioner or Information
Commissioners at the Centre and State levels, respectively.
51. It will be difficult for the Court to comprehend as to which class of persons is intended to be
covered under this clause. The rule of disqualification has to be construed strictly. If anyone, who is
an elected representative, in Government service, or one who is holding an office of profit, carrying
on any business or profession, is ineligible in terms of Section 12(6), then the question arises as to
what class of persons would be eligible? The Section is silent on that behalf.
52. The element of arbitrariness and discrimination is evidenced by the language of Section 12(6)
itself, which can be eXamined from another point of view. No period has been stated for which the
person is eXpected to not have carried on any business or pursued any profession. It could be one
day or even years prior to his nomination. It is not clear as to how the persons falling in either of
these classes can be stated to be differently placed. This uncertainty is bound to bring in the element
of discrimination and arbitrariness.
53. Having noticed the presence of the element of discrimination and arbitrariness in the provisions
of Section 12(6) of the Act, we now have to e Xamine whether this Court should declare this provision
ultra vires the Constitution or read it down to give it its possible effect, despite the drawbacks noted
above. We have already noticed that the Court will normally adopt an approach which is tilted in
favour of constitutionality and would prefer reading down the provision, if necessary, by adding
some words rather than declaring it unconstitutional. Thus, we would prefer to interpret the
provisions of Section 12(6) as applicable post-appointment rather than pre-appointment of the Chief
Information Commissioner and Information Commissioners. In other words, these disqualifications
will only come into play once a person is appointed as Chief Information Commissioner/
Information Commissioner at any level and he will cease to hold any office of profit or carry any
business or pursue any profession that he did prior to such appointment. It is thus implicit in this
provision that a person cannot hold any of the posts specified in sub- section (6) of Section 12
simultaneous to his appointment as Chief Information Commissioner or Information
Commissioner. In fact, cessation of his previous appointment, business or profession is a condition
precedent to the commencement of his appointment as Chief Information Commissioner or
Information Commissioner.
Constitutional Validity of Section 12(5)
54. The Act of 2005 was enacted to harmonise the conflicting interests while preserving the
paramountcy of the democratic ideal and provide for furnishing of certain information to the
citizens who desire to have it. The basic purpose of the Act is to set up a practical regime of right to
information for the citizens to secure and access information under the control of the public
authorities. The intention is to provide and promote transparency and accountability in the

functioning of the authorities. This right of the public to be informed of the various aspects of
governance by the State is a pre-requisite of the democratic value. The right to privacy too, is to be
protected as both these rival interests find their origin under Article 19(1)(a) of the Constitution.
This brings in the need for an effective adjudicatory process. The authority or tribunals are assigned
the responsibility of determining the rival contentions and drawing a balance between the two
conflicting interests. That is where the scheme, purpose and the object of the Act of 2005 attain
greater significance.
55. In order to eXamine whether Section 12(5) of the Act suffers from the vice of discrimination or
inequality, we may discuss the adjudicatory functions of the authorities under the Act in the
backdrop of the scheme of the Act of 2005, as discussed above. The authorities who have to perform
adjudicatory functions of quasi-judicial content are:-
1. The Central/State Public Information Officer;
2. Officers senior in rank to the Central/State Public Information Officer to whom an

appeal would lie under Section 19(1) of the Act; and
3. The Information Commission (Central/State) consisting of Chief Information

Commissioner and Information Commissioners.
56. In terms of Section 12(5), the Chief Information Commissioner and Information Commissioners
should be the persons of eminence in public life with wide knowledge in the prescribed fields. We
have already indicated that the terminology used by the legislature, such as mass-media or
administration and governance, are terms of uncertain tenor and amplitude. It is somewhat difficult
to state with eXactitude as to what class of persons would be eligible under these categories.
57. The legislature in its wisdom has chosen not to provide any specific qualification, but has
primarily prescribed wide knowledge and eXperience in the cited subjects as the criteria for
selection. It is not for the courts to spell out what ought to be the qualifications or e Xperience for
appointment to a particular post. Suffices it to say, that if the legislature itself provides knowledge
and eXperience as the basic criteria of eligibility for appointment, this per se, would not attract the
rigors of Article 14 of the Constitution. On a reasonable and purposive interpretation, it will be
appropriate to interpret and read into Section 12(5) that the knowledge and eXperience in a
particular subject would be deemed to include the basic qualification in that subject. We would
prefer such an approach than to hold it to be violative of Article 14 of the Constitution. Section 12(5)
has inbuilt guidelines to the effect that knowledge and e Xperience, being two distinct concepts,
should be construed in their correct perspective. This would include the basic qualification as well as
an eXperience in the respective field, both being the pre- requisites for this section. Ambiguity, if
any, resulting from the language of the provision is insignificant, being merely linguistic in nature
and, as already noticed, the same is capable of being clarified by framing appropriate rules in
eXercise of powers of the Central Government under Section 27 of the Act of 2005. We are unable to
find that the provisions of Section 12(5) suffer from the vice of arbitrariness or discrimination.
However, without hesitation, we would hasten to add that certain requirements of law and

procedure would have to be read into this provision to sustain its constitutionality.
58. It is a settled principle of law, as stated earlier, that courts would generally adopt an
interpretation which is favourable to and tilts towards the constitutionality of a statute, with the aid
of the principles like reading into and/or reading down the relevant provisions, as opposed to
declaring a provision unconstitutional. The courts can also bridge the gaps that have been left by the
legislature inadvertently. We are of the considered view that both these principles have to be applied
while interpreting Section 12(5). It is the application of these principles that would render the
provision constitutional and not opposed to the doctrine of equality. Rather the application of the
provision would become more effective.
59. Certainty to vague eXpressions, like social service and mass media, can be provided under the
provisions which are capable of being e Xplained by framing of proper rules or even by way of judicial
pronouncements. In order to eXamine the scope of this provision and its ramifications on the other
parts of the Act of 2005, it is important to refer back to the scheme of the Act. Under the provisions
of the Act, particularly, Sections 4, 12, 18, 19, 20, 22, 23 and 25, it is clear that the Central or State
Information Commission, as the case may be, not only e Xercises adjudicatory powers of a nature no
different than a judicial tribunal but is vested with the powers of a civil court as well. Therefore, it is
required to decide a lis, where information is required by a person and its furnishing is contested by
the other. The Commission eXercises two kinds of penal powers: firstly, in terms of Section 20(1), it
can impose penalty upon the defaulters or violators of the provisions of the Act and, secondly,
Section 20(2) empowers the Central and the State Information Commission to conduct an enquiry
and direct the concerned disciplinary authority to take appropriate action against the erring officer
in accordance with law. Hence, the Commission has powers to pass orders having civil as well as
penal consequences. Besides this, the Commission has been given monitoring and recommendatory
powers. In terms of Section 23, the jurisdiction of Civil Courts has been eXpressly barred.
60. Now, let us take an overview of the nature and content of the disputes arising before such
Commission. Before the Public Information Officers, the controversy may fall within a narrow
compass. But the question before the First Appellate Authority and particularly, the Information
Commissioners (Members of the Commission) are of a very vital nature. The impact of such
adjudication, instead of being tilted towards administrative adjudication is specifically oriented and
akin to the judicial determinative process. Application of mind and passing of reasoned orders are
inbuilt into the scheme of the Act of 2005. In fact, the provisions of the Act are specific in that
regard. While applying its mind, it has to dwell upon the issues of legal essence and effect. Besides
resolving and balancing the conflict between the right to privacy and right to information, the
Commission has to specifically determine and return a finding as to whether the case falls under any
of the eXceptions under Section 8 or relates to any of the organizations specified in the Second
Schedule, to which the Act does not apply in terms of Section 24. Another significant adjudicatory
function to be performed by the Commission is where interest of a third party is involved. The
legislative intent in this regard is demonstrated by the language of Section 11 of the Act of 2005. A
third party is not only entitled to a notice, but is also entitled to hearing with a specific right to raise
objections in relation to the disclosure of information. Such functions, by no stretch of imagination,
can be termed as administrative decision but are clearly in the domain of judicial determination in

accordance with the rule of law and provisions of the Act. Before we proceed to discuss this aspect in
any further elaboration, let us e X amine the status of such Tribunal/Commissions and their
functions.
B) TRIBUNAL/COMMISSIONS AND THEIR FUNCTIONS :
61. Before dwelling upon determination of nature of Tribunals in India, it is worthwhile to take a
brief account of the scenario prevalent in some other jurisdictions of the world.
62. In United Kingdom, efforts have been made for improvising the system for administration of
justice. The United Kingdom has a growing human rights jurisprudence, following the enactment of
the Human Rights Act, 1998, and it has a well-established ombudsman system. The Tribunals have
been constituted to provide specialised adjudication, alongside the courts, to the citizens dissatisfied
from the directives made by the Information Commissioners under either of these statutes. The
Tribunals, important cogs in the machinery of administration of justice, have recently undergone
some major reforms. A serious controversy was raised whether the functioning of these Tribunals
was more akin to the Government functioning or were they a part of the Court-attached system of
administration of justice. The Donoughmore Committee had used the term ministerial tribunals,
and had regarded them as part of the machinery of administration. The Franks Report saw their role
quite differently:
Tribunals are not ordinary courts, but neither are they appendages of Government
Departments. Much of the official evidence appeared to reflect the view that tribunals
should properly be regarded as part of the machinery of administration, for which the
Government must retain a close and continuing responsibility. Thus, for e Xample,
tribunals in the social services field would be regarded as adjuncts to the
administration of the services themselves. We do not accept this view. We consider
that tribunals should properly be regarded as machinery provided by Parliament for
adjudication rather than as part of the machinery of administration. The essential
point is that in all these cases Parliament has deliberately provided for a decision
outside and independent of the Department concerned, either at first instance. or on
appeal from a decision of a Minister or of an official in a special statutory
position.Although the relevant statutes do not in all cases eXpressly enact that
tribunals are to consist entirely of persons outside the Government service, the use of
the term tribunal in legislation undoubtedly bears this connotation, and the intention
of the Parliament to provide for the independence of tribunals is clear and
unmistakable.
63. Franks recommended that tribunal chairmen should be legally qualified. This was implemented
in respect of some categories of tribunal, but not others. But one of the most interesting issues
arising from the Franks eXercise is the eXtent to which the identification of tribunals as part of the
machinery of adjudication led the Committee, in making its specific recommendations, down the
road of increased legal formality and judicialisation. (Refer : The Judicialisation of Administrative
Tribunals in the UK : from Hewart to Leggatt by Gavin Drewry).

64. In the United Kingdom, the Tribunals, Courts and Enforcement Act, 2007 (for short, the TCEA)
eXplicitly confirmed the status of Tribunal Judges (as the legally qualified members of the Tribunals
are now called) as part of the independent judicial system, eXtending to them the same guarantees
of independence as apply to the judges in the ordinary courts.
65. From the analysis of the above system of administrative justice prevalent in United Kingdom, a
very subtle and clear distinction from other laws is noticeable in as much as the sensitive personal
data and right of privacy of an individual is assured a greater protection and any request for access
to such information firstly, is subject to the provisions of the Act and secondly, the members of the
Tribunals, who hear the appeals from a rejection of request for information by the Information
Commissioners under the provisions of either of these Acts, include persons qualified judicially and
having requisite eXperience as Judges in the regular courts.
66. In United States of America, the statute governing the subject is Freedom of Information Act,
1966 (for short, the FOIA). This statute requires each agency to furnish the requisite information to
the person demanding such information, subject to the limitations and provisions of the Act. Each
agency is required to frame rules. A complainant dissatisfied from non-furnishing of the information
can approach the district courts of the United States in the district in which the complainant resides
or the place in which the agency records are situated. Such complaints are to be dealt with as per the
procedure prescribed and within the time specified under the Act.
67. In New South Wales, under the Privacy and Government Information Legislation Amendment
Bill, 2010, amendments were made to both, the Government Information (Public Access) Act, 2009
and the Personal and Privacy Information Act, 1998, to bring the Information Commissioner and
the Privacy Commissioner together within a single office. This led to the establishment of the
Information and Privacy Commission.
68. On somewhat similar lines is the law prevalent in some other jurisdictions including Australia
and Germany, where there e Xists a unified office of Information and Privacy Commissioner. In
Australia, the Privacy Commissioner was integrated into the office of the Australian Information
Commissioner in the year 2010.
69. In most of the international jurisdictions, the Commission or the Tribunals have been treated to
be part of the court attached system of administration of justice and as said by the Donoughmore
Committee, the ministerial tribunals were different and they were regarded as part of machinery of
the administration. The persons appointed to these Commissions were persons of legal background
having legally trained mind and judicial eXperience.
a) NATURE OF FUNCTION
70. The Information Commission, as a body, performs functions of wide magnitude, through its
members, including adjudicatory, supervisory as well as penal functions. Access to information is a
statutory right. This right, as indicated above, is subject to certain constitutional and statutory
limitations. The Act of 2005 itself spells out eXempted information as well as the areas where the Act

would be inoperative. The Central and State Information Commissioners have been vested with the
power to decline furnishing of an information under certain circumstances and in the specified
situations. For disclosure of Information, which involves the question of prejudice to a third party,
the concerned authority is required to issue notice to the third party who can make a representation
and such representation is to be dealt with in accordance with the provisions of the Act of 2005. This
position of law in India is in clear contrast to the law prevailing in some other countries where
information involving a third party cannot be disclosed without consent of that party. However, the
authority can direct such disclosure, for reasons to be recorded, stating that the public interest
outweighs the private interest. Thus, it involves an adjudicatory process where parties are required
to be heard, appropriate directions are to be issued, the orders are required to be passed upon due
application of mind and for valid reasons. The e Xercise of powers and passing of the orders by the
authorities concerned under the provisions of the Act of 2005 cannot be arbitrary. It has to be in
consonance with the principles of natural justice and the procedure evolved by such authority.
Natural justice has three indispensable facets, i.e., grant of notice, grant of hearing and passing of
reasoned orders. It cannot be disputed that the authorities under the Act of 2005 and the Tribunals
are discharging quasi-judicial functions.
71. In the case of Indian National Congress (I) v. Institute of Social Welfare & Ors. [(2002) 5 SCC
685], the Court eXplained that where there are two or more parties contesting each others claim and
the statutory authority is required to adjudicate the rival claims between the parties, such a
statutory authority can be held to be quasi-judicial and the decision rendered by it as a quasi judicial
order. Thus, where there is a lis between the two contesting parties and the statutory authority is
required to decide such a dispute, in absence of any other attributes of a quasi-judicial authority,
such a statutory authority is a quasi-judicial authority. The legal principles which emerge from the
various judgments laying down when an act of a statutory authority would be a quasi-judicial act are
that where (a) a statutory authority empowered under a statute to do any act (b) which would
prejudicially affect the subject (c) although there is no lis or two contending parties and the contest
is between the authority and the subject and (d) the statutory authority is required to act judicially
under the statute, the decision of the said authority is quasi-judicial.
72. In other words, an authority is described as quasi judicial when it has some attributes or
trappings of judicial provisions but not all. In the matter before us, there is a lis. The request of a
party seeking information is allowed or disallowed by the authorities below and is contested by both
parties before the Commission. There may also be cases where a third party is prejudicially affected
by disclosure of the information requested for. It is clear that the concerned authorities particularly
the Information Commission, possess the essential attributes and trappings of a Court. Its powers
and functions, as defined under the Act of 2005 also sufficiently indicate that it has adjudicatory
powers quite akin to the Court system. They adjudicate matters of serious consequences. The
Commission may be called upon to decide how far the right to information is affected where
information sought for is denied or whether the information asked for is eXempted or impinges
upon the right to privacy or where it falls in the no go area of applicability of the Act. It is not
mandatory for the authorities to allow all requests for information in a routine manner. The Act of
2005 imposes an obligation upon the authorities to eXamine each matter seriously being fully
cautious of its consequences and effects on the rights of others. It may be a simple query for

information but can have far reaching consequences upon the right of a third party or an individual
with regard to whom such information is sought. Undue inroad into the right to privacy of an
individual which is protected under Article 21 of the Constitution of India or any other law in force
would not be permissible. In Gobind v. State of Madhya Pradesh & Anr. [(1975) 2 SCC 148] this
Court held that privacy- dignity claims deserve to be e Xamined with care and to be denied only when
an important countervailing interest is shown to be superior. In Ram Jethmalani & Ors. v. Union of
India [(2011) 8 SCC 1] this Court has observed that the right to privacy is an integral part of the right
to life. Thus, the decision making process by these authorities is not merely of an administrative
nature. The functions of these authorities are more aligned towards the judicial functions of the
courts rather than mere administrative acts of the State authority.
73. Quasi judicial is a term which may not always be used with utmost clarity and precision. An
authority which eXercises judicial functions or functions analogous to the judicial authorities would
normally be termed as quasi-judicial. In the Advanced Law Le X icon (3rd Edn., 2005) by P.
Ramanathan Aiyar, the eXpression quasi judicial is eXplained as under :
Of, relating to, or involving an e Xecutive or administrative officials adjudicative acts.

Quasi-judicial acts, which are valid if there is no abuse of discretion, often determine
the fundamental rights of citizens. They are subject to review by Courts. (Blacm, 7th
Edn., 1999) Quasi-judicial is a term that is . Not easily definable. In the United States,
the phrase often covers judicial decisions taken by an administrative agency the test
is the nature of the tribunal rather than what it is doing. In England quasi- judicial
belongs to the administrative category and is used to cover situations where the
administrator is bound by the law to observe certain forms and possibly hold a public
hearing but where he is a free agent in reaching the final decision. If the rules are
broken, the determination may be set aside, but it is not sufficient to show that the
administration is biased in favour of a certain policy, or that the evidence points to a
different conclusion.. (George Whitecross Paton, A Te Xtbook of Jurisprudence 336
(G.W. Paton & Davit P Derham eds., 4th ed.
Describing a function that resembles the judicial function in that it involves deciding
a dispute and ascertaining the facts and any relevant law, but differs in that it
depends ultimately on the e X ercise of an e X ecutive discretion rather than the
application of law (OXford Law Dictionary 5th Edn. 2003) When the law commits to
an officer the duty of looking into certain facts not in a way which it specially directs,
but after a discretion in its nature judicial, the function is quasi judicial.
Of or relating to the adjudicative acts of an eXecutive or administrative officials.
Sharing the qualities of and approXimating to what is judicial; essentially judicial in

character but not within the judicial power or function nor belonging to the judiciary
as constitutionally defined. [S.128(2)(i), C.P.C. (5 of 1908)].

74. This Court in the case of State of Himachal Pradesh & Ors. v. Raja Mahendra Pal & Anr. [1995
Supp (2) SCC 731], held that the e Xpression quasi judicial has been termed to be one which stands
midway a judicial and an administrative function. If the authority has any e Xpress statutory duty to
act judicially in arriving at the decision in question, it would be deemed to be quasi-judicial. Where
the function to determine a dispute is e Xercised by virtue of an eXecutive discretion rather than the
application of law, it is a quasi-judicial function. A quasi-judicial act requires that a decision is to be
given not arbitrarily or in mere discretion of the authority but according to the facts and
circumstances of the case as determined upon an enquiry held by the authority after giving an
opportunity to the affected parties of being heard or wherever necessary of leading evidence in
support of their contention. The authority and the Tribunal constituted under the provisions of the
Act of 2005 are certainly quasi-judicial authority/tribunal performing judicial functions.
75. Under the scheme of the Act of 2005, in terms of Section 5, every public authority, both in the
State and the Centre, is required to nominate Public Information Officers to effectuate and make the
right to information a more effective right by furnishing the information asked for under this Act.
The Information Officer can even refuse to provide such information, which order is appealable
under Section 19(1) to the nominated senior officer, who is required to hear the parties and decide
the matter in accordance with law. This is a first appeal. Against the order of this appellate
authority, a second appeal lies with the Central Information Commission or the State Information
Commission, as the case may be, in terms of Section 19(3) of the Act of 2005. The Legislature, in its
wisdom, has provided for two appeals. Higher the adjudicatory forum, greater is the requirement of
adherence to the rule of judiciousness, fairness and to act in accordance with the procedure
prescribed and in absence of any such prescribed procedure, to act in consonance with the
principles of natural justice. Higher also is the public e X pectation from such tribunal. The
adjudicatory functions performed by these bodies are of a serious nature. An order passed by the
Commission is final and binding and can only be questioned before the High Court or the Supreme
Court in eXercise of the Courts jurisdiction under Article 226 and/or Article 32 of the Constitution,
respectively.
76. If one analyses the scheme of the Act of 2005 and the multi-farious functions that the
Information Commission is eXpected to discharge in its functioning, following features become
evident :
1. It has a lis pending before it which it decides. Lis, as per Blacks Law Dictionary (8th Edition)
means a piece of litigation; a controversy or a dispute. One party asserting the right to a particular
information, the other party denying the same or even contesting that it was invasion into his
protected right gives rise to a lis which has to be adjudicated by the Commission in accordance with
law and, thus, cannot be termed as administrative function simpliciter. It, therefore, becomes
evident that the appellate authority and the Commission deal with lis in the sense it is understood in
the legal parlance.
2. It performs adjudicatory functions and is required to grant opportunity of hearing to the affected
party and to record reasons for its orders. The orders of the Public Information Officer are
appealable to first appellate authority and those of the First Appellate Authority are appealable to

the Information Commission, which are then open to challenge before the Supreme Court or the
High Court in eXercise of its eXtraordinary power of judicial review.
3. It is an adjudicatory process not akin to administrative determination of disputes but similar in

nature to the judicial process of determination. The concerned authority is e Xpected to decide not
only whether the case was covered under any of the e Xceptions or related to any of the organizations
to which the Act of 2005 does not apply, but even to determine, by applying the legal and
constitutional provisions, whether the e Xercise of the right to information amounted to invasion into
the right to privacy. This being a very fine distinction of law, application of legal principles in such
cases becomes very significant.
4. The concerned authority eXercises penal powers and can impose penalty upon the defaulters as
contemplated under Section 20 of the Act of 2005. It has to perform investigative and supervisory
functions. It is eXpected to act in consonance with the principles of natural justice as well as those
applicable to service law jurisprudence, before it can make a report and recommend disciplinary
action against the defaulters, including the persons in service in terms of Section 20(2).
5. The functioning of the Commission is quite in line with the functioning of the civil courts and it
has even eXpressly been vested with limited powers of the civil Court. E Xercise of these powers and
discharge of the functions discussed above not only gives a colour of judicial and/or quasi-judicial
functioning to these authorities but also vests the Commission with the essential trappings of a civil
Court.
77. Let us now eXamine some other pre-requisites of vital significance in the functioning of the
Commission. In terms of Section 22 of this Act, the provisions of the Act are to be given effect to,
notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 and any
other law for the time being in force or in any instrument having effect by virtue of any law other
than this Act. This Act is, therefore, to prevail over the specified Acts and even instruments. The
same, however, is only to the eXtent of any inconsistency between the two. Thus, where the
provisions of any other law can be applied harmoniously, without any conflict, the question of
repugnancy would not arise.
78. Further, Section 23 is a provision relating to e Xclusion of jurisdiction of the Courts. In terms of
this Section, no Court shall entertain any suit, application or other proceedings in respect of any
order made under this Act and no such order shall be called in question otherwise than by way of an
appeal provided for under this Act. In other words, the jurisdiction of the Court has been ousted by
eXpress language. Nevertheless, it is a settled principle of law that despite such e Xcluding provision,
the eXtraordinary jurisdiction of the High Court and the Supreme Court, in terms of Articles 226 and
32 of the Constitution, respectively, cannot be divested. It is a jurisdiction incapable of being eroded
or taken away by eXercise of legislative power, being an important facet of the basic structure of the
Constitution. In the case of L. Chandra Kumar (supra), the Court observed that the constitutional
safeguards which ensure independence of the Judges of the superior judiciary not being available for
the Members of the Tribunal, such tribunals cannot be considered full and effective substitute to the
superior judiciary in discharging the function of constitutional interpretation. They can, however,

perform a supplemental role. Thus, all decisions of the Tribunals were held to be subject to scrutiny
before the High Court under Article 226/227 of the Constitution. Therefore, the orders passed by
the authority, i.e., the Central or the State Information Commissions under the Act of 2005 would
undoubtedly be subject to judicial review of the High Court under Article 226/227 of the
Constitution.
79. Section 24 of the Act of 2005 empowers the Central Government to make amendments to the
Second Schedule specifying such organization established by the Government to which the Act of
2005 would not apply. The appropriate Government [as defined in Section 2(a)] and the competent
authority [as defined in Section 2(e)] have the power to frame rules for the purposes stated under
Sections 27 and 28 of the Act of 2005. This eXercise is primarily to carry out the provisions of the
Act of 2005.
80. Once it is held that the Information Commission is essentially quasi- judicial in nature, the Chief
information Commissioner and members of the Commission should be the persons possessing
requisite qualification and eXperience in the field of law and/or other specified fields. We have
discussed in some detail the requirement of a judicial mind for effectively performing the functions
and eXercising the powers of the Information Commission. In the case of Bharat Bank Ltd., Delhi v.
Employees of Bharat Bank & Ors. [1950 SCR 459 : AIR 1950 SC 188], this Court took the view that
the functions and duties of the Industrial Tribunal are very much like those of a body discharging
judicial functions, although it is not a court in the technical sense of the word. In S.P. Sampath
Kumar v. Union of India [(1987) 1 SCC 124], again this Court held that in the case of Administrative
Tribunals, the presence of a Judicial member was the requirement of fair procedure of law and the
Administrative Tribunal must be so manned as to inspire confidence in the public mind that it is a
highly competent and eXpert mechanism with judicial approach and objectivity. It was also observed
that we have, in our country, brilliant civil servants who possess tremendous sincerity, drive and
initiative and who have remarkable capacity to resolve and overcome administrative problems of
great compleXity. But what is needed in a judicial tribunal which is intended to supplant the High
Court is legal training and eXperience. Similar view was also eXpressed in the case of Union of India
v. Madras Bar Association [(2010) 11 SCC 1].
81. Further, in the case of L. Chandra Kumar (supra) where this Court was concerned with the
orders and functioning of the Central Administrative Tribunal and scope of its judicial review, while
holding that the jurisdiction of the High Court under Article 226 of the Constitution was open and
could not be eXcluded, the Court specifically emphasised on the need for a legally trained mind and
eXperience in law for the proper functioning of the tribunal. The Court held as under :
88. Functioning of Tribunals XXX XXX XXX 8.65 A Tribunal which substitutes the
High Court as an alternative institutional mechanism for judicial review must be no
less efficacious than the High Court. Such a tribunal must inspire confidence and
public esteem that it is a highly competent and eXpert mechanism with judicial
approach and objectivity. What is needed in a tribunal, which is intended to supplant
the High Court, is legal training and eXperience, and judicial acumen, equipment and
approach. When such a tribunal is composed of personnel drawn from the judiciary

as well as from services or from amongst e Xperts in the field, any weightage in favour
of the service members or eXpert members and value- discounting the judicial
members would render the tribunal less effective and efficacious than the High
Court. The Act setting up such a tribunal would itself have to be declared as void
under such circumstances. The same would not at all be conducive to judicial
independence and may even tend, directly or indirectly, to influence their
decision-making process, especially when the Government is a litigant in most of the
cases coming before such tribunal. (See S.P. Sampath Kumar v. Union of India.) The
protagonists of specialist tribunals, who simultaneously with their establishment
want eXclusion of the writ jurisdiction of the High Courts in regard to matters
entrusted for adjudication to such tribunals, ought not to overlook these vital and
important aspects. It must not be forgotten that what is permissible to be supplanted
by another equally effective and efficacious institutional mechanism is the High
Courts and not the judicial review itself. Tribunals are not an end in themselves but a
means to an end; even if the laudable objectives of speedy justice, uniformity of
approach, predictability of decisions and specialist justice are to be achieved, the
framework of the tribunal intended to be set up to attain them must still retain its
basic judicial character and inspire public confidence. Any scheme of decentralisation
of administration of justice providing for an alternative institutional mechanism in
substitution of the High Courts must pass the aforesaid test in order to be
constitutionally valid.
82. In India, the Central or the State Information Commission, as the case may be, is vested with
dual jurisdiction. It is the appellate authority against the orders passed by the first appellate
authority, the Information Officer, in terms of Section 19(1) of the Act of 2005, while additionally it
is also a supervisory and investigative authority in terms of Section 18 of the Act wherein it is
empowered to hear complaints by any person against the inaction, delayed action or other grounds
specified under Section 18(1) against any State and Central Public Information Officer. This inquiry
is to be conducted in accordance with the prescribed procedure and by eXercising the powers
conferred on it under Section 18(3). It has to record its satisfaction that there e Xist reasonable
grounds to enquire into the matter.
83. Section 20 is the penal provision. It empowers the Central or the State Information Commission
to impose penalty as well as to recommend disciplinary action against such Public Information
Officers who, in its opinion, have committed any acts or omissions specified in this section, without
any reasonable cause. The above provisions demonstrate that the functioning of the Commission is
not administrative simpliciter but is quasi-judicial in nature. It eXercises powers and functions
which are adjudicatory in character and legal in nature. Thus, the requirement of law, legal
procedures, and the protections would apparently be essential. The finest e Xercise of quasi-judicial
discretion by the Commission is to ensure and effectuate the right of information recognized under
Article 19 of the Constitution vis-a-vis the protections enshrined under Article 21 of the
Constitution.

84. The Information Commission has the power to deal with the appeals from the First Appellate
Authority and, thus, it has to e Xamine whether the order of the appellate authority and even the
Public Information Officer is in consonance with the provisions of the Act of 2005 and limitations
imposed by the Constitution. In this background, no Court can have any hesitation in holding that
the Information Commission is akin to a Tribunal having the trappings of a civil Court and is
performing quasi-judicial functions.
85. The various provisions of this Act are clear indicators to the unquestionable proposition of law
that the Commission is a judicial tribunal and not a ministerial tribunal. It is an important cog in
and is part of court attached system of administration of justice unlike a ministerial tribunal which
is more influenced and controlled and performs functions akin to machinery of administration.
b) REQUIREMENT OF LEGAL MIND
86. Now, it will be necessary for us to dwell upon somewhat controversial but an aspect of greater
significance as to who and by whom such adjudicatory machinery, at its various stages under the
provisions of the Act of 2005 particularly in the Indian conteXt, should be manned.
87. Section 5 of the Act of 2005 makes it obligatory upon every public authority to designate as
many officers, as Central Public Information Officers and State Information Public Officers in all
administrative units or offices, as may be necessary to provide information to the persons requesting
information under the Act of 2005. Further, the authority is required to designate Central Assistant
Public Information Officer and State Assistant Public Information Officer at the sub-divisional or
sub- district level. The Assistant Public Information Officers are to perform dual functions (1) to
receive the applications for information; and (2) to receive appeals under the Act. The applications
for information are to be forwarded to the concerned Information Officer and the appeals are to be
forwarded to the Central Information Commission or the State Information Commission, as the case
may be. It was contemplated that these officers would be designated at all the said levels within
hundred days of the enactment of the Act. There is no provision under the Act of 2005 which
prescribes the qualification or eXperience that the Information Officers are required to possess. In
fact, the language of the Section itself makes it clear that any officer can be designated as Central
Public Information Officer or State Public Information Officer. Thus, no specific requirement is
mandated for designating an officer at the sub-divisional or sub- district level. The appeals, under
Section 19(1) of the Act, against the order of the Public Information Officer are to be preferred
before an Officer senior in the rank to the Public Information Officer. However, under Section 19(3),
a further appeal lies to the Central or the State Information Commission, as the case may be, against
the orders of the Central or State Appellate Officer. These officers are required to dispose of such
application or appeal within the time schedule specified under the provisions of the Act. There is
also no qualification or eXperience required of these designated officers to whom the first appeal
would lie. However, in contradistinction, Section 12(5) and Section 15(5) provide for the e Xperience
and knowledge that the Chief Information Commissioner and the Information Commissioners at the
Centre and the State levels, respectively, are required to possess. This provision is obviously
mandatory in nature.

88. As already noticed, in terms of Section 12(5), the Chief Information Commissioner and
Information Commissioners are required to be persons of eminence in public life with wide
knowledge and eXperience in law, science and technology or any of the other specified fields.
Further, Sub-Section (6) of Sections 12 and 15 lays down the disqualifications for being nominated
as such. It is provided that the Chief Information Commissioner or Information Commissioners
shall not be a Member of Parliament or Member of the Legislative Assembly of any State or Union
Territory or hold any other office of profit or connected with any political party or carrying on any
business or pursuing any profession.
89. The requirement of legal person in a quasi-judicial body has been internationally recognized. We
have already referred, amongst others, to the relevant provisions of the respective Information Acts
of the USA, UK and Canada. Even in the Canadian Human Rights Tribunal, under the Canadian
Human Rights Act, the Vice-Chairman and Members of the Tribunal are required to have a degree
in law from a recognized university and be the member of the bar of a province or a Chamber des
notaires du Quebec for at least 10 years. Along with this qualification, such person needs to have
general knowledge of human rights law as well as public law including Administrative and
Constitutional Laws. The Information Commissioner under the Canadian Law has to be appointed
by the Governor in Council after consultation with the leader of every recognized party in the Senate
and the House of Commons. Approval of such appointment is done by resolution of the Senate and
the House of Commons. It is noted that the Vice- Chairperson plays a pre-eminent role within this
Administrative Tribunal by ensuring a fair, timely and impartial adjudication process for human
rights complaints, for the benefit of all concerned.
90. As already noticed, in the United Kingdom, the Information Rights Tribunal and the
Information Commissioners are to deal with the matters arising from both, the FOIA as well as the
Data Protection Act, 1998. These tribunals are discharging quasi-judicial functions. Appointments
to them are dealt with and controlled by the TCEA. These appointments are treated as judicial
appointments and are covered under Part 2 of the TCEA. Section 50 provides for the eligibility
conditions for judicial appointment. Section 50(1)(b) refers to a person who satisfies the
judicial-appointment eligibility condition on an N-year basis. A person satisfies that condition on N-
year basis if (a) the person has a relevant qualification and (b) the total length of the persons
qualifying periods is at least N years. Section 52 provides for the meaning of the e Xpression gain
eXperience in law appearing in Section 50(3)(b). It states that a person gains e Xperience in law
during a period if the period is one during which the person is engaged in law-related activities. The
essence of these statutory provisions is that the concerned person under that law is required to
possess both a degree as well as e Xperience in the legal field. Such e Xperience inevitably relates to
working in that field. Only then, the twin criteria of requisite qualification and e Xperience can be
satisfied.
91. It may be of some relevance here to note that in UK, the Director in the office of the Government
Information Service, an authority created under the Freedom of Information Act, 2000 possesses a
degree of law and has been a member of the Bar of the District of Columbia and North Carolina in
UK. The Principal Judge of Information Rights Jurisdiction in the First- tier Tribunal, not only had
a law degree but were also retired solicitors or barristers in private practice.

92. Thus, there eXists a definite requirement for appointing persons to these posts with legal
background and acumen so as to ensure complete faith and confidence of the public in the
independent functioning of the Information Commission and for fair and e Xpeditious performance
of its functions. The Information Commissions are required to discharge their functions and duties
strictly in accordance with law.
93. In India, in terms of sub-Section (5), besides being a person of eminence in public life, the
necessary qualification required for appointment as Chief Information Commissioner or
Information Commissioner is that the person should have wide knowledge and e Xperience in law
and other specified fields. The term e Xperience in law is an eXpression of wide connotation. It pre-
supposes that a person should have the requisite qualification in law as well as e Xperience in the
field of law. However, it is worthwhile to note that having a qualification in law is not equivalent to
having eXperience in law and vice-versa. E Xperience in law, thus, is an e Xpression of composite
content and would take within its ambit both the requisite qualification in law as well as e Xperience
in the field of law. A person may have some eXperience in the field of law without possessing the
requisite qualification. That certainly would not serve the requirement and purpose of the Act of
2005, keeping in view the nature of the functions and duties required to be performed by the
Information Commissioners. EXperience in absence of basic qualification would certainly be
insufficient in its content and would not satisfy the requirements of the said provision. Wide
knowledge in a particular field would, by necessary implication, refer to the knowledge relatable to
education in such field whereas eXperience would necessarily relate to the eXperience attained by
doing work in such field. Both must be read together in order to satisfy the requirements of Sections
12(5) of and 15(5) the Act of 2005. Similarly, wide knowledge and e Xperience in other fields would
have to be construed as eXperience coupled with basic educational qualification in that field.
94. Primarily it may depend upon the language of the rules which govern the service but it can safely
be stated as a rule that eXperience in a given post or field may not necessarily satisfy the condition of
prescribed qualification of a diploma or a degree in such field. E Xperience by working in a post or by
practice in the respective field even for long time cannot be equated with the basic or the prescribed
qualification. In absence of a specific language of the provision, it is not feasible for a person to have
e X perience in the field of law without possessing a degree in law. In somewhat different
circumstances, this Court in the case of State of Madhya Pradesh v. Dharam Bir [(1998) 6 SCC 165],
while dealing with Rule 8(2) of the Madhya Pradesh Industrial Training (Gazetted) Service
Recruitment Rules, 1985, took the view that the stated qualification for the post of Principal Class I
or Principal Class II were also applicable to appointment by promotion and that the applicability of
such qualification is not restricted to direct appointments. Before a person becomes eligible for
being promoted to the post of Principal, Class II or Principal, Class-I, he must possess a Degree or
Diploma in Engineering, as specified in the Schedule. The fact that the person had worked as a
Principal for a decade would not lead to a situation of accepting that the person was qualified to hold
the post. The Court held as under :
32. EXperience gained by the respondent on account of his working on the post in
question for over a decade cannot be equated with educational qualifications required
to be possessed by a candidate as a condition of eligibility for promotion to higher

posts. If the Government, in eXercise of its eXecutive power, has created certain posts,
it is for it to prescribe the mode of appointment or the qualifications which have to be
possessed by the candidates before they are appointed on those posts. The
qualifications would naturally vary with the nature of posts or the service created by
the Government.
33. The post in question is the post of Principal of the Industrial Training Institute.
The Government has prescribed a Degree or Diploma in Engineering as the essential
qualification for this post. No one who does not possess this qualification can be
appointed on this post. The educational qualification has a direct ne Xus with the
nature of the post. The Principal may also have an occasion to take classes and teach
the students. A person who does not hold either a Degree or Diploma in Engineering
cannot possibly teach the students of the Industrial Training Institute the
technicalities of the subject of Engineering and its various branches.
95. Thus, in our opinion, it is clear that eXperience in the respective field referred to in Section 12(5)
of the Act of 2005 would be an e X perience gained by the person upon possessing the basic
qualification in that field. Of course, the matter may be somewhat different where the field itself
does not prescribe any degree or appropriate course. But it would be applicable for the fields like
law, engineering, science and technology, management, social service and journalism, etc.
96. This takes us to discuss the kind of duties and responsibilities that such high post is e Xpected to
perform. Their functions are adjudicatory in nature. They are required to give notice to the parties,
offer them the opportunity of hearing and pass reasoned orders. The orders of the appellate
authority and the Commission have to be supported by adequate reasoning as they grant relief to
one party, despite opposition by the other or reject the request for information made in e Xercise of a
statutory right.
97. It is not only appropriate but is a solemn duty of every adjudicatory body, including the
tribunals, to state the reasons in support of its decisions. Reasoning is the soul of a judgment and
embodies one of the three pillars on which the very foundation of natural justice jurisprudence rests.
It is informative to the claimant of the basis for rejection of his claim, as well as provides the
grounds for challenging the order before the higher authority/constitutional court. The reasons,
therefore, enable the authorities, before whom an order is challenged, to test the veracity and
correctness of the impugned order. In the present times, since the fine line of distinction between
the functioning of the administrative and quasi- judicial bodies is gradually becoming faint, even the
administrative bodies are required to pass reasoned orders. In this regard, reference can be made to
the judgments of this Court in the cases of Siemens Engineering & Manufacturing Co. of India Ltd.
v. Union of India & Anr. [(1976) 2 SCC 981]; and Assistant Commissioner, Commrcial Tax
Department Works Contract and Leasing, Kota v. Shukla & Brothers [(2010) 4 SCC 785].
98. The Chief Information Commissioner and members of the Commission are required to possess
wide knowledge and eXperience in the respective fields. They are eXpected to be well versed with the
procedure that they are to adopt while performing the adjudicatory and quasi judicial functions in

accordance with the statutory provisions and the scheme of the Act of 2005. They are to e Xamine
whether the information required by an applicant falls under any of the e Xemptions stated under
Section 8 or the Second Schedule of the Act of 2005. Some of the e Xemptions under Section 8,
particularly, sub-sections (e), (g) and (j) have been very widely worded by the Legislature keeping in
mind the need to afford due protection to privacy, national security and the larger public interest. In
terms of Section 8(1)(e), (f), (g), (h) and (i), the authority is required to record a definite satisfaction
whether disclosure of information would be in the larger public interest or whether it would impede
the process of investigation or apprehension or prosecution of the offenders and whether it would
cause unwarranted invasion of the privacy of an individual. All these functions may be performed by
a legally trained mind more efficaciously. The most significant function which may often be required
to be performed by these authorities is to strike a balance between the application of the freedom
guaranteed under Article 19(1)(a) and the rights protected under Article 21 of the Constitution. In
other words, the deciding authority ought to be conscious of the constitutional concepts which hold
significance while determining the rights of the parties in accordance with the provisions of the
statute and the Constitution. The legislative scheme of the Act of 2005 clearly postulates passing of a
reasoned order in light of the above. A reasoned order would help the parties to question the
correctness of the order effectively and within the legal requirements of the writ jurisdiction of the
Supreme Court and the High Courts.
99. Persons of eminence in public life is also an e Xpression of wide implication and ramifications. It
takes in its ambit all requisites of a good citizen with values and having a public image of
contribution to the society. Such person should have understanding of concepts of public interest
and public good. Most importantly, such person should have contributed to the society through
social or allied works. The authorities cannot lose sight of the fact that ingredients of institutional
integrity would be applicable by necessary implication to the Commissions and their members. This
discussion safely leads us to conclude that the functions of the Chief Information Commissioner and
Information Commissioners may be better performed by a legally qualified and trained mind
possessing the requisite eXperience. The same should also be applied to the designation of the first
appellate authority, i.e., the senior officers to be designated at the Centre and State levels. However,
in view of language of Section 5, it may not be necessary to apply this principle to the designation of
Public Information Officer.
100. Moreover, as already noticed, the Information Commission, is performing quasi-judicial

functions and essence of its adjudicatory powers is akin to the Court system. It also possesses the
essential trappings of a Court and discharges the functions which have immense impact on the
rights/obligations of the parties. Thus, it must be termed as a judicial Tribunal which requires to be
manned by a person of judicial mind, e Xpertise and eXperience in that field. This Court, while
dealing with the cases relating to the powers of the Parliament to amend the Constitution has
observed that every provision of the Constitution, can be amended provided in the result, the basic
structure of the Constitution remains the same. The dignity of the individual secured by the various
freedoms and basic rights contained in Part III of the Constitution and their protection itself has
been treated as the basic structure of the Constitution.

101. Besides separation of powers, the independence of judiciary is of fundamental constitutional
value in the structure of our Constitution. Impartiality, independence, fairness and reasonableness
in judicial decision making are the hallmarks of the Judiciary. If Impartiality is the soul of Judiciary,
Ìndependence' is the life blood of Judiciary. Without independence, impartiality cannot thrive, as
this Court stated in the case of Union of India v. R. Gandhi, President, Madras Bar Association
[(2010) 11 SCC 17].
102. The independence of judiciary stricto sensu applies to the Court system. Thus, by necessary
implication, it would also apply to the tribunals whose functioning is quasi-judicial and akin to the
court system. The entire administration of justice system has to be so independent and managed by
persons of legal acumen, eXpertise and eXperience that the persons demanding justice must not only
receive justice, but should also have the faith that justice would be done.
103. The above detailed analysis leads to an ad libitum conclusion that under the provisions and
scheme of the Act of 2005, the persons eligible for appointment should be of public eminence, with
knowledge and eXperience in the specified fields and should preferably have a judicial background.
They should possess judicial acumen and e Xperience to fairly and effectively deal with the intricate
questions of law that would come up for determination before the Commission, in its day-to-day
working. The Commission satisfies abecedarians of a judicial tribunal which has the trappings of a
court. It will serve the ends of justice better, if the Information Commission was manned by persons
of legal eXpertise and with adequate eXperience in the field of adjudication. We may further clarify
that such judicial members could work individually or in Benches of two, one being a judicial
member while the other being a qualified person from the specified fields to be called an e Xpert
member. Thus, in order to satisfy the test of constitutionality, we will have to read into Section 12(5)
of the Act that the e Xpression knowledge and eXperience includes basic degree in that field and
eXperience gained thereafter and secondly that legally qualified, trained and eXperienced persons
would better administer justice to the people, particularly when they are e Xpected to undertake an
adjudicatory process which involves critical legal questions and niceties of law. Such appreciation
and application of legal principles is a sine qua non to the determinative functioning of the
Commission as it can tilt the balance of justice either way. Malcolm Gladwell said, the key to good
decision making is not knowledge. It is understanding. We are swimming in the former. We are
lacking in the latter. The requirement of a judicial mind for manning the judicial tribunal is a well
accepted discipline in all the major international jurisdictions with hardly with any e Xceptions. Even
if the intention is to not only appoint people with judicial background and e Xpertise, then the most
suitable and practical resolution would be that a judicial member and an e Xpert member from other
specified fields should constitute a Bench and perform the functions in accordance with the
provisions of the Act of 2005. Such an approach would further the mandate of the statute by
resolving the legal issues as well as other serious issues like an inbuilt conflict between the Right to
Privacy and Right to Information while applying the balancing principle and other incidental
controversies. We would clarify that participation by qualified persons from other specified fields
would be a positive contribution in attainment of the proper administration of justice as well as the
object of the Act of 2005. Such an approach would help to withstand the challenge to the
constitutionality of Section 12(5).

104. As a natural sequel to the above, the question that comes up for consideration is as to what
procedure should be adopted to make appointments to this august body. Section 12(3) states about
the High- powered Committee, which has to recommend the names for appointment to the post of
Chief Information Commissioner and Information Commissioners to the President. However, this
Section, and any other provision for that matter, is entirely silent as to what procedure for
appointment should be followed by this High Powered Committee. Once we have held that it is a
judicial tribunal having the essential trappings of a court, then it must, as an irresistible corollary,
follow that the appointments to this august body are made in consultation with the judiciary. In the
event, the Government is of the opinion and desires to appoint not only judicial members but also
eXperts from other fields to the Commission in terms of Section 12(5) of the Act of 2005, then it may
do so, however, subject to the riders stated in this judgment. To ensure judicial independence,
effective adjudicatory process and public confidence in the administration of justice by the
Commission, it would be necessary that the Commission is required to work in Benches. The Bench
should consist of one judicial member and the other member from the specified fields in terms of
Section 12(5) of the Act of 2005. It will be incumbent and in conformity with the scheme of the Act
that the appointments to the post of judicial member are made in consultation with the Chief Justice
of India in case of Chief Information Commissioner and members of the Central Information
Commission and the Chief Justices of the High Courts of the respective States, in case of the State
Chief Information Commissioner and State Information Commissioners of that State Commission.
In the case of appointment of members to the respective Commissions from other specified fields,
the DoPT in the Centre and the concerned Ministry in the States should prepare a panel, after due
publicity, empanelling the names proposed at least three times the number of vacancies e Xisting in
the Commission. Such panel should be prepared on a rational basis, and should inevitably form part
of the records. The names so empanelled, with the relevant record should be placed before the said
High Powered Committee. In furtherance to the recommendations of the High Powered Committee,
appointments to the Central and State Information Commissions should be made by the competent
authority. Empanelment by the DoPT and other competent authority has to be carried on the basis
of a rational criteria, which should be duly reflected by recording of appropriate reasons. The
advertisement issued by such agency should not be restricted to any particular class of persons
stated under Section 12(5), but must cover persons from all fields. Complete information, material
and comparative data of the empanelled persons should be made available to the High Powered
Committee. Needless to mention that the High Powered Committee itself has to adopt a fair and
transparent process for consideration of the empanelled persons for its final recommendation. This
approach, is in no way innovative but is merely derivative of the mandate and procedure stated by
this Court in the case of L. Chandra Kumar (supra) wherein the Court dealt with similar issues with
regard to constitution of the Central Administrative Tribunal. All concerned are e Xpected to keep in
mind that the Institution is more important than an individual. Thus, all must do what is eXpected
to be done in the interest of the institution and enhancing the public confidence. A three Judge
Bench of this Court in the case of Centre for PIL and Anr. v. Union of India & Anr. [(2011) 4 SCC 1]
had also adopted a similar approach and with respect we reiterate the same.
105. Giving effect to the above scheme would not only further the cause of the Act but would attain
greater efficiency, and accuracy in the decision- making process, which in turn would serve the
larger public purpose. It shall also ensure greater and more effective access to information, which

would result in making the invocation of right to information more objective and meaningful.
106. For the elaborate discussion and reasons afore-recorded, we pass the following order and
directions:
1. The writ petition is partly allowed.
2. The provisions of Sections 12(5) and 15(5) of the Act of 2005 are held to be constitutionally valid,
but with the rider that, to give it a meaningful and purposive interpretation, it is necessary for the
Court to read into these provisions some aspects without which these provisions are bound to offend
the doctrine of equality. Thus, we hold and declare that the e Xpression knowledge and eXperience
appearing in these provisions would mean and include a basic degree in the respective field and the
eXperience gained thereafter. Further, without any peradventure and veritably, we state that
appointments of legally qualified, judicially trained and eXperienced persons would certainly
manifest in more effective serving of the ends of justice as well as ensuring better administration of
justice by the Commission. It would render the adjudicatory process which involves critical legal
questions and nuances of law, more adherent to justice and shall enhance the public confidence in
the working of the Commission. This is the obvious interpretation of the language of these
provisions and, in fact, is the essence thereof.
3. As opposed to declaring the provisions of Section 12(6) and 15(6) unconstitutional, we would
prefer to read these provisions as having effect post-appointment. In other words,
cessation/termination of holding of office of profit, pursuing any profession or carrying any business
is a condition precedent to the appointment of a person as Chief Information Commissioner or
Information Commissioner at the Centre or State levels.
4. There is an absolute necessity for the legislature to reword or amend the provisions of Section
12(5), 12(6) and 15(5), 15(6) of the Act. We observe and hope that these provisions would be
amended at the earliest by the legislature to avoid any ambiguity or impracticability and to make it
in consonance with the constitutional mandates.
5. We also direct that the Central Government and/or the competent authority shall frame all
practice and procedure related rules to make working of the Information Commissions effective and
in consonance with the basic rule of law. Such rules should be framed with particular reference to
Section 27 and 28 of the Act within a period of siX months from today.
6. We are of the considered view that it is an unquestionable proposition of law that the Commission
is a judicial tribunal performing functions of judicial as well as quasi-judicial nature and having the
trappings of a Court. It is an important cog and is part of the court attached system of
administration of justice, unlike a ministerial tribunal which is more influenced and controlled and
performs functions akin to the machinery of administration.
7. It will be just, fair and proper that the first appellate authority (i.e. the senior officers to be
nominated in terms of Section 5 of the Act of 2005) preferably should be the persons possessing a

degree in law or having adequate knowledge and eXperience in the field of law.
8. The Information Commissions at the respective levels shall henceforth work in Benches of two
members each. One of them being a judicial member, while the other an eXpert member. The
judicial member should be a person possessing a degree in law, having a judicially trained mind and
eXperience in performing judicial functions. A law officer or a lawyer may also be eligible provided
he is a person who has practiced law at least for a period of twenty years as on the date of the
advertisement. Such lawyer should also have e Xperience in social work. We are of the considered
view that the competent authority should prefer a person who is or has been a Judge of the High
Court for appointment as Information Commissioners. Chief Information Commissioner at the
Centre or State level shall only be a person who is or has been a Chief Justice of the High Court or a
Judge of the Supreme Court of India.
9. The appointment of the judicial members to any of these posts shall be made in consultation with
the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case
may be.
10. The appointment of the Information Commissioners at both levels should be made from
amongst the persons empanelled by the DoPT in the case of Centre and the concerned Ministry in
the case of a State. The panel has to be prepared upon due advertisement and on a rational basis as
afore- recorded.
11. The panel so prepared by the DoPT or the concerned Ministry ought to be placed before the
High-powered Committee in terms of Section 12(3), for final recommendation to the President of
India. Needless to repeat that the High Powered Committee at the Centre and the State levels is
eXpected to adopt a fair and transparent method of recommending the names for appointment to
the competent authority.
12. The selection process should be commenced at least three months prior to the occurrence of
vacancy.
13. This judgment shall have effect only prospectively.
14. Under the scheme of the Act of 2005, it is clear that the orders of the Commissions are subject to
judicial review before the High Court and then before the Supreme Court of India. In terms of
Article 141 of the Constitution, the judgments of the Supreme Court are law of the land and are
binding on all courts and tribunals. Thus, it is abundantly clear that the Information Commission is
bound by the law of precedence, i.e., judgments of the High Court and the Supreme Court of India.
In order to maintain judicial discipline and consistency in the functioning of the Commission, we
direct that the Commission shall give appropriate attention to the doctrine of precedence and shall
not overlook the judgments of the courts dealing with the subject and principles applicable, in a
given case.

It is not only the higher courts judgments that are binding precedents for the Information
Commission, but even those of the larger Benches of the Commission should be given due
acceptance and enforcement by the smaller Benches of the Commission. The rule of precedence is
equally applicable to intra appeals or references in the hierarchy of the Commission.
107. The writ petition is partly allowed with the above directions, however, without any order as to
costs.
.,J.
[A.K. Patnaik] .,J.
[Swatanter Kumar] New Delhi;
September 13, 2012

Kuldip Nayar vs Union Of India & Ors on 22 August, 2006
Author: Y.K.Sabharwal
Bench: Y.K.Sabharwal Cji, K.G.Balakrishnan, S.H.Kapadia, C.K.Thakker, P.K.Balasubramanyan
CASE NO.:
PETITIONER:
Kuldip Nayar
RESPONDENT:
Union of India & Ors.
DATE OF JUDGMENT:
22/08/2006 BENCH:
Y.K.SABHARWAL CJI & K.G.BALAKRISHNAN & S.H.KAPADIA & C.K.THAKKER &
P.K.BALASUBRAMANYAN JUDGMENT:
JUDGMENT [With Writ Petition (C) Nos.262, 266 and 305 of 2004) DELIVERED BY:
Y.K.SABHARWAL, CJI Y.K. Sabharwal, CJI Background By this writ petition under Article 32 of the
Constitution of India, petitioner seeks to challenge amendments made in the Representation of
People Act, 1951 (for short, `the RP Act', 1951') through Representation of People (Amendment) Act
40 of 2003 which came into force from 28th August, 2003. By the said Amendment Act 2003, the
requirement of "domicile" in the State Concerned for getting elected to the Council of States is
deleted which according to the petitioner violates the principle of Federalism, a basic structure of
the Constitution. In the writ petition, there is a further challenge to the amendments in Sections 59,
94 and 128 of the RP Act, 1951 by which Open Ballet System is introduced which, according to the
petitioner, violates the principle of 'secrecy' which, according to the petitioner, is the essence of free
and fair elections as also the voter's freedom of eXpression which is the basic feature of the
Constitution and the subject matter of the fundamental right under Article 19(1)(a) of the
Constitution. TeXt of the Statute before the Amending Act 40 of 2003 From 1951 upto 2003,
Sections 3, 59, 94 and 128 as originally stood were as follows:
"3. Qualification for membership of the Council of States. □ A person shall not be qualified to be
chosen as a representative of any State or Union territory in the Council of States unless he is an
elector for a Parliamentary Constituency in that State or territory.
59. Manner of voting at elections. □ At every election where a poll is taken votes shall be given by
ballot in such manner as may be prescribed and no votes shall be received by proXy.
94. Secrecy of voting not to be infringed. □ No witness or other persons shall be required to state for
whom he has voted at an election.

128. Maintenance of secrecy of voting.□ (1) Every officer, clerk, agent or other person who performs
any duty in connection with the recording or counting of votes at any election shall not (e Xcept for
some purposes authorized by or under any law) communicate to any person any information
calculated to violate such secrecy.
(2) Any person who contravenes the provisions of sub-section (1) shall be punishable with
imprisonment for a term which may eXtend to three months or fine or with both."
By Representation of People (Amendment) Act, 2003, (Act No.40 of 2003), in Section 3 for the
words 'in that state or territory', the words 'in India' were substituted. In Sections 59, 94 and 128,
following provisos were inserted at the end.
"59. Provided that the votes at every election to fill a seat or seats in the Council of States shall be
given by open ballot.
94. Provided that this Section shall not apply to such witness or other person where he has voted by
open ballot.
128. Provided that the provisions of this sub-section shall not apply to such officer, clerk, agent or
other person who performs any such duty at an election to fill a seat or seats in the Council of
States."
Issues Two issues arise for determination in this case. The first issue relates to the content and the
significance of the word 'domicile' whereas the second issue deals with importance of the concept of
'secrecy' in voting under the constitutional scheme.
Broad framework of the Constitution The Constitution of India provides for the Union Legislature,
called "Parliament", through Article 79, to consist of the President and two Houses to be known
respectively as the "Council of States", also known as the Rajya Sabha and the "House of the People",
also known as the Lok Sabha. There is a similar provision in Article 168 for the State Legislature,
which, besides the Governor of the State, includes a "Legislative Assembly', also known as the
Vidhan Sabha in each State and "Legislative Council", also known as the Vidhan Parishad, in some
of the States. In the Union Legislature, i.e., the Parliament, the Council of States, consists of (not
more than) 250 members, out of whom 12 are nominated by the President in accordance with
Article 80(3), the remaining 238 being "representatives of the States and of the Union Territories".
The Fourth Schedule to the Constitution sets out the allocation of seats in the Council of States to be
filled by such representatives of the States and of the Union Territories.
Article 80(4) provides that "the representatives of each State in the Council of States shall be elected
by the elected members of the Legislative Assembly of the State in accordance with the system of
proportional representation by means of the single transferable vote". Article 80(5) further provides
that representatives of the Union Territories in the Council of States shall be chosen in such manner
as Parliament may by law prescribe.

Article 84 is styled as a provision to indicate "Qualification for membership of Parliament". In
clauses (a) and (b), Article 84 makes it incumbent for any person seeking to be chosen to fill a seat
in Parliament to be a citizen of India and of a certain age, which in the case of a seat in the Council of
States cannot be less than 30 years. Article 84(c) provides that a candidate seeking to be elected as a
Member of Parliament must "possess such other qualifications as may be prescribed in that behalf
by or under any law made by Parliament".
Part XV of the Constitution pertains to the subject matter of "Elections". It includes, presently,
Articles 324 to 329. The superintendence, direction and control of elections vests in the Election
Commission.
Article 327 confers, on the Parliament, the power, subject to the provisions of the Constitution, to
make, from time to time by law, provisions with respect to "all matters relating to, or in connection
with, elections", inter alia, "to either House of Parliament", including "the preparation of electoral
rolls, the delimitation of the constituencies and all matters necessary for securing the due
consideration of such House or Houses". Part XI of the Constitution pertains to the "Relations
between the Union and the States". Chapter I of Part XI is in respect of "Legislative Relations".
Article 245 generally states that the Parliament, subject to the provisions of the Constitution, may
make laws for the whole or any part of the territory of India. Article 246 vests in the Parliament "the
eXclusive power" to make laws with respect to any of the matters enumerated in List I in the Seventh
Schedule ("Union List", hereafter). The Union List, as given in the Seventh Schedule includes Entry
No.72, which relates to, amongst others, the "Elections to Parliament".
History of RP Acts, 1950 and 1951 In the year 1952, the Parliament came to be duly constituted and
summoned to meet for the first session under the provisions of the Constitution. Till then, the
Constituent Assembly, which had prepared and adopted the Constitution, functioned as the
Provisional Parliament, in accordance with the provision contained in Article 379. It may be added
here that after the first General Elections had led to the two Houses of Parliament being constituted,
Article 379, having served its purpose, was deleted by Constitution (Seventh Amendment) Act, 1956
with effect from 1st November, 1956. The Provisional Parliament, in e Xercise of its authority under
Article 379 read with aforementioned enabling provisions, enacted a law called the "Representation
of the People Act, 1950" (the RP Act, 1950), which came into force with effect from 12th May, 1950.
This law had been enacted to provide for "the allocation of seats in and the delimitation of
constituencies for the purpose of election to, the House of the People and the Legislatures of States,
the qualifications of voter at such elections, the preparation of electoral rolls, and matters connected
therewith". It must be mentioned here that the subject matter relating to "the manner of filling seats
in the Council of States to be filled by the representatives of Part- C States (later "Union Territories")
was inserted in this law by way of Act 73 of 1950 (to be read with the Adaptation of Laws (No. 2)
Order, 1956) which, among others, added Part IVA to the RP Act, 1950.
The RP Act, 1950 did not contain all the provisions relating to elections. Provisions for the actual
conduct of elections, amongst others, to the Houses of Parliament, the qualifications for the
membership of such Houses etc. had been left to be made in subsequent measures. In order to make
provisions for such other subjects, the Provisional Parliament, in eXercise of its authority under

Article 379 read with aforementioned enabling provisions, enacted the RP Act, 1951, which was
brought into force with effect from 17th July, 1951.
Chapter I of Part II of the RP Act, 1951 related to "Qualifications for membership of Parliament". It
includes two sections, namely Sections 3 and 4. We are not much concerned with Section 4
inasmuch as it pertains to qualifications for membership of the House of the People. Section 3 of the
RP Act, 1951, in its original form is the main bone of contention here.
Section 3 of the RP Act, 1951, as originally enacted, read as under:
"3. Qualification for membership of the Council of States. - (1) A person shall not be qualified to be
chosen as a representative of any Part A or Part B State (other than the State of Jammu and
Kashmir) in the Council of States unless he is an elector for a Parliamentary constituency in that
State.
(2) A person shall not be qualified to be chosen as a representative of the States of Ajmer and Coorg
or of the States of Manipur and Tripura in the Council of States unless he is an elector for any
Parliamentary constituency in the State in which the election of such representative is to be held.
(3) Save as otherwise provided in sub- section (2), a person shall not be qualified to be chosen as a
representative of any Part C State or group of such States in the Council of States unless he is an
elector for a Parliamentary constituency in that State or in any of the States in that group, as the
case may be."
Section 3 of the RP Act, 1951, was substituted by the following provision through the Adaptation of
Laws (No. 2) Order, 1956 and thus came to read as under: "3. Qualification for membership of the
Council of States. - A person shall not be qualified to be chosen as a representative of any State other
than the State of Jammu and Kashmir or Union territory in the Council of States unless he is an
elector for a Parliamentary constituency in that State or territory."
The above provision underwent a further change, with effect from 14th December, 1966, as a result
of Act 47 of 1966, which made it applicable to all the States and Union Territories of India by
omitting the words "other than the State of Jammu & Kashmir".
Act 40 of 2003 has amended the provision, with effect from 28th August, 2003, so as to substitute
the words "in that State or territory" with the words "in India". The amended provision reads as
under:
"3. Qualification for membership of the Council of States. - A person shall not be qualified to be
chosen as a representative of any State or Union territory in the Council of States unless he is an
elector for a Parliamentary constituency in India."
Issue No. I : Deletion of 'domicile' The question which needs resolution is : what is meant by the
word "elector". For this, one will have to refer to certain other provisions of the RP Act, 1950 and RP

Act, 1951. The effect of the amendment to Section 3 of RP Act, 1951, brought about by Act 40 of
2003 thus is that a person offering his candidature for election to fill a seat in the Council of States is
now required to be simpliciter "an elector for a Parliamentary constituency in India"; that is to say,
he is no longer required to be an elector for a Parliamentary constituency in the "State or Territory"
to which the seat for which he is a candidate pertains.
The word "elector" has been defined in Section 2(e) of the RP Act, 1951 which reads as under:
" 'elector' in relation to a constituency means a person whose name is entered in the electoral roll of
that constituency for the time being in force and who is not subject to any of the disqualifications
mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950)."
Section 16 of the RP Act, 1950, which has been referred to in the above-quoted definition of the word
"elector" reads as under:
"16. Disqualifications for registration in an electoral roll. □ (1) A person shall be disqualified for
registration in an electoral roll if he □ is not a citizen of India; or is of unsound mind and stands so
declared by a competent court; or is for the time being disqualified from voting under the provisions
of any law relating to corrupt practices and other offences in connection with elections.
(2) The name of any person who becomes so disqualified after registration shall forthwith be struck
off the electoral roll in which it is included:
Provided that the name of any person struck off the electoral roll of a constituency by reason of a
disqualification under clause (c) of sub- section (1) shall forthwith be reinstated in that roll if such
disqualification is, during the period such roll is in force, removed under any law authorizing such
removal."
Section 19 of the RP Act, 1950 relates to the "conditions of registration". It provides as under:
"19. Conditions of registration. □ Subject to the foregoing provisions of this Part, every person who-
is not less than [eighteen years] of age on the qualifying date, and is ordinarily resident in a
constituency, shall be entitled to be registered in the electoral roll for that constituency."
The eXpression "ordinarily resident" as appearing in Section 19(b) has been e Xplained in Section 20
of the RP Act, 1950, which may also be eXtracted, inasmuch as it is of great import in these matters.
It reads as under:
"20. Meaning of 'ordinarily resident'. □ (1) A person shall not be deemed to be ordinarily resident in
a constituency on the ground only that he owns; or is in possession of, a dwelling house therein.
(1A) A person absenting himself temporarily from his place of ordinary residence shall not by reason
thereof cease to be ordinarily resident therein.

(1B) A member of Parliament or of the Legislature of a State shall not during the term of his office
cease to be ordinarily resident in the constituency in the electoral roll of which he is registered as an
elector at the time of his election as such member, by reason of his absence from that constituency
in connection with his duties as such member.
(2) A person who is a patient in any establishment maintained wholly or mainly for the reception
and treatment of persons suffering from mental illness or mental defectiveness, or who is detained
in prison or other legal custody at any place, shall not by reason thereof be deemed to be ordinarily
resident therein.
(3) Any person having a service qualification shall be deemed to be ordinarily resident on any date
in the constituency in which, but for his having such service qualification, he would have been
ordinarily resident on that date.
(4) Any person holding any office in India declared by the President in consultation with the
Election Commission to be an office to which the provisions of this sub- section apply, shall be
deemed to be ordinarily resident on any date in the constituency in which, but for the holding of any
such office, he would have been ordinarily resident on that date.
(5) The statement of any such person as is referred to in sub-section (3) or sub- section (4) made in
the prescribed form and verified in the prescribed manner, that [but for his having the service
qualification] or but for his holding any such office as is referred to in sub-section (4) he would have
been ordinarily resident in a specified place on any date, shall, in the absence of evidence to the
contrary, be accepted as correct.
(6) The wife of any such person as is referred to in sub-section (3) or sub- section (4) shall if she be
ordinarily residing with such person be deemed to be ordinarily resident on in the constituency
specified by such person under sub-section (5).
(7) If in any case a question arises as to where a person is ordinarily resident at any relevant time,
the question shall be determined with reference to all the facts of the case and to such rules as may
be made in this behalf by the Central Government in consultation with the Election Commission.
(8) In sub-sections (3) and (5) "service qualification" means-
being a member of the armed forces of the Union; or being a member of a force to which the
provisions of the Army Act, 1950 (46 of 1950), have been made applicable whether with or without
modifications; or being a member of an armed police force of a State, who is serving outside that
State; or being a person who is employed under the Government of India, in a post outside India.
All the above provisions of law have to be read together and the conjoint effect thereof is that a
person in order to qualify to be registered as an elector in relation to a constituency, besides
fulfilling other qualifications, must be a citizen of India, not less than 18 years of age on the
qualifying date (which by virtue of Section 14 of RP Act, 1950, means the first day of January of the

year in which the electoral list of the constituency is prepared or revised), and, what is significant
here, be "ordinarily resident" in that constituency. As a result of the impugned amendment to
Section 3 of the RP Act, 1951, it is no longer required that the candidate for an election to fill a seat
in the Council of States be "ordinary resident" of the State to which that seat pertains. The above
amendment, which can be loosely described as an amendment doing away with the requirement of
domicile, has been challenged as unconstitutional in the writ petitions at hand.
Submissions on domicile requirements Shri Sachar, learned senior counsel for the petitioner,
contended that the impugned amendment to Section 3 of the RP Act, 1951 offends the principle of
Federalism, the basic feature of the Constitution; it seeks to change the character of republic which
is the foundation of our democracy and that it distorts the balance of power between the Union and
the States and is, therefore, violative of the provisions of the Constitution. In this connection, it was
urged that the Council of States is a House of Parliament constituted to provide representation of
various States and Union Territories; that its members have to represent the people of different
States to enable them to legislate after understanding their problems; that the nomenclature
"Council of States" indicates the federal character of the House and a representative who is not
ordinarily resident and who does not belong to the State concerned cannot effectively represent the
State. Learned counsel further submits that India has adopted parliamentary system of democracy
in which the Union Legislature is a bi-cameral legislature, that such legislature represents the will of
the people of the State whose cause has to be represented by the members. It is urged that the
impugned amendments removes the distinction in the intent and purpose of Lok Sabha and Rajya
Sabha and that the mere fact that there eXists numerous instances of infringement of the law
concerning the requirements of residence cannot constitute a valid object or rational reason for
deleting the requirement of residence. Reliance is also placed in this connection on Rajya Sabha
Rules to show the importance of residence as qualification of a representative of the State. It is
further contended that the requirement of domicile makes the upper House an 'alter ego' of the
lower House. Mr. Nariman, appearing on behalf of the petitioner Shri Indrajeet, while
supplementing the arguments above- mentioned, contended that the Constitution and the RP Acts
1950 and 1951 respectively have always been read as forming part of an integral scheme under which
a person ordinarily resident in a constituency is entitled to be registered in the electoral roll of that
constituency and that the said scheme is provided for in Article 80 and Article 84 of the Constitution
as also in Sections 17, 18 and 19 of the RP Act, 1950 and in Section 3 of the RP Act, 1951, which
scheme guarantees the representative character of the Council. It is urged that by deletion of the
word 'domicile' or 'residence' or by not reading the word 'domicile' or 'residence' in Article 80(4),
the basic requirement of the representative federal body stands destroyed.
Shri Vahanvati, Ld. Solicitor General of India, on the question of domicile submitted that the
impugned amendments became necessary in view of various deficiencies e Xperienced in the working
of the RP Act, 1951; that the said amendments did not alter or distort the character of the Council of
States and that the concept of residence/domicile is a matter of qualification under Article 84(c)
which is to be prescribed by the Parliament under the Indian Constitution unlike the US
Constitution. In this connection, it was urged that the members of the Legislative Assembly are in
the best position to decide as to who would represent them in the Council of States. The submission
made was that by the impugned amendment, the qualification is made more broad based and that

the amendment became necessary for ensuring representation of unrepresented States. According
to Union of India, there is no constitutional requirement for a member of the Council of States to be
either an elector or an ordinary resident of the State which he represents and, therefore, the word
"States" appearing in clause (4) of Article 80 does not comprise the requirement of residence.
Constitutional & Legislative History
(i) Rule of interpretation Before coming to the legislative history, we may state that the rule of
interpretation says that in order to discern the intention behind the enactment of a provision if
ambiguous and to interpret the same, one needs to look into the historical legislative developments.
The key question is whether residence was ever treated as a constitutional requirement under
Article 80(4). In re: Special Reference No. 1 of 2002 [(2002) 8 SCC 237], it was observed that:
"One of the known methods to discern the intention behind enacting a provision of the Constitution
and also to interpret the same is to look into the historical legislative developments, Constituent
Assembly Debates, or any enactment preceding the enactment of the Constitutional provisions."
(ii) Legislative History The Constitution has established a federal system of Government with bi-
cameral legislature at the Centre which is not something which was grafted in the Constitution for
the first time. Its history goes back to Government of India Act, 1915 as amended in 1919. Even
under the Government of India Act, 1919, the qualification of residence in relation to a particular
constituency was considered to be unnecessary. This position is indicated by Rule XI of the then
Electoral Rules. This position is also indicated by the provisions of the Government of India Act,
1935 under which the Legislature at the Centre was bi-cameral. The Lower Chamber was called
'House of Assembly'. The Upper Chamber was called 'Council of States'. Under the Government of
India Act, 1935 (for short, the 'GI Act'), the Council of States was a permanent body with one-third
of its members retiring every third year. Si Xth Schedule to the GI Act made provisions for franchise.
Part I of that Schedule contained qualifications. It did not include residence as a qualification of the
elector. However, there were other parts to the SiXth Schedule which dealt with certain subjects
eXclusive for different provinces in which there was a requirement of residence. This was under the
heading 'general requirements. However, there was no uniformity. In certain cases, residence was
prescribed as a qualification (for eXample in the case of Central Provinces, Berar and Bengal)
whereas in provinces, namely, Assam, the qualification was 'a family dwelling place or a place where
the elector ordinarily resided'. Therefore, the qualification of residence was not uniform. It
depended upon local conditions. It deferred from province to province.
At this stage, we may clarify that under strict federalism, the Lower House represents 'the people'
and the Upper House consists of the 'Union' of the Federation. In strict federalism both the
Chambers had equal legislative and financial powers. However, in the Indian conteXt, strict
federalism was not adopted.
The Council of State under the GI Act became Council of States under the Constitution of India. This
fact is important. In this connection, we have to look into the minutes of the Union Constitution
Committee which recorded vide Item 21 the manner of computing weight proportional

representation based on population strength. The said minutes further show the recommendation
that the Upper House should include scientists, teachers etc. for which purpose, the President
should be given authority to nominate. The necessity of the Upper Chamber was also the subject
matter of debate in the Constituent Assembly on 28th July, 1947. These debates indicate the
purpose for having the Upper Chamber. The object of the Upper Chamber as envisaged was to hold
dignified debates on important issues and to share the e Xperience of seasoned persons who were
eXpected to participate in the debate with an amount of learning. Finally, on 28th July, 1947, a
policy decision was taken by the Constituent Assembly that the Federal Parliament shall consist of
two chambers.
In the first draft Constitution, Fourth Schedule related to the composition of the Federal Parliament.
Paragraph 1 of Part I of the Fourth Schedule dealt with the general qualifications for the members
which included citizenship and minimum age of not less than 35 years in the case of a seat in the
Council of States. The said paragraph further stated that apart from citizenship and age
qualifications, it would be open to the Parliament to describe any other qualification as may be
appropriate. Paragraph 6 of Part I of the Fourth Schedule appended to the first draft Constitution
provided for the qualification of residence in a State for a candidate to be chosen to the Council of
States. Clause 60 of the first draft Constitution stated that all matters relating to or connected with
elections to either House of the Federal Parliament shall be regulated by the Fourth Schedule, unless
otherwise provided by the Act of the Federal Parliament. (Emphasis supplied). However, the Fourth
Schedule was omitted by the Drafting Committee. This was on 11th February, 1948. Therefore, with
this deletion, the requirement of residence was done away with.
The entire discussion with regard to the legislative history is only to show that residence was never
the constitutional requirement. It was never treated as an essential ingredient of the structure of the
Council of States. It has been treated just a matter of qualification. Further, the legislative history
shows that qualification of residence has never been a constant factor. As the legislative history
shows, ownership of assets, dwelling house, income, residence etc. were considered as qualification
from time to time depending upon the conte X t and the ground reality. The power to add
qualifications was given to the Federal Parliament. Therefore, the legislative history of constitutional
enactments like the GI Act shows that residence or domicile are not the essential ingredients of the
structure and the composition of the Upper House.
At this stage, one event needs to be highlighted. The Drafting Committee included a separate
chapter under Part XIII on the subject of 'elections' to the draft Constitution which corresponded to
Article 327 in Part XV of the Constitution. Article 290 empowered the Parliament to make laws
providing for all matters relating to or in connection with elections to the House of Parliament.
Ultimately, despite all objections against bicameral legislature, the Constituent Assembly took the
decision to have Federal Parliament consisting of two chambers. In its report, the Drafting
Committee recommended basic qualifications for membership of Parliament being a subject which
should be left to the wisdom of the Parliament. Accordingly, the Drafting Committee recommended
Article 68A which corresponds to Article 84 in the Constitution. This was the first time when a
provision was included to prescribe qualifications which included citizenship and the minimum age
subject to any other qualification that may be prescribed by law made by the Parliament. The

