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Narmada Bachao Andolan vs Union Of India And Others on 18 October, 2000
Supreme Court of India

Author: Kirpal
Bench: B. N. Kirpal, Dr. A. Anand
PETITIONER:
NARMADA BACHAO ANDOLAN
Vs.
RESPONDENT:
UNION OF INDIA AND OTHERS
DATE OF JUDGMENT: 18/10/2000
BENCH:
B. N. KIRPAL , DR. A. S. ANAND
JUDGMENT:
KIRPAL,J.
Narmada is the fifth largest river in India and largest West flowing river of the Indian Peninsula. Its
annual flow approximates to the combined flow of the rivers Sutlej, Beas and Ravi. Originating from
the Maikala ranges at Amarkantak in Madhya Pradesh, it flows Westwards over a length of about
1312 km. before draining into the Gulf of Cambay, 50 km. West of Bharuch City. The first 1077 km.
stretch is in Madhya Pradesh and the next 35 km. stretch of the river forms the boundary between
the States of Madhya Pradesh and Maharasthra. Again, the next 39 km. forms the boundary
between Maharasthra and Gujarat and the last stretch of 161 km. lies in Gujarat.
The Basin area of this river is about 1 lac sq. km. The utilisation of this river basin, however, is
hardly about 4%. Most of the water of this peninsula river goes into the sea. Inspite of the huge
potential, there was hardly any development of the Narmada water resources prior to independence.
In 1946, the then Government of Central Provinces and Berar and the then Government of Bombay
requested the Central Waterways, Irrigation and Navigation Commission (CWINC) to take up
investigations on the Narmada river system for basin-wise development of the river with flood
control, irrigation, power and extension of navigation as the objectives in view. The study
commenced in 1947 and most of the sites were inspected by engineers and geologists who
recommended detailed investigation for seven projects. Thereafter in 1948, the Central Ministry of
Works, Mines & Power appointed an Ad-hoc Committee headed by Shri A.N. Khosla, Chairman,
CWINC to study the projects and to recommend the priorities. This Ad-hoc Committee
recommended as an initial step detailed investigations for the following projects keeping in view the
availability of men, materials and resources:
Indian Kanoon - http://indiankanoon.org/doc/1938608/ 1

1. Bargi Project
2. Tawa Project near Hoshangabad
3. Punasa Project and
4. Broach Project Based on the recommendations of the aforesaid Ad-hoc Committee, estimates for
investigations of the Bargi, Tawa, Punasa (Narmadasagar) and Broach Projects were sanctioned by
the Government of India in March, 1949.
The Central Water & Power Commission carried out a study of the hydroelectric potential of the
Narmada basin in the year 1955. After the investigations were carried out by the Central Water &
Power Commission, the Navagam site was finally decided upon in consultation with the erstwhile
Government of Bombay for the construction of the dam. The Central Water & Power Commission
forwarded its recommendations to the then Government of Bombay. At that time the
implementation was contemplated in two stages. In Stage-I, the Full Reservoir Level (hereinafter
referred to as FRL) was restricted to 160 ft. with provision for wider foundations to enable raising of
the dam to FRL 300 ft. in Stage-II. A high level canal was envisaged in Stage-II. The erstwhile
Bombay Government suggested two modifications, first the FRL of the dam be raised from 300 to
320 ft. in Stage-II and second the provision of a power house in the river bed and a power house at
the head of the low level canal be also made. This project was then reviewed by a panel of
Consultants appointed by the Ministry of Irrigation & Power who in a report in 1960 suggested that
the two stages of the Navagam dam as proposed should be combined into one and the dam be
constructed to its final FRL 320 ft. in one stage only. The Consultants also stated that there was
scope for extending irrigation from the high level canal towards the Rann of Kutch.
With the formation of the State of Gujarat on 1st May, 1960, the Narmada Project stood transferred
to that State. Accordingly, the Government of Gujarat gave an administrative approval to Stage-I of
the Narmada Project in February, 1961. The Project was then inaugurated by late Pandit Jawaharlal
Nehru on 5th April, 1961. The preliminary works such as approach roads & bridges, colonies, staff
buildings and remaining investigations for dam foundations were soon taken up.
The Gujarat Government undertook surveys for the high level canal in 1961. The submergence area
survey of the reservoir enabled assessment of the storage capability of the Navagam reservoir, if its
height should be raised beyond FRL 320 ft. The studies indicated that a reservoir with FRL + 460 ft.
would enable realisation of optimum benefits from the river by utilising the untapped flow below
Punasa dam and would make it possible to extend irrigation to a further area of over 20 lakh acres.
Accordingly, explorations for locating a more suitable site in the narrower gorge portion were taken
in hand and finally in November, 1963, site No. 3 was found to be most suitable on the basis of the
recommendations of the Geological Survey of India and also on the basis of exploration and
investigations with regard to the foundation as well as construction materials available in the
vicinity of the dam site.

In November, 1963, the Union Minister of Irrigation & Power held a meeting with the Chief
Ministers of Gujarat and Madhya Pradesh at Bhopal. As a result of the discussions and exchange of
views, an agreement (Bhopal Agreement) was arrived at. The salient features of the said Agreement
were:
a) That the Navagam Dam should be built to FRL 425 by the Government of Gujarat and its entire
benefits were to be enjoyed by the State of Gujarat.
b) Punasa dam (Madhya Pradesh) should be built to FRL 850. The costs and power benefits of
Punasa Power Project shall be shared in the ratio 1:2 between the Governments of Gujarat and
Madhya Pradesh. Out of the power available to Madhya Pradesh half of the quantum was to be given
to the State of Maharashtra for a period of 25 years for which the State of Maharashtra was to
provide a loan to the extent of one-third the cost of Punasa Dam. The loan to be given by the State of
Maharashtra was to be returned within a period of 25 years.
c) Bargi Project was to be implemented by the State of Madhya Pradesh, Bargi Dam was to be built
to FRL 1365 in Stage I and FRL 1390 in Stage II and the Governments of Gujarat and Maharashtra
were to give a total loan assistance of Rs. 10 crores for the same.
In pursuance of the Bhopal Agreement, the Government of Gujarat prepared a brief project report
envisaging the Navagam Dam FRL 425 ft. and submitted the same to the Central Water and Power
Commission under Gujarat Governments letter dated 14th February, 1964. Madhya Pradesh,
however, did not ratify the Bhopal Agreement. In order to overcome the stalemate following the
rejection of the Bhopal Agreement by Madhya Pradesh, a High Level Committee of eminent
engineers headed by Dr. A.N. Khosla, the then Governor of Orissa, was constituted on 5th
September, 1964 by the Government of India. The terms of reference of this Committee were
decided by the Government of India in consultation with the States of Madhya Pradesh,
Maharashtra and Gujarat. The same read as under:
i) Drawing up of a Master Plan for the optimum and integrated development of the Narmada water
resources.
ii) The phasing of its implementation for maximum development of the resources and other
benefits.
iii) The examination, in particular, of Navagam and alternative projects, if any, and determining the
optimum reservoir level or levels.
iv) Making recommendations of any other ancillary matters.
The Khosla Committee submitted the unanimous report to the Government of India in September,
1965 and recommended a Master Plan of the Narmada water development. In Chapter XI of the said
Report, the Khosla Committee outlined its approach to the plan of Narmada development. An
extract from this Chapter is reproduced below:

11.1 In their meeting from 14th to 18th December, 1964 at which the State representatives were also
present, the Committee laid down the following basic guidelines in drawing up the Master Plan for
the optimum and integrated development of the Narmada water resources:-
1. National interest should have over-riding priority. The plan should, therefore, provide for
maximum benefits in respect of irrigation, power generation, flood control, navigation etc.
irrespective of State boundaries;
2. Rights and interests of State concerned should be fully safeguarded subject to (1) above;
3. Requirements of irrigation should have priority over those of power;
Subject to the provision that suitable apportionment of water between irrigation and power may
have to be considered, should it be found that with full development of irrigation, power production
is unduly affected;
4. Irrigation should be extended to the maximum area within physical limits of command,
irrespective of State boundaries, subject to availability of water; and in particular, to the arid areas
along the international border with Pakistan both in Gujarat and Rajasthan to encourage sturdy
peasants to settle in these border areas (later events have confirmed the imperative need for this);
and
5. All available water should be utilised to the maximum extent possible for irrigation and power
generation and, when no irrigation is possible, for power generation. The quantity going waste to the
sea without doing irrigation or generating power should be kept to the un-avoidable minimum.
The Master Plan recommended by the Khosla Committee envisaged 12 major projects to be taken up
in Madhya Pradesh and one, viz., Navagam in Gujarat. As far as Navagam Dam was concerned, the
Committee recommended as follows:-
1. The terminal dam should be located at Navagam.
2. The optimum FRL of the Navagam worked out to RL 500 ft..
3. The FSL (Full Supply Level ) of the Navagam canal at off-take should be RL 300 ft..
4. The installed capacity at the river bed power station and canal power station should be 1000 mw
and 240 mw respectively with one stand-by unit in each power station (in other words the total
installed capacity at Navagam would be 1400 mw).
The benefits of the Navagam Dam as assessed by the Khosla Committee were as follows:-
(1) Irrigation of 15.80 lakh hectares (39.4 lakh acres) in Gujarat and 0.4 lakh hectares (1.00 lakh
acres) in Rajasthan. In addition, the Narmada waters when fed into the existing Mahi Canal system

would release Mahi water to be diverted on higher contours enabling additional irrigation of 1.6 to
2.0 lakh hectares (4 to 5 lakh acres) approximately in Gujarat and 3.04 lakh hectares (7.5 lakh acres)
in Rajasthan.
(2) Hydro-power generation of 951 MW at 60% LF in the mean year of development and 511 MW on
ultimate development of irrigation in Gujarat, Madhya Pradesh, Maharashtra and Rajasthan.
The Khosla Committee stressed an important point in favour of high Navagam Dam, namely,
additional storage. They emphasized that this additional storage will permit greater carryover
capacity, increased power production and assured optimum irrigation and flood control and would
minimise the wastage of water to the sea. The Khosla Committee also observed that instead of
higher Navagam Dam as proposed, if Harinphal or Jalsindhi dams were raised to the same FRL as at
Navagam, the submergence would continue to remain about the same because the cultivated and
inhabited areas lie mostly above Harinphal while in the intervening 113 km (70 mile) gorge between
Harinphal and Navagam, there was very little habitation or cultivated areas. The Khosla Committee
report could not be implemented on account of disagreement among the States. On 6th July, 1968
the State of Gujarat made a complaint to the Government of India under Section 3 of the Inter- State
Water Disputes Act, 1956 stating that a water dispute had arisen between the State of Gujarat and
the Respondent States of Madhya Pradesh and Maharashtra over the use, distribution and control of
the waters of the Inter-State River Narmada. The substance of the allegation was that executive
action had been taken by Maharashtra and Madhya Pradesh which had prejudicially affected the
State of Gujarat and its inhabitants. The State of Gujarat objected to the proposal of the State of
Madhya Pradesh to construct Maheshwar and Harinphal Dams over the river Narmada in its lower
reach and also to the agreement reached between the States of Madhya Pradesh and Maharashtra to
jointly construct the Jalsindhi Dam over Narmada in its course between the two States. The main
reason for the objection was that if these projects were implemented, the same would prejudicially
affect the rights and interests of Gujarat State by compelling it to restrict the height of the dam at
Navagam to FRL 210 ft. or less. Reducing the height of the dam would mean the permanent
detriment of irrigation and power benefits that would be available to the inhabitants of Gujarat and
this would also make it impossible for Gujarat to re-claim the desert area in the Ranns of Kutch.
According to the State of Gujarat, the principal matters in disputes were as under:
(i) The right of the State of Gujarat to control and use the waters of the Narmada river on
well-accepted principles applicable to the use of waters of inter-State rivers;
(ii) the right of the State of Gujarat to object to the arrangement between the State of Madhya
Pradesh and the State of Maharashtra for the development of Jalsindhi dam;
(iii) the right of the State of Gujarat to raise the Navagam dam to an optimum height commensurate
with the efficient use of Narmada waters including its control for providing requisite cushion for
flood control; and
(iv) the consequential right of submergence of area in the States of Madhya Pradesh and
Maharashtra and areas in the Gujarat State.

Acting under Section 4 of the Inter-State Water Disputes Act, 1956, the Government of India
constituted a Tribunal headed by Honble Mr. Justice V. Ramaswamy, a retired Judge of this Court.
On the same day, the Government made a reference of the water dispute to the Tribunal. The
Reference being in the following terms:
In exercise of the powers conferred by sub-section (1) of Section 5 of the Inter-State Water Disputes
Act, 1956 (33 of 1956), the Central Government hereby refers to the Narmada Water Disputes
Tribunal for adjudication of the water dispute regarding the inter-State river, Narmada, and the
river-valley thereof, emerging from letter No. MIP-5565/C-10527-K dated the 6th July, 1968, from
the Government of Gujarat.
On 16th October, 1969, the Government of India made another reference of certain issues raised by
the State of Rajasthan to the said Tribunal.
The State of Madhya Pradesh filed a Demurrer before the Tribunal stating that the constitution of
the Tribunal and reference to it were ultra vires of the Act. The Tribunal framed 24 issues which
included the issues relating to the Gujarat having a right to construct a high dam with FRL 530 feet
and a canal with FSL 300 feet or thereabouts. Issues 1(a), 1(b), 1(A), 2,3, and 19 were tried as
preliminary issues of law and by its decision dated 23rd February, 1972, the said issues were decided
against the respondents herein. It was held that the Notification of the Central Government dated
16th October, 1969 referring the matters raised by the State of Rajasthan by its complaint was ultra
vires of the Act but constitution of the Tribunal and making a reference of the water dispute
regarding the Inter-State river Narmada was not ultra vires of the Act and the Tribunal had
jurisdiction to decide the dispute referred to it at the instance of State of Gujarat. It further held that
the proposed construction of the Navagam project involving consequent submergence of portions of
the territories of Maharashtra and Madhya Pradesh could form the subject matter of a water dispute
within the meaning of Section 2(c) of the 1956 Act. It also held that it had the jurisdiction to give
appropriate direction to Madhya Pradesh and Maharashtra to take steps by way of acquisition or
otherwise for making submerged land available to Gujarat in order to enable it to execute the
Navagam Project and the Tribunal had the jurisdiction to give consequent directions to Gujarat and
other party States regarding payment of compensation to Maharashtra and Madhya Pradesh, for
giving them a share in the beneficial use of Navagam dam, and for rehabilitation of displaced
persons.
Against the aforesaid judgment of the Tribunal on the preliminary issues, the States of Madhya
Pradesh and Rajasthan filed appeals by special leave to this Court and obtained a stay of the
proceedings before the Tribunal to a limited extent. This Court directed that the proceedings before
the Tribunal should be stayed but discovery, inspection and other miscellaneous proceedings before
the Tribunal may go on. The State of Rajasthan was directed to participate in these interlocutory
proceedings.
It appears that on 31.7.1972, the Chief Ministers of Madhya Pradesh, Maharasthra, Gujarat and
Rajasthan had entered into an agreement to compromise the matters in dispute with the assistance
of Prime Minister of India. This led to a formal agreement dated 12th July, 1974 being arrived at

between the Chief Ministers of Madhya Pradesh, Maharashtra & Rajasthan and the Advisor to the
Governor of Gujarat on a number of issues which the Tribunal otherwise would have had to go into.
The main features of the Agreement, as far as this case is concerned, were that the quantity of water
in Narmada available for 75% of the year was to be assessed at 28 million acre feet and the Tribunal
in determining the disputes referred to it was to proceed on the basis of this assessment. The net
available quantity of water for use in Madhya Pradesh and Gujarat was to be regarded as 27.25
million acre feet which was to be allocated between the States. The height of the Navagam Dam was
to be fixed by the Tribunal after taking into consideration various contentions and submissions of
the parties and it was agreed that the appeals filed in this Court by the States of Madhya Pradesh
and Rajasthan would be withdrawn. It was also noted in this agreement that development of
Narmada should no longer be delayed in the best regional and national interests.
After the withdrawal of the appeals by the States of Madhya Pradesh and Rajasthan, the Tribunal
proceeded to decide the remaining issues between the parties.
On 16th August, 1978, the Tribunal declared its Award under Section 5(2) read with Section 5(4) of
the Inter-State Water Disputes Act, 1956. Thereafter, reference numbers 1,2,3,4 & 5 of 1978 were
filed by the Union of India and the States of Gujarat, Madhya Pradesh, Maharashtra and Rajasthan
respectively under Section 5(3) of the Inter-State Water Disputes Act, 1956. These references were
heard by the Tribunal, which on 7th December, 1979, gave its final order. The same was published in
the extraordinary Gazette by the Government of India on 12th December, 1979. In arriving at its
final decision, the issues regarding allocation, height of dam, hydrology and other related issues
came to be subjected to comprehensive and thorough examination by the Tribunal. Extensive
studies were done by the Irrigation Commission and Drought Research Unit of India,
Meteorological Department in matters of catchment area of Narmada Basin, major tributaries of
Narmada Basin, drainage area of Narmada Basin, climate, rainfall, variability of rainfall, arid and
semi-arid zones and scarcity area of Gujarat. The perusal of the report shows that the Tribunal also
took into consideration various technical literature before giving its Award.
AWARD OF THE TRIBUNAL The main parameters of the decision of the Tribunal were as under:
A) DETERMINATION OF THE HEIGHT OF SARDAR

SAROVAR DAM
The height of the Sardar Sarovar Dam was determined at FRL 455 ft.. The Tribunal was of the view
that the FRL +436 ft. was required for irrigation use alone. In order to generate power throughout
the year, it would be necessary to provide all the live storage above MDDL for which an FRL +453 ft.
with MDDL + 362 ft. would obtain gross capacity of 7.44 MAF. Therefore, the Tribunal was of the
view that FRL of the Sardar Sarovar Dam should be + 455 ft. providing gross storage of 7.70 MAF. It
directed the State of Gujarat to took up and complete the construction of the dam.
b) Geological and Seismological aspects of the dam site.

The Tribunal accepted the recommendations of the Standing Committee under Central Water &
Power Commission that there should be seismic co-efficient of 0.10 g for the dam.
c) RELIEF AND REHABILITAION:
The final Award contained directions regarding submergence, land acquisition and rehabilitation of
displaced persons. The award defined the meaning of the land, oustee and family. The Gujarat
Government was to pay to Madhya Pradesh and Maharasthra all costs including compensation,
charges, expenses incurred by them for and in respect of compulsory acquisition of land. Further,
the Tribunal had provided for rehabilitation of oustees and civic amenities to be provided to the
oustees. The award also provided that if the State of Gujarat was unable to re-settle the oustees or
the oustees being unwilling to occupy the area offered by the States, then the oustees will be
re-settled by home State and all expenses for this were to be borne by Gujarat. An important
mandatory provision regarding rehabilitation was the one contained in Clause XI sub- clause
IV(6)(ii) which stated that no submergence of any area would take place unless the oustees were
rehabilitated.
D) ALLOCATION OF THE NARMADA WATERS:
The Tribunal determined the utilizable quantum of water of the Narmada at Sardar Sarovar Dam
site on the basis of 75% dependability at 28 MAF. It further ordered that out of the utilizable
quantum of Narmada water, the allocation between the States should be as under:
Madhya Pradesh : 18.25 MAF

Gujarat : 9.00 MAF
Rajasthan : 0.50 MAF
Maharasthra : 0.25 MAF
E) PERIOD OF NON REVIEWABILITY OF CERTAIN AWARD

TERMS:
The Award provided for the period of operation of certain clauses of the final order and decision of
the Tribunal as being subject to review only after a period of 45 years from the date of the
publication of the decision of the Tribunal in the official gazette. What is important to note however
is that the Tribunals decision contained in clause II relating to determination of 75% dependable
flow as 28 MAF was non-reviewable. The Tribunal decision of the determination of the utilizable
quantum of Narmada water at Sardar Sarovar Dam site on the basis of 75% dependability at 28 MAF
is not a clause which is included as a clause whose terms can be reviewed after a period of 45 years.
The Tribunal in its Award directed for the constitution of an inter- State Administrative Authority
i.e. Narmada Control Authority for the purpose of securing compliance with and implementation of
the decision and directions of the Tribunal. The Tribunal also directed for constitution of a Review
Committee consisting of the Union Minister for Irrigation (now substituted by Union Minister for
Water Resources) as its Chairperson and the Chief Ministers of Madhya Pradesh, Maharashtra,
Gujarat and Rajasthan as its members. The Review Committee might review the decisions of the
Narmada Control Authority and the Sardar Sarovar Construction Advisory Committee. The Sardar
Sarovar Construction Advisory Committee headed by the Secretary, Ministry of Water Resources as
its Chairperson was directed to be constituted for ensuring efficient, economical and early execution
of the project .
Narmada Control Authority is a high powered committee having the Secretary, Ministry of Water
Resources, Government of India as its Chairperson, Secretaries in the Ministry of Power, Ministry of
Environment and Forests, Ministry of Welfare, Chief Secretaries of the concerned four States as
Members. In addition thereto, there are number of technical persons like Chief Engineers as the
members.
Narmada Control Authority was empowered to constitute one or more sub-committees and assign to
them such of the functions and delegate such of its powers as it thought fit. Accordingly, the
Narmada Control Authority constituted the following discipline based sub-groups:
(i) Resettlement and Rehabilitation sub-group under the Chairmanship of Secretary, Ministry of
Welfare;
(ii) Rehabilitation Committee under Secretary, Minister of Welfare to supervise the rehabilitation
process by undertaking visits to R&R sites and submergence villages.
(iii) Environment Sub-group under the Chairmanship of Secretary, Ministry of Environment and
Forests;
(iv) Hydromet Sub-group under the Chairmanship of Member (Civil), Narmada Control Authority;
(v) Power Sub-group under the Chairmanship of Member (Power) Narmada Control Authority;
(vi) Narmada main Canal Sub-committee under the chairmanship of Executive Member, Narmada
Conrol Authority.
The Award allocated the available water resources of the Narmada river between the four States.
Based on this allocation, an overall plan for their utilisation and development had been made by the
States. Madhya Pradesh was the major sharer of the water. As per the water resources development
plan for the basin it envisaged in all 30 major dams, 135 medium dam projects and more than 3000
minor dams. The major terminal dam at Sardar Sarovar was in Gujarat, the remaining 29 being in
Madhya Pradesh. Down the main course of the river, the four major dams were the Narmada Sagar
(now renamed as Indira Sagar), Omkareshwar and Maheshwar all in Madhya Pradesh and Sardar
Sarovar in Gujarat. Rajasthan was to construct a canal in its territory to utilize its share of 0.5 MAF.
Relavant Details of the Sardar Sarovar Dam:
As a result of the Award of the Tribunal, the Sardar Sarovar Dam and related constructions, broadly
speaking, are to comprise of the following:

a) Main dam across the flow of the river with gates above the crest level to regulate the flow of water
into the Narmada Main Canal.
b) An underground River Bed Power through which a portion of the water is diverted to generate
power (1200 MW). This water joins the main channel of the Narmada river downstream of the dam.
c) A saddle dam located by the side of main reservoir through which water to the main canal system
flows.
d) A Canal Head Power House located at the toe of the saddle dam, through which the water flowing
to the main canal system is to be used to generate power (250 MW).
e) The main canal system known as Narmada main canal 458 KM. long which is to carry away the
water meant for irrigation and drinking purposes to the canal systems of Gujarat and Rajasthan.
Expected benefits from the project:
The benefits expected to flow from the implementation of the Sardar Sarovar Project had been
estimated as follows:
Irrigation: 17.92 lac hectare of land spread over 12 districts, 62 talukas and 3393 villages (75% of
which is drought-prone areas) in Gujarat and 73000 hectares in the arid areas of Barmer and Jallore
districts of Rajasthan.
Drinking Water facilities to 8215 villages and 135 urban centers in Gujarat both within and outside
command. These include 5825 villages and 100 urban centers of Saurashtra and Kachchh which are
outside the command. In addition, 881 villages affected due to high contents of fluoride will get
potable water.
Power Generation: 1450 Megawatt.
Annual Employment Potential:
7 lac man-years during construction 6 lac man-years in post construction.
Protection against advancement of little Rann of Kutch and Rajasthan desert.
Flood protection to riverine reaches measuring 30,000 hac, 210 villages including Bharuch city and
7.5 lac population.
Benefits to:
a) Dhumkhal Sloth Bear Sanctuary.

b) Wild Ass Sanctuary in Little Rann of Kachchh
c) Black Buck Sanctuary at Velavadar.
d) Great Indian Bustard Sanctuary in Kachchh
e) Nal Sarovar Bird Sanctuary.
Development of fisheries: Deepening of all village tanks of command which will increase their
capacities, conserve water, will recharge ground water, save acquisition of costly lands for getting
earth required for constructing canal banks and will reduce health hazard.
Facilities of sophisticated communication system in the entire command.
Increase in additional annual production on account of (Rs.in crores) Agricultural production 900
Domestic water supply 100 Power Generation 440
--------
Total 1400
--------
POST AWARD CLEARANCES:
In order to meet the financial obligations, consultations had started in 1978 with the World Bank for
obtaining a loan. The World Bank sent its Reconnaissance Mission to visit the project site and
carried out the necessary inspection. In May, 1985, the Narmada Dam and Power Project and
Narmada Water Delivery and Drainage Project were sanctioned by the World Bank under
International Development Agency, credit No. 1552. Agreement in this respect was signed with the
Bank on 10.5.1985 and credit was to be made available from 6th January, 1986.
With regard to the giving environmental clearance, a lot of discussion took place at different levels
between the Ministry of Water Resources and the Ministry of Environment. Ultimately on 24th
June, 1987 the Ministry of Environment and Forests, Government of India accorded clearance
subject to certain conditions. The said Office Memorandum containing the environmental clearance
reads as follows:
OFFICE MEMORANDUM Subject : Approval of Narmada Sagar Project, Madhya Pradesh and
Sardar Sarovar Project, Gujarat from environmental angle.
The Narmada Sagar Project, Madhya Pradesh and Sardar Sarovar Project Gujarat have referred to
this Department for environmental clearance.

2. On the basis of examination of details on these projects by the Environmental Appraisal

Committee for River Valley Projects and discussions with the Central and State authorities the
following details were sought from the project authorities:
1. Rehabilitation Master Plan
2. Phased Catchment Area Treatment Scheme
3. Compensatory Afforestation Plan
4. Command Area Development
5. Survey of Flora and Fauna
6. Carrying capacity of surrounding area.
7. Seismicity and
8. Health Aspects
3. Field surveys are yet to be completed. The first set of information hash been made available and
complete details have been assured to be furnished in 1989.
4. The NCA has been examined and its terms of reference have been amplified to ensure that
environmental safeguard measures are planned and implemented in depth and in its pace of
implementation pari passu with the progress of work on the projects.
5. After taking into account all relevant facts the Narmada Sagar Project, Madhya Pradesh and the
Sardar Sarovar Project, Gujarat State are hereby accorded environmental clearance subject to the
following conditions.
i. The Narmada Control Authority (NCA)will ensure that environmental safeguard measures are
planned and implemented pari passu with progress of work on project.
ii) The detailed surveys/studies assured will be carried out as per the schedule proposed and details
made available to the Department for assessment.
iii) The Catchment Area treatment programme and the Rehabilitation plans be so drawn as to be
completed ahead of reservoir filling.
iv) The Department should be kept informed of progress on various works periodically.
6. Approval under Forest (Conservation) Act, 1980 for diversion of forest land will be obtained
separately. No work should be initiated on forest area prior to this approval.

7. Approval from environmental and forestry angles for any other irrigation, power or development
projects in the Narmada Basin should be obtained separately.
Sd/-
(S.MUDGAL) DIRECTOR(IA) In November, 1987 for monitoring and implementation of various

environmental activities effectively, an independent machinery of Environment Sub-Group was
created by Narmada Control Authority. This Sub-Group was appointed with a view to ensure that
the environmental safeguards were properly planned and implemented. This Sub-Group is headed
by the Secretary, Ministry of Environment and Forests, Government of India, as its Chairperson and
various other independent experts in various fields relating to environment as its members.
After the clearance was given by the Ministry of Environment and Forests, the Planning
Commission, on 5th October, 1988, approved investment for an estimated cost of Rs. 6406/- crores
with the direction to comply with the conditions laid down in the environment clearance accorded
on 24th June, 1987.
According to the State of Gujarat and Union of India, the studies as required to be done by the O.M.
dated 24th June, 1987, whereby environmental clearance was accorded, have been undertaken and
the requisite work carried out. The construction of the dam had commenced in 1987.
In November, 1990 one Dr. B.D. Sharma wrote a letter to this Court for setting up of National
Commission for Scheduled Castes and Scheduled Tribes including proper rehabilitation of oustees
of Sardar Sarovar Dam. This letter was entertained and treated as a writ petition under Article 32 of
the Constitution being Writ Petition No. 1201 of 1990.
On 20th September, 1991, this Court in the said Writ Petition bearing No. 1201 of 1990 gave a
direction to constitute the Committee headed by Secretary (Welfare) to monitor the rehabilitation
aspects of Sardar Sarovar Project.
The Narmada Bachao Andolan, the petitioner herein, had been in the forefront of agitation against
the construction of the Sardar Sarovar Dam. Apparently because of this, the Government of India,
Ministry of Water Resources vide Office Memorandum dated 3rd August, 1993 constituted a Five
Member Group to be headed by Dr. Jayant Patil, Member, Planning Commission and Dr. Vasant
Gowarikar, Mr. Ramaswamy R. Iyer, Mr. L.C. Jain and Dr. V.C. Kulandaiswamy as its members to
continue discussions with the Narmada Bachao Andolan on issues relating to the Sardar Sarovar
Project. Three months time was given to this Group to submit its report.
During this time, the construction of the dam continued and on 22nd February, 1994 the Ministry of
Water Resources conveyed its decision regarding closure of the construction sluices. This decision
was given effect to and on 23rd February, 1994 closure of ten construction sluices was effected.
In April, 1994 the petitioner filed the present writ petition inter alia praying that the Union of India
and other respondents should be restrained from proceeding with the construction of the dam and

they should be ordered to open the aforesaid sluices. It appears that the Gujarat High Court had
passed an order staying the publication of the report of the Five Member Group established by the
Ministry of Water Resources. On 15th November, 1994, this Court called for the report of the Five
Member Group and the Government of India was also directed to give its response to the said
report.
By order dated 13th December, 1994, this Court directed that the report of the Five Member Group
be made public and responses to the same were required to be filed by the States and the report was
to be considered by the Narmada Control Authority. This Report was discussed by the Narmada
Control Authority on 2nd January, 1995 wherein disagreement was expressed by the State of
Madhya Pradesh on the issues of height and hydrology. Separate responses were filed in this Court
to the said Five Member Group Report by the Government of India and the Governments of Gujarat
and Madhya Pradesh.
On 24th January, 1995, orders were issued by this Court to the Five Member Group for submitting
detailed further report on the issues of:
a) Height
b) Hydrology
c) Resettlement and Rehabilitation and environmental matters.
Dr. Patil who had headed the Five Member Group expressed his unwillingness to continue on the
ground of ill-health and on 9th February, 1995, this Court directed the remaining four members to
submit their report on the aforesaid issues.
On 17th April, 1985 the Four Member Group submitted its report. The said report was not
unanimous, unlike the previous one, and the Members were equally divided. With regard to
hydrology, Professor V.C. Kulandaiswamy and Dr. Vasant Gowariker were for adoption of 75%
dependable flow of 27 MAF for the design purpose, on the basis of which the Tribunals Award had
proceeded. On the other hand, Shri Ramaswamy R. Iyer and Shri L.C. Jain were of the opinion that
for planning purposes, it would be appropriate to opt for the estimate of 23 MAF. With regard to the
question relating to the height of the dam, the views of Dr. Gowariker were that the Tribunal had
decided FRL 455 ft. after going into exhaustive details including social, financial and technical
aspects of the project and that it was not practicable at the stage when an expenditure of Rs. 4000
crores had been incurred and an additional contract amounting to Rs. 2000 crores entered into and
the various parameters and features of the project having been designed with respect to FRL 455 ft.
that there should be a reduction of the height of the dam. The other three Members proceeded to
answer this question by first observing as follows:
We must now draw conclusions from the foregoing analysis, but a preliminary point needs to be
made. The SSP is now in an advanced stage of construction, with the central portion of the dam
already raised to 80 m.; the canal constructed upto a length of 140 Kms. ; and most of the

equipment for various components of the project ordered and some of it already wholly or partly
manufactured. An expenditure of over Rs. 3800 crores is said to have been already incurred on the
project; significant social costs have also been incurred in terms of displacement and rehabilitation.
The benefits for which these costs have been and are being incurred have not materialised yet. In
that situation, any one with a concern for keeping project costs under check and for ensuring the
early commencement of benefits would generally like to accelerate rather than retard the completion
of the project as planned. If any suggestion for major changes in the features of the project at this
juncture is to be entertained at all, there will have to be the most compelling reasons for doing so.
It then addressed itself to the question whether there were any compelling reasons. The answer,
they felt, depended upon the view they took on the displacement and rehabilitation problem. The
two views which, it examined, were, firstly whether the problem of displacement and rehabilitation
was manageable and, if it was, then there would be no case of reduction in the height. On the other
hand, if relief and rehabilitation was beset with serious and persistent problems then they might be
led to the conclusion that there should be an examination of the possibility of reducing submergence
and displacement to a more manageable size. These three Members then considered the question of
the magnitude of the relief and rehabilitation problem. After taking into consideration the views of
the States of Madhya Pradesh and Gujarat, the three Members observed as follows:
We find that the Government of Indias idea of phased construction outlined earlier offers a practical
solution; it does not prevent the FRL from being raised to 455 in due course if the necessary
conditions are satisfied; and it enables the Government of Madhya Pradesh to take stock of the
position at 436 and call a halt if necessary. We would, however, reiterate the presumption expressed
in paragraph 3.9.2. above namely that no delinking of construction from R&R is intended and that
by phased construction the Government of India do not mean merely tiered construction which
facilitates controlled submergence in phases. We recommend phased construction in a literal sense,
that is to say, that at each phase it must be ensured that the condition of advance completion of R&R
has been fulfilled before proceeding to the next phase (i.e. the installation of the next tier of the
gates). This would apply even to the installation of the first tier. Judicious operation of the gates
(while necessary) cannot be a substitute for the aforesaid condition.
The possibility of further construction when the FRL 436 ft. was reached or a stoppage at that stage
was left open by the Members. With regard to the environment it observed that this subject had
been by and large covered in the first FMG report.
RIVAL CONTENTIONS On behalf of the petitioners, the arguments of Sh. Shanti Bhushan, learned
senior counsel, were divided into four different heads, namely, general issues, issues regarding
environment, issues regarding relief and rehabilitation and issues regarding review of Tribunals
Award. The petitioners have sought to contend that it is necessary for some independent judicial
authority to review the entire project, examine the current best estimates of all costs (social,
environmental, financial), benefits and alternatives in order to determine whether the project is
required in its present form in the national interest or whether it needs to be re-
structured/modified. It is further the case of the petitioners that no work should proceed till
environment impact assessment has been fully done and its implications for the projects viability

being assessed in a transparent and participatory manner. This can best be done, it is submitted, as
a part of the comprehensive review of the project.
While strongly championing the cause of environment and of the tribals who are to be ousted as a
result of the submergence, it was submitted that the environmental clearance which was granted in
1987 was without any or proper application of mind as complete studies in that behalf were not
available and till this is done the project should not be allowed to proceed further. With regard to
relief and rehabilitation a number of contentions were raised with a view to persuade this Court that
further submergence should not take place and the height of the dam, if at all it is to be allowed to be
constructed, should be considerably reduced as it is not possible to have satisfactory relief and
rehabilitation of the oustees as per the Tribunals Award as a result of which their fundamental rights
under Article 21 would be violated.
While the State of Madhya Pradesh has partly supported the petitioners inasmuch as it has also
pleaded for reduction in the height of the dam so as to reduce the extent of submergence and the
consequent displacement, the other States and the Union of India have refuted the contentions of
the petitioners and of the State of Madhya Pradesh. While accepting that initially the relief and
rehabilitation measures had lagged behind but now adequate steps have been taken to ensure
proper implementation of relief and rehabilitation at least as per the Award. The respondents have,
while refuting other allegations, also questioned the bona fides of the petitioners in filing this
petition. It is contended that the cause of the tribals and environment is being taken up by the
petitioners not with a view to benefit the tribals but the real reason for filing this petition is to see
that a high dam is not erected per se. It was also submitted that at this late stage this Court should
not adjudicate on the various issues raised specially those which have been decided by the Tribunals
Award.
We first propose to deal with some legal issues before considering the various submissions made by
Sh. Shanti Bhushan regarding environment, relief and rehabilitation, alleged violation of rights of
the tribals and the need for review of the project.
LATCHES As far as the petitioner is concerned, it is an anti-dam organisation and is opposed to the
construction of the high dam. It has been in existence since 1986 but has chosen to challenge the
clearance given in 1987 by filing a writ petition in 1994. It has sought to contend that there was lack
of study available regarding the environmental aspects and also because of the seismicity, the
clearance should not have been granted. The rehabilitation packages are dissimilar and there has
been no independent study or survey done before decision to undertake the project was taken and
construction started.
The project, in principle, was cleared more than 25 years ago when the foundation stone was laid by
late Pandit Jawahar Lal Nehru. Thereafter, there was an agreement of the four Chief Ministers in
1974, namely, the Chief Ministers of Madhya Pradesh, Gujarat, Maharashtra and Rajasthan for the
project to be undertaken. Then dispute arose with regard to the height of the dam which was settled
with the award of the Tribunal being given in 1978. For a number of years, thereafter, final clearance
was still not given. In the meantime some environmental studies were conducted. The final

clearance was not given because of the environmental concern which is quite evident. Even though
complete data with regard to the environment was not available, the Government did in 1987 finally
give environmental clearance. It is thereafter that the construction of the dam was undertaken and
hundreds of crores have been invested before the petitioner chose to file a writ petition in 1994
challenging the decision to construct the dam and the clearance as was given. In our opinion, the
petitioner which had been agitating against the dam since 1986 is guilty of latches in not
approaching the Court at an earlier point of time.
When such projects are undertaken and hundreds of crores of public money is spent, individual or
organisations in the garb of PIL cannot be permitted to challenge the policy decision taken after a
lapse of time. It is against the national interest and contrary to the established principles of law that
decisions to undertake developmental projects are permitted to be challenged after a number of
years during which period public money has been spent in the execution of the project.
The petitioner has been agitating against the construction of the dam since 1986, before
environmental clearance was given and construction started. It has, over the years, chosen different
paths to oppose the dam. At its instance a Five Member Group was constituted, but its report could
not result in the stoppage of construction pari passu with relief and rehabilitation measures. Having
failed in its attempt to stall the project the petitioner has resorted to court proceedings by filing this
writ petition long after the environmental clearance was given and construction started. The pleas
relating to height of the dam and the extent of submergence, environment studies and clearance,
hydrology, seismicity and other issues, except implementation of relief and rehabilitation, cannot be
permitted to be raised at this belated stage.
This Court has entertained this petition with a view to satisfy itself that there is proper
implementation of the relief and rehabilitation measurers at least to the extent they have been
ordered by the Tribunals Award. In short it was only the concern of this Court for the protection of
the fundamental rights of the oustees under Article 21 of the Constitution of India which led to the
entertaining of this petition. It is the Relief and Rehabilitation measures that this Court is really
concerned with and the petition in regard to the other issues raised is highly belated. Though it is,
therefore, not necessary to do so, we however presently propose to deal with some of the other
issues raised.
AWARD-BINDING ON THE STATES It has been the effort on the part of the petitioners to
persuade this Court to decide that in view of the difficulties in effectively implementing the Award
with regard to relief and rehabilitation and because of the alleged adverse impact the construction of
the dam will have on the environment, further construction of the dam should not be permitted. The
petitioners support the contention on behalf of the State of Madhya Pradesh to the effect that the
height of the dam should be reduced in order to decrease the number of oustees. In this case, the
petitioners also submit that with regard to hydrology, the adoption of the figure 27 MAF is not
correct and the correct figure is 23 MAF and in view thereof the height of the dam need not be 455
feet.

The Tribunal in this Award has decided a number of issues which have been summarised
hereinabove. The question which arises is as to whether it is open to the petitioners to directly or
indirectly challenge the correctness of the said decision. Briefly stated the Tribunal had in no
uncertain terms come to the conclusion that the height of the dam should be 455 ft. It had rejected
the contention of the State of Madhya Pradesh for fixing the height at a lower level. At the same time
in arriving at this figure, it had considered the relief and rehabilitation problems and had issued
directions in respect thereof. Any issue which has been decided by the Tribunal would, in law, be
binding on the respective states. That this is so has been recently decided by a Constitution Bench of
this Court in The State of Karnataka Vs. State of Andhra Pradesh and others, 2000(3) Scale
505. That was a case relating to a water dispute regarding inter-State river Krishna between the
three riparian States and in respect of which the Tribunal constituted under the Inter-State Water
Disputes Act, 1956 had given an Award. Dealing with the Article 262 and the scheme of the Inter-
State Water Disputes Act, this Court at page 572 observed as follows:
The inter-State Water Disputes Act having been framed by the Parliament under Article 262 of the
Constitution in a complete Act by itself and the nature and character of a decision made thereunder
has to be understood in the light of the provisions of the very Act itself. A dispute or difference
between two or more State Governments having arisen which is a water dispute under Section 2(C)
of the Act and complaint to that effect being made to the Union Government under Section 3 of the
said Act the Central Government constitutes a Water Disputes Tribunal for the adjudication of the
dispute in question, once it forms the opinion that the dispute cannot be settled by negotiations. The
Tribunal thus constituted, is required to investigate the matters referred to it and then forward to
the Central Government a report setting out the facts as found by him and giving its decision on it as
provided under sub-Section (2) of Section 5 of the Act. On consideration of such decision of the
Tribunal if the Central Government or any State Government is of the opinion that the decision in
question requires explanation or that guidance is needed upon any point not originally referred to
the Tribunal then within three months from the date of the decision, reference can be made to the
Tribunal for further consideration and the said Tribunal then forwards to the Central Government a
further report giving such explanation or guidance as it deems fit. Thereby the original decision of
the Tribunal is modified to the extent indicated in the further decision as provided under Section
5(3) of the Act. Under Section 6 of the Act the Central Government is duty bound to publish the
decision of the Tribunal in the Official Gazette whereafter the said decision becomes final and
binding on the parties to the dispute and hash to be given effect to, by them. The language of the
provisions of Section 6 is clear and unambiguous and unequivocally indicates that it is only the
decision of the Tribunal which is required to be published in the Official Gazette and on such
publication that decision becomes final and binding on the parties.
Once the Award is binding on the States, it will not be open to a third party like the petitioners to
challenge the correctness thereof. In terms of the Award, the State of Gujarat has a right to construct
a dam upto the height of 455 ft. and, at the same time, the oustees have a right to demand relief and
re-settlement as directed in the Award. We, therefore, do not propose to deal with any contention
which, in fact, seems to challenge the correctness of an issue decided by the Tribunal.

GENERAL ISSUSES RELATING TO DIS-PLACEMENT OF TRIBALS AND ALLEGED VIOLATION

OF THE RIGHTS UNDER ARTICLE 21 OF THE CONSTITUION:
The submission of Sh. Shanti Bhushan, learned senior counsel for the petitioners was that the
forcible displacement of tribals and other marginal farmers from their land and other sources of
livelihood for a project which was not in the national or public interest was a violation of their
fundamental rights under Article 21 of the Constitution of India read with ILO Convention 107 to
which India is a signatory. Elaborating this contention, it was submitted that this Court had held in
a large number of cases that international treaties and covenants could be read into the domestic
law of the country and could be used by the courts to elucidate the interpretation of fundamental
rights guaranteed by the Constitution. Reliance in support of this contention was placed on
Gramaphone Co. of India Ltd. Vs. B.B. Pandey, 1984(2) SCC 534, PUCL Vs. Union of India, 1997(3)
SCC 433 and CERC Vs. Union of India, 1995(3) SCC 42. In this connection, our attention was drawn
to the ILO Convention 107 which stipulated that tribal populations shall not be removed from their
lands without their free consent from their habitual territories except in accordance with national
laws and regulations for reasons relating to national security or in the interest of national economic
development. It was further stated that the said Convention provided that in such cases where
removal of this population is necessary as an exceptional measure, they shall be provided with lands
of quality at least equal to that of lands previously occupied by them, suitable to provide for their
present needs and future development. Sh. Shanti Bhushan further contended that while Sardar
Sarovar Project will displace and have an impact on thousands of tribal families it had not been
proven that this displacement was required as an exceptional measure. He further submitted that
given the seriously flawed assumptions of the project and the serious problems with the
rehabilitation and environmental mitigation, it could not be said that the project was in the best
national interest. It was also submitted that the question arose whether the Sardar Sarovar project
could be said to be in the national and public interest in view of its current best estimates of cost,
benefits and evaluation of alternatives and specially in view of the large displacement of tribals and
other marginal farmers involved in the project. Elaborating this contention, it was contended that
serious doubts had been raised about the benefits of the project - the very rationale which was
sought to justify the huge displacement and the massive environmental impacts etc. It was
contended on behalf of the petitioners that a project which was sought to be justified on the grounds
of providing a permanent solution to water problems of the drought prone areas of Gujarat would
touch only the fringes of these areas, namely, Saurashtra and Kutch and even this water, which was
allocated on paper, would not really accrue due to host of reasons. It was contended that inspite of
concentrating on small scale decentralized measures which were undertaken on a large scale could
address the water problem of these drought prone areas. Huge portions of the State resources were
being diverted to the Sardar Sarovar Project and as a result the small projects were ignored and the
water problem in these areas persists. It was submitted that the Sardar Sarovar Project could be
restructured to minimise the displacement.
Refuting the aforesaid arguments, it has been submitted on behalf of the Union of India and the
State of Gujarat that the petitioners have given a highly exaggerated picture of the submergence and
other impacts of this project. It was also submitted that the petitioners assertion that there was
large-scale re-location and uprooting of tribals was not factually correct. According to the

respondents, the project would affect only 245 villages in Gujarat, Maharashtra and Madhya
Pradesh due to pondage and backwater effect corresponding to 1 in 100 year flood. The State-wise
break up of affected villages and the number of project affected families (PAFs) shows that only four
villages would be fully affected (three in Gujarat and one in Madhya Pradesh) and 241 would be
partially affected (16 in Gujarat, 33 in Maharasthra and 192 in Madhya Pradesh). The total project
affected families who would be affected were 40827. The extent of the submergence was minimum
in the State of Madhya Pradesh. The picture of this submergence as per the Government of Madhya
Pradesh Action Plan of 1993 is as follows:
Abadi will be fully submerged in 39 villages and partially in 116 villages, agricultural land will be
affected upto 10% in 82 villages, 11 to 25% in 32 villages, 26 to 50% in 30 villages, 51 to 75% in 14
villages, 76 to 90% in 4 villages and 100% in only 1 village. In 21 villages, only abadi will be affected
and Government land only in 9 villages. Thus, in most of the villages, submergence is only partial.
The submergence area of the SSP can be divided into two areas:
i) Fully tribal, hilly area covering the initial reach of about 105 villages with mainly subsistence
economy. It includes 33 villages of Maharasthra, 19 of Gujarat and about 53 of Madhya Pradesh.
(ii) Mixed population area in the plains of Nimad, with a well developed economy and connected to
the mainstream. This area includes about 140 villages in Madhya Pradesh.
These two areas have quite different topographic and habitation features which result in totally
different types of submergence impacts. The state of the hilly area to be affected by its submergence
and where most of the tribal population exists is described by the Government of Madhya Pradesh
Action Plan, 1993 as follows:
The Narmada flows in hilly gorge from the origin to the Arabian Sea. The undulating hilly terrain in
the lower submergence area of Sardar Sarovar Project exhibit naked hills and depleted forests. Even
small forest animals area very rarely seen because of lack of forest cover and water. The oft quoted
symbiotic living with forests is a misnomer in this area because the depleted forests have nothing to
offer but fuel wood. Soil is very poor mostly disintegrated, granite and irrigation is almost nil due to
undulating and hilly land. Anybody visiting this area finds the people desperately sowing even in the
hills with steep gradient. Only one rain fed crop of mostly maize is sown and so there is no surplus
economy.
PAPs inhabiting these interior areas find generous rehabilitation and resettlement packages as a
means to assimilate in the mainstream in the valley.
In 193 villages of Madhya Pradesh to be affected by the project, a very high proportion of the houses
would be affected whereas the land submergence was only 14.1%. The reason for this is that the river
bed is a deep gorge for about 116 km. upstream of the dam and as a result the reservoir will be long
(214 km), narrow (average width of 1.77 km) and deep. The result of this is that as one goes further
upstream, the houses on the river banks are largely affected while agricultural land which is at a

distance from the river banks is spared. A majority of 33014 families of Madhya Pradesh (which
would include 15018 major sons) would lose only their houses and not agricultural lands would be
required to be resettled in Madhya Pradesh by constructing new houses in the new abadi. According
to the Award, agricultural land was to be allotted only if the project affected families lost 25% or
more of agricultural land and on this basis as per the Government of Madhya Pradesh, only 830
project affected families of Madhya Pradesh were required to be allotted agricultural land in Madhya
Pradesh.
According to the Government of Gujarat the tribals constituted bulk of project affected families who
would be affected by the dam in Gujarat and Maharasthra, namely, 97% and 100% respectively. Out
of the oustees of project affected families of Madhya Pradesh, tribals constituted only 30% while
70% were non-tribals. The total number of tribal project affected families were 17725 and out of
these, 9546 are already re-settled. It was further the case of the respondents that in Madhya Pradesh
the agricultural land of the tribal villages was affected on an average to the extent of 28% whereas in
the upper reaches i.e. Nimad where the agriculture was advanced, the extent of submergence, on an
average, was only 8.5%. The surveys conducted by HMS Gour University (Sagar), the Monitoring
and Evaluation Agency set up by the Government of Madhya Pradesh, reveal that the major
resistance to relocation was from the richer, non-tribal families of Nimad who feared shortage of
agriculture labour if the landless labourers from the areas accepted re-settlement. In the Bi-Annual
report, 1996 of HMS Gour University, Sagar, it was observed as follows:
The pre-settlement study of submerging villages has revealed many startling realities. Anti-dam
protagonists presents a picture that tribals and backward people are the worst sufferers of this kind
of development project. This statement is at least not true in case of the people of these five affected
villages. Though, these villages comprise a significant population of tribals and people of weaker
sections, but majority of them will not be a victim of displacement. Instead, they will gain from
shifting. The present policy of compensation is most beneficial for the lot of weaker section. These
people are living either as labourers or marginal farmers. The status of oustee will make them the
owner of two hectares of land and a house. In fact, it is the land-owning class which is opposing the
construction of dam by playing the card of tribals and weaker sections. The land-owners are
presently enjoying the benefit of cheap labour in this part of the region. Availability of cheap labour
is boon for agricultural activities. This makes them to get higher return with less inputs.
It is apparent that the tribal population affected by the submergence would have to move but the
rehabilitation package was such that the living condition would be much better than what it was
before there. Further more though 140 villages of Madhya Pradesh would be affected in the plains of
Nimad, only 8.5% of the agricultural land of these villages shall come under submergence due to
SSP and as such the said project shall have only a marginal impact on the agricultural productivity
of the area.
While accepting the legal proposition that International Treaties and Covenants can be read into the
domestic laws of the country the submission of the respondents was that Article 12 of the ILO
Convention No. 107 stipulates that the populations concerned shall not be removed without their
free consent from their habitual territories except in accordance with national laws and regulations

relating to national security, or in the interest of national economic development or of the health of
the said populations.
The said Article clearly suggested that when the removal of the tribal population is necessary as an
exceptional measure, they shall be provided with land of quality atleast equal to that of the land
previously occupied by them and they shall be fully compensated for any resulting loss or injury.
The rehabilitation package contained in the Award of the Tribunal as improved further by the State
of Gujarat and the other States prima facie shows that the land required to be allotted to the tribals
is likely to be equal, if not better, than what they had owned.
The allegation that the said project was not in the national or public interest is not correct seeing to
the need of water for burgeoning population which is most critical and important. The population of
India, which is now one billion, is expected to reach a figure between 1.5 billion and 1.8 billion in the
year 2050, would necessitate the need of 2788 billion cubic meter of water annually in India to be
above water stress zone and 1650 billion cubic metre to avoid being water scarce country. The main
source of water in India is rainfall which occurs in about 4 months in a year and the temporal
distribution of rainfall is so uneven that the annual averages have very little significance for all
practical purposes. According to the Union of India, one third of the country is always under threat
of drought not necessarily due to deficient rainfall but many times due to its uneven occurrence. To
feed the increasing population, more food grain is required and effort has to be made to provide safe
drinking water, which, at present, is a distant reality for most of the population specially in the rural
areas. Keeping in view the need to augment water supply, it is necessary that water storage
capacities have to be increased adequately in order to ward off the difficulties in the event of
monsoon failure as well as to meet the demand during dry season. It is estimated that by the year
2050 the country needs to create storage of at least 600 billion cubic meter against the existing
storage of 174 billion cubic meter.
Dams play a vital role in providing irrigation for food security, domestic and industrial water supply,
hydroelectric power and keeping flood waters back. On full development, the Narmada has a
potential of irrigating over 6 million hectares of land and generating 3000 mw of power. The
present stage of development is very low with only 3 to 4 Maf of waters being used by the party
States for irrigation and drinking water against 28 Maf availability of water at 75% dependability as
fixed by NWDT and about 100 MW power developed. 85% of the waters are estimated as flowing
waste to sea. The project will provide safe and clean drinking water to 8215 villages and 135 towns in
Gujarat and 131 villages in desert areas of Jalore district of Rajasthan, though against these only 241
villages are getting submerged partially and only 4 villages fully due to the project.
The cost and benefit of the project were examined by the World Bank in 1990 and the following
passage speaks for itself:
The argument in favour of the Sardar Sarovar Project is that the benefits are so large that they
substantially outweigh the costs of the immediate human and environmental disruption. Without
the dam, the long term costs for people would be much greater and lack of an income source for
future generations would put increasing pressure on the environment. If the waters of the Narmada

river continue to flow to the sea unused there appears to be no alternative to escalating human
deprivation, particularly in the dry areas of Gujarat. The project has the potential to feed as many as
20 million people, provide domestic and industrial water for about 30 million, employ about 1
million, and provide valuable peak electric power in an area with high unmet power demand (farm
pumps often get only a few hours power per day). In addition, recent research shows substantial
economic multiplier effects (investment and employment triggered by development) from irrigation
development. Set against the futures of about 70,000 project affected people, even without the
multiplier effect, the ratio of beneficiaries to affected persons is well over 100:1.
There is merit in the contention of the respondents that there would be a positive impact on
preservation of ecology as a result from the project. The SSP would be making positive contribution
for preservation of environment in several ways. The project by taking water to drought-prone and
arid parts of Gujarat and Rajasthan would effectively arrest ecological degradation which was
returning to make these areas inhabitable due to salinity ingress, advancement of desert, ground
water depletion, fluoride and nitrite affected water and vanishing green cover. The ecology of water
scarcity areas is under stress and transfer of Narmada water to these areas will lead to sustainable
agriculture and spread of green cover. There will also be improvement of fodder availability which
will reduce pressure on biodiversity and vegetation. The SSP by generating clean eco-friendly
hydropower will save the air pollution which would otherwise take place by thermal generation
power of similar capacity.
The displacement of the tribals and other persons would not per se result in the violation of their
fundamental or other rights. The effect is to see that on their rehabilitation at new locations they are
better off than what they were. At the rehabilitation sites they will have more and better amenities
than which they enjoyed in their tribal hamlets. The gradual assimilation in the main stream of the
society will lead to betterment and progress.
ENVIRONMENTAL ISSUES The four issues raised under this head by Sh. Shanti Bhushan are as
under:
I. Whether the execution of a large project, having diverse and far reaching environmental impact,
without the proper study and understanding of its environmental impact and without proper
planning of mitigative measures is a violation of fundamental rights of the affected people
guaranteed under Article 21 of the Constitution of India ?
II. Whether the diverse environmental impacts of the Sardar Sarovar Project have been properly
studied and understood ?
III. Whether any independent authority has examined the environmental costs and mitigative
measures to be undertaken in order to decide whether the environmental costs are acceptable and
mitigative measures practical ?
IV. Whether the environmental conditions imposed by the Ministry of Environment have been
violated and if so, what is the legal effect of the violations ?

It was submitted by Sh. Shanti Bhushan that a large project having diverse and far reaching
environmental impacts in the concerned States would require a proper study and understanding of
the environmental impacts. He contended that the study and planning with regard to environmental
impacts must precede construction. According to Sh. Shanti Bhushan, when the environmental
clearance was given in 1987, proper study and analysis of the environmental impacts and mitigative
measures, which were required to be taken, were not available and, therefore, this clearance was not
valid. The decision to construct the dam was stated to be political one and was not a considered
decision after taking into account the environmental impacts of the project. The execution of SSP
without a comprehensive assessment and evaluation of its environmental impacts and a decision
regarding its acceptability was alleged to be a violation of the rights of the affected people under
Article 21 of the Constitution of India. It was further submitted that no independent authority has
examined vehemently the environmental costs and mitigative measurers to be undertaken in order
to decide whether the environmental costs are acceptable and mitigative measures practical. With
regard to the environmental clearance given in June, 1987, the submission of Sh. Shanti Bhushan
was that this was the conditional clearance and the conditions imposed by the Ministry of
Environment and Forests had been violated. The letter granting clearance, it was submitted,
disclosed that even the basic minimum studies and plans required for the environmental impact
assessment had not been done. Further more it was contended that in the year 1990, as the deadline
for completion of the studies was not met, the Ministry of Environment and Forests had declared
that the clearance had lapsed. The Secretary of the said Ministry had requested the Ministry of
Water Resources to seek extension of the clearance but ultimately no extension was sought or given
and the studies and action plans continued to lag to the extent that there was no comprehensive
environmental impact assessment of the project, proper mitigation plans were absent and the costs
of the environmental measures were neither fully assessed nor included in the project costs. In
support of his contentions, Sh. Shanti Bhushan relied upon the report of a Commission called the
Independent Review or the Morse Commission. The said Commission had been set up by the World
Bank and it submitted its report in June, 1992. In its report, the Commission had adversely
commented on practically all aspects of the project and in relation to environment, it was stated as
under:
Important assumptions upon which the projects are based are now questionable or are known to be
unfounded. Environmental and social trade-off have been made, and continue to be made, without a
full understanding of the consequences. As a result, benefits tend to be over-stated, while social and
environmental costs are frequently understated. Assertions have been substituted for analysis.
We think that the Sardar Sarovar Projects as they stand are flawed, that resettlement and
rehabilitation of all those displaced by the projects is not possible under the prevailing
circumstances, and that the environmental impacts of the projects have not been properly
considered or adequately addressed.
The history of environmental aspects of Sardar Sarovar is a history of non-compliance. There is no

comprehensive impact statement. The nature and magnitude of environmental problems and
solutions remain elusive.

Sh. Shanti Bhushan submitted that it had become necessary for some independent judicial authority
to review the entire project, examine the current best estimates of all costs (social, environmental,
financial), benefits and alternatives in order to determine whether the project is required in its
present form in the national interest, or whether it needs to be restructured/modified.
Sh. Shanti Bhushan further submitted that environmental impacts of the projects were going to be
massive and full assessment of these impacts had not been done. According to him the latest
available studies show that studies and action plans had not been completed and even now they
were lagging behind pari passu. It was also contended that mere listing of the studies does not imply
that everything is taken care of. Some of the studies were of poor quality and based on improper
data and no independent body had subjected these to critical evaluation.
RE: ENVIRONMENTAL CLERANCE:
As considerable stress was laid by Sh. Shanti Bhushan challenging the validity of the environmental
clearance granted in 1987 inter alia on the ground that it was not preceded by adequate studies and
it was not a considered opinion and there was non-application of mind while clearing the project, we
first propose to deal with the contention. The events after the Award and upto the environmental
clearance granted by the Government vide its letter dated 24th June, 1987 would clearly show that
some studies, though incomplete, had been made with regard to different aspects of the
environment. Learned counsel for the respondents stated that in fact on the examination of the
situation, the claim made with regard to the satisfactory progress was not correct. In order to carry
out the directions in the Award about the setting up of an authority, the Inter-State Water Disputes
Act, 1956 was amended and Section 6-A was inserted to set out how a statutory body could be
constituted under the Act. On 10th September, 1980 in exercise of the powers conferred by Section
6- A of the Act the Central Government framed a scheme, constituted the Narmada Control
Authority to give effect to the decision of the Award.
In January, 1980, the Government of Gujarat submitted to the Central Water Commission a detailed
project report in 14 volumes. This was an elaborate report and dealt with various aspects like
engineering details, canal systems, geology of area, coverage of command area etc. On 15th
February, 1980 the Central Water Commission referred SSP to the then Department of Environment
in Department of Science & Technology. At that point of time, environmental clearance was only an
administrative requirement. An environmental checklist was forwarded to Government of Gujarat
on 27th February, 1980 which sought to elucidate information including following ecological
aspects:
i) Excessive sedimentation of the reservoir
ii) Water logging
iii) Increase in salinity of the ground water
iv) Ground water recharge

v) Health hazard-water borne diseases, industrial pollution etc.
vi) Submergence of important minerals
vii) Submergence of monuments
viii) Fish culture and aquatic life
ix) Plant life-forests
x) Life of migratory birds
xi) National Park and Sanctuaries
xii) Seismicity due to filling of reservoir The Government of Gujarat accordingly submitted
information from September, 1980 till March, 1983. The information was also submitted on
physio-social and economic studies for Narmada Command Area covering cropping pattern, health
aspects, water requirement etc. A note of influence of Navagam dam on fish yield including impact
on downstream fisheries was also submitted.
The techno-economic appraisal of the project was undertaken by the Central Water Commission
which examined water availability, command area development, construction etc. The project was
considered in the 22nd meeting of the Technical Advisory Committee on Irrigation, Flood Control
and Multi-purpose projects held on 6.1.1983 and found it acceptable subject to environmental
clearance.
At this point of time, the matter was handled by the Department of Science and Technology which
also had a Department dealing with Environment. Environmental Appraisal Committee of the
Department of Environment, then headed by a Joint Secretary, had in its meeting held on 12.4.1983
approved the project, in principle, and required that further data be collected. This Environmental
Appraisal Committee dealt with the project on two other occasions, namely, on 29.3.1985 when it
deferred meeting to await report of Dewan Committee on soil conservation and thereafter on
6.12.1985 when it deferred the meeting to await comments from the Forest Department. As stated
hereafter, subsequently the Secretary of newly constituted Ministry of Environment and Forests
took up further consideration of this project along with other higher officials. After the project was
approved, in principle, studies and collections of data were continuing. In May, 1983 the Narmada
Planning Group, Government of Gujarat after completion of preliminary surveys submitted work
plans for various activities such as cropping pattern, health aspects, water requirements,
distribution system, lay out and operation, development plan of the command, drainage and ground
water development.
In July, 1983, a study report on Ecology and Environmental Impact of Sardar Sarovar Dam and its
Environs prepared by MS University was also submitted by Government of Gujarat, covering the
issues as mentioned below:

*Climate *Geology *Soil *Land use *Forest and Wildlife, Aquatic Vegetation *Water Regime
(Salinity, Tidal movements etc.) *Fisheries *Health *Seismicity A review meeting was convened by
the Secretary, Ministry of Water Resources in January, 1984 which was attended by a representative
of the Department of Environment. During this meeting, it was emphasized that the issues
regarding catchment area treatment, impact on wildlife, health, water logging etc. should be studied
in depth for assessment. The issue of charging of cost of catchment area treatment to the project was
also discussed. To sort out this matter, a meeting was subsequently convened by the Member,
Planning Commission on 23rd May, 1984 in which the Ministry of Environment & Forests took a
stand that there was a need for an integrated approach to basin development covering the
catchment and command area. A project report, therefore, should be prepared to cover these
aspects. Since the catchment area for Narmada Sagar and Sardar Sarovar was very vast, it was
decided that an Inter-Departmental Committee should be set up by the Ministry of Agriculture
under the Chairmanship of Dr. M.L. Dewan. This group could submit its report only in August, 1985
covering areas of catchment of Narmada and Sardar Sarovar and recommended that at least 25-30%
of the area might require treatment for these projects.
The consideration of the project in the Ministry, therefore, got deferred for this report on catchment
area treatment. During this time, Government of Madhya Pradesh entrusted the studies on flora for
Narmada Valley Project to Botanical Survey of India and other related surveys were being carried
out. Even though there was a request on 10th June, 1985 from the Chief Minister of Gujarat to the
Minister of State for Environment and Forests for delinking of catchment area treatment works on
clearance of the project, but this request was not agreed.
By this time the approval of SSP was being considered by the Secretary, Ministry of Environment
and Forests who invited other high officials in a review meeting which was held on 31st December,
1985 under his chairmanship. In this meeting, detailed presentations were made by the State
officials of Gujarat, Madhya Pradesh and Maharasthra as well as the experts who were involved in
preparation of plans. The Secretary, Ministry of Environment and Forests assessed and reviewed
readiness on various environmental aspects like Catchment Area Treatment, Compensatory
Afforesation, Rehabilitation, Command area Development, Labour force and health issues, aquatic
species, seismicity etc. and discussed the available reports in detail in the presence of the officers of
the Central/State Governments, Botanical Survey of India, senior officers of Forest Department,
Planning Commission, Agriculture Department, Additional. Inspector of Forests, Government of
India, Deputy Inspector General, Assistant Inspector General of Forest, Government of India, senior
officers of the Ministry of Environment and Forests, Secretary, Irrigation.
As a follow up, the Government of Maharashtra submitted environmental data regarding affected
areas in Maharashtra. This included:
*Impact assessment on wild life *Impact assessment on genetics, specifically identifying the plant
types which are likely to be lost as a result of submergence.
*Socio anthropological studies on tribals *The suitability of alternative land suggested for
compensatory afforestation for growing.