Drafting Committee justified the inclusion of Article 68A in the following words :
"Article 152 prescribes an age qualification for members of State Legislatures. There is no
corresponding provision for members of Parliament. There is, moreover, a strong feeling in certain
quarters that a provision prescribing or permitting the prescription of educational and other
qualifications for membership both of Parliament and of the State Legislatures should be included
in the Draft. If any standard of qualifications is to be laid down for candidates for membership it
must be so precise that an election tribunal will be able to say, in a given case, whether the candidate
satisfied it or not. To formulate precise and adequate standards of this kind will require time.
Further, if any such qualifications are laid down in the Constitution itself, it would be difficult to
alter them if circumstances so require. The best course would, therefore, be to insert an enabling
provision in the Constitution and leave it to the appropriate legislature to define the necessary
standards later. Whatever qualifications may be prescribed, one of them would certainly have to be
the citizenship of India."
To sum up, the legislative history indicates that residence is not a constitutional requirement of
clause (4) of Article 80. Residence is a matter of qualification. Therefore, it comes under Article 84
which enables the Parliament to prescribe qualifications from time to time depending upon the fact
situation. Unlike USA, residence is not a constitutional requirement. In the conteXt of Indian
Constitution, residence/domicile is an incident of federalism which is capable of being regulated by
the Parliament as a qualification which is the subject matter of Article 84. This is borne out by the
legislative history.
Composition of Parliament India's Parliament is bicameral. The two Houses along with the
President constitute Parliament [Article 79]. The Houses differ from each other in many respects.
They are constituted on different principles, and, from a functional point of view, they do not enjoy a
co-equal status. Lok Sabha is a democratic chamber elected directly by the people on the basis of
adult suffrage. It reflects popular will. It has the last word in matters of taxation and e Xpenditure.
The Council of Ministers is responsible to the Lok Sabha. Rajya Sabha, on the other hand, is
constituted by indirect elections. The Council of Ministers is not responsible to the Rajya Sabha.
Therefore, the role of Rajya Sabha is somewhat secondary to that of Lok Sabha, barring a few
powers in the arena of Centre-State relationship. Rajya Sabha is a forum to which eXperienced
public figures get access without going through the din and bustle of a general election which is
inevitable in the case of Lok Sabha. It acts as a revising chamber over the Lok Sabha. The e Xistence
of two debating chambers means that all proposals and programmes of the Government are
discussed twice. As a revising chamber, the Rajya Sabha helps in improving Bills passed by the Lok
Sabha. Although the Rajya Sabha is designed to serve as a Chamber where the States and the Union
of India are represented, in practice, the Rajya Sabha does not act as a champion of local interests.
Even though elected by the State Legislatures, the members of the Rajya Sabha vote not at the
dictate of the State concerned, but according to their own views and party affiliation. In fact, at one
point of time in 1973, a private member's resolution was to the effect that the Rajya Sabha be
abolished. Composition of Rajya Sabha The maximum strength of Rajya Sabha is fi Xed at 250
members, 238 of whom are elected representatives of the States and the Union Territories and 12
are nominated by the President. The seats in the Upper House are allotted among the various States

and Union Territories on the basis of population, the formula being one seat for each million of
population for the first five million and thereafter one seat for every two million population. A slight
advantage is, therefore, given to States with small population over the States with bigger population.
This is called "weighted proportional representation". The system of proportional representation
helps in giving due representation to minority groups. The representatives of a State in Rajya Sabha
are elected by the elected members of the State Legislative Assembly in accordance with the system
of proportional representation by means of a single transferable vote [Article 80(1)(b) and Article
80(4)]. Rajya Sabha is a continuing body. It has nominated members. They are nominated by the
President on the advice of Council of Ministers. There is no difference in status between elected and
nominated members of Rajya Sabha e Xcept that the elected members can participate in the election
of the President whereas the nominated members cannot do so. One-third of its members retire
every two years and their seats are filled by fresh elections and nominations. Rajya Sabha's power
under Article 249 of the Constitution The Indian union has been described as the 'holding together'
of different areas by the constitution framers, unlike the 'coming together' of constituent units as in
the case of the U.S.A. and the confederation of Canada. Hence, the Rajya Sabha was vested with a
contingency based power over state legislatures under Article 249, which contributes to the
'Quasi-federal' nature to the government of the Indian union. Under Article 249(1), if the Rajya
Sabha declares by a resolution, supported by not less than two-thirds of it's members present and
voting, that it is necessary or eXpedient in national interest that Parliament should make laws with
respect to any of the matters enumerated in the State list [List II of Seventh Schedule read with
Article 246], specified in the resolution, it shall be lawful for parliament to make laws for the whole
or any part of the territory of India with respect to that matter while the resolution remains in force.
Article 249 clause (2) and (3) specify the limitations on the enforcement of this provision. Article
251 when read with Article 249 provides that in case of inconsistency between a law made by
parliament under Article 249 and a law made by a State legislature, the Union law will prevail to the
eXtent of such inconsistency or 'repugnancy'. In effect this provision permits the Rajya Sabha to
encroach upon the specified legislative competence of a state legislature by declaring a matter to be
of national importance. Though it may have been incorporated as a safeguard in the original
constitutional scheme, this power allows the Union government to interfere with the functioning of
a State government, which is most often prompted by the e Xistence of opposing party-affiliations at
the Central and state level. This bias towards 'Unitary power' under normal circumstances is not
seen either in U.S.A. or Canada.
Federalism A lot of energy has been devoted on behalf of the petitioners to build up a case that the
Constitution of India is federal. The nature of Federalism in Indian Constitution is no longer res
integra.
There can be no quarrel with the proposition that Indian model is broadly based on federal form of
governance. Answering the criticism of the tilt towards the Centre, Shri T.T. Krishnamachari, during
debates in the Constituent Assembly on the Draft Constitution, had stated as follows: "Sir, I would
like to go into a few fundamental objections because as I said it would not be right for us to leave
these criticism uncontroverted. Let me take up a matter which is perhaps partly theoretical but one
which has a validity so far as the average man in this country is concerned. Are we framing a unitary
Constitution? Is this Constitution centralizing power in Delhi? Is there any way provided by means

of which the position of people in various areas could be safeguarded, their voices heard in regard to
matters of their local administration? I think it is a very big charge to make that this Constitution is
not a federal Constitution, and that it is a unitary one. We should not forget that this question that
the Indian Constitution should be a federal one has been settled by our Leader who is no more with
us, in the Round Table Conference in London eighteen years back."
"I would ask my honourable friend to apply a very simple test so far as this Constitution is
concerned to find out whether it is federal or not. The simple question I have got from the German
school of political philosophy is that the first criterion is that the State must e Xercise compulsive
power in the enforcement of a given political order, the second is that these powers must be
regularly eXercised over all the inhabitants of a given territory; and the third is the most important
and that is that the activity of the State must not be completely circumscribed by orders handed
down for e X ecution by the superior unit. The important words are 'must not be completely
circumscribed', which envisages some powers of the State are bound to be circumscribed by the
eXercise of federal authority. Having all these factors in view, I will urge that our Constitution is a
federal Constitution. I urge that our Constitution is one in which we have given power to the Units
which are both substantial and significant in the legislative sphere and in the eXecutive sphere."
(emphasis supplied) In this conteXt, Dr. B.R. Ambedkar, speaking in the Constituent Assembly had
eXplained the position in the following words:
"There is only one point of Constitutional import to which I propose to make a reference. A serious
complaint is made on the ground that there is too much of centralization and that the States have
been reduced to Municipalities. It is clear that this view is not only an e Xaggeration, but is also
founded on a misunderstanding of what eXactly the Constitution contrives to do. As to the relation
between the Centre and the States, it is necessary to bear in mind the fundamental principle on
which it rests. The basic principle of Federalism is that the legislative and e Xecutive authority is
partitioned between the Centre and the States not by any law to be made by the Centre but the
Constitution itself. This is what the Constitution does. The States, under our Constitution, are in no
way dependent upon the Centre for their legislative or eXecutive authority. The Centre and the
States are co-equal in this matter. It is difficult to see how such a Constitution can be called
centralism. It may be that the Constitution assigns to the Centre too large a field for the operation of
its legislative and eXecutive authority than is to be found in any other Federal Constitution. It may
be that the residuary powers are given to the Centre and not to the States. But these features do not
form the essence of federalism. The chief mark of federalism, as I said lies in the partition of the
legislative and eXecutive authority between the Centre and the Units by the Constitution. This is the
principle embodied in our Constitution." (emphasis supplied) The Constitution incorporates the
concept of federalism in various provisions. The provisions which establish the essence of federalism
i.e. having States and a Centre, with a division of functions between them with sanction of the
Constitution include, among others, Lists II and III of Seventh Schedule that give plenary powers to
the State Legislatures; the authority to Parliament to legislate in a field covered by the State under
Article 252 only with the consent of two or more States, with provision for adoption of such
legislation by any other State; competence of Parliament to legislate in matters pertaining to the
State List, only for a limited period, under Article 249 "in the national interest" and under Article

250 during "emergency"; vesting the President with the power under Article 258(1) to entrust a
State Government, with consent of the Governor, functions in relation to matters to which e Xecutive
power of the Union e X tends, notwithstanding anything contained in the Constitution;
decentralization of power by formation of independent municipalities and Panchayats through 73rd
and 74th Amendment; etc. In re: Under Article 143, Constitution of India, (Special Reference No. 1
of 1964) [AIR 1965 SC 745 (Paragraph 39 at 762)], this Court ruled thus: "In dealing with this
question, it is necessary to bear in mind one fundamental feature of a Federal Constitution. In
England, Parliament is sovereign; and in the words of Dicey, the three distinguishing features of the
principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law
whatever; that no person or body is recognised by the law of England as having a right to over-ride
or set aside the legislation of Parliament, and that the right or power of Parliament e Xtends to every
part of the Queen's dominions (1). On the other hand, the essential characteristic of federalism is
"the distribution of limited eXecutive, legislative and judicial authority among bodies which are
coordinate with and independent of each other". The supremacy of the constitution is fundamental
to the eXistence of a federal State in order to prevent either the legislature of the federal unit or those
of the member States from destroying or impairing that delicate balance of power which satisfies the
particular requirements of States which are desirous of union, but not prepared to merge their
individuality in a unity. This supremacy of the constitution is protected by the authority of an
independent judicial body to act as the interpreter of a scheme of distribution of powers. Nor is any
change possible in the Constitution by the ordinary process of federal or State legislation (2). Thus
the dominant characteristic of the British Constitution cannot be claimed by a Federal Constitution
like ours."
In the case of State of Karnataka v. Union of India & Anr. [1978 (2) SCR 1], Justice Untwalia
(speaking for Justice Singhal, Justice Jaswant Singh and for himself), observed as follows:
"Strictly speaking, our Constitution is not of a federal character where separate, independent and
sovereign State could be said to have joined to form a nation as in the United States of America or as
may be the position in some other countries of the world. It is because of that reason that sometimes
it has been characterized as quasi-federal in nature".
In S. R. Bommai & Ors. v. Union of India & Ors. [AIR 1994 SC 1918 : 1994 (3) SCC 1], a Constitution
Bench comprising 9 Judges of this Court considered the nature of federalism under the Constitution
of India. Justice A.M. Ahmadi, in Paragraph 23 of his Judgment observed as under: "□□□ the
significant absence of the eXpressions like 'federal' or 'federation' in the constitutional vocabulary,
Parliament's powers under Articles 2 and 3 elaborated earlier, the eXtraordinary powers conferred to
meet emergency situations, the residuary powers conferred by Article 248 read with Entry 97 in List
I of the VII Schedule on the Union, the power to amend the Constitution, the power to issue
directions to States, the concept of a single citizenship, the set up of an integrated judiciary, etc.,
etc., have led constitutional e Xperts to doubt the appropriateness of the appellation 'federal' to the
Indian Constitution. Said Prof. K. C. Wheare in his work 'Federal Government:
'What makes one doubt that the Constitution of India is strictly and fully federal, however, are the
powers of intervention in the affairs of the States given by the Constitution to the Central

Government and Parliament'."
Thus in the United States, the sovereign States enjoy their own separate e Xistence which cannot be
impaired; indestructible States having constituted an indestructible Union. In India, on the
contrary, Parliament can by law form a new State, alter the size of an eXisting State, alter the name
of an eXisting State, etc. and even curtail the power, both e Xecutive and legislative, by amending the
Constitution. That is why the Constitution of India is differently described, more appropriately as
'quasi- federal' because it is a miXture of the federal and unitary elements, leaning more towards the
latter but then what is there in a name, what is important to bear in mind is the thrust and
implications of the various provisions of the Constitution bearing on the controversy in regard to
scope and ambit of the Presidential power under Article 356 and related provisions."
(emphasis supplied) Justice K. Ramaswami in Paragraph 247 and 248 of his separate Judgment in
the same case observed as under: - "247. Federalism envisaged in the Constitution of India is a basic
feature in which the Union of India is permanent within the territorial limits set in Article 1 of the
Constitution and is indestructible. The State is the creature of the Constitution and the law made by
Articles 2 to 4 with no territorial integrity, but a permanent entity with its boundaries alterable by a
law made by Parliament. Neither the relative importance of the legislative entries in Schedule VII,
Lists I and II of the Constitution, nor the fiscal control by the Union per se are decisive to conclude
that the Constitution is unitary. The respective legislative powers are traceable to Articles 245 to 254
of the Constitution. The State qua the Constitution is federal in structure and independent in its
eXercise of legislative and eXecutive power. However, being the creature of the Constitution the State
has no right to secede or claim sovereignty. Qua the Union, State is quasi-federal. Both are
coordinating institutions and ought to e X ercise their respective powers with adjustment,
understanding and accommodation to render socio-economic and political justice to the people, to
preserve and elongate the constitutional goals including secularism.
248. The preamble of the Constitution is an integral part of the Constitution. Democratic form of
Government, federal structure, unity and integrity of the nation, secularism, socialism, social justice
and judicial review are basic features of the Constitution."
(emphasis supplied) Justice B. P. Jeevan Reddy, writing separate Judgment (for himself and on
behalf of S.C. Agrawal, J.) concluded in Paragraph 276 thus:
"The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-
`-vis the States does not mean that States are mere appendages of the Centre. Within the sphere
allotted to them, States are supreme. The Centre cannot tamper with their powers. More
particularly, the Courts should not adopt an approach, an interpretation, which has the effect of or
tends to have the effect of whittling down the powers reserved to the States.
□□□□must put the Court on guard against any conscious whittling down of the powers of the States.
Let it be said that the federalism in the Indian Constitution is not a matter of administrative
convenience, but one of principle the outcome of our own historical process and a recognition of the
ground realities. □□□. enough to note that our Constitution has certainly a bias towards Centre

vis-`-vis the States (Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, (1963) 1 SCR 491
at page 540 : (AIR 1962 SC 1406). It is equally necessary to emphasise that Courts should be careful
not to upset the delicately crafted constitutional scheme by a process of interpretation.
(emphasis supplied) In paragraph 98, Sawant, J. proceeded to observe as under: -
"In this connection, we may also refer to what Dr Ambedkar had to say while answering the debate
in the Constituent Assembly in the conte Xt of the very Articles 355, 356 and 357. □□□□. He has
emphasised there that notwithstanding the fact that there are many provisions in the Constitution
whereunder the Centre has been given powers to override the States, our Constitution is a federal
Constitution. It means that the States are sovereign in the field which is left to them. They have a
plenary authority to make any law for the peace, order and good Government of the State."
In Paragraph 106, his following observations are relevant:-
"Thus the federal principle, social pluralism and pluralist democracy which form the basic structure
of our Constitution demand that the judicial review of the Proclamation issued under Article 356(1)
is not only an imperative necessity but is a stringent duty and the e Xercise of power under the said
provision is confined strictly for the purpose and to the circumstances mentioned therein and for
none else." (emphasis supplied) In ITC Ltd. v. Agricultural Produce Market Committee & Ors.
[(2002) 9 SCC 232], this Court ruled thus: - "The Constitution of India deserves to be interpreted,
language permitting, in a manner that it does not whittle down the powers of the State Legislature
and preserves the federalism while also upholding the Central supremacy as contemplated by some
of its articles□." (emphasis supplied) In State of West Bengal v. Kesoram Industries Ltd. & Ors. [AIR
2005 SC 1646 : (2004) 10 SCC 201], decided by a Constitution bench comprising 5 Judges, the
majority judgment in Paragraph 50 observed as under: "Yet another angle which the Constitutional
Courts would advisedly do better to keep in view while dealing with a tax legislation, in the light of
the purported conflict between the powers of the Union and the State to legislate, which was stated
forcefully and which was logically based on an analytical e Xamination of constitutional scheme by
Jeevan Reddy, J. in S.R. Bommai and others v. Union of India [(1994) 3 SCC 1], may be touched.
Our Constitution has a federal structure. Several provisions of the Constitution unmistakably show
that the Founding Fathers intended to create a strong centre□.."
(emphasis supplied) True, the federal principle is dominant in our Constitution and that principle is
one of its basic features, but, it is also equally true that federalism under Indian Constitution leans
in favour of a strong centre, a feature that militates against the concept of strong federalism. Some
of the provisions that can be referred to in this conte Xt include the power of the Union to deal with
eXtraordinary situations such as during the emergency (Article 250, 252, 253) and in the event of a
proclamation being issued under Article 356 that the governance of a State cannot be carried on in
accordance with the provisions of the Constitution; the power of the Parliament to legislate with
respect to a matter in the State List in the national interest in case there is a resolution of the
Council of States supported by prescribed majority (Article

249); the power of the Parliament to provide for creation and regulation of All India Services
common to Union and the States in case there is a Resolution of the Council of States supported by
not less than two-third majority (Article 312); there is only one citizenship namely the citizenship of
India; and, perhaps most important, the power of the Parliament in relation to the formation of new
States and alteration of areas, boundaries or names of States (Article 3). This Court in the case of
State of West Bengal v. Union of India [(1964) 1 SCR 371 at 396], has observed that our Constitution
is not of a true or a traditional pattern of federation. In a similar vein are other judgments of the
Court, like State of Rajasthan & Ors. v. Union of India Etc. Etc. [(1978) 1 SCR 1 at pages 4G and
33F], that speak of the conspectus of the provisions that whatever appearance of a federal structure
our Constitution may have, judging by the contents of the power which a number of provisions carry
with them and the use made of them, is in its operation, more unitary than federal.
The concept of federalism in our Constitution, it has been held, is vis-`-vis the legislative power as
would be evident by various Articles of the Constitution. In fact, it has come into focus in the conte Xt
of distribution of legislative powers under Article 246. {ITC Ltd. V. Agricultural Produce Market
Committee & Ors. [(2002) 9 SCC 232]} The Commission on Inter-State Relations (Sarkaria
Commission), in its Report has specifically said that the Constitution as emerged from the
Constituent Assembly in 1949, has important federal features but it cannot be federal in the classical
sense. It was not the result of an agreement to join the federation, unlike the United States. There is
no dual citizenship, i.e., of the Union and the States. (Pages 8 and 9 of the Report of the Commission
on Centre-State Relations, Part-I, and paragraphs 1.3.04, 1.3.05, 1.3.06, 1.3.07]. The arguments of
the Writ Petitioners about the status, position, role and character of the Council of States in the
Constitutional scheme have to be e Xamined in the light of well- settled law, culled out above, as to
the nature of Indian federalism.
In his attempt to argue that there necessarily has to be a territorial ne Xus with a State or a Union
Territory in a federal set up, Mr. Rao for the State of Tamil Nadu referred to the use of the
eXpression "We, the people of India" in the Preamble, description of India as a "Union of States" in
Article 1; territory of India being comprised of (1) the territories of the States and
(b) the territories of the Union Territories as per Article 1(3); Article 326 requiring a person to be a
citizen of India so as to be an elector; and the provisions about citizenship of India as contained in
Articles 5, 6, 8 & 9 laying stress on the territory of India. He also referred to the Collins Paperback
English Dictionary to point out meanings of the eXpressions "Country" [a territory distinguished by
its people, culture, geography, etc.; an area of land distinguished by its political autonomy; state; the
people of a territory or state] and "State" [a sovereign political power or community; the territory
occupied by such a community; the sphere of power in such a community: affairs of state; one of a
number of areas or communities having their own governments and forming a federation under a
sovereign government, as in the U.S.].
Mr. Sachar, taking a similar line, submitted that requirement of domicile is so intrinsic to the
concept of Council of States that its deletion not only negates the constitutional scheme making the
working of the Constitution undemocratic but also violates the federal principle which is one of the
basic features of the Constitution. He also submitted that the central idea to be kept in mind for

appreciating the argument is that it is government "of the people" and "by the people".
Thus, it is the argument of the petitioners that "Birth" and "Residence" are the two constituently
recognized links with a State or a Union Territory in terms of the Constitution. In order to represent
a State or a Union Territory in the Council of States in terms of Article 80, a person should be a
citizen of India having an identifiable neXus with the State or the Union Territory because the very
concept of Council of States recognizes that in a federal constitutional set up, the States and Union
Territories have their own problems, interests, concerns and views about many issues and,
therefore, there shall be a forum eXclusively to represent the States and the Union Territories in the
national legislature, i.e. Parliament. Unless a person belongs to a State or a Union Territory, in the
scheme of the Constitution he will not have the capacity to represent the State or the Union
Territory, as the case may be.
But then, India is not a federal State in the traditional sense of the term. There can be no doubt as to
the fact, and this is of utmost significance for purposes at hand, that in the conte Xt of India, the
principle of federalism is not territory related. This is evident from the fact that India is not a true
federation formed by agreement between various States and territorially it is open to the Central
Government under Article 3 of the Constitution, not only to change the boundaries, but even to
eXtinguish a State {State of West Bengal v. Union of India, [(1964) 1 SCR 371]}. Further, when it
comes to eXercising powers, they are weighed heavily in favour of the Centre, so much so that
various descriptions have been used to describe India such as a pseudo-federation or quasi-
federation in an amphibian form, etc. The Constitution provides for the bicameral legislature at the
centre. The House of the People is elected directly by the people. The Council of States is elected by
the Members of the Legislative assemblies of the States. It is the electorate in every State who are in
the best position to decide who will represent the interests of the State, whether as members of the
lower house or the upper house.
It is no part of Federal principle that the representatives of the States must belong to that State.
There is no such principle discernible as an essential attribute of Federalism, even in the various
eXamples of upper chamber in other countries.
Other Constitutions □ Role of Rajya Sabha vis-`-vis role of Upper House in the other Constitutions
The growth of 'Bicameralism' in parliamentary forms of government has been functionally
associated with the need for effective federal structures. This ne Xus between the role of 'Second
Chambers' or Upper Houses of Parliament and better co-ordination between the Central
government and those of the constituent units, was perhaps first laid down in definite terms with
the Constitution of the United States of America, which was ratified by the thirteen original states of
the Union in the year 1787. The Upper House of the Congress of the U.S.A., known as the Senate,
was theoretically modeled on the House of Lords in the British Parliament, but was totally different
from the latter with respect to its composition and powers.
Since then, many nations have adopted a bicameral form of central legislature, even though some of
them are not federations. On account of Colonial rule, these British institutions of parliamentary
governance were also embodied in the British North America Act, 1867 by which the Dominion of

Canada came into eXistence and The Constitution of India, 1950. In Canada, the Parliament consists
of the House of Commons and the Senate ('Upper House'). Likewise the Parliament of the Union of
India consists of the Lok Sabha (House of the People) and the Rajya Sabha (Council of States, which
is the Upper House). In terms of their functions as agencies of representative democracies, the
Lower Houses in the Legislatures of India, U.S.A and Canada □ namely the Lok Sabha, the House of
Representatives and the House of Commons broadly follow the same system of composition. As of
now, Members of the Lower Houses are elected from pre- designated constituencies through
universal adult suffrage. The demarcation of these constituencies is in accordance with distribution
of population, so as to accord equity in the value of each vote throughout the territory of the country.
However, with the e X istence of constituent states of varying areas and populations, the
representation accorded to these states in the Lower House becomes highly unequal. Hence, the
composition of the Upper House has become an indicator of federalism, so as to more adequately
reflect the interests of the constituent states and ensure a mechanism of checks and balances against
the eXercise of power by central authorities that might affect the interests of the constituent states.
However, the area of focus is to analyse the role of second chambers in the conte Xt of centre-state
relations i.e. embodiment of different degrees of federalism. This motive also illustrates the choice of
the Indian Rajya Sabha, the U.S. Senate and the Canadian Senate, since these three nations are
notable eXamples of working federations over large territories and populations which have a high
degree of diversity at the same time. The chief criterion of comparison will be the varying profile of
representation accorded to the constituents units by the methods of composition and the differences
in the powers vested with the 'Upper houses' in the constitutional scheme of the countries. Many
Political theorists and Constitutional e Xperts are of the opinion that in the contemporary conte Xt,
'Second Chambers' are losing their intended characteristics of effectively representing the interests
of states and are increasingly becoming 'national' institutions on account of more economic, social
and political affinity developing between states. Hence, a comparative study of the working of
bicameralism can assist the understanding of such dynamics within a Federal system of governance.
As mentioned earlier, the emergence of Second Chamber in a Federal conte Xt was first seen in the
Constitution of the United States. The thirteen original colonies had been governed under varying
structures until independence from British Rule and hence the element of states' identity was
carried into the subsequent Union. For purposes of the Federal legislature, there were concerns by
the smaller states that the recognition of constituencies on the basis of population would accord
more representation and power to the bigger and more populous states. Furthermore, in that era,
voting rights were limited to white males and hence the size of the electorates were relatively larger
in the Northern states as compared to the Southern states which had a comparatively higher
proportion of Negroid population who had no franchise. Hence, the motives of Federalism and
ensuring of more parity between states of different sizes resulted in a compromise in the drafting of
the constitution. While the Lower House of Congress, i.e. the House of representatives was to be
constituted by members elected from Constituencies based on population distribution, the Senate
was based on equal representation for all states. Initially, the two senators from each state were
elected by the respective State legislatures but after the 17th amendment of 1913, Senators have been
elected by open adult suffrage among the whole electorate of a state. This inherent motive of
ensuring a counter-balance to the power of the federal government and larger states has persisted in
the functioning of the Senate. This is reflected by the fact that the U.S. Senate has also been vested

with certain eXtra-legislative powers, which distinguish it from Second Chambers in other countries.
Moreover, the Senate is a continuing body with senators being elected for 6 year terms and 1/3rd of
the members retiring or seeking re-election every 2 years. With the addition of more states to the
Union, the numerical strength of the U.S. senate has also increased. The Parliament of the
Dominion of Canada in its present from was established by the British North America Act, 1867
(also known as the Constitution Act, 1867). Canada to this day remains a constitutional monarchy
with a parliamentary form of government, and a Governor-General appointed by the British
sovereign acts as the nominal head of state. Prior to the 1867 Act, the large territories that now
constitute Canada (with the eXception of Quebec, which had the historical influence of French rule)
were being administered as distinct territories. This act established a confederation among the
constituent provinces. Hence, the parliament of the Dominion was in effect the federal legislature
comprising of the House of Commons and the Senate. The Senate was given two major functions in
the constitution. First, it was to be the chamber of "sober second thought". Such a limit should
prevent the elected House of Commons from turning Canada into a "mobocracy", as the framers of
Confederation (the 1867 Act) saw in case of the U.S.A. The Senate was thus given the power to
overturn many types of legislation introduced by the Commons and also to delay any changes to the
constitution, thus 'preventing the Commons from committing any rash actions'. While the House of
Commons was to be constituted through constituency based elections on the lines of the House of
Commons in the British Parliament and the House of Representatives in the U.S. Congress, the
Senate accorded equivalent representation to designated regions rather than the eXisting provinces.
The number of senators from each state has consequently varied with changes in the confederation.
However, the Canadian senators are appointed by the Governor-General in consultation with the
EXecutive and hence the Canadian senate has structurally been subservient to the House of
Commons and consequently also to the Federal eXecutive to an eXtent. This system of appointment
of senators was preferred over an electoral system owing to unfavourable e Xperiences with elected
'Second Chambers' like the Legislative Councils in Ontario and Quebec, prior to the formation of the
Confederation in 1867. Another compelling factor behind the designing of a weak senate was the
then recent e X ample of the United States where some quarters saw the Civil war as a direct
consequence of allowing too much power to the states. However, the role of the Canadian senate has
been widely criticized owning to it's method of composition.
The genesis of the Indian Rajya Sabha on the other hand benefited from the constitutional history of
several nations which allowed the Constituent assembly to e Xamine the federal functions of an
Upper House. However, 'bicameralism' had been introduced to the provincial legislatures under
British rule in 1921. The Government of India Act, 1935 also created an Upper House in the Federal
legislature, whose members were to be elected by the members of provincial legislatures and in case
of Princely states to be nominated by the rulers of such territories. However, on account of the
realities faced by the young Indian union, a Council of States (Rajya Sabha) in the Union Parliament
was seen as an essential requirement for a federal order. Besides the former British provinces, there
were vast areas of princely states that had to be administered under the Union. Furthermore, the
diversity in economic and cultural factors between regions also posed a challenge for the newly
independent country. Hence, the Upper House was instituted by the Constitution framers which
would substantially consist of members elected by state legislatures and have a fi Xed number of
nominated members representing non-political fields. However, the distribution of representation

between states in the Rajya Sabha is neither equal nor entirely based on population distribution. A
basic formula is used to assign relatively more weightage to smaller states but larger states are
accorded weightage regressively for additional population. Hence the Rajya Sabha incorporates
unequal representation for states but with proportionally more representation given to smaller
states. The theory behind such allocation of seats is to safeguard the interests of the smaller states
but at the same time giving adequate representation to the lager states so that the will of the
representatives of a minority of the electorate does not prevail over that of a majority.
In India, Article 80 of the Constitution of India prescribes the composition of the Rajya Sabha. The
maximum strength of the house is 250 members, out of which up to 238 members are the elected
representatives of the states and the Union territories [Article 80(1) (b)], and 12 members are
nominated by the President as representatives of non-political fields like literature, science, art and
social services [Articles 80(1)(a) and 80(3)]. The members from the states are elected by the elected
members of the respective State legislative assemblies as per the system of Proportional
representation by means of the single transferable vote [Article 80(4)]. The manner of election for
representatives from Union territories has been left to prescription by parliament [Article 80(5)].
The allocation of seats for the various states and union territories of the Indian Union is enumerated
in the Fourth schedule to the constitution, which is read with Articles 4(1) and 80(2). This allocation
has obviously varied with the admission and reorganisation of States.
Under Article 83(1), the Rajya Sabha is a permanent body with members being elected for 6 year
terms and 1/3rd of the members retiring every 2 years. These 'staggered terms' also lead to a
consequence where the membership of the Rajya Sabha may not reflect the political equations
present in the Lok Sabha at the same time. The Rajya Sabha cannot be dissolved and the
qualifications for its membership are citizenship of India and an age requisite of 30 years [Article
84]. As per Article 89, the Vice-president of India is the E X- officio Chairman of the Rajya Sabha and
the House is bound to elect a Deputy Chairman. Articles 90, 91, 92 and 93 further elaborate upon
the powers of these functionaries. The American Senate on the other hand accords equal
representation to all 50 states, irrespective of varying areas and populations. Under Article 1, section
3 of the U.S. Constitution, two senators are elected from every state by an open franchise, and hence
the total membership of the Senate stands at 100. It is generally perceived in American society that
the office of a senator commands more prestige than that of a member in the House of
Representatives. As has been stated before, Senators were chosen by members of the respective
State legislatures before the 17th amendment of 1913 by which the system of open franchise was
introduced. The candidates seeking election to the Senate have to be more than 30 years old and
should have been citizens of the U.S.A. for more than 9 years and also should have legal residence in
the state they are seeking election from. Senators are elected for 6 year terms, with 1/3rd of the
members either retiring or seeking re-election every 2 years. Senators can run for re- election an
unlimited number of times. The Vice President of the U.S.A. serves as the presiding officer of the
Senate, who has a right to vote on matters only in case of a deadlock. However, for all practical
purposes the presiding function is performed by a President Pro Tempore (Temporary presiding
officer), who is usually the senator from the majority party with the longest continuous service. The
floor leaders of the majority and minority parties are chosen at separate meetings for both parties
(known as Caucus/conference) that are held before each new session of Congress. The Democratic

and Republican parties also choose their respective Whips and Policy committees in the Caucus.
The Senate in the Canadian Parliament, is however not an elected body. As indicated earlier, the
Senators are appointed by the Governor-General on the advice of the Prime Minister. The
membership of the house as of today is 105 and it accords equivalent representation to designated
regions and not necessarily the constituent provinces and territories. The Prime Minister's decision
regarding appointment of senators does not require the approval of anyone else and is not subject to
review. The qualifications for membership are an age requirement of 30 years, citizenship of the
Dominion of Canada by natural birth or naturalization and residency within the province from
where appointment is sought. In the case of Quebec, appointees must be residents of the electoral
district for which they are appointed. Once appointed, senators hold office until the age of 75 unless
they miss two consecutive sessions of Parliament. Until 1965, they used to hold office for life. Even
though the Canadian senate is seen as entirely dependent on the E X ecutive owing to party
affiliations in appointments, the provision for holding terms till the age of 75 does theoretically
allow for the possibility of the Opposition to command a majority in the Senate and thereby disagree
with the Lower House or the eXecutive, since the members of the Lower House are elected for 5 year
terms. Now that a general idea has been gained on the methods of composition of the Second
Chambers in India, U.S.A. and Canada, one can analyse the varying degree of representation
accorded to constituent states in the three systems before proceeding to compare the policy scope as
well as the practical and eXtra-legislative powers accorded to these chambers. The idea of equal
representation for states in the Senate was built into the American Constitution. The 17th
amendment can hence be considered a reform in so far as it threw the election of senators open to
the general public. However, the weightage accorded to each vote across states is inversely
proportional to the population of the concerned state. Hence, actual representation per vote in the
U.S. senate is higher for smaller states and likewise much lower for more populous states. On a
theoretical as well as practical standpoint, this can create situations where the representatives of the
minority of the electorate can guide legislation over those of the majority. Canada opted for a
variation of the equivalent representation for designated regions and hence the representation
accorded to provinces and territories was loosely based on population distribution. However,
demographic changes over many decades impact the actual representation accorded to each
territory. Furthermore, the nominal system of appointment to the Canadian Senate creates the
position that the will of the Senate will ordinarily flow with the federal eXecutive.
The unequal yet weighed proportional representation method adopted for Rajya Sabha elections was
a consequence of the analysis of representation in other federal bicameral legislatures. Even though
it was recognized that smaller states required safeguards in terms of representation, it was further
observed that enforcing equal representation for states like in the U.S.A. would create immense
asymmetry in the representation of equally divided segments of the electorate. Furthermore, the
formation and re-organisation of states in India since independence has largely been on linguistic
lines and other factors of cultural homogeneity among groups, where the sizes of these communities
vary tremendously in comparison to each other. Hence, allocating seats to the states in the Rajya
Sabha, either on equal terms or absolutely in accordance with population distribution would have
been eXtreme solutions. Hence, the formula applied for the purposes of allocation of seats in the
Fourth schedule seems to be a justifiable solution. This point can be illustrated with the trend that

between 1962 and 1987, siX new states were carved out of Assam. If India had followed the equal
representation model, these new states, containing barely 1% of India's population, would have had
to be given 25% of all the votes in the upper chamber. Hypothetically, the more populous states
would never have allowed this. Thus an essential feature of the working of federalism in India i.e.
the creation of new states, some of which had violent separatist tendencies, would have been
difficult under the U.S. principle of representation for each state equally. The Irish Constitution like
the Indian Constitution does not have strict federalism. Residence is not insisted upon under the
Irish Constitution (See Constitution of India by Basu, 6th Edn. Vol.F). Similarly, in the case of
Japanese Constitution, qualifications are prescribed by the statute and not by the Constitution. The
various constitutions of other countries show that residence, in the matter of qualifications, becomes
a constitutional requirement only if it is so e Xpressly stated in the Constitution. Residence is not the
essence of the structure of the Upper House. The Upper House will not collapse if residence as an
element is removed. Therefore, it is not a prerequisite of federalism.
It can be safely said that as long as the State has a right to be represented in the Council of States by
its chosen representatives, who are citizens of the country, it cannot be said that federalism is
affected. It cannot be said that residential requirement for membership to the Upper House is an
essential basic feature of all Federal Constitutions. Hence, if the Indian Parliament, in its wisdom
has chosen not to require residential qualification, it would definitely not violate the basic feature of
Federalism. Our Constitution does not cease to be a federal constitution simply because a Rajya
Sabha Member does not "ordinarily reside" in the State from which he is elected.
Whether Basic structure doctrine available to determine validity of a statute The question arises as
to whether the ground of violation of the basic feature of the Constitution can be a ground to
challenge the validity of an Act of Parliament just as it can be a ground to challenge the
constitutional validity of a constitutional amendment. It has been submitted on behalf of Union of
India that basic structure doctrine is inapplicable to Statutes.
Mr. Sachar was, however, at pains to submit arguments in support of affirmative plea in this regard.
He referred to Dr. D.C. Wadhwa & Ors. v. State of Bihar & Ors. [1987 (1) SCC 378] as an earlier case
wherein the Bihar Intermediate Education Council Ordinance, 1985 was struck down as
unconstitutional and void on the basis that it was repugnant to the constitutional scheme.
In that case Government of Bihar was found to have "made it a settled practice to go on re-
promulgating ordinances from time to time and this was done methodologically and with a sense of
deliberateness". Immediately at the conclusion of each session of the State legislature, a circular
letter would be sent by the Special Secretary in the Department of Parliamentary Affairs to all the
Departments intimating to them that the session of the legislature had been got prorogued and that
under Article 213 clause (2)(a) of the Constitution all the ordinances would cease to be in force after
siX weeks of the date of reassembly of the legislature and "that they should therefore get in touch
with the Law Department and immediate action should be initiated" to get all the concerned
ordinances re-promulgated before the date of their eXpiry.
This Court in above fact situation held and observed as under :-

"When the constitutional provision stipulates that an ordinance promulgated by the Governor to
meet an emergent situation shall cease to be in operation at the e Xpiration of siX weeks from the
reassembly of the legislature and the government if it wishes the provisions of the ordinance to be
continued in force beyond the period of si X weeks has to go before the legislature which is the
constitutional authority entrusted with the law-making function, it would most certainly be a
colourable eXercise of power for the government to ignore the legislature and to repromulgate the
ordinance and thus to continue to regulate the life and liberty of the citizens through ordinance
made by the eXecutive. Such a strategem would be repugnant to the constitutional scheme, as it
would enable the eXecutive to transgress its constitutional limitation in the matter of law-making in
an emergent situation and to covertly and indirectly arrogate to itself the law-making function of the
legislature."
Noticeably the above view was taken about the Ordinances issued by the State of Bihar in the face of
clear violation of the eXpress constitutional provisions. The learned counsel ne Xt referred to L.
Chandra Kumar v. Union of India & Ors. [1997 (3) SCC 261 (7 Judges) (Paragraph 17 page 277 and
Paragraph 99 at p.311)], in which case not only was the Constitutional amendment depriving High
Court of its jurisdiction under Article 226 and 227 (from decisions of Administrative Tribunal)
struck down on the ground that taking away judicial review from the High Courts violated the basic
structure doctrine but even Section 28 of the Administrative Tribunal Act 1985, providing for
"eXclusion of jurisdiction of Courts e Xcept the Supreme Court under Article 136 of Constitution" was
also struck down. In the above conteXt, reference has also been made to Indra Sawhney v. Union of
India & Ors. [2000 (1) SCC 168 at page 202 (Paragraph 65)]. A Bench of 3 Judges of this Court
eXpressly held in that case that a State enacted law (Kerala Act on creamy layer) violated the
doctrine of basic structure. The question before the Court essentially was as to whether the right to
equality guaranteed by the Constitution and the law declared by the Supreme Court could be set at
naught by a legislative enactment. The issues raised also concerned the legislative competence of the
State Legislature. In paragraph 65 of the judgment, it was observed as under:- "□.Parliament and
the legislature in this country cannot transgress the basic feature of the Constitution, namely, the
principle of equality enshrined in Article 14 of which Article 16(1) is a facet.
Whether the creamy layer is not eXcluded or whether forward castes get included in the list of
backward classes, the position will be the same, namely, that there will be a breach not only of
Article 14 but of the basic structure of the Constitution. The non-e Xclusion of the creamy layer or the
inclusion of forward castes in the list of backward classes will, therefore, be totally illegal. Such an
illegality offending the root of the Constitution of India cannot be allowed to be perpetuated even by
constitutional amendment. The Kerala Legislature is, therefore, least competent to perpetuate such
an illegal discrimination. What even Parliament cannot do, the Kerala Legislature cannot achieve."
It is well settled that legislation can be declared invalid or unconstitutional only on two grounds
namely, (i) lack of legislative competence and (ii) violation of any fundamental rights or any
provision of the Constitution (See □ Smt. Indira Nehru Gandhi v. Raj Narain, [1975 Supp SCC 1] ).
In other cases relied upon by Mr. Sachar where observations have been made about a statute being
contrary to basic structure, the question was neither raised nor considered that basic structure
principle for invalidation is available only for constitutional amendments and not for statutes. A.N.

Ray, CJ, in Indira Nehru Gandhi's case (supra), observed in paragraph 132 as under: -
"The contentions on behalf of the respondent that ordinary legislative measures are subject like
Constitution Amendments to the restrictions of not damaging or destroying basic structure, or basic
features are utterly unsound. It has to be appreciated at the threshold that the contention that
legislative measures are subject to restrictions of the theory of basic structures or basic features is to
equate legislative measures with Constitution Amendment.
(emphasis supplied)"
In paragraph 153 of his judgment, he ruled as under: - "The contentions of the respondent that the
Amendment Acts of 1974 and 1975 are subject to basic features or basic structure or basic
framework fails on two grounds. First, legislative measures are not subject to the theory of basic
features or basic structure or basic framework. Second, the majority view in Kesavananda Bharati's
case (supra) is that the Twenty-ninth 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) In same case, K.K. Mathew, J. in Paragraph 345 of his separate judgment ruled
as under: -
"I think the inhibition to destroy or damage the basic structure by an amendment of the
Constitution flows from the limitation on the power of amendment under Article 368 read into it by
the majority in Bharati's case (supra) because of their assumption that there are certain
fundamental features in the Constitution which its makers intended to remain there in perpetuity.
But I do not find any such inhibition so far as the power of Parliament or State Legislatures to pass
laws is concerned. Articles 245 and 246 give the power and also provide the limitation upon the
power of these organs to pass laws. It is only the specific provisions enacted in the Constitution
which could operate as limitation upon that power. The preamble, though a part of the Constitution,
is neither a source of power nor a limitation upon that power. The preamble sets out the ideological
aspirations of the people. The essential features of the great concepts set out in the preamble are
delineated in the various provisions of the Constitution. It is these specific provisions in the body of
the Constitution which determine the type of democracy which the founders of that instrument
established; the quality and nature of justice, political, social and economic which was their
desideratum, the content of liberty of thought and eXpression which they entrenched in that
document, the scope of equality of status and of opportunity which they enshrined in it. These
specific provisions enacted in the Constitution alone can determine the basic structure of the
Constitution as established. These specific provisions, either separately or in combination determine
the content of the great concepts set out in the preamble. It is impossible to spin out any concrete
concept of basic structure out of the gossamer concepts set out in the preamble. The specific
provisions of the Constitution are the stuff from which the basic structure has to be woven. The
argument of Counsel for the respondent proceeded on the assumption that there are certain norms
for free and fair election in an ideal democracy and the law laid down by Parliament or State
Legislatures must be tested on those norms and, if found wanting, must be struck down. The norms

of election set out by Parliament or State Legislatures tested in the light of the provisions of the
Constitution or necessary implications therefrom constitute the law of the land. That law cannot be
subject to any other test, like the test of free and fair election in an ideal democracy."
(emphasis supplied) In Paragraph 356, he proceeded to rule as under: - "There is no support from
the majority in Bharati's case (supra) for the proposition advanced by Counsel that an ordinary law,
if it damages or destroys basic structure should be held bad or for the proposition that a
constitutional amendment putting an Act in the Ninth Schedule would make the provisions of the
Act vulnerable for the reason that they damage or destroy a basic structure constituted not by the
fundamental rights taken away or abridged but some other basic structure. And, in principle, I see
no reason for accepting the correctness of the proposition."
(emphasis supplied) In same case, Chandrachud, J. in Paragraph 691 of his separate judgment ruled
as under: -
"Ordinary laws have to answer two tests for their validity: (1) The law must be within the legislative
competence of the legislature as defined and specified in Chapter I, Part XI of the Constitution, and
(2) it must not offend against the provisions of Article 13(1) and (2) of the Constitution. "Basic
structure", by the majority judgment, is not a part of the fundamental rights nor indeed a provision
of the Constitution. The theory of basic structure is woven out of the conspectus of the Constitution
and the amending power is subjected to it because it is a constituent power. "The power to amend
the fundamental instrument cannot carry with it the power to destroy its essential features □ this, in
brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the
validity of ordinary laws made under the Constitution."
(emphasis supplied) In Paragraph 692, he would rule as under: - "There is no parado X, because
certain limitations operate upon the higher power for the reason that it is a higher power. A
constitutional amendment has to be passed by a special majority and certain such amendments have
to be ratified by the legislatures of not less than one-half of the States as provided by Article 368(2).
An ordinary legislation can be passed by a simple majority. The two powers, though species of the
same genus, operate in different fields and are therefore subject to different limitations." (emphasis
supplied) A Constitution Bench (7 Judges) in State of Karnataka v. Union of India & Anr. [(1977) 4
SCC 608] held, per majority, (paragraph 120) as under:- "□□ in every case where reliance is placed
upon it, in the course of an attack upon legislation, whether ordinary or constituent (in the sense
that it is an amendment of the Constitution), what is put forward as part of "a basic structure" must
be justified by references to the eXpress provisions of the Constitution□□"
In Paragraph 197, it was observed as under: - "□□.if a law is within the legislative competence of the
Legislature, it cannot be invalidated on the supposed ground that it has added something to, or has
supplemented, a constitutional provision so long as the addition or supplementation is not
inconsistent with any provision of the Constitution□."
The following observations in Paragraph 238 of same judgment are also germane to the issue: - "Mr.
Sinha also contended that an ordinary law cannot go against the basic scheme or the fundamental

backbone of the Centre-State relationship as enshrined in the Constitution. He put his argument in
this respect in a very ingenious way because he felt difficulty in placing it in a direct manner by
saying that an ordinary law cannot violate the basic structure of the Constitution. In the case of Smt
Indira Nehru Gandhi v.
Shri Raj Narain such an argument was eXpressedly rejected by this Court□□.."
The doctrine of 'Basic Feature' in the conte Xt of our Constitution, thus, does not apply to ordinary
legislation which has only a dual criteria to meet, namely:
(i) It should relate to a matter within its competence;
(ii) It should not be void under Article 13 as being an unreasonable restriction on a fundamental
right or as being repugnant to an eXpress constitutional prohibition.
Reference can also be made in this respect to Public Services Tribunal Bar Association v. State of
U.P. & Anr. [2003 (4) SCC 104] and State of Andhra Pradesh and Ors. V. McDowell & Company &
Ors. [1996(3) SCC 709]. The basic structure theory imposes limitation on the power of the
Parliament to amend the Constitution. An amendment to the Constitution under Article 368 could
be challenged on the ground of violation of the basic structure of the Constitution. An ordinary
legislation cannot be so challenged. The challenge to a law made, within its legislative competence,
by Parliament on the ground of violation of the basic structure of the Constitution is thus not
available to the petitioners.
As stated above, 'residence' is not the constitutional requirement and, therefore, the question of
violation of basic structure does not arise.
Argument of contemporary legislation & Constitutional Scheme Mr. Nariman further submitted that
the Constitution and the Representation of People Act, 1951 are to be read as an "integral scheme".
In this conteXt, reference was made to the fact that the Provisional Parliament that passed the
Representation of People Act, 1950 and the Representation of People Act, 1951 was the same as the
Constituent body that had passed and adopted the Constitution. In support of the contention about
the integrated scheme of 'Election', Mr. Nariman would first refer to N.P. Ponnuswami v. Returning
Officer, Namakkal Constituency & Ors. [AIR 1952 SC 64:1952 SCR 218]. In that case, the appellant
had challenged the dismissal by the High Court of his petition under Article 226 of the Constitution
praying for a writ of certiorari to quash the order of the Returning Officer rejecting his nomination
paper in an election, on the ground that it had no jurisdiction to interfere with the order of the
Returning Officer by reason of the provisions of Article 329(b) of the Constitution. Justice Fazal Ali,
speaking for the Bench, observed as under:
"Broadly speaking, before an election machinery can be brought into operation, there are three
requisites which require to be attended to, namely, (1) there should be a set of laws and rules making
provisions with respect to all matters relating to, or in connection with, elections, and it should be
decided as to how these laws and rules are to be made; (2) there should be an eXecutive charged with

the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal
with disputes arising out of or in connection with elections. Articles 327 and 328 deal with the first
of these requisites, Article 324 with the second and Article 329 with the third requisite. □□.. Part XV
of the Constitution is really a code in itself providing the entire ground-work for enacting
appropriate laws and setting up suitable machinery for the conduct of elections.
"The Representation of the People Act, 1951, which was passed by Parliament under Article 327 of
the Constitution, makes detailed provisions in regard to all matters and all stages connected with
elections to the various legislatures in this country.
"The fallacy of the argument lies in treating a single step taken in furtherance of an election as
equivalent to election. The decision of this appeal however turns not on the construction of the
single word "election", but on the construction of the compendious eXpression □ "no election shall
be called in question" in its conteXt and setting, with due regard to the scheme of Part XV of the
Constitution and the Representation of the People Act, 1951. Evidently, the argument has no bearing
on this method of approach to the question posed in this appeal, which appears to me to be the only
correct method."
(Emphasis supplied) In Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi
& Ors. [1978 (1) SCC 405 (427)], a similar view was taken in the following words: - "The paramount
policy of the Constitution-framers in declaring that no election shall be called in question e Xcept the
way it is provided for in Article 329(b) and the Representation of the People Act, 1951, compels us to
read, as Fazal Ali J. did in Ponnuswami, the Constitution and the Act together as an integral scheme.
The reason for postponement of election litigation to the post-election stage is that elections shall
not unduly be protracted or obstructed. The speed and promptitude in getting due representation
for the electors in the legislative bodies is the real reason suggested in the course of judgment.
38. Article 324, which we have set out earlier, is a plenary provision vesting the whole responsibility
for national and State elections and, therefore, the necessary power to discharge that function. It is
true that Article 324 has to be read in the light of the constitutional scheme and the 1950 Act and the
1951 Act."
The above view was reiterated by the Constitution Bench in Gujarat Assembly Election case [2002
(8) SCC 237]. By reading the Constitution and the Representation of People Act together as
constituting a scheme, it was observed as under: - "(e) Neither, under the Constitution nor under the
Representation of the People Act, any period of limitation has been prescribed for holding election
for constituting Legislative Assembly after premature dissolution of the e Xisting one. However, in
view of the scheme of the Constitution and the Representation of the People Act, the elections
should be held within siX months for constituting Legislative Assembly from the date of dissolution
of the Legislative Assembly."
Mr. Nariman submitted that the same Parliamentary body which passed the Constitution, acting as
the Provisional Parliament under Article 379 (since repealed), also passed the law with regard to
who was to be the representative of a State in the Council of States. He pointed out that Section 3 of

the RP Act 1951, as originally enacted, while prescribing "Qualifications for membership of the
Council of States" had made it essential that the person offering himself to be chosen as a
representative of any State in the Council of States must be "an elector" for a Parliamentary
Constituency "in that State", which principle applied uniformly to Part A or Part B States (other than
the State of Jammu & Kashmir). In the original enactment, there was a separate arrangement for
Part C States, some of which were put in different groups to provide for unified constituencies for
returning a common representative (for the State or the Group) to the Council of States, though the
qualification in the nature of compulsory status of elector "in that State" would apply there also,
with some modification here and there, in that, generally the person was required to be "an elector
for a Parliamentary constituency in that State or in any of the States in that group, as the case may
be". In the case of the States of Ajmer and Coorg or of the States of Manipur and Tripura, which
formed two separate groups for the purpose in the Council of States, the arrangement was to rotate
the seats and so it was essential for the candidate to be "an elector for any Parliamentary
constituency in the State in which the election of such representative is to be held". Mr. P.P. Rao,
Senior Advocate appearing for the State of Tamil Nadu had a similar take on the subject and pressed
in aid the principle of 'contemporanea eXpositio'. His submission was that this principle is relevant
for interpreting the words "the representative of each State" in Article 80(4) of the Constitution. His
argument was that the RP Acts 1950 and 1951 are contemporaneous legislations made by the
Constituent Assembly itself acting as provisional Parliament and that they are a useful aid for the
interpretation of Articles 79 and 80, just as subordinate legislation is for interpreting an Act.
In the above conteXt, Mr. Rao referred to various decisions. He would urge that the following words,
eXtracted from Paragraph 236 in I.C. Golak Nath & Ors. v. State of Punjab & Anr. [(1967) 2 SCR 762]
be borne mind: "The best e X position of the Constitution is that which it has received from
contemporaneous judicial decisions and enactments. We find a rare unanimity of view among
judges and legislators from the very commencement of the Constitution that the fundamental rights
are within the reach of the amending power. No one in the Parliament doubted this proposition
when the Constitution First Amendment Act of 1951 was passed. It is remarkable that most of the
members of this Parliament were also members of the Constituent Assembly." (emphasis supplied)
He would then refer to Hanlon v. The Law Society [(1980) 2 All ER 199, 218 (H.L.)], it was held as
under: "A study of the cases and of the leading te Xtbooks (Craies on Statute Law (7th Edn., 1971, p.
158), Maxwell on the Interpretation of Statutes (12th Edn., 1969, pp 74-75) Halsbury's Laws (3rd
Edn.) (1961) Vol.36, paragraph 606, p.
401) appears to me to warrant the formulation of the following propositions: (1) Subordinate
legislation may be used in order to construe the parent Act, but only where power is given to amend
the act by regulations or where the meaning of the Act is ambiguous.
(2) Regulations made under the Act provide a parliamentary or administrative contemporanea
eXpositio of the Act but do not decide or control its meaning to allow this would be to substitute the
rule-making authority or the judges as interpreter and would disregard the possibility that the
regulation relied on was misconceived or ultra vires.

(3) Regulations which are consistent with a certain interpretation of the Act tend to confirm that
interpretation.
(4) Where the Act provides a framework built on by contemporaneously prepared regulations, the
latter may be a reliable guide o the meaning of the former.
(5) The regulations are a clear guide, and may be decisive, when they are made in pursuance of a
power to modify the Act, particularly if they come into operation on the same day as the Act which
they modify.
(6) Clear guidance may also be obtained from regulations which are to have effect as if enacted in
the parent Act."
Mr. Rao also placed reliance on British Amusements Catering Trades Association v. Westminister
City Council [(1988) 1 ALL ER 740, 745 d.e. (H.L.)], a judgment that is said to have followed the case
referred to in the preceding Paragraph.
In Desh Bandhu Gupta And Co. & Ors. v. Delhi Stock E Xchange Association Ltd. [(1979) 4 SCC 565],
this court held as under:
"The principle of contemporanea eXpositio (interpreting a statute or any other document by

reference to the eXposition it has received from contemporary authority) can be invoked though the
same will not always be decisive of the question of construction (Maxwell 12th ed. P. 268). In
Crawford on Statutory Construction (1940 ed.) in paragraph 219 (at pp. 393-395) it has been stated
that administrative construction (i.e.
contemporaneous construction placed by administrative or e X ecutive officers charged with

eXecuting a statute) generally should be clearly wrong before it is overturned; such a construction,
commonly referred to as practical construction, although not controlling, is nevertheless entitled to
considerable weight; it is highly persuasive. In Baleshwar Bagarti v. Bhagirathi Dass ILR 35 Cal. 701
at 713 the principle, which was reiterated in Mathura Mohan Saha v. Ram Kumar Saha ILR 43 Cal.
790 : AIR 1916 Cal 136 has been stated by Mookerjee, J., thus:
It is well-settled principle of interpretation that courts in construing a statute will give much weight
to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has
been to construe, eXecute and apply it□ I do not suggest for a moment that such interpretation has
by any means a controlling effect upon the courts; such interpretation may, if occasion arises, have
to be disregarded for cogent and persuasive reasons, and in a clear case of error, a court would
without hesitation refuse to follow such construction."
The State of U.P. & Ors. v. Babu Ram Upadhya [(1961) 2 SCR 679(CB)], it was observed as under:
"Rules made under a statute must be treated for all purposes of construction or obligation e Xactly as
if they were in the Act and are to be of the same effect as if contained in the Act, and are to be
judicially noticed for all purposes of construction or obligation: see Maxwell "On the Interpretation

of Statutes", 10th edn., pp. 50-51."
In State of Tamil Nadu v. M/s. Hind Stone & Ors. [(1981) 2 SCC 205], it was held as under: "The
Mines and Minerals (Regulation and Development) Act is a law enacted by Parliament and declared
by Parliament to be e X pedient in the public interest. Rule 8-C has been made by the State
Government by notification in the official Gazette, pursuant to the power conferred upon it by
Section 15 of the Act. A Statutory rule, while ever subordinate to the parent statute, is otherwise, to
be treated as part of the statute and as effective. "Rules made under the statute must be treated for
all purposes of construction or obligation eXactly as if they were in the act and are to be of the same
effect as if contained in the Act and are to be, judicially noticed for all purposes of construction or
obligation": (State of U.P. v. Babu Ram Upadhya (1961) 2 SCR 679, 702; see also Maxwell:
INTERPRETATION OF STATUTES, 11th Edn. Pp. 49-50). So, statutory rules made pursuant to the
power entrusted by Parliament are law made by Parliament within the meaning of Article 302 of the
Constitution."
In Commissioner of Income Tax, Jullundur v. Ajanta Electricals, Punjab [(1995) 4 SCC 182], it was
ruled thus: "Though the rule cannot affect, control or derogate from the section of the Act, so long as
it does not have that effect, it has to be regarded as having the same force as the section of the Act."
The submission, thus, is that the principle of contemporanea e Xpositio is relevant for interpreting
the words "the representatives of each State" in Article 80(4) of the Constitution with reference to
contemporary legislation made by the Constituent Assembly itself acting as provisional Parliament
just as subordinate legislation is used in order to construe the parent Act.
But then, the fallacy of the above approach to the subject lies in the fact that legislation by the
provisional Parliament did not produce a constitutional rule. It does not have the sanctity or
normative value of Constitutional Law. When the Act of 1951 was debated, no one argued that the
residence qualification had already been decided upon by the Constituent Assembly and, therefore,
no debate should take place. The difference between the original and derived power is the basis of
the doctrine of basic structure. The principle of "contemporanea e Xpositio', is totally irrelevant if not
misleading for present purposes. If the Constitution had used an ambiguous eXpression, which
called for interpretation, the manner in which the Constitution had been interpreted soon after it
was enacted would be a useful aid to interpretation. No such question arises in this case. Indeed, the
Parliament had earlier provided for residential qualification. But it decided to repeal it through the
impugned amendment. Both times, that is while originally enacting the RP Act in 1951 and the while
amending it in 2003, the Parliament was acting within its legislative competence. It is true that the
provisional Parliament in 1951 did prescribe residence inside the State as a qualification for
Membership of the Council of States. But, it also needs to be borne in mind that the same
Parliament in its character of a Constituent Assembly had refused to eXalt the qualification
(including that of residence) to a Constitutional requirement and rather showed consciousness that
the provision for qualifications might need to be revisited from time to time and, therefore, finding
it inadvisable to prescribe the same in the Constitution itself.

The provision of residence eXisted, prior to impugned amendment, in a Parliamentary law, i.e., the
Representation of the People Act, 1951 (and not the Constitution). There is no e Xpress provision in
the Constitution itself requiring residence as a qualification. It cannot be said that amendment of
the Act to remove what the Constitution itself did not provide for, is unconstitutional.
It has been argued that it was the Provisional Parliament, which succeeded the Constituent
Assembly, that had passed the RP Act, 1951. However, if that reasoning were to be accepted, it would
not mean that all the laws passed by the Provisional Parliament enjoy the same status as the
Constitution or some such special status. This would be neither a healthy nor a permissible
approach. All enactments passed by provisional Parliament, including the RP Act 1951, are laws like
any other law made by Parliament. Accordingly, each of them is subject to power of Parliament to
bring about amendments like any other statute. Over the years, there have been several
amendments to the RP Act, 1950 and RP Act, 1951. If the argument of the petitioner were to be
correct, all the amendments made so far in these Acts would have required Constitutional
amendments. While there need be no quarrel with the proposition that the Constitution and the RP
Acts form an integrated scheme of elections, it does not follow that on this account the domiciliary
requirement in Section 3 RP Act 1951, as originally enacted, is part of the said scheme so as to be
treated a constitutional requirement.
Restrictions under Article 368 It has been submitted that Section 3 of RP Act, 1951, as it stood
before amendment, read with Article 80(4), had ensured the "representation of States" in
Parliament. Referring to proviso (d) in Article 368 (2), it has been argued that even a Constitutional
amendment making any change in representation of States in Parliament cannot be effectuated
without the ratification by one half of the States Legislatures. On this premise, it has been submitted
that it should follow, as a necessary corollary, that the change made in Section 3, RP Act, 1951 is one
that no longer ensures, by Parliamentary law, the representation of States in Parliament, or in any
case one that makes a change in the e Xisting law, and thus an amendment that could not be
effectuated simply by amending Section 3 of the RP Act, 1951.
Article 368 relates to power of Parliament to amend the Constitution and the procedure therefor.
The Proviso in question puts limits on the power of Parliament to amend the Constitution. Article
368 (2), to the eXtent relevant, reads as under: -
"An amendment of the Constitution may be initiated only by the introduction of a Bill for the
purpose in either House of Parliament, and when the Bill is passed in each House by a majority of
the total membership of that House and by a majority of not less than two-thirds of the members of
that House present and voting, it shall be presented to the President who shall give his assent to the
Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in □
(a) XXXX
(b) XXXX

(c) XXXX
(d) the representation of States in Parliament, or
(E) XXXX, the amendment shall also require to be ratified by the Legislatures of not less than one-half
of the States by resolution to that effect passed by those Legislatures before the Bill making
provision for such amendment is presented to the President for assent."
The above provision shows that subject to some conditions and procedural requirements, the
Parliament is competent to amend the Constitution eXcept, inter alia, in the event the amendment
sought to be made, changes "the representation of States in Parliament". In that case, the
amendment Bill would require, before presentation to the President for assent, ratification by the
Legislatures of not less than one half of "the States". A question thus has been raised as to the scope
of the eXpression "representation of the States" occurring in Proviso (d) to Article 368 (2). The
argument is without merit in the conteXt in which it has been made. The e Xpression "representatives
of States" as used in Article 80 and the eXpression "representation of States" as used in proviso (d)
of Article 368(2) are not synonymous or employed in same sense. These e Xpressions are materially
different and used in different conteXt in the two provisions. This is clear from the simple fact that
Article 80 is talking of "representatives" of States in the Council of States while proviso (d) of Article
368 (2) pertains to "representation" of States in Parliament. The first provision is of limited import
while the latter has a wider connotation. Article 1, having declared in its sub-Article (1) that India
"shall be a Union of States", provides through sub-Article (2) as under:-
"The States and the territories thereof shall be as specified in the First Schedule."
The First Schedule mentions the names of the States and Union Territories and specifies their
respective territories. Article 2 empowers the Parliament to admit, by law into the Union of India, or
to establish new States. Article 3 empowers Parliament, by law, inter alia, to "form a new State",
"increase the area of any State", "diminish the area of any State" or "alter the name of any State".
This power has been used many a time by Parliament to reorganize the States and their territories.
Article 4 is of great relevance for purposes at hand. It reads as under: -
"Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth
Schedules and supplemental, incidental and consequential matters.- (1) Any law referred to in
article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the
Fourth schedule as may be necessary to give effect to the provisions of the law and may also contain
such supplemental, incidental and consequential provisions (including provisions as to
representation in Parliament and in the Legislature or Legislatures of the State or States affected by
such law) as Parliament may deem necessary.
(2) No such law as aforesaid shall be deemed to be an amendment of the Constitution for the
purposes of article
368."

Article 4 thus also uses the eXpression "representation in Parliament". It specifically e Xcludes such
amendments as contemplated in Articles 2 and 3 from the requirements of the procedure prescribed
in Article 368 for Constitutional amendments. The e X pression "representation of States in
Parliament", as used in Proviso (d) to Article 368 (2), therefore, cannot be of any use to the case of
the petitioners. Article 80 (1) prescribes in clause (b) that, besides the 12 members nominated by the
President, the Council of States shall consist of not more than 238 "representatives" of States and
Union Territories. If an amendment were to increase or decrease this composition, it would result in
change in the ratio of representation of States in Parliament. The provision contained in Article 80
(1) (b), in so far as it pertained to the maximum number of members constituting the House has
remained unchanged ever since it was adopted in the Constitution by the Constituent Assembly on
26th November, 1949. But this figure of seats of the representatives of States (and Union
Territories) was subject to allocation to the States and Union Territories in terms of the Fourth
Schedule, as provided in Article 80 (2). The Fourth Schedule provided for the allocation of seats in
the Council of States and the total number of seats indicated therein has varied from time to time,
subject to the ceiling of 238, as given in Article 80 (1) (b).
In the Fourth Schedule, as originally enacted, the seats allocated to States were 205. By way of the
Constitution (Seventh Amendment) Act, 1956, which came into effect on 1st November, 1956, the
Fourth Schedule was substituted and consequently, the total number of seats allocated in the
Council of States was increased to 220, also indicating the distribution thereof among the various
States. This figure of "220" was periodically increased by the Constitution (Thirty Si X th
Amendment) Act, 1975 and various States Reorganisation Acts passed by the Parliament from time
to time, lastly by the Goa, Daman and Diu Reorganisation Act, 1987 which came into effect on 30
May 1987, whereby State of Goa was inserted into the Fourth Schedule and the figure 'increased to
'233'. The figure "233" occurs in the Fourth Schedule as on date.
It has been submitted that every time there has been reorganization of States, the consequential
amendments in the Fourth Schedule have been brought about through Constitutional amendments,
in accord with the provisions contained in Article 368, in particular Proviso (d) thereof. It has been
pointed out that even the eXisting representatives of the States affected by the reorganization were
reflected by name in the Constitutional amendments and allocated to the States, having regard to
their respective domicile. The argument based on the provision of the Acts relating to
Reorganization of States does not carry the matter further at all. Obviously, at the time of creation of
new States, the eXisting members of the Council of States had to be allocated to the old or new
States. This was done in conformity with the then e Xisting principles underlying the relevant law.
The documents placed before the Court show that specific consideration of a residential
requirement was never made after Paragraph 6 of the Fourth Schedule in the first draft Constitution
dated 27th October 1947 had been deleted on 11th February 1948.
The amendment of the Constitution can affect "representation of the States" in Parliament, within
the meaning of the proviso eXtracted above, in more ways than one which we will presently show.
Article 80 (4) prescribes the manner of voting and election of the representatives of States for
Council of States in the following terms: -

"The representatives of each state in the Council of states shall be elected by the elected members of
the Legislative Assembly of the State in accordance with the system of proportional representation
by means of the single transferable vote."
If the above-mentioned prescribed manner of voting and election is sought to be changed, for
eXample, by including members of Legislative Councils in such States as have legislative Councils or
by change in the system of proportional representation, that would also have the effect of changing
the representation of the States.
Article 83 (1) provides as under: -
"The Council of States shall not be subject to dissolution, but as nearly as possible one-third of the
members thereof shall retire as soon as may be on the e Xpiration of every second year in accordance
with the provisions made in that behalf by Parliament by law."
If the duration of Council of States as provided in Article 83(1) is sought to be changed such
amendment would also affect the representation of the States. Fourth Schedule to the Constitution
lays down the number of persons who would represent each State in the Council of States. This
balance between the various States is not at all affected by way of the legislation impugned in the
writ petitions at hand. In the instant case, the amendments made by the impugned Act relates only
to the residential qualification of the 'representatives' and is not concerned with the "representation
of the States" in Parliament. The argument that the impugned amendment affects the
"representation" of the States in the Council of States is not correct. The States still elect their
representatives to the Council of States through the elected members of their respective legislative
assemblies as provided in the Constitution. There was, therefore, no need for a constitutional
amendment as has been contended. Distinction between the two Houses Mr. Nariman, learned
Senior Advocate pointed out that under un-amended Section 3 of the RP Act 1951, one of the
requisite qualifications for a person offering his candidature for membership to the Council of
States, since beginning had been that he must be "an elector" for a Parliamentary Constituency in
the State or Union Territory which he seeks to represent. On the other hand, as per Section 4 of the
RP act 1951, in the case of the House of the People, a person is qualified to be chosen to fill a seat in
that House if he is "an elector for any Parliamentary constituency"; that is to say, one can get elected
as people's representative in the House of the People for a constituency in one particular State even
though one is an elector registered as such in a Parliamentary constituency in another State.
He pointed out that the composition of the House of the People, as per Article 81(1)(a), is different,
since it consists of "members chosen by direct election from territorial constituencies in the States",
such members not representing, nor eXpected to represent, the States from which they are so
chosen. This is why the 'Qualifications for the membership of the House of the People', as prescribed
in Section 4 of the RP Act 1951, have always permitted "an elector for any Parliamentary
constituency" to get chosen to fill a seat in the House of the People.
The argument is that by the impugned amendment in Section 3, the qualification for Membership of
the Council of States is now "equated" with that of the House of the People, the only difference

remaining being the manner of election, the former by indirect election and the latter by direct
election. While Section 3 has been amended to substitute the words "in that State or territory" with
the words "in India", Section 4 remains the same as before. The result is that the point of distinction
between the characters of representation in the two Houses has become obliterated. The word
"elector" has been defined in Section 2 (e) of RP Act 1951 and means "a person whose name is
entered in the electoral roll of that constituency for the time being in force" and who is not subject to
any of the disqualifications mentioned in Section 16 of the RP Act, 1950. The above mentioned
statutory provisions, according to Mr. Nariman, unmistakably show that the test of "ordinary
residence" has been woven into the constitutional scheme as an essential qualification for
membership of either House of Parliament, which can be residence anywhere in India for House of
the People, but must be residence in the State one seeks to represent in the Council of States, as
required in Section 3 of the 1951 Act as it e Xisted till the impugned amendment brought about a
qualitative change. Mr. Nariman contended that the impugned amendment has destroyed the
essential characteristic of the Council of States because a person who is an elector, and so an
ordinary resident, in any constituency in India, not necessarily of the particular State can now be
chosen to be a representative of such State, only by virtue of being so elected to the Council of States
by the Members of the Legislative Assembly of such State. According to him, the need for a Second
Chamber viz. the Council of States has become redundant, in that it now merely duplicates the
House of the People, since a person is qualified to be chosen as a representative of any State in the
Council of States if he is an elector for a Parliamentary constituency in that State or in any other
State. He further argued that as a result of the impugned amendment, the person elected to the
Council of States, if he is at all "representative" of anyone, he is only a representative of the State
Assembly that elected him and not a "representative" of the State, as he was required to be under
Article 80. The intendment of the Constitution that he should be a representative of the State is
required to be reflected in some statutory requirement as to qualification qua the person elected and
the State, be it birth, residence for some period in the past or at present, or ordinary residence. The
law enacted by Parliament had to prescribe some connection between the person standing for
election and the State that he is to represent in the Council of States, which is now missing. These
arguments do not appeal to us. Article 79 leaves no doubt about the fact that House of the People
and the Council of States are both "Houses" of Parliament. The names given to the two Houses are
proper nouns and do not spell out any right or obligation, much less limitations on Parliament's
legislative power available to it under Article 84 (c). Parity in the matter of qualification to the
eXtent concerning residence of a person seeking to be elected as member of either House does not
make one House duplicate of the other. Their role, functions, powers or prerogatives, especially in
the matter of legislation, remain unchanged. Mr. Nariman also urged that Article 80 of the
Constitution (Composition of the Council of States) be read in contrast of Article 81 (Composition of
the House of the People). He was at pains to point out that under Article 80, the Council of States
must consist of "representatives" of the States and Union Territories and that it is only the
representatives of "each State" in the Council of States who are to be elected by the elected Members
of the Legislative Assembly of the State [Article 80(4)]. On the other hand, under Article 81, the
House of the People consists of "members" chosen by direct election from the territorial
constituencies in the State, i.e. chosen by the electors in one of the Parliamentary Constituencies in
India.

His argument is that if the intention was that the body called the Council of States was also to
consist of members "chosen", then Article 80 would have used the e Xpression 'members chosen by
elected representative of State Legislative Assemblies and Union Territories' instead of the
eXpression "representatives of the States and Union Territories." He proceeded to build up on the
argument by submitting that the eXpression "representatives of the State" in Article 80 (1) (b) and
Article 80 (2), and the eXpression "representatives of each State" in Article 80 (4), are not merely
tautologous or mere surplussage, but intended to be words of critical and crucial significance.
Almost on similar lines, Mr. P.P. Rao, learned counsel for State of Tamil Nadu, submitted that the
Democratic Republic constituted by the Constitution of India, as reflected in the e Xpression used in
the Preamble - "We, the people of India" - means 'We the people of the States and Union Territories'
- in other words, the citizens of India, inhabitants of the States and the Union Territories.
It has been argued that the principles underlying "the House of the People" are evident from Articles
79 and 81. It is a House of the People of India as a whole. Its members are chosen by direct election
from territorial constituencies in the States. To become a member one has to be an Indian first. A
non-Indian cannot represent the people of India. Only an elector in any part of India will have the
capacity to represent the people of India.
It has been submitted, the term "the Council of States" in Articles 79 and 80, likewise means the
House that represents the States. Each State is a territorial constituency by itself for this House. It is
argued that only a person belonging to a State will have the capacity to represent the State in the
Upper House and that a person could claim to belong to a State only by birth, domicile or residence.
On this premise, it has been submitted that some such visible ne Xus between the State and the
person seeking to be its representative is a must in the scheme of the Constitution.
It is further the argument of the learned Counsel for the petitioners that the words "representatives
of the States" in Article 80 (1)(b) and (2) and the words "representatives of each State in the Council
of States" in Article 80(4) need to be interpreted in such a manner that it tends to strengthen the
basic structure of the Constitution, having due regard to its federal character and the foundational
feature of democracy, namely the system of self-governance. In above conte Xt, the Counsel would
rely upon Sub- Committee on Judicial Accountability v. UOI & Ors. [(1991) 4 SCC 699] and P.V.
Narasimha Rao V. State (CBI/ SPE) [1998 (4) SCC 626].
In Sub-Committee on Judicial Accountability v. Union of India (supra), this Court ruled thus: "In
interpreting the constitutional provisions in this area the Court should adopt a construction which
strengthens the foundational features and the basic structure of the Constitution."
The following observations made in paragraph 47 in P.V. Narasimha Rao's case (supra) have been
relied upon: "As mentioned earlier, the object of the immunity conferred under Article 105(2) is to
ensure the independence of the individual legislators. Such independence is necessary for healthy
functioning of the system of parliamentary democracy adopted in the Constitution. Parliamentary
democracy is a part of the basic structure of the Constitution. An interpretation of the provisions of
Article 105(2) which would enable a Member of Parliament to claim immunity from prosecution in a

criminal court for an offence of bribery in connection with anything said by him or a vote given by
him in Parliament or any committee thereof and thereby place such Members above the law would
not only be repugnant to healthy functioning of parliamentary democracy but would also be
subversive of the rule of law which is also an essential part of the basic structure of the Constitution.
It is settled law that in interpreting the constitutional provisions the court should adopt a
construction which strengthens the foundational features and the basic structure of the
Constitution. (See: Sub-Committee on Judicial Accountability v. Union of India (1991) 4 SCC 699
SCC at p.
719.)"
It has been argued by Mr. Nariman that it is because of the scheme of the Constitution and the RP
Act, 1951, that representation of the States in the Council of States has to be secured and assured viz.
by insisting upon, as a qualification, some link or ne Xus between the person elected to the Council of
States by the State Assembly and the State which he is to represent in the Council of States. That
connection, according to him, was, and for 53 years remained a connection, by way of "ordinary
residence" in the State. Section 3 of the RP Act, 1951, fulfilled the role of not only providing a
qualification but defining who was to be the "representative of each State" in Article 80 (4).
It has been argued that if by electing a person as a Member of the Council of States by a particular
State Assembly itself made that person a 'representative' of that State then it was unnecessary to
enact Section 3 of the RP Act. Therefore, according to the argument, it has to be concluded that the
Provisional Parliament (which had also drafted and enacted the Constitution), when enacting
Section 3 of the RP Act, had thought it necessary to define the "representative of the State", with
reference to his residence "in that State". The above mentioned argument to the e Xtent founded on
the principle of basic structure need not detain us any further as it is the same argument as dealt
with in the conteXt of federal structure, albeit with a slightly different shade. Moreover, the link
factor is retained by the impugned amendments inasmuch as the candidate for the election to the
Council of States is now required to be an elector for Parliamentary constituency. Therefore, the
linking factor is made broad based.
Article 80 shows that the Council of States consists of 12 Members nominated by the President and
238 representatives of the States and Union Territories. The representatives fill the seats in
accordance with Article 80 (2). Both, the members nominated by the President and the
representatives elected by the State Legislatures are collectively 'Members' of the Council of States,
as clearly flowing from Article 83. Further answer to this argument can be found in Article 84 itself,
which refers to 'membership' of the Parliament, and this covers the Council of States as well as the
House of the People. Then, Article 84 also uses the word 'chosen' with reference to filling a seat in
Parliament, in both the Council of States as well as House of the People. Therefore, a representative
of the State is as much a Member of Parliament as is a member of the House of the People. The
eXpression "representatives" is equally used with reference to the House of the People.
There is thus no distinction between the e X pressions 'members' and 'representatives'. The
submissions of the learned Counsel are untenable. The plea that the choice of e X pression

"representative" in relation to the Council of States as against word "member" used in relation to the
House of the People holds the key is also liable to be rejected. Relevance of the word "Each"
It is the submission of Mr. Nariman that whilst it is open to Parliament to prescribe by laying the
qualifications for being chosen to the Council of States, the prescribed qualifications must be such as
to ensure that the person so chosen is a representative of that State, the Assembly of which has
elected him. He submitted that the use of the word "each" in Article 80(4), in relation to
representation of States in the Council of States was not without significance, in as much as the
stress is on providing representation to "each State" so as to give to the House the character of a
body representing the States. Emphasis has been placed on the words representatives of "each
State" in Article 80(4) of the Constitution. In Upper Chambers of other Federal Constitutions, like
the Senate in United States, members are elected by the electorate by treating each State as a Unit
equal of the other. There would be no doubt in such Constitutions that the elected members
represent the State. In the Indian Constitution, we did not opt for equal representation of States in
the Council of States. This could have led to an impression that Rajya Sabha Members of Parliament
do not represent the State, as each State would have different ratio in the number of members
representing it. It appears that in order to dispel such an impression it has been provided that,
notwithstanding the fact that they are elected as per allocation made in the Forth Schedule, on the
basis of population, members of the Council of States are indeed representatives of the State. The
reliance on the word "each" is misplaced. It fails to notice as to why the word "each" was inserted in
the Article in the first place. Sub-Articles (4) & (5) of Article 80, in its original form, read as under: -
"(4) The representatives of each State specified in Part A or Part B of the First Schedule in the
Council of State shall be elected by the elected members of the Legislative Assembly of the State in
accordance with the system of proportional representation by means of the single transferable vote.
(5) The representatives of the State specified in Part C of the First Schedule in the Council of States
shall be chosen in such manner as Parliament may by law prescribe."
By the Constitution (Seventh Amendment) Act 1956, which brought about States reorganization,
among others, Article 80 was amended. The Statement of Objects and Reasons of the Constitution
(Seventh Amendment) Act 1951, to the e Xtent germane here, read as follows:- "Clause 2. - The
reorganization scheme involves not only the establishment of new States and alterations in the area
and boundaries of the eXisting States, but also the abolition of the three categories of States (Part A,
Part B and Part C States) and the classification of certain areas as Union territories. Article 1 has to
be suitably amended for this purpose and the First Schedule completely revised.
Clause 3. - The amendments proposed in Article 80 are formal and consequential. The territorial
changes and the formation of new States and Union Territories as proposed in Part II of the States
Reorganization Bill, 1956, involve a complete revision of the Fourth Schedule to the Constitution by
which the seats in the Council of States are allocated to the e Xisting States. The present allocation is
made on the basis of the population of each State as ascertained at the census of 1941 and the
number of seats allotted to each Part A and Part B State is according to the formula, one seat per
million for the first five millions and one seat for every additional two millions or part thereof

eXceeding one million. It is proposed to revise the allocation of seats on the basis of the latest census
figures, but according to the same formula as before."
Clause 4. - The abolition of Part C States as such and the establishment of Union territories make
eXtensive amendment of articles 81 and 82 inevitable. The provision in Article 81(1)(b) that "the
States shall be divided, grouped or formed into territorial constituencies" will no longer be
appropriate, since after reorganization each of the States will be large enough to be divided into a
number of constituencies and will not permit of being grouped together with other States for this
purpose or being "formed" into a single territorial constituency. Clause (2) or Article 81 and Article
82 will require to be combined and revised in order to make suitable provision for Union territories.
Instead of amending the articles piecemeal, it is proposed to revise and simplify them. Incidentally,
it is proposed in clause (1)(b) of the revised Article 81 to fi X a maximum for the total number of
representatives that may be assigned to the Union territories by Parliament."
By the Constitution (Seventh Amendment) Act 1951, the words "specified in Part A or Part B of the
First Schedule" as used in Article 80 (4) were deleted. By the same amendment, the words "States
specified in Part C of the First Schedule" in Article 80(5), were substituted by the words "Union
Territories."
The States were being reorganized. The categorization of the States as Part A, Part B or Part C States
was being abolished. Some of the States earlier classified as Part C States were now being named as
"Union Territories". Since the allocation of seats in the Council of States as given in the Fourth
Schedule must necessarily correspond to the States (and Union Territories) mentioned in the First
Schedule, in view of the requirement of Article 1 (2) and Article 4, the provisions contained in Article
80 had to undergo consequential amendments.
Noticeably, the word "each" had appeared only in Article 80(4) in the conte Xt of the representatives
of the States. The eXpression "representatives of the States" appears first in Article 80(1) and then in
Article 80(2) so as to specify the number (to be elected) and the allocation of seats (to be specified in
the Fourth Schedule) respectively. In neither clause the word "State" is qualified by the word "each".
Since sub-Article (4) and sub-Article (5) were meant to indicate the manner of election by States of
different categories, they were created as separate provisions. If the word "each" had the significance
attributed during arguments by the writ petitioners, it would have occurred not only in sub-Article
(4) in the conteXt of Part A and Part B States, but also in sub- Article (5) in the conte Xt of Part C
States, inasmuch as States of all categories represented different units of the Union of India.
In the above view, the employment of the word "each" preceding the word "State", in the conte Xt of
representation in the Council of States, is meant only to underscore the fact that the Legislative
Assembly of each State was intended to be a separate electoral college for returning a member to fill
in the seat allocated to the particular State as specified in the Fourth Schedule. Nothing more and
nothing less. This is more so, in view of the fact that the e Xpression "representatives of the States"
had already occurred twice earlier in the preceding clauses of the same Article. The word "each" was
not required to be used in the conteXt of Part C States (now Union territories), in Article 80 (5), as
originally provided or even later amended, since the manner of representation of such units of the

Union of India was left to be prescribed by the Parliament and since each such unit was not
intended at that time to be provided with its own Legislative Assembly. In the above view, the
argument that the use of the word "each" in Article 80 (4) gives to the House the character of a body
representing the States, does not appeal to us. Person to have representative character before being
elected It is the argument of the petitioners that the word "representative" in the conteXt of
democracy requires two things; i.e. (a) capacity to represent and (b) authority to represent. They
submit that only a member of a class can represent the class in a system of self-governance. It has
been argued that the words "representatives of the States" in Article 80 (1) (b) and (2) and the words
"representatives of each State in the Council of States" as appearing in Article 80 (4) need to be
interpreted in a manner consistent with the basic structure of the Constitution keeping in mind the
concept of democracy, i.e. system of self- governance. Reliance has been placed in this conte Xt once
again on Sub-Committee on Judicial Accountability v. UOI & Ors. (supra); P.V. Narasimha Rao v.
State (CBI, SPF) (supra); and S.R. Bommai v. UOI (supra). The first two cases have already been
taken note of. Regarding S.R. Bommai, the following observations, at page 118, have been referred to
:-
"Thus the federal principle, social pluralism and pluralist democracy which form the basic structure
of our Constitution demand that the judicial review of the Proclamation issued under Article 356(1)
is not only an imperative necessity but is a stringent duty and the e Xercise of power under the said
provision is confined strictly for the purpose and to the circumstances mentioned therein and for
none else. It also requires that the material on the basis of which the power is e X ercised is
scrutinised circumspectly."
The argument is that the word "representative" in the conte Xt of parliamentary democracy requires
both capacity to represent and authority to represent. Only a member of a class can represent the
class in a system of self-governance. It follows that unless a person belongs to a State he will not
have the capacity to represent the people of the State or the State. A person belongs to a State either
by birth and residence or by domicile or ordinary residence in the State. The concept of "State"
implies not only territory but also the people inhabiting the territory. Article 1 says that India shall
be a Union of States. Therefore, it is the submission of the petitioners, the e X pression
"representatives of each State" in Article 80 (4) refers to persons who represent the people of each
State and only a person who belongs to the State or who is one among the people of the State will
have the capacity to represent the State and not a person belonging to another State.
It is further argued by the petitioners that the very fact that Article 80 (4) provides for election by
the elected members of the Legislative Assembly of the State coupled with the fact that in terms of
Article 170, members of the Legislative Assembly shall be those chosen by direct election from
territorial constituencies in the State and the further requirement that each one of them is required
to be an elector for any Assembly constituency in the State in terms of Section 5 (c) of the RP Act,
1951 shows that Members of the Council of States representing a State shall have the qualifications
prescribed for Members of the Legislative Assembly. Both are representatives of the people; while
Members of Legislative Assemblies (MLAs) are directly elected, members of the Council of States
are indirectly elected by the people of the State through their MLAs.

Section 5 (c) of the RP Act, 1951 requires a person to be an elector for an Assembly constituency in
the State to be eligible to contest for a seat in the Legislative Assembly. It is the argument of the
petitioners that the capacity to represent arises from being a registered voter for any Assembly
constituency in the State. Therefore, to be able to represent a State, it is necessary that the person
concerned shall be a registered voter in the State.
Section 19 of the RP Act, 1950 lays down the requirement of being "ordinarily resident in a
constituency" for being entitled to be registered in the electoral roll for that constituency. Section 20
gives the meaning of "ordinarily resident".
It has been argued by Mr. Nariman that an elected member to the Council of States does not
"represent" the State only because he is elected by the State Assembly. In order to represent the
State (as distinct from representing the State Assembly) in the Council of States, he must first be the
representative of the State under Article 80(4) before the legislative body elects him. He buttressed
this plea by seeking to highlight that in the said sub-Article, the e Xpression "representatives of each
State in the Council of States" precedes the prescription about mode of election (the system of
proportional representation by means of the single transferable vote).
The Counsel further argued that the eXpression "representatives of the States", as used in Article 80
(1) (b) and Article 80 (2) and the eXpression "representatives of each State", as employed in Article
80 (4) have been left to be defined by Parliament "by law" made under Article 84 (c) which requires
Parliament to prescribe as to what "such other qualifications" a person must possess in order to
qualify to be chosen as a member of parliament, that is qualifications other than those given in
Article 84 (a) & (b) that relate to citizenship of India, oath or affirmation inter alia of faithfulness
and allegiance to the Constitution and the prescription about minimum age.
It has been contended that Article 80 (4), by using the e Xpression "representatives of each State"
emphasizes that person who is elected must first be qualified as a representative of the State in
question. If the qualification was meant to originate from his being merely elected by any particular
State Assembly, the clause would have read: - "The elected members of the Legislative Assembly of
each State shall elect their representative in the Council of States in accordance with the system of
proportional representation by means of a single transferable vote."
The Counsel has submitted that unlike Article 81, which does not stipulate that a person elected to
the House of the People shall be from a territorial constituency in a particular State so as to be the
representative of such State in the House of the People, Article 80 does require the person in
question to first be a representative of the State before he is elected by the elected members of the
Legislative Assembly of that State. The mere fact of election by particular State Assembly of any
"elector" in India cannot render that person as being "qualified" to represent that State. Mr.
Nariman referred to the term "elector" which has been defined in Section 2 (e) of the RP Act 1951, in
relation to constituency, as a person whose name was entered in the electoral rolls of the
constituency for the time being in force. He also pointed out that under Section 19 of the RP Act
1950, every person who is not less than 18 years of age on the qualifying date and is "ordinarily
resident" in a constituency only is entitled to be registered in the electoral roll of that constituency.

He submitted that provisions of RP Act, 1950 and 1951 were in the nature of "further qualifications
for membership", as clarified through Notes on Clauses on what was enacted as Section 3 of the RP
Act, 1951, as published in the Gazette of India, December 23, 1950-Part II-Sec.2, which reads as
follows:-
"Clauses 3 to 6 - Articles 84 and 173 of the Constitution have laid down certain qualifications for
membership of Parliament and of the State Legislatures and have left it to Parliament to prescribe
such further qualifications as it may consider necessary. Clauses 3 to 6 seek to prescribe these
further qualifications for membership. (Emphasis supplied) Section 4 of the RP Act, 1951 prescribes
the qualifications for membership of the House of the People. The said provision generally requires
a person seeking to fill a seat in the House of the People to be "an elector for any Parliamentary
constituency". There was thus a material difference between the qualification of domicile within the
particular State as prescribed for the Council of States and the qualification of domicile within any
Parliamentary constituency in India as prescribed for the House of the People. This was subject
matter of debate in the provisional Parliament on 11th May 1951, at the time of consideration of the
Bill, which would later take the shape of RP Act, 1951. Mr. Nariman referred to the debate in
Parliament on Section 3 of the RP Act 1951.
It appears that in the course of the said debate it came to be pointed out as incongruous as to why a
candidate to the Council of States should be a resident of the State concerned while a candidate to
the House of the People need only be a resident in any Parliamentary constituency in the country.
The record of Parliamentary debates would show that Dr. Ambedkar had e Xplained the distinction
referring to the requirement of residence within the State concerned on account of the House in
question being the Council of States and the absence of such requirement of residence within the
State concerned for the other House because it was the House of the People.
It is the submission of the learned counsel that the Parliamentary debates on the justification for
distinction is clearly indicative of the reason why the representative character of the member elected
to the Council of States was defined, it being that the election was to the Council of States and not to
the House of the People; that is to say that a person residing or working in Area "A", therefore, could
not represent Area "B", or for that matter any other place. It is the contention of the Counsel that the
impugned amendment sets at naught the representative character of the person elected, as grafted
in the provision amended in the form of his connection with the State he represents in the Council of
States, leaving it undefined either with reference to "residence" (in the past or in the present), or to
place of birth, or to performance of public duties in the State whose Assembly elects him to the
Council of States. Before proceeding further, we would like to refer to certain observations of a
Constitution bench of this Court in G. Narayanaswami v. G. Pannerselvam & Ors. [(1972) 3 SCC
717], appearing in Paragraph 4 which read as under: - "Authorities are certainly not wanting which
indicate that courts should interpret in a broad and generous spirit the document which contains the
fundamental law of the land or the basic principles of its Government.
Nevertheless, the rule of "plain meaning" or "literal" interpretation, described in Maxwell's

Interpretation of Statutes as "the primary rule", could not be altogether abandoned today in
interpreting any document. Indeed, we find Lord Evershed, M.R., saying: "The length and detail of

modern legislation, has undoubtedly reinforced the claim of literal construction as the only safe
rule". (See: Maxwell on Interpretation of Statutes, 12th Edn., p. 28.) It may be that the great mass of
modern legislation, a large part of which consists of statutory rules, makes some departure from the
literal rule of interpretation more easily justifiable today than it was in the past. But, the object of
interpretation and of "construction" (which may be broader than "interpretation") is to discover the
intention of the law-makers in every case (See: Crawford on Statutory Construction, 1940 Edn.,
paragraph 157, pp. 240-42). This object can, obviously, be best achieved by first looking at the
language used in the relevant provisions. Other methods of e Xtracting the meaning can be resorted
to only if the language used is contradictory, ambiguous, or leads really to absurd results. This is an
elementary and basic rule of interpretation as well as of construction processes which, from the
point of view of principles applied, coalesce and converge towards the common purpose of both
which is to get at the real sense and meaning, so far as it may be reasonably possible to do this, of
what is found laid down. The provisions whose meaning is under consideration have, therefore to be
eXamined before applying any method of construction at all. □□□."
We endorse and reiterate the view taken in the above quoted paragraph of the Judgment. It may be
desirable to give a broad and generous construction to the Constitutional provisions, but while doing
so the rule of "plain meaning" or "literal" interpretation, which remains "the primary rule", has also
to be kept in mind. In fact the rule of "literal construction" is the safe rule unless the language used
is contradictory, ambiguous, or leads really to absurd results. Regarding the words in Article 80(4)
of the Constitution, viz., "the representatives of each State", as already stated, we are not impressed
with the submission that it is inherent in the eXpression "representative", that the person, in order
to be a representative, must first necessarily be an elector in the State. If this concept were to be
stretched further, it might also require birth in the particular State, or owning or having rented
property or belonging to the majority caste, etc. of that State. Needless to mention, no such
qualification can be added to say that only an elector of that State can represent that State. The
"representative" of the State is the person chosen by the electors who can be any person who, in the
opinion of the electors, is fit to represent them. There is absolutely no basis for the contention that a
person who is an elector in the State concerned is more "representative" in character than one who
is not.
We do not find any contradiction, ambiguity, or absurdity in the provisions of the law as a result of
the impugned amendment. Even while construing the provisions of the Constitution and the RP
Acts in the broadest or most generous manner, the rule of "plain meaning" or "literal" interpretation
compels us not to accept the contentions of the petitioners. Upon being given their plain meaning,
the words "representatives of the States" in Article 80 (1) (b), Article 80 (2) and Article 80 (4) must
be interpreted to connote persons who are elected to represent the State in the Council of States. It
is the election that makes the person elected the "representative". In order to be eligible to be elected
to the Council of States, a person need not be a representative of the State before hand. It is only
when he is elected to represent the State that he becomes a representative of the State. Those who
are elected to represent the State by the Electoral College, which for present purposes means the
elected members of the legislative assembly of the State, are necessarily the "representatives" of the
State.

Article 84 applies to the Council of States as much as it does to the House of the people. This Article
begins with the words: -
"A person shall not be qualified to be chosen to fill a seat in Parliament unless□□□."
Thus, every member of Parliament, be one "nominated by the President" under Article 80 (1) (a), or
"a representative of the State" elected under Article 80 (1) (b) read with Article 80 (4) & (5), or a
"member" of the House of the People elected under Article 81, fills a seat in Parliament. A
Constitution Bench of this Court in Shri V.V. Giri v. Dippala Suri Dora & Ors. [(1960) 1 SCR 426:
AIR 1959 SC 1318] had while construing the e Xpressions "seat' and "to fill a seat" as used singly or
together in Articles 81(2) (b), 84, 101(2), and 330 held as under: -
"□□.. some articles of the Constitution and some sections of the Act refer to seats in connection with
election to the House of the People. For instance, when Article 81(2)(b) provides for the same ratio
throughout the State between the population of each constituency and the number of seats allotted
to it, it does refer to seats, but in the conte Xt the use of the word "seats" was inevitable. Similarly
Article 84 which lays down the qualification for the members of parliament begins by saying that a
person shall not be qualified to be chosen "to fill a seat" in Parliament unless he satisfies the tests
prescribed by its clauses (a), (b) and (c). Here again the e Xpression "to fill a seat" had to be used in
the conteXt. The same comment can be made about the use of the word "seat" in Articles 101(2) and
in 330. There is no doubt that when a candidate is duly elected from any constituency to the House
of the People he fills a seat in the House as an elected representative of the said constituency; and so
the eXpression "filling the seat" is naturally used whenever the conteXt so requires."
(emphasis supplied) On the same analogy, it must be said that when a candidate is elected by the
electorate comprising of the members of the Legislative Assembly of the State to represent the State
in the Council of States, he is elected and chosen as "a representative of the State". The words
"representative of the State" do not in any manner connote that the representative must also be an
elector or a voter registered in the State itself.
It is the status acquired upon election as a member of the legislature that bestows upon the person
the character of a "representative". This has been the view taken by this Court earlier also. In B.R.
Kapur v. State of T.N. & Anr. [(2001) 7 SCC 231], a Constitution Bench of this Court was considering
the questions relating to entitlement of a person, not a member of the legislature, to be appointed as
a Chief Minister. On the basis of construction of various provisions of the Constitution, in particular
Articles 163 (1), 164 (1) (2) & (4), 173, 177 and 191, this Court held at page 289: - "There is
necessarily implicit in these provisions the requirement that a Minister must be a member of the
Legislative Assembly and thus representative of and accountable to the people of the State."
An elector has to be an ordinary resident of the Constituency in which he is registered as such in

view of the statutory requirements of Sections 19 and 20 of the RP Act, 1950. There is no
requirement in law that the person elected must possess the same qualifications as the elector
possesses. This is further clear from the scheme of the Constitution as is evident from Article 171 (3)
of the Constitution that provides for the composition of the Legislative Council, which is a House at

the level of the States, akin to the Council of States at the level of the Union.
Members of the municipalities and boards, graduates, teachers are required under Article 171 to
elect a certain percentage of members of the Legislative Council. It is not necessary that the person
elected must either be a member of the municipal board or a graduate or himself a teacher. The
electorate can elect whoever in their wisdom is considered most suited to be a representative of
theirs. In G. Narayanaswami's case (supra), a Constitution Bench of this Court was considering the
provisions contained in Articles 171 & 173 and Sections 5 & 6 of the RP Act, 1951. The following
observations made in Paragraph 7 of the Judgment are of relevance here: -
"The plain and ordinary meaning of the term "electorate" is confined to the body of persons who
elect. It does not contain, within its ambit, the eXtended notion of a body of persons electing
representatives "from amongst themselves". Thus, the use of the term "electorate", in Article 171(3)
of our Constitution, could not, by itself, impose a limit upon the field of choice of members of the
electorate by requiring that the person to be chosen must also be a member of the electorate."
Undoubtedly, Section 6 of the RP Act, 1951 continues to require domicile within the State as a
necessary qualification for a person seeking to be elected as a member of Legislative Assembly or the
Legislative Council of the State. But, in view of the above law laid down by this Court, from which we
do not find any good reason to make a departure in the case at hand, there is no merit in the plea
that the "representative of the State" elected by the legislative assembly of the State must also be an
ordinary resident of the State just because the electorate that is electing him are required by law to
be so. The question of "ordinarily resident" is relevant for preparation of electoral rolls and nothing
further. This is evident from bare reading of the scheme of provisions contained in RP Act, 1950, in
particular Sections 13D, 14, 15, 17, 18, 19 and 20. Electoral rolls for purposes of elections governed
by the RP Acts are prepared assembly-constituency wise under Section 15. Section 13D relates to the
Electoral rolls for Parliamentary constituencies and renders the electoral rolls for all assembly
constituencies comprised within the parliamentary constituency put together as the electoral roll for
such parliamentary constituency. Electoral rolls are prepared basically for assembly constituencies
and revised year-wise. A conjoint reading of Sections 17, 18, 19 & 20 shows that a person can get
himself registered as voter once in only one assembly constituency which must be the one within
which he is an ordinary resident.
In Pampakavi Rayappa Belagali v. B.D. Jatti & Others [1971 (2) SCR 611], the election of the first
respondent to the Mysore Legislative Assembly had been challenged, amongst others, on the ground
that he had ceased to be a person "ordinarily resident" within the Jamkhandi constituency and thus
questioning the validity of entry of his name on the electoral roll for that constituency. The High
Court had rejected the election petition including on the aforesaid ground. This Court while
dismissing the appeal against the judgment of the High Court observed, inter alia, that the
conditions of registration as an elector in the electoral roll, as provided in Section 19 of the RP Act,
1950 includes the condition that the person must be "ordinarily resident" in the constituency and
that the meaning of the eXpression "ordinarily resident" is given in Section 20 and further that "the
conditions about being ordinarily resident in a constituency for the purpose of registration are
meant for that purpose alone□□.".

The qualification of "ordinarily resident" is provided for registration as a voter in a general election
for deciding the place of voting by an elector and for the preparation of electoral rolls. Under our
constitutional scheme, Parliamentary or Assembly constituencies are territorially divided and hence
territorial link is provided for the voter, but importantly not for the candidates.
The e X pression "representative of each State" in Article 80 (4) of the Constitution is not a
qualification and cannot be read as a condition precedent for being elected. The Constitution has
dealt with "qualifications" eXclusively in Article 84 of the Constitution, as would also be clear from
the marginal note besides the contents of the provision itself. We agree with the submission that by
definition, the word "representative" simply means a person chosen by the people or by the elected
Members of the Legislative Assembly to represent their several interests in one of the Houses of
Parliament. A person becomes a representative only after he is chosen in the prescribed manner. He
is not a representative earlier. At best, he can claim to be called a candidate or a potential
representative. The theory that before he becomes a representative he should have some ne Xus other
than one prescribed by the law in force is not palatable and not supported by any law or view taken
in any case. Panchayati Raj Amendment □ territorial link Mr. Nariman has submitted that there is a
constitutional recognition of the concept of territorial link of the members of the Council of States
(as representing the particular State in the Council of States).
He buttressed this contention by referring to the 73rd and 74th Constitutional Amendment Acts
1992 which introduced Part IX and Part IX-A to provide that there shall be constituted in every
State, Panchayats (at village, intermediary and district levels) and Municipalities as institutions of
self government (Article 243B and Article 243Q). Article 243C (Composition of Panchayats),
through clauses (c) & (d) of sub-Article (3), authorizes the Legislature of a State, by law, to provide
for the representation "of the members of the House of the People and the members of the
Legislative Assembly of the State representing constituencies which comprise wholly or partly a
Panchayat area at a level other than the village level in such Panchayat" and "of the members of the
Council of States and the members of the Legislative Council of State, where they are registered as
electors within" a Panchayat area at the intermediate or district level, as the case may be. Similarly,
under Article 243R (Composition of Municipalities), through sub-Article (2), the Legislature of a
State has been vested with the power to, by law, provide for the representation in a municipality of
"the members of the House of the People and the members of the Legislative Assembly of the State
representing constituencies which comprise wholly or partly the municipal area" and "the members
of the Council of States and the members of the Legislative Council of the State registered as the
electors within the municipal area".
According to Mr. Nariman, the constitutional recognition given to the territorial link between the
member of the Council of States (as representing the particular State in the Council of States) and
his position as a registered elector in any Panchayat or Municipal area in that State for purposes of
local bodies reinforced the plea that the insistence on local residence within the particular State for
representatives of the States in the Council of States was part of the Constitutional scheme.
The argument is found, on close scrutiny, to be devoid of merit for several reasons.

First and foremost, the provisions mentioned above are not e Xceptional in relation to a member of
the Council of States on account of his position as a registered elector in any Panchayat or Municipal
area in that State for purposes of local bodies. They equally apply to the members of the House of
the People and the Legislative Assemblies (as indeed, the Legislative Councils) of the State
concerned. Secondly, the above provisions are part of the scheme of local self-government engrafted
in the Constitution, the object sought to be achieved thereby being to provide a linkage between the
local bodies and the legislature at the State and Union levels. The purpose sought to be achieved is
to give to the Members of State Legislature and the Parliament access to the grass-root level,
equipping them with knowledge about local problems, issues, opinions and aspirations, thereby
strengthening democracy.
Then, the enabling provisions may not have uniform application. Their effect would depend on the
provisions enacted or to be enacted by the respective State Legislatures for each State. The enabling
provisions, the import of which is reflected in phraseology e Xtracted above, themselves make it
abundantly clear that the claim of the members of the State or Union Legislature for representation
in the Panchayat or municipality depends on various factors that may or may not e Xist vis-`-vis each
such member. To elaborate, it can be said that if there can be a member of the Council of States
registered as an elector within a Panchayat area or municipal area there can also be a member of the
Council of States not so registered as an elector within a Panchayat area or municipal area.
Moreover, the relevant clauses do not apply only to elected members of the Council of States. Thus,
even a nominated member of the Council of States qualifies to be a representative in the Panchayat
or a municipality if he fulfills the qualification prescribed. So, a conclusion in respect of the elected
"representatives of the State" in the Council of States cannot be reached on such basis.
Further, these provisions generally provide for the qualifications of various categories of persons,
which happen to include the members of the Council of States, to be representatives in a Panchayat
or municipality, and share in local self governance. Since the members of the Council of States were
one of the several sources being tapped for the purpose of providing for representation of different
interest groups in the deliberative wing at the local level, it was incumbent to lay down some method
of selection. Last, but not the least, the provisions that have been referred are Constitutional
provisions. Even on the premise that in enacting them the factor of registration as elector within a
particular Panchayat or municipal area was considered important in relation to the members of the
Council of States so as to give them the additional responsibility of representation in the local
Panchayat or municipality, it cannot be said that these provisions add the requirement of domicile
to the qualifications for membership in the Council of States. There is no such e X press
Constitutional provision prescribing such additional qualification.
Thus, the argument based on the 73rd and 74th Constitutional Amendment Acts 1992 which
introduced Part IX and Part IX-A to provide for Panchayats and Municipalities as institutions of self
government is of no avail to the petitioners.
Concept of Residence to change with passage of time It is the argument of the Writ Petitioners that
there must be a rational ne Xus between the State and its representatives in the Council of States.
Such neXus, as per the submissions, could be found only in the requirement of residence in the State

for a minimum specified period. To be able to "represent" the State, it has been urged, one has to be
fully conversant with the language, current problems, needs, aspirations and interests of the people
of the State and the concerns of the State Government. It is not difficult to visualize a conflict
between duty and interest in the case of members belonging to one State being elected from another
State on issues upon which the two States are at loggerheads. The contention of the petitioners is
that the provision contained in Section 3 of the RP Act, 1951, prior to the impugned amendment,
provided for a reasonable neXus between a member of the Council of States and the State from
which he is elected, viz. the neXus on account of domicile. It has been argued that the amendment
doing away with the said provision i.e. requirement of residence in the State, has the effect of
snapping the rational neXus necessary to fulfill the object of representation in the Council of States
having regard to the federal character of the Indian Union. Mr. Nariman, in the course of his
arguments, has referred to the arrangement in Section 3 of the RP Act 1951, as originally enacted, as
the constitutional scheme. On this premise, he would argue that Parliament could make a departure
from this scheme only by providing some other criteria or link for determining the representative
capacity of a prospective member of the Council of States. He illustrated this by submitting that the
test of "ordinary residence", as inherent in Section 3 of the 1951 Act before its amendment, could be
modified by Parliament only so as to provide some other characteristic of effective representation,
viz. (i) born in the State, (ii) having property in the State, (iii) philanthropic or charitable works
done in the State, (iv) education in the State,
(v) having worked for some period of time in the State, or some such other criteria.
It was also submitted by some petitioners that the impugned amendment in Section 3 of the RP Act,
1951 has opened the floodgates of corrupt practices in the matter of allotting seats to the candidates
of choice of powers that be in the political parties and their election is ensured by maneuvers or
manipulations.
The above argument is based upon the intrinsic concept of the word 'representative'. This word
'representative' has no definite meaning. Like 'residence', 'representative' is a malleable concept. In
some federal countries, the Upper House has been designed to reflect the views or interests of the
constituent States and to provide a means to protect the States against improper federal laws. In the
United States, the Senate is composed on federal principles. Each State, irrespective of its size or
population, sends two Senators and, thus, has an equality of representation in the House. On the
other hand, the House of Representatives is constituted on population basis. In US the Senators are
elected by the population vote. The Senate is a continuing body and one- third of its members retire
every two years. In Canada, the Senate is composed on a different principle. Each province is
assigned a fiXed number of Senators, though unequal. The allegiance of the Senators in Canada is
usually to the party which appoints them. Rajya Sabha resembles the American Senate insofar as it
is a continuing body. Rajya Sabha, however, differs from the US Senate insofar as its members are
not elected directly by the States and there is no equality of representation of the States. Rajya
Sabha resembles the Australian Senate insofar as both are based on the principle of rotation. The
point which we would like to emphasize here is that even in countries where strict federalism e Xists,
with the passage of time, the original role of the Senate of guarding interests of the States as political
units has largely disappeared. With globalization, the US Senate now functions as a national

institution rather than as a champion of local interests. This transformation has taken place in US
due to several factors such as direct election of Senators by the people of a State, development of
strong political parties advocating national programmes and development of national integration,
etc. Similarly, in India, after 1990, due to relaxation of central economic control, the conceptual and
theoretical framework of federalism has undergone a sea-change. The concepts of the words
'residence' and 'representative' are not fiXed concepts, therefore, they have to change with time. The
constitutional framers have kept that fleXibility in mind, they have left it to the Parliament to decide
the qualification for membership of the Parliament and, while deciding the qualification, the
Parliament has to take into account the conte X tual scenario. There cannot be one uniform,
consistent and internal definition or connotation of these concepts. These concepts undergo changes
with the passage of time. They cannot be decided etymologically by reference to dictionaries.
Sub-Section (1) of Section 20 of the RP Act, 1950 clarifies that mere ownership or possession of a
dwelling house at a certain place does not necessarily mean that a person is ordinarily residing
there. Sub-Section (2) declares that incarceration as a prisoner in jail or confinement as a patient of
mental illness at a certain place does not make that place the ordinary residence of the individual.
On the other hand, some of the sub-Sections collectively indicate that temporary absence on account
of certain specified eXigencies cannot disrupt the ordinary resident status of an individual.
Sub-Section (1A) provides that temporary absence of a person from a particular place does not result
in cessation of his ordinary residence there.
Sub-Sections (1B) (3) and (4) protect the ordinary resident character of an individual vis-`-vis the
place where he would be ordinarily residing but for official engagements. Sub- Section (1B) takes
care of legislators' absence from their respective constituencies in connection with responsibilities of
the office they hold. Sub-Sections (3) and (4) pertain to compulsions of the service (in Armed forces
or police or foreign posting in service under Government of India) to be at a place other than the one
where one ordinarily resides. Sub-Sections (5) and (6) of Section 20 of RP Act, 1950 render the
declaration, in prescribed form, of a person about the place of his (and that of his spouse) ordinary
residence as sufficient proof, though subject to determination, should a question be raised in such
regard, under rules to be framed under sub-Section (7).
LeXicon refers to Cicutti v. Suffolk Country Council, [(1980) 3 All. ER 689], to denote that the word
"ordinarily" is primarily directed not to duration but to purpose. In this sense the question is not so
much where the person is to be found "ordinarily", in the sense of usually or habitually and with
some degree of continuity, but whether the quality of residence is "ordinary" and general, rather
than merely for some special or limited purpose.
The words "ordinarily" and "resident" have been used together in other statutory provisions as well
and as per the Law LeXicon they have been construed as not to require that the person should be one
who is always resident or carries on business in the particular place.
The eXpression coined by joining the two words has to be interpreted with reference to the point of
time requisite for the purposes of the provision, in the case of Section 20 of RP Act, 1950 it being the

date on which a person seeks to be registered as an elector in a particular constituency. Thus,
residence is a concept that may also be transitory. Even when qualified by the word "ordinarily" the
word "resident" would not result in construction having the effect of a requirement of the person
using a particular place for dwelling always or on permanent uninterrupted basis. Thus understood,
even the requirement of a person being "ordinarily resident" at a particular place is incapable of
ensuring neXus between him and the place in question. The ne Xus between the candidate and the
State from which he gets elected to fill a seat in the Council of States is provided by the perception
and vote of the elected Members of the Legislative Assembly who consider him (necessarily an
Indian Citizen) as best qualified to further the interests of the State in Parliament.
When voting for a candidate in an election, perception of his skills as a legislator, his knowledge of
State affairs, his services to the constituency he seeks to represent and the satisfaction or confidence
in having him as the representative of the electorate are enough considerations or qualifications.
These considerations undoubtedly are certainly of more weight than transitory or often illusory
concept of "residence". This Court would refrain from passing comment on the argument of the
Union of India that it is a matter of common knowledge that, before the impugned amendment was
brought about, in the anxiety to secure good candidates, the requirement of residence was being
bypassed usually by illegitimate subterfuges like being compelled to make false declarations about
their real residence or further that the e Xperience had shown that the qualification of domicile was
proving to be an obstacle in getting the right members into the Council.
Suffice it to say here that our electoral system needs to be rendered free from all known vices and so
there is no reason why Parliament should be denied the opportunity to bring in such legislation as is
deemed by it, in its wisdom, as would plug the possible holes of abuse, for which Parliament has the
necessary legislative competence. Article 80 (4) is not being correctly read by the petitioners when
they make the submissions that have been noticed above. The suggestion that the eXpression
'representative of each State' implies a condition of residence or other link with the States to be
represented ignores the importance of the eXpression "in" preceding the eXpression "the Council of
States".
Article 80 (4) does not say that representative of each State to be elected must first be a
representative of the State before election. To read this requirement into Article 80 (4) would do
violence to the words and would be grammatically incorrect.
A grammatical clause analysis of Article 80 (4) shows that it is nothing more and nothing less than
what is reflected if it were to be worded thus: -
"The elected members of the Legislative Assembly of the State shall elect the representatives of each
State in the Council of States in accordance with the system of proportional representation by means
of a single transferable vote".
In the provision contained in Article 80 (4), thus put in the active voice, the emphasis is on 'who
elects'. In the eXisting passive form, the emphasis is on how the representatives would be elected.
The result, either way, is the same. Article 80 (4) deals with the manner of election and nothing

more. Therefore, the words "representative of each State" only refers to the members and do not
import any further concept or requirement of residence in the State. Absence of Justification □
Objects & Reasons Another submission urged is that the Statement of Objects and Reasons for the
Bill which brought about the amendment itself shows the absence of justification for doing away
with the will of the Parliament as earlier reflected in original Section 3 of the RP Act 1951, which was
in consonance with the scheme of the Constitution. The Statement of Objects and Reasons for the
Bill mentioned that "a precise definition for 'ordinarily resident' was very difficult" and that after the
matter was "eXamined in depth by the Government" it had been decided to do away with the
requirement of residence in a particular State or Union Territory for contesting election to the
Council of States from that State or Union Territory, and further that there were numerous
instances where persons who were not normally residing in the State had got themselves registered
as voters in such State simply to contest the elections to the Council of States.
The petitioners point out that the definition of "ordinarily resident" contained in Sections 19 and 20
of Representation of the People Act, 1950 remain unamended. As per their submissions, if persons
actually not residing in a particular State have wrongly got themselves registered as voters in such
State or there was difficulty in applying the words 'ordinarily resident', the statute afforded the
remedy in Section 20 (7) of Representation of the People Act, 1950, giving authority to the Central
Government to frame rules, in consultation with the Election Commission, to determine the
questions arising. Besides, it has been argued, the decision of the Election Officer in above regard,
under the eXisting law, is rendered final and cannot be raised again in an Election Petition, as held
by a Constitution Bench in Hari Prasad Mulshanker Trivedi v. V.B. Raju & Ors. [1974 (3) SCC 415].
It has been argued that the reasons given in the Statement of Objects and Reasons for the
Amendment Act do not provide any rational justification for the impugned amendment. The
problem that some persons, though not ordinarily resident in the State, yet manage to get
themselves registered as voters in a Parliamentary Constituency of the State and get elected to the
Council of States, needs to be tackled by making more effective the provision so as to prevent such
registration, if any, and for cancellation of such registration and deletion of their names from the
voters list. This problem, according to the petitioners, requires a different treatment but not by
striking at the root of meaningful and effective representation of the States in the Council of States
by amending Section 3. The petitioners' contention, thus, is that the amended Section 3 is irrational,
arbitrary and unconstitutional.
The petitioners further argue that the reasons given in affidavit in reply, by Union of India, to justify
the impugned amendment for amending Section 3 are different from the reasons given in the
Statement of Objects and Reasons for the Bill.
The Counter Affidavit of the Union of India states that the members of Legislative Assemblies are in
the best position to decide who would best represent their States' interest in the Rajya Sabha. The
petitioners submit that this is a doubtful proposition having regard to what the Ethics Committee of
the Council of States said in its report about large sums of money being the motivating factor in
electing members of the Council of States.

The petitioners also lament that the well considered view e Xpressed by an eminent body like the
National Commission on Working of the Constitution has been unreasonably brushed aside. The
Commission in Paragraph 5.11.5 of its report did e Xpress its view that the Parliamentary legislation
that had been initiated seeking to do away with the domiciliary qualification for being chosen as a
representative of any State or Union territory in the Council of States would affect "the basic federal
character of the Council of States" and that in order to maintain the said basic federal character of
the said House, "the domiciliary requirement for eligibility to contest elections to Rajya Sabha from
the concerned State is essential". Union of India has stated that it respectfully differs from the views
eXpressed by the Commission. We need not go into the question whether the views of the National
Commission on Working of the Constitution were supported or not by elaborate e Xamination of the
issue in all of its dimensions, since the said views are not binding on the Government. The role of
the Commission was more in the nature of being advisory. We are not impressed with the other
submissions, having already rejected the plea based on the federal character of polity. The views of
the Commission were founded on that premise.
In Hari Prasad Mulshanker Trivedi v. V.B. Raju (supra), relied upon by the petitioners, this Court
was concerned with the question whether the election of respondent numbers 4 & 5 as members of
the Council of States from the State of Gujarat which was challenged by way of an election petition,
was void on the ground that they were not ordinarily resident in the area covered by any
parliamentary constituency in the State of Gujarat and that their names had been illegally entered in
the electoral rolls of the respective constituencies in Gujarat and as they were not 'electors' within
the meaning of Section 2 (1)(e) of RP Act, 1951, they were not eligible to become candidates in the
election.
While dealing with the contention about jurisdiction of the Court to decide whether the entries in
the electoral roll regarding the respondents were valid or not, this Court observed: -
"The requirement of ordinary residence as a condition for registration in the electoral rolls is one
created by Parliament by Section 19 of the 1950 Act, and as we said, we see no reason why
Parliament should have no power to entrust to an authority other than a court or a tribunal trying an
election petition the eXclusive power to decide the matter finally. We have already referred to the
observation of this Court in Kabul Singh case that Sections 14 to 24 of the 1950 Act are integrated
provisions which form a complete code in the matter of preparation and maintenance of electoral
rolls. Section 30 of that Act makes it clear that civil courts have no power to adjudicate the question.
In these circumstances we do not think that it would be incongruous to infer an implied ouster of
the jurisdiction of the Court trying an election petition to go into the question. That inference is
strengthened by the fact that under Section 100(1) (d)
(iv) of the 1951 Act the result of the election must have been materially affected by non-compliance
with the provisions of the Constitution or of that Act or of the rules, orders made under that Act in
order that High Court may declare an election to be void. Non-
compliance with the provisions of Section 19 of the 1950 Act cannot furnish a ground for declaring
an election void under that clause."

While disposing off the appeal, the Court concluded thus: "We think that the intention of the
Parliament to oust the jurisdiction of the Court trying an election petition to go into the question
whether a person is ordinarily resident in the constituency in the electoral roll of which his name is
entered is manifest from the scheme of 1950 and the 1951 Acts. It would defeat the object of the 1950
Act if the question whether a person was ordinarily resident in a constituency were to be tried afresh
in a court or tribunal, trying an election petition."
The above observations do not advance the case of the petitioners in any manner. There may be a
separate machinery available under the RP Act, 1950 to question and inquire into the correctness of
the entry of the name of an individual in the electoral roll of a particular constituency, a remedy
distinct from that of an election petition to challenge the election of the candidate declared to have
been returned in an election, but this fact cannot lead to the conclusion, by any stretch of reasoning,
that the removal of the domiciliary requirement from the qualifications for membership of
Parliament is opposed to law or common sense. Union of India would refer to the Registration of
Electoral Rules, 1960 as the rules framed under Section 20 of the RP Act, 1950. The said rules,
generally speaking, provide for the form and languages of the electoral rolls; preparation thereof in
parts; order of names; forms in which declaration about the claim and fulfillment of qualification is
required to be made; information to be supplied by occupants of dwelling houses; access to the
registers; publication of draft electoral rolls and publicity to be given thereto; lodging of claims and
objection with manner and forms prescribed in that regard; procedure for process, rejection or
acceptance of claims and objections after or without inquiry; inclusion or deletion of names; final
publication of electoral rolls; appeals or revisions against the orders passed; identity cards etc. We
have not been able to find any specific provision in these rules as could be held to be a guide to the
concerned authorities for determining in a particular fact situation if an individual is, or is not,
"ordinarily resident" of a particular place at a particular point of time.
We must hasten to add that we are not saying that it is not possible to give a precise definition of the
eXpression "ordinarily resident" for purposes mentioned in the electoral law. We would also not
make an attempt to give such definition in these proceedings since that would be a matter within the
domain of the Legislature. What we want to emphasize is only the fact that the Central Government
faced difficulty in giving a precise definition of the e Xpression and candidly admitted the difficulty
while introducing the amendment.
In this conteXt, what could be open to the Court is to eXamine whether the difficulty in giving precise
definition was not a bona fide reason in view of the meaning of the e Xpression given in Section 20 of
the RP Act, 1950 or in the face of the dictionary meaning by which the said e Xpression can be
generally understood. We have already found that the provision in question leaves much to be
desired and the guidance provided by law is deficient in that it does not give a clear cut definition as
to how the question of ordinary residence of an individual is to be determined. Article 84 of the
Constitution provides for qualifications for membership of Parliament. The requirements in Article
84 for a person to fill up a seat in either House of Parliament, including the Council of States, are: -
(i) The person elected should be a citizen of India;

(ii) He must subscribe an oath of affirmation as per the form set out in the Third Schedule;
(iii) In the case of Council of States he must be not less than 30 years of age;
(iv) He must possess such other qualifications as may be prescribed in this behalf by or under any
law made by Parliament.
The disqualifications for being chosen as, or for being, a member of either House of Parliament are
contained in Article
102. A person incurs disqualification if he: -
(i) holds any office of profit;
(ii) is of unsound mind and stands so declared by a competent court;
(iii) is an un-discharged insolvent;
(iv) is not a citizen of India or has voluntarily acquired a citizenship of a foreign State etc;
(v) is so disqualified under any law made by the Parliament.
The Constitution, thus, has no requirement that a person chosen to represent a State in the Council
of States must necessarily be a voter in that State itself. The Constitution, after prescribing certain
qualifications and disqualifications, has left it to the Parliament to provide other such qualifications
or disqualifications. The Parliament had initially prescribed an additional qualification that a person
so chosen should be an elector for a Parliamentary constituency in the State. After working out this
provision for more than five decades, the Parliament in its legislative wisdom, decided through the
impugned amendment that a person chosen to be a representative of a State in the Council of States
need not necessarily be an elector within the particular State or, in other words he must be an
elector in any parliamentary constituency in India, but not necessarily in the concerned State.
Union of India has submitted that the Parliamentary Debates and the Report of the Standing
Committee indicate that the e Xperience of the past fifty years has been considered. According to its
submissions, the considerations which weighed with the Parliament, inter alia, included the fact that
the Constitution does not prescribe any mandatory requirement that the elected member should be
an elector in the State from where he is elected.
Union of India would also claim that several persons whose presence could add to the quality of
debates and proceedings in the Council of States had, under the dispensation before amendment,
been constrained to enroll themselves as voters in another State just in order that they could be
elected from such State. It has been further submitted that unless they did so, some States would
remain unrepresented in the Council of Ministers due to the non- availability of such talented
members of these States in the House of the People and the Council of States and, thus, the opening

out of the residential provision was meant to help in this regard. The Constitution under Article
19(1)(e) guarantees the freedom to a citizen to choose a residence of his choice. There are several
cases of elected representatives who may have multiple residences and may have to choose any one
of them as a matter of convenience where to vote. The cases of persons maintaining multiple
residences at several places would be few and far between. Even otherwise that should not have
posed any problem since the requirement of law was that of ordinary residence which would not
apply to each of the several residences of a person. We are not concerned with the political
compulsions or considerations that are implied by some of the above- mentioned submissions of the
Union of India and others supporting its stand. It is not necessary for us to e Xamine the plea of the
Union of India as to the competence or talent of, or the addition to the quality of debates or
discussion in Parliament due to participation by, certain specific members of Parliament reference
to whose names was sought to be made by the learned counsel in the course of arguments contesting
the contentions of the writ petitioners. Suffice it to say here that the submissions on both sides
would show that the erstwhile arrangement in the law, that is the arrangement prior to the
impugned amendment, to determine the question as to whether a particular person is ordinarily
resident of a particular place or not had not worked satisfactorily. The law does not give a clear
concise definition or guidance in this regard. The declaration of the person concerned is generally
taken as the gospel truth and before the correctness of such declaration is disputed, the challenger
must arm himself with cogent proof showing facts to the contrary. In this scenario, declarations that
were false to the knowledge of the makers thereof seem to have been used brazenly and with
impunity. We mention this trend because its eXistence was alleged by some counsel and not denied
by anyone. This undoubtedly could not be a happy state of affairs.
Nonetheless, if the Parliament in its wisdom has chosen to do away with the domiciliary
requirement as qualification for contesting an election to fill a seat as representative of a particular
State in the Council of States, fault cannot be found with such decision of the Parliament on the
ground that difficulty to define what was meant by the e Xpression "ordinarily resident" was not an
honest ground. This, for the simple reason that there was nothing in the Constitution or the law at
any point of time rendering the domiciliary requirement as crucial qualification for purposes
particularly of the Council of States.
We must, however, add here that while the impugned amendment cannot be assailed on the above
mentioned reasons, doing away with the domiciliary requirement cannot always be the answer since
it would remain an obligation of the Legislature and the Central Government to define precisely as
to what is meant by the e Xpression "ordinarily resident" because that would remain sine qua non for
registration of a person as an elector in a particular Constituency and thus a subject from which one
cannot shy away. We would only hope for purposes of its proper application under the relevant
provisions of the law concerning elections that the Parliament and the Central Government would
take necessary steps to unambiguously define the said e Xpression. As regards the criticism that the
reasons given in the counter affidavit of the Union of India are distinct from those set out in the
Statement of Objects and Reasons of the Bill that became the impugned law, we may only state that
the Statement of Objects and Reasons of a proposed legislation is not the compendium of all
possible reasons or justification. We do not find any contradiction in the stand taken by the Union of
India in these proceedings in relation to the Statement of Objects and Reasons of the impugned

amendment.
Rendering it a case of 'No qualification' - Abdication of its Function by Parliament The counsel for
the petitioners have argued that the impugned amendment has dispensed with the only qualification
(the residential qualification) that had been built in by the Parliament in the provision to give
meaning to the representative character of the person chosen to be the member of the Council of
States, and at the same time failed to define or prescribe any other criteria which Parliament regards
as relevant for the person elected being a "representative" of that State. They would submit that the
marginal note "Qualification for the Membership of Council of States" which had been retained for
Section 3 of the RP Act, 1951 had been rendered meaningless.
The learned counsel, Mr. Nariman, would grant that, under Article 84 (c) read with Article 327 and
Entry 72 of the Union List, it is within the legislative competence of Parliament to define or modify
the qualifications for the Member of Parliament by making law from time to time. The Petitioners
would even concede that the only way of ensuring the representative character may not be by the
State being represented by a person "ordinarily resident" in that State which, according to them, was
the original method adopted, as reflected in Section 3 of RP Act, 1951 but other links can be found.
Thus, it is not disputed that the connection of "residence" could from time to time be changed or
amended when circumstances so demanded.
The argument, however, is that Section 3 could be amended by Parliament only so long as it
mentioned some qualification for representation of person to be elected as member of Council of
States. According to the petitioners, this must be done by putting in position some other appropriate
method of ensuring representation of a particular State in the Council of States.
It has been submitted that the impugned amendment had failed to provide alternative additional
qualification, since any citizen of India, resident anywhere in India, can now be elected by any State
Assembly even when he is ordinarily resident, and even when his registration as an elector is,
outside that State. No further additional qualifications are provided to indicate his or her usefulness
in the debates or discourses to take place in the Council of States. It is the contention of the
petitioners that on the assumption that there was need for laying down a criteria other than the
requirement of residence in a particular State, some different or alternative qualification or method
of representation could have been prescribed; such as birth, education, carrying on business or
working for gain in the place for a period prescribed or doing philanthropic or charitable work in a
State by persons residing outside the State. They argue that some roots or some connection had to
be ensured to be eXisting so as to maintain the representative character of the person to be elected as
representative of the particular State.
But, it is the grievance of the petitioners that by the impugned amendment a 'qualification' has been
introduced which is not a qualification at all, and which only means that anyone in India who is on
the electoral roll of any Parliamentary Constituency in India can be chosen by any State Assembly in
India as a representative of that State in the Council of States.

Developing the above argument further, Mr. Nariman submitted that, after the impugned
amendment, there is "in effect" no qualification prescribed by Parliament for the person elected
being a representative of the particular State, Assembly of which has elected him, since he may be an
elector in any Parliamentary Constituency "in India", which according to the Counsel is not a
qualification for the person chosen by the particular State Assembly to be a "representative of" that
State. It is now left to the entire subjective determination of each State Assembly, to elect any one,
even one who is an elector (i.e. ordinarily resident) in any other State or one who has no connection
whatsoever with the State that chooses him to be its representative in the Council of States. It has
been argued that by the impugned amendment, Parliament has whilst purporting to set up
"qualification" for membership to the Council of States failed to have due regard to the e Xpression
"representative of the State" in Article 80. The contention is that by this amendment, Parliament
has in effect abdicated its allotted function under Article 84(4), which had been e Xamined when
enacting Section 3 of the RP Act 1951 by defining as to who would be the representatives of each
State in the Council of States, but this has now been left to be determined in each individual case by
the majority of Members of the State Assembly who elect a particular person i.e. irrespective of
whether or not the person chosen has any connection with the State by birth, residence,
performance of public duties or otherwise.
The argument is that the will of the State assemblies on the issue as to who qualifies to be a
representative of the State within the meaning of the eXpression used in Article 80 is not sufficient
or good guide since the question of qualifications had been left by the Constitution to be prescribed
by the Parliament and not the members of State Legislative Assemblies. To deny to the State
assemblies reference to some criteria prescribed by law by Parliament totally negates one important
aspect of federation in the Constitution viz. the effective representation of States in the Council of
States. The arguments of the petitioners on above lines do not impress us. It is all a matter relating
to the legislative competence of Parliament on which the challenge to the validity falls apart.
The Constitutional provisions dealing with elections to the Council of States are, inter alia,
contained in Articles 80 and 327. Article 80 (4) provides that elections to the Council of States shall
be by a system of proportional representation by means of a single transferable vote by the elected
members of the legislative assemblies of the States. Article 327, inter alia, provides that subject to
the provisions of the Constitution, Parliament may "from time to time" by law make provisions with
respect to all matters relating to or in connection with elections to either House of Parliament. The
above provisions leave no room for doubt that the Constitution recognized the need for changes in
the law relating to elections from time to time and entrusted Parliament with the responsibility, as
also the requisite power, to bring in legislative measures as and when required in such regard, which
would include the power to amend the eXisting measures. Should there be any doubt entertained by
any quarter in this respect, reference may be made to the case of Hari Prasad Mulshanker Trivedi v.
V.B. Raju & Ors. [(1974) 3 SCC 415: (1974) 1 SCR 548], wherein it has been held by this Court that:-
"Article 327 gives full power to Parliament subject to the provisions of the Constitution to make laws
with respect to all matters relating to or in connection with elections including the preparation of
electoral rolls".

Parliament has the power, rather an eXclusive one, under Article 246 to make laws with respect to
any of the matters enumerated in the Union List of the Seventh Schedule. In e Xercise of the powers
conferred on it under Article 246 read with Articles 84 & 327 and Entry 72 of the Union List of the
Seventh Schedule to the Constitution, it is a matter for Parliament to decide by making law as to
what qualifications "other" than those prescribed in the Constitution be made compulsory to be
fulfilled by persons seeking to fill seats in the Council of States as representatives of the States. It is
provided in Article 80 (2) that allocation of seats in the Council of States to be filled by the
representatives of States and the Union Territories shall be in accordance with the provisions in that
behalf contained in the Fourth Schedule. In Article 80 (4), it is provided that the representatives of
each State shall be elected by the elected Members of the Legislative Assembly of that State in
accordance with the system of proportional representation by means of a single transferable vote.
Article 84 of the Constitution prescribes the qualifications for membership of Parliament while
Article 102 indicates the disqualifications. Under the most relevant clause, Article 84 (c), it is for
Parliament to prescribe "such other qualifications" for membership of the Council of States as it may
deem necessary or proper; that is, qualifications other than the two Constitutionally prescribed
under Article 84(a) and (b), viz., citizenship of India and minimum age (not less than 30 years).
Apart from the above, the Constitution does not put any restriction on the legislative powers of the
Parliament in this regard.
If the Constitution had intended that the "representatives" of the States must be residents of the
State or must have a link or ne Xus with the State from where the representatives are chosen, that is,
link or neXus of the kind mentioned by the petitioners, such a provision would have been e Xpressly
made in this conteXt as has been done in respect of requirement of age and citizenship. In the
absence of such eXpress requirement, the requirement of residence or any other ne Xus as a matter of
qualification cannot be read into Articles 80 or 84.
The fact that a candidate needs to be enrolled in any parliamentary constituency in India does not
deprive him of the locus to be the representative of the State simply on the ground that he is not
enrolled there.
In People's Union For Civil Liberties & Anr. v. Union of India & Anr. [(2003) 4 SCC 399], this Court
treated the right to vote to be carrying within it the Constitutional right of freedom of e Xpression.
But the same cannot be said about the right to stand for election, since that is a right regulated by
the statute.
Even without going into the debate as to whether right to vote is a statutory or Constitutional right,
the right to be elected is indisputably a statutory right, i.e., the right to stand for elections can be
regulated by law made by Parliament. It is pure and simple a statutory right that can be created and
taken away by Parliament and, therefore, must always be subject to statutory limitations.
In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency & Ors. [1952 SCR 218], this Court
noticed with approval the decision of Privy Council in Joseph Theberge & Anr. v. Phillippe Laudry
[(1876) 2 AC 102], and held that the right to stand as a candidate for election is not a civil right, but

is a creation of statute or special law and must be subject to the limitations imposed by it. It was
observed in Paragraph 19 of the Judgment as under: -
"The points which emerge from this decision may be stated as follows:
"(1) The right to vote or stand as a candidate for election is not a civil right but is a creature of
statute or special law and must be subject to the limitations imposed by it.
(2) Strictly speaking, it is the sole right of the legislature to e Xamine and determine all matters
relating to the election of its own members, and if the legislature takes it out of its own hands and
vests in a Special Tribunal an entirely new and unknown jurisdiction, that special jurisdiction
should be eXercised in accordance with the law which creates it."
(emphasis supplied) In the case of Hari Prasad Mulshanker Trivedi (supra), it was reiterated that: -
"The right to stand for election is a statutory right and the statute can therefore regulate the manner
in which the right has to be enforced or the remedy for enforcing it."
Similar view was eXpressed by this Court once again in Jyoti Basu v. Debi Ghosal, [(1982) 1 SCC
691], in following words:-
"A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a
fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to
be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right
to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject
to statutory limitation. An election petition is not an action at common law, nor in equity. It is a
statutory proceeding to which neither the common law nor the principles of equity apply but only
those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction
has always to be eXercised in accordance with the statute creating it. Concepts familiar to common
law and equity must remain strangers to election law unless statutorily embodied. A court has no
right to resort to them on considerations of alleged policy because policy in such matters as those,
relating to the trial of election disputes, is what the statute lays down. In the trial of election
disputes, court is put in a strait- jacket. Thus the entire election process commencing from the
issuance of the notification calling upon a constituency to elect a member or members right up to
the final resolution of the dispute, if any, concerning the election is regulated by the Representation
of the People Act, 1951, different stages of the process being dealt with by different provisions of the
Act. There can be no election to Parliament or the State Legislature e Xcept as provided by the
Representation of the People Act, 1951 and again, no such election may be questioned e Xcept in the
manner provided by the Representation of the People Act. So the Representation of the People Act
has been held to be a complete and self-contained code within which must be found any rights
claimed in relation to an election or an election dispute. "
(emphasis supplied) The Constitution by Article 84 has prescribed qualifications for membership of
either House of Parliament. Article 84 (c) does not make it compulsory for Parliament to prescribe

any qualification other than those prescribed by Clauses (a) & (b). Parliament may or may not
prescribe some such qualifications, and having prescribed some may repeal them whenever it so
desires. It is difficult to accept the argument that once the Parliament prescribes a qualification, it
cannot revoke or repeal it. There is no such limitation on Parliament's legislative power, which is
confirmed by Entry 72 of the Union List in the Seventh Schedule. The language of Clause (c) of
Article 84 creates a power and not a duty. If it is not bound to prescribe any additional qualification,
it is also not bound to provide a substitute for the one done away with. The thrust of the argument of
the petitioners is that 'outsider' would be given preference to an 'insider'. This need not be invariably
the end result, since outcome of an election would depend on the choice of the Electoral College, viz.
the legislative assembly of the State, than on any other factor. In any event, even if an 'outsider' is
selected, it is too far-fetched to contend that the "character" of the House would consequently stand
altered.
What has been essentially done by the amendment is to provide that even a person registered as an
elector outside the State can contest the election to the Council of States from that State. The choice
of the electors has been widened and e Xpanded by making this provision. If the electors so chose,
they can always choose a person who has link or ne Xus with the State, that is link of the kind
mentioned by the petitioners. The argument that the amended Section 3 of RP Act, 1951 is futile or
that the impugned amendment makes Section 3 nugatory is not correct. Whilst Article 84 prescribes
citizenship of India as qualification for membership Section 3, after the amendment, restricts
qualification of member of Council of States to an elector who is resident in India. This would
eXclude non resident Indian citizens. This is also a significant restriction. It is, therefore, clear that
Section 3 continues to provide a qualification for membership of the Council of States, namely that
one has to be a citizen who is a resident of India. All that the impugned amendment has done is to
enlarge the scope of consideration for election to the Council of States by removing the restriction
that persons qualified to stand would only be electors in the State concerned. Having regard to the
purpose for which the second chamber was conceived, that is to say, to have representation of a wide
spectrum of people the amendment does not change the character of the Council of States. The
submission that the Parliament has 'abdicated' its obligations is not correct. In the first place, as has
been observed above, it was not obligatory on Parliament to enact a law regarding qualifications or
to frame any qualifications. It is important to note that, even after the amendment, (i) the electors
remain the same, namely the State Assemblies; (ii) the elected persons remain representatives of the
State; and (iii) the choice and the decision as to whom to elect continues to be with the State
Legislative Assemblies. The field of consideration before the State Assembly is enlarged. But the
ultimate choice and decision is always that of the State Legislatures. Therefore, if they decide to elect
a person who is not ordinarily a resident of the State they would do so with the full knowledge of all
circumstances and it would be their decision as to who should be the representative of their State.
This, by no stretch of reasoning, can be said to be an abdication of the Parliament's obligations or
functions. Under the aforesaid Constitutional mandate, Parliament has, inter alia, enacted the RP
Acts of 1950 and 1951, as well as the impugned amendment Act. By the impugned amendment Act,
the requirement of being a voter in a particular State has been done away with. Thus, in our view the
arguments raised by the petitioners do not hold water. The impugned amendment to Section 3 of
the RP Act, 1951 cannot be assailed as unconstitutional. It passes muster in view of legislative
competence. It does not transgress the provisions of Part III of the Constitution, nor for that matter

any other provision, eXpress or implied, of the Constitution. The requirement of 'residence' cannot
be read in Article 80(4) of the Constitution. The challenge thus must be repelled.
Issue No.II : Secrecy of Voting Section 59 provided for the 'Manner of voting at elections' to be "by
ballot in such manner as may be prescribed". Section 94 made its prescription clear by marginal
note reading 'Secrecy of voting not to be infringed', giving immunity mainly to the voter against
compulsion to disclose by declaring, in no uncertain terms, that "No witness or other person shall be
required to state for whom he has voted at an election". Section 128 made further provision for
insulating the right of the voter to secrecy of vote from onslaught and arranging 'Maintenance of
secrecy of voting' by making it an obligation of every person entrusted with election duties to
"maintain, and aid in maintaining, the secrecy of the voting" and, unless so "authorized by or under
any law", not to "communicate to any person any information calculated to violate such secrecy".
Through the impugned amendments a proviso each has been added to Sections 59, 94 and 128, as
noted in the beginning of the judgment. These amendments have carved out an e Xception to the
general rule of secrecy for purposes of the elections for filling up a seat in the Council of States,
which is now to be held "by open ballot", thus no longer subject to the principle of secret ballot.
Petitioners' submissions on Open Ballot and Secrecy For filling the seats in Council of States, the
amendments made in Sections 59, 94 and 128 of the RP Act 1951 have introduced the concept of
Open Ballot in place of Secret Ballot. It has been submitted that the right of secrecy in the election of
Members of Rajya Sabha is an essential part of democracy that is based on free and fair elections.
The voters should have freedom of eXpressing their view through their votes. The impugned
amendment violates the right of secrecy by resorting to open ballot system that is nothing but a
political move by clique in political parties for their own achievement.
It is contended that the impugned amendments violate the Fundamental Right under Article 19(1)
(a) of the Constitution as well as the provisions in the Representation of the People Act, 1951,
Universal Declaration of Human Rights and International Covenant on Civil and Political Rights.
The petitioners urge that Human Rights contained in Universal Declaration of Human Rights and
International Covenant on Civil and Political Rights may be taken in aid of Fundamental Rights to
elucidate them and to make them more effective, as has been held in various cases. On the above
premise, it has been contended that, the amendments made in Sections 3, 59, 94 and 128, are
unconstitutional and violative of Article 19(1)(a) of the Constitution of India. Submission of Union of
India on Open Ballot & Secrecy The submission is that there is no constitutional requirement that
election to the Council of States be conducted "by secret ballot", as has been e Xpressly provided
under Article 55(3) and Article 66(1) for elections to the offices of the President of India and the Vice
President of India respectively.
It has been submitted that it was pursuant to the view e Xpressed by the Ethics Committee of the
Parliament in its report dated 1st December, 1998, in the wake of "emerging trend of cross voting in
the Rajya Sabha and Legislative Council elections", for the elections "by open ballot" to be e Xamined
that the Union of India incorporated such provision through the impugned Act. In this conte Xt
reference has been made to the "influence of money power and muscle power in Rajya Sabha
elections" and also to the provisions contained in Tenth Schedule to the Constitution. Union of India
contends that after considering the available material and report of the Ethics Committee, it had

come to the conclusion that "the secret ballot system had in fact become counter-productive and
opposed to the effective implementation of the principles of democratic representation of States in
the Rajya Sabha". Further submission is that "secret ballot is not an infleXible or mandatory
procedure" for ensuring free and fair elections in the country and so the provision for open ballot
system has been incorporated having regard to "the emerging trends in the election process and as
warranted by a rational, reasonable, democratic objective". Union of India has also submitted copy
of the First Report of the Ethics Committee of Parliament, as adopted on 15th December, 1999 and
published by the Rajya Sabha Secretariat, under the chairmanship of Shri S.B. Chavan, which had
recommended the open ballot system as follows: - "19. The Committee has also noted the emerging
trend of cross-voting in the elections for Rajya Sabha and the Legislative Councils in States. It is
often alleged that large sums of money and other considerations encourage the electorate for these
two bodies to vote in a particular manner leading sometimes to the defeat of the official candidates
belonging to their own political party. In order not to allow big money and other considerations to
play mischief with the electoral process, the Committee is of the view that instead of secret ballot,
the question of holding the elections to Rajya Sabha and the Legislative Councils in States by open
ballot may be eXamined."
The amendments brought about by Act 40 of 2003 which are also subject matter of challenge in
these matters have already been noticed.
Part V of the RP Act, 1951 relates to the "Conduct of Elections". Chapter 4 of the said Part of the RP
Act, 1951 covers the topic of "The Poll". Amongst others, it includes Section 59 relating to the
"manner of voting on elections". Section 59 of RP Act, 1951 was amended twice in the year 2003,
firstly with effect from 22nd March, 2003 by the Election Laws (Amendment) Act, 2003 (Act 24 of
2003) and then with effect from 28th August, 2003 by Act 40 of 2003 (the impugned amendment).
The amendment through Act 24 of 2003 is not of much consequence for the present purposes and
had only substituted the words "and no votes shall be received by pro Xy" with the words "and, save
as eXpressly provided by this Act, no votes shall be received by proXy". The amendment through Act
40 of 2003 added a proviso to Section 59 of RP Act, 1951, so as to provide for elections to fill seats in
the Council of States to be held "by open ballot". Section 59, after amendment, reads as under: - "59.
Manner of voting at elections. - At every election where a poll is taken votes shall be given by ballot
in such manner as may be prescribed and, save as e Xpressly provided by this Act, no votes shall be
received by proXy.
Provided that the votes at every election to fill a seat or seats in the Council of States shall be given
by open ballot."
There were two other provisions of RP Act, 1951 that were amended by Act 40 of 2003, which
changes have been described as amendments consequential to the amendment made to Section 59.
These others provisions also need to be noticed at this stage.
Part VI of the RP Act, 1951 relates to "Disputes Regarding Elections". The election petitions lie under
these provisions to the High Courts. Chapter III of Part VI relates to the "Trial of Election Petitions".
Section 94 falling under this Chapter, as originally enacted read as under :

"Secrecy of voting not to be infringed □ No witness or other person shall be required to state for
whom he has voted at an election."
The Act 40 of 2003 has added a proviso to the aforesaid provision. The amended provision now
reads as under: - "Secrecy of voting not to be infringed □ No witness or other person shall be
required to state for whom he has voted at an election.
Provided that this section shall not apply to such witness, or other person where he has voted by
open ballot."
Part VII of RP Act, 1951 relates to the "Corrupt Practices and Electoral Offences". Chapter I defines
"Corrupt Practice". Chapter III relates to "Electoral Offences". Section 128 falling in this Chapter, as
originally enacted read as under: - "128. Maintenance of secrecy of voting. □ (1) Every officer, clerk,
agent or other person who performs any duty in connection with the recording or counting of votes
at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall not (e Xcept
for some purpose authorized by or under any law) communicate to any person any information
calculated to violate such secrecy.
(2) Any person who contravenes the provisions of sub section (1) shall be punishable with
imprisonment for a term which may eXtend to three months or with fine or with both."
Act 40 of 2003 has added a proviso to sub-section (1) so as to carve out an eXception in relation to
the election to the Council of States. After amendment, sub-section (1) of Section 128 reads as under
:
"128. Maintenance of secrecy of voting.□ (1) Every officer, clerk, agent or other person who performs
any duty in connection with the recording or counting of votes at an election shall maintain, and aid
in maintaining, the secrecy of the voting and shall not (e Xcept for some purpose authorized by or
under any law) communicate to any person any information calculated to violate such secrecy.
Provided that the provisions of this sub- section shall not apply to such officer, clerk, agent or other
person who performs any such duty at an election to fill a seat or seats in the Council of States."
The cumulative effect of the amendments to Sections 59, 94 and 128 of RP Act, 1951, brought about
by Act 40 of 2003 thus is that the elections for filling up a seat in the Council of States is now to be
held "by open ballot". The requirement of maintenance of secrecy of voting is now made subject to
an eXception mentioned in the proviso.
Free and Fair Elections The learned Counsel representing the petitioners, while arguing on the
challenge to the impugned amendment respecting the secrecy of ballot in the election to fill the seats
of the representatives of the States in the Council of States again referred to the 'basic structure'
theory and submitted that democracy was part of the basic features of the Constitution. They would
submit that free and fair election was a concept inherent in the democratic values adopted by our
polity.

There cannot be any quarrel with these preliminary propositions urged on behalf of the petitioners.
It has been authoritatively held, time and again, by this Court that democracy is a basic feature of
the Constitution of India, one that is not amenable to the power of amendment of the Parliament
under the Constitution. It has also been the consistent view of this Court that the edifice of
democracy in this country rests on a system of free and fair elections. These principles are
discernible not only from the preamble, which has always been considered as part of the
Constitution, but also from its various provisions. Should there be any doubt still lurking in any
mind, the following cases can be referred to, with advantage, in this conteXt.
The views of Sikri, CJ in Kesavananda Bharati, e Xpressed in Paragraph 292, have been noticed, in
eXtenso, earlier in the conteXt of plea regarding federalism. He has clearly referred to "Republican
and Democratic form of Government" as one of the features constituting the basic structure of the
Constitution.
In the same case, Shelat & Grover JJ, in their separate judgment, also found "Republican and
Democratic form of government and sovereignty of the country" amongst "the basic elements of the
constitutional structure" as discernible from "the historical background, the preamble, the entire
scheme of the Constitution, relevant provisions thereof including Article 368".
Hegde and Mukherjee JJ, observed in their judgment that "the basic elements and fundamental
features of the Constitution" found "spread out in various other parts of the Constitution" are also
set out "in the provisions relating to the sovereignty of the country, the Republican and the
Democratic character of the Constitution".
In the words of Jaganmohan Reddy, J in his separate judgment, the "elements of the basic structure
are indicated in the Preamble and translated in the various provisions of the Constitution" and the
"edifice of our Constitution is built upon and stands on several props" which, if removed would
result in the Constitution collapsing and which include the principles of 'Sovereign Democratic
Republic' and 'Parliamentary democracy', a polity which is "based on a representative system in
which people holding opposing view to one another can be candidates and invite the electorate to
vote for them". The views of this Court, as eXpressed in Paragraph 264 of the judgment in Indira
Nehru Gandhi have been eXtracted in earlier part of this judgment. Suffice it to note here again that
the law laid down by the majority in Kesavananda Bharati (supra) was taken note of and on the
question "as to what are the basic structures of the Constitution", it was found to "include
supremacy of the Constitution, democratic republican form of Government".
The following observations in Paragraph 198 of the judgment in Indira Nehru Gandhi (supra) also
need to be noticed as they are relevant in the conte Xt of the principle that 'free and fair elections' lies
at the core of democracy: - "198. This Court in the case of Kesavananda Bharati held by majority that
the power of amendment of the Constitution contained in Article 368 does not permit altering the
basic structure of the Constitution. All the seven Judges who constituted the majority were also
agreed that democratic set-up was part of the basic structure of the Constitution.

Democracy postulates that there should be periodical elections, so that people may be in a position
either to re-elect the old representatives or, if they so choose, to change the representatives and elect
in their place other representatives. Democracy further contemplates that the elections should be
free and fair, so that the voters may be in a position to vote for candidates of their choice.
Democracy can indeed function only upon the faith that elections are free and fair and not rigged
and manipulated, that they are effective instruments of ascertaining popular will both in reality and
form and are not mere rituals calculated to generate illusion of defence to mass opinion. Free and
fair elections require that the candidates and their agents should not resort to unfair means or
malpractices as may impinge upon the process of free and fair elections."
(emphasis supplied) Mohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC 405], is
another case that is significant in the present conte Xt. In Paragraph 2, the following words indicated
the controversy in the preface: -
"2. Every significant case has an unwritten legend and indelible lesson. This appeal is no e Xception,
whatever its formal result. The message, as we will see at the end of the decision, relates to the
pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless,
words:
"At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a
little pencil, making a little cross on a little bit of paper □ no amount of rhetoric or voluminous
discussion can possibly diminish the overwhelming importance of the point."
If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections
by mob muscle methods, or subtle perversion of discretion by men "dressed in little, brief
authority". For "be you ever so high, the law is above you"."
The Court spoke in Paragraph 23 about the philosophy of election in a democracy, which reads as
under: - "Democracy is government by the people. It is a continual participative operation, not a
cataclysmic, periodic eXercise. The little man, in his multitude, marking his vote at the poll does a
social audit of his Parliament plus political choice of this proXy. Although the full flower of
participative Government rarely blossoms, the minimum credential of popular Government is
appeal to the people after every term for a renewal of confidence. So we have adult franchise and
general elections as constitutional compulsions. "The right of election is the very essence of the
constitution" (Junius). It needs little argument to hold that the heart of the Parliamentary system is
free and fair elections periodically held, based on adult franchise, although social and economic
democracy may demand much more."
(emphasis supplied) Some of the important holdings were set down in Paragraph 92 of the
aforementioned judgment "for convenience" and to "synopsize the formulations". The holdings
included the following: -

"□□□(2)(a) The Constitution contemplates a free and fair election and vests comprehensive
responsibilities of superintendence, direction and control of the conduct of elections in the Election
Commission. This responsibility may cover powers, duties and functions of many sorts,
administrative or other, depending on the circumstances.
(b) Two limitations at least are laid on its plenary character in the e Xercise thereof. Firstly, when
Parliament or any State Legislature has made valid law relating to or in connection with elections,
the Commission, shall act in conformity with, not in violation of, such provisions but where such law
is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from,
pushing forward a free and fair election with eXpedition. Secondly, the Commission shall be
responsible to the rule of law, act bona fide and be amenable to the norms of natural justice insofar
as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action
in a most important area of the constitutional order viz. elections. Fairness does import an
obligation to see that no wrongdoer candidate benefits by his own wrong. To put the matter beyond
doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although not
in full panoply but in fleXible practicability. Whether it has been complied with is left open for the
Tribunal's adjudication.
□□□□.."
(emphasis supplied) The case reported as S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra [1980
Supp. SCC 53] is also relevant for purposes at hand. While construing the provisions of the RP Act,
1951, this Court eXpressed the following views: - "□□An Act to give effect to the basic feature of the
Constitution adumbrated and boldly proclaimed in the preamble to the Constitution viz. the people
of India constituting into a sovereign, secular, democratic republic, has to be interpreted in a way
that helps achieve the constitutional goal. □□ The goal on the constitutional horizon being of
democratic republic, a free and fair election, a fountain spring and cornerstone of democracy, based
on universal adult suffrage is the basic. The regulatory procedure for achieving free and fair election
for setting up democratic institution in the country is provided in the Act.
□□".
(emphasis supplied) The case reported as Kihoto Hollohan v. Zachillhu & Ors. [1992 Supp (2) SCC
651], also resulted in similar views being reiterated by this Court in the following words: - "179.
Democracy is a part of the basic structure of our Constitution; and rule of law, and free and fair
elections are basic features of democracy. One of the postulates of free and fair elections is provision
for resolution of election disputes as also adjudication of disputes relating to subsequent
disqualifications by an independent authority□"
(emphasis supplied) That Parliamentary democracy is part of the basic structure of the Constitution
was reiterated by this Court in P.V. Narasimha Rao's case (supra) in following words: "As mentioned
earlier, the object of the immunity conferred under Article 105(2) is to ensure the independence of
the individual legislators. Such independence is necessary for healthy functioning of the system of
parliamentary democracy adopted in the Constitution.

Parliamentary democracy is a part of the basic structure of the Constitution."
In the case reported as Union of India v. Association for Democratic Reforms & Anr. [(2002) 5 SCC
294], this court reiterated as under: -
"21. Further, it is to be stated that: (a) one of the basic structures of our Constitution is "republican
and democratic form of government"; (b) the election to the House of the People and the Legislative
Assembly is on the basis of adult suffrage, that is to say, every person who is a citizen of India and
who is not less than 18 years of age on such date as may be fi Xed in that behalf by or under any law
made by the appropriate legislature and is not otherwise disqualified under the Constitution or any
law on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall
be entitled to be registered as a voter at any such election (Article 326); (c) holding of any asset
(immovable or movable) or any educational qualification is not the eligibility criteria to contest
election; and
(d) under Article 324, the superintendence, direction and control of the "conduct of all elections" to
Parliament and to the legislature of every State vests in the Election Commission. The phrase
"conduct of elections" is held to be of wide amplitude which would include power to make all
necessary provisions for conducting free and fair elections."
(emphasis supplied) In People's Union for Civil Liberties (PUCL), this Court held that "It also
requires to be well understood that democracy based on adult franchise is part of the basic structure
of the Constitution."
There can thus be no doubt about the fact that democracy is a basic feature of the Constitution of
India and the concept of democratic form of government depends on a free and fair election system.
It is the contention of the writ petitioners that free and fair election is a constitutional right of the
voter, which includes the right that a voter shall be able to cast the vote according to his choice, free
will and without fear, on the basis of information received. The disclosure of choice or any fear or
compulsion or even a political pressure under a whip goes against the concept of free and fair
election, and that immunity from such fear or compulsion can be ensured only if the election is to be
held on the principle of "secret ballot". These submissions need elaborate eXamination. Right to vote
□ a Constitutional/Fundamental right The learned Counsel have submitted that right to vote in an
election under the Constitution of India, which includes the election of the representatives of States
in the Council of States, as per the provisions contained in Article 80 (4), is a Constitutional right, if
not a Fundamental right. Reliance has been placed in this conte Xt by the petitioners on the Union of
India v. Association for Democratic Reforms and Anr. (supra) wherein this Court was considering
the right of the voter to know about the candidates contesting election. Having found that such a
right eXisted, it was observed in Paragraph 22 as under: - "□..In democracy, periodical elections are
conducted for having efficient governance for the country and for the benefit of citizens □ voters. In
a democratic form of government, voters are of utmost importance. They have right to elect or re-
elect on the basis of the antecedents and past performance of the candidate. The voter has the choice
of deciding whether holding of educational qualification or holding of property is relevant for

electing or re-electing a person to be his representative. Voter has to decide whether he should cast
vote in favour of a candidate who is involved in a criminal case. For maintaining purity of elections
and a healthy democracy, voters are required to be educated and well informed about the contesting
candidates□□." (emphasis supplied) In Paragraph 46 of the judgment, the legal and constitutional
position emerging from the discussion was summed up thus: -
"□□..
4. To maintain the purity of elections and in particular to bring transparency in the process of
election, the Commission can ask the candidates about the e Xpenditure incurred by the political
parties and this transparency in the process of election would include transparency of a candidate
who seeks election or re-
election. In a democracy, the electoral process has a strategic role. The little man of this country
would have basic elementary right to know full particulars of a candidate who is to represent him in
Parliament where laws to bind his liberty and property may be enacted.
5. The right to get information in democracy is recognised all throughout and it is a natural right
flowing from the concept of democracy. At this stage, we would refer to Article 19(1) and (2) of the
International Covenant on Civil and Political Rights, which is as under:
"(1) Everyone shall have the right to hold opinions without interference. (2) Everyone shall have the
right to freedom of e X pression; this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the
form of art, or through any other media of his choice."
□□□
7. Under our Constitution, Article 19(1)(a) provides for freedom of speech and e Xpression. Voter's
speech or eXpression in case of election would include casting of votes, that is to say, voter speaks
out or eXpresses by casting vote. For this purpose, information about the candidate to be selected is
a must.
Voter's (little man □ citizen's) right to know antecedents including criminal past of his candidate
contesting election for MP or MLA is much more fundamental and basic for survival of democracy.
The little man may think over before making his choice of electing law-breakers as law-makers."
(emphasis supplied) This Court thus held in the above-mentioned case that a proper disclosure of
the antecedents by candidates in an election in a democratic society might influence intelligently the
decisions made by the voters while casting their votes. Casting of a vote by a mis-informed and non-
informed voter, or a voter having one sided information only, is bound to affect the democracy
seriously. This Court, therefore, gave certain directions regarding the necessity of each candidate
furnishing information.