*Data regarding alternate land in large blocks.
*Arrangements made for exploitation of mineral resources going under submergence.
*Alternative fuels to the labourers.
*Micro-climatic changes.
*Arrangements made for treatment of catchment area including swoil conservation afforestation.
*Steps taken for preserving archaeological and historical monuments.
*Proper land use *Actions taken by Government of Maharashtra in pursuance of Dewan Committee
Report.
*Arrangements for monitoring for environmental impact for the project.
*Data related to rehabilitation of project affected persons.
The Government of Gujarat also forwarded to the Government of India work plans on the following:
Forests and Wildlife Fish and Fisheries Health aspects The work plan on forests and wildlife
incorporated actions to be taken on the recommendations of the Inter-Departmental Committee
headed by Dr. Dewan on soil conservation and afforestation works in the catchment area.
In March, 1986, a meeting was convened by the Ministry of Water Resources in order to discuss the
issues of fisheries, flora/fauna, health, archaeology with the officers of the Botanical Survey of India,
Zoological Survey of India, Archaeological Survey of India and the officers of the various
departments of the State and Centre to gear up the preparation of the environmental work plans.
The next meeting was held on 11th April, 1986. The Secretary, Ministry of Environmental and
Forests, who chaired the meeting of senior officials, representatives of States and other agencies,
sought additional information to be made available by 30th April, 1986 before assessment and
management decision.
In October, 1986, the Ministry of Water Resources prepared and forwarded to the Ministry of
Environment and Forests, a note on environmental aspects of the two projects and noted the
urgency of the decision. It also considered the importance of the project, should the project be taken
at all, environmental aspects of the project and ultimately rehabilitation, compensatory
afforestation, fauna and flora, catchment area treatment, public health aspect, prevention of water
logging. It then considered what remained to be done and enumerated the same with time schedule
as follows:
1. Madhya Pradesh to complete the detailed survey of population likely to be affected in all phases of
N.S.P.

.Three years
2. Maharashtra to prepare a detailed rehabilitation plan for 33 villages under phase 1 of SSP .Three
years
3. Madhya Pradesh to identify degraded forest lands twice the forest area to be submerged for
compensatory afforestation.
Six months
4. Survey of flora in Narmada valley assigned to Botanical Survey of India.
Two years
5. Survey of Wildlife by Zoological Survey of India.
.Two years
6. Aerial photographs and satellite imagery to be analysed by All India Soil and Land Use Survey
Organisation and National Remote Sensing Agency and critically degraded areas in catchment.
Field Surveys Three years.
Pilot studies to determine measures for CAT

In 25000 ha. Three years after
Aerial survey.
In this note two options were considered - one to postpone the clearance and the other was to clear
it with certain conditions with appropriate monitoring authorities to ensure that the action is taken
within the time bound programme. It was concluded that in the light of the position set out, it was
necessary that the project should be cleared from the environmental angle, subject to conditions and
stipulations outlined.
The Department of Environment and Forests made its own assessment through a note of the
Secretary, Ministry of Environment and Forests. It took the view that following surveys/studies as
set out therein might take at least 2-3 years. It noted in this regard that:
i) The estimate of Ministry of Water Resources on analysis of aerial photographs and satellite
imageries as 2-3 years.
ii) Catchment area treatment programme can be formulated by three years thereafter;
iii) Wildlife census by Zoological Survey of India would take at least three years;

iv) Survey by Botanical Survey of India would take three years.
It further took the view that it was essential that there should be a strong management authority. It
finally concluded that if the Government should decide to go ahead with the project it should be
done with provision of environmental management authority with adequate powers and teeth to
ensure that environment management plan is implemented pari passu with engineering and other
works. It concluded that effective implementation of the engineering and environmental measures
simultaneously will go a long way and that such a project could be implemented by harmonizing
environmental conservation needs with the developmental effort.
The Ministry of Environment and Forests had not given environmental clearance of Narmada Sagar
and Sardar Sarovar Dam despite all discussions which had taken place. The documents filed along
with the affidavit of Shri P.K. Roy, Under Secretary, Prime Ministers Office dated 27th April, 2000
indicate that there was difference of opinion with regard to the grant of environmental clearance
between the Ministry of Water Resources and the Ministry of Environment & Forests. This led to the
matter being referred to the Prime Ministers Secretariat for clearance at the highest level. A note
dated 20th November, 1986 prepared by the Ministry of Water Resources was forwarded to the
Prime Minister Secretariat as well as to the Ministry of Environment and Forests after dealing with
the environmental aspects relating to rehabilitation, catchment area treatment, command area
development, compensatory afforestation, flora and fauna. This note indicated that there were two
options with regard to the clearance of the said project. One was to await for two to three years for
the completion of the operational plans and other detailed studies and the second option was that
the project should be given the necessary clearance subject to the stipulation with regard to the
action to be taken in connection with various environmental aspects and appropriate monitoring
arrangements to ensure that the actions were taken in a time bound manner. The Ministry of Water
Resources recommended that it should be possible to give environmental clearance of the project
and ensure that the conditions are properly met through a process of clear assignment of
responsibility and frequent monitoring. The modus operandi for instituting a monitoring system
could be discussed at the meeting.
On 26th November, 1986, a meeting took place which was attended, inter alia, by the Secretary,
Ministry of Water Resources, Secretary, Ministry of Environment & Forests, Additional Secretary,
Prime Minister Secretariat and representatives of the Governments of Madhya Pradesh and Gujarat
regarding the environmental aspects of the Narmada Sagar and Sardar Sarovar Project. The minutes
of the meeting, inter alia, disclosed it was decided that the Government of Gujarat would identify
lands for allocation to the project affected persons of Madhya Pradesh within a specified period of
time. The meeting also envisaged the arrangement of a Monitoring and Enforcement Authority to
monitor the project and to ensure that the actions on the environmental aspects proceed according
to the schedule and pari passu with the rest of the project. This Authority was not to be mainly a
advisory one but was to be given executive powers of enforcement including the power to order
stoppage of construction activity in the event of its being of the opinion that there was lack of
progress in action on the environmental front.

On 19th December, 1986, the Secretary, Ministry of Environment and Forests sent to the Secretary
to the Prime Minister a combined note on the environmental aspects of both the projects, namely,
Narmada Sagar and Sardar Sarovar Project. In this note, it was, inter alia, stated that there was
absence and inadequacy on some important environmental aspects even though the Sardar Sarovar
Project was in a fairly advance stage of preparedness. The note also recommended the establishment
of the Narmada Management Authority with adequate powers and teeth to ensure that the
Environmental Management Plan did not remain only on paper but was implemented; and
implemented pari passu with engineering and other works. In the end, in the note, it was stated as
follows:
If, despite the meagre availability of data and the state of readiness on NSP, the Government should
decide to go ahead with the project it is submitted that it should do so only on the basis of providing
a Management Authority as outlined above with the hope that the public opposition, not just by
vested interests but by credible professional environmentalists, can be overcome. Effective
implementation of the engineering and environmental measurers simultaneously would go a long
way to prove that even such a project can be implemented by harmonising environmental
conservation needs with the development effort.
The choice is difficult but a choice has to be made.
Along with this note was the statement showing the cost and the benefits of the Narmada Sagar and
the Sardar Sarovar dam. The same reads as follows:
COSTS NARMADASAGAR SARDAR SAROVAR

1. Dam construction Rs. 1400 crores Rs. 4240 crores
(1981 price level ) (1982 price level)
2. Loss of forest Rs. 320 crores
3. Environmental cost of loss

of forests Rs. 30923 crores + - Rs. 8190 c
4. Catchment Area development Rs. 300 crores Not available
5. Command area development Rs. 243.7 crores Rs. 604.0 crores

Rs. 300.0 crores
(conjunctive use)
6. Loss of Mineral Reserves ---- ----
7. Diversion of 42 km Railway line ----- ----
8. Population affected 129396 (1981 census)

86572 (Excluding population
with land submerged for
short period every year)
9. Land submerged 91348 ha 39134 ha

Benefits
10. Area irrigated 123000 ha 179200

Net culturable land 140960 ha 21
11. Power Generations 223.5 MW(firm power) 300 MW

1000 MV (Installed capacity) 1450 (Installed
118.3 MW in 2023 A.D.
After a series of meetings held between the Secretary to Prime Ministers office as well as the
Ministry of Water Resources, a detailed note dated 15th January, 1987 was prepared by Mrs. Otima
Bordia, Additional Secretary to the Prime Minister. The notes opened by saying that Narmada Sagar
and Sardar Sarovar multipurpose projects have been pending approval of the Government of India
for a considerable amount of time. The States of Madhya Pradesh and Gujarat have been
particularly concerned and have been pressing for their clearance. The main issues of environmental
concern related to the rehabilitation of the affected population, compensatory afforestation,
treatment of the catchment area, command area development, pertaining particularly to drainage,
water logging and salinity. The said note mentioned that the Department of Environment and
Forests had sent a note with the approval of the Minister for Environment and Forests and had
recommended conditional approval to the Narmada Sagar and Sardar Sarovar Projects subject to
three conditions:
i) Review of design parameters to examine the feasibility of modifying the height of the dam;
ii) Preparation in due time, detailed and satisfactory plans for rehabilitation, catchment area
treatment, compensatory afforestation and command area development;
iii) Setting up of Narmada Management Authority with adequate powers and teeth to ensure that
environmental management plans are implemented pari passu with engineering and other works.
It is further stated in the note that the Ministry of Water Resources and the State Governments had
no difficulty in accepting conditions (ii) and
(iii). With regard to review of design parameters and dam height, the Ministry of Water Resources
had examined the same after taking into consideration the comments of the Central Water
Commission and concluded that the reduction of the FRL of the Narmada Sagar project would not
be worthwhile. The Secretary to the Prime Minister had discussed the matter with the Secretary,
Ministry of Water Resources and Secretary, Ministry of Environment and Forests and it was agreed
that the recommendation of the Minister of Environment and Forests of giving clearance on the
condition that items (ii) and (iii) referred to hereinabove be accepted. The note also stated that in
view of the technical report, reduction in the dam height did not appear to be feasible. This note of
Mrs. Otima Bordia recommended that the Prime Ministers approval was sought on giving
conditional clearance. On this note, Mrs. Serla Grewal, Secretary to the Prime Minister noted as
follows:

Proposal at para 17 may kindly be approved. This project has been pending clearance for the last 7
years and both the C.Ms. of Gujarat and Madhya Pradesh are keenly awaiting the clearance of the
same. The agency, which is proposed to be set up to monitor the implementation of this project, will
fully take care of the environmental degradation about which P.M. was concerned. The Ministry of
Environment and Forests have recommended clearance of this project subject to conditions which
will take care of P.Ms apprehensions. I shall request Secretary, Water Resources, who will be
Chairman of the Monitoring Agency, to see that no violation of any sort takes place and P.Ms office
will be kept informed of the progress of this project every quarter. The matter is urgent as last week
C.M. Gujarat had requested for green signal to be given to him before 20th January.
P.M. may kindly approve.
The Prime Minister Shri Rajiv Gandhi, instead of giving the approval, made the following note:
Perhaps this is a good time to try for a River Valley Authority. Discuss It appears that the Ministry of
Environment and Forests gave its clearance to the setting up of Inter-Ministerial Committee and on
8th April, 1987, following note was prepared and forwarded to the Prime Minister.
This case has got unduly delayed. P.M. was anxious that speedy action should be taken. As such,
since the Ministry of Environment have given its clearance subject to setting up of an
Inter-Ministerial Committee as indicated at A above, we may give the necessary clearance. The three
Chief Ministers may be requested to come over early next week to give their clearance in principle
for the setting up of a River Valley Authority so that simultaneous action can be initiated for giving
practical shape to this concept. The clearance of the project, however, should be communicated
within two weeks as I have been informed by Shri Shiv Shanker and Shri Bhajan Lal that interested
parties are likely to start an agitation and it is better if clearance is communicated before mischief is
done by the interested parties.
Along with another affidavit of Shri P.K Roy, Under Secretary, Prime Ministers Office dated 2nd
May, 2000, some correspondence exchanged between Legislature and the Prime Minister has also
been placed on record relating to the granting of the environmental clearance by the Prime Minister.
On 31st March, 1987, Shri Shanker Sing Vaghela, the then Member of Parliament, Rajya Sabha had
written a letter to the Prime Minister in which it was, inter alia, stated that the foundation stone for
the Narmada Project had been laid 25 years ago by the late Pandit Jawahar Lal Nehru and that after
the Tribunals Award, Mrs. Indira Gandhi had cleared the project in 1978, but still the environmental
clearance had not so far been given. It was also stated in his letter that the project was now being
delayed on account of so-called environmental problems. It was further stated in his letter that the
Sardar Sarovar Project, when completed, will solve more of the pressing problems of environment
than creating them. To this letter of Shri Vaghela, the Prime Minister sent a reply dated 8th April,
1987 stating as follows:
I have seen your letter of 31st March regarding the Narmada Project. All aspects have to be carefully
considered before decisions are taken on a project of this size. This is being done.

The environment and ecological factors cannot be disregarded. We cannot also dismiss the needs
of our tribal people. Safeguards are required to ensure that rehabilitation plans are effective.
All these aspects are being examined and a decision will be taken soon.
On 30th April, 1987, a press note was released by the Government of India, in which it was stated
that in a meeting presided over by the Prime Minister, it was agreed by the Chief Ministers of
Madhya Pradesh and Gujarat and representatives of the Maharashtra Government that a high level
River Valley Authority would be set up for the control and development of the river basin. This press
note also stated that the Narmada Sagar and the Sardar Sarovar Project on the river Narmada had
been cleared. Soon, thereafter Shri Ahmad Patel, Member of Parliament from Gujarat wrote a letter
dated 14th April, 1987 to Shri Rajiv Gandhi expressing his gratitude for according clearance to the
Narmada multi-purpose project. This letter was replied to on 22nd April, 1987 by Shri Rajiv Gandhi
who thanked Shri Patel for writing his letter dated 14th April, 1987 regarding the Narmada project.
On 20th April, 1987, Shri Shanker Singh Vaghela wrote another letter to the Prime Minister. While
thanking him for clearing the project, it was stated that there was apprehension about the
environment and ecological factors and also about the needs of the tribal people. The Prime
Minister was requested to clarify to the people of Gujarat whether or not these aspects have finally
been cleared or not and all the doubts on this front have been finally set at rest or not. On 4th May,
1987 the Prime Minister replied to this letter in which it was stated as follows:
There should be no grounds for any misunderstanding in this regard. The Narmada Project has been
cleared while at the same time ensuring that environmental safeguards will be enforced and
effective measures taken for the rehabilitation of the tribals. You could ask the Ministry of Water
Resources or the State Government for details.
Lastly, we need make reference to a letter dated 10th June, 1987 written by Smt. Chandraben
Sureshbhai Shrimali, an M.L.A. of Gujarat and the reply of the Prime Minister thereto. In the said
letter dated 10th June, 1987, Smt. Shrimali thanked the Prime Minister for clearing the Narmada
project and it was stated that the dry land of Gujarat and Saurashtra would be fertilised through
Narmada Yojna. To this, reply dated 30th June, 1987 of the Prime Minister was as follows:
Thank you for your letter of 10th June. The visit to Surendranagar was useful and educative. We are
all looking forward to the early implementation of the Sardar Sarovar project. The question of
environmental protection also needs serious attention. I wish you and the people of Surendranagar
a good monsoon.
From the documents and the letters referred to hereinabove, it is more than evident that the
Government of India was deeply concerned with the environmental aspects of the Narmada Sagar
and Sardar Sarovar Project. Inasmuch as there was some difference of opinion between the
Ministries of Water Resources and Environment & Forests with regard to the grant of
environmental clearance, the matter was referred to the Prime Minister. Thereafter, series of
discussions took place in the Prime Ministers Secretariat and the concern of the Prime Minister with
regard to the environment and desire to safeguard the interest of the tribals resulted in some time

being taken. The Prime Minister gave environmental clearance on 13th April, 1987 and formal letter
was issued thereafter on 24th June, 1987.
It is not possible, in view of the aforesaid state of affairs, for this Court to accept the contention of
the petitioner that the environmental clearance of the project was given without application of mind.
It is evident, and in fact this was the grievance made by Shri Vaghela, that the environmental
clearance of the project was unduly delayed. The Government was aware of the fact that number of
studies and data had to be collected relating to environment. Keeping this in mind, a conscious
decision was taken to grant environmental clearance and in order to ensure that environmental
management plans are implemented pari passu with engineering and other works, the Narmada
Management Authority was directed to be constituted. This is also reflected from the letter dated
24th June, 1987 of Shri Mudgal giving formal clearance to the project.
Re: OTHER ISSUES RELATING TO ENVIRONMENT Prior to the grant of the environmental
clearance on 24th June, 1987, sufficient studies were made with regard to different aspects of
environment on the basis of which conditional clearance was granted on 24th June, 1987, one of the
condition of clearance being that the balance studies should be completed within a stipulated time
frame. According to the Government of Gujarat, the conditions imposed in the environmental
clearance granted on June 24, 1987 were:
(a) The NCA would ensure that the environmental safeguard measures are planned and
implemented pari passu with the progress of work on the project.
(b) The detailed survey/studies assured will be carried out as per the schedule proposed and details
made available to the department for assessment.
(c) The catchment area treatment programe and rehabilitation plans be so drawn so as to be
completed ahead of reservoir filling.
(d) The department should be informed of progress on various works periodically.
It was further submitted by the Government of Gujarat that none of these conditions were linked to
any concrete time frame.
(a) The first condition casts a responsibility on the NCA to ensure that the environmental aspects
are always kept in view. The best way to attain the first and the fourth condition was to create an
environmental sub-group headed by the Secretary in the Ministry of Environment and Forest.
(b) The second condition the conducting of surveys by its very nature could not be made time
bound. The surveys related to various activities to undo any damage or threat to the environment
not only by the execution of the project but in the long term. Therefore, any delay in the conduct of
surveys was not critical. Besides, a perusal of the latest status report on environment shows that a
large number of surveys were carried out right from 1983 and also after 1987.

(c) The third condition has already stood fully complied with as observed by Environment
Sub-Group.
(d) The fourth condition again involved keeping the department informed.
It was submitted that the concept of lapsing is alien to such conditions. In other words, formal
environmental and forest clearances granted by the Ministry of Environment and Forests,
Government of India are not lapsed and are very much alive and subsisting.
With regard to the lapsing of the clearance granted in 1987, it was contended by Mr. Harish Salve
that a letter dated 25th May, 1992 was written by the Secretary, Ministry of Environment and
Forests, Government of India to the Secretary, Ministry of Water Resources stating, inter alia, that
the conditions of clearance of the project were not yet met and, therefore, a formal request for
extension of environmental clearance, as directed by Review Committee of Narmada Control
Authority, may be made and failing which, a formal notification may be issued revoking the earlier
clearance. It is, however, an admitted position that no formal notification has ever been issued
revoking and/or cancelling the aforesaid two clearances at any point of time by the Ministry of
Environment and Forests, Government of India. The Secretary, Ministry of Environment and
Forests has continued to hold and chair the meetings of Environment Sub-Group, Narmada Control
Authority closely monitoring the execution of SSP for ensuring that environmental safeguard
measures are implemented pari passu with the progress of work. On 11th August, 1992, a letter was
written by Narmada Control Authority to the Secretary, Ministry of Environment and Forests
sending action plan and status in respect of environmental safeguard measures taken and also
stating amongst other details, the following:
A number of letters were exchanged between the MOWR and MOEF and a great deal of discussion
took place both in the Environment Sub-Group and NCA as to whether an application for extension
of time as above is at all necessary. After a detailed discussion in the last NCA meeting on 25th July,
1992, it has been decided that NCA should clearly indicate the additional time required for the
completion of the remaining studies like flora and fauna and some aspects of fisheries and a revised
action plan based thereon be also sent expeditiously.
XXXXX XXXXX Keeping in view the fact and circumstances mentioned above, I request you to
kindly agree to the schedule of the studies and the follow up actions as presented here. A brief
account of the action plan together with bar charts are enclosed, presenting a pictorial view.
On 15th December, 1992, a letter was written to the Secretary, Ministry of Environment and Forests,
more particularly stating as under, amongst other things:
The Narmada Control Authority has already prepared an action plan and status on the
environmental measures of Sardar Sarovar Project and submitted to the Ministry of Environment
and Forests vide their letter No. NCA/EM/683 dated 11.8.1992 for concurrence. As may be seen
from their report on action, so far there is no safeguard measures.

During field season of every year this will be closely reviewed to attain pari passu objectives so that
the submergence during monsoon is taken care of.
The above actions are scheduled to be completed by June, 1993. No doubt, action in Maharashtra is
lagging. The matter was taken up with the Chief Secretary of Maharashtra. A copy of his reply dated
7.11.1992 is enclosed. You will observe that the reasons for the lag are largely due to the
un-cooperative and agitational approach adopted by some people.
Taking all these into account, you will appreciate that the action plans are adequate.
The Minister for Water Resources, Government of India wrote a letter on 27th January, 1993 to the
Minister of State for Environment and Forests stating that there had been no violation of
environmental safeguard measurers. On 7th July, 1993, the Secretary, Ministry of Water Resources,
Government of India wrote a letter to the Secretary, Ministry of Environment and Forests,
Government of India, more particularly stating as under:
Progress of all the environmental works is summarised in the sheet enclosed herewith. I share your
concern for initial delay in some of the studies but now it seems that the work has started in full
swing. However, there is a need to keep a close watch and I am advising the NCA for the same.
By letter dated 17lth September, 1993, the Minister of State for Environment and Forests,
Government of India wrote to the Minister for Water Resources, Government of India appreciating
the efforts made by the concerned State Governments in making the environmental plans. The
exchange of the aforesaid correspondence and the conduct of various meetings of the Environment
Sub-group from time to time under the Chairmanship of the Secretary, Ministry of Environment
and Forests, disspells the doubt of the environment clearance having been lapsed. In other words,
there could not have been any question of the environmental clearance granted to SSP being lapsed
more particularly when the Environment Sub-group had been consistently monitoring the progress
of various environmental works and had been observing in its minutes of various meetings held
from time to time, about its analysis of the works done by the respective States in the matter of the
status of studies, surveys and environmental action plans in relation with:
(i) phased catchment area treatment;
(ii) compensatory afforestation;
(iii) command area development;
(iv) survey of flora, fauna etc.
(v) archeological and anthropological survey;
(vi) seismicity and rim stability of reservoir

(vii) health aspects and
(viii) fisheries development of SSP and NSP reservoirs.
Sh. Shanti Bhushan in the course of his submissions referred to the report of the Morse Committee
in support of his contentions that the project was flawed in more ways than one.
The Morse Committee was constituted, as already noted, by the World Bank. Its recommendations
were forwarded to the World Bank. Apart from the Criticism of this report from other quarters, the
World Bank itself, did not accept this report as is evident from its press release dated 22nd June,
1992 where it was, inter alia, stated as follows:
The Morse Commission provided a draft of its report to the Bank for management comments several
weeks prior to the final release of the document. About two weeks before this release, the
commission provided a draft of its findings and recommendations. The final version of the report is
the sole responsibility of its authors; the report was not cleared by the World Bank.
On resettlement and rehabilitation (R&R), Bank management agrees with the description of the
R&R situation in each of the three states and with the reports conclusions about the shortcomings in
the preparation and appraisal of the projects R&R aspects. We also agree that work should have
been done earlier on the issue of people affected by the canal in Gujarat. However, we do not share
the view that resettlement would be virtually impossible even if Maharashtra and Madhya Pradesh
adopted the liberal resettlement package provided for displaced people by the State of Gujarat.
Given the experience so far, and the fact that most of the impact of submergence on people will not
occur until 1997, there is still time to develop meaningful R&R packages and programs in
consultation with the affected peoples. Efforts are being intensified to achieve this.
On environment, bank management agrees with the independent review on the need for a more
effective central management in the Narmada Basin on environment impact studies and mitigation
programms. Management also agrees on the need to accelerate work on estuary studies and health
maters in Gujarat. However, management does not share the reviews conclusions about the
environmental severity of the study delays. Command area issues are being addressed, including
issues of water logging and salinity. On water availability (hydrology), Bank Management disagrees
with the finding that there is insufficient impoundment of water upstream of the Sardar Sarovar
Dam site to make the irrigation system work as designed.
The Government of India vide its letter dated 7th August, 1992 from the Secretary, Ministry of
Environment and Forests did not accept the report and commented adversely on it.
In view of the above, we do not propose, while considering the petitioners contentions, to place any
reliance on the report of Morse Committee.
It was submitted on behalf of the petitioners that the command area development was an important
aspect as the benefits of the project depended on this and if proper studies and plans were not done

and not implemented, the very areas that were supposed to benefit will end up being rendered unfit
for cultivation and the water logging and salinisation could refer vast areas of the command
unproductive. It was also submitted that still there was no integrated command area environmental
impact assessment. After referring to the status reports and studies regarding the command area
development, it was submitted that there was need for some independent agency to examine the
various studies, action plans and the experience and to see whether there was ground to believe that
the proposed measures will work or not. It was contended that master plan for drainage and
command area development was still not in place and even the full studies had not been done.
While refuting the aforesaid contentions it was argued on behalf of learned counsel for the
respondents that the SSP will provide irrigation water for a cultivable command area of 1.9 million
hectares in Gujarat and 75,000 hectares in Rajasthan. The introduction of fresh water to the
drought-prone areas of Gujarat will create obvious benefits for the farming communities. In order to
safeguard these benefits, control and monitoring was suggested by the Secretary, Ministry of
Environment and Forests and Chairman of the Environment Sub-group in the following areas from
time to time:
- drainage, water logging and soil salinity;
- water quality;
- forest loss;
- potential impact on flora and fauna;
- effects on public health;
- socio-economic impacts.
Pursuant thereto fifty in-depth studies had been carried out by the State Governments of Gujarat
and Rajasthan and some of the studies were still in progress. One of the main objectives of carrying
out these studies was to prevent excessive use of ground water and water-logging.
There is no reason whatsoever as to why independent experts should be required to examine the
quality, accuracy, recommendations and implementation of the studies carried out. The Narmada
Control Authority and the Environmental Sub-group in particular have the advantage of having with
them the studies which had been carried out and there is no reason to believe that they would not be
able to handle any problem, if and when, it arises or to doubt the correctness of the studies made.
It was submitted by Sh. Shanti Bhushan that the catchment area treatment programme was not to
be done pari passu but was required to be completed before the impoundment. This contention was
based on the terms of the letter dated 24th June, 1987 wherein conditional environmental clearance
was granted, inter alia, on the condition that the catchment area treatment programme and
rehabilitation plans be drawn so as to be completed ahead of reservoir filling. Admittedly, the

impounding began in 1994 and the submission of Sh. Shanti Bhushan was that catchment area
treatment programme had not been completed by them and, therefore, this very important
condition had been grossly violated. Reference was also made to the Minutes of the Environmental
Sub-group meetings to show that there had been slippage in catchment area treatment work.
The clearance of June, 1987 required the work to be done pari passu with the construction of the
dams and the filling of the reservoir. The area wherein the rainfall water is collected and drained
into the river or reservoir is called catchment area and the catchment area treatment was essentially
aimed at checking of soil erosion and minimising the silting in the reservoir within the immediate
vicinity of the reservoir in the catchment area. The respondents had proceeded on the basis that the
requirement in the letter of June, 1987 that catchment area treatment programme and
rehabilitation plans be drawn up and completed ahead of reservoir filling would imply that the work
was to be done pari passu, as far as catchment area treatment programme is concerned, with the
filling of reservoir. Even though the filling of the reservoir started in 1994, the impoundment Award
was much less than the catchment area treatment which had been affected. The status of compliance
with respect to pari passu conditions indicated that in the year 1999, the reservoir level was 88.0
meter, the impoundment area was 6881 hectares (19%) and the area where catchment treatment
had been carried out was 128230 hectares being 71.56% of the total work required to be done. The
Minutes of the Environmental Sub-group as on 28th September, 1999 stated that catchment area
treatment works were nearing completion in the states of Gujarat and Maharashtra. Though, there
was some slippage in Madhya Pradesh, however, overall works by and large were on schedule. This
clearly showed that the monitoring of the catchment treatment plan was being done by the
Environmental Sub-group quite effectively.
With regard to compensatory afforestation it was contended by Sh. Shanti Bhushan that it was being
carried out outside the project impact area. Further, it was submitted that the practice of using
waste land or lesser quality land for compensatory afforestation means that the forest will be of
lesser quality. Both of these together defeated the spirit of the compensatory afforestation. It was
contended that the whole compensatory afforestation programme was needed to be looked at by
independent experts.
While granting approval in 1987 to the submergence of forest land and/or diversion thereof for the
SSP, the Ministry of Environment and Forests had laid down a condition that for every hectare of
forest land submerged or diverted for construction of the project, there should be compensatory
afforestation on one hectare of non-forest land plus reforestation on two hectare of degraded forest.
According to the State of Gujarat, it had fully complied with the condition by raising afforestation in
4650 hectares of non-forest areas and 9300 hectares in degraded forest areas before 1995-96
against the impoundment area of 19%. The pari passu achievement of afforestation in Gujarat was
stated to be 99.62%.
If afforestation was taking place on waste land or lesser quality land, it did not necessarily follow, as
was contended by the petitioners, that the forests would be of lesser quality or quantity.

It was also contended on behalf of the petitioners that downstream impacts of the project would
include not only destruction of downstream fisheries, one of the most important ones in Gujarat on
which thousands of people are dependent but will also result in salt water ingress. The project, it
was contended, will have grave impacts on the Narmada Estuary and unless the possible impacts
were properly studied and made public and mitigation plans demonstrated with the requisite
budget, one could not accept the claim that these matters were being looked into. The need to assess
the problem was stated to be urgent as according to the petitioners rich fisheries downstream of the
dam, including the famed Hilsa would be almost completely destroyed. The salinity ingress
threatened the water supply and irrigation use of over 210 villages and towns and Bharuch city. All
these would not only have serious economic and other impacts but would also directly destroy the
livelihoods of at least 10000 fisher families.
Again all these contentions were based on the Morse Committee Report which the World Bank and
the Union of India had already rejected. That apart, according to the respondents, in 1992 Sardar
Sarovar Narmada Nigam Limited issued an approach paper on environmental impact assessment
for the river reach downstream. This provided technical understanding of the likely hydrological
changes and possible impact in relation thereto. It was further submitted by learned counsel for the
respondents that the potential for environmental changes in the lower river and estuary had to be
seen in the context of the long term development of the basin. The current stage was clearly
beneficial. The three stages could be identified as follows:
Stage 1 covers the period roughly from the completion of Sardar Sarovar Dam to the year 2015.
Events occurring during this stage include (a) SSP Canal Command will have reached full
development and requires diversion of some water, (b) the upstream demand will reach about 8
MAF and (c) the Narmada Sagar Dam will have been built and placed in operation.
Stage 2 covers the period from 2015 and 2030 during which the demands upstream of SSP continue
to grow and will reach about 12 MAF still below the volume of 18 MAF that Madhya Pradesh can
take in a 75% year.
Stage 3 covers the period upto and beyond full basin development.
The report given by M/s. H.R. Wallingford in March, 1993 in respect of the down stream impacts of
Sardar Sarovar Dam observes, inter alia, as under:
The overall conclusion of the team undertaking the assessment described in this report is that there
are no down steam impacts whose magnitude and effect are such as to cause doubts to be cast over
the wisdom of proceeding with the Sardar Sarovar Projects provided that appropriate monitoring
and mitigation measurers are applied. Much of this work is already in progress under the auspices of
the NPG, SSNNL and NCA. The recommendations in this report are intended to provide a synthesis
of their work and suggestions as to whether it might be modified to enhance its usefulness.
The said M/s. H.R. Wallingford in the findings of 1995 stated as under:

It is thought unlikely that any significant negative environmental impacts will occur over the next 30
years as a result of the project. Some possible adverse effects have been identified the main one
being the effect of flood attenuation on Hilsa migration. These needs to be monitored and more
studies undertaken to better understand the conditions which trigger spawning. Beneficial impacts
in this period include reduced flooding and more reliable dry season flows as well as an overall
improvement of the health and well being of the people to the reliable domestic water supply,
improved nutrition and enhanced economic activity.
The above report clearly demonstrates that the construction of dam would result into more
regulated and perennial flow into the river with an overall beneficial impact. It is also evident that
until all the dams are constructed upstream and the entire flow of river is harnessed, which is not
likely in the foreseeable future, there is no question of adverse impact including the fishing activity
and the petitioners assertions in this regard are ill-conceived.
The area of submergence was stated to be rich in archaeological remains but it still remained to be
studied. It was contended that there was danger of rich historical legacy being lost and even a small
increase in the dam height would threaten to submerge many of the sites listed in the report of the
Archaeological Survey of India. There were stated to be five monuments which would be affected at
the dam height of 90 meter or above and no work was stated to have commenced to protect any of
the five monuments.
According to the State of Gujarat, the Ancient Monuments and Archaeological Sites and Remains
Act, 1958 charged the Central and/or State Department of Archaeology with responsibility for the
protection of important cultural sites. Under the Act, sites were classified into three categories as
follows:
Type 1: Monuments of national importance which are protected by the Central Government;
Type 2 : monuments of religious or cultural importance which are protected by the State
Government; and Type 3 : monuments which are neither Centrally nor State protected, but which
are considered to be an important part of cultural heritage.
Under the same law, authorities charged with the protection of the monuments are permitted to
take suitable measures to ensure the preservation of any protected site under threat from decay,
misuse or economic activity.
In the case of Sardar Sarovar, where several sites may be submerged, the NDWT award stipulated
that the entire cost of relocation and protection should be chargeable to Gujarat. Relocation work
was to be supervised by the Department of Archaeology under the provisions of the Ancient
Monuments and Archaeological Sites and Remains Act, 1958. The three State Governments carried
out a complete survey of cultural and religious sites within the submergence zone. The principle of
these surveys was to list all Archaeological sites, identify and name any site under state protection
and further identify sites of religious or cultural significance which, although not protected under
national law, were of sufficient value to merit relocation. So far as the State of Gujarat is concerned

the Department of Archaeology surveyed archeological sites in nineteen villages of submergence

zone in Gujarat under the title of Archaeological Survey of Nineteen Villages in Gujarat submerged
by Sardar Sarovar Reservoir, 1989.
In addition to baseline studies on archaeological aspects, work had been carried out on the
anthropological heritage of Narmada Basin, including examination of evidence of ancient dwellings
and cultural artifacts. The principal studies in this behalf are described below:
Anthropological Survey of India: Narmada Salvage Plan: The Narmada Salvage Plan contains
detailed background data on palaeoanthropological, human ecological and other aspects of the
Narmada Valley. By May, 1992, surface scanning of 17 sample villages coming under the
submergence had been carried out and 424 specimens including ancient tools etc. had been
collected.
Anthropological Survey of India. Peoples of India: This project entailed a complete survey of 33
tribes of India including those of Narmada Basin. The study covered all aspects of tribal culture in
India and was published in 61 volumes in 1992.
Summary of current situation and progress, Government of Gujarat Survey of villages in

submergence zone Complete for all items in the State Identification of cultural sites Complete for all
items in the State Collection of data and documentation of sites Complete Selection of appropriate
sites Complete Action Plan Complete It was further submitted on behalf of respondents that no
centrally or state protected cultural sites were located in the submergence area of the project. In
Gujarat, the Department of Archaeology concluded that the temples of Shoolpaneshwar and
Hampheshwar were important monuments and should be moved to a higher level. Sites were
selected for constructing new Shoolpaneshwar and Hampheshwar temples in consultation with
temple trustees. Shoolpaneshwar had been relocated and reconstructured near Gora, about 15 Km
downstream from the present location. Hampheshwar was also constructed at higher ground in
consultation with the temple trustees and pranpratistha was also planned on 22nd to 24th April,
2000 i.e. before the temple was submerged.
In relation to flora and fauna studies, it was contended by the petitioners that the studies had
finished only recently and the action plans were awaited in many cases. In the meanwhile, extensive
deforestation of the submergence zone had taken place, as also part of the area had been submerged,
even as the studies have been on. It was also contended that the impact on some of these Wild Ass
Sanctuary in Kutch would be very severe.
The guidelines of the Ministry of Environment and Forests required that while seeking
environmental clearance for the hydropower projects, surveys should be conducted so that the
status of the flora and fauna present could be assessed. A condition of environmental clearance of
1987 as far as it related to flora and fauna was that the Narmada Control Authority would ensure
in-depth studies on flora and fauna needed for implementation of environmental safeguard
measurers. It is the case of the respondents that number of studies were carried out and reports
submitted. It was observed that the submergence area and catchment area on the right bank of the

proposed reservoir exhibited a highly degraded ecosystem which was in contract to the left bank
area where there was fairly good forest cover which formed part of Shoolpaneshwar Wildlife
Sanctuary. With regard to the study of fauna, the said report indicated that a well-balanced and
viable eco-system existed in the Shoolpaneshwar Sanctuary. Moreover, with the construction of
dam, water availability and soil moisture will increase and support varieties of plants and animals.
It was also contended on behalf of petitioners that the whole project will have serious impacts on
health, both around the submergence area and in the command. The preventive aspects had not
been given attention. There was no linkage between the studies and work.
On behalf of State of Gujarat, it was contended that large number of studies had been carried out on
the health profile of villagers including studies on water related diseases in SSP command area
including the area downstream of the dam. The study of M.S. University in 1983 and other studies
concluded that the most common diseases in the basin were Malaria, Scabies, Dysentery and
Diarrhoea. Of these only a threat to Malaria needed to be of concern. The study concluded that the
incidence of hygiene related diseases other than Malaria could be reduced by better water
availability. The Gujarat Work Plan covered villages within 10 KMs radius of the reservoir including
re-settled population and made provision for the monitoring, surveillance and control of Malaria.
The principal features of the Gujarat Work Plan included establishment of a hospital at Kevadia near
the dam site, strengthening of laboratory facility including establishment of mobile unit residual
insecticidal spraying operations etc. This showed that the area of public health was in no way being
neglected. The petitioner was also critical of the functioning of the Environmental Sub-group as it
was contended that the claims of the studies and progress report were accepted at the face value and
without verification. It was also contended that the Ministry of Environment and Forests had grossly
abdicated its responsibility. This submission was based on the premise that clearance, which had
been granted, had lapsed and the Ministry of Environment and Forests did not insist on the
Ministry of Water Resources for its renewal and further more the Ministry of Environment and
Forests had not taken any cognizance of the criticism about environmental aspects contained in the
Morse Committee Report. Lastly the Five Member Group in its first report was critical in many
respects and pointed out studies which had remained incomplete but no cognizance was taken by
the Ministry of Environment and Forests. The repeated abdication, it was submitted, of the
responsibility by the Ministry of Environment and Forests indicated that it was not taking the whole
issue with the seriousness it deserved.
On behalf of the State of Gujarat, it was contended that various alleged dangers relating to
environment as shown by the petitioners were mostly based on the recommendations of the Morse
Committee Report and Five Member Group. While the report of Morse Committee does not require
our attention, the same not having been accepted either by the World Bank or the Government of
India. Para 4.5.2 of the report of Five Member Group which relates to creation of the Environment
Sub-group commends its establishment, its observation about its powers is as follows:
4.5.2. It must be noted that the Environmental Sub-group is not a body which merely observes and
reports, but watchdog body which can recommend even the stoppage of work if it feels dissatisfied
with the progress on the environment front. The recommendations of the Environmental

Sub-Group will have to be considered by the NCA, and if there is any difference of opinion at that
level, it will have to be referred to the Review Committee, which has the Minister of Water and
Environment and Forests as a member. It seems doubtful whether any more effective mechanism
could have been devised or made to work within the framework of our existing political and
administrative structures, particularly in the context of a federal system. Secretary (Environment &
Forests) has, in fact, been given a special position in the NCA inasmuch as he can insist on matters
being referred to the Review Committee and at the Review Committee the Minister of Environment
and Forests forcefully plead the environmental cause; he can also make the environmental point of
view heard at the highest level. If in spite of all these arrangements, the environmental point of view
fails to be heard adequately, and if project construction tends to take an over-riding precedence, that
is a reflection of the relative political importance of these two points of view in our system. This can
be remedied only in the long term through perusation and education, and not immediately through
institutional arrangements which run counter to the system. (Emphasis added) Apart from the fact
that we are not convinced that construction of the dam will result in there being an adverse
ecological impact there is no reason to conclude that the Environmental Sub-group is not
functioning effectively. The group which is headed by the Secretary, Ministry of Environment and
Forests is a high powered body whose work cannot be belittled merely on the basis of conjectures or
surmises.
Sh. Shanti Bhushan, learned Senior Counsel while relying upon A.P. Pollution Control Board Vs.
Professor M.V. Mayadu (1999) 2 SCC 718 submitted that in cases pertaining to environment, the
onus of proof is on the person who wants to change the status quo and, therefore, it is for the
respondents to satisfy the Court that there will be no environmental degradation.
In A.P. Pollution Control Boards case this Court was dealing with the case where an application was
submitted by a company to the Pollution Control Board for permission to set up an industry for
production of BSS Castor Oil Derivatives. Though later on a letter of intent had been received by the
said company, the Pollution Control Board did not give its no- objection certificate to the location of
the industry at the site proposed by it. The Pollution Control Board, while rejecting the application
for consent, inter alia, stated that the unit was a polluting industry which fell under the red category
of polluting industry and it would not be desirable to locate such an industry in the catchment area
of Himayat Sagar, a lake in Andhra Pradesh. The appeal filed by the company against the decision of
the Pollution Board was accepted by the appellate authority. A writ petition was filed in the nature of
public interest litigation and also by the Gram Panchayat challenging the order of the appellate
authority but the same was dismissed by the High Court. On the other hand, the writ petition filed
by the company was allowed and the High Court directed the Pollution Board to grant consent
subject to such conditions as may be imposed by it.
It is this decision which was the subject-matter of challenge in this Court. After referring to the
different concepts in relation to environmental cases like the precautionary principle and the
polluter-pays principle, this Court relied upon the earlier decision of this Court in Vellore Citizens
Welfare Forum Vs. Union of India (1996) 5 SCC 647 and observed that there was a new concept
which places the burden of proof on the developer or industrialist who is proposing to alter the
status quo and has become part of our environmental law. It was noticed that inadequacies of

science had led to the precautionary principle and the said precautionary principle in its turn had
led to the special principle of burden of proof in environmental cases where burden as to the
absence of injurious effect of the actions proposed is placed on those who want to change the status
quo. At page 735, this Court, while relying upon a report of the International Law Commission,
observed as follows:
The precautionary principle suggests that where there is an identifiable risk of serious or irreversible
harm, including, for example, extinction of species, widespread toxic pollution is major threats to
essential ecological processes, it may be appropriate to place the burden of proof on the person or
entity proposing the activity that is potentially harmful to the environment.
It appears to us that the precautionary principle and the corresponding burden of proof on the
person who wants to change the status quo will ordinarily apply in a case of pulluting or other
project or industry where the extent of damage likely to be inflicted is not known. When there is a
state of uncertainty due to lack of data or material about the extent of damage or pollution likely to
be caused then, in order to maintain the ecology balance, the burden of proof that the said balance
will be maintained must necessarily be on the industry or the unit which is likely to cause pollution.
On the other hand where the effect on ecology or environment of setting up of an industry is known,
what has to be seen is that if the environment is likely to suffer, then what mitigative steps can be
taken to off set the same. Merely because there will be a change is no reason to presume that there
will be ecological disaster. It is when the effect of the project is known then the principle of
sustainable development would come into play which will ensure that mitigative steps are and can
be taken to preserve the ecological balance. Sustainable development means what type or extent of
development can take place which can be sustained by nature/ecology with or without mitigation.
In the present case we are not concerned with the polluting industry which is being established.
What is being constructed is a large dam. The dam is neither a nuclear establishment nor a polluting
industry. The construction of a dam undoubtedly would result in the change of environment but it
will not be correct to presume that the construction of a large dam like the Sardar Sarovar will result
in ecological disaster. India has an experience of over 40 years in the construction of dams. The
experience does not show that construction of a large dam is not cost effective or leads to ecological
or environmental degradation. On the contrary there has been ecological upgradation with the
construction of large dams. What is the impact on environment with the construction of a dam is
well-known in India and, therefore, the decision in A.P. Pollution Control Boards case (supra) will
have no application in the present case.
Reference was made by Sh. Shanti Bhushan to the decision of the United States District Court in the
case of Sierra Club et. V. Robert F. Froehlke [350bF.Supp.1280(1973)]. In that case work had begun
on Wallisville Project which, inter alia, consisted of a construction of a low dam. It was the case of
the plaintiff that the construction of the project would destroy hundreds of thousands of trees and
enormous grain, fish and other wild life will lose their habitat and perish. It was contended that the
defendants were proceeding in violation of law by not complying with the requirements of National
Environmental Policy Act, 1969, [NEPA]. Plaintiff, inter alia, sought an injunction for restraining
the undertaking of the project in violation of the said Act. The District Court held that

notwithstanding the substantial amount of work had already been done in connection with the
project but the failure to satisfy full disclosure requirement of NEPA injunction would be issued to
halt any further construction until requirements of NEPA had been complied with, that even though
there was no Act like NEPA in India at the time when environmental clearance was granted in 1987,
nevertheless by virtue of Stockholm Convention and Article 21 of the Constitution the principles of
Sierra Club decision should be applied.
In India notification had been issued under Section 3 of the Environmental Act regarding prior
environmental clearance in the case of undertaking of projects and setting up of industries including
Inter-State River Project. This notification has been made effective from 1994. There was, at the
time when the environmental clearance was granted in 1987, no obligation to obtain any statutory
clearance. The environmental clearance which was granted in 1987 was essentially administrative in
nature, having regard and concern of the environment in the region. Change in environment does
not per se violate any right under Article 21 of the Constitution of India especially when ameliorative
steps are taken not only to preserve but to improve ecology and environment and in case of
displacement, prior relief and rehabilitation measures take place pari passu with the construction of
the dam.
At the time when the environmental clearance was granted by the Prime Minister whatever studies
were available were taken into consideration. It was known that the construction of the dam would
result in submergence and the consequent effect which the reservoir will have on the ecology of the
surrounding areas was also known. Various studies relating to environmental impact, some of which
have been referred to earlier in this judgment, had been carried out. There are different facets of
environment and if in respect of a few of them adequate data was not available it does not mean that
the decision taken to grant environmental clearance was in any way vitiated. The clearance required
further studies to be undertaken and we are satisfied that this has been and is being done. Care for
environment is an on going process and the system in place would ensure that ameliorative steps are
taken to counter the adverse effect, if any, on the environment with the construction of the dam.
Our attention was also drawn to the case of Tennessee Valley Authority v. Hiram G. Hill [437 US
153, 57 L Ed 2d 117, 98 S Ct 2279] where the Tennessee Valley Authority had begun construction of
the Tellico Dam and reservoir project on a stretch of Little Tennessee River. While major portion of
the dam had been constructed the Endangered Species Act 1973 was enacted wherein a small fish
popularly known as the Snail darter was declared an endangered species. Environmental groups
brought an action in the United States District Court for restraining impounding of the reservoir on
the ground that such an action would violate the Endangered Species Act by causing the snail darter
extinction. The District Court refused injunction but the same was granted by the United States
Court of Appeal. On further appeal the US Supreme Court held that the Endangered Species Act
prohibited the authority for further impounding the river. The said decision has no application in
the present case because there is no such act like the Endangered Species Act in India or a
declaration similar to the one which was issued by the Secretary of the Interior under that Act. What
is, however, more important is that it has not been shown that any endangered species exists in the
area of impoundment. In Tennessee Valley Authority case it was an accepted position that the
continued existence of snail darter which was an endangered species would be completely

jeopardised.
Two other decisions were referred to by Sh. Shanti Bhushan Arlington Coalition on Transportation
v. John A. Volpe [458 F.2d 1323 (1972)] and Environmental Defense Fund, Inc. v Corps of
Engineers of United States Army [325 F.Supp.749 (1971)]. In both these decisions it was decided
that the NEPA would be applicable even in case of a project which had commenced prior to the
coming into force of the said Act but which had not been completed. In such cases there was a
requirement to comply with the provisions of NEPA as already noticed earlier. The notification
under Section 3 of the Environment Protection Act cannot be regarded as having any retrospective
effect. The said notification dated 27th January 1994, inter alia, provides as follows:
Now, therefore, in exercise of the powers conferred by sub-section (1) and clause (v) of sub- section
(2) of Section 3 of the Environment (Protection) Act, 1986 (29 of 1986) read with clause
(d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986, the Central Government
hereby directs that on and from the date of publication of this notification in the Official Gazette
expansion or modernization of any activity (if pollution load is to exceed the existing one) or a new
project listed in Schedule I to this notification, shall not be undertaken in any part of India unless it
has been accorded environmental clearance by the Central Government in accordance with the
procedure hereinafter specified in this notification.
This notification is clearly prospective and inter alia prohibits the undertaking of a new project
listed in Schedule I without prior environmental clearance of the Central Government in accordance
with the procedure now specified. In the present case clearance was given by the Central
Government in 1987 and at that time no procedure was prescribed by any statute, rule or regulation.
The procedure now provided in 1994 for getting prior clearance cannot apply retrospectively to the
project whose construction commenced nearly eight years prior thereto.
RELIEF AND REHABILITATION It is contended by the petitioner that as a result of construction of

dam over 41,000 families will be affected in three States spread over 245 villages. The number of
families have increased from 7000 families assessed by the Tribunal. It was further contended that
the submergence area can be broadly divided into two areas, fully tribal area which covers the initial
reach of about 100 or so villages which are almost 100 % tribal and hilly. These include all the 33
villages of Maharashtra, all 19 of Gujarat and many of the Madhya Pradesh. The second part of the
submergence area is the mixed population area on the Nimad plains with a very well developed
economy that is well connected to the mainstream. While the tribal areas are stated to be having a
rich and diverse resource base and the self sufficient economy, the lack of so-called modern
amenities like roads, hospitals and schools are far more a reflection of the neglect and disregard by
the Government over the last fifty years than on anything else. Of the 193 villages stated to be
affected by Sardar Savorar submergence 140 lie in the Nimad plains. The population of these
villages are a mixture of caste and tribal and these villages have all the facilities like schools, post
offices, bus service etc. It was contended that whereas the project authorities talk only about the
families affected by submergence, none of the other families affected by the project are considered
as PAFs nor has any rehabilitation package been designed for them. These non-recognised

categories for whom no rehabilitation package is given are stated to be those persons living in
submergence area who are not farmers but are engaged in other occupation like petty traders,
village shop-keepers who are to be affected by submergence; colony affected people whose lands
were taken in 1960 to build the project colony, warehouses etc.; canal affected people who would be
losing 25 per cent of their holdings because of the construction of the canals; drainage affected
people whose lands will be acquired for drainage; 10,000 fishing families living downstream whose
livelihood will be affected; lands of the tribals whose catchment treatment area has been carried out;
persons who are going to be affected by the expansion Shoolopaneshwar Sanctuary; persons going
to be affected by Narmada Sagar Project and Garudeshwar Weir. It was contended that there was an
urgent need to assess comprehensively the totality of the impact and prepare category specific
rehabilitation policies for all of them.
It was also submitted that the total number of affected families in all the three States as per the
Master Plan prepared by the Narmada Control Authority is 40727. According to the petitioner,
however, this figure is an under-estimate and the estimate of the land required for these PAFs is also
on a much lower side. The basis for making this submission is:
1] In each village there are many persons left out of the Government list of declared PAFs. These are
joint holders [non recognised as landed oustees or PAFs] and the adult sons.
2] Incorrect surveys have been conducted and the affected persons have serious apprehensions
about the validity of the surveys since at many places the level markings are suspect, in many cases
the people affected at higher levels have been given notices for lower levels, many others at the same
levels have been left out and so on. It is also alleged that there have been short-comings in the
policies and if they are corrected many more oustees will be entitled to PAFs status. Further more
the cut off date for PAFs in Madhya Pradesh including adult son is linked to the date of issuance of
notification. Since land acquisition process is still incomplete the number of adult sons entitled to
land would increase with the issuance of fresh Section 4 Notification.
From the aforesaid it was contended that the total impact in terms of number of oustees as well as
land entitlement will be much larger than what is considered in the Master Plan.
It is also submitted that there was major lacunae in the said policy like the three States having
dissimilar policy for R&R. This difference in rehabilitation packages of different States, with the
package of Gujarat being more favourable, is leading to a situation where the oustees are forced to
shift to Gujarat. The other lacunae which are stated to have many serious problems are alleged to be
non provision for fuelwood and grazing land with fodder. No provision for rehabilitation of people
involved in non- agricultural occupation. According to the petitioner the number of affected people
even by submergence have been underestimated. The policy regime governing them has many
serious lacunae. The increase in the numbers is due to lack of proper surveys and planning and the
provision of just and due entitlements to the PAFs. Since this process of providing just entitlements
is still incomplete, and the policies need a thorough review, the numbers and entitlements are likely
to go up further. Even the magnitude of the task of R&R cannot be assessed properly till the above
are considered and proper policies introduced.

It is also contended that before embarking on the Sardar Sarovar Project it was necessary that the
Master Plan for rehabilitation of the families to be affected is completed. According to the petitioner
the Master Plan which was submitted in the Court cannot be regarded as an acceptable Master Plan
inasmuch as it has no mention of people affected by Sardar Sarovar project other than those affected
by submergence and it has no estimate of resource base of the oustees in their original village.
Further the plan makes no estimation of the forest land, grazing land and resources being used by
the oustees. The Master Plan persists with the discriminatory and differential policies which are less
than just to the oustees. There is also no planning for community resettlement even though the
Award of the Narmada Tribunal made detailed provision regarding rehabilitation of the oustees
which required that there should be village wise community rehabilitation.
In support of this contention reliance is placed on the following stipulation for rehabilitation
contained in the Award of the Narmada Tribunal That Gujarat shall establish rehabilitation villages
in Gujarat in the irrigation command of the SSP on the norms hereafter mentioned for rehabilitation
of the families who are willing to migrate to Gujarat. The submission is that no specific
rehabilitation village, as envisaged by the Tribunals Award, has been established in Gujarat. The
issue of community re-settlement is stated to be not merely an issue of community facility but is a
more fundamental issue. The issue is really one of preserving social fabric and community relation
of the oustees which, it is alleged, is being destroyed due to dispersal of the community who are
being resettled at different sites.
Dealing with the situation of those oustees who have been resettled in Gujarat it is submitted by the
petitioner that there are large number of grievances of the said outstees in 35 re-settlement sites.
With the passage of time the number of problems overall would become much more, is the
contention. The petitioner finds fault with the quality of land which has been given in Gujarat to the
oustees contending that large number of oustees have been given land outside the command area of
irrigation and in some re-settlement sites there is a serious water-logging problem. It also contends
that though some amenities have been provided but they are not adequate. It is also the case of the
petitioner that sufficient land for re- settlement of the oustees from Madhya Pradesh is not available
in Gujarat despite the claim of the State of Gujarat to the contrary.
With regard to Maharashtra it is contended by the petitioner that the official figure of the total
number of PAFs affected in Maharashtra is not correct and the number is likely to be more than
3113 PAFs estimated by the State of Maharashtra. Further-more adequate land of desired quality
has not been made available for resettlement till 90 mtr. and even thereafter. Reference is made to
the affidavit of the State of Maharashtra in which it is stated that it proposes to ask for the release of
1500 hectares of forest land for re-settlement and the submission on behalf of the petitioner is that
release of such land shall be in violation of Forest Conservation Act, 1980 and is not in public
interest for forest cover will be further depleted.
With regard to the State of Madhya Pradesh it is submitted that as per the award the PAFs have a
right to choose whether to go to Gujarat or to stay in the home State. The State of Madhya Pradesh is
stated to have planned the whole re-settlement based on the assumption that overwhelming
proportion of oustees entitled to land will go to Gujarat yet even for the limited number of oustees

who are likely to stay in Madhya pradesh the submission is that no land is available. The petitioner
also disputes the averment of the State of Madhya Pradesh that the oustees have been given a choice
as to whether they would like to go to Gujarat or stay in the home State. According to the petitioner
the majority of the oustees would prefer to stay in the home State that is Madhya Pradesh but
sufficient land for their resettlement in Madhya Pradesh is not available. According to the petitioner
the State of Madhya Pradesh has stated that it does not have land for any PAFs above 830 and even
for 830 PAFs the land is not available. It is also submitted that the Madhya Pradesh Government
cannot wriggle out of its responsibility to provide land for the oustees by offering them cash
compensation. The petitioner finds fault with the effort of the State of Madhya Pradesh to push the
oustees to Gujarat whose rehabilitation scheme is more attractive and beneficial than that of
Madhya Pradesh.
The petitioner further contends that one of the fundamental principle laid down is that all the
arrangements and resettlement of the oustees should be made one year in advance of submersion.
In B.D. Sharma Vs. Union of Indias case this Court has held that resettlement and rehabilitation has
to be done at least six months in advance of submersion, complete in all respects. It is, therefore,
contended that since offers to the Madhya Pradesh oustees affected at 90 mtr. to be settled in
Madhya Pradesh has not been made, there cannot be any question of further construction till one
year after the resettlement of these PAFs at 90 mtr.
The petitioner is also critical of the functioning of the R&R Sub-group and it is contended that the
said Sub-group has not taken any cognizance of the various issues and problems enumerated by the
petitioner. It is submitted that in assuring that the relief and rehabilitation arrangements are being
done the said R&R Sub-group merely accepts the assertions of the Government rather than verifying
the claims independently. There is also a complaint regarding the manner in which the R&R
Committee takes decision on the spot when it makes frequent visits. It is contended that the
decisions which are taken in an effort to solve the grievances of the oustees is done in the most
insensitive way. The R&R Sub-group, it is contended, is an official agency of the Government itself
being a Sub-group of the NCA, which is pushing the project ahead and the question raised by the
petitioner is as to how can the same body which is building a project and executing the R&R be also
monitoring it.
It is a case of the petitioners that there is a need for independent monitoring agency in the three
States who should be asked to monitor the R&R of the oustees and see to the compliance with the
NDWT award. No construction should be permitted to be undertaken without clearance from this
authority. Lastly it is contended that large number of grievances are persisting even after twenty
years and the pace of resettlement has been slow. The petitioner seems to have contended that the
relief and rehabilitation can be manageable only if the height of the dam is significantly lessened
which will reduce submersion and displacement of people.
In order to consider the challenge to the execution of the project with reference to Relief and
Rehabilitation it is essential to see as to what is the extent and the nature of submergence.

The Sardar Sarovar Reservoir level at 455 ft. would affect 193 villages in Madhya Pradesh, 33
villages in Maharashtra and 19 villages in Gujarat. The submergence villages are situated on the
banks of river Narmada having gentle to steep slopes of the Satpura hills. A village is considered
affected even when the water level touches the farm/hut at lowest level. It may be noted that only 4
villages (3 villages in Gujarat and 1 village in Madhya Pradesh) are getting submerged fully and the
rest 241 villages are getting affected partially.
The state-wise land coming under submergence (category-wise) is given below:
STATES (In(In Hectares) S S r N o .
Type of land GUJARAT MAHARASHTRA MADHYA PRADESH TOTAL Cultivated land 11279
Forest Land 13385 Other land including river bed 10208 12869 Total land 20822 37533 The
aforesaid table shows that as much as 12869 hectares of the affected land is other than agricultural
and forest and includes the river bed area.
When compared to other similar major projects, the Sardar Sarovar Project has the least ratio of
submergence to the area benefited (1.97% only). The ratio of some of the existing schemes is as
much as 25% as can be seen from the table below:
S Sr.
No.
Name of Project State Benefite d Area (in ha) Subme rgence Area (in ha) Irrigation benefit per ha.
Submergence Percentag e of area submerge d to area irrigated Hirakud Orissa 251150 73892 3.40
29.42 Shriram-
sagar Andhra Pradesh 230679 44517 5.24 19.14 Gandhisa gar Madhya Pradesh 503200 66186 7.60
13.15 Paithan Maharasht ra 278000 35000 7.94 15.29 Tungbha dra Karnataka 372000 37814 9.84
10.16 .
Pench Maharasht ra 94000 12.13 8.24 .
Nagarjun
-sagar Andhra Pradesh 895000 28500 31.40 3.18 .
Bhakra Himachal Pradesh 676000 16800 40.24 2.48 Sardar Sarovar Gujarat 1903500 37533 50.71
1.97 Countering the assertion that the construction of the dam would result in large scale relocation
and uprooting of tribals, the factual position seems to be that the tribals constitute bulk of PAFs in
Gujarat and Maharasthra, namely, 97% and 100% respectively. In the case of Madhya Pradesh, the
tribals PAFs are only 30% while 70% are non-tribals.