The views eXpressed in Jyoti Basu (supra) have already been e Xtracted earlier. It may be noticed
again that in that case this Court had found that a "right to elect, fundamental though it is to
democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure
and simple, a statutory right" and that "Outside of statute, there is no right to elect, no right to be
elected and no right to dispute an election".
Certain amendments in the law were brought about in the wake of the judgment of this Court in
Union of India v. Assn. for Democratic Reforms (supra). This Court proceeded to e Xamine as to
whether the amendments were legal in People's Union for Civil Liberties (PUCL). In People's Union
for Civil Liberties, the above views in Jyoti Basu's case were e Xtracted by Shah, J. It may be added
that same views were also reiterated in Rama Kant Pandey v. Union of India [(1993) 2 SCC 438],
wherein it was said, "the right to vote or to stand as a candidate for election is neither a fundamental
nor a civil right".
The following observations of Shah, J. in Paragraph 62 of the judgment in People's Union for Civil
Liberties (PUCL) (supra), need to be borne in mind: -
"□□□Such a voter who is otherwise eligible to cast vote to elect his representative has statutory right
under the Act to be a voter and has also a fundamental right as enshrined in Chapter III. □□□..If any
statutory provision abridges fundamental right, that statutory provision would be void. □□□.. The
right of an adult to take part in election process either as a voter or a candidate could be restricted
by a valid law which does not offend constitutional provisions. □□□."
In same case, P.V. Reddi J., in his separate judgment observed as under in Paragraph 94: -
"□□□□ In a democratic republic, it is the will of the people that is paramount and becomes the basis
of the authority of the Government. The will is e Xpressed in periodic elections based on universal
adult suffrage held by means of secret ballot. □□□□Nothing is therefore more important for
sustenance of democratic polity than the voter making an intelligent and rational choice of his or her
representative. For this, the voter should be in a position to effectively formulate his/her opinion
and to ultimately eXpress that opinion through ballot by casting the vote. The concomitant of the
right to vote which is the basic postulate of democracy is thus twofold: first, formulation of opinion
about the candidates and second, the eXpression of choice by casting the vote in favour of the
preferred candidate at the polling booth. □□□The voter/citizen should have at least the basic
information about the contesting candidate, such as his involvement in serious criminal offences.
□□□An enlightened and informed citizenry would undoubtedly enhance democratic values. Thus,
the availability of proper and relevant information about the candidate fosters and promotes the
freedom of speech and eXpression both from the point of view of imparting and receiving the
information. □□□□ I would say that such information will certainly be conducive to fairness in
election process and integrity in public life. The disclosure of information would facilitate and
augment the freedom of eXpression both from the point of view of the voter as well as the media
through which the information is publicized and openly debated."

(emphasis supplied) In Paragraph 95, he proceeded to observe as under: - "□□. As observed by this
Court in Assn. for Democratic Reforms case a voter "speaks out or e Xpresses by casting vote".
Freedom of eXpression, as contemplated by Article 19(1)(a) which in many respects overlaps and
coincides with freedom of speech, has manifold meanings. It need not and ought not to be confined
to eXpressing something in words orally or in writing. The act of manifesting by action or language is
one of the meanings given in Ramanatha Aiyar's Law LeXicon (edited by Justice Y.V. Chandrachud).
□□. Having regard to the comprehensive meaning of the phrase "e X pression", voting can be
legitimately regarded as a form of eXpression. Ballot is the instrument by which the voter eXpresses
his choice between candidates or in respect to propositions; and his "vote" is his choice or election,
as eXpressed by his ballot (vide A Dictionary of Modern Legal Usage, 2nd Edn., by A. Garner Bryan).
"Opinion eXpressed, resolution or decision carried, by voting" is one of the meanings given to the
eXpression "vote" in the New OXford Illustrated Dictionary. It is well settled and it needs no
emphasis that the fundamental right of freedom of speech and eXpression should be broadly
construed and it has been so construed all these years. In the light of this, the dictum of the Court
that the voter "speaks out or eXpresses by casting a vote" is apt and well founded. I would only
reiterate and say that freedom of voting by e Xpressing preference for a candidate is nothing but
freedom of eXpressing oneself in relation to a matter of prime concern to the country and the voter
himself."(emphasis supplied) After referring to the view e Xpressed in Jyoti Basu v. Debi Ghosal
(supra) that the right to elect is "neither a fundamental right nor a common law right" but "pure and
simple, a statutory right", Reddi J. in Paragraph 97 of the judgment further observed as under: - "
□□ With great reverence to the eminent Judges, I would like to clarify that the right to vote, if not a
fundamental right, is certainly a constitutional right. The right originates from the Constitution and
in accordance with the constitutional mandate contained in Article 326, the right has been shaped
by the statute, namely the RP Act. That, in my understanding, is the correct legal position as regards
the nature of the right to vote in elections to the House of the People and Legislative Assemblies. It
is not very accurate to describe it as a statutory right, pure and simple. Even with this clarification,
the argument of the learned Solicitor-General that the right to vote not being a fundamental right,
the information which at best facilitates meaningful e Xercise of that right cannot be read as an
integral part of any fundamental right, remains to be squarely met. Here, a distinction has to be
drawn between the conferment of the right to vote on fulfilment of requisite criteria and the
culmination of that right in the final act of eXpressing choice towards a particular candidate by
means of ballot. Though the initial right cannot be placed on the pedestal of a fundamental right,
but, at the stage when the voter goes to the polling booth and casts his vote, his freedom to e Xpress
arises. The casting of vote in favour of one or the other candidate tantamounts to e Xpression of his
opinion and preference and that final stage in the e Xercise of voting right marks the accomplishment
of freedom of eXpression of the voter. That is where Article 19(1)(a) is attracted. Freedom of voting
as distinct from right to vote is thus a species of freedom of e Xpression and therefore carries with it
the auXiliary and complementary rights such as right to secure information about the candidate
which are conducive to the freedom.
□□."(emphasis supplied) Dharmadhikari, J., agreed with Shah, J. and in his separate judgment
observed thus: -

"129. Democracy based on "free and fair elections" is considered as a basic feature of the
Constitution in the case of Kesavananda Bharati. Lack of adequate legislative will to fill the vacuum
in law for reforming the election process in accordance with the law declared by this Court in the
case of Assn. for Democratic Reforms obligates this Court as an important organ in constitutional
process to intervene."
The argument of the petitioners is that the majority view in the case of People's Union for Civil
Liberties, therefore, was that a right to vote is a constitutional right besides that it is also a facet of
fundamental right under Article 19(1)(a) of the Constitution.
We do not agree with the above submission. It is clear that a fine distinction was drawn between the
right to vote and the freedom of voting as a species of freedom of e Xpression, while reiterating the
view in Jyoti Basu v. Debi Ghosal (supra) that a right to elect, fundamental though it is to
democracy, is neither a fundamental right nor a common law right, but pure and simple, a statutory
right. Even otherwise, there is no basis to contend that the right to vote and elect representatives of
the State in the Council of States is a Constitutional right. Article 80 (4) merely deals with the
manner of election of the representatives in the Council of States as an aspect of the composition of
the Council of States. There is nothing in the Constitutional provisions declaring the right to vote in
such election as an absolute right under the Constitution. Arguments based on Legislative Privileges
and Tenth Schedule Be that as it may, the moot contention that has been raised by the petitioners is
that the election of members of the Council of States is provided for in the Constitution and,
therefore, is a part of the Constitution and that it is inherent requirement of the principle of free and
fair election that the right to vote be invariably accompanied by the right of secrecy of vote so as to
ensure that the freedom of eXpression through vote is real.
Arguments based on Legislative Privileges and Tenth Schedule It is the contention of Mr. Rao that
apart from Article 19(1)(a), freedom of voting is Constitutionally guaranteed to a Member of a
Legislative Assembly by Article 194 (1) & (2) in absolute terms. While the right under Article 19(1)(a)
is subject to reasonable restrictions that may be imposed by law under Article 19(2), the freedom to
vote under Article 194(1) and (2) is absolute. He would refer to Special Reference No.1 of 1964
[(1965) 1 SCR 413] and Tej Kiran Jain & Ors. V. N. Sanjiva Reddy & Ors. [(1971) 1 SCR 612]. Article
194 relates to the "Powers, privileges, etc., of the Houses of Legislatures and of the members and
committees thereof". It is akin to the provisions contained in Article 105 that pertain to "Powers,
privileges, etc., of the Houses of Parliament and of the members and committees thereof". It would
be proper to take a look at the provisions in question.
Articles 105 and 194 run as follows :-
"105.Powers, privileges, etc., of the Houses of Parliament and of the members and committees
thereof.□(1) Subject to the provisions of this Constitution and to the rules and standing orders
regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything
said or any vote given by him in Parliament or any committee thereof, and no person shall be so

liable in respect of the publication by or under the authority of either House of Parliament of any
report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the
members and the committees of each House, shall be such as may from time to time be defined by
Parliament by law, and, until so defined, shall be those of that House and of its members and
committees immediately before the coming into force of Section 15 of the Constitution (Forty-
fourth Amendment) Act, 1978.
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this
Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of
Parliament or any committee thereof as they apply in relation to members of Parliament."
"194. Powers, privileges, etc., of the Houses of Legislatures and of the members and committees
thereof.□(1) Subject to the provisions of this Constitution and to the rules and standing orders
regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of
every State.
(2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect
of anything said or any vote given by him in the Legislature or any committee thereof, and no person
shall be so liable in respect of the publication by or under the authority of a House of such a
Legislature of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State,
and of the members and the committees of a House of such Legislature, shall be such as may from
time to time be defined by the Legislature by law, and, until so defined, shall be those of that House
and of its members and committees immediately before the coming into force of Section 26 of the
Constitution (Forty-fourth Amendment) Act, 1978].
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this
Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of
the Legislature of a State or any committee thereof as they apply in relation to members of that
Legislature."
In Special Reference No.1 of 1964 [(1965) 1 SCR 413], this Court e Xamined the provisions contained
in Article 194. The issues concerned the constitutional relationship between the High Court and the
State Legislature. The President of India had made a Reference under Article 143(1) to this Court
against the backdrop of a dispute involving the Legislative Assembly of the State of Uttar Pradesh
and two Judges of the High Court. The factual matri X of the case would show that the State
Assembly had committed an individual to prison for its contempt. The prisoner had preferred a
petition under Article 226 on which the judges of the High Court had ordered his release on interim
bail. The State Assembly found that in entertaining the petition and granting bail, the judges of the
High Court had also committed contempt of the State Legislature and thus issued process, amongst
others, against the said two High Court Judges.

This Court found that Article 194 (1) makes it clear that "the freedom of speech in the Legislature of
every State which it prescribes, is subject to the provisions of the Constitution, and to the rules and
standing orders, regulating the procedure of the Legislature" and that while interpreting the said
clause "it is necessary to emphasize that the provisions of the Constitution subject to which freedom
of speech has been conferred on the legislators, are not the general provisions of the Constitution
but only such of them as relate to the regulation of the procedure of the Legislature". In this view, it
was the opinion of this Court that while Article 194 (1) "confers freedom of speech on the legislators
within the legislative chamber", Article 194(2) "makes it plain that the freedom is literally absolute
and unfettered." In Tej Kiran Jain v. N. Sanjiva Reddy (supra), the issue was as to whether
proceedings could be taken in a court of law in respect of what was said on the floor of Parliament in
view of Article 105(2) of the Constitution. It arose out of a suit for damages being filed against the
respondents on the allegation that they had made defamatory statements on the floor of the Lok
Sabha during a Calling Attention Motion against Shankaracharya. The High Court had ruled against
the proposition. Reference was made in appeal to an observation of this Court in Special Reference
No.1 of 1964, where this Court dealing with the provisions of Article 212 of the Constitution had
pointed out that the immunity under that Article was against an alleged irregularity of procedure
but not against an illegality, and contended that the same principle should be applied to determine
whether what was said was outside the discussion on a Calling Attention Motion. It was submitted
that the immunity granted by Article 105 (2) was to what was relevant to the business of Parliament
and not to something that was utterly irrelevant. This Court, dealing with the contentions of the
appellants, held as under: -
"In our judgment it is not possible to read the provisions of the article in the way suggested. The
article means what it says in language which could not be plainer. The article confers immunity inter
alia in respect of "anything said ... in Parliament". The word "anything" is of the widest import and is
equivalent to "everything". The only limitation arises from the words "in Parliament" which means
during the sitting of Parliament and in the course of the business of Parliament. We are concerned
only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business
was being transacted, anything said during the course of that business was immune from
proceedings in any Court this immunity is not only complete but is as it should be. It is of the
essence of parliamentary system of Government that people's representatives should be free to
eXpress themselves without fear of legal consequences. What they say is only subject to the
discipline of the rules of Parliament, the good sense of the members and the control of proceedings
by the Speaker. The Courts have no say in the matter and should really have none."
(emphasis supplied) It is the contention of the learned counsel that the same should be the
interpretation as to the scope and tenor of the provision contained in Article 194 (2) concerning the
privileges of the Members of the Legislative Assemblies of the States who constitute State wise
electoral colleges for electing representatives of each State in the Council of States under the
provisions of Article 80 (4). The counsel argue that the freedom of e Xpression without fear of legal
consequences as flowing from Article 194(2) should inure to the Members of the Legislative
Assemblies while discharging their function as electoral college under Article 80(4). This argument,
though attractive, does not deserve any credence in the conte Xt at hand. The proceedings concerning
election under Article 80 are not proceedings of the "House of the Legislature of State" within the

meaning of Article 194. It is the elected members of the Legislative Assembly who constitute, under
Article 80 the Electoral College for electing the representative of the State to fill the seat allocated to
that State in the Council of States. It is noteworthy that it is not the entire Legislative Assembly that
becomes the Electoral College, but only the specified category of members thereof. When such
members assemble at a place, they do so not to discharge functions assigned under the Constitution
to the Legislative Assembly. Their participation in the election is only on account of their e X-officio
capacity of voters for the election. Thus, the act of casting votes by each of them, which also need not
occur with all of them present together or at the same time, is merely e Xercise of franchise and not
proceedings of the legislature.
It is time to take up the arguments based on the Tenth Schedule.
Tenth Schedule was added to the Constitution by the Constitution (Fifty-second Amendment) Act,
1985, with effect from 1st March 1985. The purpose of the said amendment as declared in the
Objects and Reasons was to combat the "evil of political defections" which have been "a matter of
national concern" and which menace has the potency to "undermine the very foundations of our
democracy and the principles which sustain it".
The said amendment also added sub-Articles (2) to Article 102 and 191 that pertained to
Disqualifications for membership of the Houses of Parliament and Houses of State Legislature
respectively. Paragraph 1 (a) of the Tenth Schedule also confirms its application to "House" which
has been defined to mean "either House of Parliament or the Legislative Assembly or, as the case
may be, either House of the Legislature of a State". The new sub-Articles declared, in identical
terms, that a "person shall be disqualified for being a member" of either of the said Houses "if he is
so disqualified under the Tenth Schedule". Paragraph 2 of the Tenth Schedule, to the eXtent
germane here, may be eXtracted as under : -
"2. Disqualification on ground of defection.□(1) Subject to the provisions of paragraphs 4 and 5, a

member of a House belonging to any political party shall be disqualified for being a member of the
House□
(a) XXXXXXX; or
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political
party to which he belongs or by any person or authority authorised by it in this behalf, without
obtaining, in either case, the prior permission of such political party, person or authority, and such
voting or abstention has not been condoned by such political party, person or authority within
fifteen days from the date of such voting or abstention.
EXplanation.□For the purposes of this sub-paragraph,□
(a) an elected member of a House shall be deemed to belong to the political party, if any, by which
he was set up as a candidate for election as such member;

(b) a nominated member of a House shall,□
(i) where he is a member of any political party on the date of his nomination as such member, be
deemed to belong to such political party;
(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case
may be, first becomes, a member before the eXpiry of siX months from the date on which he takes
his seat after complying with the requirements of Article 99 or, as the case may be, Article 188.
XXXXXXXXX "
It is the contention of the petitioners that the fact that election to fill the seats in the Council of
States by the legislative assembly of the State involves 'voting', the principles of Tenth Schedule are
attracted. They argue that the application of the Tenth Schedule itself shows that open ballot system
tends to frustrate the entire election process, as also its sanctity, besides the provisions of the
Constitution and the RP Act. They submit that the open ballot system, coupled with the looming
threat of disqualification under the Tenth Schedule reduces the election to a political party issuing a
whip and the candidate being elected by a show of strength. This, according to the petitioners, will
result in people with moneybags occupying the seats in the Council of States. The respondents
opposing the petitions would, on the other hand, argue that the Tenth Schedule does not apply to
the election in the Council of States. Its application is restricted to the proceedings in the House of
Legislature and it has no application to the election conducted under the RP Act. Nonetheless,
learned Counsel would argue, the principles behind making the elections by open ballot furthers the
Constitutional provisions in the Tenth Schedule. It has to be borne in mind that the party system is
well recognized in Indian conte Xt. Sections 29-A to 29-C of the RP Act, 1951 speak of registration of
political parties and some of their privileges & obligations.
In S.R. Bommai, this Court ruled as under: - "104. What is further □ and this is an equally, if not
more important aspect of our Constitutional law we have adopted a pluralist democracy. It implies,
among other things, a multi-party system.
Whatever the nature of federalism, the fact remains that as stated above, as per the provisions of the
Constitution, every State is constituent political unit and has to have an e Xclusive EXecutive and
Legislature elected and constituted by the same process as the Union Government. Under our
political and electoral system, political parties may operate at the State and national level or
eXclusively at the State level. There may be different political parties in different States and at the
national level. Consequently, situations may arise, as indeed they have, when the political parties in
power in various States and at the Centre may be different. It may also happen □ as has happened
till date □ that through political bargaining, adjustment and understanding, a State level party may
agree to elect candidates of a national level party to Parliament and vice versa. This mosaic of
variegated pattern of political life is potentially inherent in a pluralist multi-party democracy like
ours. Hence the temptation of the political party or parties in power (in a coalition Government) to
destabilise or sack the Government in the State not run by the same political party or parties is not
rare and in fact the e X perience of the working of Article 356(1) since the inception of the

Constitution, shows that the State Governments have been sacked and the Legislative Assemblies
dissolved on irrelevant, objectionable and unsound grounds. So far the power under the provision
has been used on more than 90 occasions and in almost all cases against Governments run by
political parties in opposition. If the fabric of pluralism and pluralist democracy and the unity and
integrity of the country are to be preserved, judiciary in the circumstances is the only institution
which can act as the saviour of the system and of the nation."
(emphasis supplied) Some of the observations appearing at pages 485-486 in Kesavananda Bharati
are also relevant and are eXtracted hereunder: -
"Further a Parliamentary Democracy like ours functions on the basis of the party system. The
mechanics of operation of the party system as well as the system of Cabinet Government are such
that the people as a whole can have little control in the matter of detailed law-making. "□ on
practically every issue in the modern State, the serried millions of voters cannot do more than accept
or reject the solutions offered. The stage is too vast to permit of the nice shades of quantitative
distinctions impressing themselves upon the public mind. It has rarely the leisure, and seldom the
information, to do more than indicate the general tendency of its will. It is in the process of law-
making that the subtler adjustments must be effected." (Laski: A Grammar of Politics, Fifth Edn.,
pp. 313-314)."
(emphasis supplied) The Tenth Schedule of the Constitution recognizes the importance of the
political parties in our democratic set-up, especially when dealing with Members of the Houses of
Parliament and the Legislative Assemblies or Councils. The validity of the Tenth Schedule was
challenged on various grounds, inter alia, that a political party is not a democratic entity and the
imposition of whips on Members of Parliament was not in accordance with the Constitutional
scheme. Rejecting this argument, this Court held that it was open for Parliament to provide that its
Members, who have been elected on a party ticket, act according to the decisions made by the party
and not against it.
In Kihoto Hollohan v. Zachillhu (supra) , it was held that: -
"43. Parliamentary democracy envisages that matters involving implementation of policies of the
government should be discussed by the elected representatives of the people. Debate, discussion and
persuasion are, therefore, the means and essence of the democratic process.
During the debates the Members put forward different points of view. Members belonging to the
same political party may also have, and may give e Xpression to, differences of opinion on a matter.
Not unoften the views e X pressed by the Members in the House have resulted in substantial
modification, and even the withdrawal, of the proposals under consideration. Debate and e Xpression
of different points of view, thus, serve an essential and healthy purpose in the functioning of
Parliamentary democracy. At times such an eXpression of views during the debate in the House may
lead to voting or abstinence from voting in the House otherwise than on party lines.

44. But a political party functions on the strength of shared beliefs. Its own political stability and
social utility depends on such shared beliefs and concerted action of its Members in furtherance of
those commonly held principles. Any freedom of its Members to vote as they please independently
of the political party's declared policies will not only embarrass its public image and popularity but
also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance □
nay, indeed, its very survival. Intra-party debates are of course a different thing. But a public image
of disparate stands by Members of the same political party is not looked upon, in political tradition,
as a desirable state of things. Griffith and Ryle on Parliament Functions, Practice and Procedure
(1989 edn., p. 119) say:
"Loyalty to party is the norm, being based on shared beliefs.
A divided party is looked on with suspicion by the electorate. It is natural for Members to accept the
opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members
have no specialist knowledge. Generally Members will accept majority decisions in the party even
when they disagree. It is understandable therefore that a Member who rejects the party whip even
on a single occasion will attract attention and more criticism than sympathy. To abstain from voting
when required by party to vote is to suggest a degree of unreliability. To vote against party is
disloyalty. To join with others in abstention or voting with the other side smacks of conspiracy."
(emphasis supplied) Clause (b) of sub-para (1) of Paragraph 2 of the Tenth Schedule gives effect to
this principle and sentiment by imposing a disqualification on a Member who votes or abstains from
voting contrary to "any directions" issued by the political party. The provision, however, recognises
two eXceptions: one when the Member obtains from the political party prior permission to vote or
abstain from voting and the other when the Member has voted without obtaining such permission
but his action has been condoned by the political party. This provision itself accommodates the
possibility that there may be occasions when a Member may vote or abstain from voting contrary to
the direction of the party to which he belongs. This, in itself again, may provide a clue to the proper
understanding and construction of the eXpression "any direction" in clause (b) of Paragraph 2(1) □
whether really all directions or whips from the party entail the statutory consequences or whether
having regard to the e X traordinary nature and sweep of the power and the very serious
consequences that flow including the e Xtreme penalty of disqualification the eXpression should be
given a meaning confining its operation to the conte Xts indicated by the objects and purposes of the
Tenth Schedule. We shall deal with this aspect separately."
(emphasis supplied) In Paragraph 122, this Court proceeded to hold as under:-
122. While construing Paragraph 2(1)(b) it cannot be ignored that under the Constitution Members
of Parliament as well as of the State legislature enjoy freedom of speech in the House though this
freedom is subject to the provisions of the Constitution and the rules and standing orders regulating
the Procedure of the House [Article 105(1) and Article 194(1)]. The disqualification imposed by
Paragraph 2(1)(b) must be so construed as not to unduly impinge on the said freedom of speech of a
Member. This would be possible if Paragraph 2(1)(b) is confined in its scope by keeping in view the
object underlying the amendments contained in the Tenth Schedule, namely, to curb the evil or

mischief of political defections motivated by the lure of office or other similar considerations. The
said object would be achieved if the disqualification incurred on the ground of voting or abstaining
from voting by a member is confined to cases where a change of government is likely to be brought
about or is prevented, as the case may be, as a result of such voting or abstinence or when such
voting or abstinence is on a matter which was a major policy and programme on which the political
party to which the Member belongs went to the polls. For this purpose the direction given by the
political party to a Member belonging to it, the violation of which may entail disqualification under
Paragraph 2(1)(b), would have to be limited to a vote on motion of confidence or no confidence in
the government or where the motion under consideration relates to a matter which was an integral
policy and programme of the political party on the basis of which it approached the electorate. The
voting or abstinence from voting by a Member against the direction by the political party on such a
motion would amount to disapproval of the programme on the basis of which he went before the
electorate and got himself elected and such voting or abstinence would amount to a breach of the
trust reposed in him by the electorate."
(emphasis supplied) It is not without significance that, barring the e X ception in case of
independents, which are few and far between, e Xperience has shown that it is the political parties
that mostly set up the members of legislatures at the Centre or in the States. We may also refer to
the nomination papers prescribed under the Conduct of Election Rules, 1961 for election to the
Council of States, being Form 2-C, or for election to the State Legislative Assembly, being Form 2B,
each of which require a declaration to be made by the candidate as to particulars of the political
party that has set him up in the election. This declaration binds the elected legislators in the matter
of allegiance to the political party in all matters including, and we find the Attorney General is not
wrong in so submitting, the support of the party to a particular candidate in election to the Council
of States. Yet, in view of the law laid down in Kihoto Hollohan v. Zachillhu (supra), it is not correct
to contend that the open ballot system tends to e Xpose the members of the Legislative Assembly to
disqualification under the Tenth Schedule since that part of the Constitution is meant for different
purposes.
International Conventions The counsel for the petitioners have also submitted that International
Instruments put emphasis on "secret ballot" since it lays the foundation for ensuring free and fair
election which in turn ensures a democratic government showing the true will of the people. The
significance of this emphasis lies in the recognition that it is a democratic Government that is
ultimately responsible for protecting the Human Rights of the people, viz., civil, political, social and
economic rights. In above conteXt, reference was made to the Universal Declaration of Human
Rights and International Convention on Civil and Political Rights (ICCPR).
Universal Declaration of Human Rights, through Article 21 provides as under: -
"(1) Everyone has the right to take part in the government of his country, directly or through freely
chosen representatives. (2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be
eXpressed in periodic and genuine elections which shall be by universal and equal suffrage and shall

be held by secret vote or by equivalent free voting procedures."
International Convention on Civil and Political Rights (ICCPR), in its Article 25 provides as under: -
"Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in
article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal
suffrage and shall be held by secret ballot, guaranteeing the free eXpression of the will of the
electors;
(c) To have access, on general terms of equality, to public service in his country."
Both the documents, thus, provide for formation of a government through secret ballot. Prime
importance is given in these two Human Rights instruments on "will of the electors" giving basis to
the authority of Government. It may however be noticed that in Article 21 of Universal Declaration
of Human Rights the requirement is satisfied not necessarily by secret ballot but even "by equivalent
free voting procedures". The learned counsel would also rely upon the instrument called
Inter-American Convention, in which the principles of the Secret Ballot System, as free eXpression
of the will of voter have been accepted.
Mr. Sachar pointed out that the above mentioned eXpressions were added in Article 25 (b) of ICCPR
in the wake of one view of participatory countries in the Third Committee, 16th Session (1961) to the
effect: -
"□□Others held that 'genuine periodic elections', 'universal and equal suffrage' and 'secret ballot'
were the elements of genuine elections, which in turn guaranteed the free e Xpression of the will of
the electors (A/C.3/SR.1096, $ 36 (CL), $55(CHI), $63 & $75-76 (UAR), $66 (RL)]. These elements
should therefore remain grouped together."
The learned counsel was at pains to argue that the international instructions can be used for
interpreting the municipal laws and in support of his plea he would repeatedly refer to His Holiness
Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr. [(1973) 4 SCC 225]; Jolly George
Varghese & Anr. v. The Bank of Cochin [(1980) 2 SCC 360]; People's Union for Civil Liberties
(PUCL) v. Union of India & Anr. [(1997) 1 SCC 301]; Nilabati Behera v. State of Orissa & Ors. [1993
(2) SCC 746]; Kapila Hingorani v. State of Bihar [2003 (6) SCC 1] and State of W.B. v. Kesoram
Industries Ltd. & Ors. [(2004) 10 SCC 201].
According to Mr. Sachar, the emphasis in the aforementioned judgments is that evolving
jurisprudence of human rights is required to be used in interpreting the Statutes. This argument is
in addition to the general argument that in the absence of any law, this Court may lay down
guidelines in consonance with the principles laid down in the International Instruments so as to
effectuate the Fundamental Rights guaranteed under the Constitution. There can be no quarrel with

the proposition that the International Covenants and Declarations as adopted by the United Nations
have to be respected by all signatory States and the meaning given to them have to be such as would
help in effective implementation of the rights declared therein. The applicability of the Universal
Declaration of Human Rights and the principles thereof may have to be read, if need be, into the
domestic jurisprudence.
It was said as early as in Kesavananda Bharati v. State of Kerala (supra) that "in view of Article 51 of
the directive principles, this Court must interpret language of the Constitution, if not intractable,
which is after all a municipal law, in the light of the United Nations Charter and solemn declaration
subscribed to by India." But then, the law on the subject as settled in India is clear enough as to
render it not necessary for this Court to look elsewhere to deal with the issues that have been raised
here. Further, in case of conflict, the municipal laws have to prevail.
Secrecy of Vote □ requisite for free and fair election The learned Counsel for the petitioners have
submitted that the secrecy of voting has always been the hallmark of the concept of free and fair
election, so very essential in the democratic principles adopted as our polity. They submit that this is
the spirit of our constitutional law and also universally accepted norm and that any departure in this
respect impinges on the fundamental rights, in particular freedom of eXpression by the voter.
Reference has been made to the case of S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, [1980
Supp SCC 53], in which appeal the core problem concerned the issue as to whether "Purity of
election and secrecy of ballot, two central pillars supporting the edifice of parliamentary democracy
envisioned in the Constitution" stand in confrontation with each other or are complementary to
each other. The case of S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra (supra) pertained to the
period anterior to the impugned amendment. As noticed earlier, Section 94 of the RP Act, 1951, as it
then stood, made provision for ensuring that "Secrecy of voting" is not infringed in any election. In
order to do this, the provision would make every witness or other person immune from being
"required to state for whom he has voted at an election."
This Court found in the aforementioned case that Section 94 could not be interpreted or eXamined
in isolation and that its scope, ambit and underlying object must be ascertained in the conte Xt of the
Act in which it finds its place viz. the RP Act, 1951 and further in the conte Xt of the fact that this Act
itself was enacted in eXercise of power conferred by the Articles in Part XV titled "Elections" in the
Constitution. It was the view of this Court that "Any interpretation of Section 94 must essentially
subserve the purpose for which it is enacted. The interpretative process must advance the basic
postulate of free and fair election for setting up democratic institution and not retard it. Section 94
cannot be interpreted divorced from the constitutional values enshrined in the Constitution". This
Court ruled thus: -
"13. Secrecy of ballot undoubtedly is an indispensable adjunct of free and fair elections. A voter had
to be statutorily assured that he would not be compelled to disclose by any authority as to for whom
he voted so that a voter may vote without fear or favour and is free from any apprehension of its
disclosure against his will from his own lips. □.. As Section 94 carves out an e Xception to Section 132
of the Evidence Act as also to Section 95 of the Act it was necessary to provide for protection of the

witness if he is compelled to answer a question which may tend to incriminate him. Section 95
provides for grant of a certificate of indemnity in the circumstances therein set out. A conspectus of
the relevant provisions of the Evidence Act and Sections 93, 94 and 95 of the Act would affirmatively
show that they provide for a procedure, including the procedure for e Xamination of witnesses, their
rights and obligations in the trial of an election petition. The eXpression "witness" used in the
section is a pointer and further eXpression "other person" eXtends the protection to a forum outside
courts. □".
(emphasis supplied) After taking note of, amongst other provisions, Section 94 and 128 of the RP
Act, 1951 and the Rules 23(3), 23(5)(a) &
(b), 31(2), 38(4), 39(1), (5), (6) & (8), second proviso to 40(1), 38-A (4), 39-A (1) & (2) as contained
in the Conduct of Election Rules, 1961 ("Rules" for short) and similar other rules, this Court found
that while seeking to provide for maintaining secrecy of ballot, they were meant "to relieve a person
from a situation where he may be obliged to divulge for whom he has voted under testimonial
compulsion". It was then observed in Paragraph 14 that: -
"□. Secrecy of ballot can be appropriately styled as a postulate of constitutional democracy. It

enshrines a vital principle of parliamentary institutions set up under the Constitution. It subserves a
very vital public interest in that an elector or a voter should be absolutely free in e Xercise of his
franchise untrammelled by any constraint which includes constraint as to the disclosure. A remote
or distinct possibility that at some point a voter may under a compulsion of law be forced to disclose
for whom he has voted would act as a positive constraint and check on his freedom to e Xercise his
franchise in the manner he freely chooses to e Xercise. Therefore, it can be said with confidence that
this postulate of constitutional democracy rests on public policy."
(emphasis supplied) It was thus held that secrecy of ballot, a basic postulate of constitutional
democracy, was "formulated not in any abstract situation or to be put on a pedestal and worshipped
but for achieving another vital principle sustaining constitutional democracy viz. free and fair
election". This Court found that Section 94 was meant as a privilege of the voter to protect him
against being compelled to divulge information as to for which candidate he had voted. Nothing
prevents the voter if he chooses to open his lips of his own free will without direct or indirect
compulsion and waive the privilege. It was noticed that the provision refers to a "witness or other
person". Thus, it is meant to protect the voter both in the court when a person is styled as a witness
and outside the court when he may be questioned about how he voted. It was found that no
provision eXisted as could eXpose the voter to any penalty if he voluntarily chooses to disclose how
he voted or for whom he voted. With a very clear view that 'Secrecy of ballot' as provided in Section
94 was mooted "to ensure free and fair elections", the Court opined thus: -
"□If secrecy of ballot instead of ensuring free and fair elections is used, as is done in this case, to
defeat the very public purpose for which it is enacted, to suppress a wrong coming to light and to
protect a fraud on the election process or even to defend a crime viz. forgery of ballot papers, this
principle of secrecy of ballot will have to yield to the larger principle of free and fair elections□.."
(emphasis supplied) The Court, after noticing that the RP Act, 1951 is a self- contained Code on the

subject of elections and reiterating that "there is one fundamental principle which permeates
through all democratically elected parliamentary institutions viz. to set them up by free and fair
election", observed: "□The principle of secrecy of ballot cannot stand aloof or in isolation and in
confrontation to the foundation of free and fair elections viz. purity of election. They can co-e Xist but
as stated earlier, where one is used to destroy the other, the first one must yield to principle of purity
of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is not inviolable
and may be waived by him as a responsible citizen of this country to ensure free and fair election
and to unravel foul play."
(emphasis supplied) In formulating its views, support was found in certain observations of Kelly,
C.B., in Queen v. Beardsall, [LR (1875-
76) 1 QB 452], to the following effect: - "The legislature has no doubt provided that secrecy shall be
preserved with respect to ballot papers and all documents connected with what is now made a secret
mode of election. But this secrecy is subject to a condition essential to the due administration of
justice and the prevention of fraud, forgery, and other illegal acts affecting the purity and legality of
elections".
(emphasis supplied) Rejecting the apprehension that the principle of secrecy enshrined in Section
94 of the RP Act, 1951, cannot be waived because it was enacted in public interest and it being a
prohibition based on public policy, and while agreeing with the contention that where a prohibition
enacted is founded on public policy courts should be slow to apply the doctrine of waiver, it was held
that the privilege of secrecy was granted for the benefit of an individual, even if conferred to advance
a principle enacted in public interest, it could be waived because the very concept of privilege
inheres a right to waive it. The Court thus found it an "inescapable conclusion" that the principle of
secrecy in Section 94 enacts a qualified privilege in favour of a voter not to be compelled to disclose
but if he chooses to volunteer the information the rule is not violated. Thus, even under the elections
that continue to be based on principle of secrecy of voting, it is for the voter to choose whether he
wishes to disclose for whom he had voted or would like to keep the secrecy intact. If he so chooses,
he can give up his privilege and in that event, the secrecy of ballot should yield. Such an event can
also happen if there is fraud, forgery or other illegal act and the disclosure sub-serves the purpose of
administration of justice.
The contention of the learned Counsel for the petitioners is that what is significant is that when a
voter is casting his vote he should be able to do so according to his own conscience, without any fear,
pressure, or coercion. The fear that under any law, he maybe compelled to disclose for whom he had
voted can also not interdict his choice. Assurance of such freedom is an essence of secrecy of ballot
and constitutes an adjunct of free and fair election. Liberty of the voter to choose to disclose his
ballot because of fraud or forgery is only for achieving the very same purpose of free and fair
election. This liberty, however, does not affect, according to the petitioners, in any way the general
principle that secrecy of ballot forms a basis of free and fair election, which is necessary for survival
of democracy. Mr. Sachar also pressed in aid the decision in Charles W. Burson v. Mary Rebecca
Freeman: [(1992) 119 L.ed. 2d 5 = 504 US 119], wherein it was held that: - "Right to vote freely for
the candidate of one's choice is of the essence of a democratic society."

"No right is more precious in a free country than that of having a choice in the election of those who
make the laws under which, as good citizens, they must live. Other rights, even the most basic, are
illusory if the right to vote is undermined".
In the above-mentioned case, after dealing with the evil associated with 'viva voce system' and the
failure of law to secure secrecy which had opened the door to bribery it was summed up as follows:
"In sum, an eXamination of the history of election regulation in this country reveals a persistent
battle against two evils; voter intimidation and election fraud. After an unsuccessful eXperiment
with an unofficial ballot system, all 50 States, together with numerous other Western democracies,
settled on the same solution: a secret ballot secured in part by a restricted zone around the voting
compartments."
"Finally, the dissent argues that we confuse history with necessity. Yet the dissent concedes that a
secret ballot was necessary to cure electoral abuses.
Contrary to the dissent's contention, the link between ballot secrecy and some restricted zone
surrounding the voting area is not merely timing □ it is common sense. The only way to preserve the
secrecy of the ballot is to limit access to the area around the voter. Accordingly, we hold that some
restricted zone around the voting area is necessary to secure the State's compelling interest."
Mr. PP Rao, learned senior advocate, in submitting that voting being a form of e Xpression and a
secret ballot ensures freedom of vote, relied upon observations in Paragraph 2 of the judgment in
Lily Thomas v. Speaker, Lok Sabha & Ors. [(1993) 4 SCC 234], wherein the Court was taking note of
the process under Article 124 (4) for removal of a Judge of the Supreme Court. It may be mentioned
here that the proceedings in the nature envisaged under Article 124 (4) were held earlier in Sub-
Committee on Judicial Accountability v. Union of India [(1991) 4 SCC 699], not to be
proceedings in the Houses of Parliament and rather one that would partake of judicial character
because it is removal after inquiry and investigation.
Mr. Rao quoted the following passage from Paragraph 2 of the Judgment in aforementioned case: -
"The statutory process appears to start when the Speaker e Xercises duty under the Judges Enquiry
Act and comes to an end once the Committee appointed by the Speaker submits the report. The
debate on the Motion thereafter in the Parliament, the discussion and the voting appear more to be
political in nature. Voting is formal e Xpression of will or opinion by the person entitled to e Xercise
the right on the subject or issue in question. In Black's Law Dictionary it is e Xplained as, "the
eXpression of one's will, preference, or choice, formally manifested by a member of a legislative or
deliberative body, or of a constituency or a body of qualified electors, in regard to the decision to be
made by the body as a whole upon any proposed measure or proceeding or in passing laws, rules or
regulations, or the selection of an officer or representative". Right to vote means right to e Xercise the
right in favour of or against the motion or resolution. Such a right implies right to remain neutral as
well. □□"

(emphasis supplied) Mr. Sachar, while submitting that the sanctity and purity of election where
voter casts his choice without any fear and favour can be ensured only if it is by secret ballot, argued
that it is secret ballot, which is the bedrock of free and fair election. There cannot be any distinction
between a vote cast in the election for House of the People and a vote cast in the Council of States.
He submitted that there couldn't also be a distinction between direct elections like that for the
popular House, at the Centre or in the State and an indirect election like that for the office of the
President of India or, closer to the subject, election to fill the seats of "the representatives of the
States" in the Council of States.
In above conteXt, he would cite the following passage from S.R. Chaudhuri v. State of Punjab & Ors.
[(2001) 7 SCC 126]:-
"34. The very concept of responsible government and representative democracy signifies
government by the people. In constitutional terms, it denotes that the sovereign power which
resides in the people is eXercised on their behalf by their chosen representatives and for eXercise of
those powers, the representatives are necessarily accountable to the people for what they do. The
members of the Legislature, thus, must owe their power directly or indirectly to the people. The
members of the State Assemblies like the Lok Sabha trace their power directly as elected by the
people while the members of the Council of State like the Rajya Sabha owe it to the people indirectly
since they are chosen by the representatives of the people. The Council of Ministers of which the
Chief Minister is the head in the State and on whose aid and advice the Governor has to act, must,
therefore, owe their power to the people, directly or indirectly."
It is the submission of Mr. Sachar that the reason used to justify the amendment is fallacious since it
assumes as if secrecy of voting is only a routine matter of procedure and that it would also mean that
Parliament could in future provide that election to the House of the People would be by open ballot
because there is no such provision for secrecy mentioned in the Constitution. His submission is that
secrecy of ballot is an integral part of a democratic set up and its absence means absence of free and
fair election. In A. Neelalohithadasan Nadar v. George Mascrene & Ors. [1994 Supp (2) SCC 619],
the conflict was found to be between two principles of election law - one being "purity of elections"
and the other "secrecy of ballot". On the basis of the former, the Kerala High Court had upset the
election of the appellant who later came before this Court. Challenge to the order of the High Court
was on the anvil of the latter principle. The factual matri X of the case would show that the appellant
and the first respondent were contesting candidates for the Kovalam Assembly Seat in the State of
Kerala. In the counting, the appellant was declared elected on ground that he had obtained 21 votes
in eXcess of the first respondent. The respondent moved the election petition mainly on ground of
impersonation and double voting by 19 specified voters. The High Court on e Xamining the evidence
led by the parties on the issue found that certain ballot papers deserved being picked out from the
respective ballot boXes to be rejected as void. The ministerial work for the purpose was assigned to
the Joint Registrar of the High Court. On such e Xercise being undertaken, the election petitioner
entitled himself to be declared elected instead of the appellant. The High Court had located the void
votes on the assumption that both the contestants had bowed to the principle embodied in Section
64(4) of the RP Act for the sake of "purity of elections" principle and were willing partners to have
the void element identified and eXtricated from the voted lot. In this view, rejecting the argument in

appeal on breach of the principle of "secrecy of ballot", this Court quoted from the law in S. Raghbir
Singh Gill v. S. Gurcharan Singh Tohra (supra) and observed in Paragraph 10 as under: - "The
eXistence of the principle of "secrecy of ballot" cannot be denied. It undoubtedly is an indispensable
adjunct of free and fair elections. The Act statutorily assures a voter that he would not be compelled
by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour
and free from any apprehension of its disclosure against his will from his own lips. See in this
connection Raghbir Singh Gill v. Gurcharan Singh Tohra. But this right of the voter is not absolute.
It must yield to the principle of "purity of election" in larger public interest. The eXercise of
eXtrication of void votes under Section 62(4) of the Act would not in any manner impinge on the
secrecy of ballot especially when void votes are those which have to be treated as no votes at all.
"Secrecy of ballot" principle presupposes a validly cast vote, the sanctity and sacrosanctity of which
must in all events be preserved. When it is talked of ensuring free and fair elections it is meant
elections held on the fundamental foundation of purity and the "secrecy of ballot" as an allied vital
principle□□□".
(emphasis supplied) It was thus reiterated by this Court in A. Neelalohithadasan Nadar v. George
Mascrene (supra) that out of the two competing principles, the purity of election principle must
have its way and that the rule of secrecy cannot be pressed into service "to suppress a wrong coming
to light and to protect a fraud on the election process." The submission on the part of the Petitioner
that a right to vote invariably carries as an implied term, the right to vote in secrecy, is not wholly
correct. Where the Constitution thought it fit to do so, it has itself provided for elections by secret
ballot, e.g., in case of election of the President of India and the Vice-President of India. It is apt to
point out that unlike silence on the subject in the case of provisions of the Constitution concerning
election to fill the seats of the representatives of States in the Council of States, Articles 55(3) and
66(1), that relate to the manner of election for the offices of the President and the Vice President
respectively, provide for election by "secret ballot". Articles 55(3) and 66(1) of the Constitution
provide for elections of the President and the Vice President respectively, referring to voting by
electoral colleges, consisting of elected members of Parliament and Legislative Assembly of each
State for purposes of the former office and members of both Houses of Parliament for the latter
office. In both cases, it was felt necessary by the framers of the Constitution to provide that the
voting at such elections shall be by secret ballot through inclusion of the words "and the voting at
such election shall be by secret ballot." If the right to vote by itself implies or postulates voting in
secrecy, then Articles 55(3) and 66(1) would not have required inclusion of such words. The
necessity for including the said condition in the said Articles shows that "secret ballot" is not always
implied. It is not incorporated in the concept of voting by necessary implication. It follows that for
'secret ballot' to be the norm, it must be eXpressly so provided. To read into Article 80(4) the
requirement of a secret ballot would be to read the words "and the voting at such election shall be by
secret ballot" into the provision. To do so would be against every principle of Constitutional and
statutory construction. In view of it not being the requirement of the Constitution, as in the case of
the President and the Vice President, it was permissible for Parliament when passing legislation like
the Representation of the People Act to provide otherwise, that is to choose between the system of
secret ballot or open ballot. Thus, from this angle, it is difficult to hold that there is Constitutional
infirmity in providing open ballot system for the Council of States.

Other arguments & Conclusion It has been argued by the petitioners that the Election Commission
of India, which under the Constitution has been given the plenary powers to supervise the elections
freely and fairly, had opposed the impugned amendment of changing the secret ballot system. Its
view has, therefore, to be given proper weightage.
In this conteXt, we would say that where the law on the subject is silent, Article 324 is a reservoir of
power for the Election Commission to act for the avowed purpose of pursuing the goal of a free and
fair election, and in this view it also assumes the role of an adviser. But the power to make law under
Article 327 vests in the Parliament, which is supreme and so, not bound by such advice. We would
reject the argument by referring to what this Court has already said in Mohinder Singh Gill (supra)
and what bears reiteration here is that the limitations on the e Xercise of "plenary character" of the
Election Commission include one to the effect that "when Parliament or any State Legislature has
made valid law relating to or in connection with elections, the Commission, shall act in conformity
with, not in violation of, such provisions".
The submission of learned Counsel for the Writ Petitioners is that the amendment violates the
Constitution, which recognize the right to vote as a constitutional right, a facet of Article 19(1)(a)
and the secret ballot preserving this right. Further that secret ballot is an adjunct of free and fair
election and therefore, a part of a Parliamentary democracy and, therefore, taking away of voting
right by secret ballot affects the basic feature of the Constitution. They argue that the impugned
amendment was not called for. The amendment, according to the Counsel for the petitioners, seems
to proceed on the basis that it is only the leadership of the political parties that is to be trusted rather
than the average legislator, which view is not very complimentary to the respect and dignity of the
legislators, besides being factually unacceptable. In above conteXt, the Counsel referred to the
following words of Dr. B.R. Ambedkar on the issue as to how the dignity of an individual should be
upheld in the political system: - "The second thing we must do is to observe the caution which John
Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not "to lay
their liberties at the feet of even a great man, or to trust him with powers which enable him to
subvert their institutions". There is nothing wrong in being grateful to great men who have rendered
life-long services to the country. But there are limits to gratefulness. As has been well said by the
Irish patriot Daniel O'Connel, no man can be grateful at the cost of his honour, no women can be
grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty. This caution
is far more necessary in the case of India than in the case of any other country. For in India, Bhakti
or what may be called the path of devotion or hero-worship, plays a part in its politics of any other
country in the world. Bhakti in religion may be a road to the salvation of the soul. But, in politics,
Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship."
On the other hand, the respondents supporting the impugned amendment would argue that the
Secrecy of voting had led to corruption and cross voting. They would point out that voting on all
issues in the legislatures, including the Council of States and the Legislative Assemblies, is
invariably open and not by secret ballot. The election of a representative is now at par with other
important matters. They would concede that the common man participating in direct election as
voter eXercising his vote in a polling booth requires the safeguard of secrecy. But elected members of
legislative assemblies, as per the learned Counsel, are eXpected to have stronger moral fiber and

public courage. The learned Attorney General pointed out that the Statement of Objects and
Reasons of the impugned Act refers to the Report of the Ethics Committee of Parliament. The Ethics
Committee in its First Report of 08th December 1998 had recommended that the issue relating to
open ballot system for election to the Rajya Sabha be e Xamined. The issue again arose in the wake of
allegations of money power made in respect of biennial elections to the Council of States held in
2000.
The relevant observations of the Ethics Committee have already been eXtracted, in eXtenso, in
earlier part of this judgment. Suffice it to note here again that the committee took cognizance of "the
emerging trend of cross voting in the elections for Rajya Sabha" and allegations that "large sums of
money and other considerations encourage the electorate" for such purpose "to vote in a particular
manner leading sometimes to the defeat of the official candidates belonging to their own political
party". The Committee commended "holding the elections to Rajya Sabha and the Legislative
Councils in States by open ballot" so as to remove the mischief played by "big money and other
considerations" with the electoral process.
It is the submission of the learned Counsel for the petitioners that the observations of the Ethics
Committee on which the impugned amendment was brought about not only fail to justify the
amendment but run counter to the Constitutional scheme of conducting free and fair election which
is necessary for preserving the democracy. On the other hand, the Attorney General submitted that
since the bulk of the candidates are elected under the party system, the principle that a person
elected or given the nomination of a party should not be lured into voting against the party by
money power is wholesome and a salutary one. Mr. Sachar has pointed out that the Conduct of
Election Rules, 1961 were framed and notified in eXercise of powers delegated by the RP Act, 1951.
In the wake of the impugned amendment of Sections 59, 94 and 128 of RP Act, 1951, the said Rules
have also been amended by the Central Government through S.O. 272 (E) dated 27.02.2004. This
amendment has resulted in Rule 39-AA being added to the Rules for conduct of poll in election to
the Council of States provided in Part □ VI. Earlier, Rule 39-A had been added to the said Rules in
furtherance of the system of secret ballot. Rule 39-A may be first taken note of. It reads as under: - "
39-A. Maintenance of secrecy of voting by electors within polling station and voting procedure. □ (1)
Every elector, to whom a ballot paper has been issued under rule 38-A or under any other provision
of these rules, shall maintain secrecy of voting within the polling station and for that purpose
observe the voting procedure hereinafter laid down.
(2) The elector on receiving the ballot paper shall forthwith □
(a) proceed to one of the voting compartments;
(b) record his vote in accordance with sub-rule (2) of rule 37-A, with the article supplied for the
purpose;
(c) fold the ballot paper so as to conceal his vote;
(c) if required, show to the Presiding Officer, the distinguished mark on the ballot paper;

(e) insert the folded paper into the ballot boX, and
(f) quit the polling station.
(3) every elector shall vote without undue delay.
(4) No elector shall be allowed to enter a voting compartment when another elector is inside it.
(5) If an elector to whom a ballot paper has been issued, refuses, after warning given by the
Presiding Officer to observe the procedure as laid down in sub-rule (2), the ballot paper issued to
him shall, whether he has recorded his vote thereon or not, be taken back from him by the Presiding
Officer or a polling officer under the direction of the Presiding Officer. (6) After the ballot paper has
been taken back, the Presiding Officer shall record on its back the words "Cancelled : voting
procedure violated" and put his signature below those words.
(7) All the ballot papers on which the words "Cancelled : voting procedure violated" are recorded,
shall be kept in a separate cover which shall bear on its face the words "Ballot papers :voting
procedure violated".
(8) Without prejudice to any other penalty to which an elector, from whom a ballot paper has been
taken back under sub-rule (5), may be liable, vote, if any, recorded on such ballot paper shall not be
counted."
Rule 39-AA applied to such elections by virtue of Rule 70 reads as under: -
"Information regarding casting of votes. - (1) Notwithstanding anything contained in Rule 39-A, the
presiding officer shall, between the period when an elector being a member of a political party
records his vote on a ballot paper and before such elector inserts that ballot paper into the ballot
boX, allow the authorized agent of that political party to verify as to whom such elector has cast his
vote:
Provided that if such elector refuses to show his marked ballot paper to the authorized agent of his
political party, the ballot paper issued to him shall be taken back by the presiding officer or a polling
officer under the direction of the presiding officer and the ballot paper so taken back shall then be
further dealt with in the manner specified in sub-rules (6) to (8) of Rule 39-A as if such ballot paper
had been taken back under sub-
rule (5) of that rule.
(2) Every political party, whose member as an elector casts a vote at a polling station, shall, for
purposes of sub-rule (1), appoint, in Form 22-A, two authorized agents.
(3) An authorized agent appointed under sub-rule (2) shall be present throughout the polling hours
at the polling station and the other shall relieve him when he goes out of the polling station or vice

versa."
Since Rule 39-AA is required to be read with Rule 39-A, the former is necessarily an e Xception to the
general rule in all other elections conducted under the RP Act, 1951 by the Election Commission.
The norm has been, prior to the impugned amendment, that the voting shall be by a secret ballot, in
which all concerned, including the electors are e Xpected to preserve the sanctity of the vote by
keeping it secret. But as already observed, the privilege to keep the vote secret is that of the elector
who may choose otherwise; that is to say, he may opt to disclose the manner in which he has cast his
vote but he cannot be compelled to disclose the manner in which he has done so, e X cept in
accordance with the law on the subject which ordinarily comes into play only in case the election is
challenged by way of election petition before the High Court. In the case of election to the Council of
States, in the post amendment scenario, the norm has undergone a change, in that the political party
to which a particular member of the Legislative Assembly of the State belongs is entitled to ascertain
through formally appointed authorized agent deputed at the polling station the manner in which the
member in question, who is an elector for such purposes, has e Xercised his franchise. The eXception
applies only to such members of the Legislative Assembly, as are members of a political party and
not to all members across the board. The voter at such an election may refuse to show his vote to the
authorized agent of his political party, but in such an event he forfeits his right to vote, which is
cancelled by the Presiding Officer of the poling station on account of violation of the election
procedure.
The effect of the amended Rules, thus, is that in elections to the Council of States, before the elector
inserts the ballot paper into the ballot boX, the authorized agent of the political party shall be
allowed to verify as to whom such an elector casts his vote. In case such an elector refuses to show
his marked ballot paper, the same shall be taken back and will be cancelled by the Presiding Officer
on the ground that the voting procedure had been violated. There is, therefore, a compulsion on the
voter to show his vote. But then, the above rules are only in furtherance of the object sought to be
achieved by the impugned amendment. Rather, the rules show, the open ballot system put in
position does not mean open to one and all. It is only the authorized agent of the political party who
is allowed to see and verify as to whom such an elector casts his vote. The prerogative remains with
the voter to choose as to whether or not to show his vote to the authorized agent of his party. Voting
at elections to the Council of States cannot be compared with a general election. In a general
election, the electors have to vote in a secret manner without fear that their votes would be disclosed
to anyone or would result in victimization. There is no party affiliation and hence the choice is
entirely with the voter. This is not the case when elections are held to the Council of States as the
electors are elected members of the legislative assemblies who in turn have party affiliations.
The electoral systems world over contemplate variations. No one yardstick can be applied to an
electoral system. The question whether election is direct or indirect and for which house members
are to be chosen is a relevant aspect. All over the world in democracies, members of the House of
Representatives are chosen directly by popular vote. Secrecy there is a must and insisted upon; in
representative democracy, particularly to upper chamber, indirect means of election adopted on
party lines is well accepted practice. In "Australian Constitutional Law" [2nd Edition) by
Fajgenbaum and Hanks, it is stated at page 51, that:

"Section 24 of the Australian Constitution embodies three principles, i.e., representative democracy,
direct popular election and character of the House of representative democracy predicates
enfranchisement of the electors, the e Xistence of an electoral system capable of giving effect to the
selection of their representatives and bestowal of legislative functions upon representatives selected.
The eXtent of franchise comes under the heading "enfranchisement of electors". The electoral system
with innumerable details including voting methods and qualifications of representatives as well as
proportional representation in different forms etc. are maters in which there cannot e Xist a set
formula said to be consistent with the representative democracy. The wide range of legislative
functions which a legislature may possess must be given due weightage in such matters.
Representative democracy covers an entire spectrum of political institutions, each differing in
countless respects. However, at no point of time within such spectrum does there e Xist a single
requirement so essential so as to be determinative of the e Xistence of Representative Democracy.
Section 24 of the Australian Constitution provides for direct choice of members by the people. The
eXistence of variations in the number of persons or voters in the electoral division within a State
does not detract from the description of the House of Representatives or the Senate or the e Xisting
electoral system. Proportionality is an element of "choosing of members" whereas qualification is
different from the concept of 'choosing of members'.
Section 30 of the Australian Constitution refers to qualifications of electors. Section 24 of the

Australian Constitution deals with choosing of members in which there is an element of
proportionality. Proportional representation is the system of voting." (emphasis supplied) Sections
8, 24, 30 and 128 of the Australian Constitution are as under:
"8. The qualification of electors of senators shall be in each State that which is prescribed by the
Constitution, or by the Parliament, as the qualification for electors of members of the House of
Representatives but in the choosing of senators each elector shall vote only once.
24. The House of Representatives shall be composed of members directly chosen by the people of
the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the
number of the senators.
The number of members chosen in the several States shall be in proportion to the respective
numbers of their people, and shall, until the Parliament otherwise provides, be determined,
whenever necessary, in the following manner:-
(i) A quota shall be ascertained by dividing the number of the people of the Commonwealth, as
shown by the latest statistics of the Commonwealth, by twice the number of the senators;
(ii) The number of members to be chosen in each State shall be determined by dividing the number
of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if
on such division there is a remainder greater than one-half of the quota, once more member shall be
chosen in the State.

But notwithstanding anything in this section, five members at least shall be chosen in each Original
State.
30. Until the Parliament otherwise provides, the qualifications of electors of members of the House
of Representatives shall be in each State that which is prescribed by the law of the State as the
qualification of electors of the more numerous House of Parliament of the State; but in the choosing
of members each elector shall vote only once.
128. This Constitution shall not be altered eXcept in the following manner:
The proposed law for the alteration thereof must be passed by an absolute majority of each House of
the Parliament, and n not less than two, nor more than si X months after its passage through both
Houses the proposed law shall be submitted in each State and Territory to the electors qualified to
vote for the election of members of the House of Representatives.
But if either House passes any such proposed law by an absolute majority, and the other House
rejects or fails to pass it or passes it with any amendments to which the first-mentioned House will
not agree, and if after an interval of three months the first-mentioned House in the same or the ne Xt
session again passes the proposed law by an absolute majority with or without any amendment
which has been made or agreed to by the other House, and such other House rejects or fails to pass
it or passes it with any amendment to which the first-mentioned House will not agree, the Governor
General may submit the proposed law as last proposed by the first-mentioned House, and either
with or without any amendments subsequently agreed to by both Houses, to the electors in each
State and Territory qualified to vote for the election of the House of Representatives.
When a proposed law is submitted to the electors the vote shall be taken in such manner as the
Parliament prescribes. But until the qualification of electors of members of the House of
Representatives becomes uniform throughout the Commonwealth, only one- half the electors voting
for and against the proposed law shall be counted in any State in which adult suffrage prevails.
And if in a majority of the States a majority of the electors voting approve the proposed law, and if a
majority of all the electors voting also approve the proposed law, it shall be presented to the
Governor-General for the Queen's Assent.
No alternation diminishing the proportionate representation of any State in either House of the
Parliament, or the minimum number of representatives of a State in the House of Representative, in
increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the
provisions of the Constitution in relation thereto, shall become law unless the majority of the
electors voting in that State approve the proposed law.
In this section, "Territory" means any territory referred to in section one hundred and twenty-two of
this Constitution in respect of which there is in force a law allowing its representation in the House
of Representatives."

Section 24 is quite similar to Article 80(4) and Section 30 to Article 84 of our Constitution.
In the case of Judd v. Mckeon reported in (1926) 38 CLR 380 at page 385, it is stated as follows:
"The eXtent of franchise in a democracy is a matter of fundamental importance. The purpose behind
section 24 of the Australian Constitution is to ensure that the members of the Senate are chosen
directly by popular vote and not by indirect means, such as, by the parliament or the legislative
assembly or by the eXecutive or by an electoral college. Section 24 of the Australian Constitution
says that the members of the Senate shall be chosen by the people, which means, by people qualified
to vote." (emphasis supplied) In the case of King v. James reported in (1972) 128 CLR 221 at page
229, it has been held as follows:
"The fact that the world 'people' is used in section 24 of the Australian Constitution in
contra-distinction to the word "elector" in Sections 8, 30 and 128 shows that the framers of the
Constitution drafted Section 24 with the idea of providing in that section the manner of choosing
rather than emphasizing the people who were to choose." (emphasis supplied) In indirect election,
when law provides for open ballot system; to decide whether it amounts to a denial to vote or it
ensures party discipline, useful reference can be made to the judgment of Supreme Court of South
Africa in the case of New National Party of South Africa v. Government of the Republic of South
Africa & Anr. reported in 1999 (3) SA 191, head note whereof reads as under:
"Held (per Yacoob J; Chaskalson P. Langa DP, Ackermann J, Goldstone J, Madala J. Mokgoro J and
Sachs J Concurring) that the right to vote was indispensable to, and empty without, the right to free
and fair elections; the latter gave content and meaning to the former. The right to free and fair
elections underlined the importance of the eXercise of the right to vote and the requirement that
every election should be fair had implications for the way in which the right to vote could be given
more substantive content and legitimately e Xercised. Two of these implications were material for the
present case: each citizen entitled to do so must note vote more than once in any election and any
person not entitled to vote must not be permitted to do so. The e Xtent to which these deviations
occurred would have an impact on the fairness of the election. This meant that the regulation of the
eXercise of the right to vote was necessary so that these deviations could be eliminated or restricted
in order to ensure proper implementation of the right to vote. (Paragraph (12) at 201A/B-D) Held,
further (per Yacoob J; Chaskalson P, Langa DP, Ackermann J, Goldstone J, Madala J, Mokgoro J
and Sachs J concurring; O'Regan J dissenting), that the right to vote contemplated by section 19(3)
of the Constitution was therefore a right to vote in free and fair elections in terms of an electoral
system prescribed by national legislation which complied with the requirements laid down by the
Constitution. The details of the system were left to Parliament. The national legislation which
prescribed the electoral system was the Electoral Act. (Paragraph (14) at 202C/D-D/E)"
(emphasis supplied) It shows that the right to vote in 'free and fair elections' is always in terms of an
electoral system prescribed by national legislation. The right to vote derives its colour from the right
to 'free and fair elections'; that the right to vote is empty without the right to 'free and fair elections'.
It is the concept of 'free and fair elections' in terms of an electoral system which provides content
and meaning to the 'right to vote'. In other words, 'right to vote' is not an ingredient of the free and

fair elections. It is essential but not the necessary ingredient.
In the aforesaid case, the dispute was whether the Electoral Act could prescribe only one specific
means as proof of enrolment on the voters roll for voting. Under Electoral Act, I.D. card was
prescribed as the only proof of enrolment on the voters roll. This was challenged. Rejecting the
objection, the Constitutional Court through Yacoob, J, on behalf of the majority held:
[10] The aspect of the Electoral Act in issue regulate the way in which citizens must register and
vote. The question which must be answered is whether these requirements constitute an
infringement of the right to vote. This can only properly be done in the conte Xt of an analysis of the
nature, ambit and importance of the right in question, the effect and importance of other related
constitutional rights, the inter-
relationship of all these rights, the importance of the need for an effective eXercise of the right to
vote and the degree of regulation required to facilitate the effective eXercise of the right.
[11] The Constitution effectively confers the right to vote for legislative bodies at all levels of
government only on those South African citizens who are 18 years or older. It must be emphasized at
this stage that the right to vote is not available to everyone in South Africa irrespective of age or
citizenship. The importance of the right to vote is self- evident and can never be overstated.
There is however no point in belabouring its importance and it is sufficient to say that the right is
fundamental to a democracy for without it there can be no democracy. But the mere e Xistence of the
right to vote without proper arrangements for its effective e Xercise does nothing for a democracy; it
is both empty and useless.
[12] The Constitution takes an important step in the recognition of the importance of the right to
eXercise the vote by providing that all South African citizens have the right to free, fair and regular
elections. It is to be noted that all South African citizens irrespective of their age have a right to these
elections. The right to vote is of course indispensable to, and empty without, the right to free and
fair elections; the latter gives content and meaning to the former. The right to free and fair elections
underlines the importance of the e Xercise of the right to vote and the requirement that every election
should be fair has implications for the way in which the right to vote can be given more substantive
content and legitimately eXercised. Two of these implications are material for this case: each citizen
entitled to do so must note vote more than once in any election; any person not entitled to vote must
not be permitted to do so. The e Xtent to which these deviations occur will have an impact on the
fairness of the election. This means that the regulation of the eXercise of the right to vote is
necessary so that these deviations can be eliminated or restricted in order to ensure the proper
implementation of the right to vote.
[13] The Constitution recognizes that it is necessary to regulate the e Xercise of the right to vote so as
to give substantive content to the right. Section 1(d) contemplates the eXistence of a national
common voters roll. Sections 46(1), 105(1), and 157(5) of the Constitution all make significant
provisions relevant to the regulation of the eXercise of the right to vote. Their effect is the following:

(a) National, provincial and municipal elections must be held in terms of an electoral system which
must be prescribed by national legislation.
(b) The electoral system must, in general, result in proportional representation.
(c) Elections for the national assembly must be based on the national common voters roll.
(d) Elections for provincial legislatures and municipal councils must be based on the province's
segment and the municipality's segment of the national common voters roll respectively.
The e X istence of, and the proper functioning of a voters roll, is therefore a constitutional
requirement integral both to the elections mandated by the Constitution and to the right to vote in
any of them.
[15] The requirement that only those persons whose names appear on the national voters roll may
vote, renders the requirement that South African citizens must register before they can eXercise
their vote, a constitutional imperative. It is a constitutional requirement of the right to vote, and not
a limitation of the right.
[16] The process of registration and voting needs to be managed and regulated in order to ensure
that the elections are free and fair. The creation of a Commission to manage the elections is a further
essential though, not sufficient ingredient in this process. In order to understand the enormity of the
problem, one has just to picture the specter of millions of South Africans arriving at registration
points or voting stations armed with all manner of evidence and that they are entitled to register or
to vote, only to have the registration or electoral officer sift through this evidence in order to
determine whether or not each of such persons is entitled to register or to vote. It is to avoid this
difficulty that the Electoral Act makes detailed provisions concerning registration, voting and
related matters including the way in which voters are to identify themselves in order to register on
the common voters roll and to vote.
[17] The detailed provisions of the Electoral Act serve the important purpose of ensuring that those
who qualify for the vote can register as voters, that the names of these persons are placed on a
national common voters roll, and that each such person eXercises the right to vote only once. Some
form of easy and reliable identification is necessary to facilitate this process. It is in this conte Xt that
the statutory provision for the production of certain identity documents must be located. The
absence of such a provision could render the e Xercise of the right to vote nugatory and have grave
implications for the fairness of the elections. The legislature is therefore obliged to make such a
provision.
The nature of the enquiry [18] The appellant did not dispute that proof of identity and citizenship
for registration, and proof of enrolment on the voters roll for voting, are necessary components of
the electoral system contemplated by the Constitution. What was disputed was whether the
Electoral Act could prescribe that the only means for such proof was a bar-coded ID or TRC for
registering and a bar-coded ID or TIC for voting. The submissions on behalf of the appellant were

advanced at two levels. In the first place, it was contended that the relevant provisions on their face
and evaluated in relation to the constitutional right to vote infringe this right. The question of the
facial inconsistency of the impugned provisions with the right to vote and the right to free and fair
elections as encapsulated in the Constitution must be addressed both in relation to the rationality of
the provision and to whether it infringes the right. Although it was specifically mentioned in
response to questions by a member of the Court that the appellant relied on facial inconsistency, no
substantial argument was advanced in support of such a contention. Secondly, the argument was
that the consequences of the documentary requirements constituted a denial of the right to vote to
millions of South African citizens who were not in possession of the bar-coded ID. Many of these
persons (millions of people), so it was argued, would not be able to vote for a variety of inter-related
reasons. The submissions were that the Department of Home Affairs (the department), charged with
the responsibility of issuing these documents, did not have the capacity to produce them timeously,
that the cost of acquiring the documents constituted a real impediment and that potential voters
were not aware, or had not been made sufficiently aware, of the documentary requirements to
enable them to apply for the documents in time. It was contended in this conte Xt that South African
citizens who were in possession of identity documents issued pursuant to legislation which was
operative before the 1986 Act came into force ought to have been allowed to use them.
[19] It is to be emphasized that it is for Parliament to determine the means by which voters must
identify themselves. This is not the function of a court. But this does not mean that Parliament is at
large in determining the way in which the electoral scheme is to be structured. There are important
safeguards aimed at ensuring appropriate protection for citizens who desire to eXercise this
foundational right. The first of the constitutional constraints placed upon Parliament is that there
must be a rational relationship between the scheme which it adopts and the achievement of a
legitimate governmental purpose.
Parliament cannot act capriciously or arbitrarily. The absence of such a rational connection will
result in the measure being unconstitutional. An objector who challenges the electoral scheme on
these grounds bears the onus of establishing the absence of a legitimate government purpose, or the
absence of a rational relationship between the measure and that purpose.
[20] A second constraint is that the electoral scheme must not infringe any of the fundamental
rights enshrined in chapter 2 of the Constitution. The onus is once again on the party who alleges an
infringement of the right to establish it. The contention in this appeal is that the impugned
provisions of the Electoral Act constitute a denial of the right to vote to a substantial number of
South African citizens. Any scheme designed to facilitate the eXercise of this right carries with it the
possibility that some people will not comply with its provisions. But that does not make the scheme
unconstitutional. The decisive question which arises for consideration in this case is the following:
when can it legitimately be said that a legislative measure designed to enable people to vote in fact
results in a denial of that right? What a party alleging that an Act of Parliament has infringed the
right to vote is required to establish in order to succeed will emerge in the process of answering this
question.

[21] The eXercise to be carried out by a court entails an evaluation of the consequences of a statutory
provision in the process of its implementation which occurs at some time in the future. It is
necessary, at the outset of the enquiry, to determine the nature of the consequence that is
impermissible. The consequence that will be impermissible in the present case can best be
determined by focusing on the question as to what Parliament must achieve. Parliament must
ensure that people who would otherwise be eligible to vote are able to do so if they want to vote and
if they take reasonable steps in pursuit of the right to vote. More cannot be eXpected of Parliament.
It follows that an impermissible consequence will ensue if those who wish to vote and who take
reasonable steps in pursuit of the right, are unable to do so.
[22] It is necessary to determine the circumstances that are to be taken into account in deciding
whether the impugned provisions infringe the right to vote. There are two possibilities. A court can
make an evaluation in the light of the circumstances pertaining at the time the provisions were
enacted, or those which eXist at some later date when the constitutionality of the provisions are
challenged. This Court has adopted an objective approach to the issue of the constitutionality of
statutory provisions. A pre-eXisting law becomes invalid to the eXtent of its inconsistency with the
Constitution, the moment the Constitution comes into force. It is irrelevant that this Court may
declare it to be inconsistent only several years later. Similarly, a statutory provision which is passed
after the constitution comes into operation is invalid to the e Xtent of its inconsistency with the
Constitution, the moment the provision is enacted. This is so regardless of the fact that its invalidity
is only attacked, or the concrete circumstances that form the basis of the attack only become
apparent, long after its enactment. Consistent with this objective approach to statutory invalidity,
the circumstances which become apparent at the time when the validity of the provision is
considered by a court are not necessarily irrelevant to the question of its consequential invalidity.
However, a statute cannot have limping validity, valid one day, invalid the ne Xt, depending upon
changing circumstances. Its validity must ordinarily be determined as at the date it was passed.
Nevertheless, the implementation of an Act which passes constitutional scrutiny at the time of its
enactment, may well give rise to a constitutional complaint, if, as a result of circumstances which
become apparent later, its implementation would infringe a constitutional right. In assessing the
validity of such a complaint, it becomes necessary to determine whether the pro Ximate cause of the
infringement of the right is the statutory provision itself, or whether the infringement of the right
has been precipitated by some other cause, such as the failure of a governmental agency to fulfill its
responsibilities. If it is established that the proXimate cause of the infringement, in the light of the
circumstances, lies in the statutory provision under consideration, that provision infringes the right.
This is not a departure from the objective approach to unconstitutionality. It is merely a recognition
of the fact that a constitutional defect in a statutory provision is not always readily apparent at the
time of its enactment, but may only emerge later when a concrete case presents itself for
adjudication.
[23] It is necessary to apply an objective test in deciding whether the Act of Parliament, which
makes provision for the electoral scheme challenged in the present case, is valid. Parliament is
obliged to provide for the machinery, mechanism or process that is reasonably capable of achieving
the goal of ensuring that all persons who want to vote, and who take reasonable steps in pursuit of

that right, are able to do so. I conclude, therefore, that the Act would infringe the right to vote if it is
shown that, as at the date of the adoption of the measure, its probable consequence would be that
those who want to vote would not have been able to do so, even though they acted reasonably in
pursuit of the right. Any scheme which is not sufficiently fle Xible to be reasonably capable of
achieving the goal of ensuring that people who want to vote will be able to do so if they act
reasonably in pursuit of the right, has the potential of infringing the right. That potential becomes
apparent only when a concrete case is brought before a court. The appellant bears the onus of
establishing that the machinery or process provided for is not reasonably capable of achieving that
purpose. As pointed out in the previous paragraph, it might well happen that the right may be
infringed or threatened because a governmental agency does not perform efficiently in the
implementation of the statute. This will not mean that the statute is invalid. The remedy for this lies
elsewhere. The appellant must fail if it does not establish that the right is infringed by the impugned
provisions in the manner described earlier. This Court held in August and Another v. The Electoral
Commission and Others that all prisoners would have been effectively disenfranchised without
constitutional or statutory authority by the system of voting and registration which had been put
into place by the Commission. This case is different, however, because the alleged
disenfranchisement is said to arise from the terms of the statute and not from the acts or omissions
of the agency charged with implementing the statute.
[24] O'Regan J in her dissenting judgment measures the importance of the purpose of the statutory
provision in relation to its effect, and asks the question whether the electoral scheme is reasonable.
She goes on to conclude that the scheme is not reasonable, and for that reason, to hold that the
relevant provisions of the Electoral Act are inconsistent with the Constitution. In my view this is not
the correct approach to the problem. Decisions as to the reasonableness of statutory provisions are
ordinarily matters within the eXclusive competence of Parliament. This is fundamental to the
doctrine of separation of powers and to the role of courts in a democratic society. Courts do not
review provisions of Acts of Parliament on the grounds that they are unreasonable. They will do so
only if they are satisfied that the legislation is not rationally connected to a legitimate government
purpose. In such circumstances, review is competent because the legislation is arbitrary.
Arbitrariness is inconsistent with the rule of law which is a core value of the Constitution. It was
within the power of Parliament to determine what scheme should be adopted for the election. If the
legislation defining the scheme is rational, the Act of Parliament cannot be challenged on the
grounds of "unreasonableness". Reasonableness will only become relevant if it is established that
the scheme, though rational, has the effect of infringing the right of citizens to vote. The question
would then arise whether the limitation is justifiable under the provisions of section 36 of the
Constitution, and it is only as part of this section 36 enquiry that reasonableness becomes relevant.
It follows that it is only at that stage of enquiry that the question of reasonableness has to be
considered. The first question to be decided, therefore, is whether the scheme prescribed by the
Electoral Act is rational.
Rationality of the statutory provisions [25] It is, in my view, convenient to determine whether the
impugned provisions are rationally related to a legitimate governmental purpose in two stages. The
first part of the enquiry is whether a facial analysis of the provisions in issue, in relation to the
Constitution, has been shown to lack rationality; the second is whether these provisions can be said

to be arbitrary or capricious in the light of certain circumstances e Xisting as at the date of the
adoption of the statute.
Effect of the relevant circumstances [28] The facial analysis demonstrates that the statutory
provisions asserting the disputed documentary requirements are rationally related to the legitimate
governmental purpose of ensuring the effective e Xercise of the right to vote. I will now e Xamine
whether the disputed measures can be said to be arbitrary or capricious in the light of the
circumstances which, according to the appellant, were relevant."
It is, therefore, evident that the right to vote is a concept which has to yield to a concept of the
attainment of free and fair elections. The nature of elections, namely, direct or indirect, regulates the
concept of right to vote. Where elections are direct, secret voting is insisted upon. Where elections
are indirect and where members are chosen by indirect means, such as, by parliament or by
legislative assembly or by eXecutive, then open ballot can be introduced as a concept under the
electoral system of voting. In the case of direct elections, members are chosen directly by popular
vote which is not the case under indirect elections. Therefore, it cannot be said that the concept of
open ballot would defeat the attainment of free and fair elections. In the present case, the question
of denial of right to vote would be self inflicted only on the member of the Legislative Assembly
declining to show his vote to the authorized representative of the party. If a MLA casts a vote in
favour of any person he thinks appropriate and shows his vote to the authorized representative of
the political party to which he belongs, Rules do not contemplate cancellation of such a vote. It
cannot be forgotten that the eXistence of political parties is an essential feature of our Parliamentary
democracy and that it can be a matter of concern for Parliament if it finds that electors were
resorting to cross voting under the garb of conscience voting, flouting party discipline in the name of
secrecy of voting. This would weaken the party discipline over the errant Legislators. Political
parties are the sine qua non of Parliamentary democracy in our country and the protection of party
discipline can be introduced as an essential feature of the purity of elections in case of indirect
elections. Parliamentary Democracy and multi party system are an inherent part of the basic
structure of Indian Constitution. It is political parties that set up candidates at an election who are
predominantly elected as Members of the State Legislatures. The conte Xt in which General Elections
are held, secrecy of the vote is necessary in order to maintain the purity of the Election system.
Every voter has a right to vote in a free and fair manner and not disclose to any person how he has
voted. But here we are concerned with a voter who is elected on the ticket of a political party. In this
view, the conteXt entirely changes.
That the concept of 'constituency-based representation' is different from 'proportional

representation' has been eloquently brought out in the case of United Democratic Movement v.
President of the Republic of South Africa and Others reported in 2003 (1) SA 495, where the
question before the Supreme Court was: whether 'floor crossing' was fundamental to the
Constitution of South Africa. In this judgment the concept of proportional representation vis-`-vis
constituency-based representation is highlighted. The relevant passages from the said judgment
read as under:

"24. The first question that has to be considered is the meaning of the phrase "a multi-party system
of democratic government" in the conteXt of section 1(d) of the Constitution. It clearly e Xcludes a
one-party state, or a system of government in which a limited number of parties are entitled to
compete for office. But is that its only application?
25. The phrase is not a term of Article We were referred to no authority on political science or the
South African Constitution that offers a meaning of these words. Nor can any assistance be gleaned
from commentaries on the South African Constitution. Most authors seem to regard the meaning of
the phrase to be self-evident and to require no eXplanation beyond the words themselves.
26. A multi-party democracy contemplates a political order in which it is permissible for different
political groups to organize, promote their views through public debate and participate in free and
fair elections. These activities may be subjected to reasonable regulation compatible with an open
and democratic society. Laws which go beyond that, and which undermine multi- party democracy,
will be invalid. What has to be decided, therefore, is whether this is the effect of the disputed
legislation.
27. The applicants contend that the proportional representation system is an integral part of the
Constitution, that the purpose of the ante-defection provision is to protect this system and that any
interference with these provisions is an interference with the multi-party system of democratic
government contemplated by section 1(d) of the Constitution.
Proportional Representation
28. In support of this contention reliance was placed by the applicants on constitutional principle
VIII which was one of the principles with which the Constitution had to comply.
Constitutional principle VIII provides:
"There shall be representative government embracing multi-party democracy, regular elections,

universal adult suffrage, a common voters' roll, and, in general, proportional representation."
29. Significantly, however, section 1(d) of the Constitution incorporates all the provisions of
constitutional principle VIII, save for the last requirement that refers to proportional
representation. If it had been contemplated that proportional representation should be one of the
founding values it is difficult to understand why those words were omitted from section 1(d).
TeXtually, proportional representation is not included in the founding values. Nor, in our view, can
it be implied as a requirement of multi-party democracy. There are many systems of multi-party
democracy that do not have an electoral system based on proportional representation.
30. The applicants contend, however, that an anti-defection provision is an essential component of
an electoral system based on proportional representation. This, so the contention goes, is necessary
to ensure that the results of an election are not affected by the defection of persons who gained their
seats in a legislature solely because of their position on the party list. It is the party, and not the

members, which is entitled to the seats, and if a member is allowed to defect, that distorts the
proportionality that the system was designed to achieve.
31. There is a tension between the eXpectation of voters and the conduct of members elected to
represent them.
Once elected, members of the legislature are free to take decisions, and are not ordinarily liable to be
recalled by voters if the decisions taken are contrary to commitments made during the election
campaign.
32. It is often said that the freedom of elected representatives to take decisions contrary to the will of
the party to which they belong is an essential element of democracy. Indeed, such an argument was
addressed to this Court at the time of the certification proceedings where objection was taken to the
transitional ante-defection provision included in Schedule 6 to the Constitution. It was contended
that submitting legislators to the authority of their parties was inimical to "accountable, responsive,
open, representative and democratic government; that universally accepted rights and freedoms,
such as freedom of eXpression, freedom of association, the freedom to make political choices and the
right to stand for public office and, if elected, to hold office, are undermined; and that the anti-
defection clause militates against the principles of 'representative government', 'appropriate checks
and balances to ensure accountability, responsiveness and openness' and 'democratic
representation'."
33. This Court rejected that submission holding:
"Under a list system of proportional representation, it is parties that the electorate votes for, and
parties which must be accountable to the electorate. A party which abandons its manifesto in a way
not accepted by the electorate would probably lose at the neXt election. In such a system an anti-
defection clause is not inappropriate to ensure that the will of the electorate is honoured. An
individual member remains free to follow the dictates of personal conscience. This is not
inconsistent with democracy.
□. An ante-defection clause enables a political party to prevent defections of its elected members,
thus ensuring that they continue to support the party under whose aegis they were elected. It also
prevents parties in power from enticing members of small parties to defect from the party upon
whose list they were elected to join the governing party. If this were permitted it could enable the
governing party to obtain a special majority which it might not otherwise be able to muster and
which is not a reflection of the views of the electorate. This objection cannot be sustained."
34. It does not follow from this, however, that a proportional representation system without an ante-
defection clause is inconsistent with democracy. It may be that there is a closer link between voter
and party in proportional representation electoral systems than may be the case in
constituency-based electoral systems, and that for this reason the argument against defection may
be stronger than would be the case in constituency-based elections. But even in constituency- based
elections, there is a close link between party membership and election to a legislature and a member

who defects to another party during the life of a legislature is equally open to the accusation that he
or she has betrayed the voters.
47. The fact that a particular system operates to the disadvantage of particular parties does not
mean that it is unconstitutional. For instance, the introduction of a constituency-based system of
elections may operate to the prejudice of smaller parties, yet it could hardly be suggested that such a
system is inconsistent with democracy. If defection is permissible, the details of the legislation must
be left to Parliament, subject always to the provisions not being inconsistent with the Constitution.
The mere fact that Parliament decides that a threshold of 10% is necessary for defections from a
party, is not in our view inconsistent with the Constitution.
Rule of law
55. Our Constitution requires legislation to be rationally related to a legitimate government purpose.
If not, it is inconsistent with the rule of law and invalid.
68. In the pharmaceuticals Manufacturers case it was pointed out that rationality as a minimum
requirement for the e X ercise of public power, "does not mean that the courts can or should
substitute their opinions as to what is appropriate, for the opinions of those in whom the power has
been vested. As long as the purpose sought to be achieved by the e Xercise of public power is within
the authority of the functionary, and as long as the functionary's decision, viewed objectively, is
rational, a court cannot interfere with the decision simply because it disagrees with it or considers
that the power was eXercised inappropriately."
This applies also and possibly with greater force to the eXercise by Parliament of the powers vested
in it by the Constitution, including the power to amend the Constitution.
71. The final issue with regard to the founding values and rule of law relates to the filing of vacant
seats. Members elected on party lists are subject to party discipline and are liable to be eXpelled
from their party for breaches of discipline. If that happens they cease to be members of the
legislature.
72. Defecting members who form or join another party become subject to that party's discipline and
are equally liable to eXpulsion for breaches of discipline. Thus, if a defecting member is
subsequently eXpelled from his or her new party, or if a member dies, provision has to be made for
how the vacant seats are to be filled.
75. In the result the objection to the four Acts on the grounds that they are inconsistent with the
founding values and the Bill of Rights must fail. That makes it unnecessary to consider whether such
provisions can be amended by inference, or whether it is necessary if that be the purpose of an
amendment, to draw attention to this in the section 74(5) notices, and to state specifically that the
provisions of section 74(1) or 74(2), as the case may be, are applicable to such amendments."

The distinguishing feature between 'constituency-based representation' and 'proportional
representation' in a representative democracy is that in the case of the list system proportional
representation, members are elected on party lines. They are subject to party discipline. They are
liable to be eXpelled for breach of discipline. Therefore, to give effect to the concept of proportional
representation, Parliament can suggest 'open ballot'. In such a case, it cannot be said that 'free and
fair elections' would stand defeated by 'open ballot'. As stated above, in a constituency-based
election it is the people who vote whereas in proportional representation it is the elector who votes.
This distinction is indicated also in the Australian judgment in King v. James (supra). In
constituency-based representation, 'secrecy' is the basis whereas in the case of proportional
representation in a representative democracy the basis can be 'open ballot' and it would not violate
the concept of 'free and fair elections' which concept is one of the pillars of democracy. Further,
every vote on a motion inside the House is by an open ballot. The election of a Speaker, Deputy
Speaker of the House of the People and the Deputy Chairperson of the Council of States is by a
division which is a system of open ballot. Reference may be made in this respect to Rule 7, 8, 364,
365, 367, 367A, 367AA and 367B of Rules of Procedure and the Conduct of Business in the Lok
Sabha and Rule 7, 252, 253 and 254 of Rules of Procedure and Conduct of Business in the Council of
States.
In above view, the justification of the impugned amendment on the reasoning that open voting
eradicates the evil of cross-voting by electors who have been elected to the Assembly of the
particular State on the basis of party nomination cannot be lightly brushed aside. The submission on
behalf of the Petitioners fails to take into account the distinction between direct elections and
indirect elections. This is not a case of direct election by an individual voter in any particular
election. This is a case of indirect election by members of the Legislative Assembly who owe their
membership to the Legislative Assembly having been elected by reason of their being sponsored and
promoted by the political parties concerned.
The contention that the right of eXpression of the voter at an election for the Council of States is
affected by open ballot is not tenable, as an elected MLA would not face any disqualification from
the Membership of the House for voting in a particular manner. He may at the most attract action
from the political party to which he belongs. Being a Member of the political party on whose ticket
he was elected as an MLA, in the first place, he is generally e Xpected to follow the directions of the
party, which is one of the basic political units in our democracy.
Since the amendment has been brought in on the basis of need to avoid cross voting and wipe out
evils of corruption as also to maintain the integrity of our democratic set-up, it can also be justified
by the State as a reasonable restriction under Article 19(2) of the Constitution, on the assumption
that voting in such an election amounts to freedom of e Xpression under Article 19(1)(a) of the
Constitution. Even if we were to cast aside the view taken in N.P. Ponnuswami and proceed on the
assumption that right to vote is a constitutional right, e Xpanding the view taken in the case of
People's Union for Civil Liberties, there can be no denial of the fact that the manner of voting in the
election to the Council of States can definitely be regulated by the Statute. The Constitution does not
provide that voting for an election to the Council of States shall be by secret ballot. The voting for an
election to the Council of States till now was by secret ballot due to a law made by Parliament. It

cannot be said that secret ballot in all forms of elections is a Constitutional right.
By the amendment, the right to vote is not taken away. Each elected Member of the Legislative
Assembly of the concerned State is fully entitled to vote in the election to the Council of States. The
only change that has come owing to the impugned amendment is that he has to disclose the way he
has cast the vote to the representative of his Party. Parliament would justify it as merely a regulatory
method to stem corruption and to ensure free and fair elections and more importantly to maintain
purity of elections. This Court has held that secrecy of ballot and purity of elections should normally
co-eXist. But in the case of the Council of States, the Parliament in its wisdom has deemed it proper
that secrecy of ballot should be done away with in such an indirect election, to ensure purity of
election.
The procedure by which an election has to be held should further the object of a free and fair
election. It has been noted by the Parliament that in elections to the Council of States, members
elected on behalf of the political parties misuse the secret ballot and cross vote. It was reported that
some members indulge in cross voting for consideration. It is the duty of the Parliament to take
cognizance of such misbehaviour and misconduct and legislate remedial measures for the same.
Breach of Discipline of political parties for collateral and corrupt considerations removes the faith of
the people in a multi party democracy. The Parliament, therefore, necessarily legislated to provide
for an open ballot. A multi party democracy is a necessary part of the basic structure of the
Constitution. An amendment to law intended to restore popular faith in parliamentary democracy
and in the multi party system cannot be faulted. The principle of secrecy is not an absolute principle.
The legislative Amendment cannot be struck down on the ground that a different or better view is
possible. It is well settled that a challenge to Legislation cannot be decided on the basis of there
being another view which may be more reasonable or acceptable. A matter within the legislative
competence of the legislature has to be left to the discretion and wisdom of the latter so long as it
does not infringe any Constitutional provision or violate the Fundamental rights. The secrecy of
ballot is a vital principle for ensuring free and fair elections. The higher principle, however, is free
and fair elections and purity of elections. If secrecy becomes a source for corruption then sunlight
and transparency have the capacity to remove it. We can only say that Legislation pursuant to a
legislative policy that transparency will eliminate the evil that has crept in would hopefully serve the
larger object of free and fair elections. We would like to recall the following views of this Court in
Indira Nehru Gandhi v. Raj Narain: - "672. The contention that "democracy" is an essential feature
of the Constitution is unassailable. □□□ If the democratic form of government is the cornerstone of
our Constitution, the basic feature is the broad form of democracy that was known to Our Nation
when the Constitution was enacted, with such adjustments and modifications as e Xigencies may
demand but not so as to leave the mere husk of a popular rule. Democracy is not a dogmatic
doctrine and no one can suggest that a rule is authoritarian because some rights and safeguards
available to the people at the inception of its Constitution have been abridged or abrogated or
because, as the result of a constitutional amendment, the form of government does not strictly
comport with some classical definition of the concept. The needs of the nation may call for severe
abnegation, though never the needs of the rulers and evolutionary changes in the fundamental law
of the country do not necessarily destroy the basic structure of its government. What does the law
live for, if it is dead to living needs? □□..."

(emphasis supplied) Thus, we do not find merit in any of the contentions raised by the petitioners to
question the Constitutional validity of the introduction through the impugned amendment of "open
ballot" system of election to fill the seats of the representatives of States in the Council of States. It is
provided in Article 80 (2) that allocation of seats in the Council of States to be filled by the
representatives of States and the Union Territories shall be in accordance with the provisions in that
behalf contained in the Fourth Schedule. In Article 80(4), it is provided that the representatives of
each State shall be elected by the elected Members of the Legislative Assemblies of the States in
accordance with the system of proportional representation by means of a single transferable vote.
Apart from this, the Constitution does not put any restriction on the legislative powers of the
Parliament in this regard. The amendments in Sections 3, 59, 94 and 128 of the Representation of
the People Act, 1951 by the Representation of the People (Amendment) Act, 2003 (40 of 2003) has
been made in eXercise of the powers conferred on the Parliament under Article 246 read with
Articles 84 and 327 and Entry 72 of the Union List of the Seventh Schedule to the Constitution. The
impugned amendment does not infringe any Constitutional provision. It cannot be found to be
violative of fundamental rights in Part III of the Constitution. It is not disputed that Parliament has
legislative competence to enact the amending Act. In these facts and circumstances, the impugned
legislation cannot be struck down as unconstitutional.
All the Writ Petitions questioning the Constitutional validity of the amendments brought about in
the Representation of People the Act, 1951 through the Representation of the People (Amendment)
Act, 2003 (Act No.40 of 2003), being devoid of merits are hereby dismissed. Interim orders stand
vacated. All parties are left to bear their own costs.

Author: E B Sikri
Bench: Chief Justice, Dipak Misra, Madan B. Lokur, Kurian Joseph, S.A. Bobde
INDIA CIVIL ORIGINAL JURISDICTION

2005
Manoj Narula ... Petitioner
Versus
Union of India ...Respondent
J U D G M E N T
Dipak Misra, J. [for himself, R.M. Lodha, C.J., and S.A. Bobde, J.] A democratic polity, as
understood in its quintessential purity, is conceptually abhorrent to corruption and, especially
corruption at high places, and repulsive to the idea of criminalization of politics as it corrodes the
legitimacy of the collective ethos, frustrates the hopes and aspirations of the citizens and has the
potentiality to obstruct, if not derail, the rule of law. Democracy, which has been best defined as the
Government of the People, by the People and for the People, eXpects prevalence of genuine
orderliness, positive propriety, dedicated discipline and sanguine sanctity by constant affirmance of
constitutional morality which is the pillar stone of good governance. While dealing with the concept
of democracy, the majority in Indira Nehru Gandhi v. Raj Narain[1], stated that democracy as an
essential feature of the Constitution is unassailable. The said principle was reiterated in T.N. Seshan,
CEC of India v. Union of India and ors.[2]. and Kuldip Nayar v. Union of India & Ors.[3] It was
pronounced with asseveration that democracy is the basic and fundamental structure of the
Constitution. There is no shadow of doubt that democracy in India is a product of the rule of law and
aspires to establish an egalitarian social order. It is not only a political philosophy but also an
embodiment of constitutional philosophy. In Peoples Union for Civil Liberties and another v. Union
of India and another[4], while holding the voters rights not to vote for any of the candidates, the
Court observed that democracy and free elections are a part of the basic structure of the Constitution
and, thereafter, proceeded to lay down that democracy being the basic feature of our constitutional
set- up, there can be no two opinions that free and fair elections would alone guarantee [pic]the
growth of a healthy democracy in the country. The term fair denotes equal opportunity to all people.
Universal adult suffrage conferred on the citizens of India by the Constitution has made it possible
for millions of individual voters to participate in the governance of our country. For democracy to
survive, it is fundamental that the best available men should be chosen as the peoples

representatives for the proper governance of the country and the same can be best achieved through
men of high moral and ethical values who win the elections on a positive vote. Emphasizing on a
vibrant democracy, the Court observed that the voter must be given an opportunity to choose none
of the above (NOTA) button, which will indeed compel the political parties to nominate a sound
candidate. Accordingly, the principle of the dire need of negative voting was emphasised. The
significance of free and fair election and the necessity of the electorate to have candidates of high
moral and ethical values was re-asserted. In this regard, it may be stated that the health of
democracy, a cherished constitutional value, has to be protected, preserved and sustained, and for
that purpose, instilment of certain norms in the marrows of the collective is absolutely necessitous.
THE REFERENCE We have commenced our judgment with the aforesaid prologue as the present
writ petition under Article 32 of the Constitution was filed by the petitioner as pro bono publico
assailing the appointment of some of the original respondents as Ministers to the Council of
Ministers of Union of India despite their involvement in serious and heinous crimes. On 24.3.2006,
when the matter was listed before the Bench presided by the learned Chief Justice, the following
order came to be passed: -
A point of great public importance has been raised in this petition. Broadly, the point is about the
legality of the person with criminal background and/or charged with offences involving moral
turpitude being appointed as ministers in Central and State Governments.
We have heard in brief Mr. Rakesh Dwivedi, learned senior counsel who was appointed as amicus
curiae to assist the Court, as also the learned Solicitor General, appearing for the Union of India,
and Mr. Gopal Subramaniam, learned Additional Solicitor General appearing on behalf of the
Attorney General for India. Having regard to the magnitude of the problem and its vital importance,
it is but proper that the petition is heard by a Bench of five Judges.
We issue notice to Union of India. Formal notice need not be issued since the Union of India is
represented by learned Solicitor General.
Notices shall also be issued to the Advocates General of all the States. The notice shall state that the
State Governments and the Union of India may file their affidavits along with relevant material
within four weeks of service of notice.
The Prime Minister and some of the Ministers in Union Cabinet have been arrayed as party
respondents 2 to 7. It is not necessary to implead individual ministers and/or Prime Minister for
deciding the question above- named. Accordingly, respondent Nos. 2 to 7 are deleted from the array
of parties.
List the case after the Court reopens after the summer vacation for directions as to fi Xing a date for
its being placed before the Constitution Bench. In view of the aforesaid order and the subsequent
orders, the matter has been placed before us. Considering the controversy raised, we are required to
interpret the scope and purpose of Articles 75 and 164 of the Constitution, regard being had to the
teXt, conteXt, scheme and spirit of the Constitution.

THE PURITY OF ELECTION In the beginning, we have emphasized on the concept of democracy
which is the corner stone of the Constitution. There are certain features absence of which can erode
the fundamental values of democracy. One of them is holding of free and fair election by adult
franchise in a periodical manner as has been held in Mohinder Singh Gill and another v. Chief
Election Commissioner, New Delhi and others[5], for it is the heart and soul of the parliamentary
system. In the said case, Krishna Iyer, J. quoted with approval the statement of Sir Winston
Churchill which is as follows: -
At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a
little pencil, making a little cross on a little bit of paper no amount of rhetoric or voluminous
discussion can possibly diminish the overwhelming importance of the point. In Raghbir Singh Gill v.
S. Gurcharan Singh Tohra[6], the learned Judges, after referring to Mohinder Singh Gills case,
stated that nothing can diminish the overwhelming importance of the cross or preference indicated
by the dumb sealed lip voter. That is his right and the trust reposed by the Constitution in him is
that he will act as a responsible citizen choosing his masters for governing the country.
This Court has laid emphasis on the purity of elections in Union of India v. Association for
Democratic Reforms and another[7] and, in that conte Xt, has observed that elections in this country
are fought with the help of money power which is gathered from black sources and once elected to
power, it becomes easy to collect tons of black money which is used for retaining power and for re-
election. The Court further observed that if on an affidavit a candidate is required to disclose the
assets held by him at the time of election, the voter can decide whether he should be re-elected.
Thereafter, as regards the purity of election, the Court observed that to maintain purity of elections
and, in particular, to bring transparency in the process of election, the Commission can ask the
candidates about the eXpenditure incurred by the political parties, and the voters would have basic
elementary right to know full particulars of a candidate who is to represent them in Parliament
where laws to bind their liberty and property may be enacted because the right to get information in
a democracy is recognised all throughout and it is a natural right flowing from the concept of
democracy. Elaborating further, the Court opined that a voter has a right to know the antecedents
including the criminal past of his candidate contesting election for MP or MLA as it is fundamental
and basic for the survival of democracy, for he may think over before making his choice of electing
law-breakers as law-makers. Eventually, the Court directed the Election Commission to e Xercise its
power under Article 324 of the Constitution requiring the candidate to furnish information
pertaining to the fact whether the candidate has been convicted/ acquitted/discharged of any
criminal offence in the past, if any, and whether he has been punished with imprisonment or fine;
whether the candidate is accused in any pending case of any offence punishable with imprisonment
for two years or more, and in which charge is framed or cognizance is taken by the court of law; and
certain other information.
From the aforesaid authorities, it is perceivable that while giving emphasis on the sanctity of
election, the Court has eXpressed its concern with regard to various facets of the candidates who
contest the election and seek votes.

CRIMINALISATION OF POLITICS Criminalisation of politics is an anathema to the sacredness of
democracy. Commenting on criminalization of politics, the Court, in Dinesh Trivedi, M.P. and
others v. Union of India and others[8], lamented the faults and imperfections which have impeded
the country in reaching the eXpectations which heralded its conception. While identifying one of the
primary causes, the Court referred to the report of N.N. Vohra Committee that was submitted on
5.10.1993. The Court noted that the growth and spread of crime syndicates in Indian society has
been pervasive and the criminal elements have developed an eXtensive network of contacts at many
a sphere. The Court, further referring to the report, found that the Report reveals several alarming
[pic]and deeply disturbing trends that are prevalent in our present society. The Court further
noticed that the neXus between politicians, bureaucrats and criminal elements in our society has
been on the rise, the adverse effects of which are increasingly being felt on various aspects of social
life in India. Indeed, the situation has worsened to such an eXtent that the President of our country
felt constrained to make references to the phenomenon in his addresses to the Nation on the eve of
the Republic Day in 1996 as well as in 1997 and hence, it required to be handled with e Xtreme care
and circumspection.
In Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India and others[9], the Court, in
the conteXt of the provisions made in the election law, observed that they have been made to eXclude
persons with criminal background of the kind specified therein from the election scene as
candidates and voters with the object to prevent criminalization of politics and maintain propriety
in elections. Thereafter, the three-Judge Bench opined that any provision enacted with a view to
promote the said object must be welcomed and upheld as subserving the constitutional purpose. In
K. Prabhakaran v. P. Jayarajan[10], in the conte Xt of enacting disqualification under Section 8(3) of
the Representation of the People Act, 1951 (for brevity the 1951 Act), it has been reiterated that
persons with criminal background pollute the process of election as they have no reservation from
indulging in criminality to gain success at an election.
It is worth saying that systemic corruption and sponsored criminalization can corrode the
fundamental core of elective democracy and, consequently, the constitutional governance. The
agonized concern eXpressed by this Court on being moved by the conscious citizens, as is perceptible
from the authorities referred to hereinabove, clearly shows that a democratic republic polity hopes
and aspires to be governed by a Government which is run by the elected representatives who do not
have any involvement in serious criminal offences or offences relating to corruption, casteism,
societal problems, affecting the sovereignty of the nation and many other offences. There are
recommendations given by different committees constituted by various Governments for electoral
reforms. Some of the reports that have been highlighted at the bar are (i) Goswami Committee on
Electoral Reforms (1990), (ii) Vohra Committee Report (1993), (iii) Indrajit Gupta Committee on
State Funding of Elections (1998), (iv) Law Commission Report on Reforms of the Electoral Laws
(1999), (v) National Commission to Review the Working of the Constitution (2001), (vi) Election
Commission of India Proposed Electoral Reforms (2004), (vii) The Second Administrative Reforms
Commission (2008), (vii) Justice J.S. Verma Committee Report on Amendments to Criminal Law
(2013), and (iX) Law Commission Report (2014).

Vohra Committee Report and other Reports have been taken note of on various occasions by this
Court. Justice J.S. Verma Committee Report on Amendments to Criminal Law has proposed
insertion of Schedule 1 to the 1951 Act enumerating offences under IPC befitting the category of
heinous offences. It recommended that Section 8(1) of the 1951 Act should be amended to cover,
inter alia, the offences listed in the proposed Schedule 1 and a provision should be engrafted that a
person in respect of whose acts or omissions a court of competent jurisdiction has taken cognizance
under Section 190(1)(a), (b) or (c) of the Code of Criminal Procedure or who has been convicted by a
court of competent jurisdiction with respect to the offences specified in the proposed eXpanded list
of offences under Section 8(1) shall be disqualified from the date of taking cognizance or conviction,
as the case may be. It further proposed that disqualification in case of conviction shall continue for a
further period of siX years from the date of release upon conviction and in case of acquittal, the
disqualification shall operate from the date of taking cognizance till the date of acquittal.
The Law Commission, in its 244th Report, 2014, has suggested amendment to the 1951 Act by
insertion of Section 8B after Section 8A, after having numerous consultations and discussions, with
the avowed purpose to prevent criminalization of politics. It proposes to provide for electoral
reforms. Though it is a recommendation by the Law Commission, yet to understand the e Xisting
scenario in which the criminalization of politics has the effect potentiality to create a concavity in the
highly treasured values of democracy, we think it apt to reproduce the relevant part of the proposed
amendment. It reads as follows: -
8B. Disqualification on framing of charge for certain offences. - (1) A person against whom a charge
has been framed by a competent court for an offence punishable by at least five years imprisonment
shall be disqualified from the date of framing the charge for a period of si X years, or till the date of
quashing of charge or acquittal, whichever is earlier.
(2) Notwithstanding anything contained in this Act, nothing in sub-section (1) shall apply to a
person:
(i) Who holds office as a Member of Parliament, State Legislative Assembly or Legislative Council at
the date of enactment of this provision, or
(ii) Against whom a charge has been framed for an offence punishable by at least five years
imprisonment;
(a) Less than one year before the date of scrutiny of nominations for an election under Section 36, in
relation to that election;
(b) At a time when such person holds office as a Member of Parliament, State Legislative Assembly
or Legislative Council, and has been elected to such office after the enactment of these provisions;
(3) For Members of Parliament, State Legislative Assembly or Legislative Council covered by clause
(ii) of sub-section (2), they shall be disqualified at the eXpiry of one year from the date of framing of
charge or date of election, whichever is later, unless they have been acquitted in the said period or

the relevant charge against them has been quashed. The aforesaid vividly e Xposits concern at all
quarters about the criminalisation of politics. Criminalisation of politics, it can be said with
certitude, creates a dent in the marrows of the nation.
CORRUPTION IN THE PRESENT SCENARIO Criminality and corruption go hand in hand. From
the date the Constitution was adopted, i.e., 26th January, 1950, a Red Letter Day in the history of
India, the nation stood as a silent witness to corruption at high places. Corruption erodes the
fundamental tenets of the rule of law. In Niranjan Hemchandra Sashittal and another v. State of
Maharashtra[11] the Court has observed: -
It can be stated without any fear of contradiction that corruption is not to be judged by degree, for
corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions,
kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a
[pic]country, corrodes the sense of civility and mars the marrows of governance. It is worth noting
that immoral acquisition of wealth destroys the energy of the people believing in honesty, and
history records with agony how they have suffered. The only redeeming fact is that collective
sensibility respects such suffering as it is in consonance with the constitutional morality. Recently,
in Dr. Subramanian Swamy v. Director, Central Bureau of Investigation & Anr.[12], the Constitution
Bench, speaking through R.M. Lodha, C.J., while declaring Section 6A of the Delhi Special Police
Establishment Act, 1946, which was inserted by Act 45 of 2003, as unconstitutional, has opined
that:-
It seems to us that classification which is made in Section 6-A on the basis of status in the
Government service is not permissible under Article 14 as it defeats the purpose of finding prima
facie truth into the allegations of graft, which amount to an offence under the PC Act, 1988. Can
there be sound differentiation between corrupt public servants based on their status? Surely not,
because irrespective of their status or position, corrupt public servants are corrupters of public
power. The corrupt public servants, whether high or low, are birds of the same feather and must be
confronted with the process of investigation and inquiry equally. Based on the position or status in
service, no distinction can be made between public servants against whom there are allegations
amounting to an offence under the PC Act, 1988. And thereafter, the larger Bench further said:-
Corruption is an enemy of the nation and tracking down corrupt public servants and punishing such
persons is a necessary mandate of the PC Act, 1988. It is difficult to justify the classification which
has been made in Section 6-A because the goal of law in the PC Act, 1988 is to meet corruption cases
with a very strong hand and all public servants are warned through such a legislative measure that
corrupt public servants have to face very serious consequences. And again:
70. Office of public power cannot be the workshop of personal gain. The probity in public life is of
great importance. How can two public servants against whom there are allegations of corruption of
graft or bribe taking or criminal misconduct under the PC Act, 1988 can be made to be treated
differently because one happens to be a junior officer and the other, a senior decision maker.

Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may
be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or
position of public servant does not qualify such public servant from e X emption from equal
treatment. The decision making power does not segregate corrupt officers into two classes as they
are common crime doers and have to be tracked down by the same process of inquiry and
investigation. From the aforesaid authorities, it is clear as noon day that corruption has the
potentiality to destroy many a progressive aspect and it has acted as the formidable enemy of the
nation.
PROVISIONS RELATING TO QUALIFICATIONS AND DISQUALIFICATION OF MPs AND

MLAs/MLCs Having stated about the significance of democracy under our Constitution and holding
of free and fair elections as a categorical imperative to sustain and subserve the very base of
democracy, and the concern of this Court on being moved under various circumstances about
criminalization of politics, presently we shall look at the constitutional and the statutory provisions
which provide for qualifications and disqualifications of Members of Parliament and that of the
State Legislature.
Article 84 of the Constitution provides for qualifications for membership of Parliament. The said
Article lays down that a person shall not be qualified to be chosen to fill a seat in the Parliament
unless he is a citizen of India, and makes and subscribes before a person authorised in that behalf by
Third Schedule; and further in the case of a seat in the Council of States, not less than thirty years of
age and, in the case of a seat in the House of the People, not less than twenty five years of age; and
that apart, he must possess such other qualifications as may be prescribed in that behalf by or under
any law made by Parliament.
Article 102 provides for disqualifications for membership. It provides that a person shall be
disqualified for being chosen as, and for being, a member of either House of Parliament if he holds
any office of profit under the Government of India or the Government of any State, other than an
office declared by Parliament by law not to disqualify its holder; if he is of unsound mind and stands
so declared by a competent court; if he is an undischarged insolvent; if he is not a citizen of India, or
has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of
allegiance or adherence to a foreign State; and if he is so disqualified by or under any law made by
Parliament. The eXplanation eXpressly states what would be deemed not to be an office of profit
under the Government of India or the Government of any State. That apart, the said Article
prescribes that a person shall be disqualified for being a member of either House of Parliament if he
is so disqualified under the Tenth Schedule.
Similarly, Article 173 provides for qualification for membership of the State Legislature and Article
191 enumerates the disqualifications similar to Article 102.
The Parliament by the 1951 Act has prescribed further qualifications and disqualifications to become
a member of Parliament or to become a member of Legislative Assembly. Section 8 of the Act
stipulates the disqualification on conviction for certain offences. We need not state the nature of the

offences enumerated therein. Suffice it to mention Section 8(1) covers a wide range of offences not
only under the Indian Penal Code but also under many other enactments which have the potentiality
to destroy the core values of a healthy democracy, safety of the State, economic stability, national
security, and prevalence and sustenance of peace and harmony amongst citizens, and many others.
Sub-sections 8(3) and 8(4), which have been a matter of great debate, are reproduced below: -
8(3) A person convicted of any offence and sentenced to imprisonment for not less than two years
other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from the
his release.
(4) Notwithstanding anything in sub-section (1), Sub-section (2) or sub- section (3), a
disqualification under either sub-section shall not, in the case of a person who on the date of the
conviction is a member of Parliament or the Legislature of a State, take effect until three months
have elapse from that date or, if within that period an appeal or application for revision is brought in
respect of the conviction or the sentence, until that appeal or application is disposed of by the court.
At this juncture, it is apposite to mention that the constitutional validity of sub-section (4) of Section
8 of the 1951 Act was challenged before this Court under Article 32 of the Constitution in Lily
Thomas v. Union of India and others[13] wherein the Court, referring to the decision in K
Prabhakaran (supra) and Articles 102(1)(e) and 191(1)(e) of the Constitution, held that once a person
who was a Member of either House of Parliament or House of the State Legislature becomes
disqualified by or under any law made by Parliament under Articles 102(1)(e) and 191(1)(e) of the
Constitution, his seat automatically falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) of the
Constitution and Parliament cannot make a provision as in sub-section (4) of Section 8 of the Act to
defer the date on which the disqualification of a sitting Member will have effect and prevent his seat
becoming vacant on account of the disqualification under Article 102(1)(e) or Article 191(1)(e) of the
Constitution. Eventually, the Court ruled that the affirmative words used in Articles 102(1)(e) and
191(1)(e) confer power on Parliament to make one law laying down the same disqualifications for a
person who is to be chosen as Member of either House of Parliament or as a Member of the
Legislative Assembly or Legislative Council of a State and for a person who is a sitting Member of a
House of Parliament or a House of the State Legislature and the words in Articles 101(3)(a) and
190(3)(a) of the Constitution put eXpress limitations on such power of the Parliament to defer the
date on which the disqualifications would have effect and, therefore, [pic]sub-section (4) of Section
8 of the Act, which carves out a saving in the case of sitting Members of Parliament or State
Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or
which defers the date on which the disqualification will take effect in the case of a sitting Member of
Parliament or a State Legislature, is beyond the powers conferred on Parliament by the
Constitution. Thereafter, dealing with sitting members of the Parliament and State Legislature, the
two-Judge Bench ruled that if any sitting Member of Parliament or a State Legislature is convicted
of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act, and by virtue
of such conviction and/or sentence, suffers the disqualifications mentioned in sub-sections (1), (2)
and (3) of Section 8 of the Act, his membership of Parliament or the State Legislature, as the case
may be, would not be saved by sub- section (4) of Section 8 of the Act.

Thus, the scheme of disqualification upon conviction laid down by the 1951 Act clearly upholds the
principle that a person who has been convicted for certain categories of criminal activities is unfit to
be a representative of the people. Criminal activities that result in disqualification are related to
various spheres pertaining to the interest of the nation, common citizenry interest, communal
harmony, and prevalence of good governance. It is clear that the 1951 Act lays down that the
commission of serious criminal offences renders a person ineligible to contest in elections or
continue as a representative of the people. Such a restriction does provide the salutary deterrent
necessary to prevent criminal elements from holding public office thereby preserving the probity of
representative government.
SUBMISSIONS OF THE COUNSEL In this backdrop, the proponements put forth by Mr. Dwivedi,
learned senior counsel, who was appointed as amicus curiae, are to be noted and considered. It is his
submission that under the constitutional scheme, it is the right of a citizen to be governed by a
Government which does not have Ministers in the Council of Ministers with criminal antecedents.
Though qualifications and disqualifications for the Members of Parliament and Members of the
State Legislative Assembly or the State Legislative Council are provided under the Constitution, and
they basically relate to the election process and continuance in the House and the further
disqualifications which have been enumerated under the 1951 Act have been legislated by the
Parliament being empowered under the specific provisions of the Constitution, yet when the
Ministers are appointed who constitute the spectrum of collective responsibility to run the
Government, a stronger criteria has to be provided for. A Minister is appointed by the President on
the advice of the Prime Minister as per Article 75(1) of the Constitution and a Minister enters upon
his Office after the President administers him oath of office and secrecy according to the form set
out for the said purpose in the Third Schedule and, therefore, submits Mr. Dwivedi, it is the
constitutional obligation on the part of the Prime Minister not to recommend any person to be
appointed as a Minister of the Council of Ministers who has criminal antecedents or at least who is
facing a criminal charge in respect of heinous or serious offences. The choice made by the Prime
Minister has to have its base on constitutional choice, tradition and constitutional convention which
must reflect the conscience of the Constitution. It is propounded by him that the same would serve
the spirit and core values of the Constitution, the values of constitutionalism and the legitimate
eXpectations of the citizens of this country. The power conferred on any constitutional authority
under any of the Articles of the Constitution may not be circumscribed by e Xpress or obvious
prohibition but it cannot be said that in the absence of use of any e Xpress phraseology in that regard,
it would confer an unfettered and absolute power or unlimited discretion on the said constitutional
authority. Learned senior counsel would contend that the doctrine of implied limitation has been
accepted as a principle of interpretation of our organic and living Constitution to meet the
requirements of the contemporaneous societal metamorphosis and if it is not applied to the
language of Article 75(1), the élan vital of the Constitution would stand e Xtinguished. It is urged by
him that judiciary, as the final arbiter of the Constitution, is under the constitutional obligation to
inject life to the words of the Constitution so that they do not become stagnate or sterile. In this
conteXt, Mr. Dwivedi has commended us to the views of the learned Judges in His Holiness
Kesavananda Bharati Sripadagalvaru v. State of Kerala and another[14] to highlight that the
applicability of the doctrine of implied limitation has been accepted by this Court.

Relying on the said principle, it is contended by him that the same has to be read into the language
of Article 75(1) of the Constitution to state that the Prime Minister, while giving advice to the
President for appointment of a person as Minister, is not constitutionally permitted to suggest the
name of a person who is facing a criminal trial and in whose case charge/charges have been framed.
Learned senior counsel has further submitted that high constitutional offices have to possess
institutional integrity so that the faith of the people at large is not shaken. He has emphasised on the
office of the President, the Governors, Judges of the High Courts and of the Supreme Court of the
country and the Comptroller and Auditor General of India. Such offices, as contended, are offices of
high public trust and, therefore, it is a natural necessity that in such appointments, the incumbent
should be of impeccable integrity and character and it cannot be conceived that such a person would
be involved in any kind of criminal offence. Mr. Dwivedi has made a distinction with regard to the
eligibility of a person for becoming a Member of Parliament as that is controlled by qualifications
and disqualifications and the absence of disqualifications, but to be a Minister in the Council of
Ministers which is done solely on the advice of the Prime Minister, absence of criminal antecedents
has to be a condition precedent. It is canvassed by him that when parliamentary democracy is a
basic feature of the Constitution and the Council of Ministers e Xercise all the powers as per the
democratic conventions, it has to be treated as an important constitutional institution of governance
of the nation and, therefore, it cannot be allowed to be held by persons involved in criminal offences.
He has placed reliance upon the authorities in Centre for PIL and another v. Union of India and
another[15], N. Kannadasan v. Ajoy Khose and others[16], Inderpreet Singh Kahlon v. State of
Punjab[17], Arun Kumar Agarwal v. Union of India[18], State of Punjab v. Salil Sabhlok and
others[19] and Centre for Public Interest Litigation and another v. Union of India and another[20].
Laying stress on the word advice, apart from referring to the dictionary meaning, the learned senior
counsel has urged that the framers of the Constitution have used the word advice as the Office of the
Prime Minister is eXpected to carry the burden of the constitutional trust. The advice given by the
Prime Minister to the President in the conteXt of Article 75(1) has to be a considered, deliberate and
informed one, especially taking note of the absence of criminal antecedents and lack of integrity. A
Minister, though holds the office during the pleasure of the President, yet as per the law laid down
by this Court and the convention, the advice of the Prime Minister binds the President. However,
the President, being the EXecutive Head of the State, can refuse to follow the advice, if there is
constitutional prohibition or constitutional impropriety or real eXceptional situation that requires
him to act to sustain the very base of the Constitution. Learned senior counsel would submit that the
President, in eXercise of his constitutional prerogative, may refuse to accept the advice of the Prime
Minister, if he finds that the name of a Member of Parliament is suggested to become a Minister
who is facing a criminal charge in respect of serious offences. To buttress the said submission, he
has drawn inspiration from the decisions in Samsher Singh v. State of Punjab and another[21] and
B. R. Kapur v. State of T.N. and another[22] Mr. Dwivedi has said that the situation peril to
democracy, as visualized in Samsher Singh (supra, confers the discretion on the President and he
may not accept the advice. Learned senior counsel would submit that the decision in Samsher Singh
(supra) has been followed in M.P. Special Police Establishment v. State of M.P. and others[23]
wherein the Governor in an eXceptional circumstance differed with the advice of the Council of
Ministers and granted sanction for prosecution. Emphasising on the concept of constitutional trust
in the Prime Minister which is inherent in the Constitution and which was a part of the Constituent

Assembly Debates, Mr. Dwivedi has referred to the Debates in the Constituent Assembly. It is
argued that a constitutional convention has to be read into Article 75(1) which would convey that a
person charged with serious crimes cannot be appointed as a Minister, for the individual
responsibility of the Cabinet is always comprehended as a facet of collective responsibility. For the
aforesaid purpose, he has found the stimulus from Constitutional Law by Loveland, Constitutional
and Administrative Law by David Polland, Neil Parpworth David Hughs, Constitutional and
Administrative Law by Hilaire Barnett (5th Edn.) and Constitutional Practice.
Mr. Anil Kumar Jha, learned counsel who has preferred the writ petition on behalf of the petitioner,
supplementing the arguments of Mr. Dwivedi, contended that though the choice of the Prime
Minister relating to a person being appointed as a Minister is his constitutional prerogative, yet such
choice cannot be eXercised in an arbitrary manner being oblivious of the honesty, integrity and the
criminal antecedents of a person who is involved in serious criminal offences. The Prime Minister,
while giving advice to the President for appointment of a person as a Minister, is required to be
guided by certain principles which may not be eXpressly stated in the Constitution but he is bound
by the unwritten code pertaining to morality and philosophy encapsulated in the Preamble of the
Constitution. Learned counsel has emphasised on the purposive interpretation of the Constitution
which can preserve, protect and defend the Constitution regardless of the political impact. It is
contended by him that if a constitutional provision is silent on a particular subject, this Court can
necessarily issue directions or orders by interpretative process to fill up the vacuum or void till the
law is suitably enacted. The broad purpose and the general scheme of every provision of the
Constitution has to be interpreted, regard being had to the history, objects and result which it seeks
to achieve. Learned counsel has placed reliance on S.P. Gupta v. Union of India and another[24] and
M. Nagaraj and others v. Union of India and others[25].
Mr. T.R. Andhyarujina, learned senior counsel, who was requested to assist the Court, has
submitted that in the absence of any eXpress provision for qualification of a Minister in the Union
Cabinet under Article 75 of the Constitution eXcept that he has to be a Member of either House of
the Parliament and when the oath required to be taken by a Minister under Article 75(4) as given in
the Third Schedule, does not give any requirement of his antecedent, there is no legal restriction
under the Constitution for a person unless convicted of an offence as provided under Section 8A of
the 1951 Act to be appointed as a Minister. It is his submission that Article 84 specifies certain
qualifications for filling up the seats of Parliament, but it does not state anything as to the character
and qualification of a person qualified to sit in the Parliament. Apart from the disqualifications
prescribed under Article 102(i)(e) and the provisions under the 1951 Act, there is no other
disqualification for a Member of Parliament to hold the post of a Minister. Therefore, the criminal
antecedents or any disqualification that is going to be thought of to hold the post of a Minister after
the charge is framed, as contended by the petitioner, may be in the realm of propriety but that
cannot be read into the constitutional framework.
Mr. Andhyarujina has further submitted that Section 44(4)(ii) of the Australian Constitution puts a
limitation on the member of the House which travels beyond conviction in a criminal case, for the
said provision provides that any person who has been convicted and is under sentence, or subject to
be sentenced, for any offence punishable under the law of the Commonwealth or of a State by

imprisonment for one year or longer, would be incapable of being chosen or of sitting as a senator or
a member of the House of Representatives. Learned counsel has commended us to Lanes
Commentary on the Australian Constitution, 1986 to highlight that this is an eXceptional provision
in a Constitution which disqualifies a person from being a Member of Parliament even if he is not
convicted but likely to be subject to a sentence for the prescribed offence, but in the absence of such
a provision in our Constitution or in law made by the Parliament, the Court cannot introduce such
an aspect on the bedrock of propriety. Learned counsel has also referred to the U.K. Representation
of Peoples Act, 1981 which provides that a person who is sentenced or ordered to be imprisoned or
detained indefinitely or for more than one year is disqualified and his election is rendered void and
the seat of such a member is vacated. Mr. Andhyarujina has also referred to the House of Commons
Library paper on disqualification for membership of the House of Commons wherein the practice is
that the eXistence of a criminal record may not disqualify a person from ministerial office, but
convictions for offences involving corruption, dishonesty, serious violence or serious seXual
misconduct would jeopardize a persons prospect of a ministerial career. Learned senior counsel has
also drawn our attention to a publication by Professor Rodney Brazier Is it a Constitutional issue:
Fitness for ministerial office in Public Law 1994 wherein it has been stated that whether a criminal
record should disqualify a person from membership of Government is unclear, however, conviction
for serious offences could impede a ministerial appointment. He has also referred to a passage from
Constitutional and Administrative Law by Hilaire Barnett 4th Ed. P. 354, to show that by an
unwritten rule of constitutional propriety, in United Kingdom, a person is unlikely to be made a
Minister if he has been convicted of a serious offence or even if he is facing prosecution for a serious
offence. Submission of learned amicus curiae is that there is no implied prohibition in our
Constitution on appointment of a Minister in case of a pending prosecution of a serious offence
eXcept conviction and, therefore, the principle of implied prohibition that a person who is not
convicted but is being prosecuted or charge sheeted for a criminal offence is to be debarred from
being a Member of the Legislature and, consequently, a Minister would not be attracted. Learned
senior counsel would contend that the jurisprudence is based on innocence of the accused until he is
proved guilty which is in tune with Article 14(2) of the International Covenant on Civil and Political
Rights and it cannot be brushed aside. Learned amicus curiae contended that in respect of certain
constitutional officials like President of India, Judges of courts including superior courts, Attorney
General of India, Comptroller and Auditor General of India and Governor of a State, implied
prohibition is implicit. It is urged by him that this Court, while interpreting Article 75(1), cannot
introduce the concept of rule of law to attract the principle of implied prohibition as rule of law is an
elusive doctrine and it cannot form the basis of a prohibition on the appointment of a Minister.
Mr. Andhyarujina, while submitting about the absence of an eXpress constitutional prohibition or a
statutory bar founded on the basis of the 1951 Act prescribing conviction, has also submitted that
despite the absence of a legal prohibition, there are non-legal requirements of a constitutional
behavior implicit in the character of an appointment. He has referred to a passage from
Constitutional and Administrative Law by ECS Wade and AW Bradley as well as the Constitutional
Debates and urged that a convention should be developed that persons facing charge for serious
criminal offences should not be considered for appointment as a Minister, but the Court cannot
form a legal basis for adding a prohibition for making such an appointment justiciable in the court
of law unless there is a constitutional prohibition or a statutory bar.

Mr. K. Parasaran, learned senior counsel, who was also requested to render assistance, has
submitted that the area of election in a democratic set-up is governed by the 1951 Act and the rules
framed thereunder and in the present mosaic of democracy such a controversy, in the absence of
constitutional impediment or statutory prohibition, would not come within the parameters of
judicial review. It is his proponement that the Prime Minister, in certain circumstances, regard
being had to the political situations, may have certain political compulsions to appoint a Minister so
that the frequent elections are avoided. It is his submission that any kind of additional prohibition
under Article 75(1) by way of judicial interpretation is impermissible as the Prime Minister is the
sole repository of power under the Constitution to advise the President as to who should become a
Minister if he is otherwise constitutionally eligible and there is no statutory impediment. Learned
senior counsel would contend that the 1951 Act includes certain offences and specifies the stage, i.e.,
conviction and, therefore, if anything is added to it in respect of the stage, it would be travelling
beyond the teXt which would be contrary to the principles of statutory interpretation.
Mr. Parasaran, learned amicus curiae, has drawn a distinction between the two concepts, namely,
constitutional morality and constitutional propriety on one hand and ethical acceptability on the
other and, in that regard, he has submitted that the advice of the Prime Minister, as has been stated
by the framers of the Constitution, to the Head of the EXecutive for appointment of a Minister
should conform to the standards of constitutional morality, regard being had to the constitutional
norms, democratic polity and the sanctity of democracy. In essence, the submission of Mr.
Parasaran is that the framers of the Constitution have bestowed immense trust on the Prime
Minister as would be seen from the Constitutional Debates, and, therefore, this Court should
reiterate the principle of constitutional trust and that would be a suggestive one in terms of Article
75(1) of the Constitution.
Mr. Paras Kuhad, learned Additional Solicitor General, in his turn, has contended that the doctrine
of implied limitation has not been accepted in Kesavananda Bharati case by the majority of Judges
and, therefore, the interpretation put forth by the learned friend of the Court for the petitioner is
impermissible. It is urged by him that while interpreting Article 75(1) of the Constitution, the
principle of implied limitation cannot be read into it to curtail the power of a high constitutional
functionary like the Prime Minister.
It is his further submission that in the absence of a constitutional prohibition or restriction, nothing
should be engrafted into it or implanted. It is put forth by him that the submission of learned amicus
curiae to the effect that the President can e X ercise his discretion by not accepting the
recommendations of the Prime Minister or by not acting on the advice of the Prime Minister is
contrary to the constitutional norms and the parliamentary system prevalent in our country under
the Constitution. For the aforesaid purpose, he has placed reliance on the decision in U.N.R. Rao v.
Smt. Indira Gandhi[26]. It is urged by him that if anything is added to Article 75(1), that would
tantamount to incorporating a disqualification which is not present and the principle of judicial
review does not conceptually so permit, for such a disqualification could have been easily imposed
by the framers of the Constitution or by the Parliament by making a provision under the 1951 Act.
To bolster the said submission, he has commended us to the Constitution Bench decision in G.
Narayanaswami v. G. Pannerselvam and others[27] and a three-Judge Bench decision in Shrikant v.

Vasantrao and others[28]. The choice of the Prime Minister is binding on the President and a
Minister holds the office till he enjoys the confidence of the House. Learned Additional Solicitor
General, for the said purpose, has drawn inspiration from certain passages from Samsher Singh
(supra).
It is his further submission that if the stage of framing of charge of any offence is introduced, it
would frustrate and, eventually, defeat the established concept of criminal jurisprudence that an
accused is presumed to be innocent till he is proved to be guilty and there is indeed a long distance
between the accused may have committed the offence and must have committed the offence which
must be traversed by the prosecution by adducing reliable and cogent evidence. In this regard,
reliance has been placed on Narendra Singh v. State of M.P.[29], Ranjitsing Brahmajeetsing Sharma
v. State of Maharashtra[30], S. Ganesan v. Rama Ranghuraman[31], State of U.P. v. Naresh[32] and
Kailash Gour & ors. v. State of Assam[33]. Learned counsel would suggest that the stage would
affect the concept of democratic legitimacy and a person cannot become ineligible on the basis of
perceived seriousness of the crime without providing a protection despite the person being
otherwise eligible, efficient and capable of being chosen as a Minister by the Prime Minister.
CONSTITUTIONAL PROVISIONS Having regard to the aforesaid submissions which have been put
forth from various perspectives, we shall proceed to deal with the ambit and scope of the
constitutional provisions which are relevant in the present conte X t and how they are to be
interpreted on the parameters of constitutional interpretation and on the bedrock of the precedents
of this Court. We think it seemly to refer to the relevant Articles of the Constitution which are
centripodal to the controversy. Articles 74 and 75 read as follows: -
74. (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise
the President who shall, in the eXercise of his functions, act in accordance with such advice:
Provided that the President may require the Council of Ministers to reconsider such advice, either
generally or otherwise, and the President shall act in accordance with the advice tendered after such
reconsideration.
(2) The question whether any, and if so what, advice was tendered by Ministers to the President
75. (1) The Prime Minister shall be appointed by the President and the other Ministers shall be
appointed by the President on the advice of the Prime Minister.
(1A) The total number of Ministers, including the Prime Minister, in the Council of Ministers shall
not eXceed fifteen per cent of the total number of members of the House of the People.
(1B) A member of either House of Parliament belonging to any political party who is disqualified for
being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to
be appointed as a Minister under clause (1) for duration of the period commencing from the date of
his disqualification till the date on which the term of his office as such member would eXpire or

where he contests any election to either House of Parliament before the eXpiry of such period, till the
date on which he is declared elected, whichever is earlier.
(2) The Ministers shall hold office during the pleasure of the President.
(3) The Council of Ministers shall be collectively responsible to the House of the People.
(4) Before a Minister enters upon his office, the President shall administer to him the oaths of office
(5) A Minister who for any period of siX consecutive months is not a member of either House of
Parliament shall at the eXpiration of that period cease to be a Minister.
(6) The salaries and allowances of Ministers shall be such as Parliament may from time to time by
law determine and, until Parliament so determines, shall be as specified in the Second Schedule.
From the aforesaid Articles, it is vivid that they deal with the Council of Ministers for the Union of
India.
Article 163 pertains to the Council of Ministers of State who aid and advise the Governor. It reads as
follows:-
163. (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise
the Governor in the eXercise of his functions, eXcept in so far as he is by or under this Constitution
required to eXercise his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as respects which the Governor is
by or under this Constitution required to act in his discretion, the decision of the Governor in his
discretion shall be final, and the validity of anything done by the Governor shall not be called in
question on the ground that he ought or ought not to have acted in his discretion.
(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor
The relevant part of Article 164 is eXtracted below: -
164. (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be
appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office
during the pleasure of the Governor:
XXX XXX XXX (2) The Council of Ministers shall be collectively responsible to the Legislative
Assembly of the State.

the State shall at the eXpiration of that period cease to be a Minister. At this juncture, it is apt to
refer to the nature of oath which is meant for the office of a Minister. The Third Schedule provides
the forms of Oaths or Affirmations of the Constitution: -
Form of oath of office for a Minister for the Union: -
that I will faithfully and conscientiously discharge my duties as a Minister for the Union and that I
will do right to all manner of people in accordance with the Constitution and the law, without fear or
favour, affection or ill-will. The Form of Oath for office of a Minister of State is as follows: -
that I will faithfully and conscientiously discharge my duties as a Minister for the State of and
that I will do right to all manner of people in accordance with the Constitution and the law without
fear or favour, affection or ill-will. The form of oath of secrecy for a Minister for the Union is as
follows: -
I, A.B., do swear in the name of God/solemnly affirm that I will not directly or indirectly
communicate or reveal to any person or persons any matter which shall be brought under my
consideration or shall become known to me as a Minister for the Union eXcept as may be required
for the due discharge of my duties as such Minister. Similar is the oath of secrecy for a Minister for a
State. We have reproduced the forms pertaining to oath as Mr. Dwivedi stressed on the concept of
sanctity of oath that pertains to allegiance to the Constitution, performing of duties without fear or
favour and maintenance of secrecy. It is urged by him that a person with criminal antecedents
taking such an oath would violate the fundamental values enshrined in the Constitution.
DOCTRINE OF IMPLIED LIMITATION It has been highlighted before us by Mr. Dwivedi, as noted
earlier, that regard being had to the nature of office a Minister holds in a democratic set-up under
the Constitution, persons with criminal antecedents especially charged for heinous and serious
offences cannot and should not hold the said office. He has emphatically put forth that apart from
the prohibitions contained in Articles 102 and 179 of the Constitution and the conviction under the
1951 Act, the relevant stage in trial needs to be introduced to the phraseology of Article 75(1) as well
as Article 164(1) so that the Prime Ministers authority to give advice has to be restricted to the
eXtent not to advise a person with criminal antecedents to become a Minister. To substantiate the
said view, he has taken aid of the doctrine of implied limitation. In Kesavananda Bharatis case,
Sikri, CJ, while eXpressing his view on the doctrine of implied limitation, has observed that in a
written Constitution, it is rarely that everything is said e Xpressly. Powers and limitations are implied
from necessity or the scheme of the Constitution. He has further held: -
282. It seems to me that reading the Preamble the fundamental importance of the freedom of the
individual, indeed its inalienability, and the importance of the economic, social and political justice

mentioned in the Preamble, the importance of directive principles, the non-inclusion in Article 368
of provisions like Articles 52, 53 and various other provisions to [pic]which reference has already
been made an irresistible conclusion emerges that it was not the intention to use the word
amendment in the widest sense.
283. It was the common understanding that fundamental rights would remain in substance as they
are and they would not be amended out of e X istence. It seems also to have been a common
understanding that the fundamental features of the Constitution, namely, secularism, democracy
and the freedom of the individual would always subsist in the welfare state.
284. In view of the above reasons, a necessary implication arises that there are implied limitations
on the power of Parliament that the eXpression amendment of this Constitution has consequently a
limited meaning in our Constitution and not the meaning suggested by the respondents. Shelat and
Grover, JJ., in their opinion, while speaking about the eXecutive power of the President, have
observed that although the eXecutive power of the President is apparently eXpressed in unlimited
terms, an implied limitation has been placed on his power on the ground that he is a formal or
constitutional head of the eXecutive and that the real eXecutive power vests in the Council of
Ministers. The learned Judges arrived at the said conclusion on the basis of the implications of the
Cabinet System of Government so as to constitute an implied limitation on the power of the
President and the Governors. Proceeding further as regards the amending power of the
Constitution, as engrafted under Article 368 of the Constitution, said the learned Judges: -
583. The entire discussion from the point of view of the meaning of the e Xpression amendment as
employed in Article 368 and the limitations which arise by implications leads to the result that the
amending power under Article 368 is neither narrow nor unlimited. On the footing on which we
have proceeded the validity of the 24th Amendment can be sustained if Article 368, as it originally
stood and after the amendment, is read in the way we have read it. The insertion of Articles 13(4)
and 368(3) and the other amendments made will not affect the result, namely, that the power in
Article 368 is wide enough to permit amendment of each and every article of the Constitution by
way of addition, variation or repeal so long as its basic elements are not abrogated or denuded of
their identity. Hegde and Mukherjea, JJ., while discussing about implied limitations, opined thus: -
655. Implied limitations on the powers conferred under a statute constitute a general feature of all
statutes. The position cannot be different in the case of powers conferred under a Constitution. A
grant of power in general terms or even in absolute terms may be qualified by other e Xpress
provisions in the same enactment or may be qualified by the implications of the conte Xt or even by
considerations arising out of what appears to be the general scheme of the statute. And again: -
656. Lord Wright in James v. Commonwealth of Australia[34] stated the law thus:
The question, then, is one of construction, and in the ultimate resort must be determined upon the
actual words used, read not in vacuo but as occurring in a single comple X instrument, in which one
part may throw light on another. The Constitution has been described as the federal compact, and in
the construction must hold a balance between all its parts. Thereafter, the learned Judges proceeded

to state that: -
657. Several of the powers conferred under our Constitution have been held to be subject to implied
limitations though those powers are eXpressed in general terms or even in absolute terms. And
further proceeded to state thus: -
.... though plenary powers of legislation have been conferred on the Parliament and the State
Legislatures in respect of the legislative topics allotted to them, yet this Court has opined that by the
eXercise of that power neither Parliament nor the State Legislatures can delegate to other authorities
their essential legislative functions nor could they invade on the judicial power. These limitations
were spelled out from the nature of the power conferred and from the scheme of the Constitution.
But, it was urged on behalf of the Union and the States that, though there might be implied
limitations on other powers conferred under the Constitution, there cannot be any implied
limitations on the amending power. We see no basis for this distinction. Jaganmohan Reddy, J., in
his separate opinion, concurred with the view eXpressed by Sikri, C.J.
Palekar, J., has opined thus: -
Some more cases like Ranasinghes case[35] Taylor v. Attorney General of Queensland[36]; Mangal
Singh v. Union of India[37], were cited to show that constitutional laws permit implications to be
drawn where necessary. Nobody disputes that proposition. Courts may have to do so where the
implication is necessary to be drawn. After so stating, the learned Judge distinguished the cases by
observing that: -
None of the cases sheds any light on the question with which we are concerned viz. whether an
unambiguous and plenary power to amend the provisions of the Constitution, which included the
Preamble and the fundamental rights, must be frightened by the fact that some superior and
transcendental character has been ascribed to them. And eventually, ruled thus: -
1318. On a consideration, therefore, of the nature of the amending power, the unqualified manner in
which it is given in Article 368 of the Constitution it is impossible to imply any limitations on the
power to amend the fundamental rights. Since there are no limitations e Xpress or implied on the
amending power, it must be conceded that all the Amendments which are in question here must be
deemed to be valid. We cannot question their policy or their wisdom. Chandrachud, J., has observed
that: -
2087. In considering the petitioners argument on inherent limitations, it is well to bear in mind
some of the basic principles of interpretation. Absence of an eXpress prohibition still leaves scope for
the argument that there are implied or inherent limitations on a power, but absence of an e Xpress
prohibition is highly relevant for inferring that there is no implied prohibition. Khanna, J., while
speaking on implied limitation, noted the submission of the learned counsel for the petitioner in the
following terms: - 1444. Learned counsel for the petitioners has addressed us at some length on the
point that even if there are no eXpress limitations on the power of amendment, the same is subject
to implied limitations, also described as inherent limitations. So far as the concept of implied

limitations is concerned, it has two facets. Under the first facet, they are limitations which flow by
necessary implications from eXpress provisions of the Constitution. The second facet postulates
limitations which must be read in the Constitution irrespective of the fact whether they flow from
eXpress provisions or not because they are stated to be based upon certain higher values which are
very dear to the human heart and are generally considered essential traits of civilized e Xistence. It is
also stated that those higher values constitute the spirit and provide the scheme of the Constitution.
This aspect of implied limitations is linked with the e Xistence of natural rights and it is stated that
such rights being of paramount character, no amendment of Constitution can result in their erosion.
Dealing with the same, the learned Judge ruled: -
1446. So far as the first facet is concerned regarding a limitation which flows by necessary
implication from an eXpress provision of the Constitution, the concept derives its force and is
founded upon a principle of interpretation of statutes. In the absence of any compelling reason it
may be said that a constitutional provision is not e Xempt from the operation of such a principle. I
have applied this principle to Article 368 and despite that, I have not been able to discern in the
language of that article or other relevant articles any implied limitation on the power to make
amendment contained in the said article. Be it clarified, in subsequent paragraphs, the learned
Judge eXpressed the view that though the Parliament has been conferred the power of amendment
under Article 368 of the Constitution, yet it cannot be permitted to incorporate an amendment
which would destroy the basic structure or essential feature of the Constitution.
In Minerva Mills Ltd. And Others v. Union of India and Others[38], the Constitution Bench was
dealing with the validity of Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976.
Chandrachud, C.J., speaking for himself, Gupta, Untwalia and Kailasam, JJ., referred to the
majority opinion in Kesavananda Bharati (supra) and referred to the opinion given by Sikri, C.J.,
Shelat and Grover, JJ., Hegde and Mukherjea, JJ., Jaganmohan Reddy, J. and Khanna, J. and
opined thus:-
11. Khanna, J. broadly agreed with the aforesaid views of the si X learned Judges and held that the
word amendment postulated that the Constitution must survive without loss of its identity, which
meant that the basic structure or framework of the Constitution must survive any amendment of the
Constitution. According to the learned Judge, although it was permissible to the Parliament, in
eXercise of its amending power, to effect changes so as to meet the requirements of changing
conditions, it was not permissible to touch the foundation or to alter the basic institutional pattern.
Therefore, the words amendment of the Constitution, in spite of the width of their sweep and in
spite of their amplitude, could not have the effect of empowering the Parliament to destroy or
abrogate the basic structure or framework of the Constitution.
12. The summary of the various judgments in Kesavananda Bharati was signed by nine out of the
thirteen Judges. Paragraph 2 of the summary reads to say that according to the majority, Article 368
does not enable Parliament to alter the basic structure or framework of the Constitution. Whether or
not the summary is a legitimate part of the judgment, or is per incuriam for the scholarly reasons
cited by authors, it is undeniable that it correctly reflects the majority view. Thereafter, the learned
Chief Justice proceeded to state thus:- 16. ...The theme song of the majority decision in

Kesavananda Bharati is: Amend as you may even the solemn document which the founding fathers
have committed to your care, for you know best the needs of your generation. But, the Constitution
is a precious heritage; therefore, you cannot destroy its identity. In B. R. Kapur (supra), the
Constitution Bench, after referring to the decision in Kesavananda Bharti (supra), reproduced
paragraph 16 from Minerva Mills case and opined that since the Constitution had conferred a
limited amending power on Parliament, Parliament could not in the eXercise of that limited power,
enlarge that very power into an absolute power. A limited amending power was one of the basic
features of the Constitution and, therefore, the limitations on that power could not be destroyed. In
other words, Parliament could not, under Article 368, e Xpand its amending power so as to acquire
for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features.
The donee of a limited power could not by the e Xercise of that power convert the limited power into
an unlimited one.
In I.R. Coelho (Dead) by Lrs. v. State of Tamil Nadu[39], the Nine-Judge Bench, while dealing with
the doctrine of implied limitation, ruled thus:-
96. 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 si X 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. From the aforesaid authorities, it is luminescent that the principle of implied limitation is
attracted to the sphere of constitutional interpretation. The question that is required to be posed
here is whether taking recourse to this principle of interpretation, this Court can read a categorical
prohibition to the words contained in Article 75(1) of the Constitution so that the Prime Minister is
constitutionally prohibited to give advice to the President in respect of a person for becoming a
Minister of the Council of Ministers who is facing a criminal trial for a heinous and serious offence
and charges have been framed against him by the trial Judge. Reading such an implied limitation as
a prohibition would tantamount to adding a disqualification at a particular stage of the trial in
relation of a person. This is neither e Xpressly stated nor is impliedly discernible from the provision.
The doctrine of implied limitation was applied to the amending power of the Constitution by the
Parliament on the fundamental foundation that the identity of the original Constitution could not be
amended by taking recourse to the plenary power of amendment under Article 368 of the
Constitution. The essential feature or the basic structure of the doctrine was read into Article 368 to
say that the identity or the framework of the Constitution cannot be destroyed. In Minerva Mills
case, giving eXample, the Court held that by amendment, the Parliament cannot damage the
democratic republican character as has been conceived in the Constitution. Though in Article 368 of
the Constitution there was no eXpress prohibition to amend the constitutional provisions, yet the
Court in the aforesaid two cases ruled that certain features which are basic to the Constitution
cannot be changed by way of amendment. The interpretative process pertained to the word
amendment. Therefore, the concept of implied limitation was read into Article 368 to save the

constitutional integrity and identity. In B.R. Kapurs case, the Constitution Bench ruled that a non-
legislator can be made a Chief Minister or Minister under Article 164(1) only if he has
qualifications for membership of the Legislature prescribed under Article 173 and is not disqualified
from the membership thereof by reason of the disqualifications set out in Article 191. Bharucha, J.
(as his Lordship then was), speaking for the majority, opined that as the second respondent therein
had been convicted for offences punishable under Sections 13(1)(c), 13(1)(d) and 13(2) of the
Prevention of Corruption Act, 1988 and Sections 409 and 120-B of the Indian Penal Code and
sentenced to undergo rigorous imprisonment of three years, she was disqualified under Section 8(4)
of the 1951 Act as the said respondent was disqualified to contest the election. In the said case, she
was sworn in as the Chief Minister by the Governor. This Court was moved in by a writ of quo
warranto that she was not eligible to hold the post of the Chief Minister. A submission was advanced
that it was not open to the Court to read anything into Article 164, for a non-legislator could be
sworn in as the Chief Minister, regardless of the qualifications or disqualifications. The Court placed
reliance on Kesavananda Bharatis case and Minerva Mills case and opined that if a non-legislator is
made a Chief Minister under Article 164, then he must satisfy the qualification for membership of a
legislator as prescribed under Article 173. A specific query was made by the Court that even when
the person recommended, was, to the Governors knowledge, a non-citizen or under-age or lunatic or
discharged insolvent, could he be appointed as a Chief Minister. It was urged that he/she could only
be removed by the vote of no-confidence in the Legislature or at the ne Xt election. Discarding the
same, the Court opined that acceptance of such a submission would invite disaster. The Court
further ruled that when a person is not qualified to become a Member in view of Article 173, he
cannot be appointed as a Chief Minister under Article 164(1). Be it noted, there was disqualification
in the Constitution and under the 1951 Act to become a Member of the State Legislature, and hence,
the Court, appreciating the teXt and conteXt, read the disqualification into Article 164(1) of the
Constitution.
On a studied scrutiny of the ratio of the aforesaid decisions, we are of the convinced opinion that
when there is no disqualification for a person against whom charges have been framed in respect of
heinous or serious offences or offences relating to corruption to contest the election, by
interpretative process, it is difficult to read the prohibition into Article 75(1) or, for that matter, into
Article 164(1) to the powers of the Prime Minister or the Chief Minister in such a manner. That
would come within the criterion of eligibility and would amount to prescribing an eligibility
qualification and adding a disqualification which has not been stipulated in the Constitution. In the
absence of any constitutional prohibition or statutory embargo, such disqualification, in our
considered opinion, cannot be read into Article 75(1) or Article 164(1) of the Constitution.
PRINCIPLE OF CONSTITUTIONAL SILENCE OR ABEYANCE The neXt principle that can be

thought of is constitutional silence or silence of the Constitution or constitutional abeyance. The
said principle is a progressive one and is applied as a recognized advanced constitutional practice. It
has been recognized by the Court to fill up the gaps in respect of certain areas in the interest of
justice and larger public interest. Liberalization of the concept of locus standi for the purpose of
development of Public Interest Litigation to establish the rights of the have-nots or to prevent
damages and protect environment is one such feature. Similarly, laying down guidelines as
procedural safeguards in the matter of adoption of Indian children by foreigners in the case of

Laxmi Kant Pandey v. Union of India[40] or issuance of guidelines pertaining to arrest in the case of
D.K. Basu v. State of West Bengal[41] or directions issued in Vishakha and others v. State of
Rajasthan and others[42] are some of the instances.
In this conteXt, it is profitable to refer to the authority in Bhanumati and others v. State of Uttar
Pradesh through its Principal Secretary and others[43] wherein this Court was dealing with the
constitutional validity of the U.P. Panchayat Laws (Amendment) Act, 2007. One of the grounds for
challenge was that there is no concept of no-confidence motion in the detailed constitutional
provision under Part IX of the Constitution and, therefore, the incorporation of the said provision in
the statute militates against the principles of Panchayati Raj institutions. That apart, reduction of
one year in place of two years in Sections 15 and 28 of the Amendment Act was sought to be struck
down as the said provision diluted the principle of stability and continuity which is the main
purpose behind the object and reason of the constitutional amendment in Part IX of the
Constitution. The Court, after referring to Articles 243-A, 243-C(1), (5), 243-D(4), 243-D(6), 243-
F(1), (6), 243-G, 243-H, 243-I(2), 243-J, 243-K(2) and (4) of the Constitution and further
taking note of the amendment, came to hold that the statutory provision of no-confidence is
contrary to Part- IX of the Constitution. In that conteXt, it has been held as follows: -
49. Apart from the aforesaid reasons, the arguments by the appellants cannot be accepted in view of
a very well-known constitutional doctrine, namely, the constitutional doctrine of silence. Michael
Foley in his treatise on The Silence of Constitutions (Routledge, London and New York) has argued
that in a Constitution abeyances are valuable, therefore, not in spite of their obscurity but because of
it. They are significant for the attitudes and approaches to the Constitution that they evoke, rather
than the content or substance of their strictures. (P. 10)
50. The learned author elaborated this concept further by saying, Despite the absence of any
documentary or material form, these abeyances are real and are an integral part of any Constitution.
What remains unwritten and indeterminate can be just as much responsible for the operational
character and restraining quality of a Constitution as its more tangible and codified components. (P.
82) The question that is to be posed here is whether taking recourse to this doctrine for the purpose
of advancing constitutional culture, can a court read a disqualification to the already e Xpressed
disqualifications provided under the Constitution and the 1951 Act. The answer has to be in the
inevitable negative, for there are eXpress provisions stating the disqualifications and second, it
would tantamount to crossing the boundaries of judicial review.
DOCTRINE OF CONSTITUTIONAL IMPLICATIONS The neXt principle that we intend to discuss is

the principle of constitutional implication. We are obliged to discuss this principle as Mr. Dwivedi,
learned amicus curiae, has put immense emphasis on the words on the advice of the Prime Minister
occurring in Article 75(1) of the Constitution. It is his submission that these words are of immense
significance and apposite meaning from the said words is required to be deduced to the effect that
the Prime Minister is not constitutionally allowed to advise the President to make a person against
whom charge has been framed for heinous or serious offences or offences pertaining to corruption
as Minister in the Council of Ministers, regard being had to the sacrosanctity of the office and the
oath prescribed under the Constitution. Learned senior counsel would submit that on many an

occasion, this Court has eXpanded the horizon inherent in various Articles by applying the doctrine
of implication based on the constitutional scheme and the language employed in other provisions of
the Constitution.
In this regard, inclusion of many a facet within the ambit of Article 21 is well established. In R.
Rajagopal alias R.R. Gopal and another v. State of T.N. and others[44], right to privacy has been
inferred from Article 21. Similarly, in Joginder Kumar v. State of U.P. and others[45], inherent
rights under Articles 21 and 22 have been stated. Likewise, while dealing with freedom of speech
and eXpression and freedom of press, the Court, in Romesh Thappar v. The State of Madras[46], has
observed that freedom of speech and eXpression includes freedom of propagation of ideas.
There is no speck of doubt that the Court has applied the doctrine of implication to e Xpand the
constitutional concepts, but the conte Xt in which the horizon has been e Xpanded has to be borne in
mind. What is suggested by Mr. Dwivedi is that by taking recourse to the said principle, the words
employed in Article 75(1) are to be interpreted to add a stage in the disqualification, i.e., framing of
charges in serious and heinous criminal offences or offences relating to corruption. At this juncture,
it is seemly to state that the principle of implication is fundamentally founded on rational inference
of an idea from the words used in the teXt. The concept of legitimate deduction is always recognised.
In Melbourne Corporation v Commonwealth[47], Di Xon, J opined that constitutional implication
should be based on considerations which are compelling. Mason, CJ, in Political Advertising
Case[48], has ruled that there can be structural implications which are logically or practically
necessary for the preservation of the integrity of that structure. Any proposition that is arrived at
taking this route of interpretation must find some resting pillar or strength on the basis of certain
words in the teXt or the scheme of the teXt. In the absence of that, it may not be permissible for a
Court to deduce any proposition as that would defeat the legitimacy of reasoning. A proposition can
be established by reading number of articles cohesively, for that will be in the domain of substantive
legitimacy.
DiXon, J, in Australian National Airways Pty Ltd. v Commonwealth[49], said: I do not see why we
should be fearful about making implications. The said principle has been approved in Lamshed v
Lake[50], and thereafter, in Payroll Tax Case[51]. Thus, the said principle can be taken aid of for the
purpose of interpreting constitutional provision in an eXpansive manner. But, it has its own
limitations. The interpretation has to have a base in the Constitution. The Court cannot re-write a
constitutional provision. In this conte Xt, we may fruitfully refer to Kuldip Nayars case wherein the
Court repelled the contention that a right to vote invariably carries an implied term, i.e., the right to
vote in secrecy. The Court observed that where the Constitution thought it fit to do so, it has itself
provided for elections by secret ballot e.g., in the case of election of the President of India and the
Vice-President of India. Thereafter, the Court referred to Articles 55(3) and 66(1) of the Constitution
which provide for elections of the President and the Vice-President respectively, referring to voting
by electoral colleges, consisting of elected Members of Parliament and Legislative Assembly of each
State for the purposes of the former office and Members of both Houses of Parliament for the latter
office and in both cases, it was felt necessary by the framers of the Constitution to provide that the
voting at such elections shall be by secret ballot through inclusion of the words and the voting at
such election shall be by secret ballot. If the right to vote by itself implies or postulates voting in

secrecy, then Articles 55(3) and 66(1) would not have required the inclusion of such words. The
necessity for including the said condition in the said articles shows that secret ballot is not always
implied. It is not incorporated in the concept of voting by necessary implication. Thereafter, the
Court opined: -
421. It follows that for secret ballot to be the norm, it must be e Xpressly so provided. To read into
Article 80(4) the requirement of a secret ballot would be to read the words and the voting at such
election shall be by secret ballot into the provision. To do so would be against every principle of
constitutional and statutory construction. Thus analysed, it is not possible to accept the submission
of Mr. Dwivedi that while interpreting the words advice of the Prime Minister it can legitimately be
inferred that there is a prohibition to think of a person as a Minister if charges have been framed
against him in respect of heinous and serious offences including corruption cases under the criminal
law.
OTHER RELEVANT CONSTITUTIONAL CONCEPTS CONSTITUTIONAL MORALITY, GOOD

GOVERNANCE AND CONSTITUTIONAL TRUST Though we have not accepted the inspired
arguments of Mr. Dwivedi to add a disqualification pertaining to the stage into Article 75(1) of the
Constitution, yet we cannot be oblivious of the three concepts, namely, constitutional morality, good
governance and constitutional trust.
The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a

Constitution made for a progressive society. Working of such a Constitution depends upon the
prevalent atmosphere and conditions. Dr. Ambedkar had, throughout the Debate, felt that the
Constitution can live and grow on the bedrock of constitutional morality. Speaking on the same, he
said: -
Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our
people are yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is
essentially undemocratic.[52] The principle of constitutional morality basically means to bow down
to the norms of the Constitution and not to act in a manner which would become violative of the rule
of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a
laser beam in institution building. The traditions and conventions have to grow to sustain the value
of such a morality. The democratic values survive and become successful where the people at large
and the persons-in-charge of the institution are strictly guided by the constitutional parameters
without paving the path of deviancy and reflecting in action the primary concern to maintain
institutional integrity and the requisite constitutional restraints. Commitment to the Constitution is
a facet of constitutional morality. In this conte X t, the following passage would be apt to be
reproduced: -
If men were angels, no government would be necessary. If angels were to govern men, neither
eXternal nor internal controls on government would be necessary. In framing a government which is
to be administered by men over men, the great difficulty lies in this: you must first enable the
government to control the governed; and in the neXt place oblige it to control itself. A dependence
on the people is, no doubt, the primary control on the government; but eXperience has taught

mankind the necessity of au Xiliary precautions.[53] Regard being had to the aforesaid concept, it
would not be out of place to state that institutional respectability and adoption of precautions for the
sustenance of constitutional values would include reverence for the constitutional structure. It is
always profitable to remember the famous line of Laurence H. Tribe that a Constitution is written in
blood, rather than ink[54].
GOOD GOVERNANCE Having stated about the aspect of constitutional morality, we presently
proceed to deal with the doctrine of good governance. In A. Abdul Farook v. Municipal Council,
Perambalur and others[55], the Court observed that the doctrine of good governance requires the
Government to rise above their political interest and act only in the public interest and for the
welfare of its people.
In Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh and Ors.[56], the Court, referring to
the object of the provisions relating to corrupt practices, elucidated as follows:
Clean, efficient and benevolent administration are the essential features of good governance which
in turn depends upon persons of competency and good character. In M.J. Shivani and others v. State
of Karnataka and others[57], it has been held that fair play and natural justice are part of fair public
administration; non-arbitrariness and absence of discrimination are hall marks for good
governance under the rule of law. In State of Maharashtra and others v. Jalgaon Municipal
Corporation and others[58], it has been ruled that one of the principles of good governance in a
democratic society is that smaller interest must always give way to larger public interest in case of
conflict. In U.P. Power Corporation Ltd. and Anr. v. Sant Steels & Alloys (P) Ltd. and Ors.[59], the
Court observed that in this 21st century, when there is global economy, the question of faith is very
important.
In a democracy, the citizens legitimately eXpect that the Government of the day would treat the
public interest as primary one and any other interest secondary. The maxim Salus Populi Suprema
LeX, has not only to be kept in view but also has to be revered. The faith of the people is embedded
in the root of the idea of good governance which means reverence for citizenry rights, respect for
Fundamental Rights and statutory rights in any governmental action, deference for unwritten
constitutional values, veneration for institutional integrity, and inculcation of accountability to the
collective at large. It also conveys that the decisions are taken by the decision making authority with
solemn sincerity and policies are framed keeping in view the welfare of the people, and including all
in a homogeneous compartment. The concept of good governance is not an Utopian conception or
an abstraction. It has been the demand of the polity wherever democracy is nourished. The growth
of democracy is dependant upon good governance in reality and the aspiration of the people
basically is that the administration is carried out by people with responsibility with service
orientation.
CONSTITUTIONAL TRUST Having stated about good governance, we shall proceed to deal with the
doctrine of constitutional trust. The issue of constitutional trust arises in the conte Xt of the debate in
the Constituent Assembly that had taken place pertaining to the recommendation for appointment
of a Minister to the Council of Ministers. Responding to the proposal for the amendment suggested

by Prof. K.T. Shah with regard to the introduction of a disqualification of a convicted person
becoming a Minister, Dr. B.R. Ambedkar had replied: -
His last proposition is that no person who is convicted may be appointed a Minister of the State.
Well, so far as his intention is concerned, it is no doubt very laudable and I do not think any
Member of this House would like to differ from him on that proposition. But the whole question is
this whether we should introduce all these qualifications and disqualifications in the Constitution
itself. Is it not desirable, is it not sufficient that we should trust the Prime Minister, the Legislature
and the public at large watching the actions of the Ministers and the actions of the Legislature to see
that no such infamous thing is done by either of them? I think this is a case which may eminently be
left to the good-sense of the Prime Minister and to the good sense of the Legislature with the general
public holding a watching brief upon them. I therefore say that these amendments are unnecessary.
[Emphasis supplied] The trust reposed in the Prime Minister is based on his constitutional status. In
Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab[60], B.K. Mukherjea, CJ, while
referring to the scope of Article 74, observed that under Article 53(1) of the Constitution, the
eXecutive power of the Union is vested in the President but under Article 74, there is to be a Council
of Ministers with the Prime Minister at the head to aid and advise the President in the e Xercise of his
functions. The President has, thus been, made a formal or constitutional head of the e Xecutive and
the real eXecutive powers are vested in the Ministers or the Cabinet.
In Samsher Singh (supra), Ray, CJ, speaking for the majority, opined that the President as well as
the Governor is the constitutional or the formal head and eXercise the power and functions
conferred on them by or under the Constitution on the aid and advice of the Council of Ministers,
save in spheres where the Governor is required by or under the Constitution to eXercise his
functions in his discretion. The learned Chief Justice further observed that the satisfaction of the
President or the Governor in the constitutional sense in the Cabinet system of Government is really
the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor
generally eXercises his powers and functions and, thereafter, it has been held that they are required
to act with the aid and advice of the Council of Ministers and are not required by the Constitution to
act personally without the aid and advice. Krishna Iyer, J., speaking for himself and Bhagwati,J.,
opined that under the Constitution, the President and Governor, custodian of all e Xecutive and other
powers under various Articles, are to eXercise their formal constitutional powers only upon and in
accordance with the due advice of their Ministers, save in few well-known eXceptional situations.
The learned Judge has carved out certain eXceptions with which we are really presently not
concerned with.
In Supreme Court Advocates-on-Record Association and another v. Union of India[61], while

discussing about constitutional functions, the Court observed that it is a constitutional requirement
that the person who is appointed as Prime Minister by the President is the effective head of the
Government and the other Ministers are appointed by the President on the advice of the Prime
Minister and both the Prime Minister and the Ministers must continuously have the confidence of
the House of the People, individually and collectively. The Court further observed that the powers of
the President are eXercised by him on the advice of the Prime Minister and the Council of Ministers
which means that the said powers are effectively eXercised by the Council of Ministers headed by the

Prime Minister.
We have referred to these authorities singularly for the purpose that the Prime Minister has been
conferred an eXtremely special status under the Constitution.
As the Prime Minister is the effective head of the Government, indubitably, he has enormous
constitutional responsibility. The decisions are taken by the Council of Ministers headed by the
Prime Minister and that is the Cabinet form of Government and our Constitution has adopted it.
While discussing about the successful working of the Cabinet form of Government, H.M. Seervai,
the eminent author of Constitutional Law[62], observed: -
But as long as the political atmosphere remains what it is, the Constitution cannot be worked as it
was intended to be worked. It has been said that the constitution confers power, but it does not
guarantee that the power would be wisely e Xercised. It can be said equally that the Constitution
confers power but it gives no guarantee that it will be worked by men of high character, capacity and
integrity. If the Constitution is to be successfully worked, an attempt must be made to improve the
political atmosphere and to lay down and enforce standards of conduct required for a successful
working of our Constitution. [Emphasis added] In Constitutional and Administrative Law[63], the
learned authors while dealing with individual responsibility of Ministers, have said:-
3. THE INIDIVIDUAL RESPONSIBILITY OF MINISTERS The individual responsibility of ministers

illustrates further Professor Munros continuum theory. Ministers are individually accountable for
their own private conduct, the general running of their departments and acts done, or omitted to be
done, by their civil servants; responsibility in the first two cases is clearer than in others. A minister
involved in seXual or financial scandals particularly those having implications for national security,
is likely to have to resign because his activities will so attract the attention of the press that he will be
no longer able to carry out departmental duties. In Constitutional & Administrative Law[64], Hilaire
Barnett, while dealing with the conduct of Ministers, referred to the Nolan Committee[65] which
had endorsed the view that:-
public is entitled to eXpect very high standards of behaviour from ministers, as they have profound
influence over the daily lives of us all In Constitutional Practice[66], Rodney Brazier has opined:-
...a higher standard of private conduct is required of Ministers than of others in public life, a major
reason for this today being that the popular press and the investigative journalism of its more
serious rivals will make a wayward Ministers continuance in office impossible. Centuries back what
Edmund Burke had said needs to be recapitulated: -
All persons possessing a position of power ought to be strongly and awfully impressed with an idea
that they act in trust and are to account for their conduct in that trust to the one great Master,
Author and Founder of Society. This Court, in re Art. 143, Constitution of India and Delhi Laws Act
(1912)[67], opined that the doctrine of constitutional trust is applicable to our Constitution since it
lays the foundation of representative democracy. The Court further ruled that accordingly, the
Legislature cannot be permitted to abdicate its primary duty, viz. to determine what the law shall be.