The tribals who are affected are in indigent circumstances and who have been deprived of modern
fruits of development such as tap water, education, road, electricity, convenient medical facilities
etc. The majority of the project affected families are involved in rain-fed agricultural activities for
their own sustenance. There is partial employment in forestry sector. Since the area is hilly with
difficult terrain, they are wholly dependent on vagaries of monsoon and normally only a single crop
is raised by them. Out of the PAFs of Madhya Pradesh who have re-settled in Gujarat, more than
70% are tribal families. Majority of the total tribal PAFs are stated to have already been re-settled in
Gujarat after having exercised their option. It is the contention of the State of Gujarat that the tribals
in large number have responded positively to the re-settlement package offered by that state.
In Madhya Pradesh, the agricultural lands of the tribal villages are affected on an average to the
extent of 28% whereas in the upper reaches i.e. Nimad where the agriculture is advanced, the extent
of submergence, on an average, is only 8.5%. The surveys conducted by HMS Gour University
(Sagar) the Monitoring and Evaluation Agency, set up by Government of Madhya Pradesh, reveals
that the major resistance to relocation is from the richer, non-tribal families of Nimad who fear
shortage of agricultural labour if the landless labourers from the areas accept re- settlement.
The displacement of the people due to major river valley projects has occurred in both developed
and developing countries. In the past, there was no definite policy for rehabilitation of displaced
persons associated with the river valley projects in India. There were certain project specific
programmes for implementation on temporary basis. For the land acquired, compensation under
the provisions of Land Acquisition Act, 1894 used to be given to the project affected families. This
payment in cash did not result in satisfactory resettlement of the displaced families. Realising the
difficulties of displaced persons, the requirement of relief and rehabilitation of PAFs in the case of
Sardar Sarovr Project was considered by the Narmada Water Disputes Tribunal and the decision
and final order of the Tribunal given in 1979 contains detailed directions in regard to acquisition of
land and properties, provision for land, house plots and civic amenities for the re- settlement and
rehabilitation of the affected families. The re-settlement policy has thus emerged and developed
along with Sardar Sarovar Project.
The Award provides that every displaced family, whose more than 25% of agricultural land holding
is acquired, shall be entitled to and be allotted irrigable land of its choice to the extent of land
acquired subject to the prescribed ceiling of the State concerned with a minimum of two hectares
land. Apart from this land based rehabilitation policy, the Award further provides that each project
affected persons will be allotted a house plot free of cost and re-settlement and rehabilitation grant.
The civic amenities required by the Award to be provided at places of re-settlement include one
primary school for every 100 families, one Panchayat Ghar, one dispensary, one seed store, one
childrens park, one village pond and one religious place of worship for every 500 families, one
drinking water well with trough and one tree platform for very 50 families; approach road linking
each colony to main road; electrification; water supply, sanitary arrangement etc. The State
Governments have liberalised the policies with regard to re-settlement and have offered packages
more than what was provided for in the Award e.g the Governments of Madhya Pradesh,
Maharashtra and Gujarat have extended the R&R benefits through their liberalised policies even to
the encroachers, landless/displaced persons, joint holders, Tapu land (Island) holders and major

sons (18 years old) of all categories of affected persons. The Government of Maharasthra has
decided to allot one hectare of agricultural land free of cost even to unmarried major daughters of all
categories of PAFs.
In the environmental clearance granted by the Ministry of Environment and Forests vide its letter
dated 24th June, 1987, one of the conditions stipulated therein was for information from the project
authorities on various action plans including Rehabilitation Master Plan of 1989.
It is the contention of the petitioners that the failure to prepare a Master Plan constitutes
non-compliance with the requirement of the Tribunals Award as well as environmental clearance.
The Tribunals Award does not use the expression Master Plan but as per clause XI Sub- clause
IV(2)(iii), what is required, is as under:
The three States by mutual consultation shall determine within two years of the decision of the
Tribunal, the number and general location of rehabilitation villages required to be established by
Gujarat in its own territory.
It is with regard to this clause in the Award that, presumably, the aforesaid letter of 24th June, 1987
granting environmental clearance required the preparation of the new Master Plan. In 1988 when
the project was first cleared by the Planning Commission from investment angle, it was estimated
that 12180 families would be affected in three States. Based on these numbers, the State
Governments independently prepared their action plans and announced their R&R policy based on
Tribunals Award. On the basis of the said action plans the Narmada Control Authority submitted
Rehabilitation Master Plan to the Ministry of Environment and Forests along with its letter dated
¾.5.1989. Out of the total population, which is affected by the submergence, large number are
tribals and hence attention was paid by the State Governments to liberalise their policies for
protecting the socio- economic and cultural milieu and to extend the R&R benefits even to other
categories of persons who were not covered by the Tribunals Award. This led to the liberalisation of
the R&R packages by the three States which packages have been referred to hereinabove. As a result
of the liberalisation of the packages, the number of PAFs as estimated in 1992 by the State
Governments were 30144. Based on the material available, the three State Governments prepared
individual action plans in 1993 but those action plans were integrated by the Narmada Control
Authority first in 1993 and again in 1995 as an integrated Master Plan to present a holistic picture of
the R&R programme. The Master Plan deals with socio-economic and cultural milieu of PAFs, the
legal framework, R&R policy and procedures, implementation machinery, organisation for R&R,
monitoring and evaluation, empowerment of women and youth, special care for vulnerable groups,
financial plans for R&R etc. As per the 1990 Master Plan the total PAFs have increased to 40227
from 30144 due to addition of 100 more genuine PAFs in Maharashtra. This Master Plan includes
village-wise, category-wise PAFs and their preference in R&R to settle in home State or in Gujarat.
The reason for increase in number of PAFs has been explained in the Master Plan and the reasons
given, inter alia, are:

(a) After CWC prepared backwater level data, the number of PAFs in Madhya Pradesh (MP)
increased by 12000 PAFs as their houses are affected in a 1 in 100 years flood.
(b) Government of Gujarat (GOG) included major sons of the dyke villages as PAFs.
(c) Cut off date for major sons was extended by GOG and Government of Maharashtra (GOM).
(d) PAFs affected in MP, have increased due to delay in publication of Section 4 notification under
the Land Acquisition Act.
(e) Persons socially or physically cut off due to impounding of water in reservoir, are also considered
as PAFs by all the three States.
(f) All the three States decided to consider encroachers as PAFs.
(g) Major unmarried daughters in Maharashtra are considered as a separate family by Government
of Maharashtra.
(h) Some genuine PAFs were earlier left out (as many stayed in remote areas or used to undertake
seasonal migration to towns and developed areas in search of casual work).
As far as the State of Gujarat is concerned, its contention is that the task of R&R is not impossible as
recognised by the FMG-I in its 1994 report and according to the State, it is fully ready and prepared
to re-settle in Gujarat all the PAFs upto FRL 455 ft.
On 13th November, 1996, a meeting of the Review Committee of the Narmada Control Authority
chaired by the Union Minister of Water Resources was held. This meeting was attended by the Chief
Ministers of all the States including Rajasthan and representatives of Ministry of Environment and
Forests, Ministry of Social Justice and Empowerment, Government of India. In the meeting it was
unanimously decided that the reviews of the implementation of re-settlement and rehabilitation
measures will be undertaken for every five meter height of the dam jointly by the concerned R&R
Sub-group and Environmental Sub-group so that work could progress pari passu with the
implementation measurers. In its meeting held on 6th January, 1999, R&R Sub-Group of Narmada
Control Authority observed that arrangements made by the States for R&R of the balance families
pertaining to the dam height EL 90 meter were adequate and a meeting of the party States should be
convened shortly to finalise the action plan. Pursuant thereto a special Inter-State Meeting was
convened under the chairmanship of the Secretary to the Government of India, Ministry of Social
Justice and Empowerment on 21st January, 1999 at New Delhi and action plan for re-settlement
and rehabilitation for balanced families of dam height EL 90 meter was finalised for implementation
by the States. It is the case of the State of Gujarat that it had issued notices and made offers in
January, 1998 to PAFs affected at RL 90 meter in connection with the selection of land and their
re-settlement in Gujarat. According to it, even in respect of PAFs affected at RL 95 meter, notices
were issued in January, 1999 and to the PAFs included in the subsequent list, notices were issued in
September 1999. The process of land selection by PAFs who had opted to resettle in Gujarat at RL

95 meter was already started. According to the Union of India, the Master Plan was under
implementation and the progress of R&R at various elevations of dam viz. EL 90 meter, EL 95
meter, EL 110 meter and FRL 138.68 meter has been made.
The measures which have been implemented for sustainable development with regard to preserving
the socio-cultural environment of the displaced persons in the States of Maharashtra, Gujarat and
Madhya Pradesh are stated to be as follows:
? Three choices to the people for the selection of relocation sites. ? Integration of the displaced
person with the neighbouring villages by organising medical check-up camps, animal husbandry
camps, festivals, eye camps, rural development seminar for village workers etc. ? Establishment of
rehabilitation committees at different levels. ? Respect of traditional beliefs, rituals and rights at the
starting of house construction, the day and time of leaving the old house and village and the day and
time of occupying the new house etc. ? The sacred places at the native villages are being recreated
along with their settlements at new sites.
? Installation of all the religious deities with the due consultation of religious heads.
? Promotion of cultural milieu viz. Social festivals, religious rights, rights of passage, presence of
priests, shaman, kinsmen, clansmen etc. ? Special consideration for the preservation of holistic
nature of the culture.
? Proper use of built-in-mechanism of cultural heritage of the displaced persons.
? Launching of culturally appropriate development plan. ? Genuine representation of the traditional

leader.
The Tribunal had already made provision of various civic amenities which were further liberalised
by the State Governments during implementation. The existing development programmes were
strengthened for ensuring sustainable development at the rehabilitation sites. These were Integrated
Rural Development Programme (IRDP) for agriculture, business and village industries; Integrated
Child Development Scheme (ICDS) for nutrition, health and education; Jawahar Rojgar Yojna
(JRY); aids for improved seeds, fertilizers, irrigation, animal husbandry; Training Rural Youth for
self-employment (TRYSEM); Employment Guarantee Scheme (EGS), Social Assistance; Industrial
Training Institute (ITI); Tribal Development Programme (TDP), financial benefits to the backward
classes, economically weaker sections, tribals and other backward classes (OBC), eye camps,
subsidies to farmers (seed, tractorisation, fertilizsers, diesel, etc.) agricultural prices support subsidy
etc. Other benefits which were extended for improving the quality of life of the re-settled PAFs
included fodder farm, mobile sale, shop of fodder, seeds cultivation training, initial help in land
preparation for agricultural activities, better seeds and fertilizers, access to finance, special
programme for women in the traditional skills enterpreneurship development, employment skill
formation, different plantation programmes, special emphasis for pasture management,
environment awareness and education programme, programmes for bio-gas/smokeless chulhas,
safe drinking water supply, electricity, lift irrigation, fertilizers kit distribution, gypsum treatment of

soil etc. The project authorities in these three States of Madhya Pradesh, Gujarat and Maharashtra
represented that comprehensive health care was available in tribal areas where the displaced
families had been re-settled. It was contended that extensive preventive health measures like mass
immunization, anti-malaria programme, family welfare programmes, child development schemes
etc. had been undertaken. What is important is that primary health centres were established at
relocation sites for all necessary health facilities to the PAFs.
The submission on behalf of Union of India was that there was a well- established mechanism of
Government of India for coordination and monitoring of Re-settlement & Rehabilitation (R&R)
programmes in case of Sardar Sarovar Project. The R&R Sub-group and Rehabilitation Committee
of Narmada Control Authority are responsible for applying its independent mind on R&R. The
Sub-group convenes its meeting regularly to monitor and review the progress of R&R while
Rehabilitation Committee visits the submergence areas/relocation sites to see whether the
rehabilitation is taking place physically and to hear the individual problems of the PAPs. The R&R
group, keeping in view the progress of relief and rehabilitation, has not permitted the height to be
raised, until and unless it is satisfied that adequate satisfactory progress has been made with regard
to R&R. Whereas at an earlier point of time in 1994, the construction schedule had required the
minimum block level to be raised to 85 meters, the R&R Sub- group had permitted the same to be
raised to EL 69 meter only during that period to match the R&R activity. It was in the meeting of
R&R Sub-group on 6th January, 1999 after the R&R Sub-group had reviewed the progress and had
satisfied itself that the land for re-settlement in Gujarat, Maharashtra and Madhya Pradesh, which
were available, was more than required for the re-settlement of the balanced PAFs that it cleared the
construction upto the dam height EL 90 meters. The action plan for the same had been approved
and is under implementation by the States concerned.
The petitioners had contended that no proper surveys were carried out to determine the different
categories of affected persons as the total number of affected persons had been shown at a much
lower side and that many had been denied PAF status. From what is being stated hereinabove, it is
clear that each State has drawn detailed action plan and it is after requisite study had been made
that the number of PAFs have been identified. The number has substantially increased from what
was estimated in the Tribunals Award. The reason for the same, as already noticed, is the
liberalisation of the R&R packages by the State Governments. Except for a bald assertion, there
appears to be no material on which this Court can come to the conclusion that no proper surveys
had been carried out for determining the number of PAFs who would be adversely affected by the
construction of the dam.
Re-settlement and rehabilitation packages in the three States were different due to different
geographical, local and economic conditions and availability of land in the States. The liberal
packages available to the Sardar Sarovar Project oustees in Gujarat are not even available to the
project affected people of other projects in Gujarat. It is incorrect to say that the difference in R&R
packages, the package of Gujarat being the most liberal, amounts to restricting the choice of the
oustees. Each State has its own package and the oustees have an option to select the one which was
most attractive to them. A project affected family may, for instance, chose to leave its home State of
Madhya Pradesh in order to avail the benefits of more generous package of the State of Gujarat

while other PAFs similarly situated may opt to remain at home and take advantage of the less liberal
package of the State of Madhya Pradesh. There is no requirement that the liberalisation of the
packages by three States should be to the same extent and at the same time, the States cannot be
faulted if the package which is offered, though not identical with each other, is more liberal than the
one envisaged in the Tribunals Award.
Dealing with the contention of the petitioners that there were large number of persons who were
living in the submergence area and were not farmers and would lose their livelihood due to loss of
the community and/or loss of the river and were not being properly rehabilitated, Mr. Harish Salve,
learned Senior Counsel contended that this averment was not true. According to him, all the families
in the 105 hilly tribal villages were agriculturists, cultivating either their own land or Government
land and all of whom would be eligible for alternative agricultural land in Gujarat. Only a small
number of non-agriculturists, mainly petty shopkeepers were found in these villages of tribal areas.
In Gujarat there were 20 such non- agriculturists families out of a total of 4600 affected families and
all of these had been re-settled as per their choice so that they could restart their business. In
Maharashtra out of 3213 affected families, not a single family was stated to fall under this category.
Amongst the affected families of Madhya Pradesh, the figure of such non-agriculturists family was
also stated to be not more than couple of 100. In our opinion it is neither possible nor necessary to
decide regarding the number of people likely to be so affected because all those who are entitled to
be rehabilitated as per the Award will be provided with benefits of the package offered and chosen.
With regard to the colony affected people whose 1380 acres of land was acquired in six villages for
the construction of a colony, most of the landholders had continued to stay in their original houses
and about 381 persons were stated to have been provided permanent employment in the project
works. At the time, the land was acquired in 1962-63, compensation was paid and in addition
thereto, the Government of Gujarat devised a special package in August, 1992 providing ex-gratia
payment upto Rs. 36000.00 to the land losers for purchase of productive assets or land for those
who had not received employment in the project.
Dealing with the contention of the petitioners that there will be 23500 canal affected families and
they should be treated at par to that of oustees in the submergence area, the respondents have
broadly submitted that there is a basic difference in the impacts of the projects in the upstream
submergence area and its impacts in the beneficiary zone of the command area. While people, who
were oustees from the submergence zone, required re-settlement and rehabilitation, on the other
hand, most of the people falling under the command area were in fact beneficiaries of the projects
and their remaining land would now get relocated with the construction of the canal leading to
greater agricultural output. We agree with this view and that is why, in the Award of the Tribunal,
the State of Gujarat was not required to give to the canal affected people the same relief which was
required to be given to the oustees of the submergence area.
Dealing with the contention of the petitioners that the oustees were not offered a chance to re-settle
in Gujarat as a community and that there was a clear requirement of village-wise communication
rehabilitation which had not been complied with, the contention of the respondents was that no
provision of Tribunals Award had been shown which caused any such obligation on the Government

of Gujarat. What the Award of the Tribunal required is re-settlement of the PAFs in Gujarat at places
where civic amenities like dispensary, schools, as already been referred to hereinabove, are
available.
Subsequent to the Tribunals Award, on the recommendation of the World Bank, the Government of
Gujarat adopted the principle of re- settlement that the oustees shall be relocated as village units,
village sections or families in accordance with the outstees preference. The oustees choice has
actively guided the re-settlement process. The requirement in the Tribunals Award was that the
Gujarat shall establish rehabilitation villages in Gujarat in the irrigation command of the Sardar
Sarovar Project on the norms mentioned for rehabilitation of the families who were willing to
migrate to Gujarat. This provision could not be interpreted to mean that the oustees families should
be resettled as a homogeneous group in a village exclusively set up for each such group. The concept
of community wise re-settlement, therefore, cannot derive support from the above quoted
stipulation. Besides, the norms referred to in the stipulation relate to provisions for civic amenities.
They vary as regards each civic amenity vis-à-vis the number of oustees families. Thus, one
panchayat ghar, one dispensary, one childrens park, one seed store and one village pond is the norm
for 500 families, one primary school (3 rooms ) for 100 families and a drinking water well with
trough and one platform for every 50 families. The number of families to which the civic amenities
were to be provided was thus not uniform and it was not possible to derive therefrom a standardised
pattern for the establishment of a site which had nexus with the number of oustees families of a
particular community or group to be resettled. These were not indicators envisaging re-settlement of
the oustees families on the basis of tribes, sub-tribes, groups or sub-groups.
While re-settlement as a group in accordance with the oustees preference was an important
principle/objective, the other objectives were that the oustees should have improved or regained the
standard of living that they were enjoying prior to their displacement and they should have been
fully integrated in the community in which they were re-settled. These objectives were easily
achievable if they were re-settled in the command area where the land was twice as productive as
the affected land and where large chunks of land were readily available. This was what the Tribunals
Award stipulated and one objective could not be seen in isolation of the other objectives.
The Master Plan, 1995 of Narmada Control Authority also pointed out that "the Bhils, who are
individualistic people building their houses away from one another, are getting socialised; they are
learning to live together". Looking to the preferences of the affected people to live as a community,
the Government of Gujarat had basically relied on the affected families decision as to where they
would like to relocate, instead of forcing them to relocate as per a fixed plan.
The underlined principle in forming the R&R policy was not merely of providing land for PAFs but
there was a conscious effort to improve the living conditions of the PAFs and to bring them into the
mainstream. If one compares the living conditions of the PAFs in their submerging villages with the
rehabilitation packages first provided by the Tribunals Award and then liberalised by the States, it is
obvious that the PAFs had gained substantially after their re-settlement. It is for this reason that in
the Action Plan of 1993 of the Government of Madhya Pradesh it was stated before this Court that
therefore, the re-settlement and rehabilitation of people whose habitat and environment makes

living difficult does not pose any problems and so the rehabilitation and re-settlement does not pose
a threat to environment. In the affidavit of Dr. Asha Singh, Additional Director (Socio & CP), NVDA,
as produced by the Government of Madhya Pradesh in respect of visit to R&R sites in Gujarat during
21st to 23rd February, 2000 for ascertaining the status relating to grievances and problems of
Madhya Pradesh PAFs resettled in Gujarat, it was, inter alia, mentioned that the PAFs had informed
that the land allotted to them is of good quality and they take the crops of Cotton, Jowar and Tuwar.
They also stated that their status has improved from the time they had come to Gujarat but they
want that water should start flowing in the canals as soon as possible and in that case they will be
able to take three crops in one year as their land is in the command area. Whereas the conditions in
the hamlets, where the tribals lived, were not good enough the rehabilitation package ensured more
basic facilities and civic amenities to the re-settled oustees. Their children would have schools and
childrens park, primary health centre would take care of their health and, of course, they would have
electricity which was not a common feature in the tribal villages.
Dealing with the contention of the petitioners that there was no provision for grazing land and fuel
wood for the PAFs, it is rightly contended by the State of Gujarat that grazing land was not
mandated or provided for in the Tribunals Award but nevertheless, the grazing land of six villages
was available for use of PAFs. It may be that the grazing land was inadequate but this problem will
be faced by the entire State of Gujarat and not making such land available for them does not in any
way violate any of the provisions of the Award.
With regard to providing irrigation facilities, most of the re-settlement of the project affected
families were provided irrigation facilities in the Sardar Sarovar Project command area or in the
command areas of other irrigation projects. In many of the out of command sites, irrigated lands
were purchased. In cases where the irrigation facilities were not functioning, the Government of
Gujarat had undertaken the work of digging tubewells in order to avoid any difficulty with regard to
irrigation in respect of those oustees who did not have adequate irrigation facilities. It was
contended that because of the delay in the construction of the project, the cut off date of 1stJanuary,
1987 for extending R&R facilities to major sons were not provided. The Tribunals Award had
provided for land for major sons as on 16.8.1978. The Government of Gujarat, however, extended
this benefit and offered rehabilitation package by fixing the cut off date of 1.1.1987 for granting
benefits to major sons. According to the Tribunals Award, the sons who had become major one year
prior to the issuance of the Notification for land acquisition were entitled to be allotted land. The
Land Acquisition Notification had been issued in 1981-82 and as per the Award, it was only those
sons who had become major one year prior to that date who would have become eligible for
allotment of land. But in order to benefit those major sons who had attained majority later, the
Government of Gujarat made a relaxation so as to cover all those who became major upto 1.1.1987.
The Government of Gujarat was under no obligation to do this and would have been quite within its
right merely to comply with the provisions of the Tribunals Award. This being so, relaxation of cut
off date so as to give extra benefit to those sons who attained age of majority at a later date, cannot
be faulted or criticised.
Dealing with the contention of the petitioners that there is a need for a review of the project and that
an independent agency should monitor the R&R of the oustees and that no construction should be

permitted to be undertaken without the clearance of such an authority, the respondents are right in
submitting that there is no warrant for such a contention. The Tribunals Award is final and binding
on the States. The machinery of Narmada Control Authority has been envisaged and constituted
under the Award itself. It is not possible to accept that Narmada Control Authority is not to be
regarded as an independent authority. Of course some of the members are Government officials but
apart from the Union of India, the other States are also represented in this Authority. The project is
being undertaken by the Government and it is for the Governmental authorities to execute the same.
With the establishment of the R&R Sub-group and constitution of the Grievances Redressal
Authorities by the States of Gujarat, Maharashtra and Madhya Pradesh, there is a system in force
which will ensure satisfactory re-settlement and rehabilitation of the oustees. There is no basis for
contending that some outside agency or National Human Rights Commission should see to the
compliance of the Tribunal Award.
MONITORING OF REHABILITATION PROGRAMME The Ministry of Water Resources,

Government of India is the Nodal Ministry for the Sardar Sarovar Project and other Union
Ministries involved are the Ministries of Environment and Forests and Social Justice and
Empowerment. As a consequence of the Tribunals Award, Narmada Control Authority was created
to co-ordinate and oversee the overall work of the project and to monitor the R&R activities
including environmental safeguard measures. The Review Committee of the Narmada Control
Authority consists of the Union Minister of Water Resources as its Chairman, the Union Ministry of
Environment and Forests and the Chief Ministers of Gujarat, Madhya Pradesh, Maharashtra and
Rajasthan as Members. This Review Committee may suo moto or on the application of any party
State or the Secretary, Ministry of Environment and Forests review any decision of the Narmada
Control Authority. In the Narmada Control Authority, Re-settlement & Rehabilitation (R&R)
Sub-group has been created for closely monitoring the R&R progress. This Sub-group is headed by
the Secretary, Government of India, Ministry of Social Justice & Empowerment and is represented
by Members/Invitees of participating States, academic institutions having expertise in R&R,
independent socio- anthropological experts and non-Governmental Organisations. The functions of
this Sub-group are as follows:
1. To monitor the progress of land acquisition in respect of submergence land of Sardar Sarovar
Project and Indira (Narmada) Sagar Project (ISP).
2. To monitor the progress of implementation of the action plan of rehabilitation of project affected
families in the affected villages of SSP and ISP in concerned states.
3. To review the R&R action plan from time to time in the light of results of the implementation.
4. To review the reports of the agencies entrusted by each of the State in respect of monitoring and
evaluation of the progress in the matter of re-settlement and rehabilitation.
5. To monitor and review implementation of re-settlement and rehabilitation programmes pari

passu with the raising of the dam height, keeping in view the clearance granted to ISP and SSP from
environmental angle by the Government of India and the Ministry of Environment and Forests.

6. To coordinate states/agencies involved in the R&R programmes of SSP and ISP.
7. To undertake any or all activities in the matter of re-settlement and rehabilitation pertaining to
SSP and ISP.
REHABILITATION COMMITTEE This Court vide order dated 9.8.1991 in B.D.Sharma Vs. Union of
India and others 1992 Suppl.(3) SCC 93 directed the formation of a Committee under the
chairmanship of the Secretary, Ministry of Social Justice & Empowerment, Government of India to
visit the submergence areas/re-settlement sites and furnish the report of development and progress
made in the matter of rehabilitation. The Rehabilitation Committee headed by the Secretary,
Government of India, Ministry of Social Justice and Empowerment and having representatives of
the three State Governments as its members had been constituted. It is the case of the Union of
India that this Committee visited regularly the various R&R sites and submergence villages in the
three States and submitted reports to this Court from time to time. By order dated 24th October,
1994, this Court in the aforesaid case of B.D.Sharma (supra) observed that all the directions issued
by the Court from time to time have been complied with and nothing more be done in the petition
and the petition was disposed off. Most of the recommendations/observations as made by this
Committee are stated to have been complied fairly by the States concerned. In addition to the above,
the officials of the Narmada Control Authority are also stated to be monitoring the progress of R&R
regularly by making field visits. The individual complaints of the PAFs are attended and brought to
the notice of the respective Governments.
GRIEVANCES REDRESSAL MECHANISM The appeal mechanism has been established in the
policy statements by all the three State Governments for the redressal of grievances of the PAFs.
According to this mechanism, if a displaced person is aggrieved by the decision of the Rehabilitation
Officers in respect of any R&R process, he may appeal to the concerned agency/officers.
Vide Resolution dated February 17, 1999, the Government of Gujarat set up a high-level authority
called Grievance Redressal Authority (GRA) before whom the oustees already re-settled and to be
re-settled in Gujarat could ventilate their grievances for redressal after their re-settlement till the
process of re-settlement and re-habilitation is fully completed. The said Grievances Redressal
Authority has Mr. Justice P.D. Desai, retired Chief Justice as its Chairman. This machinery had been
established to:
A) create an Authority before whom oustees who have re-settled in the State of Gujarat can ventilate
their grievances relating to the R&R measures taken by the State of Gujarat;
B) ensure that the oustees already settled and the oustees settled hereinafter in the R&R sites
created for re-settlement and rehabilitation of the oustees from the States of Madhya Pradesh and
Maharashtra receive all the benefits and amenities in accordance with the Award and the various
Government resolutions made from time to time;
C) ensure that Gujarat oustees re-settled in Gujarat have received all the benefits and amenities due
to them.

The Gujarat Rehabilitation Authority has installed a permanent in- house Grievances Redressal Cell
(GRC) within Sardar Sarovar Punarvasavat Agency. The Grievances Redressal Cell deals with the
grievances of the PAFs and the grievances redressal is undertaken by it in the following three ways.
i) Grievances Redressal Cell deals grievances in the regular course on the basis of applications i.e. by
holding enquiries and implementing decisions taken pursuant thereto.
ii) Grievances redressal on the spot though mechanism of Tatkal Fariyad Nivaran Samiti.
iii) Grievances redressal under the mechanism of Single Window Clearance System.
Grievances Redressal Authority has surveyed sites in which PAFs have been re-settled and has
submitted reports to this Court from time to time which disclose substantial compliance with the
terms of the Award and the rehabilitation package.
In its Fourth Report dated 15.11.1999, the Grievances Redressal Authority observed pursuant to the
grievances redressal measures taken by GRC, whose approach is positive and grievance redressal
oriented, a considerable number of grievances have been resolved by extensive land improvement
work done on agricultural land at different sites within a period of six months i.e. April-September,
1999.
The R&R Sub-group in its 20th field visit of the R&R sites in Gujarat on 12/13.1.2000 has noted as
follows:
The Committee after the visit and from interaction with the PAFs, concluded that there is vast
improvement in the conditions of PAFs at these R&R sites as compared to the grievances reported
for the same sites during previous visits by the Committee/NCA officers. Assessing the perception of
PAFs the Committee observed that the majority of PAFs are happy and joining mainstream of
countrys development.
The Grievances Redressal Cell has dealt with and decided a total of over 6500 grievances.
At the instance of Grievances Redressal Authority, an Agricultural Cell is set up in Sardar Sarovar
Punarvasavat Agency with effect from 1st July, 1999. This was done with an objective of enhancing
the productivity of agricultural land allotted to PAFs by adopting of suitable farm management
practices and in assisting in resolving land related grievances. Similarly, w.e.f. 1.5.1999, Medical
Cells have been set up in Sardar Sarovar Punarvasavat Agency for ensuring effective functioning of
medical infrastructure and providing organised system of supervising and monitoring and also for
conducting health survey-cum-medical check up activities. The Grievance Redressal Authority has
become an effective monitoring and implementing agency with regard to relief and rehabilitation of
the PAFs in Gujarat. Apart from resolving independent grievances of PAFs and enforcing the
compliance of the provisions of the Award through its exhaustive machinery and mechanism, it is
also trying to guide in respect of various other issues not covered by the provisions of the Award
such as

i) Vocational training of the oustees;
ii) Review of Narmada oustees employment opportunity rules;
iii) Issue relating to Kevadia Colony;
iv) Issue relating to tapu land;
v) Development of Kevadia as a tourist centre etc. In Maharashtra, a local committee was

constituted comprising of Additional Collector (SS), Divisional Forest Officer, Re-settlement Officer
and two representatives of the oustees nominated by the local Panchayat Samities from among the
elected members of the village panchayats in the project affected villages/taluka. This Committee is
required to examine the claims of the PAFs and give directions within a time frame and an appeal
from its decision lies to the Commissioner. In addition thereto, vide notification dated 17th April,
2000 the Government of Maharasthra has set up a Grievances Redressal Authority in lines
established by the State of Gujarat and Mr. Justice S.P. Kurdukar, retired Judge of this Court, has
been appointed as its Chairman. This Authority is expected to be analogous to the Grievances
Redressal Authority of Gujarat.
In Madhya Pradesh, the grievances of the PAFs have first to be made by a claim which will be
verified by the patwari and then scrutinised by the Tehsildar. PAFs may file an appeal against the
decision of R&R official before the District Collector who is required to dispose off the same within a
period of three months. In the case of Madhya Pradesh also by Notification dated 30th March, 2000
the Government of Madhya Pradesh has constituted a Grievances Redressal Authority similar to the
one in Gujarat with Mr. Justice Sohni, retired Chief Justice of Patna High Court as its Chairman.
INDEPENDENT MONITORING & EVALUATION AGENCIES The Monitoring and Evaluation of

the rehabilitation programme is also being carried out by the independent socio-anthropological
agencies appointed by the State Governments of Maharashtra, Madhya Pradesh and Gujarat as well
as Narmada Control Authority. These agencies, which are professional and academic institutes,
conduct surveys and in-depth studies relating to PAFs in the submergence and rehabilitation
villages. The main object of the monitoring is oriented towards enabling the management to assess
the progress, identify the difficulties, ascertaining problem areas, provide early warning and thus
call for corrections needed immediately.
The Center for Social Studies, Surat is the monitoring agency for the Government of Gujarat. This
Institute has prepared 24 six monthly progress reports in relation to the re-settlement of PAFs of
submergence villages of Gujarat. Similarly for the project affected families of Madhya
Pradesh/Maharashtra who have re-settled in Gujarat, the Government of Gujarat has appointed the
Gujarat Institute of Development Research, Ahmedabad as the independent Monitoring and
Evaluation Agency for monitoring R&R programmes.
In Madhya Pradesh the monitoring and evaluation had been carried out by Dr. H.S.Gaur University,
Sagar and the same has been dis-engaged now and a new agency is being appointed. The findings of

Dr. H.S. Guar University, Sagar indicated that displaced families in Madhya Pradesh are, by and
large, happy with the new re-settlement in Gujarat and one of the main reason behind their
happiness was that the shifting from hamlets had changed their socio-economic status.
In Maharashtra the monitoring and evaluation was earlier being done by the Tata Institute of Social
Sciences, Mumbai. This agency had reported that overall literacy rate among project affected
persons above six years of age is about 97%, while illiteracy in submergence villages was rampant.
Further more the report showed that in the submergence villages, the tribals mostly relied on
traditional healers for their ailments. Now the current scenario is that at R&R sites, health centres
and sub-centres have been established.
It is thus seen that there is in place an elaborate network of authorities which have to see to the
execution and implementation of the project in terms of the Award. All aspects of the project are
supervised and there is a Review Committee which can review any decision of the Narmada Control
Authority and each of the three rehabilitating States have set up an independent Grievances
Redressal Authority to take care that the relief and rehabilitation measures are properly
implemented and the grievances, if any, of the oustees are redressed.
On 9th May, 2000, this Court directed the State Governments of Gujarat, Madhya Pradesh and
Maharashtra to file affidavits disclosing the latest status of re-settlement and rehabilitation work for
the existing as well as prospective oustees likely to be affected by raising the height of the dam.
Pursuant to the said direction affidavits on behalf of the three States have been filed and, in
response thereto, the petitioners have also filed an affidavit.
On behalf of the State of Gujarat the affidavit of Sh. V.K. Babbar, Commissioner (Rehabilitation)
and Chief Executive Officer, Sardar Sarovar Punavasvat Agency [SSPA] has been filed, according to
which at FRL 138.68 m. the status with regard to PAFs to be re-settled is stated to be as follows:
State Total number of PAFs resettled/allotted agricultural land in Gujarat Balance PAFs to be
resettled in Gujarat Gujarat Maharashtra Madhya Pradesh 10450 Total 10765 It is the case of State
of Gujarat that 8565 PAFs have been accommodated in 182 R&R sites fully equipped with the
requisite civic amenities as provided by the Tribunals award. The agricultural land allotted to these
PAFs is 16973 hectares.
Dealing specifically with the status of PAFs at RL 90 mtr., 95 mtr. and 110 mtr. it is averred in the
said affidavit that all the PAFs of Gujarat at RL 90 mtr. have been re-settled and the balance PAFs of
Madhya Pradesh and Maharashtra affected at RL 90 mtr. have already been offered R&R package in
Gujarat. The process of re-settlement is continuing and reliance is placed on the observation of the
GRA which has stated in its Fourth Report dated 15th November, 1999 that There is substantial
compliance of the Re-settlement and Rehabilitation measures as mandated by the Final Report of
NWDT, including provision of civic amenities, and also of all the inter-linked provisions of the
Government of Gujarat and that, therefore, PAFs from the States of Madhya Pradesh and
Maharashtra affected upto the height of RL 90 mtr. can be accommodated as per their choice at
these selected 35 sites in Gujarat.

With respect to the PAFs affected at RL 95 mtr. the affidavit states that the PAFs of Gujarat have
already been settled and while the affected PAFs of Madhya Pradesh and Maharashtra have been
offered R&R package in Gujarat in January 1999, September 1999 and January 2000. The RL 95
mtr. Action Plan for these PAFs has also been prepared by the Government of Gujarat in
consultation with the Governments of Madhya Pradesh and Maharashtra and has been sent to the
NCA. The case of the State of Gujarat, therefore, is that all the PAFs wanting to be re-settled in
Gujarat have been offered the package but consent of all the PAFs has not so far been received but
the Government of Gujarat has sufficient land readily available which can be allotted to the said
PAFs as soon as they come and select the same.
With regard to the status of PAFs at RL 110 mtr. all the PAFs of Gujarat have been re-settled and
2761 PAFs [2642 of Madhya Pradesh and 119 of Maharashtra] remain to be re-settled in Gujarat and
R&R package will be offered to them before November 2000. The land which is required to be
allotted to them is stated to be around 6074 hectares and the State of Gujarat has in its possession
8146 hectares. The civic amenities in 40 new R&R sites are scheduled to be completed by December
2000 and these sites would serve to accommodate not only PAFs between RL 95 mtr. and RL 110
mtr. but would also serve to accommodate PAFs from submergence villages which would be getting
affected at levels above RL 110 mtr. The Action Plan giving the village-wise details is said to have
been sent to NCA in June 2000 for its approval.
According to the said affidavit the balance number of PAFs remaining to be re-settled at Gujarat at
FRL 138.68 mtr. is 10765. Taking into account that an additional area of 10% towards house plot
and common civic amenities would be required in addition to the allotment of minimum 2 hectares
of agricultural land, the total land requirement per PAF would be approximately 2.2 hectares. For
planning purposes in respect of 10765 PAFs the land requirement would be about 23700 hectares.
As against this requirement the status of land, as per the said affidavit, under different categories
with the Government of Gujarat is stated to be as under:
Sr. No. PARTICULARS Land [In ha]
1. Land identified (offers received in respect of private land and Government land) 15716 ha.
2. Land available (private land for which price is approved by Expert Committee and offer/counter
offer conveyed and acceptance of land holder obtained.
480 ha.
3. Land in possession of SSPA/GOG in 12 districts 8416 ha.
Total 24612 ha.
It is averred that between March and 21st June 2000 the land in possession as well as the land
identified has increased considerably.

It has also been explained in the said affidavit that the Government of Gujarat has a well-established
practice of procuring land for R&R at realistic market prices for willing sellers. Officers hold
discussions with prospective sellers, verify the suitability of land and after the prices is settled the
same is procured through legal process of Land Acquisition Act and consent awards are passed so
that the PAPs are assured of undisputed legal title free from all encumbrances. This process of
negotiated purchase has been streamlined. At the instance of the GRA, a retired judge of the High
Court is now appointed as Chairman of the Expert Committee with retired senior Government
Secretaries as its members. This Expert Committee oversees the exercise of purchase of suitable
land at the market price. At the instance of the GRA, PAPs are being issued Sanads for the land
allotted to them which will ensure provision of a proper legal document in their favour.
Dealing with the term of the Award to the effect that Gujarat shall acquire and make available a year
in advance of the submergence before each successive stage, land and house sites for rehabilitation
of the oustees families from Madhya Pradesh and Maharashtra who are willing to migrate to
Gujarat, the affidavit states that the Gujarat Government has already identified sufficient land for
accommodating the balance PAFs remaining to be re-settled in Gujarat at FRL 138.68 mtr. In
respect of PAFs upto RL 110 mtr. Gujarat has sufficient land available to meet the R&R
requirements but for the PAFs above RL 110 mtr. suitable land has already been identified and the
same would be acquired and made available one year in advance of the submergence before each
successive stage. The affidavit gives reason as to why it is not advisable for the State, at this stage, to
acquire the total requirement of land for FRL in one go. What is stated in the affidavit is as follows:
i. Since at present GOG has sufficient land to meet R&R requirement to accommodate PAFs upto RL
110 m, it would not be necessary to acquire further land immediately, especially when the additional
land would be required only after the R&R Sub-group and Environment Sub-group give approval for
RL 95 m. to RL 110 m. after examining the preparedness at different stages. This would ensure that
public money is not unnecessarily blocked for a long period.
ii. By acquiring land much before it would be required, problems of illegal trespass are likely to
arise. iii. The excess land would, by and large, remain fallow and no agricultural production would
take place.
iv. If the land remains fallow for long the overall productivity of the land would be adversely
affected. v. All the time of allotment, the State Government would again have to spend a sizeable
amount to remove weeds, bushes, small trees etc. vi. The State Government would have to incur a
sizeable amount to prevent tampering with the boundary marks, prevent neighbouring farmers
removing the top soil or from diverting natural drains passing through their fields towards the land
purchased for R&R etc. The affidavit also gives facts and figures showing that all requisite civic
amenities have been developed and made available at the R&R sites. Some of the salient features
which are highlighted in this behalf are as under:
? A three-room primary school is provided in all MP/MH sites irrespective of the number of families
resettled. ? A dispensary with examination room, medical equipment, medicines is provided in all
MP/MH sites irrespective of the number of resettled families.

? 3439 PAFs (86%) out of the total MP/MH PAFs resettled in Gujarat have availed of the Rs.45,000
financial assistance and built pucca core houses.
? Overhead tanks for drinking water are provided in large R&R sites.
? At the instance of GRA, toilets are being provided in the houses of PAFs with the help of NGOs.
The total cost incurred so far by the Government of Gujarat in providing the land and civic
amenities upto May 2000 is stated to be 194 crores. The Grievances Redressal Cell is stated to have
redressed large number of grievances of the PAFs whether they were related to land, grant of civic
amenities or others. The salient features of working of the Grievance Redressal Cell is stated to be as
follows: ? At present 2 senior IAS officers with supporting staff are working exclusively for redressal
of grievances. ? A reasoned reply is given to the applicants. The applicant is also informed that if he
is aggrieved with the decision he may prefer an appeal to GRA within thirty days.
? The Single Window Clearance Systems main objective is to proactively resolve grievances and to
avoid delays in inter-departmental co-ordination.
? Tatkal Fariyad Nivaran Samitis are held in the R&R sites to resolve grievance of the PAFs in an
open forum.
? The PAFs are being involved at every stage of grievance redressal. The works have been carried out
in most cases by the PAFs.
? The Agriculture Officers of the Agricultural Cell are actively helping, guiding the PAFs in their
agricultural operations and upgrading their skills.
With a view to effectively rehabilitate and assimilate the PAPs Vasahat Samitis have been
constituted in 165 R&R sites, consisting of 5 PAPs, one of whom is a female. This ensures the
participation of the PAPs in the process of development and these Samitis are vested with the
responsibility to sort out minor problems. With a view to ensure more effective participation in
Panchayat affairs and better integration of PAPs an Order under Section 98 of the Gujarat
Panchayats Act, 1993 has been issued by the Government of Gujarat providing that there shall be
upto two invitees from amongst the PAPs depending upon the number of PAPs at the sites in the
village Panchayat within whose jurisdiction the R&R are situated. Pursuant to this 196 PAPs have
been inducted as invitees to then Village Panchayats. The salient features of the rehabilitation
programme of the PAPs are as follows:
? PAFs are given productive assets in kind (7000/PAFs) to purchase bullocks, bullock carts, oil
engines etc. ? PAFs are given subsistence allowance (Rs.4500/PAF) in cash to meet contingency
needs in the initial period. ? Vocational training is provided to PAFs for improving their income
levels, priority being given to those dependents who are not entitled to be declared as PAFs on their
own rights. Tool kits are supplied either free or with 50% subsidy.

? NGOs are actively involved in all the rehabilitation activities such as conducting training classes. ?
PAFs are being covered by the ongoing developmental schemes of the Government (DRDA, Tribal
Sub Plan etc.) ? An Extension (Agriculture) officers has been appointed for approximately every 150
families to guide them in agriculture operation and assist them in day to day problems (getting
ration cards, khedut khatavahis etc.) ? In recent years focus is on empowering the PAFs and making
them self dependent.
Medical cell has been set up for providing services and treatment to PAPs free of cost. The cell is
headed by Deputy Director (Medical) and is having a nucleus of medical experts consisting of a
physician, a pediatrician, a gynecologist, 21 MBBS doctors, pharmacists etc. The salient features of
the medical help programme for the benefit of PAPs is stated to be as follows:
? The Medical Officers and paramedic staff are making house-to-house visits to motivate the PAPs
to come forward to avail of the medical services.
? In all dispensaries, a full time multipurpose health worker (female) is available.
? Multi-specialization diagnostic/treatment camps are organised fortnightly, where advance

investigations are diagnostic facilities like ECG, X-ray ultrasound are available.
? Patients requiring further services are brought to Government hospitals or any other specialty
hospital and necessary treatment given free of cost.
? GOG has placed an order for a mobile medical hospital equipped with diagnostic and treatment
equipments. ? A comprehensive health survey and medical check up covering 29423 PAPs has been
completed. A special record system of family health folder and health profile of each PAP is
prepared.
? Nutrition supplements are given to children (upto 6 years), expectant and lactating mothers
through the Integrated Child Development Scheme (ICDS).
? Special food supplement in the form of Hyderabad Mix is given to malnourished children and
vulnerable target groups.
? School going children are covered under the Mid-Day Meal Scheme.
? Under TB Control, all chest symptomatic persons are screened by special examinations like
sputum microscopy, X-ray, blood tests and persons found positive for TB are given domiciliary
treatment under direct observation of doctors or paramedics. In 77 cases, treatment is completed
and patients are cured.
? Under preventive health care, health education material is distributed and Health and Cleanliness
Shibirs are organized.

? A special survey covering physically handicapped and mentally retarded persons has been
organized and social welfare benefits given.
? Other National Health Programmes (maternal child health, immunization, school health check up,
family welfare etc.) are regularly conducted.
An Agricultural Cell has been set up in the SSPA which assists the Grievances Redressal Machinery
in resolving the problem relating to the agricultural land. The salient features of this cell are as
follows:
? The Agriculture Cell is involved in purchasing land, supervision of land improvement works and
processing land related grievances of the PAFs.
? Agriculture training classes are organized for PAFs in the training institutes of the State
Government.
? Assistance is given for availing crop-loan credit from banks and extension education is imparted in
matters of marketing, cropping pattern, use of improved seeds, insecticides and latest equipments.
? Afforestation was carried out in 33 R&R sites during 1999- 2000 by planting 3500 saplings which
are protected by bamboo tree-guards. Plantation is done along the roadside, common plots, school
premises etc. In the remaining sites plantation work is undertaken by NGOs.
At the instance of GRA an educational cell has been set up in the SSPA. The main function of which
is to improve the quality of education imparted and to improve the school enrolment. The salient
features of this cell are as under:
? School enrolment which was 4110 in 1998-99, increased to 4670 in 1999-2000. Out of the 4670
students enrolled, 2126 were girls (46.3%).
? The number of schools is 170 and the number of teachers in 384. In the last academic year, 66
schools were upgraded by increasing the number of classes.
? SSPA is regularly sending the teachers for in-service training. So far 120 teachers have been
imparted training. ? Every year during the period of June to August, a special drive is taken to
increase the school enrolment. ? In the current year 150 adult education classes have been started in
the R&R sites with the help of NGOs.
? An advisory committee has been created to make recommendations on how to improve the
education being imparted. Members include faculty of MS University, officers of Education
Department, Principal of Teacher Training Centre.
It is further averred in this affidavit that at the instance of GRA a large number of measures have
been taken to improve the organisational structure of SSPA so as to effectively meet the challenge of

R&R and make the R&R staff accountable. The salient features of this are stated to be as follows:
? A strategic policy decision has been taken to create three separate divisions in SSPA for
Rehabilitation, Re- settlement and Planning. Each division is in charge of a senior level officer of the
rank of Additional/Joint Commissioner.
? Staff strength in SSPA has been considerably augmented especially at the field level.
? To review the structural and functional aspects of SSPA services of a management consultancy
agency (M/s TCS) has been engaged and draft report has been received and is being examined.
? A demographic survey is to be conducted to comprehensively document information regarding the

PAPs with special reference to their family composition, marriage, births, deaths, life expectancy,
literacy, customs, culture, social integration etc. ? Staff is being trained to sensitize them especially
with regard to rehabilitation and second-generation issues. Senior level officers have been sent for
R&R training at Administrative Staff College of India, Hyderabad.
From the aforesaid affidavit it is more than clear that the GRA, of which Mr. Justice P.D. Desai, is
the Chairman, has seen to the establishment of different cells and have taken innovative steps with a
view to making R&R effective and meaningful. The steps which are being taken and the assistance
given is much more than what is required under the Tribunals Award. There now seems to be a
commitment on the part of the Government of Gujarat to see that there is no laxity in the R&R of the
PAPs. It appears that the State of Gujarat has realised that without effective R&R facilities no further
construction of the dam would be permitted by the NCA and under the guidance and directions of
the GRA meaningful steps are being undertaken in this behalf. In this connection we may take note
of the fact that along with the said affidavit Sh. V.K. Babbar, again under the directions of the GRA,
has given an undertaking to this Court, which reads as follows:-
1. As per this undertaking, inter alia, in respect of scattered pieces or parcels of lands in possession
of the SSPA for R&R which do not add upto a contiguous block of 7 hectares by themselves or in
conjunction with other lands steps will be taken to purchase or acquire contiguous lands so that the
said small pieces of land become a part of continuous block of 6 hectares or more. This exercise will
be undertaken and completed on or before 31st December, 2000. In case it is not possible to have a
contiguous block of minimum of 6 hectares further directions will be sought from GRA or such piece
or parcel of land will be put to use for other public purposes relating to R&R but which may not have
been provided for in the NWDT award.
2. Henceforth, the land which is acquired or purchased for R&R purposes shall be contiguous to
each other so as to constitute a compact block of 6 hectares.
3. Henceforth land to be purchased for R&R will be within a radius of 3 kms. from an existing or
proposed new site and if there is a departure from this policy prior approval of the GRA will be
obtained.

4. Demarcation of boundary of 5211 hectares of land whose survey has been undertaken by the GRA
and carving out individual plots of 2 hectares for allotment to PAFs will be undertaken and
completed on or before 31st December, 2000.
5. The other undertakings relate to soil testing and/or ensuring that suitable land is made available
to the PAFs after the quality of land is cleared by the agriculture experts of the Gujarat Agriculture
University. With regard to the lands in possession of the SSPA which are low lying and vulnerable to
water logging during monsoon, an undertaking has been given that the land has been deleted from
the inventory of lands available for R&R unless such lands are examined by the Agricultural Cell of
SSPA and it is certified that the access to these lands is clear and unimpeded and that they are
suitable for R&R. Compliance report in this regard is to be submitted to the GRA on or before 31st
December, 2000.
In addition to the aforesaid undertaking of Sh. V.K. Babbar, undertakings of the Collectors of Khedr,
Vadodara, Ahmedabad, Narmada, Panchmahal and Bharuch Districts have also been filed. Apart
from reiterating what is contained in the undertaking of Sh. V.K. Babbar, in these undertakings of
the Collectors, it is stated that necessary mutation entries regarding entering the name of
SSPA/SSNNL in the village records of right in respect of the land in possession for R&R or PAFs
likely to be re-settled in Gujarat have been made but the certification of these entries will be
completed and the matter reported to the GRA before 31st August, 2000. If this is not done the land
is to be deleted from the inventory of land available for R&R. Necessary mutation entries in the
village records or rights regarding removal of encumbrances of original landholders shall also be
completed by that date.
From what is noticed hereinabove, this Court is satisfied that more than adequate steps are being
taken by the State of Gujarat not only to implement the Award of the Tribunal to the extent it grants
relief to the oustees but the effort is to substantially improve thereon and, therefore, continued
monitoring by this Court may not be necessary.
On behalf of the State of Madhya Pradesh, in response to this Courts order dated 9th May, 2000, an
affidavit of Sh. H.N. Tiwari, Director (TW), Narmada Valley Development Authority has been filed.
It is stated therein that with a view to arrange re-settlement of the PAFs to be affected at different
levels detailed instructions to the Field Officers of the submergence area were issued by Sh. Tiwari
vide letter dated 20th May, 2000 in respect of all the aspects of resettlement of the PAFs. This is
related to identification of land, processing of land acquisition cases and passing of the Award,
taking of PAFs to Gujarat for selection of land, allotment of land to the PAFs who decide to remain
in Madhya Pradesh and development of sites. There are 92 sites for re-settlement of the PAFs which
are required to be established and out of these 18 are stated to be fully developed, development in 23
sites is in progress, 18 sites are such where location has been determined and land identified but
development work has not started and 33 sites are such where location of land for the development
is to be decided by the task force constituted for this purpose.
Dealing specifically with the states of PAFs to be affected at different levels this affidavit, inter alia,
states that with regard to PAFs to be affected at EL 85 mtr. those of whom who have opted to go to

Gujarat land has been offered to them by the Government of Gujarat, those PAFs who have changed
their mind and now want to remain in Madhya Pradesh land is being shown to them in Madhya
Pradesh.
It has not been categorically stated whether the PAFs who are so affected have been properly
resettled or not. On the contrary, it is stated that no Awards in land acquisition cases have been
passed in respect of six villages and it is only after the Awards are passed that house plots will be
allotted and compensation paid. The provision for financial assistance for purchase of productive
assets will be released when the PAFs shift and start construction of the houses. The reason for not
making the payment in advance rightly is that if the grants are paid to the oustees before they shift
they may possibly squander the grant and the State Government may be required to pay again to
establish them on some self employment venture. For the re-settlement of PAFs in Madhya Pradesh
out of ten relocation sites mentioned in the affidavit only five have been fully developed. It is also
stated that 163 PAFs are resisting from shifting to Gujarat under the influence of anti dam activists,
though they have been given notices containing offer of the land and house plots by the Government
of Gujarat. In addition thereto 323 PAFs who were earlier resisting have now been persuaded and
arrangements for selection of land for them in Gujarat has been initiated.
With regard to the R&R status of PAFs to be affected at EL 95 mtr. it is, inter alia, stated that those
losing 25 per cent of their holdings are entitled to be allotted cultivable land and notices were given
to them to identify the land which can be allotted. In the said notice it was stated that the
development process will be undertaken with regard to the said land only after it is selected by the
PAFs. There is also a mention in the affidavit filed in the name of Narmada Bachao Andolan, the
petitioner herein, not allowing the State Government to conduct survey for demarcation of the
submergence area and identification of the PAFs to be affected at EL 132.86 mtrs. [436 ft.]. Six out
of twenty five relocation sites required to be developed have been fully developed.
Affidavit on behalf of the State of Madhya Pradesh draws a picture of rehabilitation which is quite
different from that of Gujarat. There seems to be no hurry in taking steps to effectively rehabilitate
the Madhya Pradesh PAFs in their home State. It is indeed surprising that even awards in respect of
six villages out of 33 villages likely to be affected at 90 mtr. dam height have not been passed. The
impression which one gets after reading the affidavit on behalf of the State of Madhya Pradesh
clearly is that the main effort of the said State is to try and convince the PAFs that they should go to
Gujarat whose rehabilitation package and effort is far superior to that of the State of Madhya
Pradesh. It is, therefore, not surprising that vast majority of the PAFs of Madhya Pradesh have
opted to be re-settled in Gujarat but that does not by itself absolve the State of Madhya Pradesh of
its responsibility to take prompt steps so as to comply at least with the provisions of the Tribunals
Award relating to relief and rehabilitation. The State of Madhya Pradesh has been contending that
the height of the dam should be lowered to 436 ft. so that lesser number of people are dislocated but
we find that even with regard to the rehabilitation of the oustees at 436 ft. the R&R programme of
the State is no where implemented. The State is under an obligation to effectively resettle those
oustees whose choice is not to go to Gujarat. Appropriate directions may, therefore, have to be given
to ensure that the speed in implementing the R&R picks up. Even the interim report of Mr. Justice
Soni, the GRA for the State of Madhya Pradesh, indicates lack of commitment on the States part in

looking to the welfare of its own people who are going to be under the threat of ouster and who have
to be rehabilitated. Perhaps the lack of urgency could be because of lack of resources, but then the
rehabilitation even in the Madhya Pradesh is to be at the expense of Gujarat. A more likely reason
could be that, apart from electricity, the main benefit of the construction of the dam is to be of
Gujarat and to a lesser extent to Maharashtra and Rajasthan. In a federal set up like India whenever
any such Inter-State project is approved and work undertaken the States involved have a
responsibility to co-operate with each other. There is a method of settling the differences which may
arise amongst there like, for example, in the case of Inter-State water dispute the reference of the
same to a Tribunal. The Award of the Tribunal being binding the States concerned are duty bound to
comply with the terms thereof.
On behalf of the State of Maharashtra affidavit in response to this Courts order dated 9th May,
2000, the position regarding the availability of land for distribution to the PAFs was stated to be as
follows:
i] Total land made available by the

Forest Department 4191.86 Hectares
ii] Land which could not be

allotted at present to PAF
[a] Gaothan land [used residential purposes} 209.60 hectares [b] land occupied by river/
nallah/hills 795.62 hectares [c] Land under encroachment by third parties 434.13 hectares
Therefore, the net land available At present for allotment was 4191.86 (-) 1439.35 2752.51 hectares
Total area of land allotted To 1600 PAFs 2434.01 hectares Remaining cultivable land Available with
the State 2752 2434.01 318.50 hectares It is further stated in this affidavit that out of 795.62
hectares of forest land which was reported to be uncultivable the State has undertaken a survey for
ascertaining whether any of these lands can be made available for cultivation and distribution by
resorting to measures like bunding, terracing and levelling. It is estimated that 30 to 40 hectares of
land would become available. In addition thereto the affidavit states that the Government of
Maharashtra has decided to purchase private land in nearby villages for re- settlement of PAFs and
further that GRA has been established and Justice S.P. Kurdukar, a retired judge of this Court has
been appointed as its Chairman. It is categorically stated in this affidavit that the State Government
would be in a position to make these land available to all the concerned project affected families.
CONCLUSION Water is one element without which life cannot sustain. Therefore, it is to be
regarded as one of the primary duties of the Government to ensure availability of water to the
people.
There are only three sources of water. They are rainfall, ground water or from river. A river itself
gets water either by the melting of the snow or from the rainfall while the ground water is again
dependent on the rainfall or from the river. In most parts of India, rainfall takes place during a
period of about 3 to 4 months known as the Monsoon Season. Even at the time when the monsoon is

regarded as normal, the amount of rainfall varies from region to region. For example, North-Eastern
States of India receive much more rainfall than some of other States like Punjab, Haryana or
Rajasthan. Dams are constructed not only to provide water whenever required but they also help in
flood control by storing extra water. Excess of rainfall causes floods while deficiency thereof results
in drought. Studies show that 75% of the monsoon water drains into the sea after flooding a large
land area due to absence of the storage capacity. According to a study conducted by the Central
Water Commission in 1998, surface water resources were estimated at 1869 cu km and rechargeable
groundwater resources at 432 cu km. It is believed that only 690 cu km of surface water resources
(out of 1869 cu km) can be utilised by storage. At present the storage capacity of all dams in India is
174 cu km. which is incidentally less than the capacity of Kariba Dam in Zambia/Zimbabwe (180.6
cu km) and only 12 cu km more than Aswan High Dam of Egypt.
While the reservoir of a dam stores water and is usually situated at a place where it can receive a lot
of rainfall, the canals take water from this reservoir to distant places where water is a scare
commodity. It was, of course, contended on behalf of the petitioner that if the practice of water
harvesting is resorted to and some check dams are constructed, there would really be no need for a
high dam like Sardar Sarovar. The answer to this given by the respondent is that water harvesting
serves a useful purpose but it cannot ensure adequate supply to meet all the requirements of the
people. Water harvesting means to collect, preserve and use the rain water. The problem of the area
in question is that there is deficient rainfall and small scale water harvesting projects may not be
adequate. During the non rainy days, one of the essential ingredients of water harvesting is the
storing of water. It will not be wrong to say that the biggest dams to the smallest percolating tanks
meant to tap the rain water are nothing but water harvesting structures to function by receiving
water from the common rainfall.
Dam serves a number of purposes. It stores water, generates electricity and releases water
throughout the year and at times of scarcity. Its storage capacity is meant to control floods and the
canal system which emanates therefrom is meant to convey and provide water for drinking,
agriculture and industry. In addition thereto, it can also be a source of generating hydro-power.
Dam has, therefore, necessarily to be regarded as an infrastructural project.
There are three stages with regard to the undertaking of an infrastructural project. One is
conception or planning, second is decision to undertake the project and the third is the execution of
the project. The conception and the decision to undertake a project is to be regarded as a policy
decision. While there is always a need for such projects not being unduly delayed, it is at the same
time expected that as thorough a study as is possible will be undertaken before a decision is taken to
start a project. Once such a considered decision is taken, the proper execution of the same should be
taken expeditiously. It is for the Government to decide how to do its job. When it has put a system in
place for the execution of a project and such a system cannot be said to be arbitrary, then the only
role which a Court may have to play is to see that the system works in the manner it was envisaged.
A project may be executed departmentally or by an outside agency. The choice has to be of the
Government. When it undertakes the execution itself, with or without the help of another
organisation, it will be expected to undertake the exercise according to some procedure or

principles. The NCA was constituted to give effect to the Award, various sub-groups have been
established under the NCA and to look after the grievances of the resettled oustees and each State
has set up a Grievance Redressal Machinery. Over and above the NCA is the Review Committee.
There is no reason now to assume that these authorities will not function properly. In our opinion
the Court should have no role to play.
It is now well-settled that the courts, in the exercise of their jurisdiction, will not transgress into the
field of policy decision. Whether to have an infrastructural project or not and what is the type of
project to be undertaken and how it has to be executed, are part of policy making process and the
Courts are ill equipped to adjudicate on a policy decision so undertaken. The Court, no doubt, has a
duty to see that in the undertaking of a decision, no law is violated and peoples fundamental rights
are not transgressed upon except to the extent permissible under the Constitution. Even then any
challenge to such a policy decision must be before the execution of the project is undertaken. Any
delay in the execution of the project means over run in costs and the decision to undertake a project,
if challenged after its execution has commenced, should be thrown out at the very threshold on the
ground of latches if the petitioner had the knowledge of such a decision and could have approached
the Court at that time. Just because a petition is termed as a PIL does not mean that ordinary
principles applicable to litigation will not apply. Latches is one of them.
Public Interest Litigation [PIL] was an innovation essentially to safeguard and protect the human
rights of those people who were unable to protect themselves. With the passage of time the PIL
jurisdiction has been ballooning so as to encompass within its ambit subjects such as probity in
public life, granting of largess in the form of licences, protecting environment and the like. But the
balloon should not be inflated so much that it bursts. Public Interest Litigation should not be
allowed to degenerate to becoming Publicity Interest Litigation or Private Inquisitiveness Litigation.
While exercising jurisdiction in PIL cases Court has not forsaken its duty and role as a Court of law
dispensing justice in accordance with law. It is only where there has been a failure on the part of any
authority in acting according to law or in non-action or acting in violation of the law that the Court
has stepped in. No directions are issued which are in conflict with any legal provisions. Directions
have, in appropriate cases, been given where the law is silent and inaction would result in violation
of the Fundamental Rights or other Legal provisions.
While protecting the rights of the people from being violated in any manner utmost care has to be
taken that the Court does not transgress its jurisdiction. There is in our Constitutional frame-work a
fairly clear demarcation of powers. The Court has come down heavily whenever the executive has
sought to impinge upon the Courts jurisdiction.
At the same time, in exercise of its enormous power the Court should not be called upon or
undertake governmental duties or functions. The Courts cannot run the Government nor the
administration indulge in abuse or non-use of power and get away with it. The essence of judicial
review is a constitutional fundamental. The role of the higher judiciary under the constitution casts
on it a great obligation as the sentinel to defend the values of the constitution and rights of Indians.
The courts must, therefore, act within their judicially permissible limitations to uphold the rule of

law and harness their power in public interest. It is precisely for this reason that it has been
consistently held by this Court that in matters of policy the Court will not interfere. When there is a
valid law requiring the Government to act in a particular manner the Court ought not to, without
striking down the law, give any direction which is not in accordance with law. In other words the
Court itself is not above the law.
In respect of public projects and policies which are initiated by the Government the Courts should
not become an approval authority. Normally such decisions are taken by the Government after due
care and consideration. In a democracy welfare of the people at large, and not merely of a small
section of the society, has to be the concern of a responsible Government. If a considered policy
decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in
Public Interest to require the Court to go into and investigate those areas which are the function of
the executive. For any project which is approved after due deliberation the Court should refrain
from being asked to review the decision just because a petitioner in filing a PIL alleges that such a
decision should not have been taken because an opposite view against the undertaking of the
project, which view may have been considered by the Government, is possible. When two or more
options or views are possible and after considering them the Government takes a policy decision it is
then not the function of the Court to go into the matter afresh and, in a way, sit in appeal over such a
policy decision.
What the petitioner wants the Court to do in this case is precisely that. The facts enumerated
hereinabove clearly indicate that the Central Government had taken a decision to construct the Dam
as that was the only solution available to it for providing water to water scare areas. It was known at
that time that people will be displaced and will have to be rehabilitated. There is no material to
enable this Court to come to the conclusion that the decision was mala fide. A hard decision need
not necessarily be a bad decision.
Furthermore environment concern has not only to be of the area which is going to be submerged
and its surrounding area. The impact on environment should be seen in relation to the project as a
whole. While an area of land will submerge but the construction of the Dam will result in multifold
improvement in the environment of the areas where the canal waters will reach. Apart from bringing
drinking water within easy reach the supply of water to Rajasthan will also help in checking the
advancement of the Thar Desert. Human habitation will increase there which, in turn, will help in
protecting the so far porous border with Pakistan.
While considering Gujarats demand for water, the Government had reports that with the
construction of a high dam on the river Narmada, water could not only be taken to the scarcity areas
of Northern Gujarat, Saurashtra and parts of Kutch but some water could also be supplied to
Rajasthan.
Conflicting rights had to be considered. If for one set of people namely those of Gujarat, there was
only one solution, namely, construction of a dam, the same would have an adverse effect on another
set of people whose houses and agricultural land would be submerged in water. It is because of this
conflicting interest that considerable time was taken before the project was finally cleared in 1987.