Though it was stated in the conteXt of eXercise of legislative power, yet the same has signification in
the present conteXt, for in a representative democracy, the doctrine of constitutional trust has to be
envisaged in every high constitutional functionary.
ANALYSIS OF THE TERM ADVICE UNDER ARTICLE 75 (1) Having dealt with the concepts of
constitutional morality, good governance, constitutional trust and the special status enjoyed by the
Prime Minister under the scheme of the Constitution, we are required to appreciate and interpret
the words on the advice of the Prime Minister in the backdrop of the aforestated concepts. As per
the New Shorter OXford English Dictionary, one of the meanings of the word advice is the way in
which a matter is looked at; opinion; judgment. As per P. Ramanatha Aiyers Law Le Xicon, 2nd
Edition, one of the meanings given to the word advice is counsel given or an opinion e Xpressed as to
the wisdom of future conduct (Abbot L. Dict.). In Webster Comprehensive Dictionary, International
Edition, one of the meanings given to the word advice is encouragement or dissuasion; counsel;
suggestion. Thus, the word advice conveys formation of an opinion. The said formation of an
opinion by the Prime Minister in the conte Xt of Article 75(1) is eXpressed by the use of the said word
because of the trust reposed in the Prime Minister under the Constitution. To put it differently, it is
a constitutional advice. The repose of faith in the Prime Minister by the entire nation under the
Constitution has eXpectations of good governance which is carried on by Ministers of his choice. It is
also eXpected that the persons who are chosen as Ministers do not have criminal antecedents,
especially facing trial in respect of serious or heinous criminal offences or offences pertaining to
corruption. There can be no dispute over the proposition that unless a person is convicted, he is
presumed to be innocent but the presumption of innocence in criminal jurisprudence is something
altogether different, and not to be considered for being chosen as a Minister to the Council of
Ministers because framing of charge in a criminal case is totally another thing. Framing of charge in
a trial has its own significance and consequence. Setting the criminal law into motion by lodging of
an FIR or charge sheet being filed by the investigating agency is in the sphere of investigation.
Framing of charge is a judicial act by an e X perienced judicial mind. As the Debates in the
Constituent Assembly would show, after due deliberation, they thought it appropriate to leave it to
the wisdom of the Prime Minister because of the intrinsic faith in the Prime Minister. At the time of
framing of the Constitution, the debate pertained to conviction. With the change of time, the entire
compleXion in the political arena as well as in other areas has changed. This Court, on number of
occasions, as pointed out hereinbefore, has taken note of the prevalence and continuous growth of
criminalization in politics and the entrenchment of corruption at many a level. In a democracy, the
people never intend to be governed by persons who have criminal antecedents. This is not merely a
hope and aspiration of citizenry but the idea is also engrained in apposite e Xecutive governance. It
would be apt to say that when a country is governed by a Constitution, apart from constitutional
provisions, and principles constitutional morality and trust, certain conventions are adopted and
grown. In Supreme Court Advocates-on-Record Association (supra), the Court reproduced a passage
from K.C. Wheares Book The Statute of Westminster and Dominion Status (fourth edition) and we
quote: -
The definition of conventions may thus be amplified by saying that their purpose is to define the use
of constitutional discretion. To put this in slightly different words, it may be said that conventions
are non-legal rules regulating the way in which legal rules shall be applied. I. Jennings, in The Law

and the Constitution[68], stated that a convention e Xists not only due to its non-enforceability but
also because there is a reason for the rule.
I. Lovehead, in Constitutional Law A Critical Introduction[69], has said that the conventions
provide a moral framework within which the government ministers or the monarch should e Xercise
non-justiciable legal powers and regulate relations between the government and other constitutional
authorities.
In the Constituent Assembly Debates, Dr. Rajendra Prasad, in his speech as President of the
Constituent Assembly, while moving for the adoption of the Constitution of India, had observed: -
Many things which cannot be written in a Constitution are done by conventions. Let me hope that
we shall show those capacities and develop those conventions. CONCLUSION From the aforesaid, it
becomes graphically vivid that the Prime Minister has been regarded as the repository of
constitutional trust. The use of the words on the advice of the Prime Minister cannot be allowed to
operate in a vacuum to lose their significance. There can be no scintilla of doubt that the Prime
Ministers advice is binding on the President for the appointment of a person as a Minister to the
Council of Ministers unless the said person is disqualified under the Constitution to contest the
election or under the 1951 Act, as has been held in B.R. Kapurs case. That is in the realm of
disqualification. But, a pregnant one, the trust reposed in a high constitutional functionary like the
Prime Minister under the Constitution does not end there. That the Prime Minister would be giving
apposite advice to the President is a legitimate constitutional e Xpectation, for it is a paramount
constitutional concern. In a controlled Constitution like ours, the Prime Minister is e Xpected to act
with constitutional responsibility as a consequence of which the cherished values of democracy and
established norms of good governance get condignly fructified. The framers of the Constitution left
many a thing unwritten by reposing immense trust in the Prime Minister. The scheme of the
Constitution suggests that there has to be an emergence of constitutional governance which would
gradually grow to give rise to constitutional renaissance.
87. It is worthy to note that the Council of Ministers has the collective responsibility to sustain the
integrity and purity of the constitutional structure. That is why the Prime Minister enjoys a great
magnitude of constitutional power. Therefore, the responsibility is more, regard being had to the
instillation of trust, a constitutional one. It is also e Xpected that the Prime Minster should act in the
interest of the national polity of the nation-state. He has to bear in mind that unwarranted elements
or persons who are facing charge in certain category of offences may thwart or hinder the canons of
constitutional morality or principles of good governance and eventually diminish the constitutional
trust. We have already held that prohibition cannot be brought in within the province of advice but
indubitably, the concepts, especially the constitutional trust, can be allowed to be perceived in the
act of such advice.
Thus, while interpreting Article 75(1), definitely a disqualification cannot be added. However, it can
always be legitimately eXpected, regard being had to the role of a Minister in the Council of
Ministers and keeping in view the sanctity of oath he takes, the Prime Minister, while living up to
the trust reposed in him, would consider not choosing a person with criminal antecedents against

whom charges have been framed for heinous or serious criminal offences or charges of corruption to
become a Minister of the Council of Ministers. This is what the Constitution suggests and that is the
constitutional eXpectation from the Prime Minister. Rest has to be left to the wisdom of the Prime
Minister. We say nothing more, nothing less.
At this stage, we must hasten to add what we have said for the Prime Minister is wholly applicable to
the Chief Minister, regard being had to the language employed in Article 164(1) of the Constitution
of India.
Before parting with the case, we must e Xpress our unreserved and uninhibited appreciation for the
assistance rendered by Mr. Rakesh Dwivedi, Mr. Andhyarjina and Mr. Parasaran, learned senior
counsel.
The writ petition is disposed of accordingly without any order as to costs.
........................................C.J.I.
[R.M. Lodha].............................................J.
[Dipak Misra].............................................J.
[S.A. Bobde] New Delhi;
August 27, 2014 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL
JURISDICTION WRIT PETITION (CIVIL) NO. 289 OF 2005 Manoj Narula .Petitioner versus
Union of India Respondent J U D G M E N T Madan B. Lokur, J.
1. While I agree with the draft judgment of my learned brother Justice Dipak Misra, I find it
necessary to eXpress my view on the issues raised.
2. The question in the amended writ petition filed under Article 32 of the Constitution is rather
narrow, but the submissions were quite broad- based.
3. Two substantive reliefs have been claimed in the writ petition. The first relief is for a declaration
that the appointment of Respondent Nos. 3 to 7 as Ministers in the Government of India is
unconstitutional. This is based, inter alia, on the averment that these respondents have criminal
antecedents. Subsequently by an order passed on 24th March, 2006 these respondents (along with
respondent No. 2) were deleted from the array of parties since the broad question before this Court
was about the legality of the persons with criminal background and/or charged with offences
involving moral turpitude being appointed as ministers in Central and State Governments.
4. As far as the first substantive relief is concerned, the eXpressions criminal background and
criminal antecedents are eXtremely vague. Nevertheless the legal position on the appointment of a
Minister is discussed hereafter.

5. The second substantive relief is for the framing of possible guidelines for the appointment of a
Minister in the Central or State Government. It is not clear who should frame the possible
guidelines, perhaps this court.
6. As far as this substantive relief is concerned, it is entirely for the appropriate Legislature to decide
whether guidelines are necessary, as prayed for, and the frame of such guidelines. No direction is
required to be given on this subject.
7. For the sake of convenience, reference is made only to the relevant Articles of the Constitution
and the law relating to the appointment and continuance of a Minister in the Central Government.
The discussion, of course, would relate to both a Minister in the Central Government and mutatis
mutandis in the State Government.
Qualifications and disqualifications for being a legislator
8. Article 84 of the Constitution negatively provides the qualification for membership of Parliament.
This Article is quite simple and reads as follows:
84. Qualification for membership of Parliament. - A person shall not be qualified to be chosen to fill
a seat in Parliament unless he
(a) is a citizen of India, and makes and subscribes before some person authorized in that behalf by
Third Schedule;
(b) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of
a seat in the House of the People, not less than twenty-five years of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made
by Parliament.
9. The qualifications postulated by clause (c) of Article 84 have not yet been prescribed by law by
Parliament. In this conteXt, it is worth quoting the President of the Constituent Assembly Dr.
Rajendra Prasad, who said on 26th November, 1949, before formally putting the motion moved by
Dr. Ambedkar to vote, as follows:[70] There are only two regrets which I must share with the
honourable Members. I would have liked to have some qualifications laid down for members of the
Legislatures. It is anomalous that we should insist upon high qualifications for those who administer
or help in administering the law but none for those who made it e Xcept that they are elected. A law
giver requires intellectual equipment but even more than that capacity to take a balanced view of
things to act independently and above all to be true to those fundamental things of life in one word
to have character (Hear, hear). It is not possible to devise any yardstick for measuring the moral
qualities of a man and so long as that is not possible, our Constitution will remain defective. The
other regret is that we have not been able to draw up our first Constitution of a free Bharat in an
Indian language. The difficulties in both cases were practical and proved insurmountable. But that

does not make the regret any the less poignant.
10. Hopefully, Parliament may take action on the views eXpressed by Dr. Rajendra Prasad, the first
President of our Republic.
11. Article 102 provides the disqualifications for membership of either House of Parliament. This
Article too is quite simple and straightforward and reads as follows:
102. Disqualifications for membership. - (1) A person shall be disqualified for being chosen as, and
for being, a member of either House of Parliament
(a) if he holds any office of profit under the Government of India or the Government of any State,
other than an office declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is
under any acknowledgement of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
EXplanation. - For the purposes of this clause a person shall not be deemed to hold an office of profit
under the Government of India or the Government of any State by reason only that he is a Minister
either for the Union or for such State.
(2) A person shall be disqualified for being a member of either House of Parliament if he is so
disqualified under the Tenth Schedule.
12. In S.R. Chaudhuri[71] the following question arose for consideration: Can a non-member, who
fails to get elected during the period of si X consecutive months, after he is appointed as a Minister or
while a Minister has ceased to be a legislator, be reappointed as a Minister, without being elected to
the Legislature after the eXpiry of the period of siX consecutive months? This question arose in the
conteXt of Article 164 of the Constitution[72] and is mentioned here since one of the issues raised
during submissions related to the permissibility of reading implied limitations in the Constitution. It
was submitted that implied limitations can be read into the Constitution and this is an appropriate
case in which this Court should read an implied limitation in the appointment of a Minister in the
Government of India, the implied limitation being that a person with criminal antecedents or a
criminal background should not be appointed a Minister.
13. In S.R. Chaudhuri this Court eXamined the law in England, Canada and Australia and by reading
an implied limitation, answered the question in the negative. It was held that a non-elected person
may be appointed as a Minister, but only for a period of si X months. During that period the Minister

would either have to get elected to the Legislature or quit his or her position. That person cannot
again be appointed as a Minister unless elected. It was said:
32. Thus, we find from the positions prevailing in England, Australia and Canada that the essentials
of a system of representative government, like the one we have in our country, are that invariably all
Ministers are chosen out of the members of the Legislature and only in rare cases, a non- member is
appointed as a Minister, who must get himself returned to the Legislature by direct or indirect
election within a short period. He cannot be permitted to continue in office indefinitely unless he
gets elected in the meanwhile. The scheme of Article 164 of the Constitution is no different, e Xcept
that the period of grace during which the non-member may get elected has been fi Xed as siX
consecutive months, from the date of his appointment. (In Canada he must get elected quickly and
in Australia, within three months.) The framers of the Constitution did not visualise that a
non-legislator can be repeatedly appointed as a Minister for a term of si X months each time, without
getting elected because such a course strikes at the very root of parliamentary democracy. According
to learned counsel for the respondent, there is no bar to this course being adopted on the plain
language of the article, which does not e Xpressly prohibit reappointment of the Minister, without
being elected, even repeatedly, during the term of the same Legislative Assembly. We cannot
persuade ourselves to agree.
33. Constitutional provisions are required to be understood and interpreted with an object-oriented
approach. A Constitution must not be construed in a narrow and pedantic sense. The words used
may be general in terms but, their full import and true meaning, has to be appreciated considering
the true conteXt in which the same are used and the purpose which they seek to achieve. Debates in
the Constituent Assembly referred to in an earlier part of this judgment clearly indicate that a non-
members inclusion in the Cabinet was considered to be a privilege that e Xtends only for siX months,
during which period the member must get elected, otherwise he would cease to be a Minister. It is a
settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a
constitutional provision because it is the function of the court to find out the intention of the framers
of the Constitution. We must remember that a Constitution is not just a document in solemn form,
but a living framework for the Government of the people e Xhibiting a sufficient degree of cohesion
and its successful working depends upon the democratic spirit underlying it being respected in letter
and in spirit. The debates clearly indicate the privilege to eXtend only for siX months.
14. An implied limitation in the Constitution was also read in B. R. Kapur.[73] In that case, the
second respondent was not even eligible to become a legislator (having earned a disqualification
under Section 8 of the Representation of the People Act, 1951) and therefore the question of getting
elected to the State Legislature did not arise. Nevertheless, having been projected as the Chief
Ministerial nominee of the political party that obtained a majority in the elections, she was elected
as its leader and appointed as the Chief Minister of the State. The question before this Court was:
Whether a person who has been convicted of a criminal offence and whose conviction has not been
suspended pending appeal can be sworn in and can continue to function as the Chief Minister of a
State. Reliance was placed on the plain language of Article 164 of the Constitution.

15. Answering the question in the negative, this Court held in paragraph 30 of the Report:
We hold, therefore, that a non-legislator can be made a Chief Minister or Minister under Article 164
only if he has the qualifications for membership of the Legislature prescribed by Article 173 and is
not disqualified from the membership thereof by reason of the disqualifications set out in Article
191.
16. This was reiterated by this Court in paragraph 45 of the Report in the following words:
Our conclusion, therefore, is that on the date on which the second respondent was sworn in as Chief
Minister she was disqualified, by reason of her convictions under the Prevention of Corruption Act
and the sentences of imprisonment of not less than two years, for becoming a member of the
Legislature under Section 8(3) of the Representation of the People Act.
17. Finally, in paragraphs 50 and 51 of the Report, this Court held: We are in no doubt at all that if
the Governor is asked by the majority party in the Legislature to appoint as the Chief Minister a
person who is not qualified to be a member of the Legislature or who is disqualified to be such, the
Governor must, having due regard to the Constitution and the laws, to which he is subject, decline,
and the eXercise of discretion by him in this regard cannot be called in question.
51. If perchance, for whatever reason, the Governor does appoint as Chief Minister a person who is
not qualified to be a member of the Legislature or who is disqualified to be such, the appointment is
contrary to the provisions of Article 164 of the Constitution, as we have interpreted it, and the
authority of the appointee to hold the appointment can be challenged in quo warranto proceedings.
That the Governor has made the appointment does not give the appointee any higher right to hold
the appointment. If the appointment is contrary to constitutional provisions it will be struck down.
The submission to the contrary - unsupported by any authority - must be rejected.
18. Therefore, two implied limitations were read into the Constitution with regard to the
appointment of an unelected person as a Minister. Firstly, the Minister cannot continue as a
Minister beyond a period of siX months without getting elected, nor can such a person be repeatedly
appointed as a Minister. Secondly, the person should not be under any disqualification for being
appointed as a legislator. If a person is disqualified from being a legislator, he or she cannot be
appointed as a Minister.
19. Implied limitations to the Constitution were also read in B.P. Singhal.[74] In that case, an
implied limitation was read into the pleasure doctrine concerning the removal of the Governor of a
State by the President in terms of Article 156 of the Constitution. It was held that the pleasure
doctrine as originally envisaged in England gave unfettered power to the authority at whose pleasure
a person held an office. However, where the rule of law prevails, the fundamentals of
constitutionalism cannot be ignored, meaning thereby that the pleasure doctrine does not enable an
unfettered discretion to act arbitrarily, whimsically, or capriciously. It does not dispense with the
need for a cause for withdrawal of the pleasure, which can only be for valid reasons.

20. Similarly, in Salil Sabhlok[75] integrity and competence were read as implied in the
appointment of the Chairperson of the State Public Service Commission. It was held in paragraph 45
of the Report as follows: I have already held that it is for the Governor who is the appointing
authority under Article 316 of the Constitution to lay down the procedure for appointment of the
Chairman and Members of the Public Service Commission, but this is not to say that in the absence
of any procedure laid down by the Governor for appointment of Chairman and Members of the
Public Service Commission under Article 316 of the Constitution, the State Government would have
absolute discretion in selecting and appointing any person as the Chairman of the State Public
Service Commission. Even where a procedure has not been laid down by the Governor for
appointment of Chairman and Members of the Public Service Commission, the State Government
has to select only persons with integrity and competence for appointment as Chairman of the Public
Service Commission, because the discretion vested in the State Government under Article 316 of the
Constitution is impliedly limited by the purposes for which the discretion is vested and the purposes
are discernible from the functions of the Public Service Commissions enumerated in Article 320 of
the Constitution. Under clause (1) of Article 320 of the Constitution, the State Public Service
Commission has the duty to conduct e Xaminations for appointments to the services of the State.
Under clause (3) of Article 320, the State Public Service Commission has to be consulted by the
State Government on matters relating to recruitment and appointment to the civil services and civil
posts in the State; on disciplinary matters affecting a person serving under the Government of a
State in a civil capacity; on claims by and in respect of a person who is serving under the State
Government towards costs of defending a legal proceeding; on claims for award of pension in
respect of injuries sustained by a person while serving under the State Government and other
matters. In such matters, the State Public Service Commission is e Xpected to act with independence
from the State Government and with fairness, besides competence and maturity acquired through
knowledge and eXperience of public administration.
21. Thereafter in paragraph 99 of the Report, it was said:
While it is difficult to summarise the indicators laid down by this Court, it is possible to say that the
two most important requirements are that personally the Chairperson of the Public Service
Commission should be beyond reproach and his or her appointment should inspire confidence
among the people in the institution. The first quality can be ascertained through a meaningful
deliberative process, while the second quality can be determined by taking into account the
constitutional, functional and institutional requirements necessary for the appointment.
Conclusions on the first relief
22. Therefore, the position as it stands today is this: To become a Member of Parliament, a person
should possess the qualifications mentioned in Article 84 of the Constitution;
To become a Member of Parliament, a person should not suffer any of the disqualifications
mentioned in Article 102 of the Constitution;
The Constitution does not provide for any limitation in a Member of Parliament becoming a
Minister, but certain implied limitations have been read into the Constitution by decisions rendered

by this Court regarding an unelected person becoming a Minister;
One implied limitation read into the Constitution is that a person not elected to Parliament can
nevertheless be appointed as a Minister for a period of siX months;
Another implied limitation read into the Constitution is that though a person can be appointed as a
Minister for a period of siX months, he or she cannot repeatedly be so appointed;
Yet another implied limitation read into the Constitution is that a person otherwise not qualified to
be elected as a Member of Parliament or disqualified from being so elected cannot be appointed as a
Minister;
In other words, any person, not subject to any disqualification, can be appointed a Minister in the
Central Government.
Given this position in law, is it necessary to read any other implied limitation in the Constitution
concerning the appointment of a person as a Minister in the Government of India, particularly any
implied limitation on the appointment of a person with a criminal background or having criminal
antecedents?
Issue of criminal antecedents
23. The eXpression criminal antecedents or criminal background is eXtremely vague and incapable
of any precise definition. Does it refer to a person accused (but not charged or convicted) of an
offence or a person charged (but not convicted) of an offence or only a person convicted of an
offence? No clear answer was made available to this question, particularly in the conte Xt of the
presumption of innocence that is central to our criminal jurisprudence. Therefore, to say that a
person with criminal antecedents or a criminal background ought not to be elected to the
Legislature or appointed a Minister in the Central Government is really to convey an imprecise view.
24. The law does not hold a person guilty or deem or brand a person as a criminal only because an
allegation is made against that person of having committed a criminal offence be it in the form of an
off-the-cuff allegation or an allegation in the form of a First Information Report or a complaint or an
accusation in a final report under Section 173 of the Criminal Procedure Code or even on charges
being framed by a competent Court. The reason for this is fundamental to criminal jurisprudence,
the rule of law and is quite simple, although it is often forgotten or overlooked a person is innocent
until proven guilty. This would apply to a person accused of one or multiple offences. At law, he or
she is not a criminal that person may stand condemned in the public eye, but even that does not
entitle anyone to brand him or her a criminal.
25. Consequently, merely because a First Information Report is lodged against a person or a
criminal complaint is filed against him or her or even if charges are framed against that person,
there is no bar to that person being elected as a Member of Parliament or being appointed as a
Minister in the Central Government.

26. Parliament has, therefore, in its wisdom, made a distinction between an accused person and a
convict. For the purposes of the election law, an accused person is as much entitled to be elected to
the Legislature as a person not accused of any offence. But, Parliament has taken steps to ensure
that at least some categories of convicted persons are disqualified from being elected to the
Legislature. A statutory disqualification is to be found in Section 8 of the Representation of the
People Act, 1951.[76] The adequacy of the restrictions placed by this provision is arguable. For
eXample, a disqualification under this Section is attracted only if the sentence awarded to a convict
is less than 2 years imprisonment. This raises an issue: What if the offence is heinous (say an
attempt to murder punishable under Section 307 of the Indian Penal Code (IPC) or kidnapping
punishable under Section 363 of the IPC or any other serious offence not attracting a minimum
punishment) and the sentence awarded by the Court is less than 2 years imprisonment. Can such a
convict be a member of a Legislature? The answer is in the affirmative. Can this Court do anything
about this, in the form of framing some guidelines?
27. In Municipal Committee, Patiala[77] this Court referred to Parent of a student of Medical
College[78] and held that legislation is in the domain of the Legislature. It was said:
It is so well settled and needs no restatement at our hands that the legislature is supreme in its own
sphere under the Constitution subject to the limitations provided for in the Constitution itself. It is
for the legislature to decide as to when and in what respect and of what subject- matter the laws are
to be made. It is for the legislature to decide as to the nature of operation of the statutes.
28. More recently, V.K. Naswa[79] referred to a large number of decisions of this Court and held
that the Court cannot legislate or direct the Legislature to enact a law. It was said:
Thus, it is crystal clear that the court has a very limited role and in e Xercise of that, it is not open to
have judicial legislation. Neither the court can legislate, nor has it any competence to issue
directions to the legislature to enact the law in a particular manner.
29. However, a discordant note was struck in Gainda Ram[80] wherein this Court issued a direction
to the Legislature to enact legislation before a particular date. It was so directed in paragraphs 70
and 78 of the Report in the following words:
70. This Court, therefore, disposes of this writ petition and all the IAs filed with a direction that the
problem of hawking and street vending may be regulated by the present schemes framed by NDMC
and MCD up to 30-6-2011. Within that time, the appropriate Government is to legislate and bring
out the law to regulate hawking and hawkers fundamental right. Till such time the grievances of the
hawkers/vendors may be redressed by the internal dispute redressal mechanisms provided in the
schemes.
78. However, before 30-6-2011, the appropriate Government is to enact a law on the basis of the Bill
mentioned above or on the basis of any amendment thereof so that the hawkers may precisely know
the contours of their rights. This Court is giving this direction in e Xercise of its jurisdiction to protect
the fundamental rights of the citizens.[81]

30. The law having been laid down by a larger Bench than in Gainda Ram it is quite clear that the
decision, whether or not Section 8 of the Representation of the People Act, 1951 is to be amended,
rests solely with Parliament.
31. Assuming Parliament does decide to amend Section 8 of the Representation of the People Act,
1951 the content of the amended Section cannot be decided easily. Apart from the difficulty in fi Xing
the quantum of sentence (adverted to above), there are several other imponderables, one of them
being the nature of the offence. It has been pointed out by Rodney Brazier in Is it a constitutional
issue: fitness for ministerial office in the 1990s[82] that there are four categories of offences. The
learned author says:
But four types of crime may be distinguished. First, minor convictions would not count against a
politician's worthiness for office. Minor driving offences, for e Xample, are neither here nor there.
Secondly, and at the other eXtreme, convictions for offences involving moral turpitude would dash
any ministerial career. No one could remain in the Government who had been convicted of any
offence of corruption, dishonesty, serious violence, or seXual misconduct. Thirdly, and most
difficult, are offences the seriousness of which turn on the facts. A conviction for (say) assault, or
driving with eXcess alcohol in the blood, could present a marginal case which would turn on its own
facts. Fourthly, offences committed from a political motive might be condoned. Possibly a person
who had refused to pay the poll tax might be considered fit.
32. Therefore, not only is the quantum of sentence relevant but the nature of the offence that might
disqualify a person from becoming a legislator is equally important. Perhaps it is possible to make
out an eXhaustive list of offences which, if committed and the accused having been found guilty of
committing that offence, can be disqualified from contesting an election. The offences and the
sentence to be awarded for the purpose of disqualifying a person from being elected to a Legislature
are matters that Parliament may like to debate and consider, if at all it is felt necessary. Until then,
we must trust the watchful eye of the people of the country that the elected representative of the
people is worthy of being a legislator. Thereafter we must trust the wisdom of the Prime Minister
and Parliament that the elected representative is worthy of being a Minister in the Central
Government. In this conteXt, it is appropriate to recall the words of Dr. Ambedkar in the Constituent
Assembly on 30th December, 1948. He said:
His [Honble K.T. Shah] last proposition is that no person who is convicted may be appointed a
Minister of the State. Well, so far as his intention is concerned, it is no doubt very laudable and I do
not think any Member of this House would like to differ from him on that proposition. But the
whole question is this whether we should introduce all these qualifications and disqualifications in
the Constitution itself. Is it not desirable, is it not sufficient that we should trust the Prime Minister,
the Legislature and the public at large watching the actions of the Ministers and the actions of the
legislature to see that no such infamous thing is done by either of them? I think this is a case which
may eminently be left to the good-sense of the Prime Minister and to the good sense of the
Legislature with the general public holding a watching brief upon them. I therefore say that these
amendments are unnecessary.[83]

33. That a discussion is needed is evident from the material placed by the learned Additional
Solicitor General. He referred to the 18th Report presented to the Rajya Sabha on 15th March, 2007
by the Department-Related Parliamentary Standing Committee On Personnel, Public Grievances,
Law And Justice on Electoral Reforms (Disqualification Of Persons From Contesting Elections On
Framing Of Charges Against Them For Certain Offences). The Report acknowledges the
criminalization of our polity and the necessity of cleansing the political climate and had this to say:
At the same time, the Committee is deeply conscious of the criminalization of our polity and the fast
erosion of confidence of the people at large in our political process of the day. This will certainly
weaken our democracy and will render the democratic institutions sterile. The Committee therefore
feels that politics should be cleansed of persons with established criminal background. The objective
is to prevent criminalisation of politics and maintain probity in elections. Criminalization of politics
is the bane of society and negation of democracy. But the arguments against the proposal of the
Election Commission are overwhelming. As stated in the foregoing paras the Courts frame charges
even when they are conscious that the case is ultimately bound to fail. Appreciation of evidence at
the stage of framing charges being more or less prohibited, charges are still framed even when the
court is convinced that the prosecution will never succeed. There are many glaring illustrations
which are of common knowledge and any criminal lawyer can multiply instances of such nature.
Hence the proposal can not be accepted in its present form as the country has witnessed in the past
misuse of MISA, TADA, POTA etc.
34. On the issue of criminalization of politics, the learned Additional Solicitor General also referred
to the 244th Report of the Law Commission of India on Electoral Disqualifications presented in
February, 2014. Though the Report concerns itself primarily with the disqualification to be a
member of a Legislature, it does give some interesting statistics about the elected representatives of
the people in the following words: In the current Lok Sabha, 30% or 162 sitting MPs have criminal
cases pending against them, of which about half i.e. 76 have serious criminal cases. Further, the
prevalence of MPs with criminal cases pending has increased over time. In 2004, 24% of Lok Sabha
MPs had criminal cases pending, which increased to 30% in the 2009 elections.
The situation is similar across states with 31% or 1,258 out of 4,032 sitting MLAs with pending
cases, with again about half being serious cases. Some states have a much higher percentage of
MLAs with criminal records: in Uttar Pradesh, 47% of MLAs have criminal cases pending. A number
of MPs and MLAs have been accused of multiple counts of criminal charges. In a constituency of
Uttar Pradesh, for eXample, the MLA has 36 criminal cases pending including 14 cases related to
murder.
From this data it is clear that about one-third of elected candidates at the Parliament and State
Assembly levels in India have some form of criminal taint. Data elsewhere suggests that one-fifth of
MLAs have pending cases which have proceeded to the stage of charges being framed against them
by a court at the time of their election. Even more disturbing is the finding that the percentage of
winners with criminal cases pending is higher than the percentage of candidates without such
backgrounds. While only 12% of candidates with a clean record win on average, 23% of candidates
with some kind of criminal record win. This means that candidates charged with a crime actually
fare better at elections than clean candidates. Probably as a result, candidates with criminal cases

against them tend to be given tickets a second time. Not only do political parties select candidates
with criminal backgrounds, there is evidence to suggest that untainted representatives later become
involved in criminal activities. The incidence of criminalisation of politics is thus pervasive making
its remediation an urgent need. While it may be necessary, due to the criminalization of our polity
and consequently of our politics, to ensure that certain persons do not become Ministers, this is not
possible through guidelines issued by this Court. It is for the electorate to ensure that suitable (not
merely eligible) persons are elected to the Legislature and it is for the Legislature to enact or not
enact a more restrictive law.
Conclusions on the second relief
35. The discussion leads to the following conclusions:
To become a legislator and to continue as a legislator, a person should not suffer any of the
disqualifications mentioned in Section 8 of the Representation of the People Act, 1951;
There does seem to be a gap in Section 8 of the Representation of the People Act, 1951 inasmuch as a
person convicted of a heinous or a serious offence but awarded a sentence of less than two years
imprisonment may still be eligible for being elected as a Member of Parliament;
While a debate is necessary for bringing about a suitable legislation disqualifying a person from
becoming a legislator, there are various factors that need to be taken into consideration;
That there is some degree of criminalization of politics is quite evident;
It is not for this Court to lay down any guidelines relating to who should or should not be entitled to
become a legislator or who should or should not be appointed a Minister in the Central Government;
36. The range of persons who may be elected to a Legislature is very wide and amongst those, who
may be appointed a Minister in the Central Government is also very wide, as mentioned above. Any
legislator or non- legislator can be appointed as a Minister but must quit as soon as he or she earns a
disqualification either under the Constitution or under Section 8 of the Representation of the People
Act, 1951.[84] In B.P. Singhal this Court observed that a Minister is hand-picked member of the
Prime Minister's team. The relationship between the Prime Minister and a Minister is purely
political.
37. In addition to the above, how long a Minister should continue in office is best answered by the
response to a question put to the British Prime Minister John Major who was asked to list the
circumstances which render Ministers unsuitable to retain office. His written reply given to the
House of Commons on 25th January, 1994 was: There can be a variety of circumstances but the
main criterion should be whether the Minister can continue to perform the duties of office
effectively.[85]

38. This being the position, the burden of appointing a suitable person as a Minister in the Central
Government lies entirely on the shoulders of the Prime Minister and may eminently be left to his or
her good sense. This is what our Constitution makers intended, notwithstanding the view e Xpressed
by Shri H.V. Kamath in the debate on 30th December, 1948. He said:
My Friend, Prof. Shah, has just moved amendment No.1300 comprising five sub-clauses. I dare say
neither Dr. Ambedkar nor any of my other honourable Friends in this House will question the
principle which is sought to be embodied in Clause (2E) of amendment No. 1300 moved by Prof.
Shah. I have suggested my amendment No. 46 seeking to delete all the words occurring after the
words "moral turpitude" because I think that bribery and corruption are offences which involve
moral turpitude. I think that moral turpitude covers bribery, corruption and many other cognate
offences as well. Sir, my friends here will, I am sure, agree with me that it will hardly redound to the
credit of any government if that government includes in its fold any minister who has had a shady
past or about whose character or integrity there is any widespread suspicion. I hope that no such
event or occurrence will take place in our country, but some of the recent events have created a little
doubt in my mind. I refer, Sir, to a little comment, a little article, which appeared in the Free Press
Journal of Bombay dated the 8th September 1948 relating to the **** Ministry. The relevant portion
of the article runs thus:
"The Cabinet (the * * * * Cabinet) includes one person who is a convicted black marketeer, and
although it is said that his disabilities, resulting from his conviction in a Court of Law, which
constituted a formidable hurdle in the way of his inclusion in the interim Government, were
graciously removed by the Maharaja."[86]
39. In this respect, the Prime Minister is, of course, answerable to Parliament and is under the gaze
of the watchful eye of the people of the country. Despite the fact that certain limitations can be read
into the Constitution and have been read in the past, the issue of the appointment of a suitable
person as a Minister is not one which enables this Court to read implied limitations in the
Constitution.
Epilogue
40. It is wise to remember the words of Dr. Ambedkar in the Constituent Assembly on 25th
November, 1949. He had this to say about the working of our Constitution:
As much defence as could be offered to the Constitution has been offered by my friends Sir Alladi
Krishnaswami Ayyar and Mr. T.T. Krishnamachari. I shall not therefore enter into the merits of the
Constitution. Because I feel, however good a Constitution may be, it is sure to turn out bad because
those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may
turn out to be good if those who are called to work it, happen to be a good lot. The working of a
Constitution does not depend wholly upon the nature of the Constitution. The Constitution can
provide only the organs of State such as the Legislature, the E Xecutive and the Judiciary. The factors
on which the working of those organs of the State depend are the people and the political parties
they will set up as their instruments to carry out their wishes and their politics. Who can say how the

people of India and their purposes or will they prefer revolutionary methods of achieving them? If
they adopt the revolutionary methods, however good the Constitution may be, it requires no prophet
to say that it will fail. It is, therefore, futile to pass any judgement upon the Constitution without
reference to the part which the people and their parties are likely to play.[87]
41. This sentiment was echoed in the equally memorable words of Dr. Rajendra Prasad on 26th
November, 1949. He had this to say: Whatever the Constitution may or may not provide, the welfare
of the country will depend upon the way in which the country is administered. That will depend
upon the men who administer it. It is a trite saying that a country can have only the Government it
deserves. Our Constitution has provision in it which appear to some to be objectionable from one
point or another. We must admit that the defects are inherent in the situation in the country and the
people at large. If the people who are elected are capable and men of character and integrity, they
would be able to make the best even of a defective Constitution. If they are lacking in these, the
Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It
acquires life because of the men who control it and operate it, and India needs today nothing more
than a set of honest men who will have the interest of the country before them.[88]
42. The writ petition is disposed of but with no order as to costs. It must, however, be stated that all
learned counsels appearing in the case have rendered very useful and able assistance on an issue
troubling our polity.
.....J (Madan B. Lokur) New Delhi;
August 27,
2014
INDIA CIVIL APPELLATE
JURISDICTION

2005
MANOJ NARULA PETITIONER (S)
VERSUS
UNION OF INDIA RESPONDENT (S)
KURIAN, J.:
I agree with the beautiful and erudite e Xposition of law made by my esteemed brother. Yet why to
pen something more, one may naturally ask. The only answer is: in Kerala, there is a saying: when
you make a special tea, even if you add a little more milk, dont reduce even a bit of sugar! The
surviving prayer in the public interest litigation reads as follows:

(c) Issue appropriate writ/writs, order/orders, direction/directions, including the writ of mandamus
and frame possible guidelines, for appointment of Minister for the UOI as well as for the State,
especially, in view of the provisions, terms of schedule III, Article 75(4), 164(3), basic features, aims
and objects of the Constitution etc. as the Honble Court may deem fit and proper for the
perseverance and protection of the Constitution of India in both letters and spirit. Court is the
conscience of the Constitution of India. Conscience is the moral sense of right and wrong of a person
(Ref.: OXford English Dictionary). Right or wrong, for court, not in the ethical sense of morality but
in the constitutional sense. Conscience does not speak to endorse ones good conduct; but when
things go wrong, it always speaks; whether you listen or not. It is a gentle and sweet reminder for
rectitude. That is the function of conscience. When things go wrong constitutionally, unless the
conscience speaks, it is not good conscience; it will be accused of as numb conscience.
One cannot think of the Constitution of India without the preambular principle of democracy and
good governance. Governance is mainly in the hands of the E Xecutive. The eXecutive power of the
Union under Article 53 and that of the States under Article 154 vests in the President of India and
the Governor of the State, respectively. Article 74 for the Union of India and Article 163 for the State
have provided for the Council of Ministers to aid and advise the President or the Governor, as the
case may be. The eXecutive power eXtends to the respective legislative competence.
Before entering office, a Minister has to take oath of office (Article 75/164). In form, e Xcept for the
change in the words Union or particular State, there is no difference in the form of oath. Ministers
take oath to faithfully and conscientiously discharge their duties and . do right to all manner of
people in accordance with Constitution and the law, without fear or favour, affection or ill-will.
Allegiance to the Constitution of India, faithful and conscientious discharge of the duties, doing
right to people and all these without fear or favour, affection or ill-will, carry heavy weight.
Conscientious means wishing to do what is right, relating to a persons conscience (Ref.: Concise
OXford English Dictionary). The simple question is, whether a person who has come in conflict with
law and, in particular, in conflict with law on offences involving moral turpitude and laws specified
by the Parliament under Chapter III of The Representation of the People Act, 1951, would be in a
position to conscientiously and faithfully discharge his duties as Minister and that too, without any
fear or favour?
When does a person come in conflict with law? No quarrel, under criminal jurisprudence, a person
is presumed to be innocent until he is convicted. But is there not a stage when a person is presumed
to be culpable and hence called upon to face trial, on the court framing charges?
Under Section 228 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.PC),
charge is framed by the court only if the Judge (the Magistrate under Section 240 Cr.PC) is of the
opinion that there is ground for presumption that the accused has committed an offence, after
consideration of opinion given by the police under Section 173(2) Cr.PC (challan/police
charge-sheet) and the record of the case and documents. It may be noted that the prosecutor and the
accused person are heard by the court in the process. Is there not a cloud on his innocence at that
stage? Is it not a stage where his integrity is questioned? If so, is it not a stage where the person has

come in conflict with law, and if so, is it desirable in a country governed by rule of law to entrust the
eXecutive power with such a person who is already in conflict with law? Will any reasonably prudent
master leave the keys of his chest with a servant whose integrity is doubted? It may not be altogether
irrelevant to note that a person even of doubtful integrity is not appointed in the important organ of
the State which interprets law and administers justice; then why to speak of questioned integrity!
What to say more, a candidate involved in any criminal case and facing trial, is not appointed in any
civil service because of the alleged criminal antecedents, until acquitted.
Good governance is only in the hands of good men. No doubt, what is good or bad is not for the
court to decide: but the court can always indicate the constitutional ethos on goodness, good
governance and purity in administration and remind the constitutional functionaries to preserve,
protect and promote the same. Those ethos are the unwritten words in our Constitution. However,
as the Constitution makers stated, there is a presumption that the Prime Minister/Chief Minister
would be well advised and guided by such unwritten yet constitutional principles as well. According
to Dr. B. R. Ambedkar, as specifically referred to by my learned brother at pargraph-70 of the
leading judgment, such things were only to be left to the good sense of the Prime Minister, and for
that matter, the Chief Minister of State, since it was e Xpected that the two great constitutional
functionaries would not dare to do any infamous thing by inducting an otherwise unfit person to the
Council of Ministers. It appears, over a period of time, at least in some cases, it was only a story of
great e X pectations. Some of the instances pointed out in the writ petition indicate that Dr.
Ambedkar and other great visionaries in the Constituent Assembly have been bailed out.
Qualification has been wrongly understood as the mere absence of prescribed disqualification.
Hence, it has become the bounden duty of the court to remind the Prime Minister and the Chief
Minister of the State of their duty to act in accordance with the constitutional aspirations. To quote
Dr. Ambedkar:
However, good a Constitution may be, it is sure to turn out bad because those who are called to work
it happen to be a bad lot. However, bad a Constitution may be, it may turn out to be good if those
who are called to work it happen to be a good lot. The working of a Constitution does not depend
wholly upon the nature of the Constitution. Fortunately for us, our Constitution has stood the test of
time and is acclaimed to be one of the best in the world. Problem has been with the other part,
though sporadically. Kautilya, one of the great Indian eXponents of art of government, has dealt with
qualification of king and his councillors at Chapter IX in Arthasastra, said to be compiled between
BC 321-296. To quote relevant portion:
CHAPTER IX THE CREATION OF COUNCILLORS AND PRIESTS NATIVE, born of high family,
influential, well trained in arts, possessed of foresight, wise, of strong memory, bold, eloquent,
skilful, intelligent, possessed of enthusiasm, dignity and endurance, pure in character, affable, firm
in loyal devotion, endowed with e X cellent conduct, strength, health and bravery, free from
procrastination and ficklemindedness, affectionate, and free from such qualities as e Xcite hatred and
enmity-these are the qualifications of a ministerial officer. The attempt made by this court in the
above background history of our country and Constitution is only to plug some of the bleeding
points in the working of our Constitution so that the high constitutional functionaries may work it
well and not wreck it. Beauty of democracy depends on the proper eXercise of duty by those who

work it.
No doubt, it is not for the court to issue any direction to the Prime Minister or the Chief Minister, as
the case may be, as to the manner in which they should e Xercise their power while selecting the
colleagues in the Council of Ministers. That is the constitutional prerogative of those functionaries
who are called upon to preserve, protect and defend the Constitution. But it is the prophetic duty of
this Court to remind the key duty holders about their role in working the Constitution. Hence, I am
of the firm view, that the Prime Minister and the Chief Minister of the State, who themselves have
taken oath to bear true faith and allegiance to the Constitution of India and to discharge their duties
faithfully and conscientiously, will be well advised to consider avoiding any person in the Council of
Ministers, against whom charges have been framed by a criminal court in respect of offences
involving moral turpitude and also offences specifically referred to in Chapter III of The
...J.
(KURIAN JOSEPH) New Delhi;
August 27, 2014.
[1]
AIR 1975 SC 2299

[2] (1995) 4 SCC 611
[3] AIR 2006 SC 3127
[4] (2013) 10 SCC 1
[5] (1978) 1 SCC 405
[6] AIR 1980 SC 1362
[7] (2002) 5 SCC 294
[8] (1997) 4 SCC 306
[9] (1997) 6 SCC 1
[10] AIR 2005 SC 688
[11] (2013) 4 SCC 642
[12] Writ Petition (Civil) No. 38 of 1997 etc. pronounced on May 06, 2014 [13] (2013) 7 SCC 653 [14]
(1973) 4 SCC 225 [15] (2011) 4 SCC 1 [16] (2009) 7 SCC 1 [17] (2006) 11 SCC 356 [18] (2014) 2 SCC
609 [19] (2013) 5 SCC 1 [20] (2005) 8 SCC 202 [21] (1974) 2 SCC 831 [22] (2001) 7 SCC 231 [23]
(2004) 8 SCC 788 [24] 1981 Supp SCC 87 [25] (2006) 8 SCC 212 [26] (1971) 2 SCC 63 [27] (1972) 3
SCC 717 [28] (2006) 2 SCC 682 [29] (2004) 10 SCC 699 [30] (2005) 5 SCC 294 [31] (2011) 2 SCC 83
[32] (2011) 4 SCC 324 [33] (2012) 2 SCC 34 [34] 1936 AC 578 [35] 1965 AC 172 [36] 23 CLR 457
[37] (1967) 2 SCR 109 [38] (1980) 3 SCC 625 [39] (2007) 2 SCC 1 [40] AIR 1987 SC 232 [41] AIR
1997 SC 610 [42] (1997) 6 SCC 241 [43] (2010) 12 SCC 1 [44] (1994) 6 SCC 632 [45] AIR 1994 SC
1349 [46] AIR 1950 SC 124 [47] (1974) 74 CLR 31 [48] (1992) 177 CLR 106 [49] (1945) 71 CLR 29, 85
[50] (1958) 99 CLR 132, 144-5 [51] (1971) 122 CLR 353, 401 [52] Constituent Assembly Debates

1989: VII, 38.
[53] James Madison as Publius, Federalist 51 [54] Laurance H. Tribe, THE INVISIBLE
CONSTITUTION 29 (2008) [55] (2009) 15 SCC 351 [56] (2001) 3 SCC 594 [57] (1995) 6 SCC 289
[58] (2003) 9 SCC 731 [59] AIR 2008 SC 693 [60] AIR 1955 SC 549 [61] AIR 1994 SC 268 [62] H.M.
Seervai, Constitutional Law of India, vol. 2, 4th Ed. Pg. 2060 [63] Constitutional and Administrative
Law, 2nd Ed. Pg 368-370, David Polland, Neil Parpworth David Hughs [64] 5th Edition, pg 297-305
[65] Nolan Report, Standards in Public Life, Cm 2850-I, 1995, Lodon HMSO, Chapter 3, para 4.
[66] Constitutional Practice (Second Edition) (pg. 146-148) [67] AIR 1951 SC 332 [68] I. Jennings,
The law and the Constitution (5th Edn., ELBS: London, 1976) in his Chapter Conventions at 247.
[69] I. Lovehead, Constitutional Law-A Critical Introduction (2nd edn., Butterworths: London,
2000) at 247 [70] [71]http://parliamentofindia.nic.in/ls/debates/vol11p12.htm [72] [73] S.R.
Chaudhuri v. State of Punjab, (2001) 7 SCC 126 [74] [75] 164. Other provisions as to Ministers.(1)
The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by
the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the
pleasure of the Governor:
Provided that in the States of Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha, there shall be
a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the
Scheduled Castes and backward classes or any other work.
(1-A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a
State shall not eXceed fifteen per cent of the total number of members of the Legislative Assembly of
that State:
Provided that the number of Ministers, including the Chief Minister, in a State shall not be less than
twelve:
Provided further that where the total number of Ministers, including the Chief Minister, in the
Council of Ministers in any State at the commencement of the Constitution (Ninety-first
Amendment) Act, 2003 eXceeds the said fifteen per cent or the number specified in the first proviso,
as the case may be, then, the total number of Ministers in that State shall be brought in conformity
with the provisions of this clause within si X months from such date as the President may by public
notification appoint.
(1-B) A member of the Legislative Assembly of a State or either House of the Legislature of a State
having Legislative Council belonging to any political party who is disqualified for being a member of
that House under Paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a
Minister under clause (1) for duration of the period commencing from the date of his
disqualification till the date on which the term of his office as such member would eXpire or where
he contests any election to the Legislative Assembly of a State or either House of the Legislature of a
State having Legislative Council, as the case may be, before the e Xpiry of such period, till the date on

which he is declared elected, whichever is earlier.
(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
the State shall at the eXpiration of that period cease to be a Minister.
(5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from
time to time by law determine and, until the Legislature of the State so determines, shall be as
specified in the Second Schedule.
Note: The Article is reproduced as it is today.
[76] [77] B.R. Kapur v. State of Tamil Nadu, (2001) 7 SCC 231 [78] [79] B.P. Singhal v. Union of
India, (2010) 6 SCC 331 [80] [81] State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1 [82] [83] 8.
Disqualification on conviction for certain offences.(1) A person convicted of an offence punishable
under(a) Section 153-A (offence of promoting enmity between different groups on ground of
religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of
harmony) or Section 171-E (offence of bribery) or Section 171-F (offence of undue influence or
personation at an election) or sub- section (1) or sub-section (2) of Section 376 or Section 376-A or
Section 376-B or Section 376-C or Section 376-D (offences relating to rape) or Section 498-A
(offence of cruelty towards a woman by husband or relative of a husband) or sub-section (2) or sub-
section (3) of Section 505 (offence of making statement creating or promoting enmity, hatred or ill-
will between classes or offence relating to such statement in any place of worship or in any assembly
engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code
(45 of 1860); or
(b) the Protection of Civil Rights Act, 1955 (22 of 1955), which provides for punishment for the
preaching and practice of untouchability, and for the enforcement of any disability arising
therefrom; or
(c) Section 11 (offence of importing or eXporting prohibited goods) of the Customs Act, 1962 (52 of
1962); or
(d) Sections 10 to 12 (offence of being a member of an association declared unlawful, offence

relating to dealing with funds of an unlawful association or offence relating to contravention of an
order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967 (37 of
1967); or
(e) the Foreign EXchange (Regulation) Act, 1973 (46 of 1973); or

(f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
(g) Section 3 (offence of committing terrorist acts) or Section 4 (offence of committing disruptive
activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(h) Section 7 (offence of contravention of the provisions of Sections 3 to 6) of the Religious

Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or
(i) Section 125 (offence of promoting enmity between classes in connection with the election) or
Section 135 (offence of removal of ballot papers from polling stations) or Section 135-A (offence of
booth capturing) or clause (a) of sub-section (2) of Section 136 (offence of fraudulently defacing or
fraudulently destroying any nomination paper) of this Act, or
(j) Section 6 (offence of conversion of a place of worship) of the Places of Worship (Special
Provisions) Act, 1991, or
(k) Section 2 (offence of insulting the Indian National Flag or the Constitution of India) or Section 3
(offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour
Act, 1971 (69 of 1971) or,
(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or
(m) the Prevention of Corruption Act, 1988 (49 of 1988); or
(n) the Prevention of Terrorism Act, 2002 (15 of 2002); shall be disqualified, where the convicted
person is sentenced to
(i) only fine, for a period of siX years from the date of such conviction;
(ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a
further period of siX years since his release.
(2) A person convicted for the contravention of
(a) any law providing for the prevention of hoarding or profiteering; or
(b) any law relating to the adulteration of food or drugs; or
(c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961); and sentenced to imprisonment
for not less than siX months, shall be disqualified from the date of such conviction and shall
continue to be disqualified for a further period of siX years since his release.
(3) A person convicted of any offence and sentenced to imprisonment for not less than two years
other than any offence referred to in sub- section (1) or sub-section (2) shall be disqualified from the

his release.
(4) Held unconstitutional in Lily Thomas v. Union of India, (2013) 7 SCC 653 Notwithstanding
anything in sub-section (1), sub-section (2) or sub- section (3) a disqualification under either sub-
section shall not, in the case of a person who on the date of the conviction is a member of Parliament
or the Legislature of a State, take effect until three months have elapsed from that date or, if within
that period an appeal or application for revision is brought in respect of the conviction or the
sentence, until that appeal or application is disposed of by the court.
EXplanation.In this section
(a) law providing for the prevention of hoarding or profiteering means any law, or any order, rule or
notification having the force of law, providing for
(i) the regulation of production or manufacture of any essential commodity;
(ii) the control of price at which any essential commodity may be bought or sold;
(iii) the regulation of acquisition, possession, storage, transport, distribution, disposal, use or
consumption of any essential commodity;
(iv) the prohibition of the withholding from sale of any essential commodity ordinarily kept for sale;
(b) drug has the meaning assigned to it in the Drugs and Cosmetics Act, 1940 (23 of 1940);
(c) essential commodity has the meaning assigned to it in the Essential Commodities Act, 1955 (10
of 1955);
(d) food has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954 (37 of
1954).
[84] [85] Municipal Committee, Patiala v. Model Town Residents Association, (2007) 8 SCC 669
[86] [87] State of Himachal Pradesh v. Parent of a student of Medical College, (1985) 3 SCC 169.
This was a judgment delivered by a Bench of three learned Judges.
[88] [89] V.K. Naswa v. Union of India, (2012) 2 SCC 542 [90] [91] Gainda Ram v. MCD, (2010) 10
SCC 715. This was a judgment delivered by a Bench of two learned Judges.
[92] [93] The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill was
eventually passed and notified as an Act in 2014. [94] [95] Public Law 1994, Aut, 431-45 [96] [97]
Constituent Assembly Debates, Volume VII [98] [99] Lily Thomas v. Union of India, (2013) 7 SCC
653 [100] [101]http://hansard.millbanksystems.com/written_answers/1994/jan/25/minister s-
unsuitability-for office#S6CV0236P0_19940125_CWA_172 [102] [103] Constituent Assembly

Debates, Volume VII [104] [105] http://parliamentofindia.nic.in/ls/debates/vol11p11.htm [106]
[107] http://parliamentofindia.nic.in/ls/debates/vol11p12.htm

T.N.Seshan Chief Election ... vs Union Of India & Ors on 14 July, 1995
Author: A Ahmadi
Bench: A.M.Ahmadi Cji, Jagdish Saran Verma, N.P.Singh, S.P.Bharucha, M.K.Mukherjee
CASE NO.:
PETITIONER:
T.N.SESHAN CHIEF ELECTION COMMISSIONER OF INDIA ETC.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT:
14/07/1995 BENCH:
A.M.AHMADI CJI & JAGDISH SARAN VERMA & N.P.SINGH & S.P.BHARUCHA & M.K.MUKHERJEE
JUDGMENT:
JUDGMENT W I T H WRIT PETITION (CIVIL) NO.791 OF 1993 Cho S. Ramaswamy versus Union
of India & others W I T H WRIT PETITION (CIVIL) NO.825 OF 1993 B.K. Rai & Another versus
Union of India & Others W I T H WRIT PETITION NO.268 OF 1994 Common Cause A Registered
Society versus Union of India & Others DELIVERED BY:
A.M. AHMADI, J.
AHMADI, CJI The President of India, in e Xercise of powers conferred upon him by clause (1) of
Arlicle 123 of the Conslilution of India, promulgated an Ordinance (No.32 of 1993) entitled "The
Chief Election Commissioner and other Election Commissioners (Condition of Service) Amendment
Ordinance, 1993" (hereinafter called 'the Ordinance') to amend "The Chief Election Commissioner
and other Commissioners (Condition of Service) Act, 1991" (hereinafter called "the Act'). This
Ordinance was published in the Gazette of India on October 1, 1993. Before we notice the
amendments made in the 1991 Act, by the said Ordinance it may be appropriate to notice the
provisions of the 1991 Act. As the long title of the Act suggests it lays down the conditions of service
of the Chief Election Commissioner (hereinafter called 'the CEC') and Election Commissioners
(hereinafter called 'the ECs') appointed under Article 324 of the Constitution of India. Section 3(1)
provides that the CEC shall be paid a salary which is equal to the salary of a Judge of the Supreme
Court of India. Section 3(2) says that an EC shall be paid a salary which is equal to the salary of a
Judge of a High Court Section 4 lays down the term of office of the CEC and ECs to be si X years from
the date on which the incumbent assumes charge of his office provided that the incumbent shall
vacate his office on his attaining, in the case of the CEC, the age of 65 years and the EC the age of 62
years, notwithtanding the fact that the term of office is for a period of siX years. Section 8 eXtends
the benefit of travelling allowance, rent free residence, e Xemption from payment of income-tax on
the value of such rent free residence, conveyance facility, sumptuary allowance, medical facitilies,
etc., as applicable to a Judge of the Supreme Court or a Judge of the High Court to the CEC and the
EC, respectively, By the Ordinance the title of the Act was sought to be amended by substituting the

words "and to provide for the procedure for transaction of business by the Election Commission and
for matters" for the words "and for matters". By the substitution of these words the long title to the
Act. got, further elongaled as an Act, to delermine the conditions of service of the CEC and other ECs
and to provide for the procedure for transaction of business by the Election Commission and for
matters connected therewith or incidental thereto. In section 1 of the Principal Act for the words and
brackets "the Chief Election Commissioner and other Election Commissioners (Condition of
Service)" the words and brackets "the Election Commission (Conditions of Service of Election
Commissioners and Transaction of Business)" came to be substituted with the result that the
amended provision read as the Election Commission (Condition of Service of Election
Commissioners and Transaction of Business) Act, 1991. The definition clause in section 2 also
underwent a change, in that, the eXtant clause (b) came to be renumbered as clause (c) and a new
clause (b) came to be substituted by which the eXpression "Election Commission" came to be
defined as Election Commission referred to in Article 324 of the Constitution of India. Consequent.
Changes were also made elsewhere. In sub-section (1) of section 3, after the words "Chief Election
Commissioner", the words "and other Election Commissioners" came to be inserted with the result
they came to be placed at par in regard to salary payable to them and sub-section (2) came to be
omitted. In section 4 the first proviso came to be substituted as under :
"Provided that where the Chief Election Commissioner or an Election Commissioner

affains the age of 65 years before the eXpiry of the said term of siX years, he shall
vacate his office on the date on which he attains the said age."
Thus the age of superannuation of both the CEC and the ECs was fi Xed at 65 years. If they attain the
age of 65 years before completing their tenure of si X years they would in view of the proviso have to
vacate office on attaining the age of 65 years. In Section 6, sub-section (2), after the words "Chief
Election Commissioner" the words "or an Election Commissioner" came to be inserted and for the
words "sub-section (4)" the words "sub-section (3)" came to be substituted. It further provided for
the deletion of sub- section (3) and for renumbering sub-section (4) as sub- section (3) and provided
that in clause (b) the words "or as the case may be, 62 years" shall be omitted. After section 8 in the
Principal Act, by the Ordinance a new Chapter came to be inserted comprising of two provisions,
namely, Sections 9 and 10. The new Chapter so inserted is relevant for our purpose and may be
reproduced at this stage:
"CHAPTER III TRANSACTION OF BUSINESS OF ELECTION COMMISSION
9. The business of the Election Commission shall be transacted in accordance with

the provisions of this Act.
10(1) The Election Commission may, by unanimous decision, regulate the procedure
for transaction of the business as also allocation of the business amongst the Chief
Election Commissioner and other Election Commissioners (2) Save as provided in
sub section (1) all business of the Election Commission shall, as far as possible, be
transacted unanimously.

(3) Subject to the provisions of sub- section (2), if the Chief Election Commissioner
differ in opinion on any matter, such matter shall be decided according to the opinion
of the majority."
On the day of publication of the Ordinance, 1st October, 1993, the President of India, in e Xercise of
powers conferred by clause 2 of Article 324 of the constitution of India, fi Xed, until further orders,
the number of Election Commissioners (other than the CEC) at two. By a further notification of even
date the President was pleased to appoint Mr.M.S.Gill and Mr.G.V.G. Krishnamurthy as Election
Commissioners with effect from 1st October, 1993.
The first salvo was fired by Cho. S. Ramaswamy, a journalist, on 13th October, 1993. By a Writ
Petition (Civil) No.791 of 1993 he prayed for a declaration that the Ordinance was arbitrary,
unconstitutional and void and for issuance of a writ of certiorari to quash the notifications fi Xing the
number of Election Commissioners at two and the appointment of Mr.M.S.Gill and
Mr.G.V.G.Krishnamurthy made thereunder. This was followed by Writ Petition No.805 of 1993 by
the incumbent CEC himself claiming similar reliefs on 26th October, 1993, Two other writ petitions
were also filed questioning the validity of the Ordinance and the notifications referred to earlier.
Three of these writ petitions came up for preliminary hearing on November 15, 1993. While
admitting the writ petitions and directing rule to issue in all of them, in the writ petition filed by the
CEC notice on the application for interim stay as well as for production of documents was ordered to
issue and an ad- interim order to the following effect was passed:
"Until further orders, to ensure smooth and effective working of the Commission and
also to avoid confusion both in the administration as well as in the electoral process,
we direct that the Chief Election Commissioner shall remain in complete overall
control of the Commission's work. He may asoertain the views of other
Commissioners or such of them as he chooses, on the issues that may come up before
the Commission from time to time. However, he will not be bound their views. It is
also made clear that the Chief Election Commissioner alone will be entitled to issue
instructions to the Commission's staff as well as to the outside agencies and that no
other Commissioner will issue such instructions."
By a subsequent order dated 15.12.1993, after hearing the learned Allorney General for the Union of
India and the learned Advocates General for the States of Maharashtra and West Bengal, the Court
directed that all the State Governments who want to be heard will be heard through their counsel
and further directed that the interim order shall continue till further orders. iastly, it observed that
since questions involved related to the interpretation of Article 324 in particular, the matters should
be placed before a Constitution Bench.
During the pendency of the aforesaid Writ Petitions, the Ordinance became an Act (Act No.4 of
1994) on 4th January, 1994 without any change.
Before we proceed further it would be proper to notice Article 324 of the Constitution. It reads as
under:

"324. Superintendence, direction and control of elections to be vested in an Election
Commission.-- (1) The superintendence, direction and control of the preparation of
the electoral rolls for, and the conduct of, all elections to Parliament and to the
Iegislature of every state and of elections to the offices of President and
Vice-President held under this Constitution shall be vested in a Commission (referred
to in this Constitution as the Election Commission).
(2) The Election Commission shall consist of the Chief Election Commissioner and
such number of other Election Commissioner and such number of other Election
Commissioners, if any, as the President may from time to time fi X and the
appointment of the Chief Election Commissioner and other Election Commissioners
shall, subject to the provisions of any law made in that behalf by Parliament, be made
by the President.
(3) When any other Election Commissioner is so appointed the Chief Election
Commissioner shall act, as the Chairman of the Election Commission. (4) Before each
general election to the House of the People and to the legislative Assembly of each
State, and before the first general election and thereafter before each biennial
election to the Legislative Council of each State having such Council, the President
may also appoint after consulation with the Election Commission such Regional
Commissioners as he may consider necessary to assist the Election Commission in
the performance of the functions conferred on the Commission by clause (1).
(5) Subject to the provisions of any law made by Parliament, the conditions of service
and tenure of office of the Election Commissioners and the Regional Commissioners
shall be such as the President may by rule determine: Provided that the Chief
Election Commissioner shall not be removed from his office e Xcept in like manner
and on the like grounds as a Judge of the Supreme Court and the conditions of
service of the Chief Election Commissioner shall not be varied to his disadvantage
after his appointment: Provided further that any other Election Commissioner or a
Regional Commissioner shall not be removed from office e X cept on the
recommendation of the Chief Election Commissioner.
(6) The President, or the Governor of a State, shall, when so requested by the Election
Commission, make available to the Election Commission or to a Regional
Commissioner such staff as may be necessary for the discharge of the functions
conferred on the Election Commission by clause (1)."
The abridged factual matriX on which the constitutional validily of the Ordinance (now Act) and the
consequential orders and appointments of the ECs have been questioned in the above petitions may
be broadly indicated at this stage as follows:
The present ECE claims that after his appointment on 12.12.1990 he insisted on strict compliance
with the model Code of Conduct by all political parties and candidates for election and look stern

action against infractions thereof regardless of the political party or candidate involved. The ruling
party at the centre was irked as a few of the bye- elections of the ruling party leaders/cabinet,
ministers were put off for the Government's failure to deploy sufficient staff and police force for the
elections and the ruling party lost the elections in Tripura on account of strict action taken by the
CEC against erring officials & consequent postponement of elections. The ruling party made
attempts to influence the CEC but could not do so as he did not allow the emissaries of the party to
meet him. The CEC also filed a writ petition in the Supreme Court for enforcing the constitutional
right of the Election Commission for staff and force. The CEC declined to postpone elections for four
State assemblies despite requests from the ruling party,including the Prime Minister, got irritated
with such unbending attitude of the CEC. The ruling party, therefore, with a view to freeze the
powers of the CEC and to prevent him from taking any action against violation of code of conduct
chose to amend the law and misused the power of the President under Article 324(2) of the
Constitution by issuing the notification dated 1st October, 1993 fi Xing the number of ECs at two and
simultaneously appointing Mr. M.S. Gill & Mr. G.V.G. Krishnamurthy as the other two ECs.
The CEC not only impotes malafides for the issuance of the aforesaid notifications & appointments
but also alleges that the intention behind issuing the Ordinance was to sideline the CEC and to erode
his authority so that the ruling party at the centre could e Xtract favourable orders by using the
services of the newly appointed ECs.
Sections 9 & 10 of the Ordinance (now Act) are challenged as ultra vires the Constitution on the plea
that they are inconsistent with the scheme underlying Article 324 of the Constitution, in that, the
said Article 324 did not give any power to the Parliament to frame rules for transaction of business
of the Election Commission. Section 10 is also challenged on the ground that it is arbitrary and
unworkable, So also the notification fi Xing the number of other ECs at two is challenged as arbitrary
and violative of Article 14 of the Constitution.
The writ petitions are resisted by the respondents, viz., the Union of India and the two other ECs,
Mr. M.S. Gill & Mr. G.V.G. Krishnamurthy as wholly misconceived. It is contended on behalf of the
Union Government that various advisory bodies had from time to time called for a multi- member
body had any connection with the alleged discomfiture of the ruling party at the centre on account of
the stiff attitude of the CEC. It is further stated that the multi- member body would not have been
able to function without a supporting statute providing for dealing with different situations likely to
arise in the course of transaction of business. The Ordinance was framed keeping in view the
observations made in this regard by this Court in the case of S.S. Dhanoa Vs. U.O.T. & Ors. (1991) 3
SCC 567. It is strongly denied that the changes in the law were made malafide with a view to laming
the CEC into submission or to erode his authority by providing that, in the event of a difference of
opinion, the majority view would prevail. It is contended that the plain language of Article 324(2)
envisages a multi-member Commission and, therefore, any e Xercise undertaken to achieve that
objective would be consistent with the scheme of the said constitutional provision and could,
therefore, never be branded as malafide or ultravires the Constitution. A provision to the effect that,
in the event of a difference of opinion between the three members of the Election Commission, the
majority view should prevail is consistent with democratic principles and can never be described as
arbitrary or ultravires Article 14 of the Constitution. The Union of India, has, therefore, contended

that the writ petitions are wholly misconceived and deserve to be dismissed with costs.
The Preamble of our Constitution proclaims that we are a Democratic Republic. Democracy being
the basic feature of our constitutional set up, there can be no two opinion that free and fair elections
to our legislative bodies alone would guarantee the growth of a healthy democracy in the country. In
order to ensure the purity of the election process it was thought by our Constitution-makers that the
responsibility to hold free and fair elections in the country should be entrusted to an independent
body which would be insulated from political and/or e Xecutive interference. It is inherent in a
democratic set up that the agency which is entrusted the task of holding elections to the legislatures
should be fully insulated so that it can function as an independent agency free from eXternal
pressures from the party in power or eXecutive of the day. This objective is achieved by the setting
up of an Election Commission, a permanent body, under Article 324(1) of the Constitution. The
superintendence, direction and control of the entire election process in the country has been vested
under the said clause in a commission called the Election Commission. Clause (2) of the said article
then provides for the constitution of the Election Commission by providing that it shall consist of
the CEC and such number of ECs, if any, as the President, may from time to time fi X. It is thus
obvious from the plain language of this clause that the Election Commission is composed of the CEC
and, when they have been appointed, the ECs. The office of the CEC is envisaged to be a permanent
fiXture but that cannot be said of the ECs as is made manifest from the use of the words "if any". Dr.
Ambedkar while eXplaining the purport of this clause during the debate in the Constituent Assembly
said:
"Sub-clause (2) says that there shall be a Chief Election Commissioner and such other
Election Commissioners as the President may, from time to time appoint. There were
two alternatives before the Drafting Committee, namely, either to have a permanent,
body consisting of four or five members of the Election Commission who would
continue in office throughout without any break, or to permit the President to have
an ad hoc body appointed at the time when there is an election on the anvil. The
Committee has steered a middle course. What the Drafting Committee Proposes by
sub-clause (2) is to have permanently in office one man called the Chief Election
Commissioner, so that the skeleton machinery would always be available."
It is crystal clear from the plain language of the said clause (2) that our Constitution-makers realised
the need to set up an independent body or commission which would be permanently in session with
atleast one officer, namely, the CEC, and left it to the President to further add to the Commission
such number of ECs as he may consider appropriate from time to time. Clause (3) of the said article
makes it clear that when the Election Commission is a multi-member body the CEC shall act as its
Chairman. What will be his role as a Chairman has not been specifically spell out by the said article
and we will deal with this question hereafter. Clause (4) of the said article further provides for the
appointment of RCs to assist the Election Commission in the performance of its functions set out in
clause (1). This, in brief, is the scheme of Article 324 insofar as the constitution of the Election
Commission is concerned.