Perhaps the need for giving the green signal was that while for the people of Gujarat, there was no
other solution but to provide them with water from Narmada, the hardships of oustees from
Madhya Pradesh could be mitigated by providing them with alternative lands, sites and
compensation. In governance of the State, such decisions have to be taken where there are
conflicting interests. When a decision is taken by the Government after due consideration and full
application of mind, the Court is not to sit in appeal over such decision.
` Since long the people of India have been deriving the benefits of the river valley projects. At the
time of independence, food-grain was being imported into India but with the passage of time and
the construction of more dams, the position has been reversed. The large-scale river valley projects
per se all over the country have made India more than self- sufficient in food. Famines which used to
occur have now become a thing of the past. Considering the benefits which have been reaped by the
people all over India with the construction of the dams, the Government cannot be faulted with
deciding to construct the high dam on the river Narmada with a view to provide water not only to
the scarcity areas of Gujarat but also to the small areas of the State of Rajasthan where the shortage
of water has been there since the time immemorial.
In the case of projects of national importance where Union of India and/or more than one State(s)
are involved and the project would benefit a large section of the society and there is evidence to
show that the said project had been contemplated and considered over a period of time at the
highest level of the States and the Union of India and more so when the project is evaluated and
approval granted by the Planning Commission, then there should be no occasion for any Court
carrying out any review of the same or directing its review by any outside or independent agency or
body. In a democratic set up, it is for the elected Government to decide what project should be
undertaken for the benefit of the people. Once such a decision had been taken that unless and until
it can be proved or shown that there is a blatant illegality in the undertaking of the project or in its
execution, the Court ought not to interfere with the execution of the project.
Displacement of people living on the proposed project sites and the areas to be submerged is an
important issue. Most of the hydrology projects are located in remote and in-accessible areas, where
local population is, like in the present case, either illiterate or having marginal means of
employment and the per capita income of the families is low. It is a fact that people are displaced by
projects from their ancestral homes. Displacement of these people would undoubtedly disconnect
them from their past, culture, custom and traditions, but then it becomes necessary to harvest a
river for larger good. A natural river is not only meant for the people close by but it should be for the
benefit of those who can make use of it, being away from it or near by. Realising the fact that
displacement of these people would disconnect them from their past, culture, custom and traditions,
the moment any village is earmarked for take over for dam or any other developmental activity, the
project implementing authorities have to implement R&R programmes. The R&R plans are required
to be specially drafted and implemented to mitigate problems whatsoever relating to all, whether
rich or poor, land owner or encroacher, farmer or tenant, employee or employer, tribal or non-tribal.
A properly drafted R&R plan would improve living standards of displaced persons after
displacement. For example residents of villages around Bhakra Nangal Dam, Nagarjun Sagar Dam,
Tehri, Bhillai Steel Plant, Bokaro and Bala Iron and Steel Plant and numerous other developmental

sites are better off than people living in villages in whose vicinity no development project came in. It
is not fair that tribals and the people in un-developed villages should continue in the same condition
without ever enjoying the fruits of science and technology for better health and have a higher quality
of life style. Should they not be encouraged to seek greener pastures elsewhere, if they can have
access to it, either through their own efforts due to information exchange or due to outside
compulsions. It is with this object in view that the R&R plans which are developed are meant to
ensure that those who move must be better off in the new locations at Government cost. In the
present case, the R&R packages of the States, specially of Gujarat, are such that the living conditions
of the oustees will be much better than what they had in their tribal hamlets.
Loss of forest because of any activity is undoubtedly harmful. Without going into the question as to
whether the loss of forest due to river valley project because of submergence is negligible, compared
to deforestation due to other reasons like cutting of trees for fuel, it is true that large dams cause
submergence leading to loss of forest areas. But it cannot be ignored and it is important to note that
these large dams also cause conversion of waste land into agricultural land and making the area
greener. Large dams can also become instruments in improving the environment, as has been the
case in the Western Rajasthan, which transformed into a green area because of Indira Gandhi Canal,
which draws water from Bhakhra Nangal Dam. This project not only allows the farmers to grow
crops in deserts but also checks the spread of Thar desert in adjoining areas of Punjab and Haryana.
Environmental and ecological consideration must, of course, be given due consideration but with
proper channellisation of developmental activities ecology and environment can be enhanced. For
example, Periyar Dam Reservoir has become an elephant sanctuary with thick green forests all
round while at the same time wiped out famines that used to haunt the district of Madurai in Tamil
Nadu before its construction. Similarly Krishnarajasagar Dam which has turned the Mandya district
which was once covered with shrub forests with wild beasts into a prosperous one with green paddy
and sugarcane fields all round.
So far a number of such river valley projects have been undertaken in all parts of India. The
petitioner has not been able to point out a single instance where the construction of a Dam has, on
the whole, had an adverse environmental impact. On the contrary the environment has improved.
That being so there is no reason to suspect, with all the experience gained so far, that the position
here will be any different and there will not be overall improvement and prosperity. It should not be
forgotten that poverty is regarded as one of the causes of degradation of environment. With
improved irrigation system the people will prosper. The construction of Bhakra Dam is a shining
example for all to see how the backward area of erstwhile undivided Punjab has now become the
granary of India with improved environment than what was there before the completion of the
Bhakra Nangal project.
The Award of the Tribunal is binding on the States concerned. The said Award also envisages the
relief and rehabilitation measures which are to be undertaken. If for any reason, any of the State
Governments involved lag behind in providing adequate relief and rehabilitation then the proper
course, for a Court to take, would be to direct the Awards implementation and not to stop the
execution of the project. This Court, as a Federal Court of the country specially in a case of

inter-State river dispute where an Award had been made, has to ensure that the binding Award is
implemented. In this regard, the Court would have the jurisdiction to issue necessary directions to
the State which, though bound, chooses not to carry out its obligations under the Award. Just as an
ordinary litigant is bound by the decree, similarly a State is bound by the Award. Just as the
execution of a decree can be ordered, similarly, the implementation of the Award can be directed. If
there is a short fall in carrying out the R&R measures, a time bound direction can and should be
given in order to ensure the implementation of the Award. Putting the project on hold is no solution.
It only encourages recalcitrant State to flout and not implement the award with impunity. This
certainly cannot be permitted. Nor is it desirable in the national interest that where fundamental
right to life of the people who continue to suffer due to shortage of water to such an extent that even
the drinking water becomes scarce, non-cooperation of a State results in the stagnation of the
project.
The clamour for the early completion of the project and for the water to flow in the canal is not by
Gujarat but is also raised by Rajasthan. As per Clause 3 of the final decision of the Tribunal
published in the Gazette notification of India dated 12th December, 1979, the State of Rajasthan has
been allocated 0.5 MAF of Narmada water in national interest from Sardar Sarovar Dam. This was
allocated to the State of Rajasthan to utilise the same for irrigation and drinking purposes in the arid
and drought-prone areas of Jalore and Barmer districts of Rajasthan situated on the international
border with Pakistan, which have no other available source of water.
Water is the basic need for the survival of human beings and is part of right of life and human rights
as enshrined in Article 21 of the Constitution of India and can be served only by providing source of
water where there is none. The Resolution of the U.N.O. in 1977 to which India is a signatory, during
the United Nations Water Conference resolved unanimously inter alia as under:
All people, whatever their stage of development and their social and economic conditions, have the
right to have access to drinking water in quantum and of a quality equal to their basic needs.
Water is being made available by the State of Rajasthan through tankers to the civilians of these
areas once in four days during summer season in quantity, which is just sufficient for their survival.
The districts of Barmer and Jalore are part of Thar Desert and on account of scarcity of water the
desert area is increasing every year. It is a matter of great concern that even after half a century of
freedom, water is not available to all citizens even for their basic drinking necessity violating the
human right resolution of U.N.O. and Article 21 of the Constitution of India. Water in the rivers of
India has great potentiality to change the miserable condition of the arid, drought-prone and border
areas of India.
The availability of drinking water will benefit about 1.91 lac of people residing in 124 villages in arid
and drought-prone border areas of Jalore and Barmer districts of Rajasthan who have no other
source of water and are suffering grave hardship.
As already seen, the State of Madhya Pradesh is keen for the reduction of the dams height to 436 ft.
Apart from Gujarat and Rajasthan the State of Maharashtra also is not agreeable to this. The only

benefit from the project which Rajasthan get is its share of hydel power from the project. The
lowering of the height from 455 ft. to 436 ft. will take away this benefit even though 9399 hectares of
its land will be submerged. With the reduction of height to 436 ft. not only will there be loss of
power generation but it would also render the generation of power seasonal and not throughout the
year.
One of the indicators of the living standard of people is the per capita consumption of electricity.
There is, however, perennial shortage of power in India and, therefore, it is necessary that the
generation increases. The world over, countries having rich water and river systems have effectively
exploited these for hydel power generation. In India, the share of hydel power in the total power
generated was as high as 50% in the year 1962-63 but the share of hydel power started declining
rapidly after 1980. There is more reliance now on thermal power projects. But these thermal power
projects use fossil fuels, which are not only depleting fast but also contribute towards environmental
pollution. Global warming due to the greenhouse effect has become a major cause of concern. One of
the various factors responsible for this is the burning of fossil fuel in thermal power plants. There is,
therefore, international concern for reduction of greenhouse gases which is shared by the World
Bank resulting in the restriction of sanction of funds for thermal power projects. On the other hand,
the hydel powers contribution in the greenhouse effect is negligible and it can be termed ecology
friendly. Not only this but the cost of generation of electricity in hydel projects is significantly less.
The Award of the Tribunal has taken all these factors into consideration while determining the
height of the dam at 455 ft. Giving the option of generating eco-friendly electricity and substituting
it by thermal power may not, therefore, be the best option. Perhaps the setting up of a thermal plant
may not displace as many families as a hydel project may but at the same time the pollution caused
by the thermal plant and the adverse affect on the neighbourhood could be far greater than the
inconvenience caused in shifting and rehabilitating the oustees of a reservoir.
There is and has been in the recent past protests and agitations not only against hydel projects but
also against the setting up of nuclear or thermal power plants. In each case reasons are put forth
against the execution of the proposed project either as being dangerous (in case of nuclear) or
causing pollution and ecological degradation (in the case of thermal) or rendering people homeless
and posses adverse environment impacts as has been argued in the present case. But then electricity
has to be generated and one or more of these options exercised. What option to exercise, in our
Constitutional framework, is for the Government to decide keeping various factors in mind. In the
present case, a considered decision has been taken and an Award made whereby a high dam having
an FRL of 455 ft. with capability of developing hydel power to be constructed. In the facts and
circumstances enumerated hereinabove, even if this Court could go into the question, the decision
so taken cannot be faulted.
DIRECTIONS While issuing directions and disposing of this case, two conditions have to be kept in
mind, (i) the completion of project at the earliest and (ii) ensuring compliance with conditions on
which clearance of the project was given including completion of relief and rehabilitation work and
taking of ameliorative and compensatory measures for environmental protection in compliance with
the scheme framed by the Government thereby protecting the rights under Article 21 of the
Constitution. Keeping these principles in view, we issue the following directions.

1) Construction of the dam will continue as per the Award of the Tribunal.
2) As the Relief and Rehabilitation Sub-group has cleared the construction up to 90 meters, the
same can be undertaken immediately. Further raising of the height will be only pari passu with the
implementation of the relief and rehabilitation and on the clearance by the Relief and Rehabilitation
Sub-group. The Relief and Rehabilitation Sub-Group will give clearance of further construction after
consulting the three Grievances Redressal Authorities.
3) The Environment Sub-group under the Secretary, Ministry of Environment & Forests,
Government of India will consider and give, at each stage of the construction of the dam,
environment clearance before further construction beyond 90 meters can be undertaken.
4) The permission to raise the dam height beyond 90 meters will be given by the Narmada Control
Authority, from time to time, after it obtains the above-mentioned clearances from the Relief and
Rehabilitation Sub-group and the Environment Sub-group.
5) The reports of the Grievances Redressal Authorities, and of Madhya Pradesh in particular, shows
that there is a considerable slackness in the work of identification of land, acquisition of suitable
land and the consequent steps necessary to be taken to rehabilitate the project oustees. We direct
the States of Madhya Pradesh, Maharashtra and Gujarat to implement the Award and give relief and
rehabilitation to the oustees in terms of the packages offered by them and these States shall comply
with any direction in this regard which is given either by the NCA or the Review Committee or the
Grievances Redressal Authorities.
6) Even though there has been substantial compliance with the conditions imposed under the
environment clearance the NCA and the Environment Sub-group will continue to monitor and
ensure that all steps are taken not only to protect but to restore and improve the environment.
7) The NCA will within four weeks from today draw up an Action Plan in relation to further
construction and the relief and rehabilitation work to be undertaken. Such an Action Plan will fix a
time frame so as to ensure relief and rehabilitation pari passu with the increase in the height of the
dam. Each State shall abide by the terms of the action plan so prepared by the NCA and in the event
of any dispute or difficulty arising, representation may be made to the Review Committee. However,
each State shall be bound to comply with the directions of the NCA with regard to the acquisition of
land for the purpose of relief and rehabilitation to the extent and within the period specified by the
NCA.
8) The Review Committee shall meet whenever required to do so in the event of there being any
un-resolved dispute on an issue which is before the NCA. In any event the Review Committee shall
meet at least once in three months so as to oversee the progress of construction of the dam and
implementation of the R&R programmes.
If for any reason serious differences in implementation of the Award arise and the same cannot be
resolved in the Review Committee, the Committee may refer the same to the Prime Minister whose

decision, in respect thereof, shall be final and binding on all concerned.
9) The Grievances Redressal Authorities will be at liberty, in case the need arises, to issue
appropriate directions to the respective States for due implementation of the R&R programmes and
in case of non- implementation of its directions, the GRAs will be at liberty to approach the Review
Committee for appropriate orders.
10) Every endeavour shall be made to see that the project is completed as expeditiously as possible.
<H

All India Itdc Workers Union & Ors vs Itdc & Ors on 31 October, 2006

Author: . A Lakshmanan
Bench: Dr. Ar. Lakshmanan, A.K. Mathur
CASE NO.:
Transfer Case (civil) 73 of 2002
PETITIONER:
All India ITDC Workers Union & Ors.
RESPONDENT:
ITDC & Ors.
BENCH:
Dr. AR. Lakshmanan & A.K. Mathur
JUDGMENT:
J U D G M E N T WITH TRANSFER CASE (CIVIL) No. 76/2002 Dr. AR. Lakshmanan, J.
The employees of Hotel Agra Ashok filed a writ petition being No. 41650 of 2001 in the Allahabad
High Court questioning the action of the first respondent - India Tourism Development Corporation
(hereinafter called 'the ITDC'), New Delhi to sell Hotel Agra Ashok outrightly to a private party as
arbitrary and illegal. According to them, Hotel Agra Ashok is one of the biggest hotels at Agra and is
a five star hotel having 58 centrally air-conditioned luxurious room and other facilities. It is also
their case that non-implementation of voluntary retirement scheme in respect of the employees of
the Hotel Agra Ashok is totally discriminatory, arbitrary, unjust and without any rhyme or reason. It
is further submitted that because the Government of India introduced a disinvestment plan with the
object to sell the hotel to a private party which is liable to affect the employees very seriously
including their service conditions.
The Government of India issued a press communiqui in the month of January, 2001 proposing to
sell Hotel Agra Ashok for a sum of Rs.2.36 crores which is wholly inadequate and amounts to a
totally distress sale. The Government has devised a scheme of creating an artificial company i.e.
Hotel Yamuna View Private Limited 4th respondent herein and the said company has been
incorporated only for the purpose of selling the said hotel after the hotel is transferred to it. The
employees have come to understand through press reports that the hotel is being sold out to one
M/s Mohan Singh respondent No.5 and his bid was accepted by the Central Government in
pursuance to the advertisement. It is further submitted that the entire Hotel Agra Ashok is being
sold out only merely for a sum of Rs.3.90 crores whereas the valuation by the Agra Cantonment
Board in the year 1999 of its land and buildings alone is more than Rs.5.58 crores. According to the
employees, its market price at present cannot be less than Rs.20 crores. It is the contention of the
employees that because of the change of ownership of the Hotel, the service conditions of the
employees should not be changed by the private person and that the existing service conditions as
originally agreed between the various employees of the Hotel and the new purchaser must be

maintained. The prayer in the writ petition reads thus:
"(a] a writ, order or direction in the nature of mandamus restraining the respondents from
unilaterally changing the terms and conditions of all class III & IV employees of the Hotel in view of
the proposed sale of Hotel Agra Ashok, Agra, to respondent no.5;
(b) a writ, order or direction in the nature of mandamus directing the parties concerned to maintain
status-quo in respect of the service conditions of the petitioners and also in respect of the proposed
sale and transfer of Hotel Agra Ashok to respondent no.5;
(c) a writ, order or direction in the nature of mandamus commanding the respondents to enforce
and implement and to apply Voluntary Retirement Scheme which has been made applicable only in
respect of the employees of Ashok Travels and Tours and not in respect of the employees of Hotel
Agra Ashok, Agra;
(d) any other writ, order or direction as this Hon'ble court may deem fit and proper in the
circumstances of the case, and
(e) award cost of the petition to be paid to the petitioners."
The above writ petition was transferred to this Court and is connected with other transferred cases.
The petitioners have also filed I.A. No. 49 of 2004 in transfer case No. 73 of 2002 and made a prayer
to direct the respondents to apply Voluntary Retirement Scheme (VRS) in pursuance of the
directions of the Government of India vide letter No. I-JS(T)/2002 dated 12.02.2002 and as prayed
for by them in the writ petition. It is stated in the said IA that the employees of Hotel Ashok Agra are
similarly situated and serving under similar conditions under which employees of different ITDC
Hotels are circumstanced and serve the ITDC. It is further submitted that in the case of Hotel
Manali Ashok, the VRS is made applicable during the pendency of the above matters and that the
employees do not challenge the policy of disinvestment as such. However, their service rights are to
be protected since there is no difference in service conditions between the employees of Hotel
Manali Ashok and Hotel Agra Ashok, both are similar and equal and the discrimination between the
two sets of employees is violative of Article 14 of the Constitution of India and, therefore, both are to
be treated similarly.
T.C. No. 76 of 2002 (Arising out of T.P.(C) No. 948 of 2001) Civil Writ Petition No. 7195 of 2001 was
filed by one K.K.Gautham and 7 Ors. in the High Court of Delhi against ITDC, New Delhi and Hotel
Yamuna View Pvt. Ltd. through its Director Mr. Arvind Mehta, New Delhi.
In the above writ petition, the petitioners sought to challenge the proposed action of respondent
No.1 of transferring out the services of the petitioners, who are officers of respondent No.1 to
respondent No.3, a newly incorporated company. It is stated that the petitioners are presently
posted in Hotel Agra Ashok in pursuance of their policy of disinvestment and ITDC have proposed
to sell the said Hotel to a private bidder. The grievance of the petitioners is that the officers of the
ITDC form an All India Common Cadre in different disciplines and that All India seniority lists are

maintained and career progress takes place on the basis of All India Seniority and that the officers
are governed by common service conditions, pay-scales and rules. The petitioners questioned the
proposed transfer to a new employer as illegal and arbitrary. The prayer in the above writ petition
reads as follows:
"(i) That this Hon'ble Court may pass a Writ of Certiorari or any other appropriate writ, order or
direction quashing the scheme of transfer of services of the petitioners from respondent No.1 to
respondent No.3.
(ii) That this Hon'ble Court may pass a Writ of Certiorari or any other appropriate writ, order or
direction quashing the clause 3.3 (d) and 3.5 and such other clauses of the Scheme of Arrangement
prepared by respondent No.1 (Annexure-p-3)
(iii) Award the cost of writ petition to the petitioners: and
(iv) Pass such other or further orders as this Hon'ble Court may deem fit and proper in the facts and
circumstances of the case."
The above writ petition was also transferred to this Court.
A counter affidavit was filed by the ITDC, respondent No.1 through its Company Secretary.
According to them, disinvestment was a policy decision of the Government of India and that this
Court has held that the said policy decisions should be least interfered in judicial review and that the
Government employees have no absolute right under Article 14, 21 and 311 of the Constitution of
India and that the Government can abolish the post itself. It is further submitted that in the present
case, the petitioners are not Government employees and are merely employees of a public sector
undertaking and that the entire process of disinvestment of the Hotel was carried out by the
Government of India, Department of Disinvestment and that in terms of the settlement, the wages
of the employees including the petitioners had been restructured and revised and were operative
and that the respondent is not curtailing them and the rights of the petitioners are not affected in
any manner. It is further submitted that the contention of employees that the scheme of VRS in
respect of the employees of Ashok Travels & Tours (a Unit of ITDC) be made applicable to the
employees of the disinvested Unit Hotel Agra Ashok is absolutely untenable because after the
disinvestment, it is for the buyer to float the scheme of VRS in terms of the transferred documents.
In view of the above, it is submitted that the apprehension of the petitioners is baseless and liable to
be rejected.
The Union of India filed its affidavit in reply through its Under Secretary and submitted that
successive governments, both at the Centre and the States have been following the economic policy
of disinvestment in Public Sector Enterprises due to various reasons and in August, 1996, the
Central Government set up a Public Sector Disinvestment Commission to make recommendations
on the identified Central Public Sector Undertakings which may be disinvested. It was further
submitted that ITDC is a Government Company as defined under Section 617 of the Companies Act,

set up in 1966 and at the relevant time the Government of India was holding about 89.97% shares in
ITDC, which was running 33 hotels in all and that ITDC was running heavy losses and its occupancy
rates were far below the market average despite the fact that its room rents were lower than other
five star hotels. The Disinvestment Commission in its report recommended that ITDC falls in the
non-core category and hence disinvestment can go up to 74% or more. The recommendation was
accepted by the Government at the level of Cabinet Committee on Disinvestment and a decision was
taken by Inter-Ministerial Group and at the level of the Cabinet Committee on Disinvestment to
divest each property individually rather than altogether or in groups. Respondent Nos. 4 & 5 filed a
separate counter affidavit in reply. According to them, the Government of India had taken a decision
for disinvestment of the properties owned by respondent No.1 as majority of properties doing hotel
business were running huge losses to the tune of crores of rupees and unnecessarily increasing the
liabilities of the Corporation. It was submitted that there is no change in service conditions of the
employees as per the terms of share purchase agreement. That after the creation of the new
Company - Hotel Yamuna View Private Limited, all the employees working with Hotel Agra Ashok
were shifted to the new company which was also a subsidiary company of respondent No.1. Class III
and IV employees of the Hotel approached the High Court and agitated their transfer from ITDC to
Hotel Yamuna View Private Limited by way of a Writ Petition No. 41650 of 2001. The High Court,
by way of an interim order, maintained the status quo regarding service conditions of Class III and
IV employees of the hotel and pursuant to the agreement the Management of the Hotel Agra Ashok
was transferred to respondent Nos. 4 and 5 on 07.02.2002 and started abiding by each terms
mentioned in the agreement. Accordingly, the service conditions of the employees working with
Hotel Agra Ashok were maintained as before. Some of the other employees of Hotel Agra Ashok filed
civil Writ Petition No. 7195 of 2001 before the High Court of Delhi and that the Government of India
as per the report of the Disinvestment Commission accepted the same and transferred the hotel to
the respondents and that the decision of the Government of India to sell its share in ITDC was a
policy decision within the ambit of law on the Constitution of India. With regard to the VRS scheme,
it was submitted that for the employees of Ashok Travels and Tours, VRS Scheme was introduced by
circular dated 02.03.2001 but there was no policy for VRS regarding Hotel Agra Ashok. Also under
clause 8 of the said circular regarding introduction of VRS, it is clearly stated that the schemes does
not confer any right whatsoever on any employee to have his request for voluntary retirement
accepted.
Two rejoinders were filed on behalf of the workers' union to the reply filed by respondent Nos. 3, 4
and 5. We heard Mr. M.L. Bhat, learned senior counsel assisted by Ms. Purnima Bhat, learned
counsel in T.C. No. 73 of 2002 and Mr. Jayant Nath, learned senior counsel assisted by Mr. Suresh
Tripathy, learned counsel in T.C. No. 76 of 2002 for the respective petitioners and Mr. Rakesh
Dwivedi, learned senior counsel, Mr. Ashok Bhan and Mr. Gaurav Agarwal and Mr. Praveen Jain,
learned counsel for the respective respondents.
We have carefully perused the averments made in the affidavit and the reply filed by the respective
respondents and the rejoinder by the petitioners. Our attention was also drawn to the scheme of
arrangement (de-merger) between ITDC Ltd. and Hotel Yamuna View Private Limited, report of the
Disinvestment Commission and other relevant records and annexures filed in both the writ
petitions. Mr. M.L. Bhat, learned senior counsel reiterated the submissions in the Court and Mr.

Jayant Nath, learned senior counsel reiterated the contentions raised in the writ petition at the time
of hearing. After inviting our attention to the prayer in the respective writ petition, they also invited
our attention to the order passed on 13.12.2001 by the High Court directing maintenance of status
quo regarding service conditions of Class III and IV employees of Hotel Agra Ashok. The said
interim order was extended up to the next date of hearing. Our attention was also drawn to the share
purchase agreement clause 9.4 in Article 9 which reads thus: 9.4 The Purchaser will cause the
Company to continue to employ all the regular employees of the Unit which have been transferred to
the Company on the terms and conditions that shall not be inferior to the terms and conditions as
applicable to the regular employees on the date of transfer of the Unit including with respect to the
voluntary retirement scheme applicable to the Company as per the guidelines of the Department of
Public Enterprises, if any, and terms set out in agreements entered into by ITDC in relation to such
regular employees with staff/workers unions/associations. The Purchaser further covenants that it
shall cause the Company to ensure that:
(i) the services of the regular employees will not be interrupted.
(ii) the terms and conditions of service applicable to the regular employees will not in any way be
less favourable than those applicable to them immediately on the date hereof.
(iii) it shall not retrench any of its regular employees for a period of one year from the Closing Date
other than any dismissal or termination of regular employees from their employment in accordance
with the applicable staff regulations and standing order of the Company or applicable law.
(iv) in the event of retrenchment of regular employees, the Company shall pay the regular employees
such compensation as is required under applicable labour laws on the basis that the service of the
regular employees have been continuous and uninterrupted. Provided further, that no retrenchment
of an Employee would be undertaken unless the affected Employee is given benefits which are
higher of (a) the voluntary retirement scheme applicable to the Company as per the guidelines of the
Department of Public Enterprises as of the date hereof and (b) the benefits/compensation required
to be statutorily given to an employee under applicable law.
(v) the Company will only undertake dismissal or termination of the services of the employees on
account of disciplinary action in accordance with the applicable staff regulations.
(vi) in respect of contract employees the terms and conditions of the relevant contracts shall be fully
observed by the Company and the Purchaser shall keep Government and ITDC indemnified against
damages, losses or claims resulting on account of the Company failing to observe any of the terms
and conditions of such contracts."
Our attention was also drawn to the order dated 01.02.2002 and, in particular, last para of page 3 of
the said order referring to the status quo order passed by the High Court regarding service
conditions of Class III and IV employees of the Hotel. Our attention was also invited to clause 3.3(d)
and 3.5.

Learned senior counsel submitted that the employees consent is necessary before transfer and cited
Jawaharlal Nehru University vs. Dr. K.S. Jawatkar and Others, 1989 Supp (1) SCC 679. In this case,
the Jawaharlal Nehru University, under Section 5(2) of the Jawaharlal Nehru University Act, 1966,
established a Centre of Post-graduate studies at Imphal and appointed the respondent as Assistant
Professor on a regular basis and also confirmed him w.e.f. 29.08.1979. In 1981, the University
decided to transfer the Centre to the Manipur University. Under Section 1(4) of the Manipur
University Act, 1980, the Governor of Manipur made an order which provided for transfer of the
members of the faculties of the Centre to the Manipur University. The question was whether the
transfer of the Centre resulted in transfer of the respondent's service to the Manipur University.
Answering in negative and rejecting the Jawaharlal Nehru University's appeal, this Court held:
"The respondent continues to be an employee of the appellant University. The contract of service
entered into by the respondent was a contract with the appellant University and no law can convert
that contract into a contract between the respondent and the Manipur University without
simultaneously making it either expressly or by necessary implication, subject to the respondent's
consent. The provision in Manipur University Act for the transfer of the services of the staff working
at the said Centre must be construed as enabling such transfer with the consent of the employee
concerned. Since the transfer of the Centre could not result in automatic transfer of the respondent's
service, he continues in the employment of the appellant University."
The above judgment is distinguishable on facts and on law. The Jawaharlal Nehru University case
(supra) would indicate that, in that case there was a purported transfer of the employee from
Jawaharlal Nehru University to the Manipur University without his consent. Admittedly the JNU
did not exercise any control over Manipur University. In the instant case, the transfer was from
ITDC Ltd. to respondent No.3 Company, the share-holding pattern of the two companies were
exactly the same. Therefore, it did not make any difference to the employees, especially, when the
scheme of de-merger itself provide that the employee will continue in service of the respondent No.3
with full benefits including continuity in service. The provisions of the Companies Act, 1956 were
not involved in the JNU's case. Further the two Universities were totally unconnected entities hence
the ratio of that judgment, in our opinion, is not applicable to the facts in hand. Even in the
judgment of this Court, in JNU in para 8 it has been observed that at worst this would not impinge
upon the validity of the de-merger scheme. The effect of that would be that the employee would be
deemed to have retrenched and would be entitled to compensation as such in accordance with law.
In the instant case, the employees never claimed that they may be considered as retrenched. Even if
it is the claim of the petitioners that they have been retrenched, the writ petition is not the
appropriate proceedings and the petitioners were required to institute appropriate proceedings as
per the industrial/labour laws.
Mr. M.L.Bhat, learned senior counsel also cited Nokes vs. Doncaster Amalgamated Collieries Ltd.
(1941) 11 Company Cases 83 House of Lords for the proposition that a free citizen in exercise of his
freedom is entitled to chose the employer whom he promises to serve, so that the right to his
services cannot be transferred from one employer to another without his consent. The Court was
considering the whole question, however, as to whether Section 154 of the Companies Act, 1929
provides a statutory exception to that principle. The Lord Chancellor came to the conclusion that the

contracts of personal service are not automatically transferred by an order made under Section 154.
The House of Lords stated as under:
"When the Court makes an order under Section 154 of the Companies Act, 1929, transferring all the
property and liabilities of the transferor company to the transferee company, a contract previously
existing between an individual and the transferor company does not automatically become a
contract between the individual and the transferee company.
The fundamental principle of common law that a free citizen is entitled to choose his employer, so
that the right to his services cannot be transferred from one employer to another without his
consent, is not abrogated by the order which could be made under the section. To effect such an
alteration would require explicit clear words. The right to the service of an employee is not the
property of the transferor company."
Mr.Jayant Nath, learned senior counsel appearing for the petitioner in T.C. No. 76 of 2002 invited
our attention to the prayer in the writ petition and the salient features of the scheme of arrangement
and the order passed by the Department of Company Affairs dated 01.02.2002 allowing the scheme
under Section 391 of the Act.
Mr. Rakesh Dwivedi, learned senior counsel in his reply submitted that there will not be any
difficulty to continue to employ all the regular employees of the Union which have been transferred
to the Company on the terms and conditions and the terms set out in the agreement entered into by
ITDC in relation to such regular employees with staff/workers unions/associations. He further
proceeded to submit that, if there is breach of the obligation under the scheme, the employees can
always approach the appropriate forum for redressal. He also invited our attention to the reply filed
by the respective respondents objecting to the prayer asked for in the writ petition.
We have given our thoughtful consideration to the rival submissions made by the respective counsel
appearing for the respective parties. In our opinion, the present writ petitions filed by the employees
merits to be dismissed. Since disinvestment was a policy decision of the Government of India. This
Court also has held that the said policy decision should be least interfered in judicial review and that
the Government employees have no absolute right under Article 14, 21 and 311 of the Constitution of
India and that the Government can abolish the post itself. In the present case, the petitioners are not
government servants and are merely employees of a public sector undertaking. This apart, the
service conditions of the petitioners are being protected under the new management on the
disinvestment of the Hotel and the fact that other hotels are also in an advanced stage of
disinvestment in pursuance of the policy decision taken by the Government of India for
disinvestment of the hotel units. We see no reason to interfere with the aforesaid decision. In case
ultimately the petitioners are aggrieved by any aspect of terms of reference and formalization of
agreement and completion of disinvestment it is always open to the petitioners to approach the
courts for redressal of their grievances. We have already extracted Clause 9.4 of the share purchase
agreement dated 07.02.2002 in paragraphs supra. In our view, the decision of the Government of
India to divest the property was a policy decision which was not in any manner contrary to the law
of the land. Similar policy decision of the Government of India to disinvest 51% of this share holding

in Bharat Aluminium Company Limited referred to as Balco was challenged before this Court and
this Court has dealt with the scope of the judicial review in such economic policy decisions. This
Court rejected the contention that the sale of the shares of the Government of India in Balco was
legal and the employees of Balco have ceased to be employees of a government company. However,
it is stated that the service conditions of the employees were not affected by the transfer of the
shares.
We have also carefully perused the scheme. It is evident from the scheme itself that all the
employees were to be retained as stipulated in the transfer documents on the same terms and
conditions of service for 1 year and they were entitled for payment of gratuity and provident fund as
per the then existing scheme. The terms and conditions of service applicable to the employees was
not in any way be less favourable than those applicable to them immediately on the date thereof.
The relevant provisions of the transfer documents relating to disinvestment of Hotel Agra Ashok are
being reproduced herein below:
Clause 3.2 (d) of the Scheme of Arrangement reads as follows:
"with effect from the appointed date, all employees of the Transferor engaged in the Transferred
Undertaking shall become the employees of the Transferee on the terms and conditions on which
they are engaged as on the Appointed Date by the Transferor without any interruption of services as
a result of this Scheme. The Transferee agrees that the services of all such employees with the
Transferred Undertaking upto the Appointed Date shall be taken into account for purposes of all
retirement benefits to which they may be eligible in the Transferor on the Appointed Date."
In view of the above, we are of the opinion that the apprehension of the employees is baseless and is
liable to be rejected.
It is also pertinent to notice that ITDC has not participated in the disinvestment process as the same
was carried out by the Ministry of Disinvestment, Government of India. The safeguards regarding
the service conditions of the employees have been duly provided in the transfer document i.e.
de-merger scheme and share purchase agreement. This Court also in Balco Employees' Union
(Regd.) vs. Union of India and Others, (2002) 2 SCC 333 held that the employees of the company
registered under the Indian Companies Act do not have any vested right to continue to enjoy the
status of the employee of an instrumentality of the State. In the instant case, with the intention to
promote the scheme of disinvestment, the Government issued an advertisement to outright sale of 6
hotels and long term lease for 2 hotels. The property of respondent No.1 was demerged in the name
of the new company with the approval of the Company Law Board. We have perused the order
approving the scheme of arrangement as annexed and marked as Annexure-C(a)/2. All the
employees after the creation of the new company were shifted to the new company which was also a
subsidiary company of ITDC. Respondent No.1 invited tenders for sale of the Hotel. The offer made
by Respondent Nos. 4 and 5 was accepted by respondent No.1 as successful bidder and accordingly,
the shares of Hotel Yamuna View Private Limited were transferred under share purchase agreement
dated 07.02.2002. It is pertinent to notice that at the time of inviting bid, no such liabilities of VRS
to the employees were shown against Hotel Agra Ashok. All the liabilities were mentioned in the

balance sheet of the company including property tax and water tax to be deposited with the
Cantonment Board. Respondent Nos. 4 and 5 got the shares of Hotel Yamuna Private Limited
transferred in their favour while share transfer agreement dated 07.02.2002 wherein certain
conditions were put in by respondent No.1 keeping in mind the order of the High Court for
maintaining the status quo of the class III and IV employees. Pursuant to the agreement, the
Management of the Hotel was transferred to respondent No.4.
The employees have also challenged the non- implementation of VRS in respect of the employees of
Hotel Agra Ashok. In our view, the petitioners/employees cannot claim parity in respect of other
employees working under ITDC in different properties who have been granted benefits under VRS
as the scheme was never made applicable to the employees working with the present property. No
disclosure of any such introduction of VRS was given by ITDC at the time of sale, neither was any
amount to be deposited by the purchaser. We are, therefore, of the opinion that respondent Nos. 4
and 5 is under no obligation to float the VRS scheme because in para 9(4), the VRS has to be given
only when company retrenches its regular employees. But here the company is ready to continue
with its employees with the same terms and conditions mentioned in the share purchase agreement.
The employees are unwilling to continue on the same terms and, therefore, they cannot compel the
management to introduce VRS scheme. When the share purchase agreement was executed with
respondent No.5, then there was no scheme introduced for grant of VRS because prior to the sale
the petitioners were employees of ITDC and not of Hotel Yamuna View Limited. They have already
objected their transfer to Hotel Yamuna Private Limited. The petitioners are demanding VRS from
ITDC because as per the orders dated 13.12.2001 and 05.03.2002 of the Allahabad High Court, the
employees of Hotel Agra Ashok cannot be transferred to the new company Hotel Yamuna Private
Limited. With intention to escape the liability of contempt, the ITDC specifically asked the buyer to
maintain the service conditions of the employees on the same terms by entering into a share
purchase agreement, however, no condition in this agreement was mentioned for offering VRS. In
other words, a VRS scheme for employees of Ashok Travels & Tours was introduced by circular
dated 02.03.2001 but there was no policy for VRS regarding Hotel Agra Ashok. Also under Clause 8
of the said circular regarding introduction of VRS, it is clearly stated that the scheme does not confer
any right whatsoever on any employee to have their request for voluntary retirement accepted. The
respondent has also no such obligation under para 94 (IV).
This Court in a recent judgment in the case of Board of Trustees, Visakhapatnam Port Trust &
Others vs. T.S.N. Raju and Another, 2006 (9) Scale 55 (Dr. AR. Lakshmanan and Tarun Chatterjee,
JJ) while considering the scheme of voluntary retirement applicable to Port Trusts considered the
scope of entitlement to avail the benefit of the scheme. This Court held that the Chairman of the Port
Trust has absolute right either to accept or not to accept the applications filed by the employees for
retirement and the request of employees seeking voluntary retirement was not to take effect until
and unless it was accepted in writing by the Port Trust Authorities. This Court held in para 35 as
under:-
"In our opinion, the request of the employees seeking voluntary retirement was not to take effect
until and unless it was accepted in writing by the Port Trust Authorities. The Port Trust Authorities
had the absolute discretion whether to accept or reject the request of the employee seeking

voluntary retirement under the scheme. There is no assurance that such an application would be
accepted without any consideration. The process of acceptance of an offer made by an employee was
in the discretion of the Port Trust. We, therefore, have no hesitation in coming to the conclusion that
the VRS was not a proposal or an offer but merely an invitation to treat and the applications filed by
the employees constituted an offer."
As already noticed, the Government of India constituted the Disinvestment Commission and
accepted the recommendation of the said Commission. A decision was taken by Inter-Ministerial
Group and at the level of the Cabinet Committee on Disinvestment to divest each property
individually rather than altogether or in groups. It is also beneficial for us to refer to the judgment of
Balco Employees' Union (Regd.) vs. Union of India and Others (supra) by which this Court has dealt
with the scope of the judicial review in such economic policy decisions. This Court held as follows:-
34. Applying the analogy, just as the Court does not sit over the policy of the Parliament in enacting
the law, similarly, it is not for this Court to examine whether the policy of this disinvestment is
desirable or not
47. Process of disinvestment is a policy decision involving complex economic factors. The Courts
have consistently refrained from interfering with economic decisions as it has been recognised that
economic expediencies lack adjudicative disposition and unless the economic decision, based on
economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power
or so abhorrent to reason, that the Courts would decline to interfere. In matters relating to economic
issues, the Government has, while taking a decision, right to "trial and error" as long as both trial
and error are bona fide and within limits of authority ..
92. In a democracy it is the prerogative of each elected Government to follow it's own policy. Often a
change in Government may result in the shift in focus or change in economic policies. Any such
change may result in adversely affecting some vested interests. Unless any illegality is committed in
the execution of the policy or the same is contrary to law or mala fide, a decision bringing about
change cannot per se be interfered with by the Court.
93. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review
unless it can be demonstrated that the policy is contrary to any statutory provision or the
Constitution. In other words, it is not for the Courts to consider relative merits of different economic
polices and consider whether a wiser or better one can be evolved. For testing the correctness of a
policy, the appropriate forum is Parliament and not the Courts
98. In the case of a policy decision on economic matters, the courts should be very circumspect in
conducting any enquiry or investigation and must be most reluctant to impugn the judgment of the
experts who may have arrived at a conclusion unless the Court is satisfied that there is illegality in
the decision itself."
In the instant case, the Government has acted on advice of experts before taking a decision to
disinvest its shares in ITDC Limited. Even thereafter, through a fair and transparent process as

detailed in the reply affidavit of the Union of India, the Government has ensured that it has got the
best price for its shares. It is also pertinent to notice that the Government has not received any other
higher offer. The contention of the learned senior counsel for the writ petitioners that the price is
less has not been supported by any documentary evidence. In similar situation, this Court has
observed in Balco Employees' Union case (supra) as follows:-
"65. It is not for this Court to consider whether the price which was fixed by the Evaluation
Committee at Rs.551.5 crores was correct or not. What has to be seen in exercise of judicial review of
administrative action is to examine whether proper procedure has been followed and whether the
reserve price which was fixed is arbitrarily low and on the face of it, unacceptable.
66. When proper procedure has been followed, as in this case, and an offer is made of a price
more than the reserve price then there is no basis for this Court to conclude that the decision of the
Government to accept the offer of Sterlite is in any way vitiated."
The very same contention raised by the employees in the instant case was raised by the employees of
Balco when the Government of India disinvested its majority shares in Balco. This Court rejected the
contention that the sale of the shares of the Government of India in Balco was legal as the employees
of Balco have ceased to be employees of a Government Company. It was, inter alia, observed as
follows:- "47. Even though the workers may have interest in the manner in which the Company is
conducting its business, inasmuch as its policy decision may have an impact on the workers rights,
nevertheless it is an incidence of service for an employee to accept a decision of the employer which
has been honestly taken and which is not contrary to law. Even a government servant, having the
protection of not only Articles 14 and 16 of the Constitution but also of Article 311, has no absolute
right to remain in service. For example, apart from cases of disciplinary action, the services of
government servants can be terminated if posts are abolished. If such employee cannot make a
grievance based on part III of the Constitution or Article 311 then it cannot stand to reason that like
the petitioners, non-government employees working in a company which by reason of judicial
pronouncement may be regarded as a State for the purpose of part III of the Constitution, can claim
a superior or a better right than a government servant and impugn it's change of status ..
48. .. If the abolition of a post pursuant to a policy decision does not attract the provisions of
Article 311 of the Constitution as held in State of Haryana v. Des Raj Sangar and Anr. on the same
parity of reasoning, the policy of disinvestment cannot be faulted if as a result thereof the employees
lose their rights or protection under Articles 14 and 16 of the Constitution. In other words, the
existence of rights of protection under Articles 14 and 16 of the Constitution cannot possibly have
the effect of vetoing the Government's right to disinvest. Nor can the employees claim a right of
continuous consultation at different stages of the disinvestment process. If the disinvestment
process is gone through without contravening any law, then the normal consequences as a result of
disinvestment must follow.
49. The Government could have run the industry departmentally or in any other form. When it
chooses to run an industry by forming a company and it becomes its shareholder then under the
provisions of the Companies Act as a shareholder, it would have a right to transfer its shares. When

persons seek and get employment with such a company registered under the Companies Act, it must
be presumed that they accept the right of the directors and the shareholders to conduct the affairs of
the company in accordance with law and at the same time they can exercise the right to sell their
shares."
We may also usefully refer to the decision of the Madras High Court in the case of (Southern
Structurals Staff Union vs. Southern Structurals Ltd.) (1994) 81 Comp. Cases 389 (Mad) wherein the
Madras High Court held as follows:- "The employees have no vested right in the employer company
continuing to be a government company or 'other authority' for the purpose of Article 12 of the
Constitution of India . The status so conferred on the employees does not prevent the Government
from disinvesting; nor does it make the consent of the employees a necessary precondition for
disinvestment."
In the case of Balco, as well as in the present case, the Government of India has ensured that the
interest of the workmen are fully protected. As in the case of Balco, the shareholder agreement
between Government of India and the purchaser has been reproduced in the reply affidavit filed on
behalf of the Union of India in transfer case No. 73 of 2002. We may also place on record the
submission made by learned senior counsel Mr. Rakesh Dwivedi that the Government of India
cannot have any objection to a direction to the Hotel Yamuna View Private Limited to float a VRS
scheme keeping in view its obligation under para 9.4(iv) of the share purchase agreement in terms
of the office memo dated 05.05.2000.
A perusal of paragraphs 23, 24, 54, 55 and 56 of the judgment of this Court in Balco would indicate
that the above protection of the workers' interest in similar circumstances has been held by this
Court to be adequate and lawful. This Court in para 55 has observed as follows:-
"55.We are satisfied that the workers' interests are adequately protected in the process of
disinvestment. Apart from the aforesaid undertaking given in the Court, the existing laws adequately
protect workers' interest and no decision affecting a huge body of workers can be taken without the
prior consent of the State Government. Furthermore, the service conditions are governed by the
certified orders of the Company and any change in the conditions thereto can only be made in
accordance with law."
Further as per the Demerger Scheme, all the liabilities relating to the transferred undertaking upto
the date of transfer were taken over and were to be discharged by the transferee. Thus, the
transferee is liable to pay all the liabilities and dues (including gratuity) to the employees on the
same terms and conditions of service which were applicable to the employees in the hotel, including
the benefits related to the tenure of service in the hotel upto the date of transfer. As far as the
provident fund of the employees is concerned, the PF accounts of the employees of the hotel in ITDC
PF Trust were transferred by the trust to the new accounts of the concerned employees in the
Regional Provident Fund Commissioner after the completion of formalities under the provisions of
Employees Provident Fund and Miscellaneous Provisions Act,1952. The demerger of the hotel union
from ITDC was a considered decision taken by the Cabinet Committee on Disinvestment and had
the approval of the Department of Company Affairs in terms of the Companies Act, 1956. The

reasons for creating a separate companies has been given in the reply affidavit and the contents of
the same are reiterated in reply.
By order made by the Department of Company Affairs on 04.10.2001, ITDC was directed to convene
a meeting of the creditors of Hotel Agra Ashok for the purpose of considering and if thought fit
approving with or without modifications, the scheme and the said order also appointed Mr.
S.B.Mathur D- 11 (Retd.) Department of Company Affairs as Chairman for the meeting who was also
to report the result of the meeting to the Department of Company Affairs on the conclusion of the
creditors meeting. A meeting was held on 30.10.2001 and the Chairman of the said meeting had
directly reported the result of the meeting to the Department of Company Affairs. It may also be
noticed that a fresh petition was filed with the Department of Company Affairs on 26.12.2001 under
Section 391 and 394 of the Companies Act for approval to new scheme of agreement between ITDC
and Hotel Yamuna View Private Limited and their respective shareholders for Hotel Agra Ashok.
The company was also directed vide order dated 01.01.2002 to give public notice regarding the
scheme of arrangement and hearing through advertisement in a leading English and vernacular
daily newspaper. The notice was duly published in Indian Express on 04.01.2002 and Amar Ujala,
Agra Edition Hindi on 05.01.2002 after protecting the interest of the creditors and hearing the
parties the Department of Company Affairs gave approval of the scheme of agreement on
01.02.2002. The demerger was complete on 01.02.2002. It is only thereafter that the shares of
Government of India in Hotel Yamuna View Private Limited was sold to Respondent No.5 on
07.02.2002 by the share purchase agreement. It is also brought to our notice at the time of hearing
that all the 8 petitioners who have challenged the policy decision of the Government of India have
resigned their job and joined some other service. The statement was not disputed or denied by
learned senior counsel for the petitioners. For the foregoing reasons, we hold that there is absolutely
no merit or substance in the contentions raised by learned senior counsel for the petitioners. The
writ petitions are, therefore, liable to be dismissed and the policy decision taken by the Government
of India to transfer the Hotel Agra Ashok to M/s Mohan Singh and Yamuna View Private Limited
cannot be assailed at the instance of the employees. The writ petitions are accordingly dismissed,
however, there will be no order as to costs. In view of the disposal of the writ petitions, the transfer
cases are also disposed off accordingly.

Adv. Arvind K. Waghmare vs Pm Care Fund, A Public Charitable ... on 14 January, 2021
Bombay High Court

Bench: S.B. Shukre, Anil S. Kilor
1 mcast10383.20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR
CIVIL APPLICATION (C.A.O) NO.700 OF 2020

AND
MISC. CIVIL APPLICATION STAMP NO. 10383 OF 2020
IN P.I.L. NO. 20 OF 2020 (D)
Advocate Arvind K. Waghmare,

Aged Major, Occ. Legal Practitioner,
r/o. 304, Soujanya Apartment,
Bharat Nagar, Amravati Road,
Nagpur-440 033 (Maharashtra)
Email : waghmare1964@gmail.com
Enrollment No.MAH/2242/1999
Aadhar No.573309208223
Mob. No.9822698135. .......... APPLICANT
// VERSUS //
PM Cares Fund (Prime Ministers

Citizens Assistance and Relief in
Emergency Situation), A Public
Charitable Trust created by
Union Cabinet of India,
through its Chairperson and
Board of Trustees, at the Office
Of PMO South Block,
New Delhi 110 011. & Others. .......... RESPONDENTS
::: Uploaded on - 14/01/2021 ::: Downloaded on - 07/02/2021 18:27:56 :::

2 mcast10383.20.odt
____________________________________________________________
Mr.A.K.Waghmare, Advocate/petitioner-in-person
Mr.U.M.Aurangabadkar, A.S.G.I. with Mr.Anil Singh,

Addl.S.G.I. for respondent nos. 1 to 5.

Mr.Anand Deshpande, Addl.G.P. for respondent nos. 6 to 8.
Mr.S.M.Puranik, Advocate for respondent no.9
____________________________________________________________
********
Date of reserving the Order : 9.1.2021.
Date of pronouncement of the Order : 14.1.2021.
********
CORAM : SUNIL B. SHUKRE &

ANIL S. KILOR, JJ.
ORDER (Per Sunil B. Shukre, J) :
Heard the learned Counsel for the respective parties. For the reasons stated in Civil Application
(C.A.O.) No.700 of 2020, same is allowed. Delay is condoned. MISC. CIVIL APPLICATION STAMP
NO. 10383 OF 2020
2. Heard the learned Counsel for the respective parties.
3 mcast10383.20.odt
3. By this application, the petitioner-in-person/
applicant has called upon this Court to re-visit its Judgment delivered on 27.8.2020 in P.I.L. No.54
of 2020. According to the petitioner-in-person, the Judgment contains an error apparent on the face
of record which has resulted in miscarriage of justice.
4. The petitioner-in-person submits that, while rejecting his fourth prayer to make public disclosure
of the moneys of PM Cares Fund (Prime Ministers Citizens Assistance and Relief in Emergency
Situation) (hereinafter referred to as "the Fund") as mandatory, this Court proceeded on the
presumption that there was a Trust Act applicable to the Fund registered under the Registration Act,
1908 at New Delhi and therefore, there was available adequate and efficient mechanism to control
the affairs of the Fund and also to ensure that the moneys are utilized properly. The
petitioner-in-person submits that, as a matter of fact, there is no Trust Act enacted and in force in
the National Capital Region of New Delhi, which is a fact newly discovered by him. The
petitioner-in-person submits that 4 mcast10383.20.odt many paragraphs on this aspect have been
devoted by this Court in it's Judgment sought to be reviewed, albeit erroneously. This error, the
petitioner-in-person, further submits, is not only manifest in the Judgment, but also has led to
denial of justice to him. He submits that if this error is removed, the inevitable consequence would
be a realisation that it is extremely important that the receipts into and the expenditure from the
Fund are publicly disclosed so that the donors and the public at large would know as to how and
from whom and for what purpose, the moneys are being poured in and out of the Fund, which will

only help in bringing in transparency in the operation of the Fund. So, according to the
petitioner-in-person, re-calling of all the observations relating to availability of effective mechanism
via applicable Trust Act for regulating governance and functioning of the Fund and allowing the
fourth prayer clause as a necessary sequel would be the need of the hour.
5. The petitioner-in-person further submits that this Court has also committed a patent error in
holding that the 5 mcast10383.20.odt power of Chairperson of the Board of Trustees to nominate
three trustees on the Board of Trustees is only an enabling power and therefore, the power lies
within the discretion of the Chairperson. He submits that this finding is not consistent with the
bye-laws of the Fund and if the bye-laws are read jointly, the only conclusion that is possible is of
mandatory nature of this power of the Chairperson. The petitioner-in-person further submits that if
mandatory power of Chairperson to appoint three Trustees is accepted, this Court would also have
to allow the third prayer clause of the P.I.L. whereby direction to set aside appointment of SARC
Associates as auditors of the Fund is sought for. He also submits that this Court did not consider the
argument that unless all trustees are appointed, the Fund cannot function, there being inadequate
coram.
6. Lastly, the petitioner-in-person submits that as this Court has noted in para 17 of the Judgment
under review that issues involved here are different from those in cases decided by Supreme Court
and referred to in the Judgment, this Court could not have held that some 6 mcast10383.20.odt
observations of the Supreme Court would bind the Court to the extent they decide the issues which
arise indirectly in this case. He submits that observations made in para 17 are incorrect and in any
case, what has influenced this Court being in the nature of obiter dicta, this Court must recall it's
findings in para 17.
7. Mr.Anil Singh, learned Additional Solicitor General of India has submitted that all these aspects
of the matter have been comprehensively dealt with in the Judgment under review and the review
jurisdiction not being available for sitting in appeal over the Judgment under review, the review
petition deserves to be dismissed summarily. He submits that it is not the case that the prayer for
making public disclosure of the receipts and expenditure of the Fund as mandatory has been
rejected only on the ground that there is available effective mechanism for serving the very purpose
of public disclosure. He points out that there are atleast three more grounds which have been
additionally stated by this Court while rejecting this prayer and as regards other three grounds, no
challenge 7 mcast10383.20.odt whatsoever has been raised by the petitioner-in-person. Mr.Anil
Singh submits that, apart from availability of alternate effective mechanism for achieving the
purpose for which public disclosure has been sought in the petition, this Court has also held that
every matter of public interest or curiosity cannot be the subject matter of P.I.L. and that the
Constitutional Courts are not expected to conduct administration of the country and to be more
precise, of a charitable trust. He submits that this Court has found that not only effective mechanism
for regulating functioning of the trust under the existing legal framework is available, but there is
also an auditor appointed to ensure proper administration of the monies belonging to the Fund. He
further submits that this Court has found that if such prayer is granted, it would only amount to
interference in the administration of affairs of the Fund. He further points out that this Court has
also held that no exceptional public interest was shown to be involved in the petition and that, in

any case, donations to the Fund being voluntary, it would be for the donors to take appropriate
decision regarding making or not making of donations, through use of their 8 mcast10383.20.odt
discretion. He submits that, if any donor is apprehensive of misuse of his donation on the belief of
unregulated nature of the Fund because of absence of any effective mechanism to exercise
superintendence and control over it, he may better stay away from any such donation.
8. Learned Additional Solicitor General of India further submits that this Court has already
interpreted the bye-laws conferring power upon chairperson to nominate three trustees in a
particular way and hence, it would not be open for the applicant to seek re-consideration of such
interpretation on a spacious ground of error apparent on the face of record. He submits that an
interpretation considered to be erroneous is quiet different from an interpretation resulting from
non-consideration of the relevant provisions of law or failure to apply settled principles of law or
consideration of some facts not existing on record. Mr.Anil Singh further submits that, in the former
case, remedy would be of an appeal and in the latter case, the remedy would be of review. According
to him, the interpretation made by this Court falls in the first category 9 mcast10383.20.odt and
therefore, the only remedy for the applicant would be to challenge the same by way of an appeal
before the Supreme Court.
9. Mr.Anil Singh further submits that, even otherwise, the alternate mechanism for regulating the
functioning of any charitable trust is already in place in the general law. He invites our attention to
the provisions made in Section 92 of the Code of Civil Procedure and submits that these provisions
are more than effective for addressing concerns of the applicant. He also points out that, in the
Judgment under review, this Court has never observed that any particular Trust Act is applicable to
the charitable trust registered in Delhi and what this Court has expounded is of general import when
it said that there must be some Trust Act applicable to the Charities and Public Trusts registered in
Delhi and such "Trust Act" in general, as observed by this Court, would have to be understood as the
provisions made in general law such as those in Section 92 of the Code of Civil Procedure, which
govern the field.
10 mcast10383.20.odt
10. Before we proceed to deal with the rival
contentions, we would like to take a brief account of the nature and scope of review jurisdiction. The
law is well settled and the principles which emerge are as follows :
a.There must be a mistake apparent on the face of record. An error which is not
self-evident and which has to be detected by the process of reasoning cannot be said
to be an error apparent on the face of record justifying the Court to exercise its power
of review.
b.If the Judgment or order is passed upon assessment of a fact which in reality never
existed and the continuation of such Judgment or order has resulted in miscarriage
of justice, review of the Judgment would be necessary.

c.It is not open for the Court, in exercise of its review jurisdiction, to review the
Judgment merely because, at the time of review, the 11 mcast10383.20.odt reviewing
Court is inclined to take a different view upon the same facts and evidence.
d.While exercising review power, the reviewing Court does not sit in Judgment over
the decision of the Court deciding the case earlier.
e.A review is by no means an appeal in disguise whereby an erroneous decision is

reheard and corrected, but lies only for patent error.
f.Even if any mistake on the face of record is detected, review jurisdiction will not be exercised
unless the Court is satisfied that it is necessary to do so to prevent miscarriage of justice.\ These
principles of law have been culled out from various judgments forming a consistent line of
precedents, and in particular, from the judgments reported as follows :
1. Dr.Kamal Singh and Others vs. Sharad
Sureshsingh Baghel (2014 Indlaw MUM 52, ALL MR 497 2014).
2. Haryana State Industrial Development vs. Mawasi and Others (2012 Indlaw SC 203, (2012) 7 SCC
200).
3. Ram Sahu (Dead) through Lrs. vs. Vinod Kumar Rawat (2020 Indlaw SC 532).
Our appreciation of rival arguments would be within the above referred limits of review jurisdiction.
11. The petitioner-in-person has serious objection about the observations of this Court that the relief
regarding demanding public disclosure of the moneys received in the Fund and disbursement of
moneys from the Fund is already adequately taken care of with the Fund being governed by a
framework of law provided under the applicable Trust Act. The petitioner-in-person has pointed out
that this Court has also referred to several provisions made in the Trust Acts enacted by different
States which 13 mcast10383.20.odt touch upon various aspects such as appointment of auditor, duty
of auditor, power of Assistant Commissioner to issue necessary directions, provision of appeal to
Charity Commissioner and so on and so forth. The petitioner-in- person submits that this is done on
the premise that the purpose for which public disclosure of moneys received into and expended
from the Fund is effectively served; but the reality is, as discovered by him later, that there is no
Trust Act applicable to any Public Trust registered in Delhi which takes care of this aspect.
12. While it is true that this Court has indeed observed that the purpose for which public disclosure
has been demanded stands well served because of availability of effective mechanism and legal
framework under the applicable Trust Act and it is also true that this Court has summarised some of
the provisions made in the Trust Acts enacted by different State Legislatures. But, it will be seen,
upon careful reading of the Judgment under review, that this Court never made any observation that

the Fund, a Public Trust registered under the Registration Act, 1908, is 14 mcast10383.20.odt
subject to regulatory regimen of a particular Trust Act applicable and in force in the National Capital
region of New Delhi. The essence of the logic putforth by this Court in the Judgment under review
was of availability of some legal framework whereby regulation and control over the functioning and
governing of Public Trust like the Fund is ensured and in the process, transparency of working of the
moneys of the Fund is also achieved. It was upon such reasoning that this Court found that when the
concern about probable misuse of the Fund moneys is taken care of by some legal framework, it
would not be appropriate for this Court to grant the prayer demanding public disclosure of receipts
and expenditure of the Fund money, lest it would amount to meddling into administration of the
Fund and also unwarranted interference in the exercise of discretion of the Authorities, empowered
under the relevant and applicable law to exercise their superintendence and control over a
registered Public Trust of charitable or religious nature. So, the thrust of the argument of this Court
was upon availability of some regulatory mechanism rather than a particular law making available
such 15 mcast10383.20.odt framework. If this Court had referred to some of the provisions dealing
with such aspects as appointment of auditor, duty of auditor, power of Assistant Commissioner and
so on and so forth, such reference was only illustrative of the point canvassed by this Court and not
as something which was actually available as a matter of fact in some Trust Act enacted in the
National Capital region of New Delhi. In fact, at the cost of repetition, we would say that there was
no such observation ever made in the Judgment under review and whatever observations were
there, were only illustrative in nature, emphasizing upon the fact that the Fund was not an unruly
horse, that it was subject to reins of law, that it could be made to behave by law, if required.
However, we must admit that which particular law was there to leash the operation of Fund was not
specified by us. But, it was also not the case of anybody then and it is not even today that operation
of the Fund was and is completely unregulated and unfettered by any law.
13. The inevitable conclusion now would be that there is no error apparent on the face of record in
the 16 mcast10383.20.odt Judgment in respect of the observations generally made and without
pinpointing any particular law in the context of availability of sufficient regulatory mechanism
controlling the functioning and governing of the Fund thereby achieving the purpose for which
public disclosure of the receipts and expenditure of the Fund money has been sought by the review
applicant in the P.I.L. filed by him.
14. At this juncture, we find it necessary to make a reference to the provisions contained in Section
92 of the Code of Civil Procedure which have been pointed out to us by the learned Additional
Solicitor General of India. Ofcourse, no reference whatsoever has been made to Section 92 of the
Code of Civil Procedure in the Judgment under review. But, in our view, it has made no difference as
every one is presumed to know the law and it's mention or no mention in the Judgment would not
lead to a conclusion that inference drawn in the Judgment regarding availability of a legal
framework to achieve the purpose of disclosure sought by the petitioner-in-person is erroneous.
Since, an opportunity now has been afforded to us to refer to this 17 mcast10383.20.odt provision of
law and it is also of salutary importance from the view point of regulation of public trusts of
charitable or religious nature, we feel it appropriate to re-produce it here. It reads thus :

"92. Public charities.--(1) In the case of any alleged breach of any express or
constructive trust created for public purposes of a charitable or religious nature, or
where the direction of the Court is deemed necessary for the administration of any
such trust, the Advocate-General, or two or more persons having an interest in the
trust and having obtained the [leave of the Court,] may institute a suit, whether
contentious or not, in the principal Civil Court of original jurisdiction or in any other
Court empowered in that behalf by the State Government within the local limits of
whose jurisdiction the whole or any part of the subject- matter of the trust is situate
to obtain a decree :--
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee; (cc) directing a trustee who has been removed or
a person who has ceased to be a trustee, to deliver possession of any trust property in
his possession 18 mcast10383.20.odt to the person entitled to the possession of such
property];
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be
allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged
or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.
(2)Save as provided by the Religious Endowments Act, 1863 (20 of 1863), [or by any
corresponding law in force in [the territories which, immediately before the 1st
November, 1956, were comprised in Part B States]], no suit claiming any of the reliefs
specified in sub-section (1) shall be instituted in respect of any such trust as is therein
referred to except in conformity with the provisions of that sub-section.
[(3) The Court may alter the original purposes of an express or constructive trust
created for public purposes of a charitable or religious nature and allow the property
or income of such trust or any portion thereof to be applied cy pres in one or more of
the following circumstances, namely :--

(a)where the original purposes of the trust, in whole or in part,--
(i) have been, as far as may be, fulfilled; or
(ii)cannot be carried out at all, or cannot be carried out according to the directions
given in the instrument creating the trust or, where there is no such instrument,
according to the spirit of the trust; or
(b) where the original purposes of the trust provide a use for a part only of the
property available by virtue of the trust; or
(c) where the property available by virtue of the trust and other property applicable
for similar purposes can be more effectively used in conjunction with, and to that end
can suitably be made applicable to any other purpose, regard being had to the spirit
of the trust and its applicability to common purposes; or
(d) where the original purposes, in whole or in part, were laid down by reference to
an area which then was, but has since ceased to be, a unit for such purposes; or
(e) where the original purposes, in whole or in part, have, since they were laid
down,--
(i) been adequately provided for by other means, or 20 mcast10383.20.odt
(ii) ceased, as being useless or harmful to the community, or
(iii) ceased to be, in law, charitable, or
(iv) ceased in any other way to provide a suitable and effective method of using the
property available by virtue of the trust, regard being had to the spirit of the trust.]
15. It would be clear from the above referred provisions that a very effective regulatory mechanism
for putting restrain upon the functioning of public trusts of charitable or religious nature is already
available in the general law of the land. These provisions indicate that power of the Court to
supervise and exercise its control over a public trust of charitable or religious nature is enormous.
Through it's decree, a Civil Court can remove any trustee, can appoint new trustee, can vest any
property in a trustee, can direct accounts and inquiries, can settle a Scheme and can do many other
things which it deems fit to do to achieve as nearly as possible the objects of the trust. Under
sub-section (3), the Court may alter the original purposes of an express or constructive trust created
for public purposes of a charitable or religious nature and allow 21 mcast10383.20.odt the property
or income of such trust or any portion thereof to be applied cy pres in one or more of the
circumstances delineated in clauses (a) to (e) thereof. These provisions only suggest that the power
of the Court to regulate functioning of a Public Trust of charitable or religious nature is all
embracing and effective.

16. Of course, Mr.Waghmare, the petitioner-in- person, would submit that Section 92 remedy is not
so effective because as a condition precedent for institution of Civil Suit, leave of the Court is
required to be obtained. He also submits that, in the present case, there are several persons from all
over India including Vidarbha region who have made donations to the Fund and if they are to know
about application of the Fund money or raise any grievance in that regard, they would be required to
go to New Delhi, which would not be a practicable solution for satiating their curiosity or redressing
their grievance. The argument is preposterous for two reasons. Firstly, it is founded upon a
conjecture that leave by the Court will not be granted. A conjecture has no place in law, it is an
outlaw in law.
22 mcast10383.20.odt Secondly, it seeks to mix up two seemingly heterogeneous concepts, viz.

territorial jurisdiction and inconvenience. Territorial jurisdiction goes with place of cause of action
and may be coupled with place of business or residence, inconvenience goes as an idiosyncrasy of a
person, atleast till law takes care of it. But, if the law does not take it's care, a person taking recourse
to a remedy under law cannot say that the remedy is ineffective as, in availing of it at a place where
the cause of action has arisen, some inconvenience is caused to him. The argument is, therefore,
rejected.
17. Thus, we find that there is no error apparent on the face of record in the Judgment under review
on the question of making public disclosure of receipts into and expenditure from the Fund as
mandatory and the Fund being subject to regulatory framework of law, thereby giving assurance
about transparency of operation of the Fund.
18. Apart from what is stated above, it may also be noticed here that the prayer demanding public
disclosure of the Fund money has not been rejected only on the ground of availability of effective
mechanism to regulate functioning of the Fund, but also on some other grounds additionally given
in the Judgment under review. This Court found that it was not every matter of public interest or
curiosity which could be made subject matter of P.I.L. and that Constitutional Courts were not
expected to conduct administration of country; to be precise, of any charitable trust. This Court
further found that if any such prayer demanding public disclosure of the Fund money was to be
granted, in the facts and circumstances discussed in the Judgment under review, it may amount to
interference in the administration of affairs of the Fund and also power of the Authorities exercising
superintendence and control over the Fund. This Court further found that the petitioner-in- person
did not point out any gross violation of constitutional or statutory provisions which was a sine qua
non for invoking public interest jurisdiction. Lastly, this Court noted that the contributions to the
Fund were voluntary in nature 24 mcast10383.20.odt and that there was no compulsion for any one
to donate. This Court took note of the discretion to be wisely exercised in such matters by the
donors, which was eloquently reflected in the words of William Shakespeare in his play Henry IV,
(Henry The Fourth Part 1 Act 5, Scene 4, 115-121) that, " The better part of Valour is Discretion; in
the which better part, I have sav'd my life. " In other words, if any donor is apprehensive about
proper utilisation of his donation, about inconvenience that may be caused to him in going to New
Delhi to air his grievance, and the like, he may better choose to not donate, there being no

compulsion to do any charity.
19. All these additional grounds taken in the Judgment have not been questioned by the
petitioner-in- person for their correctness. The petitioner-in-person has not shown as to how these
additional grounds are replete with manifest errors. This perspective opens another window
enabling us to again find that the grievance of the petitioner-in-person regarding his demand for
public disclosure of the Fund money based upon non-availability of 25 mcast10383.20.odt any
effective regulatory mechanism applicable to the Fund in New Delhi is devoid of any merit.
20. The petitioner-in-person has an objection about the interpretation made by this Court of the
provision conferring power upon chairperson of the Board of Trustees to nominate three trustees on
the Board. This Court found that this was an enabling provision giving discretion to the chairperson
and not obligating him to nominate three trustees. The petitioner-in-person submits that this
interpretation is patently erroneous for the reason that, in the relevant bye-laws, the words used are
"the Chairperson of the Board of Trustees (PM) shall have power to nominate three trustees to the
Board of Trustees" and "any person appointed a trustee shall act in a pro bono capacity". The
argument, however, deserves it's rejection forthright and reasons are two-fold.
21. Firstly, the view taken by this Court is based upon the interpretation purely flowing from
consideration of the expressions employed in the relevant bye-laws without 26 mcast10383.20.odt
the aid of any other material. The interpretation is made upon our understanding, pure and simple,
of the provisions made in the bye-laws. If the petitioner-in-person thinks that it is incorrect or there
is another interpretation available than the one made by this Court, the remedy for the
petitioner-in-person would be, not a review application, but a proper appeal before the Apex Court.
22. Secondly, even if the words "shall have the power to nominate three trustees" are read in
conjunction with the words "any person appointed a trustee shall act in a pro bono capacity", it
would not result in logically arriving at a different interpretation. These expressions only show that
the Chairperson of the Board of Trustees is possessed of the power to nominate Trustees, which is
not coupled with a duty to exercise it. Being invested with power to do an act simplicitor is not akin
to a duty imposed upon an Authority to exercise the power given to it. The words "shall have a
power to nominate" are only indicative of investiture of power and not of imposition of any duty to
exercise the power. Similarly, when another bye-law lays down that any 27 mcast10383.20.odt
person appointed a trustee shall act in a pro bono capacity, it only lays bare nature of his
appointment, which is charitable and not commercial or professional. Such bye-law would only
denote the character of office of a trustee nominated to the Board of Trustees and not what a
Chairperson can do in the matter of nomination of three trustees and therefore, let us not mistake it
with the other bye-law conferring power on the Chairperson to nominate Trustees. As such, joint
reading of these two bye-laws is not going to help the review applicant in successfully bringing home
his point of erroneous interpretation of the power of Chairperson to nominate trustees as being
discretionary and not mandatory in nature. The argument is, therefore, rejected.
23. With the rejection of the argument of the petitioner-in-person regarding mandatory nature of
power of Chairperson to nominate three trustees, as a logical corollary to it, there would also be

rejection of his submission regarding the error committed by this Court in refusing to grant third
prayer for setting aside the appointment of SARC Associates as auditor of the Fund.
24. There are two more points raised by the
petitioner-in-person which need our consideration. He has expressed his discomfiture about
non-consideration of his argument that unless all trustees are appointed, the Fund cannot function,
there being no coram. He is also not happy with our observations made in para 17, which he thinks
to be contradictory and unwarranted owing to obiter dicta like observations of the Supreme Court.
The petitioner-in- person is wrong on both scores, and we think, he needs to take a relook and
thoroughly at all our findings and observations made in paras 31 and 17 of our judgment. If he does
it, he will get the answer. Even otherwise, these objections are basically about incorrect findings and,
therefore, lie in the domain of appeal jurisdiction.
25. We, thus, find that there is no merit in this review petition. The review petition stands
dismissed. No costs.
JUDGE JUDGE
[jaiswal]

Subhash Chandra Agrawal vs Supreme Court Of India on 14 August, 2020
Central Information Commission

Author: Bimal Julka
CENTRAL INFORMATION COMMISSION
Appeal No. CICWB/A/2009/000529
dated 29.4.2009
Right to Information Act 2005 - Section 19
Appellant - Shri Subhash Chandra Agrawal

Respondent - Supreme Court of India (SCI)
Decision announced:24.11.2009
Facts
By an application of 23.1.09 received by the CPIO on 27.1.09 Shri Subhash Chandra Agrawal of
KuchaLatoo Shah, Dariba, Delhi sought the following information from the CPIO, Supreme Court of
India Shri Raj Pal Arora:
"Kindly arrange to send me copy of complete file/s (only as available in Supreme

Court) inclusive of copies of complete correspondence exchanged between concerned
constitutional authorities with file notings relating to said appointment of Mr. Justice
HL Dattu, Mr. Justice A. K. Ganguly and Mr. Justice RM Lodha superseding seniority
of Mr. Justice AP Shah, Mr. Justice AK Patnaik and Mr. Justice VK Gupta as allegedly
objected to Prime Minister's Office (PMO) also. Please do not invoke section 6 (3) on
this RTI petition, as I need copy of the file on the issue only as available at Supreme
Court. Kindly attached file notings on movement of this RTI petition also. Postal
order number 77E 255672 for rupees ten is enclosed herewith towards RTIfees."
To this Shri Subhash Chandra Agrawal received a response on 25.2.2009 from CPIO Shri Arora
informing him as follows:
"I write to inform you that this Registry does not deal with the matters pertaining to
appointment of Hon'ble Judges in the Supreme Court and High Court of India.
Appointments of Hon'ble Judges of the Supreme Court and High Courts are made by
the President of India as per the procedure prescribed by law and the matters relating
thereto are not dealt with and handled by the Registry of the Supreme Court of India.
Such information sought by you is neither maintained nor available in the Registry.
Hence your request cannot be acceded to under the Right to Information Act,2005."
Not satisfied Shri Agrawal moved an appeal before Shri M.P. Bhadran, Registrar on 28.2.2009 with
the following plea:
"I quoted paragraph 81 of the esteemed Supreme Court verdict in the matter 'SP
Gupta vs. Union of India (1981suppSC87)' "If we approach the problem before us in
the light of these observations, it will be clear that the class of documents consisting
of the correspondence exchanged between the Law Ministry or other high level
functionary of the Central Government, the Chief Justice of the High Court, the State
Government and the Chief Justice of India in regard to appointment or
non-appointment of a High Court judge or Supreme Court judge or the transfer of a
High Court Judge and the notes made by these constitutional functionaries in that
behalf cannot be regarded as a protected class entitled to immunity against
disclosure".
But instead of providing me copies of sought documents, the learned CPIO vide his
reply DY. No. 670/RTI/08-09/SCI dated 25.2.2009 tried to explain me the
procedure of appointment of judges, which I never tried to enquire."
This appeal was dismissed on 25.3.09 by appellate authority Shri Bhadran, as follows:
"CPIO has informed the appellant that Registry is not dealing with the matters
pertaining to appointment of Hon'ble Judges in the Supreme Court of India, that
appointment of Hon'ble Judges of the Supreme Court is made by the President of
India as per the procedure prescribed by law and the matters relating thereto are not
dealt with and handled by the Registry of Supreme Court of India and that such
information is neither maintained nor available in the Registry. I find no reasons to
disagree with the reply forwarded by the CPIO to the appellant. The information
sought by the appellant also does not come within the ambit of Sections 2(f) and (j) of
RTI Act. There is no merit in this appeal and it is only to be dismissed."
Appellant Shri Subhash Chandra Agrawal's prayer before us in his second appeal is as below:
"Authorities at Supreme Court may kindly be directed to kindly provide me copy of

complete file/s (copy as available in Supreme Court) inclusive of copies of complete
correspondence exchanged between concerned constitutional authorities with file
notings relating to appointment of Mr. Justice HL Dattu, Mr. Justice A. K. Ganguly
and Mr. Justice RM Lodha superseding seniority of Mr. Justice AP Shah, Mr. Justice
AK Patnaik and Mr. Justice VK Gupta.
Any other relief deemed fit in favour of the petitioner may kindly be allowed."
The appeal was heard together with appeal Nos. CIC/WB/A/2009/000001, 735, 859, 408, 410, 411
& 530 on 20.11.2009. In this case, however, Shri DevaduttKamat, Learned Counsel for the Supreme
Court sought adjournment, which was agreed to. The appeal was then heard on 23.11.2009. The
following are present:

Appellant Sh. Subhash Chandra Agrawal Sh. PrashantBhushan, Advocate Sh.

Mayank Mishra, Advocate Respondents Sh. Raj Pal Arora, Addl. Registrar / CPIO Sh.
DevaduttKamat, Advocate for SCI Ms. PriyankaTelang, Advocate Learned Counsel
for respondents Shri DevaduttKamat, submitted a written statement of his
arguments in which his plea is based on the ground that the information sought by
appellant Shri Subhash Chandra Agrawal in the present case falls squarely within the
exemption u/s 8(1)(e) of the RTI Act. He has, in this context, closely examined the
meaning of the term 'fiduciary' and in this connection has quoted from the decision
of the Supreme Court in Subhash Sharma vs. Union of India - (1991) (Supp) 1-SCC
574 specifically with reference to information held under Article 124 of the
Constitution or in discharge of a trust, as follows:
"It is a participatory constitutional function. It is, perhaps, inappropriate to refer to

any 'power' or 'right' to appoint Judges. It is essentially a discharge of a constitutional
trust of which certain constitutional functionaries are collectively repositories.' He
has gone on to describe the role of the Chief Justice of India in the appointment
process, as below:
"It is submitted that the Chief Justice of India whilst performing his functions under
Article 124 (2) acts in a fiduciary capacity visa a vis other judges and Chief Justices of
High court. The information made available with the Chief Justice in pursuance of his
functions under article 124 (2) is held in confidence and in trust being the pater
families of the Judiciary for the purposes for forming an opinion under article 124
(2).
In the SC Advocates case, the Hon'ble Supreme Court whilst elaborating on the role
of chief Justice in the consultation process held that the provisions for consultation
with CJI was introduced in the Constitution as he was best equipped to know and
assess the worth of the candidate. It is submitted that the 'information' about the
candidate available with the Chief Justice is in fiduciary capacity as the pater families
of the Judiciary."
Shri Kamat has also quoted from the decision of Justice Verma in Supreme Court
Advocates on Record Association vs. Union of India -
(1993) 4 SCC 441, as follows:
"452. This is not surprising if we remember that even in United Kingdom where
similar judicial appointments are in the absolute discretion of the executive, these
appointments are made by convention on the advice of the Prime Minister after
consultation with the Lord Chancellor, who himself consults with senior members of
the judiciary before making his choice or consulting with the Prime Minister and the
Prime Minister would depart from the recommendations of the Lord Chancellor only
in the most exceptional case. (See The Politics of Judiciary- J.A. G. Griffith at pp.

17-18). The Lord Chancellor, Lord Mackay speaking recently on 'The Role of the
Judge in a Democracy said:
One of the most important responsibilities of a Lord Chancellor in our democracy is

for judicial appointments. It is my duty to ensure that neither political bias, nor
personal favouritism, nor animosity play any party in the appointment of judges and
that they are selected regardless of sex, ethnic origin or religion on the basis of their
fitness to carry out the solemn responsibility of judicial office. I look for those with
integrity, professional ability, experience, and standing, a sound temperament and
good health. To achieve this I consult widely and regularly with the judges, Law Lords
and other members of the legal profession. I naturally attach particular importance to
the opinion of the Division of the High Court. Judges therefore have an important
role in judicial appointments, albeit informally father than prescribed by statute."
(Emphasis supplied)."
He has further gone on to contest the application of the observations of the learned Single Judge in
W.P.No.288/2009 paras 54 to 59 in which Justice Ravinder Bhat has examined the application of
the term fiduciary relationship, contending that the learned Judge "has not at all held that the Chief
Justice of the Supreme Court does not act in a fiduciary capacity vis a vis Judges or Chief Justices of
the High court." He has then argued as below:
"It is submitted that the information sought for relates to the personal information
relating to the suitability of a candidate. It is submitted that the information sought
for is pure and simple personal information relating to the judges which is exempt
from disclosure.' In support of this line of argument, learned counsel for respondents
Shri DevaduttKamat has then gone on to quote extensively from Supreme Court
Advocates case referred to above, as below:
"462. The constitutional purpose to be served by these provisions is to select the best
from amongst those available for appointment as judges of the superior judiciary,
after consultation with those functionaries who are best suited to make the selection.
It is obvious that only those persons should be considered fit for appointment as
judges of the superior judiciary who combine the attributes essential for making an
able, independent and fearless judge. Several attributes together combine to
constitute such a personality. Legal expertise, ability to handle cases, proper personal
conduct and ethical attributes of a person suitable for appointment as a superior
judge. The initial appointment of judges in the High Courts is made from the Bar and
the subordinate judiciary. Appointment to the Supreme Court is mainly from
amongst High Court Judges, and on occasions directly from the Bar. The arena of
performance of those men are the courts. It is, therefore, obvious that the maximum
opportunity for adjudging their ability and traits, is in the Courts and, therefore, the
judges are best suited to assess their true worth and fitness for appointment as
Judges. This is obviously the reason for introducing the requirement of consultation
with the Chief Justice of India in the matter of appointment of all Judges, and with

the Chief Justice of the High Court in the case of appointment of a Judge in a High
Court. Even the personal traits of the members of the Bar and the Judges are quite
often fully known to the Chief Justice of India and the Chief Justice of the High Court
who get such information from various sources. There may, however, be some
personal trait of an individual lawyer or Judge, which may be better known to the
executive and may be unknown to the Chief Justice of India and the Chief Justice of
the High Court, and which may be relevant for assessing his potentially to become a
good judge. It is for this reason, that the executive is also one of the consultees in the
process of appointment. The object of selecting the best men to constitute the
superior judiciary is achieved by requiring consultation with not only the judiciary
but also the executive to ensure that every relevant particular about the candidate is
known and duly weighed as a result of effective consultation between all the
consultees before the appointment is made."
He has then concluded that there is no public interest involved in the present case
and that the Hon'ble Supreme Court in the Supreme Court Advocates case has
specifically held that public interest lies in keeping appointments and transfers
undisclosed. He has, in this context, gone on to again quote from this decision, as
below:
"This is also in accord with the public interest of excluding these appointments and
transfers from litigative debate, to avoid any erosion in the credibility of the
decisions, and to ensure a free and frank expression of hones to opinion by all the
constitutional functionaries, which is essential for effective consultation and for
taking the right decision. The growing tendency of needless intrusion by strangers
and busybodies in the functioning of the judiciary under the garb of public interest
litigation."
Learned Counsel has contested the reliance of appellant on the decision of the
Hon'ble Supreme Court in S. P. Gupta vs. Union of India (1981) (Supp) SCC 87.
Finally learned Counsel Sh. Kamat has rested his arguments on a decision of this
Commission of 2006 in Sh. Mukesh Kumar vs. Supreme Court of India in F. No.
CIC/AT/A/2006/00113 in which we have held as follows:
"Arguably, there is merit in the contention that certain processes are best conducted
away from the public gaze, for that is what contributes to sober analysis and mature
reflection, unaffected by competing pressures and public scrutiny. If there is one
process which needs to be so protected, the process of selecting the judges of the
High Court's and the Supreme Court must quality to be one such.' In light of a
subsequent decision of this Commission Shri Kamal has invited our attention to the
ruling of the Supreme Court in Companies Textiles Industries Ltd. vs. Deepak Jain
and anr. In Civil Appeal No.1743/2009 decided on March 20, 2009 in which the
Hon'ble Supreme Court has held as follows:

"We are also constrained to observe that while dealing with the second revision
petition, the High Court failed to take into consideration the order passed by a
learned Single Judge on 21.8.2002 whereby the executing court was directed to
conducted inquiry in regard to the status of the objector to the execution proceedings.
Time and again it has been emphasised that judicial prosperity and decorum requires
that if a Single Judge, hearing a matter, feels that earlier decision of a Single Judge
needs reconsideration, he should not embark upon that enquiry, sitting as a Single
Judge, but should refer the matter to a larger bench.
Regrettably, in the present case, the learned Single judge departed from the said
healthy principle and chose to re-examine the same question himself.' He has gone
on to provide a very detailed argument in this regard, as below:
"It is well settled that a coordinate bench cannot overrule an earlier decision of the
same strength. It is submitted that the decision in Mukesh Kumar's case has not been
expressly overruled by any of the decisions of this Commission. No appeal also
appears to have been filed against the said decision. In these circumstances, the
decision in Mukesh Kumar's case is binding unless overturned by a larger bench. It
has already been pointed out that the larger bench decisions of this Commission did
not deal with the position of the Chief Justice and the issues, which arose in Mukesh
Kumar's case, did not arise for consideration in the other decisions.
The Hon'ble Supreme Court in S. I. Rooplal&Anr. Vs. Lt. Governor through Chief
Secretary, Delhi (2000) 1 SCC 644 has laid down that it is not open for a bench of
coordinate jurisdiction to overrule a decision rendered by another coordinate bench
of the same strength. It was held that:
"At the outset, we must express our serious dissatisfaction to regard to the manner in
which a coordinate Bench of the tribunal has overrules, in effect, an earlier judgment
of another coordinate Bench of the same tribunal. This is opposed to all principles of
judicial discipline. It at all, the subsequent Bench of the tribunal was of the opinion
that the earlier view taken by the coordinate Bench of the same tribunal was
incorrect, it ought to have referred the matter to a larger Bench so that the difference
of opinion between the two coordinate Benches on the same point could have been
avoided."
Learned counsel Shri Kamat has therefore conclude that we cannot rely on the
subsequent decisions of this Commission, which moreover have been challenged in
Writ before the High Court of Delhi, but instead place reliance on our decision in Sh.
Mukesh Kumar vs. Supreme Court of India in F. No. CIC/AT/A/2006/00113, which
moreover stands without challenge.
Learned Counsel for appellant Shri Prashant Bhushan on the other hand submitted that the decision
of this Commission cited by learned Counsel for respondents Shri DevaduttKamat is overridden not

by the subsequent decisions of this Commission in CIC/WB/A/2006/00460 announced on

23.3.2007 and CIC/AT/A/2008/00736 announced on 19.1.2009 but by the decision of Justice
Bhagwati in S.P. Gupta vs. Union of India - AIR (1982) SC 149 upon which the decision of this
Commission of 23.3.07 is based. Besides, on the principle of per incurismthe decision of 23.3.2007
cannot be invalidated on the basis of the earlier decision of this Commission cited by learned
Counsel for respondents as that decision was never brought to the notice of the Commission in its
hearing on 16.3.2007 and, therefore, finds no reference in the decision of 23.3.2007 in File No.
CIC/WB/A/2006/00460. He has then gone on to quote from the decision of the Supreme Court in
S.P. Gupta vs. Union of India - AIR (1982) SC 149, upon which he has relied, as follows:
82. These selfsame reasons must apply equally in negativing the claim for immunity
in respect of the correspondence between the Law Minister and the Chief Justice of
India and the relevant notings made by them in regard to the transfer of a High Court
Judge including the Chief Justice of a High Court. These documents are extremely
material for deciding whether there was full and effective consultation with the Chief
Justice of India before effecting the transfer and the transfer was made in public
interest, both of which are, according to the view taken by us, justiciable issues and
thenon disclosure of these documents would seriously handicap the petitioner in
showing that there was no full and effective consultation with the Chief Justice of
India or that the transfer was by way of punishment and not in public interest. It
would become almost impossible for the petitioner, without the aid of these
documents, to establish his case, even if it be true.
Moreover, the transfer of a High Court Judge or Chief Justice of a High Court is a very serious
matter and if made arbitrarily or capriciously or by way of punishment or without public interest
motivation, it would erode the independence of the judiciary which is a basic feature of the
Constitution and therefore, when such a charge is made it is in public interest that it should be fully
investigated and all relevant documents should be produced before the court so that the full facts
may come before the people, who in a democracy are the ultimate arbiters. It would be plainly
contrary to public interest to allow the inquiry into such a charge to be baulked or frustrated by a
claim for immunity in respect of documents essential to the inquiry. It is also important to note that
when the transfer of a High Court Judge or Chief Justice of a High Court is challenged, the burden
of showing that there was full and effective consultation with the Chief Justice of India and the
transfer was effected in public interest is on the Union of India and it cannot withhold the relevant
documents in its possession on a plea of immunity and expect to discharge this burden by a mere
statement in an affidavit. Besides, if the reason for excluding these documents is to safeguard the
proper functioning of the higher organs of the State including the judiciary, then that reason is
wholly inappropriate where what is charged is the grossly improper functioning of those very
organs. It is, Court Judge or Chief Justice of a High Court is challenged, no immunity can be claimed
in respect of the correspondence exchanged between the Law Minister and the Chief Justice of India
and the notings made by them, since, on the balance, the non-disclosure of these documents would
cause greater injury to public interest than what may be caused by their disclosure. (Emphasis
added)

83. But, quite apart from these considerations, we do not understand how the disclosure of the
correspondence exchanged between the Law Minister, the Chief Justice of the High Court, the State
Government and the Chief Justice of India and the relevant notes made by them in regard to non
appointment of an Additional Judge for a further term or transfer of a High Court Judge can be
detrimental to public interest. It was argued by the learned Solicitor-General on behalf of the Union
of India that if the Chief Justice of the High Court and the Chief Justice of India differ in their views
in regard to the suitability of an Additional Judge for further appointment, the disclosure of their
views would cause considerable embarrassment because the rival views might be publicly debated
and there might be captious and uninformed criticism which might have the effect of undermining
the prestige and dignity of one or the other Chief Justice and shaking the confidence of the people in
the administration of justice. If the difference in the views expressed by the Chief Justice of the High
Court and the Chief Justice of India becomes publicly known, contended the learned
Solicitor-General, it might create a difficult situation for the Chief Justice of the High Court vis-à-vis
the Chief Justice of India and if despite the adverse opinion of the Chief Justice of the High Court,
the Additional Judge is continued for a further term, and the Additional Judge knows that he has
been so continued overruling the view of the Chief Justice of the High Court, it might lead to a
certain amount of friction which would be detrimental to the proper functioning of the High Court.
So also if an Additional Judge is continued for a further term accepting the view expressed by the
Chief Justice of the High Court and rejecting the opinion of the Chief Justice of India, it would
against create a piquant situation because it would affect the image of the Chief Justice of India in
the public eyes. Moreover, a feeling might be created in the mind of the public that a person who
was regarded as unsuitable for judicial appointment by one or the other of the two Chief Justices,
has been appointed as a Judge and the litigants would be likely to have reservations about him and
the confidence of the people in the administration of justice would be affected. The learned
Solicitor-General contended that for these reasons it would be injurious to public interest to disclose
the correspondence exchanged between the Law Minister, the Chief Justice or the High Court and
the Chief Justice of India.
84. We have given our most anxious thought to this argument urged by the leaned Solicitor General,
but we do not think we can accept it. We do not see any reason why, if the correspondence between
the Law Minister, the Chief Justice of the High Court and the Chief Justice of India and the relevant
notes made by them, in regard to discontinuance of an Additional Judge are relevant to the issues
arising in a judicial proceeding, they should not be disclosed. There might be difference of views
between the Chief Justice of the High Court and the Chief Justice of India but so long as the views
are held bona fide by the two Chief Justices, we do not see why they should be worried about the
disclosure of their views? Why should they feel embarrassed by public discussion or debate of the
views expressed by them when they have acted bona fide with the greatest care and circumspection
and after mature deliberation. Do Judges sitting on a Division Bench not differ from each other in
assessment of evidence and reach directly contrary conclusions on questions of fact? Do they not
express their judicial opinions boldly and fearlessly leaving it to the jurists to decide which of the
two differing opinions is correct? If two Judges do not feel any embarrassment in coming to
different findings of fact which may be contrary to each other, why should two Chief Justices feel
embarrassed if the opinions given by them in regard to the suitability of an Additional Judge for
further appointment differ and such differing opinions are made known to the public. Not only

tolerance but acceptance of bonafide difference of opinion is a part of judicial discipline and we find
it difficult to believe that the disclosure of their differing opinions might create a strain in the
relationship between the Chief Justice of the High Court and the Chief Justice of India. We have no
doubt that the Chief Justice of the High Court would come to his own independent opinion on the
material before him and he would not surrender his judgment to the Chief Justice of India, merely
because the Chief Justice of India happens to be head of the judiciary having a large voice in the
appointment of Judges on the Supreme Court Bench. Equally we are confident that merely because
the Chief Justice of the High Court has come to a different opinion and is not prepared to change
that opinion despite the persuasion of the Chief Justice of India, no offence would be taken by the
Chief Justice of India and he would not harbour any feeling of resentment against the Chief Justice
of the High Court. Both the Chief Justices have trained judicial minds and both of them would have
the humility to recognize that they can be mistaken in their opinions. We do not therefore see any
real possibility of estrangement or even embarrassment for the two Chief Justices, if their differing
views in regard to the suitability of an Additional Judge for further appointment are disclosed. We
also find it difficult to agree that if the differing views of the two Chief Justices become known to the
outside world, the public discussion and debate that might ensue might have the effect of lowering
the dignity and prestige of one or the other of the two Chief Justices. When the differing views of the
two Chief Justices are made public as a result of disclosure, there would certainly be public
discussion and debate in regard to those views with some criticizing one view and some criticising
the other, but that cannot be helped in a democracy where the right of free speech and expression is
a guaranteed right and if the views have been expressed by the two Chief Justices with proper care
and deliberation and a full sense of responsibility in discharge of a constitutional duty, there is no
reason why the two Chief Justices should worry about public criticism. We fail to see how such
public criticism could have the effect of undermining the prestige and dignity of one or the other
Chief Justice. So long as the two Chief Justices have acted honestly and bona fide with full
consciousness of the heavy responsibility that rests upon them in matters of this kind, we do not
think that any amount of public criticism can affect their prestige and dignity. But if either of the
two Chief Justices has acted carelessly or improperly or irresponsibly or out of oblique motive, his
view would certainly be subjected to public criticism and censure and that might show him in poor
light and bring him down in the esteem of the people, but that will be the price which he will have to
pay for his remissness in discharge of his constitutional duty. No Chief Justice or Judge should be
allowed to hide his improper or irresponsible action under the clock of secrecy. If any Chief Justice
or Judge has behaved improperly or irresponsibly or in a manner not befitting the high office he
holds, there is no reason why his action should not be exposed to public gaze. We believe in an open
government and openness in government does not mean openness merely in the functioning of the
executive arm of the State. The same openness must characterize the functioning of the judicial
apparatus including judicial appointments and transfer. Today the process of judicial appointments
and transfers is shrouded in mystery. The public does not know how Judges are selected and
appointed or transferred and whether any and if so what, principles and norms govern this process.
The exercise of the power of appointment and transfer remains a sacred ritual whose mystery is
confined only to a handful of high priests, namely the Chief Justice of the High Court, the Chief
Minister of the State, the Law Minister of the Central Government and the Chief Justice of India. In
case of appointment or non appointment of a High Court Judge and the Law Minister of the Central
Government and the Chief Justice of India in case of appointment of a Supreme Court Judge or

transfer of a High Court Judge. The mystique of this process is kept secret and confidential between
just a few individuals, not more than two or four as the case may be, and the possibility cannot
therefore be ruled out that howsoever highly placed may be these individuals, the process may on
occasions result in making of wrong appointments and transfers and may also at times, though
fortunately very rare, lend itself to nepotism, political as well as personal and even trade off. We do
not see any reason why this process of appointment and transfer of Judges should be regarded as so
sacrosanct that no one should be able to pry into it and it should not be protected against disclosure
at all events and in all circumstances. Where it becomes relevant in a judicial proceeding, why
should the Court and the opposite party and through them the people not know what are the reasons
for which a particular appointment is made or a particular Additional Judge is discontinued or a
particular transfer is affected. We fail to see what harm can be caused by the disclosure of true facts
when they become relevant in a judicial proceeding. In fact, the possibility of subsequent disclosure
would act as an effective check against carelessness, impetuosity, arbitrariness or mala fides on the
part of the Central Government, the Chief Justice of the High Court and the Chief Justice of India
and ensure bona fide and correct approach objective and dispassionate consideration, mature
thought and deliberation and proper application of mind on their part in discharging their
constitutional duty in regard to appointments and transfers of Judges. It is true that if the views
expressed by the Chief Justice of the High Court and the Chief Justice of India in regard to the
suitability of an Additional Judge for further appointment become known to the public, they might
reflect adversely on the competence, character or integrity of the Additional Judge, but the
Additional Judge cannot legitimately complain about it, because it would be at his instance that the
disclosure would be ordered and the views of the two Chief Justices made public. If the Additional
Judge is appointed for a further term either accepting the opinion expressed by the Chief Justice of
the High Court in preference to that of the Chief Justice of India or vice versa, the question of
disclosure of differing opinions of the two Chief Justices would not arise, because no one would
know that the two Chief Justices were not agreed on continuing the Additional Judge for a further
term and therefore, ordinarily, there would be no challenge to the appointment of the Additional
Judge. It is only if the Additional Judge is not continued for a further term that he or someone on
his behalf may challenge the decision of the Central Government not to continue him and in that
event, if he asks for disclosure of the relevant correspondence embodying the views of the two Chief
Justices, and if such disclosure is ordered, he has only himself to thank for it and in any event, in
such a case there would be no harm done to public interest if the views expressed by the two Chief
Justices become known to the public." . (Emphasisadded)"
This decision stands and has neither been challenged nor modified by any subsequent decision of
the Supreme Court.
Shri Prashant Bhushan further submitted that respondent has not taken the plea of exemption u/s
8(1)(e) earlier nor the plea that the information sought is not under the control of Chief Justice of
India, as a public authority. However, he conceded that in case the information sought contained
any information of a personal nature warranting exemption u/s 8(1)(j), this can be exempted under
the severability clause contained in Sec. 10(1) while making the disclosure.

DISCUSSION & DECISION NOTICE . Because respondents have not raised the issue now raised
either in refusing the information in the initial stage or in considering the appeal, we cannot now
hold that in consequence they are debarred from taking this plea at this stage. This was indeed the
plea taken by the Registry of the Supreme Court of India in its Writ Petition No.2008/09 moved
before the High Court of Delhi against an earlier decision of this Commission but since in the
decision of Justice RavinderBhat in WP(C) 228/2009, CPIO Supreme Court of India vs. SC
Agrawal&Anr.itisconcededthattheChiefJusticeofIndiaisindeedapublic authority, it is in that context
that the present plea for exemption has been taken. Therefore, this contention of appellant is
unsustainable.
On the other hand, the question lies squarely on whether the ruling of Justice RavinderBhat in this
case on the question of fiduciary relationship will be applicable in the present case. His ruling is as
follows:
54. The petitioners argue that assuming that asset declarations, in terms of the 1997
constitute "information" under the Act, yet they cannot be disclosed - or even
particulars about whether, and who made such declarations, cannot be disclosed - as
it would entail breach of a fiduciary duty by the CJI. The petitioners rely on Section 8
(1) (f) to submit that a public authority is under no obligation to furnish "information
available to a person in his fiduciary relationship". The petitioners emphasize that the
1997 Resolution crucially states that:
"The declaration made by the Judges or the Chief Justice, as the case may be, shall be
confidential."
The respondent, and interveners, counter the submission and say that CJI does not
stand in the position of a fiduciary to the judges of the Supreme Court, who occupy
high Constitutional office; they enjoy the same judicial powers, and immunities and
that the CJI cannot exercise any kind of control over them. In these circumstances,
there is no "fiduciary" relationship, least of all in relation to making the asset
declarations available to the CJI, who holds it because of his status as CJI. It is
argued that a fiduciary relationship is created, where one person depends, on, or
entrusts his affairs to 55. It is necessary to first discern what a fiduciary relationship
is, since the term has not been defined in the Act. In Bristol & West Building Society
v. Mathew [1998] Ch 1, the term "fiduciary", was described as under:
"A fiduciary is someone who has undertaken to act for and on behalf of another in a
particular matter in circumstances which give rise to a relationship of trust
andconfidence."
Dale & Carrington Invt. (P) Ltd. v. P.K. Prathapan, (2005) 1 SCC 212 and Needle
Industries (India) Ltd v. Needle Industries (Newey) India Holding Ltd: 1981 (3) SCC
333 establish that Directors of a company owe fiduciary duties to its shareholders. In
P.V. SankaraKurup v. LeelavathyNambiar, (1994) 6 SCC 68, the Supreme Court held

that an agent and power of attorney holder can be said to owe a fiduciary relationship
to the principal.
56. In a recent decision (Mr. Krishna GopalKakani v. Bank of Baroda 2008 (13) SCALE 160) the
Supreme Court had to decide whetheratrans action resulted in a fiduciary relationship. Money was
sought to be recovered by the plaintiff, from a bank, who had moved the court for auction of goods
imported, and retained the proceeds; the trail court overruled the objection to maintainability,
stating that the bank held the surplus (of the proceeds) in a fiduciary capacity. The High Court upset
the trial court's findings, ruling that the bank did not act in a fiduciary capacity. The Supreme Court
affirmed the High Court's findings. The court noticed Section 88 of the Trusts Act, which reads as
follows:
"Section 88. Advantage gained by fiduciary. - Where a trustee, executor, partner,

agent, director of a company, legal advisor, or other person bound in a fiduciary
character to protect the interests of another person, by availing himself of his
character, gains for himself any pecuniary advantage, or where any person so are, or
may be, adverse to those of such other person and thereby gains for himself a
pecuniary advantage, he must hold for the benefit of such other person the advantage
sogained."
Affirming the High Court's findings that the bank did not owe a fiduciary responsibility to the
appellant, it was held by the Supreme Court, that:
"9. An analysis of this Section would show that the Bank, to whom the money had
been entrusted, was not in the capacity set out in the provision itself. The question of
any fiduciary relationship therefore arising between the two must therefore be ruled
out. It bears reiteration that there is no evidence to show that any trust had been
created with respect to the suit money."
The following kinds of relationships may broadly be categorized as "fiduciary":
Trustee/beneficiary (Section 88, Indian Trusts Act,1882) Legal guardians / wards (Section 20,
Guardians and Wards Act,1890) Lawyer/client;
Executors and administrators / legatees and heirs Board of directors /company

Liquidator/company Receivers, trustees in bankruptcy and assignees in insolvency / creditors
Doctor/patient Parent/child:
57. The Advanced Law Lexicon, 3rd Edition, 2005, defines fiduciary relationship as "a relationship
in which one person is under a duty to act for the benefit of the other on the matters within the
scope of the relationship....Fiduciary relationship usually arise in one of the four situations (1) when
one person places trust in the faithful integrity of another, who is a result gains superiority or
influence over the first, (2) when one person assumes control and responsibility over another, (3)
when one person has a duty to act or give advice to another on matters falling within the scope of the

relationship, or (4) when there is specific relationship that has traditionally be recognized as
involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer"
58. From the above discussion, it may be seen that a fiduciary relationship is one whereby a person
places complete confidence in another in regard to a particular transaction or his general affairs or
business. The relationship need not be "formally" or "legally" ordained, or established, like in the
case of a written trust; but can be one of moral or personal responsibility, due to the better or
superior knowledge or training, or superior status of the fiduciary as compared to the one whose
affairs he handles. If viewed from this perspective, it is immediately apparent that the CJI cannot be
a fiduciary vis-à-vis Judges of the Supreme Court; he cannot be said to have superior knowledge, or
be better trained, to aid or control their affairs or conduct. Judges of the Supreme Court hold
independent office, and are there is no hierarchy, in their judicial functions, which places them at a
different plane than the CJI. In these circumstances, it cannot be held that asset information shared
with the CJI, by the judges of the Supreme Court, are held by him in the capacity of a fiduciary,
which if directed to be revealed, would result in breach of such duty. So far as the argument that the
1997 Resolution had imposed a confidentiality obligation on the CJI to ensure non-disclosure of the
asset declarations, is concerned, the court is of opinion that with the advent of the Act, and the
provision in Section 22 - which overrides all other laws, etc. (even overriding the Official Secrets
Act) the argument about such a confidentiality condition is on a weak foundation. The mere
marking of a document, as "confidential", in this case, does not undermine the over bearing nature
of Section
22. Concededly, the confidentiality clause (in the 1997 Resolution) operated, and many might have
bona fide believed that it would ensure immunity from access. Yet the advent of the Act changed all
that; all classes of information became its subject matter. Section 8(1) (f) affords protection to one
such class, i.e. fiduciaries. The content of such provision may include certain kind of relationships of
public officials, such as doctor-patient relations; teacher-pupil relationships, in government schools
and colleges; agents of governments; even attorneys and lawyers who appear and advise public
authorities covered by the Act. However, it does not cover asset declarations made by Judges of the
Supreme Court, and held by the CJI.
59. For the above reasons, the court concludes the petitioners' argument about the CJI holding asset
declarations in a fiduciary capacity, (which would be breached if it is directed to be disclosed, in the
manner sought by the applicant) to be insubstantial. The CJI does not hold such declarations in a
fiduciary capacity or relationship.
No doubt this ruling has been challenged before a Division Bench of the Delhi High Court, which has
also heard the same. However, this issue is not, as conceded by both parties, an issue that is
impugned. The only plea taken here by the learned Counsel for respondents in this regard is that
this particular ruling will not apply in the present case. Learned Counsel contests this conclusion for
appellant on the basis of the ruling of Justice Bhagwati in the case of S. P. Gupta vs. Union of India
quoted above.

The question then arises as to whether in light of the argument of learned counsel for respondents
that a Coordinate Bench cannot overrule a decision of another Coordinate Bench of the same
Commission, this Commission is at liberty to take a decision contrary to its decision in Mukesh
Kumar vs. Supreme Court of India without reference to a larger Bench. This would have to be seen
in light of the arguments of learned counsel for respondents submitted in his written arguments,
which is as follows:
"It is respectfully submitted that the consultation process and the primacy of the
opinion of the Chief Justice of India is facet of Judicial Independence. It is submitted
that it is now well settled that the judicial independence is now one of the corner
stone's of our constitutional democracy. Judicial Independence demands that the
consultation process should be conducted in an atmosphere sober analysis unaffected
by competing pressures. Intrusion by strangers and busy bodies needs to be
eschewed."
In our view the decision of this Commission in Mukesh Kumar vs. Supreme Court of India cannot
stand overridden by the decision dated 23.3.2007 of this Commission in File No.
CIC/WB/A/2006/00460 - S. C.
Agrawal vs. President's Secretariat & Department of Justice. Instead it is countered by the
conclusion of the Supreme Court of India in S. P. Gupta vs. Union of India precisely through the
paragraphs drawn from this decision, quoted in our own decision of 23.3.2007. Besides, Sec. 11(1)
has also been sought as a reason for refusing disclosure in Mukesh Kumar vs. Supreme Court of
India is not a clause that allows for exemption from disclosure but only a clause prescribing the
procedure for allowing a third party to seek exemption from disclosure of any information intended
to be disclosed.
Nevertheless, the definition of the applicability of the clause of fiduciary relationship i.e. exemption
u/s 8(1)(e) dwelt in detail by the Hon'ble Justice RavinderBhat in W.P. No. 288/09, quoted above,
will now have the effect of overriding any earlier decision of this Commission in this regard. The
question is that will this definition apply in the present case, a fact that has been challenged by
respondents. It is without doubt that the detailed exemption on the question of the fiduciary
relationship in the above decision does not pertain to the kind of disclosure that has been sought in
the present appeal since that was regarding disclosure of information regarding property statements
whereas in the present case the issue is one of personnel administration. Nevertheless, as will be
clear from the judgment that we have deliberately taken some pains to describe in detail above
would clearly show its applicability over a much larger canvas than only a particular Writ Petition
itself in the context of which it has been arrived at. The principles on which the fiduciary
relationship can be relied on to seek exemption have been clearly laid down. In the present case
excluding personal information, which in any case will be deleted under the severability clause in
any disclosure order, the recommendation of appointment of justices is decidedly a public activity
conducted in the overriding public interest. Hence the plea of seeking exemption under the
definition of fiduciary relationship cannot stand, and even if accepted in technical terms, will not
withstand the test of public interest.

For the above reasons this appeal is allowed. The information sought by appellant Shri Subhash
Chandra Agrawal will now be provided to him within 15 working days of the date of receipt of this
Decision Notice There will be no costs. Since the information was not provided within the time
specified for the same, it will now be provided free of cost under sub sec. (6) of Sec. 7.
Reserved in the hearing, this Decision is announced in the open chamber on this 24th day of
November 2009. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 24.11.2009 Authenticated true copy.

Additional copies of orders shall be supplied against application and payment of the charges,
prescribed under the Act, to the CPIO of this Commission.
(Pankaj Shreyaskar) Joint Registrar 24.11.2009 CENTRAL INFORMATION COMMISSION Appeal

No. CIC/WB/A/2009/0001, 735, 859, 408, 410, 411 and 530 dated 24-12-2008 Right to
Information Act 2005 - Section 19 Appellant: Shri S.C.Agrawal, Respondent: Supreme Court of
India (SCI) Decision Announced 20/24.11.09 FACTS These are seven (7) appeals received from Shri
S.C. Agrawal of Dariba, Delhi seeking information from CPIO, Supreme Court of India. Since all
these cases concern information claimed to be held by the Chief Justice of India and therefore,
requires determination of the scope of the access allowed through the Registry of the SCI they have
been clubbed together for hearing.
File No. CIC/WB/A/2009/0001 In this case the information sought by Shri S.C. Agrawal through an
application of 12-10-2008 from CPIO, Shri Rajpal Arora, Addl. Registrar, SCI is as follows:
"1. Copy of the mentioned letter dated 14.10.2008 by Honourable the Chief Justice of
India to Chief Justices of High Courts asking them to retire lower court judges with
indolent, infirm and with doubtful reputation.
2. Copy of terms and conditions required by judges in lower courts especially in

reference to their pre-matured retirement.
3. Criterion to judge lower-court judges about their being indolent, infirm and/ or
with doubtful reputation.
4. Authority writing Annual Confidential Report (ACRs) of lower court judges.
5. Safeguard for lower court judges against any possible pressure from those writing
theirACRs.
6. Criterion for promoting District Court Judges to High Courts.
7. Any other related information.
8. File notings."

To this Shri S.C. Agrawal received a response dated 7-11-08 from CPIO, SCI Shri Rajpal Arora as
follows:
"1. You are required to send Rs. 4/- either in cash or by way of Money Order or
Demand Draft drawn in favourof Registrar, Supreme Court of India for obtaining
photocopy of letter dated 14.10.2008 written by Hon'ble the Chief Justice of India to
Hon'ble Chief Justices of all High Courts.
2. The information is neither maintained nor available in the Registry of Supreme

Court of India.
3. No file notings are available."
Not satisfied appellant Shri Agrawal moved a second appeal on 11-11-
'08 before Shri M.P. Bhadran, Registrar, SCI with the following plea:
"For information on point numbers from 2 to 7 his reply was the information is
neither maintained or available in the Registry of Supreme Court.
I appeal that the learned CPIO may kindly be directed to transfer my RTI petition for
rest of the queries under section 6 (3) of the RTI Act to the concerned public
authority. Copy of the letter as mentioned in point number I may kindly be sent to me
for which I have paid required copying charges with this letter."
In his order of 8-12-08 appellate authority Shri M.P. Bhadran, Registrar found as follows:
"In the appeal memorandum appellant has made a request to direct the CPIO to
transfer his application for rest of the queries under section 6 (3) of the RTI Act to the
concerned public authority.
In fact, information sought on points 2 to 7 are in respect of the Judges of Lower

Court. The information sought by the appellant is not confined to any particular High
court or State. So, it was not possible for the CPIO to transfer the application of the
appellant to any particular State of to any public authority. I find no error in the
impugned order. There is no merit in this appeal and it is only to be dismissed."
below:
Appellant Shri Agrawal's prayer before us in his second appeal is as "But query numbers 2 to 7 are
basically based on aspects mentioned in letter dated 14.10.2008 of Honourable the Chief Justice of
India to Chief Justice of States, for which the CPIO has already responded favourably under query 1
of my RTI petition by sending a copy of the said letter. Therefore, the petitioner is also entitled to get
replies to related query numbers 2 to 7 through public authorities at Supreme Court. After all a letter

written by Honourable the Chief Justice of India has to be based on some procedures, norms and
guidelines to be followed in the system, and the petitioner has made queries relating to these
procedures etc only and not at all relating to any particular state or court. Therefore, I pray that
CPIO at Supreme Court may kindly be directed to respond to my queries 2 to 7. Also file notings as
requested in query 8 may kindly be allowed to be provided. It is prayed accordingly.' File No.
CIC/WB/A/2009/0735 In this case the information sought by Shri S.C. Agrawal through an
"Action taken on my letter dated 4.4.2009 addressed to Honourable Chief Justice of

India bout Additional District Judge Shri A. K. Sripal at Tis Hazari Courts in Delhi. In
case my letter is transferred to some other public authority, kindly transfer this RTI
petition to the CPIO there so that I may be provided information on ultimate action
by any concerned authority on my mentioned letter dated 4.4.2009 addressed to
Honourable Chief Justice of India (copy enclosed).
Please arrange file notings by all the concerned public authorities on movement of
my letter dated 4.4.2009 addressed to Honourable Chief Justice of India, and also on
movement of this RTI petition."
To this Shri S.C. Agrawal received a response dated 29-5-09 from CPIO, Shri Rajpal Arora as
follows:
"I write to say that your letter dated 4.4.2009 was placed before Hon'ble the Chief
Justice of India on 9.4.2009 and as directed by Hon'ble the Chief Justice of India, the
same was filed.
Further, you are required to send Rs. 4/- for obtaining two pages documents @ Rs.
2/- per page relating to noting on your present application either in cash or by way of
Indian Postal Order or by Money Order or Demand Draft drawn in favour of
Registrar, Supreme Court of India."
Aggrieved by the failure to receive a copy of file noting appellant Shri Agrawal then moved an appeal
before Shri M.P. Gupta, Registrar, SCI on 8-6-
09 with the following plea:
"He has not mentioned of providing file notings relating to my letter dated 4.4.2009
addressed to Honourable Chief Justice of India about Additional District Judge Shri
A. K. Sripal at Tis Hazari Courts in Delhi, as informed by the learned CPIO having
been filed. It may be mentioned that file noting on movement of letter dated
4.4.2009 addressed to Honourable Chief Justice of India about Additional District
Judge Shri A. K. Sripal at Tis Hazari Courts in Delhi were also specifically requested
in my RTI petition dated5.5.2009."

In his order of 24-6-09 appellate authority Shri M.P. Gupta Registrar found as follows:
"The information demanded by the appellant has already been supplied by the CPIO,
Supreme Court of India vide impugned order. Accordingly I do not find any illegality
in the impugned order and the appeal is liable to be dismissed."
Appellant's prayer before us in his second appeal is as below: "*File notings on

movement of RTI petition as even accepted to be provided by the CPIO may kindly be
directed to be provided (for which above mentioned postal order was sent).
*Complete file notings on movement of my letter dated 4.4.2009 addressed to

Honourable Chief Justice of India about Additional District Judge Shri A. K. Sripal at
Tis Hazari Courts in Delhi (As also requested in my RTI petition) may also kindly be
directed to be provided. (Refer CIC verdict CIC/WB/A/2008/00426 in the matter
'Subhash Chandra Agrawal vs. Supreme Court of India."
"1. Copy of complete correspondence with Honourable Chief Justice of India as

mentioned in enclosed TOI report involving issue of a Union minister through his/
her lawyer having approached Mr. Justice R. Reghupati o madras High Court to
influence his judicial decisions.
2. Name of Union Minister have tried to influence Justice R.
Reghupati of Madras HighCourt.
3. Name of advocate having approached Mr. Justice R Reghupati on behalf of the

Union Minister.
4. Steps taken against the referred Union Minister and the Advocate having tried to
influence/ approach Mr. Justice R Reghupati for a biased decision by the Honourable
Judge.
5. Does correspondence in mentioned TOI report dated 6.7.2009 include names of

union Minister/ advocate having tried to influence/ approach Mr. Justice R
Reghupati?
6. If not, steps take by Honourable Chief Justice of India to get names of referred
Union Minister and his advocate revealed even if an unconditional apology might
have been sought as desired by Mr. Justice R. Reghupati as precondition to hide
name or referred Union Minister.

7. Does declining to make name of influencing Union Minister by a Judge of high

Court Public, not encourage malpractices by influential ones like a Union Minister?
8. Steps taken by Honourable Chief Justice of India and/ or his office to ensure
compulsory revealing of names by judges of person/s having tried to influence them.
10. File notings on movement of this RTI petition as well."
To this Shri S.C. Agrawal received a response dated 4-8-09 from CPIO, Shri Rajpal Arora as follows:
"I write to inform you that the information sought by you is not handled by and dealt
with by the Registry of Supreme Court of India and the information relating thereto
is neither maintained nor available in the Registry. Hence your request cannot be
acceded to under the Right to Information Act, 2005.
You are required to send Rs. 12/- either in cash or by way of Indian Postal Order or
by Money Order or demand Draft drawn in favour of Registrar, Supreme Court of
India for obtaining true copy of noting on the movement of your present application.
(containing six pages)."
Aggrieved with this response appellant Shri Agrawal then moved an appeal before Shri M.K. Gupta,
Registrar, SCI on 10-8-09 with the following plea:
"Since information sought relates to Honourable Chief Justice of Supreme Court, it

should be provided by the CPIO at Supreme Court but now free-of-charge under
section 7 (6) of RTI Act. I may mention that some of my RTI petitions like dated
17.10.2005, 7.1.2009 and 5.5.2009 concerning information related to office of
Honourable Chief Justice of India have been responded by the CPIO At Supreme
Court. It is not understood how the CPIO at Supreme Court regularly changes stand
on providing information related to Honourable Chief Justice of Supreme Court.
Honourable Mr. Justice S. RavindraBhat of Delhi High court in the matter 'Bhagat
Singh vs. CIC W.P. (C ) No. 3114/2007)' has also held that the Right to Information
Act being aright based enactment is akin to a welfare measure and as such should
receive liberal interpretation. Present petition is also in accordance with esteemed
verdict by full bench of Honourable Central Information Commission in appeal
number CIC/WB/A/2008/000426."
In his order of 5-9-09 appellate authority Shri M.K. Gupta found as follows:
"In this regard, it is observed that learned CPIO vide impugned order has already
informed the appellant to the effect that the requisite information is not handled by
and dealt with by the Registry of Supreme Court of India and information relating

thereto is neither maintained nor available in the registry.
Accordingly, I do not find any merits in the appeal.' Appellant Shri Agrawal's prayer before us in his
second appeal is as below:
"Central Public Information Officer may kindly be directed to provide sought

information in my RTI petition dated 6.7.2009 in accordance with provisions under
RTI Act in the form req7uired as per section 7 (9) of the RTI Act, but now free- of-
charge under section 7 (6) of RTI Act. Action may kindly be initiated against
concerned officer/s at Supreme Court registry under section 20 of RTI Act for
declining 8information even after esteemed verdict dated 2.9.2009 in the matter
'CPIO, Supreme Court vs. Subhash Chandra Agrawal' (WP (C )288/ 2009) by
Honourable Mr. Justice S. RavindraBhat at Delhi High Court."
File No. CIC/WB/A/2009/0408 In this case the information sought by Shri S.C. Agrawal through
an application of 27-1-09 from CPIO, Shri Rajpal Arora, Addl. Registrar, SCI is as follows:
'1. What is the practical status of 'In Hou7se procedure for complaints against Judges'
passed by all the Honourable Judges of Supreme court in December 1999 of which an
official copy has already been provided to the undersigned by the CPIO at Supreme
Court?
2. Number of times (mentioning details) when 'In House procedure' has been
invoked at Supreme Court.
3. Was any action ever taken under 'In House procedure' against any Honourable
Judge at Supreme Court or by Honourable the Chief Justice of India against some
Chief Justice/ judge of any High Court of Supreme Court?
4. If yes, kindly provide details.
5. Has Supreme Court ever monitored implementation of resolution on 'In House

procedure' passed at Supreme Court at High courts for which there were mentions in
the resolution?
6. If yes, please provide any such details available a the Supreme Court.
7. Is 'In house procedure for complaints against Judges' available on public domain of
Supreme Court through website or publication for public knowledge?
8. If not, steps taken or intended to be taken to make public aware about 'In House
procedure for complaints against judges.'

10. Copy of file notings on removing photos of all Honourable Judges from outside
court room of Honourable chief Justice as reported by Indian Express in its edition of
20.1.2009 (copy enclosed).
11. Complete file notings on movement of this RTI petition."
To this Shri Agrawal received a response dated 25-2-09 from CPIO, Shri Rajpal Arora as follows:
"Point Nos. 1 to 6, 8 & 9: Supreme Court, Registry does not deal with the matters
pertaining to 'In House Procedure' and, therefore, CPIO of Supreme Court is not in
position to provide the desired information.
Point No. 7: The In House Procedure is not available on the website of Supreme
Court and has not been published by the Supreme Court Registry.
Point No. 10 : There is no file notings in the records of the Registry, on removing
photographs of the Hon'ble Judges from outside the Court Room of Hon'ble Chief
Justice of India.
Point No. 11: You are required to send Rs. 8/- either in cash or through Indian Postal
Order or Money Order or Demand Draft drawn in favour of Registrar, Supreme Court
of India for obtaining copy of the notings on movement of your present application
including copy of orders of Hon'ble the Chief Justice of India. (containing 4 pages @
Rs. 2/- per page)."
Appellant Shri Agrawal then moved an appeal before Shri M.P.
Bhadran, Registrar, SCI received on 27-2-09, with the following plea:
"Since this decision of removing photos is also not on judicial side of the Supreme
Court, I appeal that copy of the order in this regard together file notings may also
kindly be directed to be provided after collecting information/ copies of documents
from concerned ones at Supreme Court. It is prayed accordingly."
In his order of 24-3-2009 Shri M.P. Bhadran dismissed this appeal on the following ground:
"Point nos. 1 to 6, 8 and 9 deal with 'In House Procedure' for compliance against the
Hon'ble Judges of Supreme Court.
CPIO has given the reply that the Supreme Court Registry is not dealing with the
matters pertaining to 'In House Procedure' and therefore, CPIO is not in a position to
provide the desired information.

So far as the information regarding removal of photographs of Hon'ble Judges of the

Supreme Court is concerned CPIO has informed the appellant that there is no file
notings in the records of the Registry in respect of removal of photographs of Hon'ble
Judges from outside the Court room of Hon'ble the Chief Justice of India. So, there is
no further information to be supplied to the appellant by the CPIO. The true copy of
file notings on point No. 11 has already been supplied to the appellant by the CPIO
along with the leader dated 3.3.2009. So, there is no merit in this appeal and it is only
to be dismissed."
Appellant Shri Agrawal's prayer before us in his second appeal is as below:
"Shri M. P. Bhadran's role as being First Appellate Authority is not proper because
file notings reveal that he was an authority linked with CPIO's reply on the RTI
petition. It is a well established fact that Decisive Authority cannot be Appellate
Authority. File notings also reveal that Honourable Chief Justice of India also
endorsed note for CPIO's reply to the RTI petition, thereby leaving no scope for
argument that CPO of Supreme Court is not in a position to provide the desired
information. It was CPIO at Supreme Court who provided me a copy of important
resolution of 'In House Procedure'. Therefore it is but natural for an RTI petitioner to
expect information on issues relating to the resolution passed by all the Honourable
Judges of the Apex Court.
Under the circumstances, I appeal to Honourable Central Information Commission

to kindly direct authorities at Supreme Court to provide me required information to
point numbers (1) to (6) and (8) to (9) of my RTI petition after gathering information
from the concerned one/s at Honourable Supreme Court."
"1. What is the status of 'Restatement of Values of Judicial Life' (copy enclosed)
passed by all the Honourable Judges of Supreme Court on 7.5.1197 of which an
official copy has already been provided to the undersigned by the CPIO at Supreme
Court?
2. Is a copy of the said resolution made available to every one joining as an

Honourable Judge in Supreme Court?
3. Is sue-motto cognizance taken in respect of violation of any of the case in

'Restatement of Values of Judicial Life'?
4. Has any complaint regarding violation of any of the 16 codes of 'Restatement of

Values of Judicial Life' ever been made?

5. Steps taken in case an Honourable Judge violates any of the 16 codes of

'Restatement of Values of Judicial Life'.
6. Kindly give details of any action ever take in case of violation of any point of
'Restatement of Values of Judicial Life'.
7. Is 'Restatement of Values of Judicial Life' available on public domain of Supreme

Court through website or publication for public knowledge?
8. If not, steps taken or intended to be taken to make public aware about

'Restatement of Values of JudicialLife'.
9. Referring point nine of 'Restatement of Values of Judicial Life', does this code also
include interviews given to media by some Honourable Judge/s including
Honourable Chief Justice?
11. Copy of file notings on reach to decision to put photos of all Honourable Judges
outside court room of Honourable Chief Justice as report by Indian Express in its
edition of 18.1.2009 (copy enclosed).
12. Complete file notings on movement of this RTI petition."
To this Shri Agrawal received a response dated 17-2-09 from CPIO, Shri Rajpal Arora Addl.
Registrar as follows:
"Point Nos. 1 to 6 and 8 to 8: Supreme Court Registry does not deal with the matters
pertaining to the Resolution of Hon'ble Supreme Court dated 7th May 1997 on
'Restatement of Values of Judicial Life', and, therefore, CPIO of Supreme Court is not
in a position to provide the desired information. Point No. 7: 'Restatement of Values
of Judicial Life' is not available on Supreme Court website and has not been
published by the Supreme Court Registry.
Point No. 11: The colour photographs of Hon'ble the Chief Justice of India and
Hon'ble Judges were displayed in front of Court Room No. 1 vide Orders dated
10.12.2008 of Hon'ble the Chief Justice of India.
You are required to send Rs. 12/- either in cash or through Indian Postal Order or
Money Order or Demand Draft drawn in favour of Registrar, Supreme Court of India
for obtaining copy of the notings on movement of your present application including
copy of orders of Hon'ble the Chief Justice of India and copy of orders dated
10.12.2008 of Hon'ble the Chief Justice of India (containing 6 pages @ Rs. 2/- per
page)."

Bhadran, Registrar, SCI on 26-2-09 with the following plea:
"There is no logic in CPIO expressing inability to provide the required information

without making any effort to compile the same. I, therefore, appeal that the learned
CPIO may kindly be directed to provide me required information to point numbers 1
to 6 and 8 to 10 of my RTI petition after gathering information from the concerned
one/s at Honourable Supreme Court."
In his order of 18-3-2009 appellate authority Shri M.P. Bhadran dismissed this appeal on the
following ground:
"I find no reason to disagree with the reply given by the CPIO that since Supreme
Court Registry does not deal with the matters pertaining to the Resolution, CPIO is
not in a position to provide the desired information. That apart the information
sought by the appellant on points 1to 6 and 8 to 10 does not come within the ambit of
Sections 2(F) and (j) of the Right to Information Act. I find no merit in this appeal
and it is only to be dismissed."
"Shri M. P. Bhadran's role as being First Appellate Authority is not proper because
file notings reveal that he was an authority linked with CPIO's reply on the RTI
petition. It is a well established fact that Decisive Authority cannot be Appellate
Authority. File notings also reveal that Honourable Chief Justice of India also
endorsed note for CPIO's reply to the RTI petition, thereby leaving no scope for
argument that CPIO of Supreme Court is not in a position to provide the desired
information. It was CPIO at Supreme Court who provided me a copy of important
resolution of 'Restatement of Values of Judicial Life'. Therefore, it is but natural for
an RTI petitioner to expect information on issues relating to the resolution passed by
all the 22 Honourable judges of the Apex Court."
File No. CIC/WB/A/2009/0411 In this case Shri S.C. Agrawal's request before the CPIO, Shri Rajpal
Arora, Addl. Registrar, SCI was for "information together with relevant documents/ file notings, if
any, on action taken on my letter dated 8.9.2008 addressed to Honourable Chief Justice of India
Mr. Justice K. G. BalakrishananJi (copy of letter enclosed). In case, my said letter dated 8.9.2008 is
forwarded/ transferred to some other authority, kindly transfer this RTI petition to the CPIO there.
Kindly attach file notings including those on movement of this RTI petition."
To this Shri Agrawal received a response dated 6-2-09 from CPIO, Shri Rajpal Arora as follows:
"I write to say that your letter dated 8.9.2008 was placed before Hon'ble the Chief
Justice of India on 10.9.2008 and as directed by Hon'ble the Chief Justice of India

the same was filed.
Further, you are required to send RS. 4/- for obtaining two pages documents @ Rs.
2/- per page relating to noting on your present application either in cash or Indian
Postal Order or Money Order or Demand Draft drawn in favour of Registrar,
Supreme Court of India."
Bhadran, Registrar, SCI on 18.2.2009 with the following plea:
"But it seems that two page of file-notings on movement of my RTI Petition are not
complete with copy of draft reply and approval of draft reply by concerned ones not
enclosed. Also, file notings relating to my letter dated 8.9.2008 addressed to
Honourable Chief Justice of India Mr. Justice K. G. BalakrishananJi being filed are
not enclosed even though all these were specifically requested in my RTI petition
dated 7.1.2009."
In his order of 16-3-09 Shri M.P. Bhadran dismissed this appeal as information already provided as
follows:
"It is pertinent to note the request made by the appellant as per his application dated
7.1.2009. As per application dated 7.1.2009 the appellant has made a request o
provide him information together with relevant documents/ file noting, if any, on
action taken on his letter dated 8.9.08 addressed to Hon'ble the CJI including file
notings on movement of RTI petition. CPIO has already furnished the true copy of
the file noting along with letter dated 14.2.2009. The file noting itself is self
explanatory and there is no further information to be supplied by the CPIO. I find no
merit in this appeal and it is only to be dismissed.' Appellant Shri Agrawal's prayer
before us in his second appeal is as below:
"I appeal to Honourable Central Information Commission to kindly direct CPIO at

Supreme Court to provide me complete file notings (1) on action taken on my letter
dated 8.9.2008 addressed to Honourable Chief Justice of India Mr. Justice K. G.
BalakrishananJi and (2) complete file notings on movement of RTI petition dated
7.1.2009 including also copy of draft reply and approval of draft reply on my RTI
petition by concerned ones, buy now without any additional cost because I have
already once paid the copy charges as per CPIO's demand. I had to unnecessarily bear
fast in filing subsequent appeals because of insufficient and incomplete file notings
provided by the CPOIO.
Honourable Mr. Justice S. Ravindra Bhatt of Delhi High court in the matter "Bhagat
Singh vs. CIC (W. P. (C ) No. 3114/ 2007) has also held that the Right to Information
Act being aright based enactment is akin to a welfare measure and as such should

receive liberal interpretation. It is prayed accordingly.' File No.