We may now briefly notice the position of each functionary of the Election Commission. In the first
place, clause (2) states that the appointment of the CEC and other ECs shall, subject to any law
made in that behalf by Parliament, be made by the President. Thus the President shall be the
appointing authority. Clause (5) provides that subject to any law made by Parliament, The
conditions of service and the lenure of office of the RCs shall be such as may be determined by rule
made by the president. of course the RCs do not form part of the Election Commission but. are
appointed merely to help the commission, that is to say, the CEC and the ECs if any. As we have
pointed out earlier the lenure, salaries, allowances and other perquisites of the CEC and ECs had
been fiXed under the Act as equivalent to a Judge of the Supreme Court and the High Court,
respectively. This has undergone a change after the ordinance which has so amended the Act as to
place them on par. However,the proviso to clause (4) of Article 324 says (i) the CEC shall not be
removed from his office eXcept in like manner and on the like grounds as a Judge of the Supreme
Court and (ii) the condition of service of the CEC shall not be varied to his disadvantage after his
appointment. These two limitations on the power of Parliament are intended to protect the
independence of the CEC from political and/or e Xecutive interference. In the case of Ecs as well as
Rcs the second proviso to clause(5) provides that they shall not be removed from office e Xcept on the
recommendation of the CEC. It may also be noticed that while under clause (4), before the
appointment of the RCs, consultation with the Election Commission (not CEC) is necessary, there is
no such requirement in the case of appointments of ECs. The provision that the ECs and the RCs
once appointed cannot be removed from office before the e Xpiry of their tenure eXcept on the
recommendation of the CEC ensures their independence. The scheme of Article 324 in this behalf is
that after insulating the CEC by the first proviso to clause (5), the ECs and the RCs have been
assured independence of functioning by providing that they cannot be removed eXcept on the
recommendation of the CEC. of course, the recommendation for removal must be based on
intelligible, and cogent considerations which would have relation to efficient functioning of the
Election Commission. That is so because this privilege has been conferred on the CEC to ensure that
the ECs as well as the RCs are not at the mercy of political or e Xecutive bosses of the day. It is
necessary to relise that this check on the e Xecutive's power to remove is built into the second proviso
to clause (5) to safeguard the independence of not only these functionaries but the Election
Commission as a body. If, therefore, the power were to be e Xercisable by the CEC as per his whim
and caprice, the CEC himself would become an instrument of oppression and would destroy the
independence of the ECs and the RCs if they are required to function under the threat of the CEC
recommending their removal. It is, therefore, needless to emphasise that the CEC must e Xercise this
power only when there eXist valid reasons which are conducive to efficient functioning of the
Election Commission. This, briefly stated, indicates the status of the various functionaries
constituting the Election Commission.
The concept of plurality is writ large on the face of Article 324, clause (2) whereof clearly envisages a
multi- member Election Commission comprising the CEC and one or more ECs. Visualising such a
situation, clause (3) provides that in the case of a multi-member body the CEC will be its Chairman.
If a multi-member Election Commission was not contemplated where was the need to provide in
clause (3) for the CEC to act as its Chairman? There is, therefore, no room for doubt that the
Election Commission could be a multi- member body. If Article 324 does contemplate a
multi-member body, the impugned notifications providing for the other two ECs cannot be faulted

solely on that ground. We may here quote, with approval, the observations of a two-Judge Bench of
this Court in S.S.Dhanoa v. Union of India and Others (1991) 3 SCC 567, vide paragraph 26:
"There is no doubt that two heads are better than one, and particularly when an
institution like the Election Commission is entrusted with vital functions, and is
armed with eXclusive uncontrolled powers to eXecute them, it is both necessary and
desirable that the powers are not e Xercised by one individual, however, all-wise he
may be. It ill conforms the tenets of the democratic rule. It is true that the
independence of an institution depends upon the persons who main it and not on
their number. A single individual may sometimes prove capable of withstanding all
the pulls and pressures, which many may not. However, when vast powers are
eXercised by an institution which is accountable to none, it is politic to entrust its
affairs to more hands than one. It helps to assure judiciousness and want of
arbitrariness. The fact, however, remains that where more individuals than one, man
an institution, their roles have to be clearly defined, if the functioning of the
institution is not to come to a naught."
It must be realised that these observations were made, notwithstanding the fact that the learned
judges were alive to and aware of the circumstances in which the Persident was required in that case
to rescind the notifications creating two posts of ECs and appointing the petitioner Dhanoa and
another to them.
There can be no dispute, and indeed there never was, that the Election Commission must be an
independent body. It is also clear from the scheme of Article 324 that the said body shall have the
CEC as a permanent incumbent and under clause (2) such number of other ECs, if any, as the
President may deem appropriate to appoint. The scheme of Article 324, therefore, is that there shall
be a permanent body to be called the Election Commission with a permanent incumbent to be called
the CEC. The Election Commission can therefore be a single-member body or a multi-member body
if the President considers it necessary to appoint one or more ECs. Upto this point there is no
difficulty. The argument that a multi-member Election Commission would be unworkable and
should not, therefore, be appointed must be stated to be rejected. Our Constitution-makers have
provided for a multi- member body. They saw the need to provide for such a body. If the submission
that a multi-member body would be unworkable is accepted it would tantamount to destroying or
nullifying clauses (2) and (3) of Article 324 of the Constitution. Strong reliance was, however, placed
on Dhanoa's case to buttress the argument. The facts of that case were just the reverse of the facts of
the present case. In that case the President by a notification issued in pursuance of clause (2) of
Article 324 fiXed the number of ECs, besides the CEC, at two and a few days thereafter by a separate
notification appointed the petitioner and one another as ECs. By yet another notification issued
under clause (5) of Article 324 the President made rules to regulate their lenure and conditions of
service. After watching the functioning of the multi-member body for about a couple of months, the
President issued two notifications rescinding with immediate effect the notification by which the
two posts of ECs were created and the notification by which the petitioner and one another were
appointed thereto. The petitioner S.S. Dhanoa challenged the notifications rescinding the earlier
notification firstly on the ground that once appointed an EC continues in office for the full term

determined by rules made under clause (5) of Article 324 and, in any event, the petitioner could not
be removed eXcept on the recommendation of the CEC. At the same time it was also contended that
the notifications were issued malafide under the advise of the CEC to get rid of the petitioner and his
colleague because the CEC was from the very begining ill-disposed or opposed to the ceration of the
posts of ECs. According to the petitioner, there were differences of opinion between the CEC on the
one hand and the ECs on the other and since the CEC desired that he should have the sole power to
decide the did not like the association of the ECs.
The principal question which the Division Bench of this Court was called upon to decide was
whether the President was justified in rescinding the earlier notifications creating two posts of ECs
and the subsequent appointments of the petitioner and his colleague as ECs. The Court found as a
fact that there was no imminent need to create two posts of ECs and fill them up by appointing the
petitioner and his colleague. The additional work likely to be generated on account of the lowering of
the voling age from 21 years to 18 years could have been handled by increasing the staff rather than
appoint two ECs. So the Court look the view that from the inception the Government had committed
an error in creating two posts of ECs and filling them up. We do not at the present desire to
comment on the question whether this aspect of the matter was justiciable. It was further found as a
fact that the petitioner's and his colleaque's attitude was not cooperative and had it not been for the
sagacity and restraint shown by the CEC, the work of the Commission would have come to a
standstill and the Commission would have been rendered inactive. It is for this reason that the court
observed that no one need shed tears on the posts being abolished (vide paragraphs 20, 23, 24 and
25 of the judgment.). The Court, therefore, upheld the Presidential notifications rescinding the
creation of the two posts of ECs and the appointments of the petitioner and his colleague thereon.
Notwithstanding this bitter eXperience, the Division Bench made the observations in paragraph 26
eXtracted hereinbefore, with which we are in respectful agreement. We cannot overlook the fact that
when the Constitution-makers provided for a multi-member Election Commission they were not
oblivious of the fact that there may not be agreement on all points,but they must have e Xpected such
high ranking functionaries to resolve their differences in a dignified manner. It is the constitutional
duty of all those who are required to carry out certain constitutional functions to ensure the smooth
functioning of the machinery without the clash of egos. This should have put an end to the matter,
but the Division Bench proceeded to make certain observations touching on the status of the CEC
vis-a-vis the ECs, the procedure to be followed by a multi-member body in decision making in the
absence of rules in that behalf etc., on which considerable reliance was placed by counsel for the
petitioners.
We have already highlighted the salient features regarding the composition of the Election
Commission. We have pointed out the provisions regarding the tenure, conditions of service, salary,
allowances, removability, etc., of the CEC the ECs and the RCs. The CEC and the ECs alone
constitute the Election Commission whereas the RCs are appointed merely to assist the
Commission. The appointment of the RCs can be made after consulting the Election Commission
since they are supposed to assist that body in the performance of the functions assigned to it by
clause (1) of Article 324. If that be so there can be no doubt that they would rank neXt to the CEC
and the ECs. That brings us to the question regarding the status of the CEC vis-a-vis the ECs. It was
contended by the learned counsel for the petitioners that the CEC enjoyed a status superior to the

ECs for the obvious reason that (i) the CEC has been granted conditions of service on par with a
Judge of the Supreme Court which was not the case with the conditions of service of ECs before the
Ordinance, (ii) the CEC has been given the same protection against removal from service as
available to a Judge of the Supreme Court whereas the ECs can be removed on the CEC's
recommendation, (iii) the CEC's conditions of service cannot be altered or varied to his disadvantage
after his appointment, (iv) the CEC has been conferred the privilege to act as Chairman of the multi-
member Commission and (v) the CEC alone is the permanent incumbent whereas the ECs could be
removed, as happened in the case of Dhanoa. Strong reliance was placed on the observations
in paragraphs 10 and 11 of Dhanoa's case in support of the argument that the CEC enjoys a higher
status vis-a-vis the ECs while functioning as the Chairman of the Election Commission. The
observations relied upon read thus:
"10 However, in the matter of the conditions of service and tenure of office of the
Election Commissioners, a distinction is made between the Chief Election
Commissioner on the one hand and Election Commissioners and Regional
Commissioners on the other. Whereas the conditions of service and tenure of office of
all are to be such as the President may, by rule determine, a protection is given to the
Chief Election Commissioner in that his conditions of service shall not be varied to
his disadvantage after his appointment, and he shall not be removed from his office
eXcept in like manner and on the like grounds as a Judge of the Supreme Court.
These protections are not available either to the Election Commissioners or to the
Regional Commissioners. Their conditions of service can be varied even to their
dis advantage after their appointment and they can be removed on the
recommendation of the Chief Election Commissioner, although not otherwise. It
would thus appear that in these two respects not only the Election Commissioners are
not on par with the Chief Election Commissioner, but they are placed on par with the
Regional Commissioners although the former constitute the Commission and the
latter do not and are only appointed to assist the Commission.
11. It is necessary to bear these features in mind because although clause (2) of the
article states that the Commission will consist of both the Chief Election
Commissioner and the Election Commissioners if and when appointed, it does not
appear that the framers of the Constitution desired to give the same status to the
Election Commissioners as that of the Chief Election Commissioner. The Chief
Election Commissioner does not, therefore, appear to be primus inter partes, i.e., first
among the equals, but is intended to be placed in a distinctly higher position. The
conditions that the President may increase or decrease the number of Election
Commissioners according to the needs of the time, that their service conditions may
be varied to their dis adv an tage and that they may be removed on the
recommendation of the Chief Election Commissioner militate against their being of
the same status as that of the Chief Election Commissioner."
While it is true that under the scheme of Article 324 the conditions of service and tenure of office of
all the functionaries of the Election Commission have to be determined by the President unless

determined by law made by Parliament, it is only in the case of the CEC that the first proviso to
clause (5) lays down that they cannot be varied to the disadvantage of the CEC after his
appointment. Such a protection is not eXtended to the ECs. But it must be remembered that by
virtue of the Ordinance the CEC and the ECs placed on par in the matter of salary, etc. Does the
absence of such provision for ECs make the CEC superior to the ECs? The second ground relates to
removability. In the case of the CEC he can be removed from office in like manner and on the like
ground as a judge of the Supreme Court whereas the ECs can be removed on the recommendation of
the CEC. That, however, is not an indicia for conferring a higher status on the CEC. To so hold is to
overlook the scheme of Article 324 of the Constitution. It must be remembered that the CEC is
intended to be a permanent incumbent and, therefore, in order to preserve and safeguard his
independence, he had to be treated differently. That is because there cannot be an Election
Commission without a CEC. That is not the case with other ECs. They are not intended to be
permanent incumbents. Clause (2) of Article 324 itself suggests that the number of ECs can vary
from time to time. In the very nature of things, therefore, they could not be conferred the type of
irremovability that is bestowed on the CEC. If that were to be done, the entire scheme of Article 324
would have to undergo a change. In the scheme of things, therefore, the power to remove in certain
cases had to be retained. Having insulated the CEC from e Xternal political or eXecutive pressures,
confidence was reposed in this independent functionary to safeguard the independence of his ECs
and even RCs by enjoining that they cannot be removed e Xcept on the recommendation of the CEC.
This is evident from the following statement found in the speech of Shri K.M. Munshi in the
Constituent Assembly when he supported the amended draft submitted by Dr. Ambedkar:
"We cannot have an Election Commission sitting all the time during those five years
doing nothing. The Chief Election Commissioner will continue to be a whole-time
officer performing the duties of his office and looking after the work from day to day
but when major elections take place in the country, either Provincial or Central, the
Commission must be enlarged to cope with the work.
More members therefore have to be added to the Commission. They are no doubt to
be appointed by the President. Therefore, to that eXtent their independence is
ensured. So there is no reason to believe that these temporary Election
Commissioners will not have the necessary measure of independence."
Since the other ECs were not intended to be permanent appointees they could not be granted the
irremovability protection of the CEC, a permanent incumbent, and, therefore, they were placed
under the protective umbrella of an independent CEC. This aspect of the matter escaped the
attention of the learned Judges who decided Dhanoa's case. We are also of the view that the
comparison with the functioning of the e Xecutive under Articles 74 and 163 of the Constitution in
paragraph 17 of the judgment, with respect, cannot be said to be apposite.
Under clause (3) of Article 324, in the case of a multi-member Election Commission, the CEC 'shall
act' as the Chairman of the Commission. As we have pointed out earlier, Article 324 envisages a
permanent body to be headed by a permanent incumbent, namely, the CEC. The fact that the CEC is
a permanent incumbent cannot confer on him a higher status than the ECs for the simple reason

that the latter are not intended to be permanent appointees. Since the Election Commission would
have a staff of its own dealing with matters concerning the superintendence, direction and control of
the preparation of electoral rolls, etc., that staff would have to function under the direction and
guidance of the CEC and hence it was in the fitness of things for the Constitution-makers to provide
that where the Election Commission is a multi-member body, the CEC shall act as its Chairman.
That would also ensure continuity and smooth functioning of the Commission.
That brings us to the question: what role has the CEC to play as the Chairman of a multi-member
Election Commission? Article 324 does not throw any light on this point. the debates of the
Constituent Assembly also do not help. Although there had been a multi-member Commission in
the past no convention or procedural arrangement had been worked out then. It is this situation
which compelled the Division Bench of this Court in Dhanoa's case to inter alia observe that in the
absence of rules to the contrary, the members of a multi-member body are not and need not always
be on par with each other in the matter of their rights, authority and powers. Proceeding further in
paragraph 18 it was said:
"18. It is further an acknowledged rule of transacting business in a multi-
member body that when there is no eXpress provision to the contrary, the business
has to be carried on unanimously. The rule to the contrary such as the decision by
majority, has to be laid down specifically by spelling out the kind of majority --
whether simple, special, of all the members or of the members present and voting etc.
In a case such as that of the Election Commission which is not merely an advisory
body but an e X ecutive one, it is difficult to carry on its affairs by insisting on
undnlmous decisions in all matters. Hence, a realistic approach demands that either
the procedure for transacting business is spelt out by a statute or a rule either prior to
or simultaneously with the appointment of the Election Commissioners or that no
appointment of Election Commissioners is made in the absence of such procedure. In
the present case, admittedly, no such procedure has been laid down.
We must hasten to add that the accuracy of the statement that in a multi-member body the rule of
unanimity would prevail in the absence of e Xpress provision to the contrary was doubted by counsel
for the respondents-ECs. At the same time, counsel for the Union of India and the contesting ECs
contended that the Ordinance was promulgated by the President strictly in conformity with the view
eXpressed in Dhanoa's case.
From the discussion upto this point what emerges is that by clause (1) of Article 324, the
Constitution-makers entrusted the task of conducting all elections in the country to a Commission
referred to as the Election Commission and not to an individual. It may be that if it is a
single-member body the decisions may have to be taken by the CEC but still they will be the
decisions of the Election Commission. They will go down as respondents of the Election Commission
and not the individual. It would be wrong to project the individual and eclipse the Election
Commission. Nobody can be above the institution which he is supposed to serve. He is merely the
creature of the institution, he can eXist only if the institution eXists. To project the individual as

mightier than the institution would be a grave mistake. Therefore, even if the Election Commission
is a single-member body, the CEC is merely a functionary of that body; to put it differently, the alter
ego of the Commission and no more. And if it is a multi-member body the CEC is obliged to act as its
Chairman. 'Chairman' according to the Concise O Xford Dictionary means a person chosen to preside
over meetings, e.g., one who presides over the meetings of the Board of Directors. In Black's law
Dictionary, 6th Edition, page 230, the same eXpression is defined as a name given to a Presiding
Officer of an assembly, public meeting, convention, deliberative or legislative body, board of
directors, committee, etc. Similar meanings have been attributed to that e Xpression in Ballentine's
law Dictionary, 3rd Edition, pages 189-190, Webster's New Twentieth Century Dictionary,
Unabridged, 2nd Edition, page 299, and Aiyer's Judicial Dictionary, 11th Edition, page
238. The function of the Chairman would, therefore, be to preside over meetings, preserve order,
conduct the business of the day, ensure that precise decisions are taken and correctly recorded and
do all that is necessary for smooth transaction of business. The nature and duties of this office may
very depending on the nature of business to be transacted but by and large these would be the
functions of a Chairman. He must so conduct himself at the meetings chaired by him that he is able
to win the confidence of his colleagues on the Commission and carry them with him. This a
Chairman may find difficult to achieve if he thinks that others who are members of the Commission
are his subordinates. The functions of the Election Commission are essentially administrative but
there are certain adjudicative and legislative functions as well. The Election Commission has to lay
down certain policies, decide on certain administrative matters of importance as distinguished from
routine matters of administration and also adjudicate certain disputes, e.g., disputes relating to
allotment of symbols. Therefore, besides administrative functions it may be called upon to perform
quasi-judicial duties and undertake subordinate legislation making functions as well. See M.S. Gill
vs. Chief Elecction Commissioner (1978) 2 SCR 272. We need say no more on this aspect of the
matter.
There can be no doubt that the Election Commission discharges a public function. As pointed out
earlier, the scheme of Article 324 clearly envisages a multi-member body comprising the CEC and
the ECs. The RCs may be appointed to assist the Commission. If that be so the ECs cannot be put on
par with the RCs. As already pointed out, ECs form part of the Election Commission unlike the RCs.
Their role is, therefore, higher than that of RCs. If they form part of the Commission it stands to
reason to hold that they must have a say in decision-making. If the CEC is considered to be a
superior in the sense that his word is final, he would render the ECs non-functional or ornamental.
Such an intention is difficult to cull out from Article 324 nor can we attribute it to the
Constitution-makers. We must reject the argument that the ECs' function is only to tender advise to
the CEC.
We have pointed out the distinguishing features from Article 324 between the position of the CEC
and the ECs. It is essentially on account of their tenure in the Election Commission that certain
differences eXist. We have eXplained why in the case of ECs the removability clause had to be
different. The variation in the salary, etc., cannot be a determinative factor otherwise that would
oscillate having regard to the fact that the e Xecutive or the legislature has to fi X the conditions of
service under clause (5) of Article

324. The only distinguishing feature that survives for consideration is that in the case of the CEC his
conditions of service cannot be varied to his disadvantage after his appointment whereas there is no
such safeguard in the case of ECs. That is presumbly because the posts are lemporary in character.
But even if it is not so, that feature alone cannot lead us to the conclusion that the final word in all
matters lies with the CEC. Such a view would render the position of the ECs to that of mere advisers
which does not emerge from the scheme of Article 324.
As pointed out earlier, neither Article 324 nor any other provision in the Constitution e Xpressly
states how a multi-member Election Commission will transact its business nor has any convention
developed in this behalf. That is why in Dhanoa's case this Court thought the gap could be filled by
an appropriate statutory provision. Taking a clue from the observations in that connection in the
said decision, the President promulgated the Ordinance whereby a new chapter comprising sections
9 and 10 was added to the Act indicating how the Election Commission will transact its business.
Section 9 merely states that the business of the Commission shall be transacted in accordance with
the provisions of the Act. Section 10 has three sub-sections. Sub-section (1) says that the Election
Commission may, by unanimous decision, regulate the procedure for transaction of its business and
for allocation of its business among the CEC and the ECs. It will thus be seen that the legislature has
left it to the Election Commission to finalise both the matters by a unanimous decision. Sub-section
(2) says that all other business, save as provided in sub-section (1), shall also be transacted
unanimously, as far as is possible. It is only when the CEC and the ECs cannot reach a unanimous
decision in regard to its business that the decision has to be by majority. It must be realised that the
Constitution- makers preferred to remain silent as to the manner in which the Election Commission
will transact its business, presumably because they thought it unnecessary and perhaps even
improper to provide for the same having regard to the level of personnel it had in mind to man the
Commission. They must have depended on the sagacity and wisdom of the CEC and his colleagues.
The bitter eXperience of the past, to which a reference is made in Dhanoa's case, made legislative
interference necessary once it was also realised that a multi-member body was necessary. It has yet
manifested the hope in sub-sections (1) and (2) that the Commission will be able to take decisions
with one voice. But just in case that hope is belied the rule of majority must come into play. That is
the purport of section 10 of the Act. The submission that the said two sections are inconsistent with
the scheme of Article 324 inasmuch as they virtually destroy the two safeguards, namely (i) the
irremovability of the CEC and (ii) prohibition against variation in service conditions to his
disadvantage after his appointment, does not cut ice. In the first place, the submission proceeds on
the basis that the other two ECs will join hands to render the CEC non-functional, a premise which
is not warranted. It betrays the CEC's lack of confidence in himself to carry his colleagues with him.
In every multi- member commission it is the quality of leadership of the person heading the body
that matters. Secondly the argument necessarily implies that the CEC alone should have the power
to take decisions which, as pointed out earlier, cannot be accepted because that renders the ECs'
eXistence ornamental. Besides, there is no valid neXus between the two safeguards and Section 9
and 10; in fact the submission is a repetition of the argument that a multi-member commission
cannot function, that it would be wholly unworkable and that the Constitution-makers had erred in
providing for it. Tersely put, the argument boils down to this: erase the idea of a multi-member
Election Commission from your minds or else give e Xclusive decision making power to the CEC. We
are afraid such an attitude is not condusive to democratic principles. Foot Note 6 at page 657 of

Halsbury's Laws of England, 4th Edition (Re-issue), Vol. 7(1) posits:
"The principle has long been established that the will of a Corporation or body can
only be eXpressed by the whole or a majority of its principles, and the act of a
majority is regarded as the act of the whole. (See Shakelton on the Law and Practice
of Meetings, eight Edition, Compilation of AG, page 116)"
The same priniple was reiterated in Grindley vs. Barker 126 English Reporter 875 at 879 & 882. We
do not consider it necessary to go through various decisions on this point.
The argument that the impugned provisions constitute a fraud on the Constitution inasmuch as they
are designed and calculated to defeat the very purpose of having an Election Commission is begging
the question. While in a democracy every right thinking citizen should be concerned about the
purity of the election process - this Court is no less concerned about the same as would be evident
from a series of decisions - it is difficult to share the inherent suggestion that the ECs would not be
as concerned about it. And to say that the CEC would have to suffer the humiliation of being
overridden by two civil servants is to ignore the fact that the present CEC was himself a civil servant
before his appointment as CEC.
The Election Commission is not the only body which is a multi-member body. The Constitution also
provides for other public institutions to be multi-member bodies. For e Xample, the Public Service
Commission. Article 315 provides for the setting up of a Public Service Commission for the Union
and every State and Article 316 contemplates a multi-member body with a Chairman. Article 338
provides for a multi-member national Commission for SC/ST comprising a Chairman, Vice-
Chairman and other members. So also there are provisions for the setting up of certain other multi-
member Commissions or Parliamentary Committees under the Constitution. These also function by
the rule of majority and so we find it difficult to accept the broad contention that a multi-member
Commission is unworkable. It all depends on the attitude of the Chairman and its members. If they
work in co-operation, appreciate and respect each other's point of view, there would be no difficulty,
but if they decide from the outset to pull in opposite directions, they would by their conduct make
the Commission unworkable and thus fail the system.
That takes us to the question of mala fides. It is in two parts. The first part relates to events which
preceded the Ordinance and the second part to post-Ordinance and notification events. On the first
part the CEC contends that since, after his appointment, he had taken various steps with a view to
ensuring free and fair elections and was constrained to postpone certain elections which were to
decide the fale of certain leaders belonging to the ruling party at the Centre, i.e., the National
Congress (i), he had caused considerable discomfiture to them. His insistence on strict observance
of the model Code of Conduct had also disturbed the calculations of the ruling party. According to
him, he had postponed the elections in Kalka Assembly constituency, Haryana, because the Chief
Minister of Haryana, belonging to the ruling party at the Centre, had flouted the guidelines. So also
he had postponed the elections in the State of Tripura which ultimately led to the dismissal of the
Government headed by the Chief Minister belonging to the ruling party at the Centre. The
postponement of the bye-elections involving Shri Sharad Pawar and Shri Pranab Mukherjee also

upset the calculations of the said party. He had also postponed the election in Anipet Assembly
constituency, Tamil Nadu, as the Chief Minister of the State had flouted the model Code of Conduct
by announcing certain projects on the eye of the elections. Shri Santosh Mohan Deb, Union
Minister, belonging to the ruling party, was also upset because the CEC look disciplinary action
against officials who were found present at his election meetings. The ruling party was also unhappy
with his decision to announce general elections for the State Assemblies for Madhya Pradesh, Uttar
Pradesh, Rajasthan, Himachal Pradesh and the National Capital Territory of Delhi as the party was
not ready for the same. According to the CEC he had also spurned the request made through the
Ieieutenant Governor of Delhi by the said party for postponement of the Delhi elections. According
to him, emissaries were sent by the said party at the Centre to him but he did not oblige and he even
look serious eXception regarding the conduct of the Governor of Uttar Pradesh, Shri Moti Lal Vohra,
for violating the model Code of Conduct. Since the ruling party at the Centre failed in all its attempts
to prevail upon to him, it decided to convert the Election Commission into a multi-member body
and, after having the Ordinance issued by the President, the impugned notifications appointing the
two ECs were issued. The eXtraodinary haste with which all this was done while the CEC was at Pune
and the urgency with which one of the appointees Shri M.S. Gill was called to Delhi by a special
aircraft betrayed the keenness on the part of the ruling party to install the two newly appointed ECs.
The CEC describes in detail the post-appointment events which took place at the meeting of 11th
October, 1993 in paragraphs 18
(c) to (f) and (g) of the writ petition. According to him, by the issuance of the Ordinance and the
notifications the ruling party is trying to achieve indirectly that which it could not achieve directly.
These, in brief, are the broad counts on the basis whereof he contends that the ruling party at the
Centre was keen to dislodge him.
On behalf of the union of India it is contended that the allegation that the power to issue an
Ordinance was misused for collateral purpose, namely, to impinge on the independence of the
Election Commission, is wholly misconceived since it is a known fact that the demand for a multi-
member Commission had been raised from time to time by different political parties. The Joint
Committee of both Houses of Parliament had submitted a report in 1972 recommending a multi-
member body and the Tarkunde Committee appointed on behalf of the Citizens for
Democracy also favoured a multi-member Election Commission in its report submitted in August
1974. Similarly, the Committee on electoral reforms appointed by the Janata Dal Government, in its
report in May, 1990, favoured a three member Election Commission. Various Members of
Parliament belonging to different political shades had also raised a similar demand from time to
time. The Advocates General of various States in their meeting held on 26th September, 1993 at New
Delhi had made a similar demand. It was, therefore, not correct to contend that the decision to
constitute a multi-member Election Commission was abruptly taken with a mala fide intention, to
curb the activities of the present CEC. The allegation that the decision was taken because the ruling
party at the Centre was irked by the attitude of the CEC in postponing elections on one ground or
the other is denied. The issue regarding the constitution of a multi-member Election Commission
was a live issue and the same was discussed at various fora and even the Supreme Court in Dhanoa's
case had indicated that vast discretionary powers, with virtually no checks and balances, should not
be left in the hands of a single individual and it was desirable that more than one person should be

associated with the eXercise of such discretionary powers. It was, therefore, in public interest that
the Ordinance in question was issued and two ECs were appointed to associate with the CEC. The
deponent contends that this was a bona fide e Xercise and it was unfortunate that a high ranking
official like the CEC had alleged that one of the ECs had been appointed because he was a close
friend of the Prime Minister, an allegation which was unfounded. It is therefore denied that the
Ordinance and the subsequent notifications appointing the two ECs were intended to sideline the
CEC and erode his authority. The Government bona fide followed the earlier reports and the
observations made in Dhanoa's case to which a reference has already been made. It is, therefore,
contended that Sections 9 and 10 do not suffer from any vice as alleged by the CEC. The two ECs
have also filed their counter affidavits denying these allegations. Shri G.V.G. Krishnamurthy,
Respondent No.3 in the CEC's petition, has pointed out that the CEC had made unprecedented
demands, for eXample, (i) to be equated with Supreme Court Judges, and had pressurised the
Government that he be ranked along with Supreme Court Judge in the Warrant of Precedence, (ii)
the powers of contempt of court be conferred upon the Election Commission, (iii) the CEC had
refused to participate in meetings as eX-officio member of the delimitation Commission headed by
Mr. Justice A.M. Mir, Judge of the High Court of J & K, on the ground that his position was higher,
he having been equated with judges of the Supreme Court, (iv) the CEC be e Xempted from personal
appearance in court, (v) the Election Commission be e Xempted from the purview of the UPSC so far
as its staff was concerned, etc. The learned Allorney General pointed out that no mala fides can be
attributed to the eXercise of legislative power by the President of India under Article 123 of the
Constitution. He further pointed out. that having regard to the e Xpress language of Article 324(2) of
the Constitution, it was perfectly proper to eXpand the Election Commission by making appropriate
changes in the eXtant law. The question whether it is necessary to appoint other ECs besides the CEC
is for the Government to decide and that is not a justiciable matter. The demand for a multi-member
Commission was being voiced for the last several years and merely because it was decided to make
an amendment in the statute through an Ordinance, it is not permissible to infer that the decision
was actuated by malice. It was lastly contended that Article 324 nowhere stipulates that before ECs
are appointed, the CEC will be consulted. In the absence of an e Xpress provision in that behalf, it
cannot be said that the failure to consult the CEC before the appointments of the two ECs viliates the
appointment.
One of the interveners, the petitioner of SLP No.16940 of 1993, has filed written submissions
through his counsel wherein, while supporting the action to constitute the multi-member
Commission, he has criticised the style of functioning of the CEC and has contended that his actions
have, far from advancing the cause of free and fair elections, resulted in hardships to the people as
well as the system. It has been pointed out that several rash decisions were taken by the CEC on the
off-chance that they would pass muster but when challenged in court he failed to support them and
agreed to withdraw his orders. It is, therefore, contended that the style of functioning of the present
CEC itself is sufficient reason to constitute a multi-member Commission so that the check and
balance mechanism that the Constitution provides for different institutions may ensure proper
decision-making.
There is no doubt that when the Constitution was framed the Constitution-makers considered it
necessary to have a permanent body headed by the CEC. Perhaps the volume of work and the

compleXity thereof could be managed by a single- member body. At the same time it was realised
that with the passage of time it may become necessary to have a multi- member body. That is why
eXpress provision was made in that behalf in clause (2) of Article 324. It seems that for about two
decades the need for a multi-member body was not felt. But the issue was raised and considered by
the Joint Committee which submitted a report in 1972. Since no action was taken on that report the
Citizens for Democracy, a non- governmental organisation, appointed a committee headed by Shri
Tarkunde, a former Judge of the Bombay High Court, which submitted its report in August 1974.
Both these bodies favoured a multi-member Commission but no action was taken and, after a full,
when the Janata Dal came to power, a committee was appointed which submitted a report in May
1990. That committee also favoured a multi-member body. Prior to that, in 1989 a multi-member
Commission was constituted but we know its fale (see Dhanoa's case). But the issue was not given
up and demands continued to pour in from Members of Parliament of different hues. These have
been mentioned in the counter of the union of India. It cannot, therefore, be said that this idea was
suddenly pulled out of a bag. Assuming the present CEC had taken certain decisions not palatable to
the ruling party at the Centre as alleged by him, it is not permissible to jump to the conclusion that
that was cause for the Ordinance and the appointments of the ECs. If such a ne Xus is to weigh, the
CEC would continue to act against the ruling party to keep the move for a multi-member
Commission at bay. We find it difficult to hold that the decision to constitute a multi- member
Commission was actuated by malice. Therefore, even though it is not permissible to plead malice, we
have eXamined the contention and see no merit in it. It is wrong to think that the two ECs were
pliable persons who were being appointed with the sole object of eroding the independence of the
CEC.
We may incidentally mention that the decisions taken by the CEC from time to time postponing
elections at the last moment, of which he has made mention in his petition, have evoked mi Xed
reactions. This we say because the CEC uses them to lay the foundation for his contention that the
entire eXercise was mala fide. Some of his other decisions were so unsustainable that he could not
support them when tested in court. His public utterances at times were so abrasive that this court
had to caution him to eXercise restraint on more occasions than one. This gave the impression that
he was keen to project his own image. That he has very often been in the newspapers and magazines
and on television cannot be denied. In this backdrop, if the Government thought that a
multi-member body was desirable, the Government certainly was not wrong and its action cannot be
described as malafide. Subsequent events would suggest that the Government was wholly justified in
creating a multi-member Commission. The CEC has been seen in a commercial on television and in
newspaper advertisements. The CEC has addressed the Press and is reported to have said that he
would utilise the balance of his tenure to form a political party to fight corruption and the like
[Sunday Times (Bombay) dated June 25, 1995 page 28]. Serious doubts may arise regarding his
decisions if it is suspected that he has political ambitions, in the absence of any provision, such as,
Article 319 of the Constitution. The CEC is, it would appear, totally oblivious to sense of decorum
and discretion that his high office requires even if the cause is laudable.
That takes us to the question of legislative competence. The contention is that since Article 324 is
silent, Parliament eXpected the Commission itself to evolve its own procedure for transacting its
business and since the CEC was the repository of all power to be eXercised by the Commission
falling

within the scope of its activity, it did not see the need to engraft any procedure for transacting its
business. If the Election Commission at any time saw the need for it, it would itself evolve its
procedure but Parliament cannot do so and hence Sections 9 and 10 are unconstitutional. E Xcept the
legislation specifically permitted by clauses (2) and (5) of Art. 324 and Articles 327 and 328, Part XV
of the Constitution does not conceive of a law by Parliament on any other matter and hence the
impugned legislation is unconstitutional.
Now it must be noticed at the outset that both clauses (2) and (5) of Article 324 contemplate a
statute for the appointment of ECs and for their conditions of service. The impugned law provides
for both these matters and provisions to that effect cannot be challenged as uncontitutional since
they are eXpressly permitted by the said clauses (2) and (5). once the provision for the constitution
of a multi- member Commission is unassailable, provisions incidental thereto cannot be challenged.
It was urged that the legislation squarely fell within Entry 72 of list I of the Seventh Schedule. That
entry refers to "Elections to Parliament, to legislatures of States and to the Offices of President and
Vice-President; the Election Commission". If, as argued, the scope of this entry is relatable and
confined to clauses (2) and (5) of Article 324 and Articles 327 and 328 only, it would be mere
tautology. If the contention that the CEC alone has decisive power is not accepted, and we have not
accepted it, and even if it is assumed that the normal rule is of unanimily, sub-sections (1) and (2) of
Section 10 provide for unanimity. It is only if there is no unanimily that the rule of majority comes
into play under sub-section (3). Therefore, even if we were to assume that the Commission alone
was competent to lay down how it would transact its business, it would be required to follow the
same pattern as is set out in Section 10. We, therefore, see no merit in this contention also.
We would here like to make it clear that we should not be understood to approve of the ratin of
Dhanoa's case in its entirety. We have eXpressly approved it where required.
One of the matters to which we must advert is the question of the status of an individual whose
conditions of service are akin to those of the judges of the Supreme Court. This seems necessary in
view of the reliance placed by the CEC on this aspect to support his case. In the instant case some of
the service conditions of the CEC are akin to those of the Supreme Court Judges, namely, (i) the
provision that he can be removed from office in like manner and on like grounds as a Judge of the
Supreme Court and (ii) his conditions of service shall not be varied to his disadvantage after
appointment. So far as the first is concerned instead of repeating the provisions of Article 124(4), the
draftsman has incorporated the same by reference. The second provision is similar to the proviso to
Article 125(2). But does that confer the status of a Supreme Court Judge on the CEC? It appears
from the D.O. No.193/34/92 dated July 23, 1992 addressed to the then Home Secretary, Shri
Godbole, the CEC had suggested that the position of the CEC in the Warrant of Precedence needed
reconsideration. This issue he seems to have raised in his letter to the Prime Minister in December
1991. It becomes clear from Shri Godbole's reply dated July 25, 1992, that the CEC desired that he be
placed at No.9 in the Warrant of Precedence at which position the Judges of the Supreme Court
figured. It appears from Shri Godbole's reply that the proposal was considered but it was decided to
maintain the CEC's position at No.11 along with the Comptroller and Auditor General of India and
the Allorney General of India. However, during the course of the hearing of these petitions it was
stated that the CEC and the Comptroller and Auditor General of India were thereafter placed at

No.9A. At our request the learned Allorney General placed before us the revised Warrant of
Precedence which did reveal that the CEC had climbed to position No.9A along with the Comptroller
and Auditor General of India. Maintenance of the status of Judges of the Supreme Court and the
High Courts is highly desirable in the national interest. We mention this because of late we find that
even personnel belonging to other fora claim equation with High Court and Supreme Court Judges
merely because certain jurisdictions earlier eXercised by those Courts are transferred to them not
realising the distinction between constitutional and statutory functionaries. We would like to
impress on the Government that it should not confer equivalence or interfere with the Warrant of
Precedence, if it is likely to affect the position of High Court and Supreme Court Judges, however
pressing the demand may be, without first seeking the views of the Chief Justice of India. We may
add that Mr. G. Ramaswamy, learned counsel for the CEC, frankly conceded that the CEC could not
legitimately claim to be equated with Supreme Court Judges. We do hope that the Government will
take note of this and do the needful.
We have deliberately avoided going into the unpleasant e Xchanges that look place in the chamber of
the CEC on 11th October, 1993, to which reference has been made by the CEC in paragraph 18 (c to f
and g) of his petition. These allegations have been denied by Shri Krishnamurthy and Shri Gill does
not support the CEC when he says he was abused. Although these allegations and counter
allegations found their way into the press, we do not think any useful purpose will be served by
washing dirty linen in public e Xcept showing both the CEC and Shri Krishnamurthy in poor light.
The CEC and the ECs are high level functionaries. They have several years of e Xperience as civil
servants behind them. All of them have served in responsible positions at different levels. It is a pity
they did not try to work as a leam. The efforts of Shri Gill to persuade the other two to forget the past
and to get going with the job fell on deaf ears. Unfortunately, suspicion and distrust got the better of
them. We hope they will forget and forgive, start on a clean state of mutual respect and confidence
and get going with the lask entrusted to them in a sporting spirit always bearing in mind the fact
that the people of this great country are watching them with e Xpectation. For the sake of the people
and the country we do hope they will eschew their egos and work in a spirit of camaraderie.
In the result, we uphold the impugned Ordinance (now Act 4 of 1994) in its entirety. We also uphold
the two impugned notifications dated 1st October, 1993. Hence, the writ petitions fail and are
dismissed. The interim order dated 15th November, 1993 will stand vacated. If, as is reported, the
incumbent CEC has proceeded on leave, leaving the office in charge of Shri Bagga, Shri Bagga will
forthwith hand over charge to Shri Gill till the CEC resumes duty. The TAs will stand disposed of. In
the facts and circumstances of the case, we direct parties to bear their own costs. If the CEC has
incurred the costs of his petition from the funds of the Election Commission, the other two ECs will
be entitled to the same from the same source.

Pratap Singh vs State Of Jharkhand & Anr on 2 February, 2005
Author: H.K.Sema
Bench: N. Santosh Hegde, S.N. Variava, B.P. Singh, H.K. Sema
CASE NO.:
Appeal (crl.) 210 of 2005
PETITIONER:
Pratap Singh
RESPONDENT:
State of Jharkhand & Anr.
DATE OF JUDGMENT:
02/02/2005 BENCH:
N. SANTOSH HEGDE,S.N. VARIAVA,B.P. SINGH & H.K. SEMA
JUDGMENT:
J U D G M E N T (Arising out of Special Leave Petition (Crl.) NO. 3749 OF 2001) H.K.SEMA,J.
Leave granted.
This appeal is directed against the judgment and order dated 10.9.2001 passed by the High Court of
Jharkhand at Ranchi in Criminal Revision No. 98 of 2001.
Briefly stated the facts giving rise to the filing of the present appeal are as follows:-
First Information Report was lodged before the police in Bokaro city registered as P.S. case No.1/99
dated 1.1.1999 for the offence under Sections 364A, 302/201 IPC read with Section 120B IPC to the
effect that on 31.12.1998 the appellant was alleged as one of the conspirators to have caused the
death of the deceased by poisoning. On the basis of the FIR the appellant was arrested and produced
before the C.J.M. Chas on 22.11.1999. On production, the learned CJM assessed the age of the
appellant to be around 18 years old. On 28.2.2000, a petition was filed on behalf of the appellant
claiming that he was a minor on the date of occurrence i.e. 31.12.1998, whereupon the learned CJM
transmitted the case to the Juvenile Court. The appellant was produced in the Juvenile Court on
3.3.2000. On his production the Juvenile Court assessed the age of the appellant by appearance to
be between 15 and 16 years and directed the Civil Surgeon to constitute a Medical Board for the
purpose of assessing the age of the appellant by scientific e Xamination and submit a report. No such
Medical Board was constituted. Thus, the learned ACJM asked the parties to adduce evidence and
on eXamining the school leaving certificate and mark sheet of Central Board of Secondary Education
came to the finding that the appellant was below 16 years of age as on 31.12.1998 taking the date of
birth of the appellant as 18.12.1983 recorded in the aforesaid certificate. The appellant was then
released on bail.

Aggrieved thereby the informant filed an appeal before the 1st Additional Sessions Judge, who after
referring to the judgment of this Court rendered in Arnit Das vs. State of Bihar, (2000) 5 SCC 488
disposed of the appeal on 19.2.2001 holding that the Juvenile Court had erred in not taking note of
the fact that the date of production before the Juvenile Court was the date relevant for deciding
whether the appellant was juvenile or not for the purpose of trial and directed a fresh inquiry to
assess the age of the appellant. Aggrieved thereby the appellant moved the High Court by filing
Criminal Revision Petition. The High Court while disposing of the Revision has followed the
decision rendered by this Court in Arnit Das (supra) and held that reckoning date is the date of
production of the accused before the Court and not the date of the occurrence of the offence. The
High Court held that for determining the age of juvenile, the provisions of 1986 Act would apply and
not 2000 Act. The High Court, however, took the view that the date of birth, as recorded in the
school and the school certificate, should be the best evidence for fi Xing the age of the appellant. High
Court was also of the view that any other evidence in proof of age would be of much inferior quality.
As the enquiry is pending, we need not delve into this question.
Having noticed the conflicting views in Arnit Das vs. State of Bihar (2000) 5 SCC 488 and Umesh
Chandra Vs. State of Rajasthan (1982) 2 SCC 202, this matter has been referred to the Constitution
Bench by an order dated 7.2.2003. It reads:-
"The High Court in its impugned judgment has relied on a two- Judge bench decision of this Court
in Arnit Das vs. State of Bihar, 2000(5) SCC 488. The submission of the learned counsel for the
petitioner is that in Arnit Das (supra), the decision of this Court in Umesh Chandra vs. State of
Rajashtan, 1982(2) SCC 202, was not considered. The point arising is one of the frequent recurrence
and view of the law taken in this case is likely to have a bearing on the new Act, that is, Juvenile
Justice (Care and Protection) Act, 2000 also, the matter deserves to be heard by the Constitution
Bench of this Court. Be placed before the Hon.Chief Justice of India, soliciting directions."
This is how the matter has been placed before us.
The dual questions which require authoritative decision are:
(a) Whether the date of occurrence will be the reckoning date for determining the age of the alleged
offender as Juvenile offender or the date when he is produced in the Court/competent authority.
(b) Whether the Act of 2000 will be applicable in the case a proceeding initiated under 1986 Act and
pending when the Act of 2000 was enforced with effect from 1.4.2001.
Question (a) Whether the date of occurrence will be the reckoning date for determining the age of
the alleged offender as Juvenile offender or the date when he is produced in the Court/competent
authority.
Mr. Mishra submits that the decision in Umesh Chandra (supra) rendered by a three-Judge Bench
of this Court has laid down the correct law and a two-Judge Bench decision in Arnit Das (supra)
cannot be said to have laid down a correct law. Mr. Mishra also submits that the decision in Arnit

Das (supra) has not noticed the decision of a three-Judge Bench in Umesh Chandra (supra). Mr.
Mishra also referred to the aims and objects of the Juvenile Justice Act, 1986 (hereinafter referred to
as the 1986 Act) and submits that the whole object is to reform and rehabilitate the juvenile for the
offence he is alleged to have committed and if the date of offence is not taken as reckoning the age of
the juvenile, the purpose of the Act itself would be defeated. In this connection, he has referred to
Sections 18, 20, 26 and 32 of the Act. Per contra Mr. Sharan refers to the aims and objects of the Act
and various Sections of the Act and particularly emphasized the word is employed in Section 32 of
the Act and submits that cumulative reading of the provisions as well as of the scheme of the Act
would show that the reckoning date for determining the date of juvenile would come into play only
when a juvenile appears or is brought before the authority/court and not the date of an offence.
We may at this stage notice the preamble as well as object of the 1986 Act:
"An Act to provide for the care, protection, treatment, development and rehabilitation of neglected
or delinquent juveniles and for the adjudication of certain matters relating to, and disposition of,
delinquent juveniles.
Be it enacted by Parliament in the Thirty-seventh Year of the Republic of India as follows:-
Prefatory Note-Statement of Objects and Reasons.- A review of the working of the e Xisting Children
Acts would indicate that much greater attention is required to be given to children who may be
found in situations of social maladjustment, delinquency or neglect. The justice system as available
for adults is not considered suitable for being applied to juveniles. It is also necessary that a uniform
juvenile justice system should be available throughout the country which should make adequate
provision for dealing with all aspects in the changing social, cultural and economic situation in the
country. There is also need for larger involvement of informal systems and community based
welfare agencies in the care, protection, treatment, development and rehabilitation of such
juveniles.
2. In this conteXt, the proposed legislation aims at achieving the following objectives:-
(i) to lay down a uniform legal framework for juvenile justice in the country so as to ensure that no
child under any circumstances is lodged in jail or police lock-up. This is being ensured by
establishing Juvenile Welfare Boards and Juvenile Courts;
(ii) to provide for a specialized approach towards the prevention and treatment of juvenile
delinquency in its full range in keeping with the developmental needs of the child found in any
situation of social maladjustment;
(iii) to spell out the machinery and infrastructure required for the care, protection, treatment,
development and rehabilitation of various categories of children coming within the purview of the
juvenile justice system. This is proposed to be achieved by establishing observation homes, juvenile
homes for neglected juveniles and special homes for delinquent juveniles;

(iv) to establish norms and standards for the administration of juvenile justice in terms of
investigation and prosecution, adjudication and disposition, and care, treatment and rehabilitation;
(v) to develop appropriate linkages and co-ordination between the formal system of juvenile justice
and voluntary agencies engaged in the welfare of neglected or socially maladjusted children and to
specifically define the areas of their responsibilities and roles;
(vi) to constitute special offences in relation to juveniles and provide for punishments therefor;
(vii) to bring the operation of the juvenile justice system in the country in conformity with the
United Nations Standard Minimum Rule for the Administration of Juvenile Justice.
3. As its various provisions come into force in different parts of the country they would replace the
corresponding laws on the subject such as the Children Act, 1960 and other State enactments on the
subject."
Thus, the whole object of the Act is to provide for the care, protection, treatment, development and
rehabilitation of neglected delinquent juveniles. It is a beneficial legislation aimed at to make
available the benefit of the Act to the neglected or delinquent juveniles. It is settled law that the
interpretation of the Statute of beneficial legislation must be to advance the cause of legislation to
the benefit for whom it is made and not to frustrate the intendment of the legislation.
We may also, at this stage, notice the definition of delinquent juvenile. Sub-section (e) of Section 2
of the 1986 Act defines the delinquent juvenile as:
(e) "delinquent juvenile" means a juvenile who has been found to have committed an offence;"
Sub-section (l) of Section 2 of 2000 Act defines "juvenile in conflict with law" means a juvenile who
is alleged to have committed an offence. The notable distinction between the definitions of 1986 Act
and 2000 Act is that in 1986 Act "juvenile in conflict with law" is absent. The definition of
delinquent juvenile in 1986 Act as noticed above is referable to an offence said to have been
committed by him. It is the date of offence that he was in conflict with law. When a juvenile is
produced before the competent authority and or court he has not committed an offence on that date,
but he was brought before the authority for the alleged offence which he has been found to have
committed. In our view, therefore, what was implicit in 1986 Act has been made eXplicit in 2000
Act.
Section 32 of the 1986 Act deals with the presumption and determination of age, which reads:
"32. Presumption and determination of age.-(1) Where it appears to a competent authority that a
person brought before it under any of the provisions of this Act (otherwise than for the purpose of
giving evidence) is a juvenile, the competent authority shall make due inquiry as to the age of that
person and for that purpose shall take such evidence as may be necessary and shall record a finding
whether the person is a juvenile or not, stating his age as nearly as may be.

(2) No order of a competent authority shall be deemed to have become invalid merely by any
subsequent proof that the person in respect of whom the order has been made is not a juvenile, and
the age recorded by the competent authority to be the age of the person so brought before it shall,
for the purposes of this Act, be deemed to be the true age of that person."
Mr. Sharan stressed heavily on the word is used in two places of the Section and contended that the
word is suggests that for determination of age of juvenile the date of production would be reckoning
date as the inquiry with regard to his age begins from the date he is brought before the Court and
not otherwise. We are unable to countenance this submission. We have already noticed that the
definition of delinquent juvenile means a juvenile who has been found to have committed an
offence. The word is employed in Section 32 is referable to a juvenile who is said to have committed
an offence on the date of the occurrence. We may also notice the provisions of Section 18 of the 1986
Act. Section 18 provides for bail and custody of juveniles. It reads:-
18. BAIL AND CUSTODY OF JUVENILES.(1) When any person accused of a bailable or
non-bailable offence and apparently a juvenile is arrested or detained or appears or is brought
before a Juvenile Court, such person shall, notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, be released on
bail with or without surety but he shall not be so released if there appear reasonable grounds for
believing that the release is likely to bring him into association with any known criminal or e Xpose
him to moral danger or that his release would defeat the ends of justice.
(2) When such person having been arrested is not released on bail under sub-section (1) by the
officer-in-charge of the police station, such officer shall cause him to be kept in an observation home
or a place of safety in the prescribed manner (but not in a police station or jail) until he can be
brought before a Juvenile Court.
(3) When such person is not released on bail under sub-section (1) by the Juvenile Court it shall,
instead of committing him to prison, make an order sending him to an observation home or a place
of safety for such period during the pendency of the inquiry regarding him as may be specified in the
order."
It will be noticed that the word is has been used in more than one place in this Section also. Often
than not, an offender is arrested immediately after an offence is alleged to have been committed or
some time even arrested on the spot.
This would also show that the arrest and release on bail and custody of juveniles, the reckoning date
of a juvenile is the date of an offence and not the date of production.
Furthermore, Section 32 of the Act heavily relied upon by the counsel for the respondent does not
envisage the production of a juvenile in the Court.
We may also usefully refer to Sections 3 and 26 of the Act 1986. Sections 3 and 26 of the Act reads:-

"3. Continuation of inquiry in respect of juvenile who has ceased to be a juvenile.- Where an inquiry
has been initiated against a juvenile and during the course of such inquiry the juvenile ceases to be
such, then, notwithstanding anything contained in this Act or in any other law for the time being in
force, the inquiry may be continued and orders may be made in respect of such person as if such
person had continued to be a juvenile".
"26. Special provision in respect of pending cases.- Notwithstanding anything contained in this Act,
all proceedings in respect of a juvenile pending in any court in any area on the date on which this
Act comes into force in that area, shall be continued in that court as if this Act had not been passed
and if the court finds that the juvenile has committed an offence, it shall record such finding and
instead of passing any sentence in respect of the juvenile, forward the juvenile to the Juvenile Court
which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if
it had been satisfied on inquiry under this Act that the juvenile has committed the offence."
The legislative intendment underlying Sections 3 and 26 read with the preamble, aims and objects of
the Act is clearly discernible. A conjoint reading of the Sections, preamble, aims and objects of the
Act leaves no matter of doubt that the legislature intended to provide protection, treatment,
development and rehabilitation of neglected or delinquent juveniles and for the adjudication
thereof. Interpretation of Sections 3 and 26 of the Act are no more res-integra. Sections 3 and 26 of
the 1986 Act as quoted above are in pari materia with Sections 3 and 26 of the Rajasthan Children
Act, 1970 (Raj. Act 16 of 1970). A three-Judge bench of this Court in Umesh Chandra (supra) after
considering the preamble, aims and objects and Sections 3 and 26 of the Rajasthan Act, held that
the Act being a piece of social legislation is meant for the protection of infants who commit criminal
offences and, therefore, such provisions should be liberally and meaningfully construed so as to
advance the object of the Act. This Court then said in paragraph 28 at 210 SCC:-
"28. As regards the general applicability of the Act, we are clearly of the view that the relevant date
for the applicability of the Act is the date on which the offence takes place. Children Act was enacted
to protect young children from the consequences of their criminal acts on the footing that their mind
at that age could not be said to be mature for imputing mens rea as in the case of an adult. This
being the intendment of the Act, a clear finding has to be recorded that the relevant date for
applicability of the Act is the date on which the offence takes place. It is quite possible that by the
time the case comes up for trial, growing in age being an involuntary factor, the child may have
ceased to be a child. Therefore, Sections 3 and 26 became necessary. Both the sections clearly point
in the direction of the relevant date for the applicability of the Act as the date of occurrence. We are
clearly of the view that the relevant date for applicability of the Act so far as age of the accused, who
claims to be a child, is concerned, is the date of the occurrence and not the date of the trial."
(emphasis supplied) As already noticed the decision rendered by a three-Judge bench of this Court
in Umesh Chandra (supra) was not noticed by a two-Judge bench of this Court in Arnit Das (supra).
We are clearly of the view that the law laid down in Umesh Chandra (supra) is the correct law and
that the decision rendered by a two-Judge bench of this Court in Arnit Das (supra) cannot be said to
have laid down a good law. We, accordingly, hold that the law laid down by a three-Judge bench of
this Court in Umesh Chandra (supra) is the correct law.

Question No.(b):
Whether the Act of 2000 will be applicable in the case a proceeding is initiated under 1986 Act and
pending when the Act of 2000 was enforced with effect from 1.4.2001.
On this point, we have heard Mr. P.S.Mishra, learned senior counsel for the appellant, Ms.
Maharukh Adenwala, counsel for the intervener and Mr. Amarendra Sharan, learned ASG for the
State of Jharkhand. In fact counsel for the intervener has adopted the arguments of Mr. Mishra. Mr.
Mishra would submit that any proceeding against any person pending under the 1986 Act would be
covered by the 2000 Act and would eXtend the benefit of being a juvenile as defined under the 2000
Act, if at the time of the commission of the offence he was below the age of 18 years. To buttress his
point counsel heavily relied upon the provisions contained in Section 20 of the Act and Rules 61 and
62 framed by the Central Government. Per contra Mr. Sharan counsel for the respondent would
contend that the 1986 Act has been repealed by Section 69(1) of the 2000 Act and, therefore, the
provisions of 2000 Act would not be e Xtended to a case/inquiry initiated and pending under the
provisions of 1986 Act, the Act of 2000 being not retrospective.
To answer the aforesaid question, it would be necessary to make a quick survey of the definitions
and Sections of 2000 Act, relevant for the purpose of disposing of the case at hand.
As stated hereinabove the whole object of the Acts is to provide for the care, protection, treatment,
development and rehabilitation of juveniles. The Acts being benevolent legislations, an
interpretation must be given which would advance the cause of the legislation i.e. to give benefit to
the juveniles.
The 1986 Act was holding the field till it was eclipsed by the emergence of 2000 Act w.e.f. 1.4.2001,
the date on which the said Act came into force by the Notification dated 28.2.2001 in the Official
Gazette issued by the Central Government in e Xercise of the powers conferred by Sub- Section (3) of
Section 1 of the Act. Section 69(1) of the Act repealed the 1986 Act. It reads:-
69. Repeal and savings.-(1) The Juvenile Justice Act, 1986 (53 of 1986) is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the said Act shall be
deemed to have been done or taken under the corresponding provisions of this Act."
(emphasis supplied) Sub-Section (2) postulates that anything done or any action taken under the
1986 Act shall be deemed to have been done or taken under the corresponding provisions of the
2000 Act. Thus, although the 1986 Act was repealed by the 2000 Act, anything done or any action
taken under the 1986 Act is saved by sub-section (2), as if the action has been taken under the
provisions of the 2000 Act.
Section 20 on which reliance has been placed heavily by the counsel for the appellant deals with the
special provision in respect of pending cases. It reads:-

"20. Special provision in respect of pending cases.- Notwithstanding anything contained in this Act,
all proceedings in respect of a juvenile pending in any Court in any area on the date on which this
Act comes into force in that area, shall be continued in that Court as if this Act had not been passed
and if the Court finds that the juvenile has committed an offence, it shall record such finding and
instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which
shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had
been satisfied on inquiry under this Act that a juvenile has committed the offence."
The striking distinction between the 1986 Act and 2000 Act is with regard to the definition of
juvenile. Section 2(h) of the 1986 Act defines juvenile as under:-
"2(h) "juvenile" means a boy who has not attained the age of si Xteen years or a girl who has not
attained the age of eighteen years;"
Section 2(k) of 2000 Act defines juvenile as under:-
"2(k) "juvenile" or "child" means a person who has not completed eighteenth year of age;"
Thus, the striking distinction between the 1986 Act and 2000 Act is that under the 1986 Act a
juvenile means a male juvenile who has not attained the age of 16 years and a female juvenile who
has not attained the age of 18 years. In the 2000 Act no distinction has been drawn between the
male and female juvenile. The limit of 16 years in 1986 Act has been raised to 18 years in 2000 Act.
In the 2000 Act wherever the word "juvenile" appears the same will now have to be taken to mean a
person who has not completed 18 years of age.
Section 3 provides as follows:
"3. Continuation of inquiry in respect of juvenile who has ceased to be a juvenile.- Where an inquiry
has been initiated against a juvenile in conflict with law or a child in need of care and protection and
during the course of such inquiry the juvenile or the child ceases to be such, then notwithstanding
anything contained in this Act or in any other law for the time being in force, the inquiry may be
continued and orders may be made in respect of such person as if such person had continued to be a
juvenile or a child."
Thus, even where an inquiry has been initiated and the juvenile ceases to be a juvenile i.e. crosses
the age of 18 years, the inquiry must be continued and orders made in respect of such person as if
such person had continued to be a juvenile.
Similarly, under Section 64 where a juvenile is undergoing a sentence of imprisonment at the

commencement of the 2000 Act he would, in lieu of undergoing such sentence, be sent to a special
home or be kept in a fit institution. These provisions show that even in cases where a mere inquiry
has commenced or even where a juvenile has been sentenced the provisions of the 2000 Act would
apply. Therefore, Section 20 is to be appreciated in the conteXt of the aforesaid provisions.

Section 20 of the Act as quoted above deals with the special provision in respect of pending cases
and begins with non-obstante clause. The sentence "Notwithstanding anything contained in this Act,
all proceedings in respect of a juvenile pending in any Court in any area on date of which this Act
came into force" has great significance. The proceedings in respect of a juvenile pending in any court
referred to in Section 20 of the Act is relatable to proceedings initiated before the 2000 Act came
into force and which are pending when the 2000 Act came into force. The term "any court" would
include even ordinary criminal courts. If the person was a "juvenile" under the 1986 Act the
proceedings would not be pending in criminal courts. They would be pending in criminal courts only
if the boy had crossed 16 years or girl had crossed 18 years. This shows that Section 20 refers to
cases where a person had ceased to be a juvenile under the 1986 Act but had not yet crossed the age
of 18 years then the pending case shall continue in that Court as if the 2000 Act has not been passed
and if the Court finds that the juvenile has committed an offence, it shall record such finding and
instead of passing any sentence in respect of the juvenile, shall forward the juvenile to the Board
which shall pass orders in respect of that juvenile.
In this connection it is pertinent to note that Section 16 of the 2000 Act is identical to Section 22 of
the 1986 Act. Similarly Section 15 of the 2000 Act is in pari materia with Section 21 of the 1986 Act.
Thus, such an interpretation does not offend Article 20(1) of the Constitution of India and the
juvenile is not subjected to any penalty greater than that which might have been inflicted on him
under the 1986 Act.
Mr. Mishra placed reliance on Rules 61 and 62 framed by the Central Government. According to
him, particularly Rule 62 of the Rules covers the pending cases and the appellant is entitled to the
benefit of Rule 62. Rule 62 reads:-
"62. Pending Cases.-(1) No juvenile in conflict with law or a child shall be denied the benefits of the
Act and the rules made thereunder.
(2) All pending cases which have not received a finality shall be dealt with and disposed of in terms
of the provisions of the Act and the rules made thereunder.
(3) Any juvenile in conflict with law, or a child shall be given the benefits under sub-rule (1), and it is
hereby clarified that such benefits shall be made available not only to those accused who was
juvenile or a child at the time of commission of an offence, but also to those who ceased to be a
juvenile or a child during the pendency of any enquiry or trial.
(4) While computing the period of detention of stay of a juvenile in conflict with law or of a child, all
such period which the juvenile or the child has already spent in custody, detention or stay shall be
counted as part of the period of stay or detention contained in the final order of the competent
authority."
This Rule also indicates that the intention of the Legislature was that the provisions of the 2000 Act
were to apply to pending cases provided, on 1.4.2001 i.e. the date on which the 2000 Act came into
force, the person was a "juvenile" within the meaning of the term as defined in the 2000 Act i.e.

he/she had not crossed 18 years of age.
Mr. Mishra referred to the decision of the two-Judge Bench of this Court in Criminal Appeal No. 370
of 2003 decided on 31.3.2004 in the case of Upendra Kumar Vs. State of Bihar, wherein this Court
referred to the earlier decisions of this Court rendered in Bhola Bhagat vs. State of Bihar (1997) 8
SCC 720, Gopinath Ghosh vs. State of W.B. 1984 (Supp). SCC 228, Bhoop Ram Vs. State of U.P.(
1989) 3 SCC 1 and Pradeep Kuamr vs. State of U.P. 1995 Supp (4) SCC 419 where this Court came to
the conclusion that the accused who were juvenile could not be denied the benefit of the provisions
of the Act then in force. We, therefore, hold that the provisions of 2000 Act would be applicable to
those cases initiated and pending trial/inquiry for the offences committed under the 1986 Act
provided that the person had not completed 18 years of age as on 1.4.2001.
The net result is:-
(a) The reckoning date for the determination of the age of the juvenile is the date of an offence and
not the date when he is produced before the authority or in the Court.
(b) The 2000 Act would be applicable in a pending proceeding in any court/authority initiated
under the 1986 Act and is pending when the 2000 Act came into force and the person had not
completed 18 years of age as on 1.4.2001.
The appeal stands disposed of in the above terms.

State Of West Bengal & Ors vs Commtt.For Protect,Democratic ... on 17 February, 2010
Bench: K.G. Balakrishnan, R.V. Raveendran, D.K. Jain, P. Sathasivam, J.M. Panchal
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.6249-6250 0F 2001
STATE OF WEST BENGAL & ORS. -- APPELLANTS
VERSUS
THE COMMITTEE FOR PROTECTION OF DEMOCRATIC -- RESPONDENTS

RIGHTS, WEST BENGAL & ORS.
WITH
W.P. (CRL.) 24 OF 2008,
SLP (CRL.) NO.4096 OF 2007
AND
W.P. (C) NO.573 OF 2006
J U D G M E N T
D.K. JAIN, J.:
1. The issue which has been referred for the opinion of the Constitution Bench is whether the High
Court, in eXercise of its jurisdiction under Article 226 of the Constitution of India, can direct the
Central Bureau of Investigation (for short "the CBI"), established under the Delhi Special Police
Establishment Act, 1946 (for short "the Special Police Act"), to investigate a cognizable offence,
which is alleged to have taken place within the territorial jurisdiction of a State, without the consent
of the State Government.
2. For the determination of the afore-stated important legal issue, it is unnecessary to dilate on the
facts obtaining in individual cases in this bunch of civil appeals/special leave petitions/writ petitions
and a brief reference to the facts in Civil Appeal Nos.6249- 6250 of 2001, noticed in the referral
order dated 8th November, 2006, would suffice. These are:
One Abdul Rahaman Mondal (hereinafter referred to as, "the complainant") along with a large
number of workers of a political party had been staying in several camps of that party at Garbeta,
District Midnapore, in the State of West Bengal. On 4th January, 2001, the complainant and few
others decided to return to their homes from one such camp. When they reached the complainant's
house, some miscreants, numbering 50-60, attacked them with firearms and other eXplosives, which
resulted in a number of casualties. The complainant managed to escape from the place of
occurrence, hid himself and witnessed the carnage. He lodged a written complaint with the Garbeta
Police Station on 4th January, 2001 itself but the First Information Report ("the FIR" for short) for
offences under Sections 148/149/448/436/364/302/201 of the Indian Penal Code, 1860 (for short
"the IPC") read with Sections 25/27 of the Arms Act, 1959 and Section 9 (B) of the E Xplosives Act,
1884 was registered only on 5th January, 2001. On 8th January, 2001, Director General of Police,
West Bengal directed the C.I.D. to take over the investigations in the case. A writ petition under
Article 226 of the Constitution was filed in the High Court of Judicature at Calcutta by the
Committee for Protection of Democratic Rights, West Bengal, in public interest, inter alia, alleging
that although in the said incident 11 persons had died on 4th January, 2001 and more than three
months had elapsed since the incident had taken place yet e Xcept two persons, no other person
named in the FIR, had been arrested; no serious attempt had been made to get the victims identified
and so far the police had not been able to come to a definite conclusion whether missing persons
were dead or alive. It was alleged that since the police administration in the State was under the
influence of the ruling party which was trying to hide the incident to save its image, the
investigations in the incident may be handed over to the CBI, an independent agency.
3. Upon consideration of the affidavit filed in opposition by the State Government, the High Court
felt that in the background of the case it had strong reservations about the impartiality and fairness
in the investigation by the State police because of the political fallout, therefore, no useful purpose
would be served in continuing with the investigation by the State Investigating Agency. Moreover,
even if the investigation was conducted fairly and truthfully by the State police, it would still be
viewed with suspicion because of the allegation that all the assailants were members of the ruling
party. Having regard to all these circumstances, the High Court deemed it appropriate to hand over
the investigation into the said incident to the CBI.
4. Aggrieved by the order passed by the High Court, the State of West Bengal filed a petition for
special leave to appeal before this Court. On 3rd September, 2001 leave was granted. When the
matter came up for hearing before a two-Judge Bench on 8th November, 2006, taking note of the
contentions urged by learned counsel for the parties and the orders passed by this Court in The
Management of Advance Insurance Co. Ltd. Vs. Shri Gurudasmal & Ors.1 and Kazi Lhendup Dorji
Vs. Central Bureau of Investigation & Ors.2, the Bench was of the opinion that the question of law
involved in the appeals was of great public importance and was coming before the courts frequently
and, therefore, it was necessary that the issue be settled by a larger Bench. Accordingly, the Bench
directed that the papers of the case be placed before the Hon'ble Chief Justice of India for passing
appropriate orders for placing the matter before a larger Bench. When the matter came up before a
three-Judge Bench, 1970 (1) SCC 633 1994 Supp (2) SCC 116 headed by the Hon'ble Chief Justice of
India, on 29th August, 2008, this batch of cases was directed to be listed before a Constitution
Bench. This is how these matters have been placed before us.
The Rival Contentions:
5. Shri K.K. Venugopal, learned senior counsel appearing on behalf of the State of West Bengal,
referring to Entry 80 of List I of the Seventh Schedule to the Constitution of India; Entry 2 of List II

of the said Schedule as also Sections 5 and 6 of the Special Police Act strenuously argued that from
the said Constitutional and Statutory provisions it is evident that there is a complete restriction on
Parliament's legislative power in enacting any law permitting the police of one State to investigate
an offence committed in another State, without the consent of that State. It was urged that the
Special Police Act enacted in eXercise of the powers conferred under the Government of India Act,
1935, Entry 39 of List I (Federal Legislative List) of the Seventh Schedule, the field now occupied by
Entry 80 of List I of the Seventh Schedule of the Constitution, replicates the prohibition of police of
one State investigating an offence in another State without the consent of that State. It was
submitted that Entry 2 of List II which confers e Xclusive jurisdiction on the State Legislature in
regard to the police, the eXclusive jurisdiction of a State Legislature cannot be encroached upon
without the consent of the concerned State being obtained.
6. Learned senior counsel submitted that the separation of powers between the three organs of the
State, i.e. the Legislature, the EXecutive and the Judiciary would require each one of these organs to
confine itself within the field entrusted to it by the Constitution and not to act in contravention or
contrary to the letter and spirit of the Constitution.
7. Thus, the thrust of argument of the learned counsel was that both, the federal structure as well as
the principles of separation of powers, being a part of the basic structure of the Constitution, it is
neither permissible for the Central Government to encroach upon the legislative powers of a State in
respect of the matters specified in List II of the Seventh Schedule nor can the superior courts of the
land adjure such a jurisdiction which is otherwise prohibited under the Constitution. It was urged
that if the Parliament were to pass a law which authorises the police of one State to investigate in
another State without the consent of that State, such a law would be pro tanto invalid and, therefore,
the rule of law would require the courts, which are subservient to the Constitution, to ensure that
the federal structure embodied in the Constitution as a basic principle, is not disturbed by
permitting/directing the police force of a State to investigate an offence committed in another State
without the consent of that State.
8. Relying heavily on the observations of the Constitution Bench in Supreme Court Bar Association
Vs. Union of India & Anr.3 to the effect that Article 142, even with the width of its amplitude, cannot
be used to build a new edifice where none e Xisted earlier, by ignoring eXpress statutory provisions
dealing with a subject and thereby to achieve something indirectly which cannot be achieved
directly, learned counsel contended that when even Article 142 of the Constitution cannot be used by
this Court to act contrary to the e Xpress provisions of law, the High Court cannot issue any direction
ignoring the Statutory and Constitutional provisions. Learned counsel went to the e Xtent of arguing
that even when the State police is not in a position to conduct an impartial investigation because of
eXtraneous influences, the Court still cannot eXercise eXecutive power of directing the police force of
another State to carry out investigations without the consent of that State. In such a situation, the
matter is best left to the wisdom of the Parliament to enact an appropriate legislation to take care of
the situation. According to the learned counsel, till that (1998) 4 SCC 409 is done, even such an
eXtreme situation would not justify the Court upsetting the federal or quasi-federal system created
by the Constitution.

9. As regards the eXercise of jurisdiction by a High Court under Article 226 of the Constitution,
learned counsel submitted that apart from the fact that there is a significant difference between the
power of this Court under Article 142 of the Constitution and the jurisdiction of the High Court
under Article 226 of the Constitution because of territorial limitations under Article 226 (1) of the
Constitution, a High Court is disentitled from issuing any direction to the authorities situated
outside the territories over which it has jurisdiction. According to the learned counsel Clause (2) of
Article 226 would have no application in a case, such as the present one, since the cause of action
was complete at the time of filing the writ petition and the power under Clause (2) can be e Xercised
only where there is a neXus between the cause of action which arises wholly or partly within the
State and the authority which is situated outside the State. It was asserted that the CBI being a rank
outsider, unconnected to the incident, which took place within the State of West Bengal, the
investigation of which was being conducted by the jurisdictional local police in West Bengal, had no
authority to take up the case for investigation.
10. Shri Goolam E. Vahanvati, learned Solicitor General of India, appearing on behalf of the Union of
India, submitted that the entire approach of the State being based on an assumption that the alleged
restriction on Parliament's legislative power under Entry 80 of List I of the Seventh Schedule to the
Constitution and restriction on the power of the Central Government under Section 6 of the Special
Police Act to issue a notification binds the constitutional courts i.e. the Supreme Court and the High
Courts is fallacious, inasmuch as the restrictions on the Central Government and Parliament cannot
be inferentially eXtended to be restrictions on the Constitutional Courts in e Xercise of their powers
under Articles 32 and 226 of the Constitution as it is the obligation of the Superior Courts to protect
the citizens and enforce their fundamental rights. Learned counsel vehemently argued that the stand
of the appellants that the eXercise of power by the Supreme Court or the High Courts to refer
investigation to CBI directly without prior approval of the concerned State Government would
violate the federal structure of the Constitution is again misconceived as it overlooks the basic fact
that in a federal structure it is the duty of the courts to uphold the Constitutional values and to
enforce the Constitutional limitations as an ultimate interpreter of the Constitution. In support of
the proposition, learned counsel placed reliance on the decisions of this Court in State of Rajasthan
& Ors. Vs. Union of India & Ors.4, S.R. Bommai & Ors. Vs. Union of India & Ors.5 and Kuldip Nayar
& Ors. Vs. Union of India & Ors.6.
11. Relying on the recent decision by a Bench of nine Judges of this Court in I.R. Coelho (D) By LRs.
Vs. State of Tamil Nadu7, learned counsel submitted that the judicial review being itself the basic
feature of the Constitution, no restriction can be placed even by inference and by principle of
legislative competence on the powers of the Supreme Court and the High Courts with regard to the
enforcement of fundamental rights and protection of the citizens of India. Learned counsel asserted
that in eXercise of powers either under Article 32 or 226 of the Constitution, the courts are merely
discharging their duty of judicial review and are neither usurping any jurisdiction, nor overriding
the doctrine of separation of powers. In support of the proposition that the jurisdiction conferred on
the Supreme Court by Article 32 as also on the High Courts under Article 226 of the Constitution is
an important and integral part of the basic structure of the Constitution, learned counsel placed
reliance on the decisions of this Court in Special (1977) 3 SCC 592 (1994) 3 SCC 1 (2006) 7 SCC 1
(2007) 2 SCC 1 Reference No.1 of 19648, Minerva Mills Ltd. & Ors. Vs. Union of India & Ors.9,

Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. Vs. Union of India & Ors. 10, Nilabati
Behera Vs. State of Orissa & Ors.11 and L. Chandra Kumar Vs. Union of India & Ors.12. Relying on
the decision of this Court in Dwarkanath, Hindu Undivided Family Vs. Income-Tax Officer, Special
Circle, Kanpur & Anr.13, learned counsel emphasised that the powers of the High Court under
Article 226 are also wide and plenary in nature similar to that of the Supreme Court under Article 32
of the Constitution.
The Questions for Consideration:
12. It is manifest that in essence the objection of the appellant to the CBI's role in police investigation
in a State without its consent, proceeds on the doctrine of distribution of legislative powers as
between the Union and the State Legislatures particularly with reference to the three Lists in the
Seventh Schedule of the Constitution and the distribution of powers between the said three organs
of the State.
13. In order to appreciate the controversy, a brief reference to some of the provisions in the
Constitution [1965] 1 S.C.R. 413 (1980) 3 SCC 625 (1981) 1 SCC 568 (1993) 2 SCC 746 (1997) 3 SCC
261 [1965] 3 S.C.R. 536 would be necessary. The Constitution of India is divided into several parts,
each part dealing in detail with different aspects of the social, economic, political and administrative
set up. For the present case, we are mainly concerned with Part III of the Constitution, which
enumerates the fundamental rights guaranteed by the State primarily to citizens and in some cases
to every resident of India and Part XI thereof, which pertains to the relations between the Union and
the States.
14. Bearing in mind the basis on which the correctness of the impugned direction is being questioned
by the State of West Bengal, we shall first notice the scope and purport of Part XI of the
Constitution. According to Article 1 of the Constitution, India is a Ùnion' of States, which means a
Federation of States. Every federal system requires division of powers between the Union and State
Governments, which in our Constitution is effected by Part XI thereof. While Articles 245 to 255
deal with distribution of legislative powers, the distribution of administrative powers is dealt with in
Articles 256 to
261. Under the Constitution, there is a three-fold distribution of legislative powers between the
Union and the States, made by the three Lists in the Seventh Schedule of the Constitution. While
Article 245 confers the legislative powers upon the Union and the States, Article 246 provides for
distribution of legislative powers between the Union and the States. Article 246, relevant for our
purpose, reads as follows:
"246. Subject-matter of laws made by Parliament and by the Legislatures of States --

(1) Notwithstanding anything in clauses (2) and (3), Parliament has eXclusive power
to make laws with respect to any of the matters enumerated in List I in the Seventh
Schedule (in this Constitution referred to as the "Union List").