CIC/WB/A/2009/0530 In this case the information sought by Shri S.C. Agrawal
through an application of 16-2-09 from CPIO, Shri Rajpal Arora, Addl. Registrar, SCI
is as follows:
"Complete detail of complaints received against judges of Supreme Court and High
courts received at supreme Court or by Honourable the Chief Justice of India from
1.10.2005 till date. Please also mention action taken by Supreme Court or by
Honourable the Chief Justice on each of the complaint. Please also include file
notings on every complaint, and also on movement of this RTI petition."
To this Shri Agrawal received a response dated 7-3-09 from CPIO, Shri Rajpal Arora
as follows:
"I write to inform you that the complaints against Hon'ble Judges of the High Court
or Supreme Court are not handled by the Registry. The complaints, if any, received in
Supreme Court Registry against the Hon'ble Judges of the High Court or Supreme
Court are sent to the office of Hon'ble the Chief Justice of India and details of such
complaints are not maintained by the Registry. Since, such information is not held by
or under the control of the Registry the CPIO, Supreme Court of India cannot accede
to your request under the Right to Information Act, 2005.
You are required to send Rs. 8/- either in cash or through Indian Postal Order or
Demand Draft drawn in favour of Registrar, Supreme Court of India for obtaining
copy of the noting on movement of your present application including copy of orders
of Hon'ble the Chief Justice of India on your application (containing 4 pages @ Rs.
2/- perpage)."
Not satisfied, appellant Shri Agrawal then moved an appeal before Shri M.P.
Bhadran, Registrar, SCI on 16.3.2009 with the following plea:
"The learned CPIO vide Dy. No. 741/RTI/08-09/2008 dated 7.3.2009 expressed
inability to provide information because according to him all such complaints are
handled by Honourable the Chief Justice of India. Interestingly, the reply also
indicates that there is some order from Honourable the Chief Justice of India on my
this RTI application clearly establishing that office of Honourable the Chief Justice of
India is approachable by the learned CPIO together required information as sought in
my RTI petition. Otherwise also there is no logic in CPIO's reply of terming Chief
Justice of India and Supreme Court of India as authorities not related with each
other. I appeal that the learned CPIO may kindly be directed to provide required
information as sought in my RTI petition after gathering the same from office of
Honourable the Chief Justice of India.' In his order of 8-4-2009 Shri M.P. Bhadran
dismissed this appeal on the following ground:

"The request of the appellant is to direct the CPIO to furnish the information sought
by him after gathering the same from the office of Hon'ble the Chief Justice of India. I
find no reason to disagree with the reply given by the CPIO. No information is held by
the Registry and CPIO is not in a position to furnish the information sought by the
appellant. There is no merit in this appeal and it is only to be dismissed."
"I appeal that authorities at Supreme Court may kindly be directed to provide
complete details of complaints against judges of Supreme Court and High courts
received at Supreme court or by Honourable the Chief justice of India from 1.1.2005
till date including action taken by Supreme Court or by Honourable the Chief Justice
of India on each of the complaint together with file notings on every complaint. Any
other relief deemed fit in favour of the petition, may kindly be allowed."
Vide our letter of September 8, 2009 we had issued notice for hearing of appeal u/s
19 of the RTI Act of the following seven appeal petitions:
"CIC/WB/A/2009/000001 CIC/WB/A/2009/000408 CIC/WB/A/2009/000410

CIC/WB/A/2009/000411 CIC/WB/A/2009/000529 CIC/WB/A/2009/000530
CIC/WB/A/2009/000735"
These were scheduled for hearing on 9th October, 2009. The hearings were further
scheduled for 6th November, 2009 vide our letter of 6-10-09.
However, on the very same day we had received a fax from Shri R.P. Arora, CPIO, SCI seeking
adjournment as follows:
"I am directed to say that as we have filed appeal in the Delhi High Court against the
judgment of the Learned Single Judge dated 2nd September, 2009 in Writ Petition
No. 288 of 2009, it is requested to kindly adjourn all the above eight matters till the
final disposal of the said appeal."
We then received a further request from CPIO Shri R.P. Arora of SCI of October 22, 2009
submitting as follows:
"I am directed to say that as Letters Patent Appeal No. 501 of 2009 has been filed
against the judgment of the Learned Single Judge dated 2nd September, 2009 in
Writ Petition No. 288 of 2009 which is listed for final hearing before a larger Bench
of three Hon'ble Judges in the Delhi High Court on 13th and 13th November, 2009
and the said matters are being listed upon giving reference of the Judgment in W. P.
No. 288 of 2009 in his appeal to the Central Information Commission as mentioned
in the earlier letter of even number dated 6.10.2009 of the undersigned, it is
requested to kindly further adjourn all the above eight matters till the final disposal

of the said appeal."
Upon this we have received a e-mail dt. 27-10-09 from appellant referring to the adjournment
request of CPIO, SCI a copy of which had been endorsed to him also raising the following points:
"Reasoning by CPIO at Supreme Court raises several law-points and aspects:
1. Can simply filing of an appeal (that too without getting any stay-order) in a case
involving CIC verdict put complete RTI Act on hold?
2. Is filing an appeal at Division Bench against single-bench verdict equivalent to a

refused stay-order by the higher bench.?
3. Can simply a mention of a writ-petition (288/2009) in a petition

(CIC/WB/A/2008/000859) put all the eight petitions on hold indefinitely especially
also when this mention of the writ- petition is only in one petition
(CIC/WB/A/2008/000859) for which a separate notice for hearing is issued while
combined notice for hearing for other seven petitions is different.
4. A division Bench of Honourable Supreme Court observed against

adjournment-culture by mention that many a times petitioners seek stay-orders on
filing a writ/ appeal, and drag the case for years with many a times ultimately losing
the case even.
5. Central Information Commission has an admirable practice is not entertaining

adjournment requests in otherwise has become a culture in our courts for which
concern is being expressed by even those in judicial system.
6. Central Information Commission usually proceeds with hearing overlooking

adjournment requests like was done in petition number CIC/AT/A/2008/736 in the
matter (Subhash Chandra Agrawal vs. Department of Justice)."
Therefore, through our letter of 28-10-09 addressed to the CPIO, SCI they were informed that the
request for adjournment has not been acceded to in view of an objection raised by the appellant Shri
S.C. Agrawal. Subsequently, through a letter of 28-10-09 no copy of which was endorsed to
respondent, Shri S.C. Agrawal has submitted as follows:
1. Can simply filing of an appeal (that too without getting any stay-order) in a case
involving CIC verdict put complete RTI Act on hold?
2. Is filing an appeal at Division Bench against single-bench verdict equivalent to a

refused stay-order by the higher bench.?

3. Can simply a mention of a writ-petition (288/2009) in a petition

(CIC/WB/A/2008/000859) put all the eight petitions on hold indefinitely especially
also when this mention of the writ-petition is only in one petition
(CIC/WB/A/2008/000859) for which a separate notice for hearing is issued while
combined notice for hearing for other seven petitions is different.
4. A division Bench of Honourable Supreme Court observed against

adjournment-culture by mention that many a times petitioners seek stay-orders on
filing a writ/ appeal, and drag the case for years with many a times ultimately losing
the case even.
5. Central Information Commission has an admirable practice is not entertaining

adjournment requests in otherwise has become a culture in our courts for which
concern is being expressed by even those in judicial system.
6. Central Information Commission usually proceeds with hearing overlooking

adjournment requests like was done in petition number CIC/AT/A/2008/736 in the
matter (Subhash Chandra Agrawal vs. Department of Justice).
7. There are several issues of national importance in these petitions fixed for hearing,
which may lose relevance if hearing is postponed."
The appeal was then heard on 6-11-09. The following are present:
Appellants Shri Subhash Agrawal.
Shri PrashantBhushan, Advocate Shri Pranav Sachdeva, Advocate Respondents Shri

Rajpal Arora, CPIO, Supreme Court.
Shri Amit Anand Tiwari, Advocate, CPIO, Supreme Court. Shri Devdutt Kamal,
Advocate.
Shri Amit Anand Tiwari, Learned Counsel for respondent submitted that the two issues on which
the Letter Patent Appeal (LPA) has been filed against the judgment of the Ld. Single Judge of 2-9-09
in W.P. No. 288/2009 focuses on the following two issues:
(i) Whether information held by the CJI can be disclosed by the CPIO and deemed to
be held by the CPIO under the definition of "Right to Information" u/s 2(j).
(ii) Whether the information held by the CJI has to be deemed to be in the public
domain.
Both issues were strongly disputed by Learned counsel for appellant Shri Prashant Bhushan but
submitted that the matter of whether the CJI is a public authority or not has been settled both at the

level of Central Information Commission and at the level of Delhi High Court. This is not an issue
that is being agitated in the LPA. He went on the describe the issue described by Ld. Counsel for
respondent at (ii) above as absurd and a complete negation of the RTI Act. Ld. Counsel Shri
Prashant Bhushan also submitted that should the decision in the LPA go against the CJI would this
then be agitated in the Supreme Court and thereby debar all decisions under the RTI Act from
disclosure by the CJI till that appeal keeps pending.
In our view the issue here is much simpler. Ld. Counsel for respondent has specifically pleaded that
since the LPA No. 501/2009 had been listed for final hearing before a larger Bench of three Judges
on 12th and 13th November, 2009 a decision at this stage could lead to further litigation involving
public expenditure and inconvenience to all stakeholders. In this context he submitted a copy of the
Order of the Division Bench of the High Court of Delhi of 7-10-09 in which the request for stay has
not been pressed and hence the application dismissed. However, to substantiate his contentions of
the point above he highlighted the following from the synopsis and list of dates of LPA No. 501/09,
which are as follows:
"Because the Learned Single Judge failed to appreciate that the 'information'
regarding the declaration of assets by the Hon'ble Judges of the Supreme court
sought for by the Respondent No. 1 was not covered under the Act and the
Respondent had no 'right' to seek such information under Section 2 (j) of the Act.
Because the Learned Single Judge omitted to consider the specific contention of the
appellant that information accessible under the Act has to be information in the
'public domain."
Having taken into account the above arguments we were of the view that the position of this
Commission has already been explicitly stated on the two issues agitated in the LPA. A decision of
the DB of the High Court will help further delineate contours of the RTI Act 2005. It would,
therefore, be wise to allow for a short adjournment to enable the learned justices of the High Court
of Delhi, which include the Chief Justice to deliberate and pronounce on these issues. If the decision
of the Delhi High Court upholds the stand of the Commission in this regard, all these appeals would
automatically stand resolved. The hearing was therefore, adjourned to Monday the 16th day of
November, 2009 at 4.00 p.m. which was further postponed to 20th November, 09. The matter was
then again heard on 20-11- 2009. The following are present.
Appellants Shri Mayank Mishra, Advocate Shri Subhash Agrawal.
Shri Pranav Sachdeva, Advocate Respondents Shri Rajpal Arora, CPIO, Supreme Court.
Shri DevaduttKamat, Advocate.
Ms. PriyankaTelang, Advocate.
Shri NitinLonkar, Advocate.

It was reported that the hearing scheduled by the Division Bench of the High Court of Delhi has
indeed been held but judgment had been reserved. Learned counsel for appellant Shri Mayank
Mishra submitted that the only issue pending before the Full Bench is the question of in-house
procedure.
The issue of the jurisdiction of the RTI being comprehensive and hence including the office of Chief
Justice of India stands conceded. Learned counsel for respondents Shri Devadatt Kamat submitted
that he is not denying that the Chief Justice of India is a public authority. Nevertheless it is his case
that information of a certain kind is not information open to access in the definition of Right to
Information provided in Section 2 (j) even though, it may come under the broader definition of
information u/s 2 (f). The appeals were, therefore, looked at from the above points of view.
In these cases it is conceded by appellant that the information sought in file Nos.
CIC/WB/A/2009/00408, CIC/WB/A/2009/00410 and CIC/WB/A/2009/00530 all relate to
in-house procedure, which is the information the disclosability of which under the RTI is the
pointed issue pending a decision before the High Court. Therefore, hearing in all these three cases
requires to be adjourned.
In file Nos. CIC/WB/A/2009/001, CIC/WB/A/2009/00411 and CIC/WB/A/2009/00735 the

information sought and held by the SCI has been provided except the file noting. CPIO Shri Rajpal
Arora, Addl. Registrar submitted that in these cases there is no file noting and the information
sought by appellant has, in fact, been provided to the extent that it is held by the office of Supreme
Court including the office of Chief Justice of India.
In file No. CIC/WB/A/2009/00529 Shri DevadattKamat submitted that the information sought in
this case cannot be disclosed in light of Article 74 of the Constitution read with section 2 (j) and
indeed the exemption provided from disclosure under Sections 8 (1) (e) and (j). In this matter,
however, learned counsel for appellant Shri Mayank Mishra submitted that this issue had been
repeatedly discussed in the Full Bench which is of the Central Information Commission, namely, in
File Nos. CIC/WB/A/2008/208, CIC/WB/A/2008/00426 and CIC/AT/A/2008/00736 in which
the Commission has repeatedly taken the decision that such information is disclosable. To allow
time to learned counsel for respondent Shri Devadatt Kamat to further develop his arguments for
which he was not fully prepared in the present hearing, the hearing in this case is adjourned to 23rd
November, 2009 at 5.00 p.m.
This then leaves only file No. .CIC/WB/A/2009/00859 as being open to a decision in this hearing.
In this file the plea of learned counsel for respondent Shri D.D. Kamat is that the information sought
cannot be deemed to be not 'held' or 'under the control' of the SCI. He also submitted that the
information sought is part of in-house procedure of the office of Chief Justice of India. To be
considered as "held" or "under the control" of the Supreme Court of India, these words have to be
interpreted in terms of the basic structure of the Indian Constitution. In this context he invited our
attention to the following ruling from the decision of the Supreme Court in N. Kannadasan vs.
AjoyKhose (2009) 7 SCC as follows:

"71. Independence and impartiality of judiciary is a basic feature of the Constitution.

Constitutionalism envisages that all laws including the constitutional provisions
should be interpreted so as to uphold the basic feature of the Constitution."
Shri DevadattKamat has gone on to quote from a judgment of the Supreme Court in Velamuri
Venkata Sivaprasad Vs. Kothuri Venkateswarlu (2000) 2 SCC which deals with Hindu Succession
Act 1956, in particular Section 14, as follows:
"The legislation of 1956, therefore, ought to receive an interpretation which would be

in consonance with the wishes and desires of the framers of our Constitution. We
ourselves have given this Constitution to us and as such it is a bounden duty and an
obligation to honour the mandate of the Constitution in very sphere and
interpretation which would go in consonance therewith ought to be had without any
departure therefrom."
In this context he argued that under the Constitution, the Judges are to be given an exalted status.
He has, therefore, quoted C. RavichandranIyerVs. Justice A.M. Bhattacharjee in which K.
Ramaswamy. J. has ruled on why rule of law and judicial independence needs to be preserved:
"The diverse contentions give rise to the question whether any Bar Council or Bar
Association has the right to pass resolution against the conduct of a Judge perceived
to have committed misbehaviour and, if so, what is its effect on independence of the
judiciary. With a view to appreciate the contentions in their proper perspective, it is
necessary to haveat the back of our mind the importance of the independence of the
judiciary. In a democracy governed by rule of law under written Constitution,
judiciary issentinelon thequi vive to protect the fundamental rights and to poise even
scales of justice between the citizens and the State or the States inter se. Rule of law
and judicial review are basic features of the Constitution. As its integral
constitutional structure, independence of the judiciary is an essential attribute of rule
of law. In S.P. Gupta vs. Union of India [(1981) Supp. SCC 87] in paragraph27,this
Court held that if there is one principle which runs through the entire fabric of the
Constitution it is the principle of the rule of law, and under the Constitution it is the
judiciary which is entrusted with the task of keeping every organ of the State within
the limits of the law and thereby making the rule of law meaningful and effective.
Judicial review is one of the most potent weapons in the armoury of law. The
judiciary seeks to protect the citizen against violation of his constitutional or legal
rights or misuse or abuse of power by the State or its officers. The judiciary stands
between the citizen and the State as a bulwark against executive excesses and misuse
or abuse of power by the executive. It is, therefore, absolutely essential that the
judiciary must be free from executive pressure or influence which has been secured
by making elaborate provisions in the Constitution with details. The independence of
judiciary is not limited only to the independence from the executive pressure or
influence; it is a wider concept, which takes within its sweep independence from any
other pressure and prejudices. It has many dimensions, viz. fearlessness of other

power centres, economic or political, and freedom from prejudices acquired and
nourished by the class to which the judges belong."
He has, therefore, concluded with the words of K. Ramaswamy J. in the above case, which are as
follows:
The arch of the Constitution of India pregnant from its Preamble, Chapter III
[Fundamental Rights] and Chapter IV [Directive Principles] is to establish an
egalitarian social order guaranteeing fundamental freedoms and to secure justice -
social, economic and political - to every citizen through rule of law. Existing social
inequalities need to be removed and equality in fact is accorded to all people
irrespective of caste, creed, sex, religion or region subject to protective discrimination
only through rule of law. The Judge cannot retain his earlier passive judicial rule
when he administers the law under the Constitution to give effect to the
constitutional ideals. The extraordinary complexity of modern litigation requires him
not merely to declare the rights of citizens but also to mould the relief warranted
under given facts and circumstances and often command the executive and other
agencies to enforce and give effect to the order, writ or direction or prohibit them to
do unconstitutional acts. In this ongoing complex of adjudicatory process, the role of
the Judge is not merely to interpret the law but also to lay new norms of law and to
mould the law to suit the changing social and economic scenario to make the ideals
enshrined in the Constitution meaningful and reality. Therefore, the Judge is
required to take judicial notice of the social and economic ramification, consistent
with the theory of law. Thereby, the society demands active judicial roles, which
formerly were considered exceptional but now a routine. The Judge must act
independently, if he is to perform the functions as expected of him and he must feel
secure that such action of him will not lead to his own downfall. The independence is
not assured for the Judge but to the judged. Independence to the Judge, therefore,
would be both essential and proper. Considered judgment of the court would
guarantee the Constitutional liberties which would thrive only in an atmosphere of
judicial independence. Every endeavour should be made to preserve independent
judiciary as a citadel of public justice and public security to fulfil the constitutional
role assigned to the Judges."
Learned counsel Shri Devadatt Kamat has then quoted from Shri P. RamanathaAiyar's Advanced
Law Lexicon Volume II to define the word "held" as follows:
"The word 'held' connotes the existence of a right or title in the hold. PhekuChamar v.
Harish Chandra, AIR 1953 ALL 406, 407, KailashRai v. jai Jai Ram, AIR 1973 SC
893, 897. (UP Zamindari Abolition and Land Reforms Act (1 of 1951),S.9).
"The word 'held' means lawfully held, to possesses by legal title," Budhan Singh v.
BabiBux, AIR 1970 SC 1880 at 1884."

Shri DevadattKamat has also quoted from Volume 1 of the Advanced Law Lexicon on the word
"control" as below:
"The expression 'control' connotes power to issue directions regarding how a thing
may be done by a superior authority to an inferior authority. K. S. Ramamurthy
Reddiar vs. Chief Commissioner, Pondicherry, AIR 1963 SC 1464."
In support he has invited our attention to KailashRai vs. Jai Jai Ram (1973) 1 SCC announced on
22nd January, 1973 in which Hon'bleVaidialingam, J. has held as below:
"In interpreting expression, this Court in Budhan Singh and Another v. NabiBux and
Another has held that it means lawfully held. This Court has further observed that:
'According to Webster's New Twentieth Century Dictionary the word 'held' is

technically understood to mean to possess by legal title. Therefore, by interpreting
the word 'held' as 'lawfully held' there was no addition of any word to the section.
According to the words of Section 9 and in the context of the scheme of the Act, it is
proper to construe the word 'held' in the section as 'lawfullyheld'."
In brief, therefore, the argument of learned counsel for respondent has been that the information
sought in all these matters cannot be deemed either to be held or under the control of Chief Justice
in legal terms. Learned counsel for appellant Shri Mayank Mishra has, on the other hand, submitted
that what appellant Shri S.C. Agrawal has sought is not concerning the conduct of Justices of the
High Court but that of the Union Minister against whose attempt to influence Hon'ble Mr. Justice
Reghupati has made complaint. He, however, conceded that the questions 7 and 8 are concerned
with the conduct of Justices.
DECISION NOTICE As discussed above there are no file notings as sought in file Nos.
CIC/WB/A/2009/0001, CIC/WB/A/2009/0411 and CIC/WB/A/2009/0735, hence the information
sought is that already provided by CPIO Shri Rajpal Arora being the information held by the SCI.
These three appeals are therefore, dismissed.
On the other hand the issue in Appeal Nos. CIC/WB/A/2009/0408, CIC/WB/A/2009/0410 and
CIC/WB/A/2009/0530 concerns disclosure of information of in-house functioning of the office of
the CJI, which is the subject of appeal before the Division Bench of the High Court of Delhi. For this
reason any decision in these three cases at this stage could be singularly inappropriate and the
hearing is adjourned to 16th December, 2009 at 4.00 p.m.
With regard to the appeal No. CIC/WB/A/2009/00859 ,however, we are not convinced that the
disclosure of information sought by.appellant Shri S.C. Agrawal would in any way infringe on the
constitutional stature of Hon'ble Justices of the High Court or indeed in any way diminish the
exalted status that we readily concede is granted to him in a democracy such as ours. The
implication in this appeal is that, in fact, there has been an attempt to diminish that exalted status
by unseemly pressure and the information sought is a means to expose such an unworthy attempt, if

any. Besides, the argument constructed so painstakingly by learned counsel for respondent Shri
DevadattKamat to substantiate his plea that information sought cannot be deemed to be held or
under the control of the SCI has also failed to convince because the different rulings marshalled by
learned counsel referred repeatedly to matters of property and property records, not questions of
general correspondence which would constitute general information. Should the plea of learned
counsel Shri DevadattKamat be accepted such a decision would have devastating effect on the very
foundation of the principles of transparency and accountability of which the Right to Information
Act 2005 rests firm. Learned counsel seems to have made an effort to make a distinction between
the definitions of information as clearly mandated u/s 2 (f) and the Right to Information defined in
Section 2 (j). On this specific issue, however, we have the decision of the Delhi High Court in WP (C)
7265/2007 Poorna Prajna Public School vs. Central Information Commissioner &Ors. decided on
25.9.'09 in which Hon'ble Shri Sanjeev Khanna J. has examined this very issue and come to the
conclusion that there can be no such fine dividing line. "It is well established" the learned Justice
has held, "that an interpretation which renders another provision or part thereof redundant or
superfluous should be avoided."1 Under the circumstances this appeal is allowed. The information
sought by appellant Shri S.C. Agrawal in respect of all questions except question Nos. 7 and 8 which
are indeed questions on in-house procedure apart from questioning the conduct of Justices of the
High Court in which, in our view, a response could impinge upon the exalted status granted to such
Justices, will now be provided to Para 8 of WP© No. 7625/2007 appellant Shri S.C. Agrawal within
15 working days of the date of receipt of this decision notice. There will be no costs.
Announced in the hearing in respect of all files save File No. CIC/WB/A/2009/00859. The Decision
on the latter is announced in open chamber this 24th day of November 2009. Notice of this decision
be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 24-11-2009 Authenticated true copy.

Additional copies of orders shall be supplied against application and payment of the charges
prescribed under the Act to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 24-11-2009 ADJUNCT ORDER: Appeal No.
CICWB/A/2009/000529 and CIC/WB/A/2009/000859 Date of Hearing: 10.08.2020 Note:
Aggrieved due to non-compliance of the decisions of the Commission in CIC/WB/A/2009/000529
dated 29.04.2009 and CIC/WB/A/2009/000859 dated 06.07.2009 despite the orders of the
Hon'ble Supreme Court of India in Civil Appeal No 10044 and 10045 of 2009 dated 13.11.2019, the
Appellant made an application for non-compliance dated 01.06.2020. In the said representation,
the Appellant also requested to take the four adjourned cases in File No CIC/WB/A/2009/000529,
CIC/WB/A/2009/000408, CIC/WB/A/2009/000410 and CIC/WB/A/2009/000530 in view of the
decision of the Hon'ble Supreme Court of India in Civil Appeal No 10045 of 2009 dated 13.11.2019.
However, subsequently, the Appellant vide email dated 23.07.2020 informed the Commission that
inadvertently in his submission dated 01.06.2020, dates of CIC decisions were wrongly given as
appeal date and RTI application date respectively. He therefore requested correction of the dates as
CIC decision dated 24.11.2009 in File No CIC/WB/A/2009/000529 and 20/24.11.2009 in File No
CIC/WB/A/2009/000859. The Commission was also in receipt of a written submission from the
Appellant dated 16.07.2020 wherein he inter alia made a request to issue notices for hearing of each

case separately.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Shri S.C.Agrawal through TC;
Respondent: Mr.AjayAgrawal, Addl. Reg. & CPIO, Mr. Bharat Singh, Advocate and Mr. Saurabh
Mishra, Advocate;
Being a very old matter, the documents pertaining to the instant cases were not readily available on
the record of the Commission. The In-charge record room, CIC vide letter dated 10.06.2020 also
conveyed that file nos CIC/WB/A/2009/00530, CIC/WB/A/2009/0408, CIC/WB/A/2009/00410
and CIC/WB/A/2009/00529 were not available in the record room. However, file no
CIC/WB/A/2009/00859 was available in the E-book of Appscom software. Thus, in the interest of
natural justice, the facts were culled out from the available records, earlier orders of the Commission
and written submissions made by both the parties and in the interest of natural justice, opportunity
of hearing was granted to both the parties.
The Appellant re-iterated the contents of his non-compliance application and written submissions
furnished before the Commission and stated that the direction of the Apex Court in both the matters
to re-examine the matter after following the procedure u/s 11 (1) of the RTI Act, 2005 was not
complied within the time frame stipulated under Section 11 of the RTI Act, 2005. While submitting
that notices to third parties u/s 11 of the Act ought to have been issued within five days and
opportunity of representation be given to them within 10 date from the date of receipt of such
notice, the Appellant submitted that the CPIO should have decided disclosure of information within
45 days of the Supreme Court Order i.e. by 28.12.2019. The Appellant acknowledged the receipt of
the replies dated 22.06.2020 (Appeal No CICWB/A/2009/000529) and 20.06.2020 (Appeal No.
CIC/WB/A/2009/000859) sent by the CPIO in compliance to the directions of the Apex Court
dated 13.11.2019 as also the receipt of the written submissions sent by the Respondent prior to the
instant hearing before the Commission. While expressing his partial satisfaction with the point wise
response provided vide letter 20.06.2020 (Appeal No. CIC/WB/A/2009/000859), the Appellant
submitted that queries 04 and 08 were not answered to his satisfaction and that with regard to the
information sought in Appeal No CICWB/A/2009/000529, the information was incorrectly denied
on the ground that the consent of the third parties was not received. Explaining that the issues
raised by him were in the larger public interest, the Appellant also prayed before the Commission to
advise and sensitize the Respondent (CPIO) to comply with the directions issued by the Apex Court
as also the provisions of the RTI Act, 2005 in letter and spirit. In its reply, the Respondent re-
iterated the response of the CPIO dated 22.06.2020 (Appeal No CICWB/A/2009/000529) and
22.06.2020 (Appeal No. CIC/WB/A/2009/000859) issued in compliance with the parameters laid
down by the Hon'ble Supreme Court in its decision dated 13.11.2019 and submitted that point wise

information was already provided to the Appellant vide letter dated 20.06.2020 in Appeal No
CIC/WB/A/2009/000859 which answered all the queries raised by the Appellant. However, in
Appeal No CICWB/A/2009/000529, since the consent was not received from the Third Parties as
per Section 11 of the RTI Act, 2005 a detailed and reasoned response was provided to the Appellant
while referring to the principles laid down by the Hon'ble Supreme Court in para 36, 43, 59, 34, 76
and 88 of its judgement in Civil Appeal No 10044/2010 dated 13.11.2019. However, the extract of
the decision of the Collegium meeting held on 15.10.2008 and 17.11.2008 and copies of the
movement of file notings on movement of RTI application dated 23.01.2009 as admissible after
severing information u/s 10 of the RTI Act, 2005 was provided to the Appellant. As regards the
delay in complying with the directions of the Hon'ble Supreme Court, it was stated that the same
was unintentional and not malafide and had occurred due to the procedural knitty gritties/
correspondences involved in seeking the consent of the third parties. During the hearing the
Respondent also made a reference to the order dated 23.03.2020 issued by the Hon'ble Supreme
Court in Suo Motu Writ Petition (Civil) No (s) 3/2020 wherein it was decided that "To obviate such
difficulties and to ensure that lawyers/litigants do not have to come physically to file such
proceedings in respective Courts/Tribunals across the country including this Court, it is hereby
ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed
under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th
March 2020 till further order/s to be passed by this Court in present proceedings."
On being queried whether prior to approaching the Commission, he had filed a First Appeal u/s 19
(1) of the RTI Act, 2005 against the decision of the CPIO issued in compliance with the decision of
the Apex Court dated 13.11.2019, the Appellant admitted that he had filed the first appeals on
11.07.2020 i.e., subsequent to approaching the Commission vide representation dated 01.06.2020.
The Appellant however submitted that his First Appeals were not decided by the FAA till date
although he had received the notice for scheduling hearing on 26.08.2020 in Appeal No
CIC/WB/A/2009/000859. Explaining that the First Appeal could have been heard through the
video conference mode, the Appellant submitted that a decision in the instant matters could be
pronounced by the Commission since remanding the matter to the FAA could result in further delay
in the matter and that justice delayed was justice denied.
The Commission was in receipt of a written submission from the Appellant dated 24.07.2020
(Appeal No. CIC/WB/A/2009/000529)wherein while referring to the RTI application dated
23.01.2009, the Appellant stated that the CPIO vide letter dated 22.06.2020 subsequent to his two
separate submissions dated 01.06.2020 addressed to the Hon'ble Chief Justice of India and the
Commission declined information as according to him there will be no public interest in divulging /
sharing such information. However Hon'ble Mr. Justice Ranjan Gogoi (since retired) who headed
the Constitution Bench as the Chief Justice giving the verdict dated 13.11.2019 in a series of TV
interviews in March 2020 repeatedly advised filing RTI applications about the suitability of Mr.
Justice AP Shah (Retired) as the Supreme Court Judge. Therefore this evidently becomes a case of
public interest as deemed fit by none other than the then Chief Justice of India giving the verdict
subsequent to which the CPIO responded. While referring to the resolution dated 03.10.2017 by the
five senior most Hon'ble Judges of Supreme Court at that time, the Appellant submitted that the
resolution clearly indicated that lately Hon'ble Judges of the Supreme Court have considered

putting collegiums proceedings about appointment and elevation of judges in higher courts in public
domain evidently because of "public interest" involved and the practice has thereafter been started
with all such collegiums proceedings on appointment and promotion of judges in higher courts now
available on Supreme Court website. Thus, the Appellant submitted that if putting later collegiums
proceedings was considered proper by the Hon'ble judges of the Supreme Court then the same must
hold good for earlier collegiums proceedings before passing of the said resolution including the one
relating to the RTI application presently under consideration. Thus, the Appellant prayed to direct
the CPIO to provide the information as directed by the Commission vide verdict dated 24.11.2009 as
it is a case of public interest well fitting under the parameters mentioned in the verdict dated
13.11.2019 in Civil Appeal No 10044 and 10045 of 2010 by the Constitution Bench. While referring
to Section 11 of the RTI Act, 2005, the Appellant submitted that not providing any notice to the
concerned "Third Parties" within five days after the Supreme Court verdict implied that the CPIO
considered providing the information without any need of even issuing 'Third Party Notices' While
submitting that the Supreme Court order was read in the open court where both the Petitioner and
the Respondent were present, the Appellant submitted that the CPIO should have decided
disclosure of information within 45 days of the Supreme Court Order i.e., 28.12.2019.The CPIO also
did not follow the guidelines mentioned in Section 11 that only 10 days time was given to 'Third
Parties' for sending comments and no reminder needs to be issued. The Appellant also prayed for
adequate and exemplary compensation for the mental agony, time and money spent in pursuing the
matter for so long.
The Commission was in receipt of a written submission from the Appellant dated 24.07.2020
(Appeal No. CIC/WB/A/2009/000859) wherein while referring to the RTI application dated
06.07.2009, the Appellant stated that the CPIO subsequent to his two separate submissions dated
01.06.2020 before the Hon'ble Chief Justice of India and the Commission responded vide letter
dated 20.06.2019 (received by him on 06.07.2020) with a delay and by adopting an approach in
contradiction with the RTI Act, 2005. While referring to the reply of the CPIO on point no 04 of the
RTI application, the Appellant stated that the CPIO advised him to approach the Government and
the Bar Council of India for information sought for and that he had appealed to the CPIO to transfer
his application u/s 6 (3) of the RTI Act, 2005. He further referred to the reply of the CPIO on point
no 08 of the RTI application which was denied on the ground that "the query is presumptive in
nature; hence, no information" and stated that the matter was highlighted especially after the
Constitution Bench of the Hon'ble Supreme Court ordered on the same after more than a decade of
filing the RTI application. While stating that the query was not presumptive in nature, the Appellant
submitted that a reply could be provided by the Respondent that "no information exists on record."
The Appellant while referring to the judgment of the Constitution Bench of the Supreme Court of
India in Civil Appeal No. 2683/2009 dated 13.11.2019 prayed to direct the CPIO at Supreme Court
to revisit query no 08 for seeking assistance from the O/o the Hon'ble Chief Justice of India u/s 5
(4) or else Hon'ble Chief Justice of India could be directed to provide the information on the said
point. While referring to Section 11 of the RTI Act, 2005, the Appellant submitted that not providing
any notice to the concerned "Third Parties" within five days after the Supreme Court verdict implied
that the CPIO considered providing the information without any need of even issuing 'Third Party
Notices' While submitting that the Supreme Court order was read in the open court where both the
Petitioner and the Respondent were present, the Appellant submitted that the CPIO should have

decided disclosure of information within 45 days of the Supreme Court Order i.e., 28.12.2019. The
CPIO also did not follow the guidelines mentioned in Section 11 that only 10 days time was given to
'Third Parties' for sending comments and no reminder needs to be issued. The Third Party
concerned also did not send any comments within 10 days of receipt of notices hence the CPIO has
to provide information in accordance with initial sentence of Section 11 without considering the
comments sent by the Third Parties. The Appellant thereafter referred to the newsreport titled "Who
tweaked report on Raja's attempt to influence judge" (Times of India 09.12.2010) and submitted
that the information sought was in public domain long back hence it was unjustified on the part of
the CPIO to further delay in providing the information even after the Supreme Court verdict dated
13.11.2019 and that all the parameters of "Public Interest" as detailed by the Supreme Court verdict
dated 13.11.2019 were met in providing timely information because exposure of those trying to
influence judiciary was a key factor for ensuring judicial independence. Thus the Appellant prayed
for adequate and exemplary compensation for the mental agony, time and money spent in pursuing
the matter for so long that too when the information was in the public domain long back as per
Times of India report dated 09.12.2010.
The Commission was also in receipt of a written submission from the Respondent (Appeal No.
CIC/WB/A/2009/000529) dated 31.07.2020 wherein it was stated that the earlier direction of the
Commission dated 24.11.2009 was challenged before the Hon'ble Supreme Court of India vide SLP
(C) 32855/2009 (Converted to Civil Appeal No 10044/2010). The Hon'ble Supreme Court of India
vide order dated 04.12.2009 had granted interim stay as prayed for which was conveyed to the
Commission vide letter dated 11.12.2009 and as such the claim of the Appellant regarding
non-compliance of the direction in CIC/WB/A/2009/000529 doesn't arise. Furthermore, the
Supreme Court vide judgement dated 13.11.2019 partly allowed the Civil Appeal No 10044-10045/
2010 and remitted the matter to the CPIO, Supreme Court of India for re-examination in terms of
the said judgement. In compliance with the said direction of the Hon'ble Supreme Court of India,
the Appellant had already been provided with an appropriate reply by the CPIO, Supreme Court of
India vide letter dated 22.06.2020 with respect to the RTI application dated 23.01.2009. The copy
of the CPIOs reply dated 22.06.2020 and 07.02.2020 were enclosed with the written submission.
The Commission was also in receipt of a written submission from the Respondent dated 30.07.2020
for Appeal No CIC/WB/A/2009/000859 connected with CIC/WB/A/2009/000408, 410 and 530
wherein it was stated that the earlier direction of the Commission dated 20/24.11.2009 was
challenged before the Hon'ble Supreme Court of India vide SLP (C) 32856/2009 (Converted to Civil
Appeal No 10045/2010). The Hon'ble Supreme Court of India vide order dated 04.12.2009 had
granted interim stay as prayed for which was conveyed to the Commission vide letter dated
11.12.2009 and as such the claim of the Appellant regarding non-compliance of the direction in
CIC/WB/A/2009/000859 doesn't arise. Furthermore, the Supreme Court vide judgement dated
13.11.2019 partly allowed the Civil Appeal No 10044-10045/ 2010 and remitted the matter to the
CPIO, Supreme Court of India for re-examination in terms of the said judgement. In compliance
with the said direction of the Hon'ble Supreme Court of India, the Appellant had already been
provided with an appropriate reply by the CPIO, Supreme Court of India vide letter dated
20.06.2020 with respect to the RTI application dated 23.01.2009. The copy of the CPIOs reply
dated 20.06.2020 alongwith its enclosures was annexed with the written submission.

The Commission observed that in the present instance the Appellant had not exercised the
alternative remedy of exhausting the First Appeal mechanism for seeking information under the
provisions of the RTI Act, 2005 and had directly approached the Commission against the decision of
the CPIO inter alia praying for disclosure of information. However, as mentioned above, the
Appellant had subsequently filed the First Appeal after approaching the Commission in both these
matters. In this context, the Commission drew the attention of the Appellant to the decision and the
spirit enunciated by the Hon'ble Supreme Court of India in Agnivesh Gupta vs Joint Secretary (L&E,
A) & CVO and Ors Writ Petition (Civil) No. 864/2019) dated 19.05.2020 wherein a full bench
comprising of Hon'ble Dr. Justice D. Y. Chandrachud, Hon'ble Mr. Justice Hemant Gupta and
Hon'ble Mr. Justice Ajay Rastogi, the Apex Court while deciding the petition challenging the order
of the Chief Information Commissioner dated 17.05.2018 held as under:
"The petitioner has an efficacious and alternate remedy of challenging the order of
Chief Information Commissioner in proceedings under Article 226 of the
Constitution before the appropriate High Court. The petitioner is at liberty to do so.
We clarify that in the above view of the matter, we have not expressed any opinion on
the merits of the grievance, which the petitioner is at liberty to pursue before the
appropriate High Court."
In the context of utilisation of efficacious alternative remedy, the Commission also referred to the
decision of the Division Bench of the Apex Court in Roshina T. vs. Abdul Azeez K.T. & Ors. CIVIL
APPEAL NO.11759 OF 2018 Arising out of SLP (C) No. 30465 of 2017) dated 03.12.2018 wherein it
was held as under:
"15. It has been consistently held by this Court that a regular suit is the appropriate
remedy for settlement of the disputes relating to property rights between the private
persons. The remedy under Article 226 of the Constitution shall not be available
except where violation of some statutory duty on thepart of statutory authority is alle
ged. In such cases, the Court has jurisdiction to issue appropriate directions to the
authority concerned. It is held that the High Court cannot allow its constitutional
jurisdiction to be used for deciding disputes, for which remedies under the general
law, civil or criminal are available. This Court has held that it is not intended to
replace the ordinary remedies byway of a civil suit or application available to an
aggrieved person. The jurisdiction under Article 226 of the Constitution being special
and extraordinary it should not be exercised casually or lightly on mere asking by the
litigant. (See Mohan Pande vs. Usha Rani, 1992 (4) SCC 61 and Dwarka Prasad
Agrawal vs BD Agrawal, (2003) 6 SCC 230)."
Moreover, in the matter of GM, Sri Siddeshwara Co-operative Bank Ltd. & Anr. vs. Sri Ikbal & Ors.
in CIVIL APPEAL NOS. 6989-6990 OF 2013 (Arising out of SLP(C) Nos.17704-17705 of 2012)dated
22.08.2013, it was held as under:
"27. There is one more aspect in the matter which has troubled us. Against the action
of the Bank under Section 13(4) of the SARFAESI Act, the borrower had a remedy of

appeal to the Debts Recovery Tribunal (DRT) under Section 17. The remedy provided
under Section 17 is an efficacious remedy. The borrower did not avail of that remedy
and further remedies from that order and instead directly approached the High Court
in extraordinary jurisdiction under Article 226 of the Constitution of India.
31. No doubt an alternative remedy is not an absolute bar to the exercise of

extraordinary jurisdiction under Article 226 but by now it is well settled that where a
statute provides efficacious and adequate remedy, the High Court will do well in not
entertaining a petition under Article 226. On misplaced considerations, statutory
procedures cannot be allowed to be circumvented."
A reference can also be made to the decision of the Apex Court in Kanaiyalal Lalchand Sachdev and
others vs. State of Maharashtra and others, 2011 (2) SCC 782, the relevant extracts of which are as
under:
"23. In our opinion, therefore, the High Court rightly dismissed the petition on the
ground that an efficacious remedy was available to the appellants under Section 17 of
the Act. It is well settled that ordinarily relief under Articles 226/227 of the
Constitution of India is not available if an efficacious alternative remedy is available
to any aggrieved person."
In the light of the aforementioned judgment of the Apex Court as cited above, it is evident that in the
judicial / quasi judicial process the procedures for remedial action should invariably be exhausted
unless there are compelling reasons for not doing so. DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light
of the decisions cited abovemaintaining the spirit of judicial/ quasi judicial mechanism as also the
judgement of the Apex Court dated 13.11.2019 instructing the CPIO to re-examine the application
keeping in view Section 11 (1) of the RTI Act, 2005, the Commission instructs the Appellant to
exercise the alternative remedy of First Appellate Authority (FAA) mechanism prior to approaching
the Commission in the matter.
The CPIO is also advised to ensure that timelines prescribed under the RTI Act, 2005 is complied
with in letter and spirit to facilitate expeditious flow of information to the information seekers.
The Commission also instructs the Respondent Public Authority to convene periodic
conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant
provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
Bimal Julka( ) Chief Information Commissioner ( ) Authenticated true copy ( ) K.L. Das ( ..) Dy.
Registrar (-) 011-26186535/ kl.das@nic.in / Date: 14.08.2020 Copy to:
1. The Secretary General, Supreme Court of India, Tilak Marg, Mandi House, New Delhi-110001

2. The Registrar and First Appellate Authority, RTI, Tilak Marg, Mandi House, New Delhi-110001

Justice K.S.Puttaswamy(Retd) ... vs Union Of India And Ors. on 24 August, 2017

Author: D Y Chandrachud
Bench: [ K Kaul], [ D Chandrachud], [ K Agrawal], [ S Khehar], [ A Bobde], [ A Nazeer], [ D
Chandrachud], [ K Agrawal], [ S Khehar]
REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO 494 OF 2012
JUSTICE K S PUTTASWAMY (RETD.),

AND ANR. ..Petitioners
VERSUS
UNION OF INDIA AND ORS. ..Respondents

WITH
T.C. (CIVIL) NO 151 OF 2013
T.C. (CIVIL) NO 152 OF 2013
W.P.(CIVIL) NO 833 OF 2013
CONMT. PET. (CIVIL) NO 144 OF 2014 IN W.P.(C) NO. 494/2012
T.P.(CIVIL) NO 313 OF 2014
T.P.(CIVIL) NO 312 OF 2014
S.L.P(CRL.) NO.2524/2014
W.P.(CIVIL) NO.37/2015
Signature Not Verified
Digitally signed by
PARVEEN KUMAR
Date: 2017.08.24
W.P.(CIVIL) NO.220/2015

12:36:27 IST
Reason:
1
CONMT. PET. (C)NO.674/2015 IN W.P.(C) NO.829/2013
T.P.(CIVIL)NO.921/2015
CONMT.PET.(C)NO.470/2015 IN W.P.(C) NO.494/2012
W.P.(CIVIL) NO.797/2016
W.P. (C) NO. 342/ 2017
AND WITH W.P.(C) NO.000372/2017
JUDGMENT
Dr D Y CHANDRACHUD, J This judgment has been divided into sections to facilitate analysis. They
are :
A The reference
B Decision in M P Sharma
C Decision in Kharak Singh
D Gopalan doctrine: fundamental rights as isolated silos
E Cooper and Maneka: Interrelationship between rights
F Origins of privacy
G Natural and inalienable rights
H Evolution of the privacy doctrine in India
I The Indian Constitution
Preamble
Jurisprudence on dignity
Fundamental Rights cases

No waiver of Fundamental Rights
Privacy as intrinsic to freedom and liberty
Discordant Notes : (i) ADM Jabalpur
(ii) Suresh Koushal
J Indias commitments under International law K Comparative law on privacy
(i) UK decisions
(ii) US Supreme Court decisions
(iii) Constitutional right to privacy in South Africa
(iv) Constitutional right to privacy in Canada
(v) Privacy under the European Convention on Human Rights and the European Charter
(vi) Decisions of the Inter-American Court of Human Rights L Criticisms of the privacy doctrine a
Thomsons Reductionism b Posners Economic critique c Borks critique d Feminist critique M
Constituent Assembly and privacy: limits of originalist interpretation N Is the statutory protection
to privacy reason to deny a constitutional right? O Not an elitist construct P Not just a common law
right Q Substantive Due Process R Essential nature of privacy S Informational privacy T
Conclusions PART A A The reference 1 Nine judges of this Court assembled to determine whether
privacy is a constitutionally protected value. The issue reaches out to the foundation of a
constitutional culture based on the protection of human rights and enables this Court to revisit the
basic principles on which our Constitution has been founded and their consequences for a way of life
it seeks to protect. This case presents challenges for constitutional interpretation. If privacy is to be
construed as a protected constitutional value, it would redefine in significant ways our concepts of
liberty and the entitlements that flow out of its protection.
2 Privacy, in its simplest sense, allows each human being to be left alone in a core which is
inviolable. Yet the autonomy of the individual is conditioned by her relationships with the rest of
society. Those relationships may and do often pose questions to autonomy and free choice. The
overarching presence of state and non- state entities regulates aspects of social existence which bear
upon the freedom of the individual. The preservation of constitutional liberty is, so to speak, work in
progress. Challenges have to be addressed to existing problems. Equally, new challenges have to be
dealt with in terms of a constitutional understanding of where liberty places an individual in the
context of a social order. The emergence of new challenges is exemplified by this case, where the
debate on privacy is being analysed in the context of a global information based society. In an age
where information technology governs virtually every aspect of our lives, the task before the Court is
to PART A impart constitutional meaning to individual liberty in an interconnected world. While we
revisit the question whether our constitution protects privacy as an elemental principle, the Court
has to be sensitive to the needs of and the opportunities and dangers posed to liberty in a digital
world.
3 A Bench of three judges of this Court, while considering the constitutional challenge to the
Aadhaar card scheme of the Union government noted in its order dated 11 August 2015 that the

norms for and compilation of demographic biometric data by government was questioned on the
ground that it violates the right to privacy. The Attorney General for India urged that the existence
of a fundamental right of privacy is in doubt in view of two decisions : the first M P Sharma v Satish
Chandra, District Magistrate, Delhi1 (M P Sharma) was rendered by a Bench of eight judges and the
second, in Kharak Singh v State of Uttar Pradesh2 (Kharak Singh) was rendered by a Bench of six
judges. Each of these decisions, in the submission of the Attorney General, contained observations
that the Indian Constitution does not specifically protect the right to privacy. On the other hand, the
submission of the petitioners was that M P Sharma and Kharak Singh were founded on principles
expounded in A K Gopalan v State of Madras3 (Gopalan). Gopalan, which construed each provision
contained in the Chapter on fundamental rights as embodying a distinct protection, was held not to
be good law by an eleven-judge (1954) SCR 1077 (1964) 1 SCR 332 AIR 1950 SC 27 PART A Bench in
Rustom Cavasji Cooper v Union of India4 (Cooper). Hence the petitioners submitted that the basis
of the two earlier decisions is not valid. Moreover, it was also urged that in the seven-judge Bench
decision in Maneka Gandhi v Union of India5 (Maneka), the minority judgment of Justice Subba
Rao in Kharak Singh was specifically approved of and the decision of the majority was overruled. 4
While addressing these challenges, the Bench of three judges of this Court took note of several
decisions of this Court in which the right to privacy has been held to be a constitutionally protected
fundamental right. Those decisions include : Gobind v State of Madhya Pradesh6 (Gobind), R
Rajagopal v State of Tamil Nadu7 (Rajagopal) and Peoples Union for Civil Liberties v Union of
India8 (PUCL). These subsequent decisions which affirmed the existence of a constitutionally
protected right of privacy, were rendered by Benches of a strength smaller than those in M P Sharma
and Kharak Singh. Faced with this predicament and having due regard to the far-reaching questions
of importance involving interpretation of the Constitution, it was felt that institutional integrity and
judicial discipline would require a reference to a larger Bench. Hence the Bench of three learned
judges observed in its order dated 11 August 2015:
12. We are of the opinion that the cases on hand raise far reaching questions of importance involving
interpretation of the Constitution. (1970) 1 SCC 248 (1978) 1 SCC 248 (1975) 2 SCC 148 (1994) 6
SCC 632 (1997) 1 SCC 301 PART A What is at stake is the amplitude of the fundamental rights
including that precious and inalienable right under Article 21. If the observations made in M.P.
Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this
country, the fundamental rights guaranteed under the Constitution of India and more particularly
right to liberty under Article 21 would be denuded of vigour and vitality. At the same time, we are
also of the opinion that the institutional integrity and judicial discipline require that pronouncement
made by larger Benches of this Court cannot be ignored by the smaller Benches without
appropriately explaining the reasons for not following the pronouncements made by such larger
Benches. With due respect to all the learned Judges who rendered the subsequent judgments -
where right to privacy is asserted or referred to their Lordships concern for the liberty of human
beings, we are of the humble opinion that there appears to be certain amount of apparent
unresolved contradiction in the law declared by this Court.
13. Therefore, in our opinion to give a quietus to the kind of controversy raised in this batch of cases
once for all, it is better that the ratio decidendi of M.P. Sharma (supra) and Kharak Singh (supra) is
scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the

right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of
appropriate strength. 5 On 18 July 2017, a Constitution Bench presided over by the learned Chief
Justice considered it appropriate that the issue be resolved by a Bench of nine judges. The order of
the Constitution Bench reads thus:
During the course of the hearing today, it seems that it has become essential for us to
determine whether there is any fundamental right of privacy under the Indian
Constitution. The determination of this question would essentially entail whether the
decision recorded by this Court in M.P. Sharma and Ors. vs. Satish Chandra, District
Magistrate, Delhi and Ors. - 1950 SCR 1077 by an eight-Judge Constitution Bench,
and also, in Kharak Singh vs. The State of U.P. and Ors. - 1962 (1) SCR 332 by a
six-Judge Constitution Bench, that there is no such fundamental right, is the correct
expression of the constitutional position.
PART A Before dealing with the matter any further, we are of the view that the issue noticed
hereinabove deserves to be placed before the nine-Judge Constitution Bench. List these matters
before the Nine- Judge Constitution Bench on 19.07.2017. 6 During the course of hearing, we have
been ably assisted on behalf of the petitioners by Mr Gopal Subramanium, Mr Kapil Sibal, Mr
Arvind Datar, Mr Shyam Divan, Mr Anand Grover, Ms Meenakshi Arora, Mr Sajan Poovayya and Mr
Jayant Bhushan, learned senior counsel. Mr J S Attri, learned senior counsel supported them on
behalf of the State of Himachal Pradesh. On behalf of the Union of India, the Court has had the
benefit of the erudite submissions of Mr K K Venugopal, Attorney General for India. He has been
ably supported by Mr Tushar Mehta, Additional Solicitor General, Mr Rakesh Dwivedi, senior
counsel for the State of Gujarat, Mr Aryama Sundaram for the State of Maharashtra, Mr Gopal
Sankaranarayanan and Dr Arghya Sengupta respectively. While some state governments have
supported the stand of the Union government, others have supported the petitioners. 7 The
correctness of the decisions in M P Sharma and Kharak Singh, is to be evaluated during the course
of the reference. Besides, the jurisprudential correctness of subsequent decisions holding the right
to privacy to be a constitutionally protected right is to be determined. The basic question whether
privacy is a right protected under our Constitution requires an understanding of what privacy
means. For it is when we understand what interests or entitlements privacy safeguards, that we can
determine whether the Constitution protects privacy. The contents of privacy need to PART B be
analysed, not by providing an exhaustive enunciation or catalogue of what it includes but by
indicating its broad contours. The Court has been addressed on various aspects of privacy including
: (i) Whether there is a constitutionally protected right to privacy; (ii) If there is a constitutionally
protected right, whether this has the character of an independent fundamental right or whether it
arises from within the existing guarantees of protected rights such as life and personal liberty; (iii)
the doctrinal foundations of the claim to privacy; (iv) the content of privacy; and (v) the nature of
the regulatory power of the state.
B Decision in M P Sharma
8 An investigation was ordered by the Union government under the Companies

Act into the affairs of a company which was in liquidation on the ground that it had made an
organized attempt to embezzle its funds and to conceal the true state of its affairs from the
share-holders and on the allegation that the company had indulged in fraudulent transactions and
falsified its records. Offences were registered and search warrants were issued during the course of
which, records were seized. The challenge was that the searches violated the fundamental rights of
the petitioners under Article 19(1)(f) and Article 20(3) of the Constitution. The former challenge was
rejected. The question which this Court addressed was whether there was a contravention of Article
20(3). Article 20(3) mandates that no person accused of an offence shall be compelled to be a
witness against himself. Reliance was placed on a judgment9 of the US Boyd v. United States, 116
US 616 (1886) PART B Supreme Court holding that obtaining incriminating evidence by an illegal
search and seizure violates the Fourth and Fifth Amendments of the American Constitution. While
tracing the history of Indian legislation, this Court observed that provisions for search were
contained in successive enactments of the Criminal Procedure Code. Justice Jagannadhadas,
speaking for the Bench, held that a search or seizure does not infringe the constitutional right
guaranteed by Article 20(3) of the Constitution:
there is no basis in the Indian law for the assumption that a search or seizure of a
thing or document is in itself to be treated as compelled production of the same.
Indeed a little consideration will show that the two are essentially different matters
for the purpose relevant to the present discussion. A notice to produce is addressed to
the party concerned and his production in compliance therewith constitutes a
testimonial act by him within the meaning of Article 20(3) as above explained. But a
search warrant is addressed to an officer of the Government, generally a police
officer. Neither the search nor the seizure are acts of the occupier of the searched
premises. They are acts of another to which he is obliged to submit and are, therefore,
not his testimonial acts in any sense.10 9 Having held that the guarantee against
self-incrimination is not offended by a search and seizure, the Court observed that :
A power of search and seizure is in any system of jurisprudence an overriding power

of the State for the protection of social security and that power is necessarily
regulated by law. When the Constitution makers have thought fit not to subject such
regulation to constitutional limitations by recognition of a fundamental right to
privacy, analogous to the Fourth Amendment, we have no justification to import it,
into a totally different fundamental right, by some process of strained construction.
Nor is it legitimate to assume that the constitutional MP Sharma (Supra note 1), at
page 1096 PART C protection under Article 20(3) would be defeated by the statutory
provisions for searches.11 (emphasis supplied) 10 These observations to be more
precise in one sentence - indicating that the Constitution makers did not subject the
regulation by law of the power of search and seizure to a fundamental right of
privacy, similar to the Fourth amendment of the US Constitution, have been pressed
in aid to question the existence of a protected right to privacy under our Constitution.
C Decision in Kharak Singh

11 After being challaned in a case of dacoity in 1941, Kharak Singh was released
for want of evidence. But the police compiled a history sheet against him. History
sheets were defined in Regulation 228 of Chapter XX of the U P Police Regulations as
the personal records of criminals under surveillance. Kharak Singh, who was
subjected to regular surveillance, including midnight knocks, moved this Court for a
declaration that his fundamental rights were infringed. Among the measures of
surveillance contemplated by Regulation 236 were the following:
(a) Secret picketing of the house or approaches to the houses of suspects;
(b) domiciliary visits at night;
(c) thorough periodical inquiries by officers not below the rank of sub-inspector into
repute, habits, associations, income, expenses and occupation;
(d) the reporting by constables and chaukidars of movements and absences from
home;
Ibid, at page 1096-97 PART C
(c) the verification of movements and absences by means of inquiry slips;
(f) the collection and record on a history-sheet of all information bearing on conduct. 12 This Court
held that the freedom to move freely throughout the territory of India, guaranteed by Article
19(1)(d) was not infringed by a midnight knock on the door of the petitioner since his locomotion is
not impeded or prejudiced in any manner. 13 When the decision in Kharak Singh was handed down,
the principles governing the inter-relationship between the rights protected by Article 19 and the
right to life and personal liberty under Article 21 were governed by the judgment in Gopalan.
Gopalan considered each of the articles in the Chapter on fundamental rights as embodying distinct
(as opposed to over-lapping) freedoms. Hence in Kharak Singh, the Court observed :
In view of the very limited nature of the question before us it is unnecessary to pause
to consider either the precise relationship between the liberties in Article 19(1)(a) &
(d) on the one hand and that in Article 21 on the other, or the content and
significance of the words procedure established by law in the latter Article, both of
which were the subject of elaborate consideration by this Court in A.K. Gopalan v.
State of Madras.12 14 The decision in Kharak Singh held that clause (b) of Regulation
236 which provided for domiciliary visits at night was violative of Article 21. The
Court observed:
Is then the word personal liberty to be construed as excluding from its purview an
invasion on the part of the police of the sanctity Kharak Singh (Supra note 2), at page
345 PART C of a man's home and an intrusion into his personal security and his right
to sleep which is the normal comfort and a dire necessity for human existence even as
an animal? It might not be inappropriate to refer here to the words of the preamble to
the Constitution that it is designed to assure the dignity of the individual and
therefore of those cherished human values as the means of ensuring his full
development and evolution. We are referring to these objectives of the framers
merely to draw attention to the concepts underlying the constitution which would
point to such vital words as personal liberty having to be construed in a reasonable
manner and to be attributed that sense which would promote and achieve those
objectives and by no means to stretch the meaning of the phrase to square with any
pre-conceived notions or doctrinaire constitutional theories.13 15 In taking this view,
Justice Rajagopala Ayyangar, speaking for a majority of five judges, relied upon the
judgment of Justice Frankfurter, speaking for the US Supreme Court in Wolf v
Colorado14, which held :
The security of one's privacy against arbitrary intrusion by the police is basic to a free
society We have no hesitation in saying that were a State affirmatively to sanction
such police incursion into privacy it would run counter to the guarantee of the
Fourteenth Amendment.15 (emphasis supplied) While the Court observed that the
Indian Constitution does not contain a guarantee similar to the Fourth Amendment
of the US Constitution, it proceeded to hold that :
Nevertheless, these extracts would show that an unauthorised intrusion into a

person's home and the disturbance caused to him thereby, is as it were the violation
of a common law right of a man an ultimate essential of ordered liberty, if not of the
very Ibid, at pages 347-348 338 US 25 (1949) Cited in Kharak Singh (Supra note 2),
at page 348 PART C concept of civilisation. An English Common Law maxim asserts
that every man's house is his castle and in Semayne case [5 Coke 91 : 1 Sm LC (13th
Edn) 104 at p. 105] where this was applied, it was stated that the house of everyone is
to him as his castle and fortress as well as for his defence against injury and violence
as for his repose. We are not unmindful of the fact that Semayne case [(1604) 5 Coke
91 : 1 Sm LC (13th Edn) 104 at p. 105] was concerned with the law relating to
executions in England, but the passage extracted has a validity quite apart from the
context of the particular decision. It embodies an abiding principle which transcends
mere protection of property rights and expounds a concept of personal liberty which
does not rest on any element of feudalism or on any theory of freedom which has
ceased to be of value.16 (emphasis supplied) 16 Kharak Singh regards the sanctity of
the home and the protection against unauthorized intrusion an integral element of
ordered liberty. This is comprised in personal liberty guaranteed by Article 21. The
decision invalidated domiciliary visits at night authorised by Regulation 236 (b),
finding them to be an unauthorized intrusion into the home of a person and a
violation of the fundamental right to personal liberty.
However, while considering the validity of clauses (c),(d) and (e) which provided for
periodical enquiries, reporting by law enforcement personnel and verification of

movements, this Court held as follows :
the freedom guaranteed by Article 19(1)(d) is not infringed by a watch being kept over
the movements of the suspect. Nor do we consider that Article 21 has any relevance in
the context as was sought to be suggested by learned Counsel for the petitioner. As
already pointed out, the right of privacy is not a guaranteed right under our
Constitution and therefore the attempt to ascertain the movements of an individual
which is merely a manner in Ibid, at page 349 PART C which privacy is invaded is not
an infringement of a fundamental right guaranteed by Part III.17 (emphasis supplied)
In the context of clauses (c), (d) and (e), the above extract indicates the view of the
majority that the right of privacy is not guaranteed under the Constitution.
17 Justice Subba Rao dissented. Justice Subba Rao held that the rights conferred by
Part III have overlapping areas. Where a law is challenged as infringing the right to
freedom of movement under Article 19(1)(d) and the liberty of the individual under
Article 21, it must satisfy the tests laid down in Article 19(2) as well as the
requirements of Article 21. Justice Subba Rao held that :
No doubt the expression personal liberty is a comprehensive one and the right to
move freely is an attribute of personal liberty. It is said that the freedom to move
freely is carved out of personal liberty and, therefore, the expression personal liberty
in Article 21 excludes that attribute. In our view, this is not a correct approach.
Both are independent fundamental rights, though there is overlapping. There is no

question of one being carved out of another. The fundamental right of life and
personal liberty have many attributes and some of them are found in Article 19. If a
person's fundamental right under Article 21 is infringed, the State can rely upon a law
to sustain the action; but that cannot be a complete answer unless the said law
satisfies the test laid down in Article 19(2) so far as the attributes covered by Article
19(1) are concerned. In other words, the State must satisfy that both the fundamental
rights are not infringed by showing that there is a law and that it does amount to a
reasonable restriction within the meaning of Article 19(2) of the Constitution. But in
this case no such defence is available, as admittedly there is no such law. So the
petitioner can legitimately plead that his fundamental rights both under Article
19(1)(d) and Article 21 are infringed by the State.18 Ibid, at page 351 Ibid, at pages
356-357 PART C 18 Justice Subba Rao held that Article 21 embodies the right of the
individual to be free from restrictions or encroachments. In this view, though the
Constitution does not expressly declare the right to privacy as a fundamental right,
such a right is essential to personal liberty. The dissenting opinion places the matter
of principle as follows:
In an uncivilized society where there are no inhibitions, only physical restraints may
detract from personal liberty, but as civilization advances the psychological restraints
are more effective than physical ones. The scientific methods used to condition a

man's mind are in a real sense physical restraints, for they engender physical fear
channelling one's actions through anticipated and expected grooves. So also the
creation of conditions which necessarily engender inhibitions and fear complexes can
be described as physical restraints. Further, the right to personal liberty takes in not
only a right to be free from restrictions placed on his movements, but also free from
encroachments on his private life. It is true our Constitution does not expressly
declare a right to privacy as a fundamental right, but the said right is an essential
ingredient of personal liberty. Every democratic country sanctifies domestic life; it is
expected to give him rest, physical happiness, peace of mind and security. In the last
resort, a person's house, where he lives with his family, is his castle; it is his rampart
against encroachment on his personal liberty. The pregnant words of that famous
Judge, Frankfurter J., in Wolf v. Colorado [[1949] 238 US 25] pointing out the
importance of the security of one's privacy against arbitrary intrusion by the police,
could have no less application to an Indian home as to an American one. If physical
restraints on a person's movements affect his personal liberty, physical
encroachments on his private life would affect it in a larger degree.
Indeed, nothing is more deleterious to a man's physical happiness and health than a
calculated interference with his privacy. We would, therefore, define the right of
personal liberty in Article 21 as a right of an individual to be free from restrictions or
encroachments on his person, whether those restrictions or encroachments are
directly imposed or indirectly brought about by calculated measures. If so
understood, all the acts of surveillance under PART D Regulation 236 infringe the
fundamental right of the petitioner under Article 21 of the Constitution.19 (emphasis
supplied) Significantly, both Justice Rajagopala Ayyangar for the majority and
Justice Subba Rao in his dissent rely upon the observations of Justice Frankfurter in
Wolf v Colorado which specifically advert to privacy. The majority, while relying upon
them to invalidate domiciliary visits at night, regards the sanctity of the home as part
of ordered liberty. In the context of other provisions of the regulation, the majority
declines to recognise a right of privacy as a constitutional protection. Justice Subba
Rao recognised a constitutional by protected right to privacy, considering it as an
ingredient of personal liberty.
D Gopalan doctrine : fundamental rights as isolated silos 19 When eight judges of this Court
rendered the decision in M P Sharma in 1954 and later, six judges decided the controversy in Kharak
Singh in 1962, the ascendant and, even well established, doctrine governing the fundamental rights
contained in Part III was founded on the Gopalan principle. In Gopalan, Chief Justice Kania,
speaking for a majority of five of the Bench of six judges, construed the relationship between Articles
19 and 21 to be one of mutual exclusion. In this line of enquiry, what was comprehended by Article
19 was excluded from Article 21. The seven freedoms of Article 19 were not subsumed in the fabric of
life or personal liberty in Article 21.
Ibid, at pages 358-359 PART D The consequence was that a law which curtailed one of the freedoms
guaranteed by Article 19 would be required to answer the tests of reasonableness prescribed by

clauses 2 to 6 of Article 19 and those alone. In the Gopalan perspective, free speech and expression
was guaranteed by Article 19(1)(a) and was hence excluded from personal liberty under Article 21.
Article 21 was but a residue. Chief Justice Kania held :
Reading Article 19 in that way it appears to me that the concept of the right to move
freely throughout the territory of India is an entirely different concept from the right
to personal liberty contemplated by Article 21. Personal liberty covers many more
rights in one sense and has a restricted meaning in another sense. For instance, while
the right to move or reside may be covered by the expression, personal liberty the
right to freedom of speech (mentioned in Article 19(1)(a)) or the right to acquire, hold
or dispose of property (mentioned in 19(1)(f)) cannot be considered a part of the
personal liberty of a citizen. They form part of the liberty of a citizen but the
limitation imposed by the word personal leads me to believe that those rights are not
covered by the expression personal liberty. So read there is no conflict between
Articles 19 and
21. The contents and subject-matters of Articles 19 and 21 are thus not the same and
they proceed to deal with the rights covered by their respective words from totally
different angles. As already mentioned in respect of each of the rights specified in
sub-clauses of Article 19(1) specific limitations in respect of each is provided, while
the expression personal liberty in Article 21 is generally controlled by the general
expression procedure established by law.20 Procedure established by law under
Article 21 was, in this view, not capable of being expanded to include the due process
of law. Justice Fazl Ali dissented. The dissent Gopalan (Supra note 3), at pages 36-37
PART D adopted the view that the fundamental rights are not isolated and separate
but protect a common thread of liberty and freedom:
To my mind, the scheme of the Chapter dealing with the fundamental rights does not
contemplate what is attributed to it, namely, that each article is a code by itself and is
independent of the others. In my opinion, it cannot be said that Articles 19,20, 21 and
22 do not to some extent overlap each other. The case of a person who is convicted of
an offence will come under Articles 20 and 21 and also under Article 22 so far as his
arrest and detention in custody before trial are concerned. Preventive detention,
which is dealt with an Article 22, also amounts to deprivation of personal liberty
which is referred to in Article 21, and is a violation of the right of freedom of
movement dealt with in Article 19(1)(d) It seems clear that the addition of the word
personal before liberty in Article 21 cannot change the meaning of the words used in
Article 19, nor can it put a matter which is inseparably bound up with personal liberty
beyond its place...21 20 In Satwant Singh Sawhney v D Ramarathnam22 (Satwant
Singh Sawhney), Justice Hidayatullah, speaking for himself and Justice R S
Bachawat, in the dissenting view noticed the clear lines of distinction between the
dissent of Justice Subba Rao and the view of the majority in Kharak Singh. The
observations of Justice Hidayatullah indicate that if the right of locomotion is
embodied by Article 21 of which one aspect is covered by Article 19(1)(d), that would

in fact advance the minority view in Kharak Singh:
Subba Rao J. (as he then was) read personal liberty as the antithesis of physical
restraint or coercion and found that Articles 19(1) and 21 overlapped and Article
19(1)(d) was not carved out of personal liberty in Article 21. According to him,
personal liberty could be curtailed by law, but that law must satisfy the test in Article
Ibid, at pages 52-53 (1967) 3 SCR 525 PART E 19(2) in so far as the specific rights in
Article 19(1)(3) are concerned. In other words, the State must satisfy that both the
fundamental rights are not infringed by showing that there is a law and that it does
not amount to an unreasonable restriction within the meaning of Article 19(2) of the
Constitution. As in that case there was no law, fundamental rights, both under Article
19(1)(d) and Article 21 were held to be infringed. The learned Chief Justice has read
into the decision of the Court a meaning which it does not intend to convey. He
excludes from Article 21 the right to free motion and locomotion within the territories
of India and puts the right to travel abroad in Article 21. He wants to see a law and if
his earlier reasoning were to prevail, the law should stand the test of Article 19(2).
But since clause (2) deals with matters in Article 19(1) already held excluded, it is
obvious that it will not apply. The law which is made can only be tested on the ground
of articles other than Article 19 such as Articles 14, 20 and 22 which alone bears upon
this matter. In other words, the majority decision of the Court in this case has
rejected Ayyangar J.'s view and accepted the view of the minority in Kharak Singh
case This view obviously clashes with the reading of Article 21 in Kharak Singh case,
because there the right of motion and locomotion was held to be excluded from
Article 21. In other words, the present decision advances the minority view in Kharak
Singh case above the majority view stated in that case.23 E Cooper and Maneka :
Interrelationship between rights 21 The theory that the fundamental rights are
water-tight compartments was discarded in the judgment of eleven judges of this
Court in Cooper. Gopalan had adopted the view that a law of preventive detention
would be tested for its validity only with reference to Article 22, which was a complete
code relating to the subject.
Legislation on preventive detention did not, in this view, have to meet the touchstone of Article
19(1)(d). The dissenting view of Justice Fazl Ali in Gopalan was noticed by Ibid, at page 554 PART E
Justice J C Shah, speaking for this Court, in Cooper. The consequence of the Gopalan doctrine was
that the protection afforded by a guarantee of personal freedom would be decided by the object of
the State action in relation to the right of the individual and not upon its effect upon the guarantee.
Disagreeing with this view, the Court in Cooper held thus :
it is necessary to bear in mind the enunciation of the guarantee of fundamental rights

which has taken different forms. In some cases it is an express declaration of a
guaranteed right: Articles 29(1), 30(1), 26, 25 and 32; in others to ensure protection
of individual rights they take specific forms of restrictions on State action legislative
or executive Articles 14, 15, 16, 20, 21, 22(1), 27 and 28; in some others, it takes the
form of a positive declaration and simultaneously enunciates the restriction thereon:

Articles 19(1) and 19(2) to (6); in some cases, it arises as an implication from the delimitation of the
authority of the State, e.g. Articles 31(1) and 31(2); in still others, it takes the form of a general
prohibition against the State as well as others: Articles 17, 23 and
24. The enunciation of rights either express or by implication does not follow a uniform pattern. But
one thread runs through them: they seek to protect the rights of the individual or groups of
individuals against infringement of those rights within specific limits. Part III of the Constitution
weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the
protection of those rights in their allotted fields: they do not attempt to enunciate distinct rights.24
(emphasis supplied) 22 The abrogation of the Gopalan doctrine in Cooper was revisited in a seven-
judge Bench decision in Maneka. Justice P N Bhagwati who delivered the leading opinion of three
Judges held that the judgment in Cooper affirms the dissenting Cooper (Supra note 4), at page 289
(para 52) PART E opinion of Justice Subba Rao (in Kharak Singh) as expressing the valid
constitutional position. Hence in Maneka, the Court held that:
It was in Kharak Singh v. State of U.P.[AIR 1963 SC 1295 : (1964) 1 SCR 332 : (1963)
2 Cri LJ 329] that the question as to the proper scope and meaning of the expression
personal liberty came up pointedly for consideration for the first time before this
Court. The majority of the Judges took the view that personal liberty is used in the
article as a compendious term to include within itself all the varieties of rights which
go to make up the personal liberties of man other than those dealt with in the several
clauses of Article 19(1). In other words, while Article 19(1) deals with particular
species or attributes of that freedom, personal liberty in Article 21 takes in and
comprises the residue. The minority Judges, however, disagreed with this view taken
by the majority and explained their position in the following words: No doubt the
expression personal liberty is a comprehensive one and the right to move freely is an
attribute of personal liberty. It is said that the freedom to move freely is carved out of
personal liberty and, therefore, the expression personal liberty in Article 21 excludes
that attribute. In our view, this is not a correct approach. Both are independent
fundamental rights, though there is overlapping. There is no question of one being
carved out of another. The fundamental right of life and personal liberty has many
attributes and some of them are found in Article 19. If a person's fundamental right
under Article 21 is infringed, the State can rely upon a law to sustain the action, but
that cannot be a complete answer unless the said law satisfies the test laid down in
Article 19(2) so far as the attributes covered by Article 19(1) are concerned. There can
be no doubt that in view of the decision of this Court in R.C. Cooper v. Union of India
[(1970) 2 SCC 298 : (1971) 1 SCR 512] the minority view must be regarded as correct
and the majority view must be held to have been overruled.25 (emphasis supplied) 23
Following the decision in Maneka, the established constitutional doctrine is that the
expression personal liberty in Article 21 covers a variety of rights, some of which
Maneka (Supra Note 5), at page 278 (para 5) PART E have been raised to the status of
distinct fundamental rights and given additional protection under Article 19.
Consequently, in Satwant Singh Sawhney, the right to travel abroad was held to be
subsumed within Article 21 as a consequence of which any deprivation of that right

could be only by a procedure established by law. Prior to the enactment of the

Passports Act, 1967, there was no law regulating the right to travel abroad as a result
of which the order of the Passport Officer refusing a passport was held to be invalid.
The decision in Maneka carried the constitutional principle of the over-lapping
nature of fundamental rights to its logical conclusion.
Reasonableness which is the foundation of the guarantee against arbitrary state action under Article
14 infuses Article 21. A law which provides for a deprivation of life or personal liberty under Article
21 must lay down not just any procedure but a procedure which is fair, just and reasonable.
24 The decisions in M P Sharma and Kharak Singh adopted a doctrinal position on the relationship
between Articles 19 and 21, based on the view of the majority in Gopalan. This view stands
abrogated particularly by the judgment in Cooper and the subsequent statement of doctrine in
Maneka. The decision in Maneka, in fact, expressly recognized that it is the dissenting judgment of
Justice Subba Rao in Kharak Singh which represents the exposition of the correct constitutional
principle. The jurisprudential foundation which held the field sixty three years ago in M P Sharma
and fifty five years ago in Kharak Singh has given way to what is now a settled position in
constitutional law. Firstly, the fundamental rights emanate from basic notions of liberty and dignity
and the enumeration of some facets of liberty as PART E distinctly protected rights under Article 19
does not denude Article 21 of its expansive ambit. Secondly, the validity of a law which infringes the
fundamental rights has to be tested not with reference to the object of state action but on the basis of
its effect on the guarantees of freedom. Thirdly, the requirement of Article 14 that state action must
not be arbitrary and must fulfil the requirement of reasonableness, imparts meaning to the
constitutional guarantees in Part III. 25 The doctrinal invalidation of the basic premise underlying
the decisions in M P Sharma and Kharak Singh still leaves the issue of whether privacy is a right
protected by Part III of the Constitution open for consideration. There are observations in both
decisions that the Constitution does not contain a specific protection of the right to privacy.
Presently, the matter can be looked at from the perspective of what actually was the controversy in
the two cases. M P Sharma was a case where a law prescribing a search to obtain documents for
investigating into offences was challenged as being contrary to the guarantee against
self-incrimination in Article 20(3). The Court repelled the argument that a search for documents
compelled a person accused of an offence to be witness against himself. Unlike a notice to produce
documents, which is addressed to a person and whose compliance would constitute a testimonial
act, a search warrant and a seizure which follows are not testimonial acts of a person to whom the
warrant is addressed, within the meaning of Article 20(3). The Court having held this, the
controversy in M P Sharma would rest at that. The observations in M P Sharma to the effect that the
constitution makers had not thought it fit to subject the regulatory power of search and seizure to
constitutional limitations PART E by recognising a fundamental right of privacy (like the US Fourth
amendment), and that there was no justification to impart it into a totally different fundamental
right are at the highest, stray observations.
26 The decision in M P Sharma held that in the absence of a provision like the Fourth Amendment
to the US Constitution, a right to privacy cannot be read into the Indian Constitution. The decision
in M P Sharma did not decide whether a constitutional right to privacy is protected by other

provisions contained in the fundamental rights including among them, the right to life and personal
liberty under Article 21. Hence the decision cannot be construed to specifically exclude the
protection of privacy under the framework of protected guarantees including those in Articles 19 or
21. The absence of an express constitutional guarantee of privacy still begs the question whether
privacy is an element of liberty and, as an integral part of human dignity, is comprehended within
the protection of life as well. 27 The decision in Kharak Singh is noteworthy because while
invalidating Regulation 236(b) of the Police Regulations which provided for nightly domiciliary
visits, the majority construed this to be an unauthorized intrusion into a persons home and a
violation of ordered liberty. While arriving at this conclusion, the majority placed reliance on the
privacy doctrine enunciated by Justice Frankfurter, speaking for the US Supreme Court in Wolf v
Colorado (the extract from Wolf cited in the majority judgment specifically adverts to privacy twice).
Having relied on this doctrine PART F to invalidate domiciliary visits, the majority in Kharak Singh
proceeded to repel the challenge to other clauses of Regulation 236 on the ground that the right of
privacy is not guaranteed under the Constitution and hence Article 21 had no application. This part
of the judgment in Kharak Singh is inconsistent with the earlier part of the decision. The decision of
the majority in Kharak Singh suffers from an internal inconsistency.
F Origins of privacy
28 An evaluation of the origins of privacy is essential in order to understand
whether (as the Union of India postulates), the concept is so amorphous as to defy description. The
submission of the government is that the Court cannot recognize a juristic concept which is so vague
and uncertain that it fails to withstand constitutional scrutiny. This makes it necessary to analyse
the origins of privacy and to trace its evolution.
29 The Greek philosopher Aristotle spoke of a division between the public sphere of political affairs
(which he termed the polis) and the personal sphere of human life (termed oikos). This dichotomy
may provide an early recognition of a confidential zone on behalf of the citizen26. Aristotles
distinction between the public and private realms can be regarded as providing a basis for
restricting governmental authority to activities falling within the public realm. On the other hand,
activities in the private Michael C. James, A Comparative Analysis of the Right to Privacy in the
United States, Canada and Europe, Connecticut Journal of International Law (Spring 2014), Vol. 29,
Issue 2, at page 261 PART F realm are more appropriately reserved for private reflection, familial
relations and self-determination27.
30 At a certain level, the evolution of the doctrine of privacy has followed the public private
distinction. William Blackstone in his Commentaries on the Laws of England (1765) spoke about
this distinction while dividing wrongs into private wrongs and public wrongs. Private wrongs are an
infringement merely of particular rights concerning individuals and are in the nature of civil
injuries. Public wrongs constitute a breach of general and public rights affecting the whole
community and according to him, are called crimes and misdemeanours.

31 John Stuart Mill in his essay, On Liberty (1859) gave expression to the need to preserve a zone
within which the liberty of the citizen would be free from the authority of the state. According to Mill
:
The only part of the conduct of any one, for which he is amenable to society, is that
which concerns others. In the part which merely concerns himself, his independence
is, of right, absolute. Over himself, over his own body and mind, the individual is
sovereign.28 While speaking of a struggle between liberty and authority 29, Mill
posited that the tyranny of the majority could be reined by the recognition of civil
rights such as the individual right to privacy, free speech, assembly and expression.
Ibid, at page 262 John Stuart Mill, On Liberty, Batoche Books (1859), at page 13 Ibid, at page 6
PART F 32 Austin in his Lectures on Jurisprudence (1869) spoke of the distinction between the
public and the private realms : jus publicum and jus privatum. The distinction between the public
and private realms has its limitations. If the reason for protecting privacy is the dignity of the
individual, the rationale for its existence does not cease merely because the individual has to interact
with others in the public arena. The extent to which an individual expects privacy in a public street
may be different from that which she expects in the sanctity of the home. Yet if dignity is the
underlying feature, the basis of recognising the right to privacy is not denuded in public spaces. The
extent of permissible state regulation may, however, differ based on the legitimate concerns of
governmental authority.
33 James Madison, who was the architect of the American Constitution, contemplated the
protection of the faculties of the citizen as an incident of the inalienable property rights of human
beings. In his words :
In the former sense, a mans land, or merchandize, or money is called his property. In
the latter sense, a man has property in his opinions and the free communication of
them He has an equal property interest in the free use of his faculties and free choice
of the objects on which to employ them. In a word, as a man is said to have a right to
his property, he may be equally said to have a property in his rights. Where an excess
of power prevails, property of no sort is duly respected. No man is safe in his
opinions, his person, his faculties or his possessions Conscience is the most sacred of
all property; other property depending in part on positive law, the exercise of that,
being a natural and inalienable right. To guard a mans house as his castle, PART F to
pay public and enforce private debts with the most exact faith, can give no title to
invade a mans conscience which is more sacred than his castle, or to withhold from it
that debt of protection, for which the public faith is pledged, by the very nature and
original conditions of the social pact.30 Madison traced the recognition of an
inviolable zone to an inalienable right to property.
Property is construed in the broadest sense to include tangibles and intangibles and ultimately to
control over ones conscience itself. 34 In an article published on 15 December 1890 in the Harvard
Law Review, Samuel D Warren and Louis Brandeis adverted to the evolution of the law to

incorporate within it, the right to life as a recognition of mans spiritual nature, of his feelings and his
intellect31. As legal rights were broadened, the right to life had come to mean the right to enjoy life
the right to be let alone. Recognizing that only a part of the pain, pleasure and profit of life lay in
physical things and that thoughts, emotions, and sensations demanded legal recognition, Warren
and Brandeis revealed with a sense of perspicacity the impact of technology on the right to be let
alone:
Recent inventions and business methods call attention to the next step which must be
taken for the protection of the person, and for securing to the individual what Judge
Cooley calls the right to be let alone. Instantaneous photographs and newspaper
enterprise have invaded the sacred precincts of private and domestic life; and
numerous mechanical devices threaten to make good the prediction that what is
whispered in the closet shall be proclaimed James Madison, Essay on Property, in
Gaillard Hunt ed., The Writings of James Madison (1906), Vol. 6, at pages 101-103.
Warren and Brandeis, The Right to Privacy, Harvard Law Review (1890), Vol.4, No. 5, at page 193
PART F from the house-tops. For years there has been a feeling that the law must afford some
remedy for the unauthorized circulation of portraits of private persons The intensity and complexity
of life, attendant upon advancing civilization, have rendered necessary some retreat from the world,
and man, under the refining influence of culture, has become more sensitive to publicity, so that
solitude and privacy have become more essential to the individual; but modern enterprise and
invention have, through invasions upon his privacy, subjected him to mental pain and distress, far
greater than could be inflicted by mere bodily injury.32 In their seminal article, Warren and
Brandeis observed that:
The principle which protects personal writings and all other personal productions,
not against theft and physical appropriation, but against publication in any form, is
in reality not the principle of private property, but that of an inviolate personality.33
(emphasis supplied) The right to be let alone thus represented a manifestation of an
inviolate personality, a core of freedom and liberty from which the human being had
to be free from intrusion. The technology which provided a justification for the need
to preserve the privacy of the individual was the development of photography. The
right to be let alone was not so much an incident of property as a reflection of the
inviolable nature of the human personality.
35 The ringing observations of Warren and Brandeis on the impact of technology have continued
relevance today in a globalized world dominated by the internet and Ibid, at pages 195-196 Ibid, at
page 205 PART F information technology. As societies have evolved, so have the connotations and
ambit of privacy.
36 Though many contemporary accounts attribute the modern conception of the right to privacy to
the Warren and Brandeis article, historical material indicates that it was Thomas Cooley who
adopted the phrase the right to be let alone, in his Treatise on the Law of Torts34. Discussing
personal immunity, Cooley stated:

the right of ones person may be said to be a right of complete immunity; the right to be alone.35
Roscoe Pound described the Warren and Brandeis article as having done nothing less than add a
chapter to our law36. However, another writer on the subject states that:
This right to privacy was not new. Warren and Brandeis did not even coin the phrase,
right to privacy, nor its common soubriquet, the right to be let alone.37 The right to
be let alone is a part of the right to enjoy life. The right to enjoy life is, in its turn, a
part of the fundamental right to life of the individual.
Thomas Cooley, Treatise on the Law of Torts (1888), 2nd edition Ibid, at page 29 Dorothy J Glancy,
The Invention of the Right to Privacy, Arizona Law Review (1979) Vol. 21, No.1, at page 1. The article
attributes the Roscoe Pound quotation to Letter from Roscoe Pound to William Chilton (1916) as
quoted in Alpheus Mason, Brandeis : A Free Mans Life 70 (1956). Ibid, at pages 2-3.
PART F 37 The right to privacy was developed by Warren and Brandeis in the backdrop of the dense
urbanization which occurred particularly in the East Coast of the United States. Between 1790 and
1890, the US population had risen from four million to sixty- three million. The population of urban
areas had grown over a hundred-fold since the end of the civil war. In 1890, over eight million
people had immigrated to the US. Technological progress and rapid innovations had led to the
private realm being placed under stress :
technological progress during the post-Civil War decades had brought to Boston and
the rest of the United States countless, little-
noticed revolutions in the form of a variety of inventions which made the personal lives and
personalities of individuals increasingly accessible to large numbers of others, irrespective of
acquaintance, social or economic class, or the customary constraints of propriety. Bell invented the
telephone in Boston; the first commercial telephone exchange opened there in 1877, while Warren
and Brandeis were students at the Harvard Law School. By 1890 there were also telegraphs, fairly
inexpensive portable cameras, sound recording devices, and better and cheaper methods of making
window glass. Warren and Brandeis recognized that these advances in technology, coupled with
intensified newspaper enterprise, increased the vulnerability of individuals to having their actions,
words, images, and personalities communicated without their consent beyond the protected circle of
family and chosen friends.38 Coupled with this was the trend towards newspaperization39, the
increasing presence of the print media in American society. Six months before the publication of the
Warren and Brandeis article, E L Godkin, a newspaper man had published an article on the same
subject in Scribners magazine in July 1890. Godkin, however, suggested no Ibid, at pages 7-8 Ibid,
at page 8 PART F realistic remedy for protecting privacy against intrusion, save and except by the
cudgel or the horsewhip40. It was Warren and Brandeis who advocated the use of the common law
to vindicate the right to privacy.41 38 Criminal libel actions were resorted to in the US during a part
of the nineteenth century but by 1890, they had virtually ceased to be a viable protection for
individual privacy42. The Sedition Act of 1789 expired in 1801. Before truth came to be accepted as a
defence in defamation actions, criminal libel prosecutions flourished in the State courts.43
Similarly, truth was not regarded as a valid defence to a civil libel action in much of the nineteenth

century. By the time Warren and Brandeis wrote their article in 1890, publication of the truth was
perhaps no longer actionable under the law of defamation. It was this breach or lacuna that they
sought to fill up by speaking of the right to privacy which would protect the control of the individual
over her personality.44 The right to privacy evolved as a leitmotif representing the long tradition of
American individualism.45 39 Conscious as we are of the limitations with which comparative
frameworks46 of law and history should be evaluated, the above account is of significance. It reflects
Ibid, at page 9 Ibid, at page 10 Ibid, at page 12 Ibid, at page 14 Ibid, at Pages 15-16 Id at Pages 21-22
Illustratively, the Centre for Internet and Society has two interesting articles tracing the origin of
privacy within Classical Hindu Law and Islamic Law. See Ashna Ashesh and Bhairav Acharya
,Locating Constructs of Privacy PART G the basic need of every individual to live with dignity.
Urbanization and economic development lead to a replacement of traditional social structures.
Urban ghettos replace the tranquillity of self-sufficient rural livelihoods. The need to protect the
privacy of the being is no less when development and technological change continuously threaten to
place the person into public gaze and portend to submerge the individual into a seamless web of
inter-connected lives.
G Natural and inalienable rights
40 Privacy is a concomitant of the right of the individual to exercise control over
his or her personality. It finds an origin in the notion that there are certain rights which are natural
to or inherent in a human being. Natural rights are inalienable because they are inseparable from
the human personality. The human element in life is impossible to conceive without the existence of
natural rights. In 1690, John Locke had in his Second Treatise of Government observed that the
lives, liberties and estates of individuals are as a matter of fundamental natural law, a private
preserve. The idea of a private preserve was to create barriers from outside interference. In 1765,
William Blackstone in his Commentaries on the Laws of England spoke of a natural liberty. There
were, in his view, absolute rights which were vested in the individual by the immutable laws of
nature. These absolute rights were divided into within Classical Hindu Law, The Centre for Internet
and Society, available at https://cis-india.org/internet-
governance/blog/loading-constructs-of-privacy-within-classical-hindu-law. See also Vidushi Marda
and Bhairav Acharya, Identifying Aspects of Privacy in Islamic Law, The Centre for Internet and
S o c i e t y , a v a i l a b l e a t
https://cis-india.org/internet-governance/blog/identifying-aspects-of-privacy-in-islamic-law PART
G rights of personal security, personal liberty and property. The right of personal security involved a
legal and uninterrupted enjoyment of life, limbs, body, health and reputation by an individual.
41 The notion that certain rights are inalienable was embodied in the American Declaration of
Independence (1776) in the following terms:
We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable rights, that among these are life,
liberty and the pursuit of happiness. (emphasis supplied) The term inalienable rights

was incorporated in the Declaration of the Rights of Man and of the Citizen (1789)
adopted by the French National Assembly in the following terms:
For its drafters, to ignore, to forget or to depreciate the rights of man are the sole
causes of public misfortune and government corruption. These rights are natural
rights, inalienable and sacred, the National Assembly recognizes and proclaims
them-it does not grant, concede or establish them-and their conservation is the
reason for all political communities; within these rights figures resistance to
oppression. (emphasis supplied) 42 In 1921, Roscoe Pound, in his work titled The
Spirit of the Common Law, explained the meaning of natural rights:
Natural rights mean simply interests which we think ought to be secured; demands
which human beings may make which we think ought to be satisfied. It is perfectly
true that neither law nor state PART G creates them. But it is fatal to all sound
thinking to treat them as legal conceptions. For legal rights, the devices which law
employs to secure such of these interests as it is expedient to recognize, are the work
of the law and in that sense the work of the state.47 Two decades later in 1942, Pound
in The Revival of Natural Law propounded that:
Classical natural law in the seventeenth and eighteenth centuries had three
postulates. One was natural rights, qualities of the ideal or perfect man in a state of
perfection by virtue of which he ought to have certain things or be able to do certain
things. These were a guarantee of stability because the natural rights were taken to be
immutable and inalienable. (2) The social compact, a postulated contract basis of
civil society. Here was a guide to change. (3) An ideal law of which positive laws were
only declaratory; an ideal body of perfect precepts governing human relations and
ordering human conduct, guaranteeing the natural rights and expressing the social
compact.48 (emphasis supplied) 43 In 1955, Edwin W Patterson in A Pragmatist
Looks At Natural Law and Natural Rights observed that rights which individuals
while making a social compact to create a government, reserve to themselves, are
natural rights because they originate in a condition of nature and survive the social
compact. In his words:
The basic rights of the citizen in our political society are regarded as continuing from
a prepolitical condition or as arising in society independently of positive
constitutions, statutes, and judicial decisions, which merely seek to secure or
safeguard rights already reserved. These rights are not granted by a benevolent
despot to his grateful subjects. The natural rights theory thus provided a convenient
ideology for the preservation of such important rights as freedom of speech, freedom
of religion and procedural due process of law. As a pragmatist, I should prefer to
Roscoe Pound, The Spirit of the Common Law, Marshall Jones Company (1921), at
page 92 Roscoe Pound, The Revival of Natural Law, Notre Damne Lawyer (1942),
Vol. 27, No 4, at page 330 PART G explain them as individual and social interests
which arise or exist normally in our culture and are tuned into legal rights by being

legally protected. 49 44 Natural rights are not bestowed by the state. They inhere in
human beings because they are human. They exist equally in the individual
irrespective of class or strata, gender or orientation.
45 Distinguishing an inalienable right to an object from the object itself emphasises the notion of
inalienability. All human beings retain their inalienable rights (whatever their situation, whatever
their acts, whatever their guilt or innocence). The concept of natural inalienable rights secures
autonomy to human beings. But the autonomy is not absolute, for the simple reason that, the
concept of inalienable rights postulates that there are some rights which no human being may
alienate. While natural rights protect the right of the individual to choose and preserve liberty, yet
the autonomy of the individual is not absolute or total. As a theoretical construct, it would otherwise
be strictly possible to hire another person to kill oneself or to sell oneself into slavery or servitude.
Though these acts are autonomous, they would be in violation of inalienable rights. This is for the
reason that:
These acts, however autonomous, would be in violation of inalienable rights, as the

theories would have it. They would be morally invalid, and ineffective actually to
alienate inalienable rights.
Although self-regarding, they pretend to an autonomy that does not exist. Inalienable rights are
precisely directed against such false Edwin W. Patterson, A Pragmatist Looks At Natural Law and
Natural Rights, in Arthur L. Harding ed., Natural Law and Natural Rights (1955), at pages 62-63
PART G autonomy.
Natural inalienable rights, like other natural rights, have long rested upon what has been called the
law of nature of natural law. Perhaps all of the theories discussed above could be called law of nature
or natural law theories. The American tradition, even as early as 1641, ten years before Thomas
Hobbes published Leviathan, included claims of natural rights, and these claims appealed to the law
of nature, often in terms. Without a moral order of the law of nature sort, natural inalienable rights
are difficult to pose. It is from natural law, and from it alone, that man obtains those rights we refer
to as inalienable and inviolableHuman rights can have no foundation other than natural law.50 46
The idea that individuals can have rights against the State that are prior to rights created by explicit
legislation has been developed as part of a liberal theory of law propounded by Ronald Dworkin. In
his seminal work titled Taking Rights Seriously51 (1977), he states that:
Individual rights are political trumps held by individuals.
Individuals have rights when, for some reason, a collective goal is not a sufficient justification for
denying them what they wish, as individuals, to have or to do, or not a sufficient justification for
imposing some loss or injury upon them.52 (emphasis supplied) Dworkin asserts the existence of a
right against the government as essential to protecting the dignity of the individual:
It makes sense to say that a man has a fundamental right against the Government, in
the strong sense, like free speech, if that right is necessary to protect his dignity, or

his standing Craig A. Ster and Gregory M. Jones, The Coherence of Natural
Inalienable Rights, UMKC Law Review (2007-
08), Volume 76 (4), at pages 971-972 Ronald Dworkin, Taking Rights Seriously, Duckworth (1977)
Ibid, at page xi PART G as equally entitled to concern and respect, or some other personal value of
like consequence.53 (emphasis supplied) Dealing with the question whether the Government may
abridge the rights of others to act when their acts might simply increase the risk, by however slight
or speculative a margin, that some persons right to life or property will be violated, Dworkin says :
But no society that purports to recognize a variety of rights, on the ground that a
mans dignity or equality may be invaded in a variety of ways, can accept such a
principle54 If rights make sense, then the degrees of their importance cannot be so
different that some count not at all when others are mentioned55 If the Government
does not take rights seriously, then it does not take law seriously either56 Dworkin
states that judges should decide how widely an individuals rights extend. He states:
Indeed, the suggestion that rights can be demonstrated by a process of history rather
than by an appeal to principle shows either a confusion or no real concern about what
rights are This has been a complex argument, and I want to summarize it. Our
constitutional system rests on a particular moral theory, namely, that men have
moral rights against the state. The different clauses of the Bill of Rights, like the due
process and equal protection clauses, must be understood as appealing to moral
concepts rather than laying down particular concepts; therefore, a court that
undertakes the burden of applying these clauses fully as law must Ibid, at page 199
Ibid, at page 203 Ibid, at page 204 Ibid, at page 205 PART H be an activist court, in
the sense that it must be prepared to frame and answer questions of political
morality57 A later section of this judgment deals with how natural and inalienable
rights have been developed in Indian precedent.
H Evolution of the privacy doctrine in India
47 Among the early decisions of this Court following Kharak Singh was R M
Malkani v State of Maharashtra58. In that case, this Court held that Section 25 of the
Indian Telegraph Act, 1885 was not violated because :
Where a person talking on the telephone allows another person to record it or to hear
it, it cannot be said that the other person who is allowed to do so is damaging,
removing, tampering, touching machinery battery line or post for intercepting or
acquainting himself with the contents of any message. There was no element of
coercion or compulsion in attaching the tape recorder to the telephone.59 This Court
followed the same line of reasoning as it had in Kharak Singh while rejecting a
privacy based challenge under Article 21. Significantly, the Court observed that :

Article 21 was invoked by submitting that the privacy of the appellants conversation
was invaded. Article 21 contemplates procedure established by law with regard to
deprivation of life or personal liberty. The telephone conversation of an innocent
citizen will be protected by Courts against wrongful or high handed interference by
tapping the conversation. The protection is not for Ibid, at page 147 (1973) 1 SCC 471
Ibid, at page 476 (para 20) PART H the guilty citizen against the efforts of the police
to vindicate the law and prevent corruption of public servants. It must not be
understood that the Court will tolerate safeguards for the protection of the citizen to
be imperilled by permitting the police to proceed by unlawful or irregular
methods.60 In other words, it was the targeted and specific nature of the interception
which weighed with the Court, the telephone tapping being directed at a guilty
person. Hence the Court ruled that the telephone conversation of an innocent citizen
will be protected against wrongful interference by wiretapping.
48 In Gobind61, a Bench of three judges of this Court considered a challenge to the

validity of Regulations 855 and 856 of State Police Regulations under which a history
sheet was opened against the petitioner who had been placed under surveillance. The
Bench of three judges adverted to the decision in Kharak Singh and to the validation
of the Police Regulations (other than domiciliary visits at night).
By the time the decision was handed down in Gobind, the law in the US had evolved and this Court
took note of the decision in Griswold v Connecticut62 (Griswold) in which a conviction under a
statute on a charge of giving information and advice to married persons on contraceptive methods
was held to be invalid. This Court adverted to the dictum that specific guarantees of the Bill of
Rights have penumbras which create zones of privacy. The Court also relied upon the US Supreme
Court decision in Jane Roe v Henry Wade63 in which the Court upheld the right of a married
woman Ibid, at page 479 (para 31) (1975) 2 SCC 148 381 US 479 (1965) 410 US 113 (1973) PART H to
terminate her pregnancy as a part of the right of personal privacy. The following observations of
Justice Mathew, who delivered the judgment of the Court do indicate a constitutional recognition of
the right to be let alone :
There can be no doubt that the makers of our Constitution wanted to ensure
conditions favourable to the pursuit of happiness. They certainly realized as
Brandeis, J. said in his dissent in Olmstead v.
United States64, the significance of mans spiritual nature, of his feelings and of his intellect and that
only a part of the pain, pleasure, satisfaction of life can be found in material things and therefore,
they must be deemed to have conferred upon the individual as against the government a sphere
where he should be let alone.65 These observations follow upon a reference to the Warren and
Brandeis article; the two decisions of the US Supreme Court noted earlier; the writings of Locke and
Kant; and to dignity, liberty and autonomy.
49 Yet a close reading of the decision in Gobind would indicate that the Court eventually did not
enter a specific finding on the existence of a right to privacy under the Constitution. The Court

indicated that if the Court does find that a particular right should be protected as a fundamental
privacy right, it could be overridden only subject to a compelling interest of the State :
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. 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 277 US 438 (1928) Supra note 6, at page 155
(para 20) PART H whether a State interest is of such paramount importance as would
justify an infringement of the right.66 (emphasis supplied) While emphasising
individual autonomy and the dangers of individual privacy being eroded by new
developments that will make it possible to be heard in the street what is whispered in
the closet, the Court had obvious concerns about adopting a broad definition of
privacy since the right of privacy is not explicit in the Constitution.
Observing that the concept of privacy overlaps with liberty, this Court noted thus :
Individual autonomy, perhaps the central concern of any system of limited

government, is protected in part under our Constitution by explicit constitutional
guarantees. In the application of the Constitution our contemplation cannot only be
of what has been but what may be. Time works changes and brings into existence new
conditions. Subtler and far reaching means of invading privacy will make it possible
to be heard in the street what is whispered in the closet. Yet, too broad a definition of
privacy raises serious questions about the propriety of judicial reliance on a right that
is not explicit in the Constitution. Of course, privacy primarily concerns the
individual. It therefore relates to and overlaps with the concept of liberty. The most
serious advocate of privacy must confess that there are serious problems of defining
the essence and scope of the right. Privacy interest in autonomy must also be placed
in the context of other rights and values.67 (emphasis supplied) Justice Mathew
proceeded to explain what any right of privacy must encompass and protect and
found it to be implicit in the concept of ordered liberty :
Any right to privacy must encompass and protect the personal intimacies of the
home, the family, marriage, motherhood, procreation and child rearing. This
catalogue approach to the question is obviously not as instructive as it does not give
an analytical picture of the distinctive characteristics of the right of Ibid, at page 155
(para 22) Ibid, at page 156 (para 23) PART H privacy. Perhaps, the only suggestion
that can be offered as unifying principle underlying the concept has been the
assertion that a claimed right must be a fundamental right implicit in the concept of
ordered liberty.68 In adverting to ordered liberty, the judgment is similar to the
statement in the judgment of Justice Rajagopala Ayyangar in Kharak Singh which
found the intrusion of the home by nightly domiciliary visits a violation of ordered
liberty.

The Court proceeded to hold that in any event, the right to privacy will need a case to
case elaboration. The following observations were carefully crafted to hold that even
on the assumption that there is an independent right of privacy emanating from
personal liberty, the right to movement and free speech, the right is not absolute:
The right to privacy in any event will necessarily have to go through a process of
case-by-case development. Therefore, even assuming that the right to personal
liberty, the right to move freely throughout the territory of India and the freedom of
speech create an independent right of privacy as an emanation from them which one
can characterize as a fundamental right, we do not think that the right is absolute.69
(emphasis supplied) Again a similar assumption was made by the Court in the
following observations:
Assuming that the fundamental rights explicitly guaranteed to a citizen have

penumbral zones and that the right to privacy is itself a fundamental right, that
fundamental right must be subject to restriction on the basis of compelling public
interest. As Regulation 856 has the force of law, it cannot be said that the
fundamental right of the petitioner under Article 21 has been violated by the
provisions Ibid, at page 156 (para 24) Ibid, at page 157 (para 28) PART H contained
in it : for, what is guaranteed under that Article is that no person shall be deprived of
his life or personal liberty except by the procedure established by law. We think that
the procedure is reasonable having regard to the provisions of Regulations 853 (c)
and 857.70 (emphasis supplied) The Court declined to interfere with the regulations.
50 The judgment in Gobind does not contain a clear statement of principle by the Court of the
existence of an independent right of privacy or of such a right being an emanation from explicit
constitutional guarantees. The Bench, which consisted of three judges, may have been constrained
by the dictum in the latter part of Kharak Singh. Whatever be the reason, it is evident that in several
places Justice Mathew proceeded on the assumption that if the right to privacy is protected under
the Constitution, it is a part of ordered liberty and is not absolute but subject to restrictions
tailor-made to fulfil a compelling state interest. This analysis of the decision in Gobind assumes
significance because subsequent decisions of smaller Benches have proceeded on the basis that
Gobind does indeed recognise a right to privacy. What the contours of such a right are, emerges
from a reading of those decisions. This is the next aspect to which we now turn.
51 Malak Singh v State of Punjab and Haryana71 (Malak Singh) dealt with the provisions of Section
23 of the Punjab Police Rules under which a surveillance register Ibid, at page 157-158 (para 31)
(1981) 1 SCC 420 PART H was to be maintained among other persons, of all convicts of a particular
description and persons who were reasonably believed to be habitual offenders whether or not, they
were convicted. The validity of the rules was not questioned in view of the decisions in Kharak Singh
and Gobind. The rules provided for modalities of surveillance. Justice O Chinnappa Reddy speaking
for a Bench of two judges of this Court recognised the need for surveillance on habitual and
potential offenders. In his view:

Prevention of crime is one of the prime purposes of the constitution of a police force.
The preamble to the Police Act, 1861 says: Whereas it is expedient to reorganise the
police and to make it a more efficient instrument for the prevention and detection of
crime. Section 23 of the Police Act prescribes it as the duty of police officers to collect
and communicate intelligence affecting the public peace; to prevent the commission
of offences and public nuisances. In connection with these duties it will be necessary
to keep discreet surveillance over reputed bad characters, habitual offenders and
other potential offenders. Organised crime cannot be successfully fought without
close watch of suspects. But, surveillance may be intrusive and it may so seriously
encroach on the privacy of a citizen as to infringe his fundamental right to personal
liberty guaranteed by Article 21 of the Constitution and the freedom of movement
guaranteed by Article 19(1)(d). That cannot be permitted. This is recognised by the
Punjab Police Rules themselves. Rule 23.7, which prescribes the mode of
surveillance, permits the close watch over the movements of the person under
surveillance but without any illegal interference. Permissible surveillance is only to
the extent of a close watch over the movements of the person under surveillance and
no more. So long as surveillance is for the purpose of preventing crime and is
confined to the limits prescribed by Rule 23.7 we do not think a person whose name
is included in the surveillance register can have a genuine cause for complaint. We
may notice here that interference in accordance with law and for the prevention of
disorder and crime is an exception recognised even by European Convention of
Human Rights to the right to respect for a person's private and family life. Article 8 of
the Convention reads as follows:
PART H (1) Everyone's right to respect for his private and family life, his home and his
correspondence shall be recognised.
(2) There shall be no interference by a public authority with the exercise of this right, except such as
is in accordance with law and is necessary in a democratic society in the interests of national
security, public safety, for the prevention of disorder and crime or for the protection of health or
morals.72 (emphasis supplied) The Court did not consider it unlawful for the police to conduct
surveillance so long as it was for the purpose of preventing crime and was confined to the limits
prescribed by Rule 23.7 which, while authorising a close watch on the movement of a person under
surveillance, contained a condition that this should be without any illegal interference. The object
being to prevent crime, the Court held that the person who is subject to surveillance is not entitled
to access the register nor was a pre-decisional hearing compliant with natural justice warranted.
Confidentiality, this Court held, was required in the interest of the public, including keeping in
confidence the sources of information. Again the Court held:
But all this does not mean that the police have a licence to enter the names of
whoever they like (dislike?) in the surveillance register; nor can the surveillance be
such as to squeeze the fundamental freedoms guaranteed to all citizens or to obstruct
the free exercise and enjoyment of those freedoms; nor can the surveillance so
intrude as to offend the dignity of the individual.

Surveillance of persons who do not fall within the categories mentioned in Rule 23.4 or for reasons
unconnected with the prevention of crime, or excessive surveillance falling beyond the limits
prescribed by the rules, will entitle a citizen to the court's protection which the court will not
hesitate to give. The very Rules Ibid, at pages 424-425 (para 6) PART H which prescribe the
conditions for making entries in the surveillance register and the mode of surveillance appear to
recognise the caution and care with which the police officers are required to proceed. The note
following Rule 23.4 is instructive. It enjoins a duty upon the police officer to construe the rule
strictly and confine the entries in the surveillance register to the class of persons mentioned in the
rule. Similarly Rule 23.7 demands that there should be no illegal interference in the guise of
surveillance. Surveillance, therefore, has to be unobtrusive and within bounds.73 The observations
in Malak Singh on the issue of privacy indicate that an encroachment on privacy infringes personal
liberty under Article 21 and the right to the freedom of movement under Article 19(1)(d). Without
specifically holding that privacy is a protected constitutional value under Article 19 or Article 21, the
judgment of this Court indicates that serious encroachments on privacy impinge upon personal
liberty and the freedom of movement. The Court linked such an encroachment with the dignity of
the individual which would be offended by surveillance bereft of procedural protections and carried
out in a manner that would obstruct the free exercise of freedoms guaranteed by the fundamental
rights. 52 State of Maharashtra v Madhukar Narayan Mardikar74 is another decision by a two-judge
Bench which dealt with a case of a police inspector who was alleged to have attempted to have
non-consensual intercourse with a woman by entering the hutment where she lived. Following an
enquiry, he was dismissed from service but the punishment was modified, in appeal, to removal so
as to enable him to apply for Ibid, at page 426 (para 9) (1991) 1 SCC 57 PART H pensionary benefits.
The High Court quashed the punishment both on the ground of a violation of the principles of
natural justice, and by questioning the character of the victim. Holding that this approach of the
High Court was misconceived, Justice A M Ahmadi (as the learned Chief Justice then was) held that
though the victim had admitted the dark side of her life, she was yet entitled to her privacy :
The High Court observes that since Banubi is an unchaste woman it would be
extremely unsafe to allow the fortune and career of a government official to be put in
jeopardy upon the uncorroborated version of such a woman who makes no secret of
her illicit intimacy with another person. She was honest enough to admit the dark
side of her life. Even a woman of easy virtue is entitled to privacy and no one can
invade her privacy as and when he likes. So also it is not open to any and every
person to violate her person as and when he wishes. She is entitled to protect her
person if there is an attempt to violate it against her wish. She is equally entitled to
the protection of law. Therefore, merely because she is a woman of easy virtue, her
evidence cannot be thrown overboard. At the most the officer called upon to evaluate
her evidence would be required to administer caution unto himself before accepting
her evidence.75 (emphasis supplied) As the above extract indicates, the issue before
this Court was essentially based on the appreciation of the evidence of the victim by
the High Court. However, the observations of this Court make a strong statement of
the bodily integrity of a woman, as an incident of her privacy.

53 The decision In Life Insurance Corporation of India v Prof Manubhai D Shah76, incorrectly
attributed to the decision in Indian Express Newspapers Ibid, at pages 62-63 (para 8) (1992) 3 SCC
637 PART H (Bombay) Pvt Ltd v Union of India77 the principle that the right to free expression
under Article 19(1)(a) includes the privacy of communications. The judgment of this Court in Indian
Express cited a U N Report but did no more. 54 The decision which has assumed some significance
is Rajagopal78 . In that case, in a proceeding under Article 32 of the Constitution, a writ was sought
for restraining the state and prison authorities from interfering with the publication of an
autobiography of a condemned prisoner in a magazine. The prison authorities, in a communication
to the publisher, denied the claim that the autobiography had been authored by the prisoner while
he was confined to jail and opined that a publication in the name of a convict was against prison
rules. The prisoner in question had been found guilty of six murders and was sentenced to death.
Among the questions which were posed by this Court for decision was whether a citizen could
prevent another from writing about the life story of the former and whether an unauthorized
publication infringes the citizens right to privacy. Justice Jeevan Reddy speaking for a Bench of two
judges recognised that the right of privacy has two aspects: the first affording an action in tort for
damages resulting from an unlawful invasion of privacy, while the second is a constitutional right.
The judgment traces the constitutional protection of privacy to the decisions in Kharak Singh and
Gobind. This appears from the following observations:
(1985) 1 SCC 641 (1994) 6 SCC 632 PART H The first decision of this Court dealing with this aspect
is Kharak Singh v. State of U.P. [(1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329] A more
elaborate appraisal of this right took place in a later decision in Gobind v.State of M.P.[(1975) 2 SCC
148 : 1975 SCC (Cri) 468] wherein Mathew, J. speaking for himself, Krishna Iyer and Goswami, JJ.
traced the origins of this right and also pointed out how the said right has been dealt with by the
United States Supreme Court in two of its well-known decisions in Griswold v. Connecticut [381 US
479 : 14 L Ed 2d 510 (1965)] and Roe v. Wade [410 US 113 : 35 L Ed 2d 147 (1973)]79 The decision in
Rajagopal considers the decisions in Kharak Singh and Gobind thus:
Kharak Singh [(1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329] was a case
where the petitioner was put under surveillance as defined in Regulation 236 of the
U.P. Police Regulations Though right to privacy was referred to, the decision turned
on the meaning and content of personal liberty and life in Article
21. Gobind [(1975) 2 SCC 148 : 1975 SCC (Cri) 468] was also a case of surveillance
under M.P. Police Regulations. Kharak Singh [(1964) 1 SCR 332 : AIR 1963 SC 1295 :
(1963) 2 Cri LJ 329] was followed even while at the same time elaborating the right to
privacy80 The Court held that neither the State nor its officials can impose prior
restrictions on the publication of an autobiography of a convict. In the course of its
summary of the decision, the Court held:
Ibid, at pages 639-640 (para 9) Ibid, at page 643 (para 13) PART H (1) The right to
privacy is implicit in the right to life and liberty guaranteed to the citizens of this
country by Article 21. It is a right to be let alone. A citizen has a right to safeguard the
privacy of his home, his family, marriage, procreation, motherhood, child-bearing

and education among other matters. None can publish anything concerning the
above matters without his consent whether truthful or otherwise and whether
laudatory or critical. If he does so, he would be violating the right to privacy of the
person concerned and would be liable in an action for damages. Position may,
however, be different, if a person voluntarily thrusts himself into controversy or
voluntarily invites or raises a controversy.
(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid
aspects becomes unobjectionable if such publication is based upon public records including court
records. This is for the reason that once a matter becomes a matter of public record, the right to
privacy no longer subsists and it becomes a legitimate subject for comment by press and media
among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an
exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap,
abduction or a like offence should not further be subjected to the indignity of her name and the
incident being publicised in press/media.
(3) There is yet another exception to the rule in (1) above indeed, this is not an exception but an
independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the
remedy of action for damages is simply not available with respect to their acts and conduct relevant
to the discharge of their official duties. This is so even where the publication is based upon facts and
statements which are not true, unless the official establishes that the publication was made (by the
defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant
(member of the press or media) to prove that he acted after a reasonable verification of the facts; it
is not necessary for him to prove that what he has written is true. Of course, where the publication is
proved to be false and actuated by malice or personal animosity, the defendant would have no
defence and would be liable for damages. It is equally obvious that in matters not relevant to the
discharge of his duties, the public official enjoys the same protection as any other citizen, as
explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power
to punish for contempt of court and Parliament and legislatures protected as their privileges are by
Articles 105 and 104 PART H respectively of the Constitution of India, represent exceptions to this
rule81 55 The judgment of Justice Jeevan Reddy regards privacy as implicit in the right to life and
personal liberty under Article 21. In coming to the conclusion, the judgment in Rajagopal notes that
while Kharak Singh had referred to the right of privacy, the decision turned on the content of life
and personal liberty in Article 21. The decision recognises privacy as a protected constitutional right,
while tracing it to Article 21. 56 In an interesting research article on States surveillance and the right
to privacy, a contemporary scholar has questioned the theoretical foundation of the decision in
Rajagopal on the ground that the case essentially dealt with cases in the US concerning privacy
against governmental intrusion which was irrelevant in the factual situation before this Court.82 In
the view of the author, Rajagopal involved a publication of an article by a private publisher in a
magazine, authored by a private individual, albeit a convict. Hence the decision has been criticized
on the ground that Rajagopal was about an action between private parties and, therefore, ought to
have dealt with privacy in the context of tort law. 83 While it is true that in Rajagopal it is a private
publisher who was seeking to publish an article about a death row convict, it is equally true that the
Court dealt with a prior restraint on publication imposed by the Ibid, at pages 649-650 (para 26)

Gautam Bhatia, State Surveillance and the Right to Privacy in India: A Constitutional Biography,
National Law School of India Review (2014), Vol. 26(2), at pages 138-139 Ibid PART H state and its
prison officials. That is, in fact, how Article 32 was invoked by the publisher.
57 The intersection between privacy and medical jurisprudence has been dealt with in a series of
judgments of this Court, among them being Mr X v Hospital Z84 . In that case, the appellant was a
doctor in the health service of a state. He was accompanying a patient for surgery from Nagaland to
Chennai and was tested when he was to donate blood. The blood sample was found to be HIV+. The
appellant claiming to have been socially ostracized by the disclosure of his HIV+ status by the
hospital, filed a claim for damages before the National Consumer Disputes Redressal Commission
(NCDRC) alleging that the hospital had unauthorizedly disclosed his HIV status resulting in his
marriage being called off and in social opprobrium. Justice Saghir Ahmad, speaking for a Bench of
two judges of this Court, adverted to the duty of the doctor to maintain secrecy in relation to the
patient but held that there is an exception to the rule of confidentiality where public interest will
override that duty. The judgment of this Court dwelt on the right of privacy under Article 21 and
other provisions of the Constitution relating to the fundamental rights and the Directive Principles:
Right to privacy has been culled out of the provisions of Article 21 and other
provisions of the Constitution relating to the Fundamental Rights read with the
Directive Principles of State Policy. It was in this context that it was held by this
Court in Kharak Singh v. State of U.P. [AIR 1963 SC 1295 : (1964) 1 SCR 332] that
police surveillance of a person by domiciliary visits would be violative of (1998) 8
SCC 296 PART H Article 21 of the Constitution. This decision was considered by
Mathew, J. in his classic judgment in Gobind v. State of M.P. [(1975) 2 SCC 148 : 1975
SCC (Cri) 468] in which the origin of right to privacy was traced and a number of
American decisions, including Munn v. Illinois [94 US 113 : 24 L Ed 77 (1877)] , Wolf
v. Colorado [338 US 25 : 93 L Ed 1782 (1949)] and various articles were considered85
The Court read the decision in Malak Singh as reiterating the view taken earlier, on
privacy in Kharak Singh and Gobind. The Court proceeded to rely on the decision in
Rajagopal. The Court held that the right to privacy is not absolute and is subject to
action lawfully taken to prevent crime or disorder or to protect the health, morals and
the rights and freedoms of others. Public disclosure of even true facts, the Court held,
may amount to invasion of the right to privacy or the right to be let alone when a
doctor breaches confidentiality. The Court held that:
Disclosure of even true private facts has the tendency to disturb a person's
tranquillity. It may generate many complexes in him and may even lead to
psychological problems. He may, thereafter, have a disturbed life all through. In the
face of these potentialities, and as already held by this Court in its various decisions
referred to above, the right of privacy is an essential component of the right to life
envisaged by Article 21. The right, however, is not absolute and may be lawfully
restricted for the prevention of crime, disorder or protection of health or morals or
protection of rights and freedom of others.86 However, the disclosure that the
appellant was HIV+ was held not to be violative of the right to privacy of the

appellant on the ground that the woman to whom he was to Ibid, at page 305 (para
21) Ibid, at page 307 (para 28) PART H be married was saved in time by such
disclosure and from the risk of being infected.
The denial of a claim for compensation by the NCDRC was upheld.
58 The decision in Mr X v Hospital Z fails to adequately appreciate that the latter part of the
decision in Kharak Singh declined to accept privacy as a constitutional right, while the earlier part
invalidated domiciliary visits in the context of an invasion of ordered liberty. Similarly, several
observations in Gobind proceed on an assumption: if there is a right of privacy, it would
comprehend certain matters and would be subject to a regulation to protect compelling state
interests. 59 In a decision of a Bench of two judges of this Court in PUCL87, the Court dealt with
telephone tapping. The petitioner challenged the constitutional validity of Section 5(2) of the Indian
Telegraph Act, 1885 and urged in the alternative for adopting procedural safeguards to curb
arbitrary acts of telephone tapping. Section 5(2) authorises the interception of messages in
transmission in the following terms:
On the occurrence of any public emergency, or in the interest of the public safety, the
Central Government or a State Government or any officer specially unauthorised in
this behalf by the Central Government or a State Government may, if satisfied that it
is necessary or expedient so to do in the interests of the sovereignty and integrity of
India, the security of the State, friendly relations with foreign States or public order
or for preventing incitement to the commission of an offence, for reasons to be
recorded in writing, by order, direct that any message or class of messages to or from
any person or class of persons, or relating to any particular subject, brought for
transmission by or transmitted or received by any (1997) 1 SCC 301 PART H
telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be
disclosed to the Government making the order or an officer thereof mentioned in the
order:
Provided that press messages intended to be published in India of correspondents accredited to the
Central Government or a State Government shall not be intercepted or detained, unless their
transmission has been prohibited under this sub-section. 60 The submission on the invalidity of the
statutory provision authorising telephone tapping was based on the right to privacy being a
fundamental right under Articles 19(1) and 21 of the Constitution. Justice Kuldip Singh adverted to
the observations contained in the majority judgment in Kharak Singh which led to the invalidation
of the provision for domiciliary visits at night under Regulation 236(b). PUCL cited the minority
view of Justice Subba Rao as having gone even further by invalidating Regulation 236, in its
entirety. The judgment, therefore, construes both the majority and minority judgments as having
affirmed the right to privacy as a part of Article 21:
Article 21 of the Constitution has, therefore, been interpreted by all the seven learned
Judges in Kharak Singh case [(1964) 1 SCR 332 : AIR 1963 SC 1295] (majority and
the minority opinions) to include that right to privacy as a part of the right to

protection of life and personal liberty guaranteed under the said Article.88 Gobind
was construed to have upheld the validity of State Police Regulations providing
surveillance on the ground that the procedure established by law under Article 21 had
not been violated. After completing its summation of precedents, Justice Kuldip
Singh held as follows:
Ibid, at page 310 (para 14) PART H We have, therefore, no hesitation in holding that
right to privacy is a part of the right to life and personal liberty enshrined under
Article 21 of the Constitution. Once the facts in a given case constitute a right to
privacy, Article 21 is attracted. The said right cannot be curtained except according to
procedure established by law.89 Telephone conversations were construed to be an
important ingredient of privacy and the tapping of such conversations was held to
infringe Article 21, unless permitted by procedure established by law :
The right to privacy by itself has not been identified under the Constitution. As a
concept it may be too broad and moralistic to define it judicially. Whether right to
privacy can be claimed or has been infringed in a given case would depend on the
facts of the said case. But the right to hold a telephone conversation in the privacy of
one's home or office without interference can certainly be claimed as right to privacy.
Conversations on the telephone are often of an intimate and confidential character.
Telephone conversation is a part of modern man's life. It is considered so important
that more and more people are carrying mobile telephone instruments in their
pockets. Telephone conversation is an important facet of a man's private life. Right to
privacy would certainly include telephone conversation in the privacy of one's home
or office. Telephone-
tapping would, thus, infract Article 21 of the Constitution of India unless it is

permitted under the procedure established by law.90 The Court also held that
telephone tapping infringes the guarantee of free speech and expression under Article
19(1)(a) unless authorized by Article 19(2). The judgment relied on the protection of
privacy under Article 17 of the International Covenant on Civil and Political Rights
(and a similar guarantee under Article 12 of the Universal Declaration of Human
Rights) which, in its view, must be an interpretative tool for Ibid, at page 311 (para
17) Ibid, at page 311 (para 18) PART H construing the provisions of the Constitution.
Article 21, in the view of the Court, has to be interpreted in conformity with
international law. In the absence of rules providing for the precautions to be adopted
for preventing improper interception and/or disclosure of messages, the fundamental
rights under Articles 19(1)(a) and 21 could not be safeguarded. But the Court was not
inclined to require prior judicial scrutiny before intercepting telephone
conversations. The Court ruled that it would be necessary to lay down procedural
safeguards for the protection of the right to privacy of a person until Parliament
intervened by framing rules under Section 7 of the Telegraph Act. The Court
accordingly framed guidelines to be adopted in all cases envisaging telephone
tapping.