(2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the
Legislature of any State also, have power to make laws with respect to any of the
matters enumerated in List III in the Seventh Schedule (in this Constitution referred
to as the "Concurrent List").
(3) Subject to clauses (1) and (2), the Legislature of any State has e Xclusive power to
make laws for such State or any part thereof with respect to any of the matters
enumerated in List II in the Seventh Schedule (in this Constitution referred to as the
`State List').
(4) Parliament has power to make laws with respect to any matter for any part of the
territory of India not included in a State notwithstanding that such matter is a matter
enumerated in the State List."
15. The Article deals with the distribution of legislative powers between the Union and the State
Legislatures. List I or the Ùnion List' enumerates the subjects over which the Union shall have
eXclusive powers of legislation in respect of 99 items or subjects, which include Defence etc.; List II
or the `State List' comprises of subjects, which include Public Order, Police etc., over which the
State Legislature shall have eXclusive power of legislation and List III gives concurrent powers to the
Union and the State Legislatures to legislate in respect of items mentioned therein. The Article
postulates that Parliament shall have e Xclusive power to legislate with respect to any of the matters
enumerated in List I notwithstanding anything contained in clauses (2) and (3). The non obstante
clause in Article 246(1) contemplates the predominance or supremacy of the Union Legislature. This
power is not encumbered by anything contained in clause (2) and (3) for these clauses themselves
are eXpressly limited and made subject to the non obstante clause in Article 246(1). The State
Legislature has eXclusive power to make laws for such State or any part thereof with respect to any
of the matters enumerated in List II in the Seventh Schedule and it also has the power to make laws
with respect to any matters enumerated in List III (Concurrent List). The e Xclusive power of the
State Legislature to legislate with respect to any of the matters enumerated in List II has to be
eXercised subject to clause (1) i.e. the e Xclusive power of Parliament to legislate with respect to
matters enumerated in List I. As a consequence, if there is a conflict between an Entry in List I and
an Entry in List II, which is not capable of reconciliation, the power of Parliament to legislate with
respect to a matter enumerated in List II must supersede pro tanto the e Xercise of power of the State
Legislature. Both Parliament and the State Legislature have concurrent powers of legislation with
respect to any of the matters enumerated in List III. The words "notwithstanding anything
contained in clauses (2) and (3)" in Article 246 (1) and the words "subject to clauses (1) and (2)" in
Article 246 (3) lay down the principle of federal supremacy viz. that in case of inevitable conflict
between Union and State powers, the Union power as enumerated in List I shall prevail over the
State power as enumerated in Lists II and III and in case of an overlapping between Lists II and III,
the latter shall prevail. Though, undoubtedly, the Constitution e Xhibits supremacy of Parliament
over State Legislatures, yet the principle of federal supremacy laid down in Article 246 of the
Constitution cannot be resorted to unless there is an irreconcilable direct conflict between the
entries in the Union and the State Lists. Thus, there is no quarrel with the broad proposition that
under the Constitution there is a clear demarcation of legislative powers between the Union and the

States and they have to confine themselves within the field entrusted to them. It may also be borne
in mind that the function of the Lists is not to confer powers; they merely demarcate the Legislative
field. But the issue we are called upon to determine is that when the scheme of Constitution
prohibits encroachment by the Union upon a matter which e Xclusively falls within the domain of the
State Legislature, like public order, police etc., can the third organ of the State viz. the Judiciary,
direct the CBI, an agency established by the Union to do something in respect of a State subject,
without the consent of the concerned State Government?
16. In order to adjudicate upon the issue at hand, it would be necessary to refer to some other
relevant Constitutional and Statutory provisions as well.
17. As noted earlier, the Special Police Act was enacted by the Governor General in Council in
eXercise of the powers conferred by the Government of India Act, 1935 (Entry 39 of List I, Seventh
Schedule). The said Entry reads as under:-
"EXtension of the powers and jurisdiction of members of a police force belonging to

any part of British India to any area in another Governor's Province or Chief
Commissioner's Province, but not so as to enable the police of one part to e Xercise
powers and jurisdiction elsewhere without the consent of the Government of the
Province or the Chief Commissioner as the case may be; eXtension of the powers and
jurisdiction of members of a police force belonging to any unit to railway areas
outside that unit."
It is manifest that the Special Police Act was passed in terms of the said Entry imposing prohibition
on the Federal Legislature to enact any law permitting the police of one State from investigating an
offence committed in another State, without the consent of the State. The said Entry was replaced by
Entry 80 of List I of the Seventh Schedule to the Constitution of India. The said entry reads thus:
"EXtension of the powers and jurisdiction of members of a police force belonging to

any State to any area outside that State, but not so as to enable the police of one State
to eXercise powers and jurisdiction in any area outside that State without the consent
of the Govt. of the State in which such area is situated; e Xtension of the powers and
jurisdiction of members of a police force belonging to any State to railway areas
outside that State."
Entry 2 of List II of the Constitution of India, which corresponds to Entry 2 List II of the
Government of India Act, conferring eXclusive jurisdiction to the States in matter relating to police
reads as under:
Entry 2 List II:
"Police (including railway and village police) subject to the provisions of entry 2A of
List I."

Entry 2A of List I:
"Development of any armed force of the Union or any other force subject to the
control of the Union or any contingent or unit thereof in any State in aid of the civil
power; powers, jurisdiction, privileges and liabilities of the members of such forces
while on such deployment."
18. From a bare reading of the afore-noted Constitutional provisions, it is manifest that by virtue of
these entries, the legislative power of the Union to provide for the regular police force of one State to
eXercise power and jurisdiction in any area outside the State can only be e Xercised with the consent
of the Government of that particular State in which such area is situated, e Xcept the police force
belonging to any State to eXercise power and jurisdiction to railway areas outside that State.
19. As the preamble of the Special Police Act states, it was enacted with a view to constitute a special
force in Delhi for the investigation of certain offences in the Union Territories and to make
provisions for the superintendence and administration of the said force and for the e Xtension to
other areas of the powers and jurisdiction of the members of the said force in regard to the
investigation of the said offences. Sub-section (1) of Section 1 specifies the title of the Special Police
Act and sub-section (2) speaks that the Special Police Act e Xtends to the whole of India. Section 2
contains 3 sub-sections. Sub-section (1) empowers the Central Government to constitute a special
police force to be called the Delhi Special Police Establishment for the investigation of offences
notified under Section 3 in any Union Territory; sub-section (2) confers upon the members of the
said police establishment in relation to the investigation of such offences and arrest of persons
concerned in such offences, all the powers, duties, privileges and liabilities which police officers of
that Union Territory have in connection with the investigation of offences committed therein and
sub-section (3) provides that any member of the said police establishment of or above the rank of
Sub-Inspector be deemed to be an officer in charge of a police station. Under Section 3 of the Special
Police Act, the Central Government is required to specify and notify the offences or classes of
offences which are to be investigated by the Delhi Special Police Establishment, constituted under
the Special Police Act, named "the CBI". Section 4 deals with the administrative control of the
establishment and according to sub-section (2), the "superintendence" of the Establishment vests in
the Central Government and the administration of the said establishment vests in an officer
appointed in this behalf by the Central Government. E X plaining the meaning of the word
"Superintendence" in Section 4(1) and the scope of the authority of the Central Government in this
conteXt, in Vineet Narain & Ors. Vs. Union of India & Anr. 14, a Bench of three Judges of this Court
said:
"40. The word "superintendence" in Section 4(1) cannot be construed in a wider

sense to permit supervision of the actual investigation of an offence by the CBI
contrary to the manner provided by the statutory provisions. The broad proposition
urged on behalf of the Union of India that it can issue any directive to the CBI to
curtail or inhibit its jurisdiction to investigate an offence specified in the notification
issued under Section 3 by a directive under Section 4(1) of the Act cannot be
accepted. The jurisdiction of the CBI to investigate an offence is to be determined

with reference to the notification issued under (1998) 1 SCC 226 Section 3 and not by
any separate order not having that character."
20. Section 5 of the Special Police Act empowers the Central Government to e Xtend the powers and
jurisdiction of the Special Police Establishment to any area, in a State, not being a Union Territory
for the investigation of any offences or classes of offences specified in a notification under Section 3
and on such eXtension of jurisdiction, a member of the Establishment shall discharge the functions
of a police officer in that area and shall, while so discharging such functions, be deemed to be a
member of the police force of that area and be vested with the powers, functions and privileges and
be subject to the liabilities of a police officer belonging to that police force.
21. Section 6, the pivotal provision, reads as follows:-
"6. Consent of State Government to e Xercise of powers and jurisdiction. - Nothing

contained in Section 5 shall be deemed to enable any member of the Delhi Special
Police Establishment to eXercise powers and jurisdiction in any area in a State, not
being a Union Territory or railway area, without the consent of the Government of
that State."
22. Thus, although Section 5(1) empowers the Central Government to eXtend the powers and
jurisdiction of members of the Delhi Special Police Establishment to any area in a State, but Section
6 imposes a restriction on the power of the Central Government to e Xtend the jurisdiction of the said
Establishment only with the consent of the State Government concerned.
23. Having noticed the scope and amplitude of Sections 5 and 6 of the Special Police Act, the
question for consideration is whether the restriction imposed on the powers of the Central
Government would apply mutatis mutandis to the Constitutional Courts as well. As stated above, the
main thrust of the argument of Shri K.K. Venugopal, learned senior counsel, is that the course
adopted by the High Court in directing the CBI to undertake investigation in the State of West
Bengal without the consent of the State is incompatible with the federal structure as also the
doctrine of separation of powers between the three organs of the State, embodied in the Constitution
even when the High Court, on the material before it, was convinced that the State Police was
dragging its feet in so far as investigation into the 4th January, 2001 carnage was concerned.
24. In so far as the first limb of the argument is concerned, it needs little emphasis that, e Xcept in the
circumstances indicated above, in a federal structure, the Union is not permitted to encroach upon
the legislative powers of a State in respect of the matters specified in List II of the Seventh Schedule.
However, the second limb of the argument of the learned counsel in regard to the applicability of the
doctrine of separation of powers to the issue at hand, in our view, is clearly untenable. Apart from
the fact that the question of Centre - State relationship is not an issue in the present case, a
Constitutional Court being itself the custodian of the federal structure, the invocation of the federal
structure doctrine is also misplaced.

25. In a democratic country governed by a written Constitution, it is the Constitution which is
supreme and sovereign. As observed in Raja Ram Pal Vs. Hon'ble Speaker, Lok Sabha & Ors.15, the
Constitution is the suprema le X in this country. All organs of the State, including this Court and the
High Courts, derive their authority, jurisdiction and powers from the Constitution and owe
allegiance to it. Highlighting the fundamental features of a federal Constitution, in Special Reference
No.1 (supra), the Constitution Bench (7-Judges) observed as follows:
"...the essential characteristic of federalism is `the distribution of limited e Xecutive,

legislative and judicial authority among bodies which are coordinate with and
independent of each other'. The supremacy of the Constitution is fundamental to the
eXistence of a federal State in order to prevent either the legislature of the federal unit
or those of the member States from destroying or impairing that delicate balance of
power which satisfies the particular requirements of States which are desirous of
union, but not prepared to merge their individuality in a unity. This supremacy of the
Constitution is protected by the (2007) 3 SCC 184 authority of an independent
judicial body to act as the interpreter of a scheme of distribution of powers."
26. It is trite that in the Constitutional Scheme adopted in India, besides supremacy of the
Constitution, the separation of powers between the legislature, the eXecutive and the judiciary
constitutes the basic features of the Constitution. In fact, the importance of separation of powers in
our system of governance was recognised in Special Reference No.1 (supra), even before the basic
structure doctrine came to be propounded in the celebrated case of His Holiness Kesavananda
Bharati Sripadagalvaru Vs. State of Kerala & Anr.16, wherein while finding certain basic features of
the Constitution, it was opined that separation of powers is part of the basic structure of the
Constitution. Later, similar view was echoed in Smt. Indira Nehru Gandhi Vs. Shri Raj Narain &
Anr.17 and in a series of other cases on the point. Nevertheless, apart from the fact that our
Constitution does not envisage a rigid and strict separation of powers between the said three organs
of the State, the power of judicial review stands entirely on a different pedestal. Being itself part of
the basic structure of the Constitution, it cannot be ousted or abridged by even a Constitutional
amendment. [See: L. Chandra Kumar Vs. Union of India & Ors. (supra)]. Besides, judicial review
(1973) 4 SCC 225 1975 (Supp) SCC 1 is otherwise essential for resolving the disputes regarding the
limits of Constitutional power and entering the Constitutional limitations as an ultimate interpreter
of the Constitution. In Special Reference No.1 of 1964 (supra), it was observed that whether 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. In Smt. Indira Nehru
Gandhi (supra), Y.V. Chandrachud, J. (as His Lordship then was), drawing distinction between the
American and Australian Constitution on the one hand and the Indian Constitution on the other,
observed that the principle of separation of powers is not a magic formula for keeping the three
organs of the State within the strict confines of their functions. The learned judge also observed that
in a federal system, which distributes powers between three coordinate branches of government,
though not rigidly, disputes regarding the limits of Constitutional power have to be resolved by
courts. Quoting George Whitecross Paton, an Australian Legal Scholar, that "the distinction between
judicial and other powers may be vital to the maintenance of the Constitution itself", the learned

judge said that the principle of separation of powers is a principle of restraint which "has in it the
percept, innate in the prudence of self-preservation (even if history has not repeatedly brought in
home), that discretion is the better part of valour"18.
27. Recently in State of U.P. & Ors. Vs. Jeet S. Bisht & Anr.19, S.B. Sinha, J. dealt with the topic of
separation of powers in the following terms:
"77. Separation of powers is a favourite topic for some of us. Each organ of the State
in terms of the constitutional scheme performs one or the other functions which have
been assigned to the other organ. Although drafting of legislation and its
implementation by and large are functions of the legislature and the eXecutive
respectively, it is too late in the day to say that the constitutional court's role in that
behalf is non-eXistent. The judge-made law is now well recognised throughout the
world. If one is to put the doctrine of separation of power to such a rigidity, it would
not have been possible for any superior court of any country, whether developed or
developing, to create new rights through interpretative process.
78. Separation of powers in one sense is a limit on active jurisdiction of each organ.
But it has another deeper and more relevant purpose: to act as check and balance
over the activities of other organs. Thereby the active jurisdiction of the organ is not
challenged; nevertheless there are methods of prodding to communicate the
institution of its eXcesses and shortfall in duty. Constitutional mandate sets the
dynamics of this communication between the organs of polity. Therefore, it is
suggested to not understand separation of powers as operating in vacuum.
Separation of powers doctrine has been reinvented in modern times.
XXX XXX XXX Julius Stone: Social Dimensions of Law and Justice, (1966) p.
668. (2007) 6 SCC 586
80. The modern view, which is today gathering momentum in constitutional courts the world over,
is not only to demarcate the realm of functioning in a negative sense, but also to define the
minimum content of the demarcated realm of functioning. Objective definition of function and role
entails eXecuting the same, which however may be subject to the plea of financial constraint but only
in eXceptional cases. In event of any such shortcoming, it is the essential duty of the other organ to
advise and recommend the needful to substitute inaction. To this e Xtent we must be prepared to
frame answers to these difficult questions.
XXX XXX XXX
83. If we notice the evolution of separation of powers doctrine, traditionally the checks and balances
dimension was only associated with governmental e Xcesses and violations. But in today's world of
positive rights and justifiable social and economic entitlements, hybrid administrative bodies,
private functionaries discharging public functions, we have to perform the oversight function with

more urgency and enlarge the field of checks and balances to include governmental inaction.
Otherwise we envisage the country getting transformed into a state of repose. Social engineering as
well as institutional engineering therefore forms part of this obligation."
28. Having discussed the scope and width of the doctrine of separation of powers, the moot question
for consideration in the present case is that when the fundamental rights, as enshrined in Part III of
the Constitution, which include the right to equality (Article 14); the freedom of speech [Article 19(1)
(a)] and the right not to be deprived of life and liberty e Xcept by procedure established by law
(Article 21), as alleged in the instant case, are violated, can their violation be immunised from
judicial scrutiny on the touchstone of doctrine of separation of powers between the Legislature,
EXecutive and the Judiciary. To put it differently, can the doctrine of separation of powers curtail the
power of judicial review, conferred on the Constitutional Courts even in situations where the
fundamental rights are sought to be abrogated or abridged on the ground that eXercise of such
power would impinge upon the said doctrine?
29. The Constitution is a living and organic document. It cannot remain static and must grow with
the nation. The Constitutional provisions have to be construed broadly and liberally having regard
to the changed circumstances and the needs of time and polity. In Kehar Singh & Anr. Vs. Union of
India & Anr.20, speaking for the Constitution Bench, R.S. Pathak, C.J. held that in keeping with
modern Constitutional practice, the Constitution of India is a constitutive document, fundamental
to the governance of the country, whereby the people of India have provided a Constitutional polity
consisting of certain primary organs, institutions and functionaries with the intention of working
out, maintaining and operating a Constitutional order. On the aspect of interpretation of a
Constitution, the following observations of Justice (1989) 1 SCC 204 Dickson of the Supreme Court
of Canada in Lawson A.W. Hunter & Ors. Vs. Southam Inc.21 are quite apposite:
"The task of eXpounding a constitution is crucially different from that of construing a

statute. A statute defines present rights and obligations. It is easily enacted and as
easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its
function is to provide a continuing framework for the legitimate e X ercise of
governmental power and, when joined by a Bill or a Charter of rights, for the
unremitting protection of individual rights and liberties. Once enacted, its provisions
cannot easily be repealed or amended. It must, therefore, be capable of growth and
development over time to meet new social, political and historical realities often
unimagined by its framers. The judiciary is the guardian of the constitution and must,
in interpreting its provisions, bear these considerations in mind."
30. In M. Nagaraj & Ors. Vs. Union of India & Ors.22, speaking for the Constitution Bench, S.H.
Kapadia, J. observed as under:
"The Constitution is not an ephemeral 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 a constitutional
provision does not get fossilised but remains fleXible enough to meet the newly
emerging problems and challenges."
[Emphasis supplied] (1984) 2 S.C.R.145 (Can SC) (2006) 8 SCC 212
31. Recently, in I.R. Coelho (supra), noticing the principles relevant for the interpretation of
Constitutional provisions, Y.K. Sabharwal, C.J., speaking for the Bench of nine Judges of this Court,
observed as follows:
"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."
Observing further that the protection of fundamental constitutional rights through the common law
is the main feature of common law constitutionalism, the Court went on to say:
"Under the controlled Constitution, the principles of checks and balances have an
important role to play. Even in England where Parliament is sovereign, Lord Steyn
has observed that in certain circumstances, Courts may be forced to modify the
principle of parliamentary sovereignty, for eXample, in cases where judicial review is
sought to be abolished. By this the judiciary is protecting a limited form of
constitutionalism, ensuring that their institutional role in the Government is
maintained."
32. The Constitution of India eXpressly confers the power of judicial review on this Court and the
High Courts under Article 32 and 226 respectively. Dr. B.R. Ambedkar described Article 32 as the
very soul of the Constitution
- the very heart of it - the most important Article. By now, it is well settled that the power of judicial
review, vested in the Supreme Court and the High Courts under the said Articles of the Constitution,
is an integral part and essential feature of the Constitution, constituting part of its basic structure.
Therefore, ordinarily, the power of the High Court and this Court to test the Constitutional validity
of legislations can never be ousted or even abridged. Moreover, Article 13 of the Constitution not

only declares the pre- constitution laws as void to the eXtent to which they are inconsistent with the
fundamental rights, it also prohibits the State from making a law which either takes away totally or
abrogates in part a fundamental right. Therefore, judicial review of laws is embedded in the
Constitution by virtue of Article 13 read with Articles 32 and 226 of our Constitution. It is manifest
from the language of Article 245 of the Constitution that all legislative powers of the Parliament or
the State Legislatures are eXpressly made subject to other provisions of the Constitution, which
obviously would include the rights conferred in Part III of the Constitution. Whether there is a
contravention of any of the rights so conferred, is to be decided only by the Constitutional Courts,
which are empowered not only to declare a law as unconstitutional but also to enforce fundamental
rights by issuing directions or orders or writs of or "in the nature of" mandamus, certiorari, habeas
corpus, prohibition and quo warranto for this purpose. It is pertinent to note that Article 32 of the
Constitution is also contained in Part III of the Constitution, which enumerates the fundamental
rights and not alongside other Articles of the Constitution which define the general jurisdiction of
the Supreme Court. Thus, being a fundamental right itself, it is the duty of this Court to ensure that
no fundamental right is contravened or abridged by any statutory or constitutional provision.
Moreover, it is also plain from the eXpression "in the nature of" employed in clause (2) of Article 32
that the power conferred by the said clause is in the widest terms and is not confined to issuing the
high prerogative writs specified in the said clause but includes within its ambit the power to issue
any directions or orders or writs which may be appropriate for enforcement of the fundamental
rights. Therefore, even when the conditions for issue of any of these writs are not fulfilled, this Court
would not be constrained to fold its hands in despair and plead its inability to help the citizen who
has come before it for judicial redress. (per P.N. Bhagwati, J. in Bandhua Mukti Morcha Vs. Union
of India & Ors.23).
33. In this conteXt, it would be profitable to make a reference to the decision of this Court in Nilabati
Behera (supra). The Court concurred with the view e Xpressed by this Court in Khatri & Ors. (II) Vs.
State of Bihar & Ors.24 and Khatri & Ors. (IV) Vs. State of Bihar & Ors.25, wherein it was said that
the Court is not helpless to grant relief in a case of violation of the right to life and personal liberty,
and it should be prepared "to forge new tools and devise new remedies" for the purpose of
vindicating these precious fundamental rights. It was also indicated that the procedure suitable in
the facts of the case must be adopted for conducting the enquiry, needed to ascertain the necessary
facts, for granting the relief, as may be available mode of redress, for enforcement of the guaranteed
fundamental rights. In his concurring judgment, Dr. A.S. Anand, J. (as His Lordship then was),
observed as under:
"35. This Court and the High Courts, being the protectors of the civil liberties of the
citizen, have not only the power and jurisdiction but also an obligation to grant relief
in eXercise of its jurisdiction under Articles 32 and 226 of the Constitution to the
victim or the heir of the victim whose fundamental rights under Article 21 of the
(1984) 3 SCC 161 (1981) 1 SCC 627 (1981) 2 SCC 493 Constitution of India are
established to have been flagrantly infringed by calling upon the State to repair the
damage done by its officers to the fundamental rights of the citizen, notwithstanding
the right of the citizen to the remedy by way of a civil suit or criminal proceedings.
The State, of course has the right to be indemnified by and take such action as may be

available to it against the wrongdoer in accordance with law - through appropriate
proceedings."
34. It may not be out of place to mention that in so far as this Court is concerned, apart from Articles
32 and 142 which empower this Court to issue such directions, as may be necessary for doing
complete justice in any cause or matter, Article 144 of the Constitution also mandates all authorities,
civil or judicial in the territory of India, to act in aid of the orders passed by this Court.
35. As regards the power of judicial review conferred on the High Court, undoubtedly they are, in a
way, wider in scope. The High Courts are authorised under Article 226 of the Constitution, to issue
directions, orders or writs to any person or authority, including any government to enforce
fundamental rights and, "for any other purpose". It is manifest from the difference in the
phraseology of Articles 32 and 226 of the Constitution that there is a marked difference in the nature
and purpose of the right conferred by these two Articles. Whereas the right guaranteed by Article 32
can be eXercised only for the enforcement of fundamental rights conferred by Part III of the
Constitution, the right conferred by Article 226 can be e Xercised not only for the enforcement of
fundamental rights, but "for any other purpose" as well, i.e. for enforcement of any legal right
conferred by a Statute etc.
36. In Tirupati Balaji Developers (P) Ltd. & Ors. Vs. State of Bihar & Ors.26, this Court had observed
thus:
"8. Under the constitutional scheme as framed for the judiciary, the Supreme Court
and the High Courts both are courts of record. The High Court is not a court
"subordinate" to the Supreme Court. In a way the canvas of judicial powers vesting in
the High Court is wider inasmuch as it has jurisdiction to issue all prerogative writs
conferred by Article 226 of the Constitution for the enforcement of any of the rights
conferred by Part III of the Constitution and for any other purpose while the original
jurisdiction of Supreme Court to issue prerogative writs remains confined to the
enforcement of fundamental rights and to deal with some such matters, such as
Presidential elections or inter-State disputes which the Constitution does not
envisage being heard and determined by High Courts."
37. In Dwarkanath's case (supra), this Court had said that Article 226 of the Constitution is couched
in comprehensive phraseology and it eX facie confers a wide power on the High Court to reach
injustice wherever it is found. This Article enables the High Courts to mould the reliefs to meet the
peculiar and eXtra-ordinary circumstances of the case. Therefore, what we have said above in regard
to the eXercise of jurisdiction by this (2004) 5 SCC 1 Court under Article 32, must apply equally in
relation to the eXercise of jurisdiction by the High Courts under Article 226 of the Constitution.
38. Article 21, one of the fundamental rights enshrined in Part III of the Constitution declares that
no person shall be deprived of his "life" or "personal liberty" e Xcept according to the procedure
established by law. It is trite that the words "life" and "personal liberty" are used in the Article as
compendious terms to include within themselves all the varieties of life which go to make up the

personal liberties of a man and not merely the right to the continuance of person's animal e Xistence.
(See: Kharak Singh Vs. State of U.P.27)
39. The paramountcy of the right to "life" and "personal liberty" was highlighted by the Constitution
Bench in Kehar Singh (supra). It was observed thus:
"To any civilised society, there can be no attributes more important than the life and
personal liberty of its members. That is evident from the paramount position given by
the courts to Article 21 of the Constitution. These twin attributes enjoy a fundamental
ascendancy over all other attributes of the political and social order, and
consequently, the Legislature, the E Xecutive and the Judiciary are more sensitive to
them than to the other attributes of daily e Xistence. The deprivation of personal
liberty and the threat of the deprivation of life by the action of the State is in most
civilised societies regarded seriously and, recourse, either under e X press
constitutional provision or through legislative enactment is provided to the judicial
organ."
(1964) 1 SCR 332
40. In Minerva Mills (supra), Y.V. 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
drained of its life blood. Emphasising the significance of Articles 14, 19 and 21, the learned Chief
Justice remarked:
"74. 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. They are Articles 14, 19 and 21. Article 31-C has removed two
sides of that golden triangle which affords to the people of this country an assurance
that the promise held forth by the preamble will be performed by ushering an
egalitarian era through the discipline of fundamental rights, that is, without
emasculation of the rights to liberty and equality which alone can help preserve the
dignity of the individual."
41. The approach in the interpretation of fundamental rights has again been highlighted in M.
Nagaraj (supra), wherein this Court observed as under:
"This principle of interpretation is particularly apposite to the interpretation of

fundamental rights. It is a fallacy to regard fundamental rights as a gift from the State
to its citizens. Individuals possess basic human rights independently of any
constitution by reason of basic fact that they are members of the human race. These
fundamental rights are important as they possess intrinsic value. Part-

III of the Constitution does not confer fundamental rights. It confirms their eXistence and gives
them protection. Its purpose is to withdraw certain subjects from the area of political controversy to
place them beyond the reach of majorities and officials and to establish them as legal principles to
be applied by the courts. Every right has a content. Every foundational value is put in Part-III as a
fundamental right as it has intrinsic value. The converse does not apply. A right becomes a
fundamental right because it has foundational value. Apart from the principles, one has also to see
the structure of the Article in which the fundamental value is incorporated. Fundamental right is a
limitation on the power of the State. A Constitution, and in particular that of it which protects and
which entrenches fundamental rights and freedoms to which all persons in the State are to be
entitled is to be given a generous and purposive construction. In Sakal Papers (P) Ltd. v. Union of
India28, this Court has held that while considering the nature and content of fundamental rights,
the Court must not be too astute to interpret the language in a literal sense so as to whittle them
down. The Court must interpret the Constitution in a manner which would enable the citizens to
enjoy the rights guaranteed by it in the fullest measure. An instance of literal and narrow
interpretation of a vital fundamental right in the Indian Constitution is the early decision of the
Supreme Court in A.K. Gopalan v. State of Madras29. Article 21 of the Constitution provides that no
person shall be deprived of his life and personal liberty e Xcept according to procedure established by
law. The Supreme Court by a majority held that 'procedure established by law' means any procedure
established by law made by the Parliament or the legislatures of the State. The Supreme Court
refused to infuse the procedure with principles of natural justice. It concentrated solely upon the
eXistence of enacted law. After three decades, the Supreme Court overruled its previous decision in
A.K. Gopalan and held in its landmark judgment in Maneka Gandhi v. Union of India30 that the
procedure contemplated by Article 21 must answer the test of reasonableness. The Court further AIR
1962 SC 305 AIR 1950 SC 27 (1978) 1 SCC 248 held that the procedure should also be in conformity
with the principles of natural justice. This eXample is given to demonstrate an instance of e Xpansive
interpretation of a fundamental right. The e Xpression 'life' in Article 21 does not connote merely
physical or animal eXistence. The right to life includes right to live with human dignity. This Court
has in numerous cases deduced fundamental features which are not specifically mentioned in Part-
III on the principle that certain unarticulated rights are implicit in the enumerated
guarantees."
42. Thus, the opinion of this Court in A.K. Gopalan (supra) to the effect that a person could be
deprived of his liberty by àny' procedure established by law and it was not for the Court to go into
the fairness of that procedure was perceived in Maneka Gandhi (supra) as a serious curtailment of
liberty of an individual and it was held that the law which restricted an individual's freedom must
also be right, just and fair and not arbitrary, fanciful or oppressive. This judgment was a significant
step towards the development of law with respect to Article 21 of the Constitution, followed in a
series of subsequent decisions. This Court went on to e Xplore the true meaning of the word "Life" in
Article 21 and finally opined that all those aspects of life, which make a person live with human
dignity are included within the meaning of the word "Life".
43. Commenting on the scope of judicial review vis-`-vis constitutional sovereignty particularly with
reference to Articles 14, 19 and 21 of the Constitution, in I.R. Coelho (supra), this Court said:

"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 e X ercise 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 (supra) has to apply."
While observing that the abrogation or abridgement of the fundamental rights under Chapter III of
the Constitution have to be eXamined on broad interpretation so as to enable the citizens to enjoy
the rights guaranteed by Part III in the fullest measure, the Court eXplained the doctrine of
separation of powers as follows: (SCC p.86- 87, paras 64-66) "...[i]t was settled centuries ago that for
preservation of liberty and prevention of tyranny it is absolutely essential to vest separate powers in
three different organs. In The Federalist Nos. 47, 48, and 51, James Madison details how a
separation of powers preserves liberty and prevents tyranny. In The Federalist No. 47, Madison
discusses Montesquieu's treatment of the separation of powers in Spirit of Laws, (Book XI, Chapter
6).
There Montesquieu writes, "When the legislative and e Xecutive powers are united in the same
person, or in the same body of Magistrates, there can be no liberty ... Again, there is no liberty, if the
judicial power be not separated from the legislative and eXecutive."
Madison points out that Montesquieu did not feel that different branches could not have
overlapping functions, but rather that the power of one department of Government should not be
entirely in the hands of another department of Government.
AleXander Hamilton in The Federalist No.78, remarks on the importance of the independence of the
judiciary to preserve the separation of powers and the rights of the people:
"The complete independence of the courts of justice is peculiarly essential in a limited

Constitution.
By a limited Constitution, I understand one which contains certain specified

eXceptions to the legislative authority; such, for instance, that it shall pass no bills of
attainder, no eX post facto laws, and the like. Limitations of this kind can be
preserved in practice in no other way than through the medium of courts of justice,
whose duty it must be to declare all acts contrary to the manifest tenor of the
Constitution void. Without this, all the reservations of particular rights or privileges
would amount to nothing."

Montesquieu finds that tyranny pervades when there is no separation of powers:
"There would be an end of everything, were the same man or same body, whether of
the nobles or of the people, to e Xercise those three powers, that of enacting laws, that
of eXecuting the public resolutions, and of trying the causes of individuals."
The Court further observed: (SCC pg.105, paras 129-
130) "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, e Xecutive 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.
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 e Xcluded 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 power - the fact that limited e Xceptions are made for limited
purposes, to protect certain kind of laws, does not mean that it is not part of the basic structure."
Conclusions:
44. Thus, having eXamined the rival contentions in the conte Xt of the Constitutional Scheme, we
conclude as follows:
(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and
cannot be eXtinguished by any Constitutional or Statutory provision. Any law that
abrogates or abridges such rights would be violative of the basic structure doctrine.
The actual effect and impact of the law on the rights guaranteed under Part III has to
be taken into account in determining whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives
and personal liberties eXcept according to the procedure established by law. The said Article in its
broad application not only takes within its fold enforcement of the rights of an accused but also the
rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair
and impartial investigation against any person accused of commission of a cognizable offence, which
may include its own officers. In certain situations even a witness to the crime may seek for and shall
be granted protection by the State.

(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article
32 and on the High Courts under Article 226 of the Constitution the power of judicial review being
an integral part of the basic structure of the Constitution, no Act of Parliament can e Xclude or curtail
the powers of the Constitutional Courts with regard to the enforcement of fundamental rights. As a
matter of fact, such a power is essential to give practicable content to the objectives of the
Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal
constitution, the distribution of legislative powers between the Parliament and the State Legislature
involves limitation on legislative powers and, therefore, this requires an authority other than the
Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final
arbiter not only to give effect to the distribution of legislative powers between the Parliament and
the State Legislatures, it is also necessary to show any transgression by each entity.
Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the
principles of separation of powers, rule of law, the principle of constitutionality and the reach of
judicial review".
(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect
the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution
and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the
circumstances, any direction by the Supreme Court or the High Court in e Xercise of power under
Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as
violating the federal structure.
(v) Restriction on the Parliament by the

Constitution and restriction on the
Executive by the Parliament under an
enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of
the Constitution.
(vi) If in terms of Entry 2 of List II of The

Seventh Schedule on the one hand and
Entry 2A and Entry 80 of List I on the
other, an investigation by another
agency is permissible subject to grant of consent by the State concerned, there is no reason as to
why, in an eXceptional situation, court would be precluded from e Xercising the same power which
the Union could eXercise in terms of the provisions of the Statute. In our opinion, e Xercise of such
power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if
in such a situation the court fails to grant relief, it would be failing in its constitutional duty.
(vii) When the Special Police Act itself provides that subject to the consent by the State, the CBI can
take up investigation in relation to the crime which was otherwise within the jurisdiction of the State
Police, the court can also eXercise its constitutional power of judicial review and direct the CBI to

take up the investigation within the jurisdiction of the State. The power of the High Court under
Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special
Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of
the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union,
cannot be read as restriction on the powers of the Constitutional Courts. Therefore, eXercise of
power of judicial review by the High Court, in our opinion, would not amount to infringement of
either the doctrine of separation of power or the federal structure.
45. In the final analysis, our answer to the question referred is that a direction by the High Court, in
eXercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a
cognizable offence alleged to have been committed within the territory of a State without the
consent of that State will neither impinge upon the federal structure of the Constitution nor violate
the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of
the citizens, this Court and the High Courts have not only the power and jurisdiction but also an
obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21
of the Constitution in particular, zealously and vigilantly.
46. Before parting with the case, we deem it necessary to emphasise that despite wide powers
conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear
in mind certain self-imposed limitations on the e Xercise of these Constitutional powers. The very
plenitude of the power under the said Articles requires great caution in its e Xercise. In so far as the
question of issuing a direction to the CBI to conduct investigation in a case is concerned, although
no infleXible guidelines can be laid down to decide whether or not such power should be e Xercised
but time and again it has been reiterated that such an order is not to be passed as a matter of routine
or merely because a party has levelled some allegations against the local police. This e Xtra-ordinary
power must be eXercised sparingly, cautiously and in eXceptional situations where it becomes
necessary to provide credibility and instil confidence in investigations or where the incident may
have national and international ramifications or where such an order may be necessary for doing
complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a
large number of cases and with limited resources, may find it difficult to properly investigate even
serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.
47. In Secretary, Minor Irrigation & Rural Engineering Services, U.P. & Ors. Vs. Sahngoo Ram Arya
& Anr.31, this Court had said that an order directing an enquiry by the CBI should be passed only
when the High Court, after considering the material on record, comes to a conclusion that such
material does disclose a prima facie case calling for an investigation by the CBI or any other similar
agency. We respectfully concur with these observations.
48. All the cases shall now be placed before the respective Benches for disposal in terms of this
opinion.
..................................CJI. (K.G. BALAKRISHNAN)........................................J. (R.V. RAVEENDRAN)

.......................................J. (D.K. JAIN) (2002) 5 SCC 521.......................................J.

(P. SATHASIVAM).......................................J. (J.M. PANCHAL) NEW DELHI;
FEBRUARY 17, 2010.

Deepak Sibal & Ors vs Punjab University And Another on 14 February, 1989
Author: M Dutt
Bench: Dutt, M.M. (J)
PETITIONER:
DEEPAK SIBAL & ORS.
Vs.
RESPONDENT:
PUNJAB UNIVERSITY AND
ANOTHER DATE OF
JUDGMENT14/02/1989
BENCH:
DUTT, M.M.
(J) BENCH:
DUTT, M.M. (J)
THOMMEN, T.K. (J)
CITATION:
1989 AIR 903 1989 SCR (1) 689
1989 SCC (2) 145 JT 1989 Supl. 2
1989 SCALE (1)409
CITATOR INFO :
RF 1992 SC 1 (126)
ACT:
Constitution of India, 1950: Arts. 14 & 15(4)--
Admission of evening classes of LL.B. Degree of Punjab
University--Rule restricting admission to regular
employees of Government and semi-Government institutions--
Validity of--Classification should satisfy tests laid
down-Surround- ing circumstances--When relevant--
Classification by identification of sources should not be
arbitrary--Cent percent reservation of seats for certain
classes of persons to the exclusion of merit candidates-
Whether valid.
Art. 13--Doctrine of severability--When part of a rule
held violative of Art. 14 and prima facie not severable
from valid part--Whether entire rule to be struck down.
Professional Colleges--Admission to: Punjab Univer-
sity-Admission to evening class of LL.B. course--Rule pro-
viding that admission open only to 'regular employees' of
Government/Semi-Government institutions--Employees of pri-
vate institutions excluded-Whether discriminatory and viola-
tive of Art. 14-- Cent percent reservation of seats for
certain classes of persons only to the exclusion of merit
candidates--Whether valid.

HEADNOTE:
The prospectus for the year 1988/89, for admission in
the evening classes of the Three-Year LL.B. Degree Course
conducted by the Department of Laws of the Punjab
Universi- ty, prescribed that admission to evening classes
was open only to regular employees of Government/ Semi-
Government institutions/affiliated Colleges/Statutory
Corporations and Government Companies and that a candidate
should attach No Objection/Permission letter from his
employer with his application for admission. Out of the
150 seats available in the evening classes, 64 were
reserved for scheduled castes, scheduled tribes, backward
classes, physically handicapped persons, outstanding
sportsmen and defence personnel and the remaining 86 were
reserved for regular employees of Govern- ment/Semi-
Government institutions etc., as mentioned in the
aforesaid rule for admission.
690
The two appellants, one employed in a Limited Company,
a joint venture with an Undertaking of the State
Government and the other working as a temporary employee
in a State Government office, applied for admission in the
evening classes with 'No Objection Certificates' from
their employees. Both were interviewed but were not.
selected, although their positions in the merit list were
29 and 19 respectively, on the ground that wile one of
the appellants was an employee of a Public Limited Company
and did not fall within the exclusive categories as
mentioned in the impugned rule, the other was only a
temporary employee.
Both the appellants filed writ petitions in the High
Court, challenging the validity of the impugned rule.
Peti- tions were also filed by five other refused
candidates. It was contended that the impugned rule was
violative of Art.
14 of the Constitution. The High Court dismissed the writ
petitions. While upholding the validity of the impugned
rule, the High Court held that Government employees had
protection of Art. 311 of the Constitution which non-
Govern- ment employees did not have and that the employees
of the Semi-Government institutions were also on the same
footing. Hence the two appellants filed appeals in this
Court.
In the counter affidavit filed in this Court the re-
spondents sought to justify the exclusion of private
employees, restricting admission to evening classes only
to the Government employees and similar other institutions
on the grounds of production of bogus certificates of
employment from private employers and imparting of legal
education to the employees of the Government/Semi-
Government and other institutions as in public interest.
It was also contended that a candidate should have an
assured tenure of employment likely to continue for three

years and that, as far as possible, there should be no
possibility of wastage of a seat.
Allowing the appeals,

HELD: 1.1 Article 14 forbids legislation, but does not
forbid reasonable classification. Whether a classification
is a permissible classification under Art. 14 or not, two
conditions must be satisfied, namely, (1) that the
classification must be rounded on an intelligible
differentia which distinguishes persons or things that
are grouped together from others left out of the group,
and (2) that the differentia must have a rational nexus
to the object sought to be achieved by the statute in
question. [697F]
691
1.2 In considering the reasonableness of
classification from the point of view of Art. 14 of the
Constitution, the Court has to consider the objective for
such classification. If the objective be illogical, unfair
and unjust, necessarily the classification will have to
be held as unreasonable. [703C-D]
1.3 No doubt, a classification need not be made with
mathematical precision but, if there be little or no
difference between the persons or things which have been
grouped together and those left out of the group, then the
classification cannot be said to be a reasonable one.
[700C]
1.4 Surrounding circumstances may be taken into
consideration in support of the constitutionality of a
law which is otherwise hostile or discriminatory in
nature. But the circumstances must be such as to justify
the discriminatory treatment or the classification
subserving the object sought to be achieved. [700G-H]
Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar,
[1959] SCR 279, relied on.
1.5 A classification by the identification of sources
most not be arbitrary but should be on a reasonable basis
having a nexus with the object sought to be achieved.
[704H;705A4]
Chitra Ghosh v. Union of India, [1970] 1 SCR 413 and
D.N. Chanchala v. State of Mysore, [1971] Supp. SCR 608
relied on.
1.6 In the instant case, the objective of starting
the evening classes was to accommodate in the evening
classes employees in general including private employees
who were unable to attend morning classes because of their
employment. However, in framing the impugned rule, the
respondents have deviated from its objective for starting
the evening classes. [699F-G]
The classification of the employees of
Government/Semi- Government institutions etc. by the
impugned rule for the purpose of admission in the evening
classes of Three-Year LL.B. Degree Course to the exclusion
of all other employees, is unreasonable and unjust, as it
does not subserve any fair and logical objective. [703D]
The Government and public sector employees cannot be
equated with Government undertaking and companies. The
classification of

692

Government undertakings and companies may, in certain cir-
cumstances, be a reasonable classification satisfying the
tests laid down but the employees of Government/Semi-
Govern- ment institutions etc., as mentioned in the
impugned rule, cannot be held to constitute a valid
classification for the purpose of admission to evening
classes of Three years LL.B. Degree Course. [703F-G]
Hindustan Paper Corpn. Ltd. v. Government of Kerala,
[1986] 3 SCC 398, distinguished.
1.7 The Government employees or the employees of
Semi- Government and other institutions cannot stand on a
different footing from the employees of private
concerns, insofar as the question of admission to evening
classes is concerned. [699H]
Though the service conditions of employees of Govern-
ment/SemiGovernment institutions etc. are different, and
they may have greater security of service, that hardly
matters for the purpose of admission in the evening
classes. The test is whether both the employees of private
establishments and the employees of Government/Semi-
Government institutions etc. are equally in a
disadvantageous position in attending morning classes.
There can be no doubt that both of them stand on an equal
footing and there is no difference between these two
classes of employees in that regard. To exclude the
employees of private establishments will not, therefore,
satisfy the test of intelligible differentia that
distinguishes the employees of Government/Semi-Government
institutions etc., grouped together from the employees of
private establishments. [700A-C]
1.8 Though an educational institution is entitled to
identify sources from which admission will be made in such
institution, there is no difference between identification
of the sources and a classification. If any source is
specified, such source must also satisfy the test of
reasonable classification and also that it has a rational
nexus with the object sought to be achieved. The sources
must be classified on reasonable basis, that is to say,
it cannot be classified arbitrarily and unreasonably. The
impugned rule does not satisfy the test laid down in this
regard. [704D, F]
Chitra Ghosh v. Union of India, [1970] 1 SCR 413 and
D.N. Chanchala v. State of Mysore, [1971] Supp. SCR 608,
relied on.
1.9 The circumstances relied on by the respondents,
namely, the
693
possibility of production by the candidates of bogus
certificates and insecurity of their services are not
such circumstances as will justify the exclusion of the
employees of private establishments from the evening
classes. [700H; 701A]
Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar ,
[1959] SCR 279, explained.

1.10 The exclusion of employees of private establish-
ments cannot also be justified on administrative grounds.
The respondents have not placed any material before the
High Court or in this Court as to in how many cases they
had come across bogus certificates produced by private
employees during the time the admission to evening classes
was open also to private employees. It may be that there
were one or two cases of production of bogus
certificates, but that cannot be a ground for the
exclusion of all private employees from the benefit of
getting legal education in the evening classes. [701E-F]
Pannalal Binjraj v. Union of India, [1957] SCR 233 distin-
guished-
1.11 There is no material to indicate that by the ex-
pression "regular employees" it is intended to include
only those employees who will have an assured tenure of
service for three years, that is to say, co-extensive with
the period of the Three-Year LL.B. Degree Course. The
expression "regular employees", normally means bona fide
employees. Such bona fide employees may be permanent or
temporary. All that the University can insist is that one
should be a bona fide employee and if there be materials
to show that a candidate for admission in the evening
classes is a bona fide employee, the University cannot
further insist on an assured tenure of service of such an
employee for a period of three years. The reason for
exclusion of private employees on the ground that there
may not be an assured tenure of employment likely to
continue for three years, therefore, not only does not
stand scrutiny but is also unfair and unjust and cannot
form the basis of such an exclusion. [702A-C]
1.12 It is difficult to understand the logic of the
rule restricting admission in the evening classes to
employees of Government/SemiGovernment institutions etc.
on the plea that such employees require legal education in
public interest. It may be that certain sections of
Government employees require legal education hut, surely
Government employees in general do not require legal
education. Certain private sector employees may also
require legal education in the interest of the
694
establishments of which they are employees. It cannot,
therefore, be laid down that only Government employees
require legal education and not private employees. [703B]
Jolly v. State of Kerala, AIR 1974 Kerala 178, approved.
The impugned rule, having made a classification which
cannot be justified on any reasonable basis, must be held
to be discriminatory and violative of Art. 14 of the
Constitu- tion. [705B]
2. It is not possible to bring the impugned rule in
conformity with the provision of Art. 14 by putting a full
stop after the words "regular employees" and striking down
remaining part of the impugned rule, so as to read
"Admis-

sion to evening classes is open only to regular
employees". Prima facie, the part which is sought to be
retained is not severable from the remaining part of the
rule. The invalid portion is inextricably mixed up with
the valid portion of the rule and, accordingly, the entire
rule requires to be struck down. [705G-H]
R.M.D. Chamarbaugwalla v. Union of India, [1957]
SCR 930, relied on.
B. Prabhakar Rao v. State of Andhra Pradesh , [1985]
Supp. SCC 432, distinguished.
3. Article 15(4) does not contemplate to reserve all
the seats or the majority of the seats in an educational
institution at the cost of the rest of the society. The
same principle should also apply with equal force in the
case of cent percent reservation of seats in educational
institutions for a certain class of persons to the
exclusion of meritorious candidates. [707A-B]
M.R. Balaji v. State of Mysore, [1963] Supp. 1 SCR
439; Pradeep Jain v. Union of India, [1984] 3 SCR 942 and
Nida- marti Maheshkumar v. State of Maharashtra, [1986] 2
SCC 534, relied on.
In the instant case, the respondents have reserved 64
seats out of 150 seats for Scheduled Castes, Scheduled
Tribes, backward classes etc. Out of the remaining 86
seats, reservation of seats for regular or bona fide
employees for admission to evening classes should, in no
event, exceed the limit of 50 per cent. The admission to
the remaining 43 seats will be open to the general
candidates on merit basis. Thus, while the respondents
will be at liberty to reserve seats for regular or bona
fide
695
employees for admission to evening classes, such
reservation should not exceed SO per cent after deducting
the number of seats reserved for Scheduled Castes,
Scheduled Tribes, backward classes etc. [709B-C]
4. The impugned rule is discriminatory and violative
of Art. 14 of the Constitution and is accordingly struck
down as invalid. The refusal by the respondents to admit
the appellants in the evening classes of the Three-Years
LL.B. degree course was illegal. The appellants are,
therefore, entitled to he admitted in the evening classes.
However, the striking down of the impugned rule should not
in any manner whatsoever disturb the admissions already
made for the session 1988-89. The respondents should admit
the appellants in the second semester which has commenced
from January, 1989 and allow them to complete the Three-
Year LL.B. degree course, if not otherwise ineligible an
the ground of unsatisfactory academic performance. The
seats allocated to the appellants will be in addition to
the normal intake of students in the college. [710D-F]
Ajay Hasia v. Khalid Mujib Sehravardi, [1981] 2 SCR 79,
relied on.

JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 837 and 838 of 1989.
From the Judgment and Order dated 12.9.1988 of the High Court of Punjab and Haryana in C.W.P.
Nos. 6871 and 6485 of 1988 respectively.
Kapil Sibal, Rajiv Dhawan and Ms. Kamini Jaiswal for the Appellants.
P.P. Rao, R.K. Gupta, Janendra Lal, Ms. Purnima Bhat and E.C. Agarwala for the Respondents.
The Judgment of the Court was delivered by DUTT, J. Special leave is granted in both these mat-
ters. Heard learned Counsel for the parties.
These two appeals preferred by the appellants, Deepak Sibal and Miss Ritu Khanna, are directed
against the common judgment of the Punjab & Haryana High Court whereby the High Court
dismissed the two writ petitions filed by the appellants and also some other writ petitions
challenging the constitutional validity of the rule for admission in the evening classes of the Three-
Years LL.B. Degree Course conducted by the Department of Laws of the Punjab University.
The impugned rule that was published in the prospectus for the year 1988-89 relating to admission
to 150 seats in the evening classes in the Three-Year LL.B. Degree Course is eXtracted as follows:
" A d m i s s i o n to e v e n i n g c l a s s e s is open only to r e g u l a r e m p l o y e e s of

Government/Semi-Govern- ment institutions/ affiliated colleges/Statu- tory
Corporations and Government Companies. A candidate applying for admission to the
evening classes should attach No Objection/Permission letter from his present
employer with his application for admission."
It is not disputed that there are 150 seats in the morning classes and another 150 seats in the
evening classes. In both the morning and evening classes reservation has been made for scheduled
castes, scheduled tribes, backward classes, physically handicapped persons, outstanding and
defence personnel. In the morning classes out of 150 seats, 64 seats are reserved for scheduled
castes, scheduled tribes, backward classes etc. and the remaining 86 seats are allotted to general
students selected on merit basis. Simi- larly in the evening classes, the remaining 86 seats are also
reserved for regular employees of Government/Semi- Government institutions etc., as mentioned in
the impugned rule for admission.
The appellant, Deepak Sibal, passed the Bachelor of Commerce EXamination from the University of
Punjab in June, 1981 securing 61.5 per cent marks in the aggregate. On June 1, 1988, he was
appointed to the post of Accountant in Agro Chem Punjab Ltd. with effect from June 2, 1988 on
probation for a period of siX months. Agro Chem Punjab Ltd. is stated to be a joint venture with
Punjab Agro Corporation Ltd., Chandigarh, an Undertaking of the Punjab Government. On July, 18,

1988, the appellant, Deepak Sibal, applied for admission in the evening classes of the Punjab
Universi- ty for the Three-Year LL.B. Degree Course with a 'No Objec- tion Certificate' from his
employer dated July 18, 1988. He was granted an interview sometime in the first week of August,
1988, but he was not selected. On enquiry, he came to know that although his position was 29 in the
merit list, he was declared ineligible because he was an employee of a Public Limited Company and
did not fall within the eXclusive categories, as mentioned in the impugned rule, to which admission
in the evening classes was restricted. The other appellant, namely Miss Ritu Khanna, passed the
Bachelor of Arts EXamination from the Punjab University securing 4 18 marks out of 650 marks. She
was temporarily appointed to the post of Helper in the office of the Direc- tor, Water Resources,
Punjab. She also applied for admission in the evening classes of the Three-Year LL.B. Degree Course
of the University with all requisite certificates on July 18, 1988. She was granted an interview on
July 30, 1988 and although her position in the merit list was 19, she was not selected for admission
on the ground that she was only a temporary employee.
Both the appellants, being aggrieved by the refusal of the University to admit them in the evening
classes of the Three-Year LL.B. Degree Course, filed two separate writ petitions in the Punjab &
Haryana High Court challenging, inter alia, the constitutional validity of the impugned rule. Five
other writ petitions were also filed by the candidates who were refused admission in the evening
classes in view of the impugned rule. At the hearing of the writ petitions before the High Court, it
was contended on behalf of the petitioners including the appellants, that the impugned rule was
violative of Article 14 of the Constitution. The High Court overruled the contention and, as stated
already, dismissed the writ petitions. Hence these two appeals by the two appellants.
It is now well settled that Article 14 forbids class legislation, but does not forbid reasonable
classification. Whether a classification is a permissible classification under Article 14 or not, two
conditions must be satisfied, namely, (1) that the classification must be rounded on an intelligible
differentia which distinguishes persons or things that are grouped together from others left out of
the group, and (2) that the differentia must have a rational ne Xus to the object sought to be achieved
by the statute in question.
By the impugned rule, a classification has been made for the purpose of admission to the evening
classes. The question is whether the classification is a reasonable classification within the
meaning of Article 14 of the Constitution. In order to consider the question as to the reasonableness
of the classification, it is necessary to take into account the objective for such classification. It has
been averred in the written statement of Dr. Balram Kumar Gupta, Chair- man, Depart-
ment of Laws, Punjab University, the respondent No. 2, filed in the High Court, that the object of
starting evening classes was to provide education to bona fide employees who could not attend the
morning classes on account of their employment. The object, therefore, was to accommodate bona
fide employees in the evening classes, as they were unable to attend the morning classes on account
of their employment. Admission to evening classes is not open to the employees in general
including private sector employees, but it is restricted to regular employees of Government/Semi-
Government institutions etc., as mentioned in the impugned rule. In other words, the employees of
Government/Semi- Government institutions etc. have been grouped together as a class to the

eXclusion of employees of private establishments.
It appears that in or about the year 1986, admission to evening classes was open to those who were
in bona fide employment including self-employed persons. In supersession of that rule, the
impugned rule was flamed eXcluding private sector employees and self-employed persons. In the
counter- affidavit filed in this Court on behalf of the respondents by the Registrar of the Punjab
University, an eXplanation has been given why the University flamed the impugned rule restricting
the admission in the evening classes open to Government/SemiGovernment institutions etc. The
eXplanation, as given in the counteraffidavit, is eXtracted below:
"It is submitted that since the morning classes are open to all, the merit is much
higher, whereas since the admission to the evening classes is only for regular
employees of Government/Semi-Government etc. the merit goes lower. It is in this
view of the matter that in the past also, the Department of Law found that various
certificates by employees were found to be incorrect and obtained by applicants only
with a view to get admission to the evening classes and, thereafter, applied for
transfer to the morning classes. On account of the past e Xperience it was felt that the
admission to the Law Courses in the morning be kept open to all persons whether
employed or unemployed but the admission to the evening classes be restricted to
o n l y t h o s e w ho w i l l be g e n u i n e an d r e g u l a r e m p l o y e e . S i n c e th e
Government/Semi-Government and similar other institutions as mentioned in the
prospectus are actually involved in lot of litigation, it was felt that imparting legal
education to the employees of such institutions would be in public interest. It is
submitted that it is in view of this practice of issuing of certificates by private
employers in the past that the Depart- ment of Law was compelled to restrict the
admission of students of evening classes as has been done.
Thus, the respondents have sought to justify the eXclu-
s ion of p r i v a t e e m p l o y e e s r e s t r i c t i n g a d m i s s i o n to e v e n i n g c l a s s es only to the

Government/Semi-Government and similar other institutions principally on two grounds, namely,
(1) production of bogus certificates of employment from private employers, and (2) imparting of
legal education to the employees of the Government/Semi-Government and other institutions, as
mentioned in the impugned rule, in public interest. Besides the above two grounds, Mr. P.P. Rao,
learned Counsel appearing on behalf of the respondent, has added two more grounds, namely, (1) a
candidate should have an assured tenure of employment likely to continue for three years, and (2) as
far as possible, there should be no possibility of wastage of a seat. It is submitted that employees of
only Government/Semi-Government institutions etc. have an assured tenure of employment and if
the admission in the evening classes is restricted to such employees, there would be no possibility of
any wastage of a seat and the University will not have to engage itself in finding out whether or not a
certificate produced by an employee of a private establishment is a bogus certificate and whether
such employee has an assured tenure of employment likely to continue for three years. In upholding
the validity of the impugned rule, it has been observed by the High Court that the Government
employees have protection of Article 311 of the Constitu- tion, which non-Government employees do

not have and that employees of SemiGovernment institutions are also on the same footing.
It is apparent that in framing the impugned rule, the respondents have deviated from its objective
for the starting of evening classes. The objective was to accommodate in the evening classes
employees in general including private employees who were unable to attend morning classes
because of their employment. In this backdrop of facts, we are to consider the reasonableness of the
classification as contemplated by the provision of Article 14 of the Constitution. It is difficult to
accept the contention that the Gov- ernment employees or the employees of Semi-Government and
other institutions, as mentioned in the impugned rule, stand on a different footing from the
employees of private concerns, in so far as the question of admission to evening classes is
concerned. It is true that the service condi-
tions of employees of Government/Semi-Government institutions etc, are different, and they may
have greater security of service, but that hardly matters for the purpose of admission in the evening
classes. The test is whether the employees of private establishments are equally in a disad-
vantageous position like the employees of Government/Semi- Government institutions etc. in
attending morning classes. There can be no doubt and it is not disputed that both of them stand on
an equal footing and there is no difference between these two classes of employees in that regard. To
eXclude the employees of private establishments will not, therefore, satisfy the test of intelligible
differentia that distinguishes the employees of Government/Semi-Government institutions etc.
grouped together from the employees of private establishments. It is true that a classification need
not be made with mathematical precision but, if there be little or no difference between the persons
or things which have been grouped together and those left out of the group, in that case, the
classification cannot be said to be a reasonable one.
It is, however, submitted on behalf of the respondents that the employees of private establishments
have been left out as it is difficult for the University to verify whether or not a particular candidate is
really a regular employee and whether he will have a tenure for at least three years during which he
will be prosecuting his studies in the Three-Year LL.B. Degree Course. It is submitted that in making
the classification, the surrounding circumstances may be taken into account. In support' of that
contention, much reliance has been placed on the decision of this Court in Ram Krishna Dalmia v.
Shri Justice S.R. Tendolkar, [1959] SCR 279. In that case, it has been observed by Das, C.J. that
while good faith and knowledge of the eXisting conditions on the part of a legislature are to be
presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the
notice of the court on which the classification may reasonably be regarded as based, the
presumption of constitutionality cannot be carried to the e Xtent of always holding that there must be
some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile
or discriminating legislation. It follows from the observation that surrounding circumstances may
be taken into consideration in support of the constitutionality of a law which is otherwise hostile or
discriminatory in nature. But the circumstances must be such as to justify the discriminatory
treatment or the classification subserving the object sought to be achieved. In the instant case, the
circumstances which have been relied on by the respondents, namely, the possibility of production
by them of bogus certificates and insecurity of their services are not, in our opinion, such
circumstances as will justify the eXclu- sion of the employees of private establishments from the

evening classes.
We are also unable to accept the contention of the respondents that such e Xclusion of the employees
of private establishments is justified on the ground of administrative convenience. The decision in
Pannalal Binjraj v. Union of India, [1957] SCR 233 relied on by the respondents does not, in our
opinion, lay down any such proposition of law. In that case, the provision of section 5(7)A of the
Income Tax Act 1982 was, inter alia, challenged as ultra vires Article 14 of the Constitution
inasmuch as it was discriminatory. Section 5(7A) confers power on the Commissioner of Income Tax
and the Central Board of Revenue, inter alia, to transfer any case from one Income Tax Officer to
another. It has been observed by this Court that in order to minimise the inconvenience of the
assessee, the authority concerned may transfer the case of such assessee to the Income Tax Officer
who is nearest to the area where it would be convenient for the assessee to attend and if, on account
of administrative eXigencies, this is not possible and the assessee requests that the e Xamination of
accounts or evidence to be taken should be in a place convenient to him, the Income Tax Officer
comply with the request of the assessee by holding the hearing at the place requested. It is
manifestly clear from the observation that the power of transfer is not e Xercised for administrative
convenience, but for the convenience of the assessee. In the instant case, there is no question of
any administrative inconvenience. The respondents have not placed any material before the High
Court or in this Court as to in how many cases they had come across such bogus certificates
produced by private employees during the time the admission to evening classes was open also to
private employees. It may be that there were one or two cases of production of bogus certificates, but
that cannot be a ground for the e Xclusion of all private employees from the benefit of getting legal
education in the evening classes.
In the circumstances, we are not at all impressed with the contention that in order to avoid
production of bogus certificates of employment from the private employers and having regard to the
fact that employees of Government/Semi-Government institutions etc. have an assured tenure of
employment likely to continue for three years, the private employees were e Xcluded for the purpose
of admission to the evening classes. By the impugned rule, admission to evening classes is restricted
to regular employees of Gov- ernment/Semi-Government institutions etc. There is no material to
indicate that by the eXpression "regular employees" it is intended to include only those employees
who will have an assured tenure of service for three years, that is to say, co-e Xtensive with the period
of the Three-Year LL.B. Degree Course. The eX- pression "regular employees", in our opinion,
normally means bona fide employees. Such bona fide employees may be permanent or temporary.
All that the University can insist is that one should be a bona fide employee and if there be materials
for show that a candidate for admission in the evening classes is a bona fide employee the
University, in our opinion, cannot further insist on an assured tenure of service of such an employee
for a period of three years. Be that as it may, the reason for e Xclusion of private employees on the
ground that there may not be an assured tenure of employment likely to continue for three years,
not only does not stand scrutiny but also is unfair and unjust and cannot form the basis of such an
eXclusion.
In this connection, we may also eXamine another ground restricting the admission in the evening
classes to the employees of Government/Semi-Government and other institutions, as mentioned in

the impugned rule, namely, imparting of legal education to such employees. According to the
respondents, imparting of legal education to the employees of Government/Semi-Government and
other institutions, as mentioned in the impugned rule, would be in public interest. Indeed, in the
counter-affidavit filed in this Court on behalf of the respondents by the Registrar of the Universi- ty,
that is also the objective for framing the impugned rule. The counter-affidavit is, however, silent as
to why imparting of legal education to the employees of Government/Semi-Government institutions
etc. would be in public interest. It is not understandable why Government/SemiGovernment
employees in general should be imparted legal education and what sort of public interest would be
served by such legal education. It may be that certain sections of Government employees require
legal education but, surely, Government employees in general do not require legal education.
A similar rule, which was framed by the Government of Kerala reserving 100 per cent seats to
Government and quasi-Government employees irrespective of their category, came to be considered
by the Kerala High Court in Jolly v. State of Kerala, AIR 1974 Kerala 178. In that case, it has been
observed by the Kerala 'High Court that there may be some posts in Government service, some even
in public corporations which may require incumbents who may be able to perform their functions
very efficiently with a legal background provided to them, but this cannot be said of all employees
whether of the State Government or Central Government or of the public corporations or
Government owned companies. In our opinion, there is much force in the observation of the Kerala
High Court. It cannot be laid down that only Government employees require legal education and not
private employees. Certain private sector employees may require legal education in the interest of
the establishments of which they are employees. It is difficult to understand the logic of the rule re-
stricting admission in the evening classes to employees of Government/Semi-Government
institutions etc. on the plea that such employees require legal education in public interest.
In considering the reasonableness of classification from the point of view of Article 14 of the
Constitution, the Court has also to consider the objective for such classification. If the objective be
illogical, unfair and unjust, necessarily the classification will have to be held as unreasonable. In the
instant case, the foregoing discussion reveals that the classification of the employees of Govern-
ment/Semi-Government institutions etc. by the impugned rule for the purpose of admission in the
evening classes or Three-Year LL.B. Degree Course to the eXclusion of all other employees, is
unreasonable and unjust, as it does not subserve any fair and logical objective. it is, however, sub-
mitted that classification in favour of Government and public sector is a reasonable and valid
classification. In support of that contention, the decision in Hindustan Paper Corpn. Ltd. v.
Government of Kerala, [1986] 3 SCC 398 has been relied on by the learned Counsel for the
respondents. In that case, it has been observed that as far as Government undertakings and
companies are concerned, it has to be held that they form a class by themselves, since any project
that they may make would in the end result in the benefit to the members of the general public. The
Government and public sector employees cannot be equated with Government undertakings and
companies. The classification of Government undertakings and companies may, in certain
circumstances, be a reasonably classification satisfying the two tests mentioned above, but it is
difficult to hold that the employees of Government/Semi-Government institutions etc., as
mentioned in the impugned rule, would also constitute a valid classification for the purpose of
admission to evening classes of Three-Year LL.B. Degree Course. The contention in this regard, in

our opinion, is without any substance. The ne Xt contention of the respondents is that the University,
being an educational institution, is entitled to identify the sources for admission to the evening
classes and that has been done by the University by the impugned rule and that cannot be
challenged as violative of Article 14 of the Constitution. In support of this contention, much reliance
has been placed on behalf of the respondents on a decision of this Court in Chitra Ghosh v. Union of
India, [1970] 1 SCR 413 relating to reservation of seats in a medical college. In upholding such
reservation of seats it has been observed by this Court as follows:
"It is the Central Government which bears the financial burden of running the
medical college. It is for it to lay down the criteria for eligibility. From the very
nature of things it is not possible to throw the admission open to students from all
over the country. The Government cannot be denied right to decide from what
sources the admission will be made."
This observation in Chitra Ghosh's case has also been relied on by the High Court. It has been
contended by the learned Counsel for the respondents that the question of reasonable classification
has nothing to do with the identification of sources for admission by an educational institution.
We are unable to accept the contention. It is true that an educational institution is entitled to
identify sources from which admission will be made to such institution, but we do not find any
difference between identification of a source and a classification. If any source is specified, such
source must also satisfy the test of reasonable classification and also that it has a rational ne Xus to
the object sought to be achieved. Indeed in Chitra Ghosh's case, it has also been observed that if the
sources are properly classified whether on territorial, geographical or other reasonable basis, it is
not for the courts to interfere with the manner and method of making the classification. It is very
clear from this observation that the sources must be classified on reasonable basis, that is to say, it
cannot be classified arbitrarily and unreasonably. The principle laid down in Chitra Ghosh's case has
been reiterated by this Court in a later decision in D.N. Chan- chala v. State of Mysore, [1971] Supp.
SCR 608. It has been very clearly laid down by this Court that Government colleges are entitled to
lay down criteria for admission in its own colleges and to decide the sources from which admission
would be made, provided of course, such classification is not arbitrary and has a rational basis and a
reasonable connection with the object of the rules. Thus, it is now well established that a
classification by the identification of a source must not be arbitrary, but should be on a reasonable
basis having a neXus with the object sought to be achieved by the rules for such admission. It follows
from the above discussion that the impugned rule, with which we are concerned, having made a
classification which cannot be justified on any reasonable basis, must be held to be discriminatory
and violative of Article 14 of the Constitution. It is, however, submitted by Mr. P.P. Rao that in case
the Court holds against the constitutional validity of the impugned rule, the entire rule may not be
quashed, but only such portion of it which is found to be discriminatory in nature and, as such,
invalid. It is contended that if the impugned rule had not restricted the admission to evening
classes to the employees of Government/Semi-Government institutions etc. but had provided for
admission to regular employees including employees of private sectors, the classification would have
been a reasonable one and having a rational neXus to the object sought to be achieved by the rule,
namely, to accommodate the regular employees in the evening classes, as they would be unable to
attend the morning classes. Accordingly, it is submitted that instead of striking down the whole of

the impugned rule, a full stop may be put after the words "regular employees" in the impugned rule
and the remaining part of the rule after the said words can be struck down as discriminatory and
violative of Article 14 of the Constitu- tion. If that be done, the rule will be read as "Admission to
evening classes is open only to regular employees". Prima facie it appears that this part, which is
sought to be retained, is not severable from the remaining part of the rule. In R.M.D.
Chamarbaugwalla v. Union of India, [1957] SCR 930 it has been laid down by this Court that if the
valid and invalid provisions are so ine Xtricably miXed up that they cannot be separated from one
another then the invalidity of the portion must result in the invalidity in its entirety. In the instant
case, the invalid portion is ine Xtricably miXed up with the valid portion of the rule and, accordingly,
the entire rule requires to be struck down. Our attention has, however, been drawn to a later
decision of this Court in B. Prabhakar Rao v. State of Andhra Pradesh, [1985] Supp. SCC 432. In this
case, a Bench of Three-Judges of this Court struck out the word 'not' from the provisions of clause
3(1) of Ordinance 24 of 1984 and section 4(1) of the Act 3 of 1984 so as to bring those provisions to
conform to the requirements of Article 14 of the Constitution. We do not think we should try to
bring the impugned rule in conformity with the provision of Article 14 of the constitution by putting
a full stop after the words "regular employees" and striking down the remaining part of the
impugned rule on the basis of the same principle as in Prabhakar Rao's case (supra). For, it has been
stated by Mr. P.P. Rao, learned Counsel for the respondents; that the respondents will frame a
fresh rule for admission in the evening classes in conformity with and in the light of the decision of
this Court in the instant case. But, the ne Xt important question is even if the restriction from the
impugned rule is removed and the admission to evening classes is made open to regular or bona fide
employees including Government and non-Government employees, whether reservation of cent
percent seats in the evening classes for the employees will be justified and reasonable. It has been
urged by Mr. Kapil Sibal, learned Counsel appearing on behalf of the appellants, that reservation of
100 per cent seats in an educational institution for a specified class of persons is not at all
permissible. The University, being an autonomous body, must be accessible, and such access must
be based on the principle that those who are the most meritorious must be preferred to those who
are less meritorious. This principle is, however, subject to the provision of Article 15 of the
Constitution of India which allows positive discrimination, despite the merit principle, on the basis
that the equality clause will not be meaningful unless equal opportunity is given to such classes
enumerated by Article 15 by giving them preferential treatment. Apart from the provision of Article
15, reservation may be made on the basis of doctrine of source only with a view to giving equal
opportunity to some disadvantaged classes for their education but, learned Counsel submits,
whether the reservation is made under Article 15(4) of the Constitution or otherwise on the theory
of identification of source, in any event, such reservation cannot be 100 per cent at the cost of merit.
In our opinion, the above contention is not without force. In this connection, we may refer to a
decision of this Court in M.R. Balaji v. State of Mysore, [1963] Supp. 1 SCR 439. In that case, the
State of Mysore passed an order reserving 68 per cent of seats in the engineering and medical
colleges and other technical institutions for the educationally and socially backward classes and
Scheduled Castes and Scheduled Tribes, and left only 32 per cent of seats for the merit pool. In
striking down such reservation, it was observed by this Court that it would be e Xtremely unreasona-
ble to assume that in enacting Article 15(4), Parliament intended to provide that where the
advancement of the backward classes or the Scheduled Castes and Scheduled Tribes was

concerned, the fundamental rights of the citizens constituting the rest of the society were to be
completely and absolutely ignored. Speaking generally and in a broad way, it was observed by this
Court that a special provision should be less than 50 per cent and the actual percentage must
depend upon the relevant prevailing circumstances in each case. Thus, the provision of Article
15(4) does not contemplate to reserve all the seats or the majority of the seats in an educational
institution at the cost of the rest of the society. The same principle should also apply with equal force
in the case of cent percent reservation of seats in educational institutions for a certain class of
persons to the eXclusion of meritorious candidates.
In Pradeep Jain v. Union of India, [1984] 3 SCR 942, the question of reservation of seats in medical
colleges for MBBS and 'postgraduate medical courses on the basis of domicile or residential
qualification and institutional preference, came to be considered by this Court. Bhagwati, J. (as he
then was) speaking for the Court observed that the effort must always be to select the best and most
meritorious students for admission to technical institutions and medical colleges by providing
equal opportunity to all citizens in the country and e Xpressed an opinion that such reservation
should, in no event, eXceed the outer limit of 70 per cent which again needs to be reduced.
In Pradeep Jain's case (supra), no reason appears to have been given for the observation relating to
the reservation of 70 per cent of seats. In a later decision of this Court in Nidamarti Maheshkumar
v. State of Maharashtra, [1986] 2 SCC 534 a more or less similar question regarding regionwise
reservation of seats in medical colleges for admission to MBBS Course also came to be considered,
and this time Bhagwati, C.J., speaking for the Court, gave the reason for reservation of 70 per cent of
seats. It was observed by the learned Chief Justice as follows:
"In the first place it would cause a considerable amount of hardship and
inconvenience if students residing in the region of a particular university are
compelled to move to the region of another university for medical education which
they might have to do if selection for admission to the medical colleges in the entire
State were to be based on merit without any reservation or preference regionwise. It
must be remembered that there would be a large number of students who, if they do
not get admission in the medical college near their residence and are assigned
admission in a college in another region on the basis of relative merit, may not be
able to go to such other medical college on account of lack of resources and facilities
and in the result, they would be effectively deprived of a real opportunity for
pursuing the medical course even though on paper they would have got admission in
the medical college. The opportunity for medical education provided to them would
be illusory and not real because they would not be able to avail of it. Moreover some
difficulty would also arise in case of girls because if they are not able to get
admission in the medical college near the place where they reside they might find it
difficult to pursue medical education in a medical college situated in another region
where hostel facilities may not be available and even if hostel facilities are available,
the parents may hesitate to send them to the hostels. We are therefore of the view
that reservation or preference in respect of a certain percentage of seats may
legitimately be made in favour of those who have studied in schools or colleges within

the region of a particular university, in order to equalise opportunities for medical
admission on a broader basis and to bring about real and not formal, actual and not
merely legal, equality. The only question is as to what should be the e Xtent of such
reservation or preference. But on this question we derive considerable light from the
decision in Pra- deep Jain case [1984] 3 SCC 654 where we held that reservation
based on residence requirement or institutional preference should not e Xceed the
other limit of 70% of the total number of open seats after taking into account other
kinds of reservations validly made and that the remaining 30% of the open seats at
the least should be made available for admission to students on all-India basis
irrespective of the State or the university from which they come. We would adopt
the same principle in case of regionwise reservation or preference and hold that not
more than 70% of the total number of open seats in the medical college or colleges
situate within the area of jurisdiction of a particular university, after taking into
account other kinds of reservations validly made, shall be reserved for students who
have studied in schools or colleges situate within the region and at least 30% of the
open seats shall be available for admission to students who have studied in schools or
colleges in other regions within the State."
In Pradeep Jain's case (supra), although it was stated that the outer limit of such reservation should
not eXceed 70 per cent of the total number of open seats after taking into account other kinds of
reservations validly made, yet the Court eXpressed the view that this outer limit 70 per cent needs to
be reduced. In the instant case, the respondents have reserved 64 seats out of 150 seats for
Scheduled Castes, Scheduled Tribes, backward classes, etc. In our opinion, out of the remaining 86
seats, reservation of seats for regular or bona fide employees for admission to evening classes shall,
in no event, eXceed the limit of 50 per cent. The admission to the remaining 43 seats will be open to
general candidates on merit basis. Thus, while the respondents will be at liberty to reserve seats for
regular or bona fide employees for admission to evening classes, such reservation shall not eXceed
50 per cent after deducting the number of seats reserved for Scheduled Castes, Scheduled Tribes,
backward classes, etc. The only question which remains to be considered is whether the appellants
are entitled to any relief. It has been already noticed that the appellant, Deppak Sibal, was refused
admission on the ground that he was an employee of a Public Limited Company which did not fall
within the eXclu- sive categories, as mentioned in the impugned rule, to which admission to the
evening classes was restricted. The appellant was appointed on probation for a period of siX
months in Agro Chem Punjab Ltd. with effect from June 2, 1988. In proof of his appointment, the
appellant produced before the respondents a certificate of employment dated June 1, 1988 issued by
the Director of Agro Chem Punjab Ltd. According to the respondents, the certificate of employment
produced by the appellant is not a genuine one inasmuch as the appellant was admitted to the first
semester in the LL.B. Course of the Himachal Pradesh University at Simla on July 12, 1988. We fail
to understand how it can be said that the certificate of employment of the appellant in Agro Chem
Punjab Ltd. was not a genuine certificate, simply because the appellant was admitted in the first
semester of the LL.B. Course of the Himachal Pradesh University on July 12, 1983. It is common
knowledge that a candidate very often seeks admission in more than one college or university. The
appellant also made an application for admission to the LL.B. Course in Himachal Pradesh
University and he was admitted. It may be that after the respondents refused to admit the appellant

in the evening classes, the appellant had to join LL.B. Course of the Himachal Pradesh University
after giving up his service in Agro Chem Punjab Ltd. But, when the appellant made the application
for admission in the evening classes of the Law Department of the Punjab University, he was in
employment of Agro Chem Punjab Ltd. We do not find any reason to doubt the genuineness of the
certificate of employment in Agro Chem Punjab Ltd. It is the case of the appellant that to prosecute
his studies in LL.B. Course in Himachal Pradesh University will put him to great hardship and
inconvenience and it will be convenient for him to prosecute his studies in the University of Pun-
jab. Similarly the other appellant, Miss Ritu Khanna, was refused admission by the respondents on
the ground that her appointment was purely temporary, although her position was 19 in the merit
list.
It has been already found that the impugned rule is discriminatory and is violative of Article 14 of
the Consti- tution and, as such, invalid. The refusal by the respondents to admit the appellants in
the evening classes of the Three-Year LL.B. Degree Course was illegal. The appellants are, therefore,
entitled to be admitted in the evening classes. It is, however, submitted on behalf of the respond-
ents that all the seats have been filled up and, accordingly, the appellants cannot be admitted. As
injustice was done to the appellants, it will be no answer to say that all the seats are filled up.
For the reasons aforesaid, the judgment of the High Court is set aside and the impugned rule for
admission in the evening classes is struck down as discriminatory and violative of Article 14 of the
Constitution and accordingly, invalid. We, however, make it clear that the striking down of the im-
pugned rule shall not, in any manner whatsoever, disturb the admissions already made for the
session 1988-89. The respondents are directed to admit both the appellants in the second semester
which has commenced from January, 1989 and shall allow them to complete the Three-Year LL.B.
Degree Course, if not otherwise ineligible on, the ground of unsatisfactory academic performance.
As was directed by this Court in Ajay Hasia v. Khalid Mujib Sehravardi, [1981] 2 SCR 79, the seats
allocated to the appellants will be in addition to the normal intake of students in the college. Both
the appeals are allowed. There will, however, be no order as to costs.
N.P.V Appeal
allowed.

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Javed & Ors vs State Of Haryana & Ors on 30 July, 2003

Supreme Court of India

State of Haryana & Ors.

J U D G M E N T (With C.A. Nos._5355-5372, 5380-5381, 5382, 5385, 5386, 5397-5450/2003 @

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XXX XXX XXX XXX XXX XXX

(q) has more than two living children :

"177(1) If any member of a Gram Panchayat, Panchayat Samiti or Zila Parishad -

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Is the classification arbitrary?

The legislation does not serve its object?

24. Family Welfare.

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25. Women and child development.

"XIX. Public Health and Family Welfare -

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@ôë íQÃ º Z ª" î+

IN THE SUPREME COURT OF

CIVIL ORIGINAL JURISDICTION

WRIT PETITION NO. 302 OF 2001

Javed & Ors......................................................Petitioners

State of Haryana & Ors..................................Respondents

(With C.A. Nos._____________________________________

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SLP(C) Nos. 17247/2001, 17497/2001, 16892/2001, 18557/2001, 18554/2001, WP(C) Nos.

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Submission (iv) & (v) : the provision if it violates Article 21 or 25?

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The provision if it violates Article 25 ?

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part of practice of that religion. The latter is not protected by Article

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N. Rajagopal Iyengar, for the appellant.

R. Ganapathi Iyer, for the 1st respondent.

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"Notwithstanding anything in this Constitution--

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(2) (1945) A.I.R. Lah. 85.

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