61 The judgment in PUCL construes the earlier decisions in Kharak Singh (especially the majority
view on the invalidity of domiciliary visits), Gobind and Rajagopal in holding that the right to
privacy is embodied as a constitutionally protected right under Article 21. The Court was conscious
of the fact that the right to privacy has by itself not been identified under the Constitution. The
expression by itself may indicate one of two meanings. The first is that the Constitution does not
recognise a standalone right to privacy. The second recognizes that there is no express delineation of
such a right. Evidently, the Court left the evolution of the contours of the right to a case by case
determination. Telephone conversations from the home or office were construed to be an integral
element of the privacy of an individual. In PUCL, the Court consciously established the linkages
between various articles conferring guarantees of fundamental rights when it noted that
wire-tapping PART H infringes privacy and in consequence the right to life and personal liberty
under Article 21 and the freedom of speech and expression under Article 19(1)(a). The need to read
the fundamental constitutional guarantees with a purpose illuminated by Indias commitment to the
international regime of human rights protection also weighed in the decision. Section 5(2) of the
Telegraph Act was to be regulated by rules framed by the Government to render the modalities of
telephone tapping fair, just and reasonable under Article 21. The importance which the Court
ascribes to privacy is evident from the fact that it did not await the eventual formulation of rules by
Parliament and prescribed that in the meantime, certain procedural safeguards which it envisaged
should be put into place.
62 While dealing with a case involving the rape of an eight year old child, a threejudge Bench of
this Court in State of Karnataka v Krishnappa91 held:
Sexual violence apart from being dehumanising is an unlawful intrusion of the right
to privacy and sanctity It offends her dignity.92 Similar observations were made in
Sudhansu Sekhar Sahoo v State of Orissa93.
63 In Sharda v Dharmpal94, the appellant and respondent were spouses. The respondent sued for
divorce and filed an application for conducting a medical examination of the appellant which was
opposed. The Trial Court allowed the (2000) 4 SCC 75 Ibid, at page 82 (para 15) (2002) 10 SCC 743
(2003) 4 SCC 493 PART H application. The High Court dismissed the challenge in a Civil Revision
which led the appellant to move this Court. The appellant argued before this Court that compelling
her to undergo a medical examination violated her personal liberty under Article 21 and that in the
absence of an empowering provision, the matrimonial Court had no jurisdiction to compel a party to
undergo a medical examination. Justice S B Sinha, speaking for the Bench of three judges, dealt with
the first aspect of the matter (whether a matrimonial Court has jurisdiction to order a medical
examination) in the following terms:
Even otherwise the court may issue an appropriate direction so as to satisfy itself as
to whether apart from treatment he requires adequate protection inter alia by way of
legal aid so that he may not be subject to an unjust order because of his incapacity.
Keeping in view of the fact that in a case of mental illness the court has adequate
power to examine the party or get him examined by a qualified doctor, we are of the
opinion that in an appropriate case the court may take recourse to such a procedure

even at the instance of the party to the lis95 Furthermore, the court must be held to
have the requisite power even under Section 151 of the Code of Civil Procedure to
issue such direction either suo motu or otherwise which, according to him, would
lead to the truth.96 64 The second question considered by the Court was whether a
compulsive subjecting of a person to a medical examination violates Article 21. After
noticing the observations in M P Sharma and Kharak Singh where it was held that the
Constitution has not guaranteed the right of privacy, the Court held that in
subsequent decisions, such a right has been read into Article 21 on an expansive
interpretation of Ibid, at page 513 (para 52) Ibid, at page 513 (para 53) PART H
personal liberty. In the course of its judgment, the Court adverted to the decisions in
Rajagopal, PUCL, Gobind and Mr X v Hospital Z on the basis of which it stated that it
had outlined the law relating to privacy in India. In the view of this Court, in
matrimonial cases where a decree of divorce is sought on medical grounds, a medical
examination is the only way in which an allegation could be proved. In such a
situation:
If the respondent avoids such medical examination on the ground that it violates
his/her right to privacy or for that matter right to personal liberty as enshrined under
Article 21 of the Constitution of India, then it may in most of such cases become
impossible to arrive at a conclusion. It may render the very grounds on which divorce
is permissible nugatory. Therefore, when there is no right to privacy specifically
conferred by Article 21 of the Constitution of India and with the extensive
interpretation of the phrase personal liberty this right has been read into Article 21, it
cannot be treated as an absolute right97 The right of privacy was held not to be
breached.
65 In District Registrar and Collector, Hyderabad v Canara Bank98 (Canara Bank), a

Bench of two judges of this Court considered the provisions of the Indian Stamp Act,
1899 (as amended by a special law in Andhra Pradesh). Section 73, which was
invalidated by the High Court, empowered the Collector to inspect registers, books
and records, papers, documents and proceedings in the custody of any public officer
to secure any duty or to prove or would lead to the discovery of a fraud or omission.
Section 73 was in the following terms:
Ibid, at page 523 (para 76) (2005) 1 SCC 496 PART H 73. Every public officer having
in his custody any registers, books, records, papers, documents or proceedings, the
inspection whereof may tend to secure any duty, or to prove or lead to the discovery
of any fraud or omission in relation to any duty, shall at all reasonable times permit
any person authorised in writing by the Collector to inspect for such purpose the
registers, books, papers, documents and proceedings, and to take such notes and
extracts as he may deem necessary, without fee or charge. After adverting to the
evolution of the doctrine of privacy in the US from a right associated with property99
to a right associated with the individual100, Chief Justice Lahoti referred to the
penumbras created by the Bill of Rights resulting in a zone of privacy101 leading up

eventually to a reasonable expectation of privacy 102. Chief Justice Lahoti considered

the decision in M P Sharma to be of limited help to the discussion on privacy.
However, it was Kharak Singh which invalidated nightly-
domiciliary visits that provided guidance on the issue. The evaluation of Kharak Singh was in the
following terms:
InKharak Singh v State of U P [(1964) 1 SCR 332 : (1963) 2 Cri LJ 329] the U.P.
Regulations regarding domiciliary visits were in question and the majority referred to
Munn v. Illinois [94 US 113 : 24 L Ed 77 (1877)] and held that though our
Constitution did not refer to the right to privacy expressly, still it can be traced from
the right to life in Article 21. According to the majority, clause 236 of the relevant
Regulations in U.P., was bad in law; it offended Article 21 inasmuch as there was no
law permitting interference by such visits. The majority did not go into the question
whether these visits violated the right to privacy. But, Subba Rao, J. while concurring
that the fundamental right to privacy was part of the right to liberty in Article 21, part
of the right to freedom of speech and expression in Article 19(1)(a), and also of the
right to movement in Article 19(1)(d), held that the Regulations permitting
surveillance Boyd v United States, 116 US 616 (1886) Olmstead v United States, 277
US 438 (1928) Griswold v State of Connecticut, 381 US 479 (1965) Katz v United
States, 389 US 347 (1967) PART H violated the fundamental right of privacy. In the
discussion the learned Judge referred to Wolf v. Colorado [338 US 25 : 93 L Ed 1782
(1949)] . In effect, all the seven learned Judges held that the right to privacy was part
of the right to life in Article
21.103 (emphasis supplied) The decision in Gobind is construed to have implied the
right to privacy in Articles 19(1)(a) and 21 of the Constitution:
We have referred in detail to the reasons given by Mathew, J.
in Gobind to show that, the right to privacy has been implied in Articles 19(1)(a) and
(d) and Article 21; that, the right is not absolute and that any State intrusion can be a
reasonable restriction only if it has reasonable basis or reasonable materials to
support it.104 (emphasis supplied) The Court dealt with the application of Section 73
of the Indian Stamp Act (as amended), to documents of a customer in the possession
of a bank. The Court held:
Once we have accepted in Gobind [(1975) 2 SCC 148 : 1975 SCC (Cri) 468] and in
later cases that the right to privacy deals with persons and not places, the documents
or copies of documents of the customer which are in a bank, must continue to remain
confidential vis-à-vis the person, even if they are no longer at the customer's house
and have been voluntarily sent to a bank. If that be the correct view of the law, we
cannot accept the line of Miller [425 US 435 (1976)] in which the Court proceeded on
the basis that the right to privacy is referable to the right of property theory. Once

that is so, then unless there is some probable or reasonable cause or reasonable basis
or material before the Collector for reaching an opinion that the documents in the
possession of the bank tend to secure any duty or to prove or to lead to the discovery
of any fraud or omission in relation to any duty, the search or taking notes or extracts
therefore, cannot be valid.
The above safeguards must necessarily be read into the provision Supra Note 95, at
page 516 (para 36) Ibid, at page 518 (para 39) PART H relating to search and
inspection and seizure so as to save it from any unconstitutionality.105 Hence the
Court repudiated the notion that a person who places documents with a bank would,
as a result, forsake an expectation of confidentiality. In the view of the Court, even if
the documents cease to be at a place other than in the custody and control of the
customer, privacy attaches to persons and not places and hence the protection of
privacy is not diluted. Moreover, in the view of the Court, there has to be a reasonable
basis or material for the Collector to form an opinion that the documents in the
possession of the bank would secure the purpose of investigating into an act of fraud
or an omission in relation to duty. The safeguards which the Court introduced were
regarded as being implicit in the need to make a search of this nature reasonable. The
second part of the ruling of the Court is equally important for it finds fault with a
statutory provision which allows an excessive delegation of the power conferred upon
the Collector to inspect documents. The provision, the Court rules, would allow the
customers privacy to be breached by non-governmental persons.
Hence the statute, insofar as it allowed the Collector to authorize any person to seek inspection,
would be unenforceable. In the view of the Court:
Secondly, the impugned provision in Section 73 enabling the Collector to authorise

any person whatsoever to inspect, to take notes or extracts from the papers in the
public office suffers from the vice of excessive delegation as there are no guidelines in
the Act and more importantly, the section allows the facts relating to the customer's
privacy to reach non-governmental persons and would, on that basis, be an
unreasonable encroachment into the customer's rights. This part of Section 73
permitting delegation to Ibid, at page 523 (para 53) PART H any person suffers from
the above serious defects and for that reason is, in our view, unenforceable. The State
must clearly define the officers by designation or state that the power can be
delegated to officers not below a particular rank in the official hierarchy, as may be
designated by the State.106 66 The significance of the judgment in Canara Bank lies
first in its reaffirmation of the right to privacy as emanating from the liberties
guaranteed by Article 19 and from the protection of life and personal liberty under
Article 21. Secondly, the Court finds the foundation for the reaffirmation of this right
not only in the judgments in Kharak Singh and Gobind and the cases which followed,
but also in terms of Indias international commitments under the Universal
Declaration of Human Rights (UDHR) and International Covenant on Civil and
Political Rights (ICCPR). Thirdly, the right to privacy is construed as a right which

attaches to the person. The significance of this is that the right to privacy is not lost as
a result of confidential documents or information being parted with by the customer
to the custody of the bank. Fourthly, the Court emphasised the need to read
procedural safeguards to ensure that the power of search and seizure of the nature
contemplated by Section 73 is not exercised arbitrarily. Fifthly, access to bank
records to the Collector does not permit a delegation of those powers by the Collector
to a private individual. Hence even when the power to inspect and search is validly
exercisable by an organ of the state, necessary safeguards would be required to
ensure that the information does not travel to unauthorised private hands. Sixthly,
information provided by an individual to a third party (in that case a bank) carries
with it a reasonable expectation that it will be utilised Ibid, at page 524 (para 54)
PART H only for the purpose for which it is provided. Parting with information (to
the bank) does not deprive the individual of the privacy interest. The reasonable
expectation is allied to the purpose for which information is provided. Seventhly,
while legitimate aims of the state, such as the protection of the revenue may
intervene to permit a disclosure to the state, the state must take care to ensure that
the information is not accessed by a private entity. The decision in Canara Bank has
thus important consequences for recognising informational privacy.
67 After the decision in Canara Bank, the provisions for search and seizure under Section 132(5) of
the Income Tax Act, 1961 were construed strictly by this Court in P R Metrani v Commissioner of
Income Tax107 on the ground that they constitute a serious intrusion into the privacy of a citizen.
Similarly, the search and seizure provisions of Sections 42 and 43 of the NDPS108 Act were
construed by this Court in Directorate of Revenue v Mohd Nisar Holia109. Adverting to Canara
Bank, among other decisions, the Court held that the right to privacy is crucial and imposes a
requirement of a written recording of reasons before a search and seizure could be carried out.
68 Section 30 of the Punjab Excise Act, 1914 prohibited the employment of any man under the age
of 25 years or any woman in any part of the premises in which (2007) 1 SCC 789 Narcotic Drugs and
Psychotropic Substances Act, 1985 (2008) 2 SCC 370 PART H liquor or an intoxicating drug is
consumed by the public. The provision was also challenged in Anuj Garg v Hotel Association of
India110 on the ground that it violates the right to privacy. While holding that the provision is ultra
vires, the two-judge Bench observed:
Privacy rights prescribe autonomy to choose profession whereas security concerns

texture methodology of delivery of this assurance. But it is a reasonable proposition
that that the measures to safeguard such a guarantee of autonomy should not be so
strong that the essence of the guarantee is lost. State protection must not translate
into censorship111 Instead of prohibiting women employment in the bars altogether
the state should focus on factoring in ways through which unequal consequences of
sex differences can be eliminated. It is states duty to ensure circumstances of safety
which inspire confidence in women to discharge the duty freely in accordance to the
requirements of the profession they choose to follow. Any other policy inference
(such as the one embodied under Section 30) from societal conditions would be

oppressive on the women and against the privacy rights112 The Courts task is to
determine whether the measures furthered by the State in form of legislative
mandate, to augment the legitimate aim of protecting the interests of women are
proportionate to the other bulk of well-settled gender norms such as autonomy,
equality of opportunity, right to privacy et al.113 (emphasis supplied) 69 In Hinsa
Virodhak Sangh v Mirzapur Moti Kuresh Jamat114 (Hinsa Virodhak Sangh), this
Court dealt with the closure of municipal slaughterhouses in the city of Ahmedabad
for a period of nine days each year during the Jain observance (2008) 3 SCC 1 Ibid, at
page 15 (para 35) Ibid, at pages 16-17 (para 43) Ibid, at page 19 (para 51) (2008) 5
SCC 33 PART H of paryushan, pursuant to the resolution of the municipal
corporation. The High Court had set aside the resolutions. In appeal, this Court
observed as follows:
Had the impugned resolutions ordered closure of municipal slaughterhouses for a

considerable period of time we may have held the impugned resolutions to be invalid
being an excessive restriction on the rights of the butchers of Ahmedabad who
practise their profession of meat selling. After all, butchers are practising a trade and
it is their fundamental right under Article 19(1)(g) of the Constitution which is
guaranteed to all citizens of India. Moreover, it is not a matter of the proprietor of the
butchery shop alone. There may be also several workmen therein who may become
unemployed if the slaughterhouses are closed for a considerable period of time,
because one of the conditions of the licence given to the shop-owners is to supply
meat regularly in the city of Ahmedabad and this supply comes from the municipal
slaughterhouses of Ahmedabad. Also, a large number of people are non-vegetarian
and they cannot be compelled to become vegetarian for a long period. What one eats
is one's personal affair and it is a part of his right to privacy which is included in
Article 21 of our Constitution as held by several decisions of this Court. In R.
Rajagopal v. State of T.N. [(1994) 6 SCC 632 :
AIR 1995 SC 264] (vide SCC para 26 : AIR para 28) this Court held that the right to
privacy is implicit in the right to life and liberty guaranteed by Article 21. It is a right
to be let alone. 115 (emphasis supplied) However, since the closure of
slaughterhouses was for a period of nine days, the Court came to the conclusion that
it did not encroach upon the freedom guaranteed by Article 19(1)(g). The restriction
was held not to be excessive.
Ibid, at pages 46-47 (para 27) PART H 70 The decision in the State of Maharashtra v Bharat Shanti
Lal Shah116 deals with the constitutional validity of Sections 13 to 16 of the Maharashtra Control of
Organized Crime Act (MCOCA) which inter alia contains provisions for intercepting telephone and
wireless communications. Upholding the provision, the Court observed:
The object of MCOCA is to prevent the organised crime and a perusal of the
provisions of the Act under challenge would indicate that the said law authorises the
interception of wire, electronic or oral communication only if it is intended to prevent

the commission of an organised crime or if it is intended to collect the evidence to the

commission of such an organised crime. The procedures authorising such
interception are also provided therein with enough procedural safeguards, some of
which are indicated and discussed hereinbefore.117 The safeguards that the Court
adverts to in the above extract include Section 14, which requires details of the
organized crime that is being committed or is about to be committed, before
surveillance could be authorized. The requirements also mandate describing the
nature and location of the facilities from which the communication is to be
intercepted, the nature of the communication and the identity of the person, if it is
known. A statement is also necessary on whether other modes of enquiry or
intelligence gathering were tried or had failed or why they reasonably appear to be
unlikely to succeed if tried or whether these would be too dangerous or would likely
result in the identification of those connected with the operation. The duration of the
surveillance is restricted in time and the provision requires minimal interception118.
(2008) 13 SCC 5 Ibid, at page 28 (para 61) Gautam Bhatia (supra note 82), at page 148 PART H 71
During the course of the last decade, this Court has had occasion to deal with the autonomy of a
woman and, as an integral part, her control over the body. Suchita Srivastava v Chandigarh
Administration119 (Suchita Srivastava) arose in the context of the Medical Termination of
Pregnancy Act (MTP) Act, 1971. A woman who was alleged to have been raped while residing in a
welfare institution run by the government was pregnant. The district administration moved the
High Court to seek termination of the pregnancy. The High Court directed that the pregnancy be
terminated though medical experts had opined that the victim had expressed her willingness to bear
the child. The High Court had issued this direction without the consent of the woman which was
mandated under the statute where the woman is a major and does not suffer from a mental illness.
The woman in this case was found to suffer from a case of mild to moderate mental retardation.
Speaking for a Bench of three judges, Chief Justice Balakrishnan held that the reproductive choice of
the woman should be respected having regard to the mandate of Section 3. In the view of the Court:
There is no doubt that a woman's right to make reproductive choices is also a

dimension of personal liberty as understood under Article 21 of the Constitution of
India. It is important to recognise that reproductive choices can be exercised to
procreate as well as to abstain from procreating. The crucial consideration is that a
woman's right to privacy, dignity and bodily integrity should be respected. This
means that there should be no restriction whatsoever on the exercise of reproductive
choices such as a woman's right to refuse participation in sexual activity or
alternatively the insistence on use of contraceptive methods.
Furthermore, women are also free to choose birth control methods such as undergoing sterilisation
procedures. Taken to their logical (2009) 9 SCC 1 PART H conclusion, reproductive rights include a
woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise
children. However, in the case of pregnant women there is also a compelling State interest in
protecting the life of the prospective child. Therefore, the termination of a pregnancy is only
permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the

provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed
on the exercise of reproductive choices. 120 (emphasis supplied) The Court noted that the statute
requires the consent of a guardian where the woman has not attained majority or is mentally ill. In
the view of the Court, there is a distinction between mental illness and mental retardation and hence
the State which was in- charge of the welfare institution was bound to respect the personal
autonomy of the woman.
72 The decision in Suchita Srivastava dwells on the statutory right of a woman under the MTP Act to
decide whether or not to consent to a termination of pregnancy and to have that right respected
where she does not consent to termination. The statutory recognition of the right is relatable to the
constitutional right to make reproductive choices which has been held to be an ingredient of
personal liberty under Article 21. The Court deduced the existence of such a right from a womans
right to privacy, dignity and bodily integrity.
Ibid, at page 15 (para 22) PART H 73 In Bhavesh Jayanti Lakhani v State of Maharashtra121, this
Court dealt with a challenge to the validity of an arrest warrant issued by a US court and a red
corner notice issued by INTERPOL on the ground that the petitioner had, in violation of an interim
custody order, returned to India with the child. The Court did not accept the submission that the
CBI, by coordinating with INTERPOL had breached the petitioners right of privacy. However,
during the course of the discussion, this Court held as follows:
Right to privacy is not enumerated as a fundamental right either in terms of Article

21 of the Constitution of India or otherwise. It, however, by reason of an elaborate
interpretation by this Court in Kharak Singh v. State of U.P. [AIR 1963 SC 1295 :
(1964) 1 SCR 332] was held to be an essential ingredient of personal liberty.122 This
Court, however, in Gobind v. State of M.P. upon taking an elaborate view of the
matter in regard to right to privacy vis-à-vis the Madhya Pradesh Police Regulations
dealing with surveillance, opined that the said Regulations did not violate the
procedure established by law. However, a limited fundamental right to privacy as
emanating from Articles 19(1)(a), (d) and 21 was upheld, but the same was held to be
not absolute wherefore reasonable restrictions could be placed in terms of clause (5)
of Article 19.123 74 In Selvi v State of Karnataka124 (Selvi), a Bench of three judges of
this Court dealt with a challenge to the validity of three investigative techniques:
narco-analysis, polygraph test (lie-detector test) and Brain Electrical Activation
Profile (BEAP) on the ground that they implicate the fundamental rights under
Articles 20(3) and 21 of the Constitution. The Court held that the results obtained
through an involuntary (2009) 9 SCC 551 Ibid, at pages 584-585 (para 102) Ibid, at
page 585 (para 103) (2010) 7 SCC 263 PART H administration of these tests are
within the scope of a testimonial, attracting the protective shield of Article 20(3) of
the Constitution. Chief Justice Balakrishnan adverted to the earlier decisions
rendered in the context of privacy and noted that thus far, judicial understanding had
stressed mostly on the protection of the body and physical actions induced by the
state. The Court emphasised that while the right against self-incrimination is a
component of personal liberty under Article 21, privacy under the constitution has a

meeting point with Article 20(3) as well. In the view of the Court:
The theory of interrelationship of rights mandates that the right against

self-incrimination should also be read as a component of personal liberty under
Article 21. Hence, our understanding of the right to privacy should account for its
intersection with Article 20(3). Furthermore, the rule against involuntary confessions
as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve
both the objectives of reliability as well as voluntariness of testimony given in a
custodial setting. A conjunctive reading of Articles 20(3) and 21 of the Constitution
along with the principles of evidence law leads us to a clear answer. We must
recognise the importance of personal autonomy in aspects such as the choice between
remaining silent and speaking. An individual's decision to make a statement is the
product of a private choice and there should be no scope for any other individual to
interfere with such autonomy, especially in circumstances where the person faces
exposure to criminal charges or penalties Therefore, it is our considered opinion that
subjecting a person to the impugned techniques in an involuntary manner violates
the prescribed boundaries of privacy. Forcible interference with a person's mental
processes is not provided for under any statute and it most certainly comes into
conflict with the right against self-
incrimination.125 Ibid, at pages 369-370 (paras 225-226) PART H In tracing the

right to privacy under Article 20(3), as well as Article 21, the decision marks a
definite shift away from the M P Sharma rationale. The right not to be compelled to
speak or to incriminate oneself when accused of an offence is an embodiment of the
right to privacy. Selvi indicates how the right to privacy can straddle the ambit of
several constitutional rights - in that case, Articles 20(3) and 21.
75 In Bhabani Prasad Jena v Orissa State Commission for Women126, the Court was considering the
question whether the High Court was justified in issuing a direction for a DNA test of a child and the
appellant who, according to the mother of the child, was the father. It was held that:
In a matter where paternity of a child is in issue before the court, the use of DNA test
is an extremely delicate and sensitive aspect. One view is that when modern science
gives the means of ascertaining the paternity of a child, there should not be any
hesitation to use those means whenever the occasion requires. The other view is that
the court must be reluctant in the use of such scientific advances and tools which
result in invasion of right to privacy of an individual and may not only be prejudicial
to the rights of the parties but may have devastating effect on the child.
Sometimes the result of such scientific test may bastardise an innocent child even though his mother
and her spouse were living together during the time of conception.127 76 In Amar Singh v Union of
India128, a Bench of two judges of this Court dealt with a petition under Article 32 alleging that the
fundamental right to privacy of the (2010) 8 SCC 633 Ibid, at page 642 (para 21) (2011) 7 SCC 69
PART H petitioner was being breached by intercepting his conversations on telephone services

provided by a service provider. The Court held:
Considering the materials on record, this Court is of the opinion that it is no doubt
true that the service provider has to act on an urgent basis and has to act in public
interest. But in a given case, like the present one, where the impugned
communication dated 9- 11-2005 is full of gross mistakes, the service provider while
immediately acting upon the same, should simultaneously verify the authenticity of
the same from the author of the document. This Court is of the opinion that the
service provider has to act as a responsible agency and cannot act on any
communication.
Sanctity and regularity in official communication in such matters must be maintained especially
when the service provider is taking the serious step of intercepting the telephone conversation of a
person and by doing so is invading the privacy right of the person concerned and which is a
fundamental right protected under the Constitution, as has been held by this Court.129 (emphasis
supplied) 77 In Ram Jethmalani v Union of India130 (Ram Jethmalani), a Bench of two judges was
dealing with a public interest litigation concerned with unaccounted monies and seeking the
appointment of a Special Investigating Team to follow and investigate a money trail. This Court held
that the revelation of the details of the bank accounts of individuals without the establishment of a
prima facie ground of wrongdoing would be a violation of the right to privacy. This Court observed
thus:
Right to privacy is an integral part of right to life. This is a cherished constitutional

value, and it is important that human beings be allowed domains of freedom that are
free of public scrutiny unless they act in an unlawful manner. We understand and
appreciate the fact that the situation with respect to unaccounted for monies is Ibid,
at page 84 (para 39) (2011) 8 SCC 1 PART H extremely grave. Nevertheless, as
constitutional adjudicators we always have to be mindful of preserving the sanctity of
constitutional values, and hasty steps that derogate from fundamental rights,
whether urged by Governments or private citizens, howsoever well meaning they may
be, have to be necessarily very carefully scrutinised. The solution for the problem of
abrogation of one zone of constitutional values cannot be the creation of another zone
of abrogation of constitutional values The rights of citizens, to effectively seek the
protection of fundamental rights, under clause (1) of Article 32 have to be balanced
against the rights of citizens and persons under Article 21. The latter cannot be
sacrificed on the anvil of fervid desire to find instantaneous solutions to systemic
problems such as unaccounted for monies, for it would lead to dangerous
circumstances, in which vigilante investigations, inquisitions and rabble rousing, by
masses of other citizens could become the order of the day. The right of citizens to
petition this Court for upholding of fundamental rights is granted in order that
citizens, inter alia, are ever vigilant about the functioning of the State in order to
protect the constitutional project. That right cannot be extended to being inquisitors
of fellow citizens.

An inquisitorial order, where citizens' fundamental right to privacy is breached by fellow citizens is
destructive of social order. The notion of fundamental rights, such as a right to privacy as part of
right to life, is not merely that the State is enjoined from derogating from them. It also includes the
responsibility of the State to uphold them against the actions of others in the society, even in the
context of exercise of fundamental rights by those others.131 (emphasis supplied) The Court held
that while the State could access details of the bank accounts of citizens as an incident of its power to
investigate and prosecute crime, this would not enable a private citizen to compel a citizen to reveal
bank accounts to the public at large.
Ibid, at pages 35-36 (paras 83-84) PART H 78 In Sanjoy Narayan v High Court of Allahabad132, the
two-judge Bench dealt with a contempt petition in respect of publication of an incorrect report in a
newspaper which tarnished the image of the Chief Justice of a High Court. The Court made the
The unbridled power of the media can become dangerous if check and balance is not
inherent in it. The role of the media is to provide to the readers and the public in
general with information and views tested and found as true and correct.
This power must be carefully regulated and must reconcile with a person's fundamental right to
privacy.133 (emphasis supplied) 79 In Ramlila Maidan Incident v Home Secretary, Union of
India134, Justice B S Chauhan in a concurring judgment held that:
Right to privacy has been held to be a fundamental right of the citizen being an
integral part of Article 21 of the Constitution of India by this Court. Illegitimate
intrusion into privacy of a person is not permissible as right to privacy is implicit in
the right to life and liberty guaranteed under our Constitution. Such a right has been
extended even to woman of easy virtues as she has been held to be entitled to her
right of privacy. However, right of privacy may not be absolute and in exceptional
circumstance particularly surveillance in consonance with the statutory provisions
may not violate such a right.135 In the view of the Court, privacy and dignity of
human life have always been considered a fundamental human right of every human
being like other constitutional values such as free speech. We must also take notice of
the construction placed by (2011) 13 SCC 155 Ibid, at page 156 (para 6) (2012) 5 SCC 1
Ibid, at pages 119-120 (para 312) PART H the judgment on the decision in Kharak
Singh as having held that the right to privacy is a part of life under Article 21 of the
Constitution and which was reiterated in PUCL.
80 The judgment of a Bench of two judges of this Court in Bihar Public Service Commission v Saiyed
Hussain Abbas Rizwi136 dealt with the provisions of Section 8(1)(g) of the Right to Information Act,
2005. A person claiming to be a public-spirited citizen sought information under the statute from
the Bihar Public Service Commission on a range of matters relating to interviews conducted by it on
two days. The commission disclosed the information save and except for the names of the interview
board. The High Court directed disclosure. Section 8(1)(g) provides an exemption from disclosure of
information of the following nature:

information, the disclosure of which would endanger the life or physical safety of any
person or identify the source of information or assistance given in confidence for law
enforcement and security purposes. Justice Swatanter Kumar, speaking for the
Court, held thus:
Certain matters, particularly in relation to appointment, are required to be dealt with

great confidentiality. The information may come to knowledge of the authority as a
result of disclosure by others who give that information in confidence and with
complete faith, integrity and fidelity. Secrecy of such information shall be
maintained, thus, bringing it within the ambit of fiduciary capacity.
Similarly, there may be cases where the disclosure has no relationship to any public
activity or interest or it may even cause unwarranted invasion of privacy of the
individual. All these protections have to be given their due implementation as they
spring from statutory exemptions. It is not a decision simpliciter between private
interest and public interest. It is a matter (2012) 13 SCC 61 PART H where a
constitutional protection is available to a person with regard to the right to privacy.
Thus, the public interest has to be construed while keeping in mind the balance factor
between right to privacy and right to information with the purpose sought to be
achieved and the purpose that would be served in the larger public interest,
particularly when both these rights emerge from the constitutional values under the
Constitution of India.137 (emphasis supplied) Significantly, though the Court was
construing the text of a statutory exemption contained in Section 8, it dwelt on the
privacy issues involved in the disclosure of information furnished in confidence by
adverting to the constitutional right to privacy.
81 The decision Lillu @Rajesh v State of Haryana138 emphasized the right of rape survivors to
privacy, physical and mental integrity and dignity. The Court held thus:
In view of International Covenant on Economic, Social, and Cultural Rights 1966;

United Nations Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power 1985, rape survivors are entitled to legal recourse that does not
retraumatize them or violate their physical or mental integrity and dignity. They are
also entitled to medical procedures conducted in a manner that respects their right to
consent. Medical procedures should not be carried out in a manner that constitutes
cruel, inhuman, or degrading treatment and health should be of paramount
consideration while dealing with gender-based violence. The State is under an
obligation to make such services available to survivors of sexual violence. Proper
measures should be taken to ensure their safety and there should be no arbitrary or
unlawful interference with his privacy.139 (emphasis supplied) Ibid, at page 74 (para
23) (2013) 14 SCC 643 Ibid, at page 648 (para 13) PART H 82 In Thalappalam
Service Cooperative Bank Limited v State of Kerala140, another Bench of two judges
considered the correctness of a decision of the Kerala High Court which upheld a
circular issued by the Registrar of Cooperative Societies.

By the circular all cooperative institutions under his administrative control were declared to be
public authorities within the meaning of Section 2(h) of the Right to Information Act, 2005. Section
8(j) contains an exemption from the disclosure of personal information which has no relationship to
any public activity or interest, or which would cause unwarranted invasion of the privacy of the
individual unless the authority is satisfied that the larger public interest justifies its disclosure. This
Court observed that the right to privacy has been recognized as a part of Article 21 of the
Constitution and the statutory provisions contained in Section 8(j) of the RTI Act have been enacted
by the legislature in recognition of the constitutional protection of privacy. The Court held thus:
The right to privacy is also not expressly guaranteed under the Constitution of India.
However, the Privacy Bill, 2011 to provide for the right to privacy to citizens of India
and to regulate the collection, maintenance and dissemination of their personal
information and for penalisation for violation of such rights and matters connected
therewith, is pending. In several judgments including Kharak Singh v. State of U.P
.[AIR 1963 SC 1295 : (1963) 2 Cri LJ 329] , R.
Rajagopal v. State of T.N. [(1994) 6 SCC 632] , People's Union for Civil Liberties v. Union of India
[(1997) 1 SCC 301] and State of Maharashtra v. Bharat Shanti Lal Shah [(2008) 13 SCC 5] this Court
has recognised the right to privacy as a fundamental right emanating from Article 21 of the
Constitution of India.141 Recognising the fact that the right to privacy is a sacrosanct facet of Article
21 of the Constitution, the legislation has put a lot of (2013) 16 SCC 82 Ibid, at page 112 (para 57)
PART H safeguards to protect the rights under Section 8(j), as already indicated.142 This Court held
that on facts the cooperative societies were not public authorities and the decision under challenge
was quashed.
83 In Manoj Narula v Union of India143, a Constitution Bench of this Court was hearing a petition
filed in the public interest complaining of the increasing criminalization of politics. Dealing with the
provisions of Article 75(1) of the Constitution, Justice Dipak Misra, while explaining the doctrine of
constitutional implications, considered whether the Court could read a disqualification into the
provisions made by the Constitution in addition to those which have been provided by the
legislature. In that context, the leading judgment observes:
In this regard, inclusion of many a facet within the ambit of Article 21 is well
established. In R. Rajagopal v. State of T.N. [(1994) 6 SCC 632] , right to privacy has
been inferred from Article 21. Similarly, in Joginder Kumar v. State of U.P. [(1994) 4
SCC 260 :
1994 SCC (Cri) 1172 : AIR 1994 SC 1349] , 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. State of Madras [AIR 1950 SC 124 : (1950) 51 Cri LJ 1514] , 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 expand the constitutional concepts,
but the context in which the horizon has been expanded has to be borne in mind Ibid, at page 114
(para 64) (2014) 9 SCC 1 PART H 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 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 a number of articles cohesively,
for that will be in the domain of substantive legitimacy.144 (emphasis supplied) 84 In National
Legal Services Authority v Union of India145 (NALSA), a Bench of two judges, while dealing with
the rights of transgenders, adverted to international conventions acceded to by India including the
UDHR and ICCPR. Provisions in these conventions which confer a protection against arbitrary and
unlawful interference with a persons privacy, family and home would, it was held, be read in a
manner which harmonizes the fundamental rights contained in Articles 14, 15, 19 and 21 with Indias
international obligations. Justice K S Radhakrishnan held that:
Gender identity, therefore, lies at the core of one's personal identity, gender
expression and presentation and, therefore, it will have to be protected under Article
19(1)(a) of the Constitution of India. A transgender's personality could be expressed
by the transgender's behaviour and presentation. State cannot prohibit, restrict or
interfere with a transgender's expression of such personality, which reflects that
inherent personality. Often the State and its authorities either due to ignorance or
otherwise fail to digest the innate character and identity of such persons. We,
therefore, hold that values of privacy, self-identity, autonomy and personal integrity
are fundamental rights guaranteed to members of the transgender community under
Article 19(1)(a) of the Constitution of Ibid, at pages 47-48 (paras 69-70) (2014) 5 SCC
438 PART H India and the State is bound to protect and recognise those rights.146
Explaining the ambit of Article 21, the Court noted:
Article 21 is the heart and soul of the Indian Constitution, which speaks of the rights
to life and personal liberty. Right to life is one of the basic fundamental rights and not
even the State has the authority to violate or take away that right. Article 21 takes all
those aspects of life which go to make a person's life meaningful. Article 21 protects
the dignity of human life, one's personal autonomy, one's right to privacy, etc. Right
to dignity has been recognised to be an essential part of the right to life and accrues
to all persons on account of being humans. In Francis Coralie Mullin v. UT of
Delhi[(1981) 1 SCC 608 : 1981 SCC (Cri) 212] (SCC pp. 618-19, paras 7 and 8), this
Court held that the right to dignity forms an essential part of our constitutional
culture which seeks to ensure the full development and evolution of persons and
includes expressing oneself in diverse forms, freely moving about and mixing and
comingling with fellow human beings147 Article 21, as already indicated, guarantees
the protection of personal autonomy of an individual. In Anuj Garg v. Hotel Assn. of
India [(2008) 3 SCC 1] (SCC p. 15, paras 34-35), this Court held that personal
autonomy includes both the negative right of not to be subject to interference by
others and the positive right of individuals to make decisions about their life, to
express themselves and to choose which activities to take part in. Self-determination
of gender is an integral part of personal autonomy and self-expression and falls

within the realm of personal liberty guaranteed under Article 21 of the Constitution of
India.148 Dr Justice A K Sikri wrote a lucid concurring judgment.
Ibid, at page 490 (para 72) Ibid, at page 490 (para 73) Ibid, at page 491 (para 75)
PART H NALSA indicates the rationale for grounding of a right to privacy in the
protection of gender identity within Article 15. The intersection of Article 15 with
Article 21 locates a constitutional right to privacy as an expression of individual
autonomy, dignity and identity. NALSA indicates that the right to privacy does not
necessarily have to fall within the ambit of any one provision in the chapter on
fundamental rights. Intersecting rights recognise the right to privacy. Though
primarily, it is in the guarantee of life and personal liberty under Article 21 that a
constitutional right to privacy dwells, it is enriched by the values incorporated in
other rights which are enumerated in Part III of the Constitution.
85 In ABC v The State (NCT of Delhi)149, the Court dealt with the question whether it is imperative
for an unwed mother to specifically notify the putative father of the child of her petition for
appointment as guardian of her child. It was stated by the mother of the child that she does not want
the future of her child to be marred by any controversy regarding his paternity, which would
indubitably result should the father refuse to acknowledge the child as his own. It was her
contention that her own fundamental right to privacy will be violated if she is compelled to disclose
the name and particulars of the father of her child. Looking into the interest of the child, the Bench
directed that if a single parent/unwed mother applies for the issuance of a Birth Certificate for a
child born from her womb, the Authorities concerned may only require (2015) 10 SCC 1 PART H her
to furnish an affidavit to this effect, and must thereupon issue the Birth Certificate, unless there is a
Court direction to the contrary150. 86 While considering the constitutional validity of the
Constitution (Ninety-Ninth Amendment) Act, 2014 which enunciated an institutional process for
the appointment of judges, the concurring judgment of Justice Madan B Lokur in Supreme Court
Advocates on Record Association v Union of India151 dealt with privacy issues involved if
disclosures were made about a candidate under consideration for appointment as a Judge of the
Supreme Court or High Court. Dealing with the right to know of the general public on the one hand
and the right to privacy on the other hand, Justice Lokur noted that the latter is an implicit
fundamental right that all people enjoy. Justice Lokur observed thus:
The balance between transparency and confidentiality is very delicate and if some
sensitive information about a particular person is made public, it can have a
far-reaching impact on his/her reputation and dignity. The 99th Constitution
Amendment Act and the NJAC Act have not taken note of the privacy concerns of an
individual. This is important because it was submitted by the learned Attorney
General that the proceedings of NJAC will be completely transparent and any one can
have access to information that is available with NJAC. This is a rather sweeping
generalization which obviously does not take into account the privacy of a person
who has been recommended for appointment, particularly as a Judge of the High
Court or in the first instance as a Judge of the Supreme Court. The right to know is
not a fundamental right but at best it is an implicit fundamental right and it is hedged

in with the implicit fundamental right to privacy that all people enjoy. The balance
between the two implied fundamental rights is difficult to maintain, Ibid, at page 18
(para 28) (2016) 5 SCC 1 PART H but the 99th Constitution Amendment Act and the
NJAC Act do not even attempt to consider, let alone achieve that balance.152
(emphasis supplied) 87 A comprehensive analysis of precedent has been necessary
because it indicates the manner in which the debate on the existence of a
constitutional right to privacy has progressed. The content of the constitutional right
to privacy and its limitations have proceeded on a case to case basis, each precedent
seeking to build upon and follow the previous formulations. The doctrinal foundation
essentially rests upon the trilogy of M P Sharma Kharak Singh Gobind upon which
subsequent decisions including those in Rajagopal, PUCL, Canara Bank, Selvi and
NALSA have contributed. Reconsideration of the doctrinal basis cannot be complete
without evaluating what the trilogy of cases has decided.
88 M P Sharma dealt with a challenge to a search on the ground that the statutory provision which
authorized it, violated the guarantee against self-incrimination in Article 20(3). In the absence of a
specific provision like the Fourth Amendment to the US Constitution in the Indian Constitution, the
Court answered the challenge by its ruling that an individual who is subject to a search during the
course of which material is seized does not make a voluntary testimonial statement of the nature
that would attract Article 20(3). The Court distinguished a compulsory search from a voluntary
statement of disclosure in pursuance of a notice issued by an authority to produce Ibid, at page 676
(para 953) PART H documents. It was the former category that was held to be involved in a
compulsive search, which the Court held would not attract the guarantee against self- incrimination.
The judgment, however, proceeded further to hold that in the absence of the right to privacy having
been enumerated in the Constitution, a provision like the Fourth Amendment to the US
Constitution could not be read into our own. The observation in regard to the absence of the right to
privacy in our Constitution was strictly speaking, not necessary for the decision of the Court in M P
Sharma and the observation itself is no more than a passing observation. Moreover, the decision
does not adjudicate upon whether privacy could be a constitutionally protected right under any
other provision such as Article 21 or under Article 19. 89 Kharak Singh does not contain a reference
to M P Sharma. The decision of the majority in Kharak Singh is essentially divided into two parts;
the first dealing with the validity of a regulation for nocturnal domiciliary visits (which was struck
down) and the second dealing with the rest of the regulation (which was upheld). The decision on
the first part, which dealt with Regulation 236(b) conveys an inescapable impression that the
regulation invaded the sanctity of the home and was a violation of ordered liberty. Though the
reasoning of the Court does not use the expression privacy, it alludes to the decision of the US
Supreme Court in Wolf v Colorado, which deals with privacy. Besides, the portion extracted in the
judgment has a reference to privacy specifically at two places. While holding domiciliary visits at
night to be invalid, the Court drew sustenance from the right to life under Article 21 which means
PART H something more than a mere animal existence. The right under Article 21 includes the
enjoyment of those faculties which render the right meaningful. Hence, the first part of the decision
in Kharak Singh represents an amalgam of life, personal liberty and privacy. It protects interests
which are grounded in privacy under the rubric of liberty. The difficulty in construing the decision
arises because in the second part of its decision, the majority upheld the rest of the regulation and

observed (while doing so) that there is an absence of a protected right to privacy under the
Constitution. These observations in the second part are at variance with those dealing with the first.
The view about the absence of a right to privacy is an isolated observation which cannot coexist with
the essential determination rendered on the first aspect of the regulation. Subsequent Benches of
this Court in the last five decades and more, have attempted to make coherent doctrine out of the
uneasy coexistence between the first and the second parts of the decision in Kharak Singh. Several of
them rely on the protection of interests grounded in privacy in the first part, under the conceptual
foundation of ordered liberty.
90 Gobind proceeded on the basis of an assumption and explains what according to the Court would
be the content of the right to privacy if it is held to be a constitutional right. Gobind underlines that
the right would be intrinsic to ordered liberty and would cover intimate matters such as family,
marriage and procreation. Gobind, while recognizing that the right would not be absolute and would
be subject to the regulatory power of the State, conditioned the latter on the existence of a
compelling state PART H interest. The decision also brings in the requirement of a narrow tailoring
of the regulation to meet the needs of a compelling interest. The Bench which decided Gobind
adverted to the decision in Kharak Singh (though not M P Sharma). Be that as it may, Gobind has
proceeded on the basis of an assumption that the right to privacy is a constitutionally protected right
in India. Subsequent decisions of this Court have treated the formulation of a right to privacy as one
that emerges out of Kharak Singh or Gobind (or both). Evidently, it is the first part of the decision in
Kharak Singh which is construed as having recognized a constitutional entitlement to privacy
without reconciling the second part which contains a specific observation on the absence of a
protected constitutional right to privacy in the Constitution. Succeeding Benches of smaller strength
were not obviously in a position to determine the correctness of the M P Sharma and Kharak Singh
formulations. They had to weave a jurisprudence of privacy as new challenges emerged from a
variety of sources: wiretapping, narco-analysis, gender based identity, medical information,
informational autonomy and other manifestations of privacy. As far as the decisions following upon
Gobind are concerned, it does emerge that the assumptions which find specific mention in several
parts of the decision were perhaps not adequately placed in perspective. Gobind has been construed
by subsequent Benches as affirming the right to privacy.
91 The right to privacy has been traced in the decisions which have been rendered over more than
four decades to the guarantee of life and personal liberty in Article 21 PART H and the freedoms set
out in Article 19. In addition, Indias commitment to a world order founded on respect for human
rights has been noticed along with the specific articles of the UDHR and the ICCPR which embody
the right to privacy. 153 In the view of this Court, international law has to be construed as a part of
domestic law in the absence of legislation to the contrary and, perhaps more significantly, the
meaning of constitutional guarantees must be illuminated by the content of international
conventions to which India is a party. Consequently, as new cases brought new issues and problems
before the Court, the content of the right to privacy has found elaboration in these diverse contexts.
These would include telephone tapping (PUCL), prior restraints on publication of material on a
death row convict (Rajagopal), inspection and search of confidential documents involving the
banker - customer relationship (Canara Bank), disclosure of HIV status (Mr X v Hospital Z), food
preferences and animal slaughter (Hinsa Virodhak Sangh), medical termination of pregnancy

(Suchita Srivastava), scientific tests in criminal investigation (Selvi), disclosure of bank accounts
held overseas (Ram Jethmalani) and the right of transgenders (NALSA). Early cases dealt with
police regulations authorising intrusions on liberty, such as surveillance. As Indian society has
evolved, the assertion of the right to privacy has been considered by this Court in varying contexts
replicating the choices and autonomy of the individual citizen. See Rishika Taneja and Sidhant
Kumar, Privacy Law: Principles, Injunctions and Compensation, Eastern Book Company (2014), for
a comprehensive account on the right to privacy and privacy laws in India. PART I 92 The
deficiency, however, is in regard to a doctrinal formulation of the basis on which it can be
determined as to whether the right to privacy is constitutionally protected. M P Sharma need not
have answered the question; Kharak Singh dealt with it in a somewhat inconsistent formulation
while Gobind rested on assumption. M P Sharma being a decision of eight judges, this Bench has
been called upon to decide on the objection of the Union of India to the existence of such a right in
the first place.
I The Indian Constitution
Preamble
93 The Preamble to the Constitution postulates that the people of India have
resolved to constitute India into a Republic which (among other things) is Sovereign and
Democratic and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the
dignity of the individual and the unity of the Nation; 94 In Sajjan Singh v State of Rajasthan154,
Justice Mudholkar alluded to the fact that the Preamble to our Constitution is not of the common
run as is the Preamble in a legislative enactment but was marked both by a stamp of deep
deliberation and (1965) 1 SCR 933 PART I precision. This was suggestive, in the words of the Court,
of the special significance attached to the Preamble by the framers of the Constitution. 95 In
Kesavananda Bharati v State of Kerala155 (Kesavananda Bharati), Chief Justice Sikri noticed that
the Preamble is a part of the Constitution. The Preamble emphasises the need to secure to all
citizens justice, liberty, equality and fraternity. Together they constitute the founding faith or the
blueprint of values embodied with a sense of permanence in the constitutional document. The
Preamble speaks of securing liberty of thought, expression, belief, faith and worship. Fraternity is to
be promoted to assure the dignity of the individual. The individual lies at the core of constitutional
focus and the ideals of justice, liberty, equality and fraternity animate the vision of securing a
dignified existence to the individual. The Preamble envisions a social ordering in which fundamental
constitutional values are regarded as indispensable to the pursuit of happiness. Such fundamental
values have also found reflection in the foundational document of totalitarian regimes in other parts
of the world. What distinguishes India is the adoption of a democratic way of life, founded on the
rule of law. Democracy accepts differences of perception, acknowledges divergences in ways of life,
and respects dissent.
(1973) 4 SCC 225 PART I Jurisprudence on dignity 96 Over the last four decades, our constitutional
jurisprudence has recognised the inseparable relationship between protection of life and liberty with
dignity. Dignity as a constitutional value finds expression in the Preamble. The constitutional vision
seeks the realisation of justice (social, economic and political); liberty (of thought, expression, belief,
faith and worship); equality (as a guarantee against arbitrary treatment of individuals) and
fraternity (which assures a life of dignity to every individual). These constitutional precepts exist in
unity to facilitate a humane and compassionate society. The individual is the focal point of the
Constitution because it is in the realisation of individual rights that the collective well being of the
community is determined. Human dignity is an integral part of the Constitution. Reflections of
dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article
19) and in the right to life and personal liberty (Article 21). 97 In Prem Shankar Shukla v Delhi
Administration156, which arose from the handcuffing of the prisoners, Justice Krishna Iyer,
speaking for a three-judge Bench of this Court held:
the guarantee of human dignity, which forms part of our constitutional culture, and
the positive provisions of Articles 14, 19 and 21 spring into action when we realise
that to manacle man is more than to mortify him; it is to dehumanize him and,
therefore, to (1980) 3 SCC 526 PART I violate his very personhood, too often using
the mask of 'dangerousness' and security157 The Preamble sets the humane tone and
temper of the Founding Document and highlights Justice, Equality and the dignity of
the individual. 158 98 A Bench of two judges in Francis Coralie Mullin v Union
Territory of Delhi159 (Francis Coralie) while construing the entitlement of a detenue
under the Conservation of Foreign Exchange and Prevention of Smuggling Activities
(COFEPOSA) Act, 1974 to have an interview with a lawyer and the members of his
family held that:
The fundamental right to life which is the most precious human right and which
forms the ark of all other rights must therefore be interpreted in a broad and
expansive spirit so as to invest it with significance and vitality which may endure for
years to come and enhance the dignity of the individual and the worth of the human
person160 the right to life enshrined in Article 21 cannot be restricted to mere animal
existence. It means something much more than just physical survival.161 We think
that the right to life includes the right to live with human dignity and all that goes
along with it, namely, the bare necessaries of life such as adequate nutrition, clothing
and shelter and facilities for reading, writing and expressing one-self in diverse
forms, freely moving about and mixing and commingling with fellow human
beingsEvery act which offends against or impairs human dignity would constitute
deprivation pro tanto of this right to live and it would have to be in accordance with
reasonable, fair and just procedure Ibid, at pages 529-530 (para 1) Ibid, at page 537
(para 21) (1981) 1 SCC 608 Ibid, at page 618 (para 6) Ibid, at page 618 (para 7) PART

I established by law which stands the test of other fundamental rights162 99 In

Bandhua Mukti Morcha v Union of India163, a Bench of three judges of this Court
while dealing with individuals who were living in bondage observed that:
This right to live with human dignity enshrined in Article 21 derives its life breath
from the Directive Principles of State Policy and particularly Clause (e) and (f) of
Article 39 and Arts. 41 and 42 and at the least, therefore, it must include protection of
the health and strength of the workers, men and women, and of the tender age of
children against abuse, opportunities and facilities for children to develop in a
healthy manner and in conditions of freedom and dignity, educational facilities, just
and humane conditions of work and maternity relief. These are the minimum
requirements which must exist in order to enable a person to live with human
dignity, and nor State - neither the Central Government - has the right to take any
action which will deprive a person of the enjoyment of these basic essentials.164 100
Dealing with an allegation that activists of an organization were arrested and paraded
throughout the town by the police and were beaten up in police custody, this Court in
Khedat Mazdoor Chetna Sangath v State of M P165 held that:
It is, therefore, absolutely essential in the interest of justice, human dignity and
democracy that this Court must intervene; order an investigation determine the
correct facts and take strongest possible action against the respondents who are
responsible for these atrocities166 Ibid, at pages 618-619 (para 8) (1984) 3 SCC 161
Ibid, at page 183 (para 10) (1994) 6 SCC 260 Ibid, at pages 262-263 (para 10) PART I
If dignity or honor vanishes what remains of life. 167 101 Human dignity was
construed in M Nagaraj v Union of India168 by a Constitution Bench of this Court to
be intrinsic to and inseparable from human existence. Dignity, the Court held, is not
something which is conferred and which can be taken away, because it is inalienable:
The rights, liberties and freedoms of the individual are not only to be protected
against the State, they should be facilitated by it It is the duty of the State not only to
protect the human dignity but to facilitate it by taking positive steps in that direction.
No exact definition of human dignity exists. It refers to the intrinsic value of every
human being, which is to be respected. It cannot be taken away. It cannot give. It
simply is. Every human being has dignity by virtue of his existence169 India is
constituted into a sovereign, democratic republic to secure to all its citizens,
fraternity assuring the dignity of the individual and the unity of the nation. The
sovereign, democratic republic exists to promote fraternity and the dignity of the
individual citizen and to secure to the citizens certain rights. This is because the
objectives of the State can be realized only in and through the individuals.
Therefore, rights conferred on citizens and non-citizens are not merely individual or
personal rights. They have a large social and political content, because the objectives
of the Constitution cannot be otherwise realized.170 (emphasis supplied) Ibid, at
pages 271 (para 37) (2006) 8 SCC 212 Ibid, at page 243-244 (para 26) Ibid, at pages

247-248 (para 42) PART I 102 In Maharashtra University of Health Sciences v

Satchikitsa Prasarak Mandal171, this Court held that the dignity of the individual is a
core constitutional concept. In Selvi, this Court recognised that:
we must recognize that a forcible intrusion into a person's mental processes is also an
affront to human dignity and liberty, often with grave and long-lasting consequences
172 103 In Dr Mehmood Nayyar Azam v State of Chhattisgarh173, this Court noted
that when dignity is lost, life goes into oblivion. The same emphasis on dignity finds
expression in the decision in NALSA.
104 The same principle was more recently reiterated in Shabnam v Union of India174
in the following terms:
This right to human dignity has many elements. First and foremost, human dignity is
the dignity of each human being as a human being. Another element, which needs to
be highlighted, in the context of the present case, is that human dignity is infringed if
a persons life, physical or mental welfare is alarmed. It is in this sense torture,
humiliation, forced labour, etc. all infringe on human dignity. It is in this context
many rights of the accused derive from his dignity as a human being.175 (2010) 3
SCC 786 Ibid, at page 376 (para 244) (2012) 8 SCC 1 (2015) 6 SCC 702 Ibid, at page
713 (para 14) PART I 105 The recent decision in Jeeja Ghosh v Union of India176
construed the constitutional protection afforded to human dignity. The Court
observed:
human dignity is a constitutional value and a constitutional goal. What are the
dimensions of constitutional value of human dignity? It is beautifully illustrated by
Aharon Barak177 (former Chief Justice of the Supreme Court of Israel) in the
following manner:
The constitutional value of human dignity has a central normative role. Human
dignity as a constitutional value is the factor that unites the human rights into one
whole. It ensures the normative unity of human rights. This normative unity is
expressed in the three ways: first, the value of human dignity serves as a normative
basis for constitutional rights set out in the constitution; second, it serves as an
interpretative principle for determining the scope of constitutional rights, including
the right to human dignity; third, the value of human dignity has an important role in
determining the proportionality of a statute limiting a constitutional right.178 106
Life is precious in itself. But life is worth living because of the freedoms which enable
each individual to live life as it should be lived. The best decisions on how life should
be lived are entrusted to the individual. They are continuously shaped by the social
milieu in which individuals exist. The duty of the state is to safeguard the ability to
take decisions the autonomy of the individual and not to dictate those decisions.

Life within the meaning of Article 21 is not confined to the integrity of the physical (2016) 7 SCC 761
Aharon Barak, Human Dignity- The Constitutional Value and the Constitutional Right, Cambridge
University Press (2015) Supra Note 176, at page 792 (para 37) PART I body. The right comprehends
ones being in its fullest sense. That which facilitates the fulfilment of life is as much within the
protection of the guarantee of life. 107 To live is to live with dignity. The draftsmen of the
Constitution defined their vision of the society in which constitutional values would be attained by
emphasising, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates
the core of the rights guaranteed to the individual by Part III. Dignity is the core which unites the
fundamental rights because the fundamental rights seek to achieve for each individual the dignity of
existence. Privacy with its attendant values assures dignity to the individual and it is only when life
can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity
and is a core value which the protection of life and liberty is intended to achieve. Fundamental
Rights cases 108 In Golak Nath v State of Punjab179, there was a challenge to the Punjab Security of
Land Tenures Act, 1953 and to the Mysore Land Reforms Act (as amended) upon their inclusion in
the Ninth Schedule to the Constitution. Chief Justice Subba Rao dwelt on the rule of law and its
purpose in ensuring that every authority constituted by the Constitution is subject to it and
functions within its (1967) 2 SCR 762 PART I parameters. One of the purposes of constraining
governmental power was to shield the fundamental freedoms against legislative majorities. This
thought is reflected in the following extract from the judgment of Chief Justice Subba Rao:
But, having regard to the past history of our country, it could not implicitly believe
the representatives of the people, for uncontrolled and unrestricted power might lead
to an authoritarian State. It, therefore, preserves the natural rights against the State
encroachment and constitutes the higher judiciary of the State as the sentinel of the
said rights and the balancing wheel between the rights, subject to social control. In
short, the fundamental rights, subject to social control, have been incorporated in the
rule of law180 (emphasis supplied) The learned Judge emphasised the position of the
fundamental rights thus:
They are the rights of the people preserved by our Constitution.
Fundamental Rights are the modern name for what have been traditionally known as
natural rights. As one author puts: they are moral rights which every human being
everywhere all times ought to have simply because of the fact that in
contradistinction with other things is rational and moral. They are the primordial
rights necessary for the development of human personality. They are the rights which
enable a man to chalk out of his own life in the manner he likes best181 (emphasis
supplied) The fundamental rights, in other words, are primordial rights which have
traditionally been regarded as natural rights. In that character these rights are
inseparable from human existence. They have been preserved by the Constitution,
this being a recognition of their existence even prior to the constitutional document.
Ibid, at page 788 Ibid, at page 789 PART I 109 In Kesavananda Bharati, a Bench of 13 judges
considered the nature of the amending power conferred by Article 368 and whether the exercise of

the amending power was subject to limitations in its curtailment of the fundamental freedoms. Chief
Justice Sikri held that the fundamental rights are inalienable. In his view, the Universal Declaration
of Human Rights had to be utilised to interpret the Constitution having regard to the mandate of
Article 51. India, having acceded to the Universal Declaration, Sikri, C.J. held that the treatment of
rights as inalienable must guide the interpretation of the Court. The Chief Justice relied upon a line
of precedent holding these rights to be natural and inalienable and observed:
300. Various decisions of this Court describe fundamental rights as natural rights or
human rights. Some of these decisions are extracted below:
There can be no doubt that the people of India have in exercise of their sovereign will
as expressed in the Preamble, adopted the democratic ideal, which assures to the
citizen the dignity of the individual and other cherished human values as a means to
the full evolution and expression of his personality, and in delegating to the
legislature, the executive and the judiciary their respective powers in the
Constitution, reserved to themselves certain fundamental rights so-called, I
apprehend because they have been retained by the people and made paramount to
the delegated powers, as in the American Model. (Per Patanjali Sastri, J., in Gopalan
v. State of Madras. [AIR 1950 SC 27: 1950 SCR 88, 198-199 : 1950 SCJ 174]
(Emphasis supplied).
(ii) That article (Article 19) enumerates certain freedoms under the caption right to
freedom and deals with those great and basic rights which are recognised and
guaranteed as the natural rights inherent in the status of a citizen of a free country.
(Per Patanjali Sastri, C J., in State of West Bengal v. Subodh Gopal Bose [AIR 1954
SC 92 : 1954 SCR 587, 596 : 1954 SCJ 127] ) (Emphasis supplied).
PART I I have no doubt that the framers of our Constitution drew the same distinction and classed
the natural right or capacity of a citizen to acquire, hold and dispose of property with other natural
rights and freedoms inherent in the status of a free citizen and embodied them in Article 19(1) (ibid,
p. 597) (Emphasis supplied). For all these reasons, I am of opinion that under the scheme of the
Constitution, all those broad and basic freedoms inherent in the status of a citizen as a free man are
embodied and protected from invasion by the State under clause (1) of Article 19 (ibid, p. 600)
(Emphasis supplied).
(iii) The people, however, regard certain rights as paramount, because they embrace liberty of action
to the individual in matters of private life, social intercourse and share in the Government of the
country and other spheres. The people who vested the three limbs of Government with their power
and authority, at the same time kept back these rights of citizens and also some times of
non-citizens, and made them inviolable except under certain conditions. The rights thus kept back
are placed in Part III of the Constitution, which is headed Fundamental Rights, and the conditions
under which these rights can be abridged are also indicated in that Part. (Per Hidayatullah,J. in
Ujjambai v. State of U.P. [(1963) 1 SCR 778, 926-27 : AIR 1962 SC 1621]) (Emphasis supplied).

301. The High Court Allahabad has described them as follows: (iv)man has certain natural or
inalienable rights and that it is the function of the State, in order that human liberty might be
preserved and human personality developed, to give recognition and free play to those rightssuffice
it to say that they represent a trend in the democratic thought of our age. (Motilal v. State of U.P.)
(Emphasis supplied).182 This was the doctrinal basis for holding that the fundamental rights could
not be amended out of existence. Elaborating all those features of the Constitution which formed a
part of the basic structure, Sikri, C J held that:
Supra note 155, at page 367-368 (para 300) PART I The learned Attorney-General said that every
provision of the Constitution is essential; otherwise it would not have been put in the Constitution.
This is true. But this does not place every provision of the Constitution in the same position. The
true position is that every provision of the Constitution can be amended provided in the result the
basic foundation and structure of the Constitution remains the same. The basic structure may be
said to consist of the following features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of Government; (3) Secular character of the Constitution;
(4) Separation of powers between the legislature, the executive and the judiciary;
(5) Federal character of the Constitution.183 Justices Shelat and Grover held that [t]he dignity of
the individual secured by the various freedoms and basic rights in Part III and the mandate to build
a welfare State contained in Part IV184 constituted a part of the basic structure. Justices Hegde and
Mukherjea emphasised that the primary object before the Constituent Assembly were: (i) to
constitute India into a sovereign, democratic republic and (ii) to secure its citizens the rights
mentioned in it. Hence, the learned Judges found it impossible to accept that the Constitution
makers would have made a provision in the Constitution itself for the destruction of the very ideals
which they had embodied in the fundamental rights. Hence, Parliament had no power to abrogate
the fundamental features of the Constitution including among them the essential features of the
individual freedoms secured to the citizens.
On a careful consideration of the various aspects of the case, we are convinced that the Parliament
has no power to abrogate or Ibid, at page 366 (para 292) Ibid, at page 454 (para 582) PART I
emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of
India, the democratic character of our polity, the unity of the country, the essential features of the
individual freedoms secured to the citizens. Nor has the Parliament the power to revoke the
mandate to build a welfare State and egalitarian society. These limitations are only illustrative and
not exhaustive. Despite these limitations, however, there can be no question that the amending
power is a wide power and it reaches every Article and every part of the Constitution. That power
can be used to reshape the Constitution to fulfil the obligation imposed on the State. It can also be
used to reshape the Constitution within the limits mentioned earlier, to make it an effective
instrument for social good. We are unable to agree with the contention that in order to build a
welfare State, it is necessary to destroy some of the human freedoms. That, at any rate is not the

perspective of our Constitution. Our Constitution envisages that the State should without delay
make available to all the citizens of this country the real benefits of those freedoms in a democratic
way. Human freedoms are lost gradually and imperceptibly and their destruction is generally
followed by authoritarian rule. That is what history has taught us. Struggle between liberty and
power is eternal. Vigilance is the price that we like every other democratic society have to pay to
safeguard the democratic values enshrined in our Constitution. Even the best of Governments are
not averse to have more and more power to carry out their plans and programmes which they may
sincerely believe to be in public interest. But a freedom once lost is hardly ever regained except by
revolution. Every encroachment on freedom sets a pattern for further encroachments. Our
constitutional plan is to eradicate poverty without destruction of individual freedoms.185 (emphasis
supplied) Justice Jaganmohan Reddy held that:
Parliament cannot under Article 368 expand its power of amendment so as to confer
on itself the power to repeal, abrogate the Constitution or damage, emasculate or
destroy any of the fundamental rights or essential elements of the basic structure of
the Constitution or of destroying the identity of the Constitution186 Ibid, at pages
486-487 (para 666) Ibid, at page 666 (para 1212) PART I Justice Khanna in the
course of the summation of his conclusions held, as regards the power of
amendment, that:
The power of amendment under Article 368 does not include the power to abrogate
the Constitution nor does it include the power to alter the basic structure or
framework of the Constitution. Subject to the retention of the basic structure or
framework of the Constitution, the power of amendment is plenary and includes
within itself the power to amend the various articles of the Constitution, including
those relating to fundamental rights as well as those which may be said to relate to
essential features. No part of a fundamental right can claim immunity from
amendatory process by being described as the essence, or core of that right. The
power of amendment would also include within itself the power to add, alter or repeal
the various articles.187 Significantly, even though Justice Mathew was in the
minority, the learned Judge in the course of his decision observed the importance of
human dignity:
The social nature of man, the generic traits of his physical and mental constitution,
his sentiments of justice and the morals within, his instinct for individual and
collective preservations, his desire for happiness, his sense of human dignity, his
consciousness of mans station and purpose in life, all these are not products of fancy
but objective factors in the realm of existence188 110 In Indira Nehru Gandhi v Raj
Narain189, Justice Khanna clarified that his view in Kesavananda Bharati is that
Parliament in the exercise of its power to amend the Constitution cannot destroy or
abrogate the basic structure of the Constitution. No distinction was made in regard to
the scope of the amending power relating to the Ibid, at page 824 (para 1537(vii))
Ibid, at pages 866-867 (para 1676) (1975) 1 Suppl. SCC 1 PART I provisions of the
fundamental rights and in respect of matters other than the fundamental rights:

The limitation inherent in the word amendment according to which it is not

permissible by amendment of the Constitution to change the basic structure of the
Constitution was to operate equally on articles pertaining to fundamental rights as on
other articles not pertaining to those rights190 Justice Khanna noted that the right to
property was held by him not to be a part of the basic structure. Justice Khanna
observed that it would have been unnecessary for him to hold so, if none of the
fundamental rights were to be a part of the basic structure of the Constitution.
111 Chandrachud C J, in the course of his judgment for the Constitution Bench in
Minerva Mills Ltd v Union of India191, traced the history of the evolution of
inalienable rights, founded in inviolable liberties, during the course of the freedom
movement and observed that both Parts III and IV of the Constitution had emerged
as inseparably inter-twined, without a distinction between the negative and positive
obligations of the state.
The Constitution, in this view, is founded on the bedrock of the balance between Parts III and IV
and to give absolute primacy to one over the other would be to disturb the harmony of the
Constitution. In the view of the Chief Justice:
Ibid, at page 115 (para 251) (1980) 3 SCC 625 PART I The edifice of our Constitution is built upon
the concepts crystallised in the Preamble. We resolved to constitute ourselves into a Socialist State
which carried with it the obligation to secure to our people justice social, economic and political.
We, therefore, put Part IV into our Constitution containing directive principles of State policy which
specify the socialistic goal to be achieved. We promised to our people a democratic polity which
carries with it the obligation of securing to the people liberty of thought, expression, belief, faith and
worship; equality of status and of opportunity and the assurance that the dignity of the individual
will at all costs be preserved. We, therefore, put Part III in our Constitution conferring those rights
on the people192 Articles 14 and 19, the Court held, confer rights essential for the proper
functioning of a democracy and are universally so regarded by the Universal Declaration of Human
Rights. Withdrawing the protection of Articles 14 and 19 was plainly impermissible and the
immunity granted by the 42nd Amendment to the Constitution to a law against the challenge that it
violates Articles 14 or 19 (if the law is for giving effect to the Directive Principles) amounted to a
violation of the basic structure. No waiver of Fundamental Rights 112 In Behram Khurshed Pesikaka
v The State of Bombay193, Chief Justice Mahajan, speaking for the Constitution Bench, noted the
link between the constitutional vision contained in the Preamble and the position of the
fundamental rights as a means to facilitate its fulfilment. Though Part III embodies fundamental
rights, this was construed to be part of the wider notion of securing the vision of justice Ibid, at page
654 (para 57) (1955) 1 SCR 613 PART I of the founding fathers and, as a matter of doctrine, the
rights guaranteed were held not to be capable of being waived. Mahajan, CJ, observed:
We think that the rights described as fundamental rights are a necessary consequence
of the declaration in the Preamble that the people of India have solemnly resolved to
constitute India into a sovereign democratic republic and to secure to all its citizens
justice, social, economic and political; liberty of thought, expression, belief, faith and

worship; equality of status and of opportunity.
These fundamental rights have not been put in the Constitution merely for individual benefit,
though ultimately they come into operation in considering individual rights. They have been put
there as a matter of public policy and the doctrine of waiver can have no application to provisions of
law which have been enacted as a matter of constitutional policy.194 Privacy as intrinsic to freedom
and liberty 113 The submission that recognising the right to privacy is an exercise which would
require a constitutional amendment and cannot be a matter of judicial interpretation is not an
acceptable doctrinal position. The argument assumes that the right to privacy is independent of the
liberties guaranteed by Part III of the Constitution. There lies the error. The right to privacy is an
element of human dignity. The sanctity of privacy lies in its functional relationship with dignity.
Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the
human personality from unwanted intrusion. Privacy recognises the autonomy of the individual and
the right of every person to make essential choices which affect the course of life. In doing so privacy
recognises that living a life of dignity is essential for a human being to fulfil the Ibid, at pages
653-654 PART I liberties and freedoms which are the cornerstone of the Constitution. To recognise
the value of privacy as a constitutional entitlement and interest is not to fashion a new fundamental
right by a process of amendment through judicial fiat. Neither are the judges nor is the process of
judicial review entrusted with the constitutional responsibility to amend the Constitution. But
judicial review certainly has the task before it of determining the nature and extent of the freedoms
available to each person under the fabric of those constitutional guarantees which are protected.
Courts have traditionally discharged that function and in the context of Article 21 itself, as we have
already noted, a panoply of protections governing different facets of a dignified existence has been
held to fall within the protection of Article 21. 114 In Olga Tellis v Bombay Municipal
Corporation195, Chandrachud C J, while explaining the ambit of Article 21 found a rationale for
protecting the right to livelihood as an incident of the right to life. For, as the Court held, deprivation
of livelihood would result in the abrogation of the right to life:
148. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It
does not mean merely that life cannot be extinguished or taken away as, for example,
by the imposition and execution of the death sentence, except according to procedure
established by law. That is but one aspect of the right to life. An equally important
facet of that right is the right to livelihood because, no person can live without the
means of living, that is, the means of livelihood. If the right to livelihood is not
treated as a part of the constitutional right to life, the easiest way of depriving a
person of his right to life would be to deprive him of his means of livelihood to the
point of abrogation. Such deprivation would not only denude the (1985) 3 SCC 545
PART I life of its effective content and meaningfulness but it would make life
impossible to live. And yet, such deprivation would not have to be in accordance with
the procedure established by law, if the right to livelihood is not regarded as a part of
the right to life. That, which alone makes it possible to live, leave aside what makes
life liveable, must be deemed to be an integral component of the right to life.

Deprive a person of his right to livelihood and you shall have deprived him of his life196 115 In
Unnikrishnan v State of Andhra Pradesh197, Justice Jeevan Reddy, speaking for this Court, held
that though the right to education (as the Constitution then stood) was not stated expressly as a
fundamental right in Part III, that would not militate against its being protected under the rubric of
life under Article 21. These decisions have been ultimately guided by the object of a Constitutional
Court which must be to expand the boundaries of fundamental human freedoms rather than to
attenuate their content through a constricted judicial interpretation In Maneka, it has been stated
that:
The attempt of the court should be to expand the reach and ambit of the fundamental
rights rather than attenuate their meaning and content by process of judicial
construction personal liberty in Article 21 is of the widest amplitude.198 116 Now,
would this Court in interpreting the Constitution freeze the content of constitutional
guarantees and provisions to what the founding fathers perceived? The Constitution
was drafted and adopted in a historical context. The vision of the founding fathers
was enriched by the histories of suffering of those who suffered Ibid, at page 572
(para 32) (1993) 1 SCC 645 Maneka (Supra note 5), at page 280 (para 5) PART I
oppression and a violation of dignity both here and elsewhere. Yet, it would be
difficult to dispute that many of the problems which contemporary societies face
would not have been present to the minds of the most perspicacious draftsmen. No
generation, including the present, can have a monopoly over solutions or the
confidence in its ability to foresee the future. As society evolves, so must
constitutional doctrine. The institutions which the Constitution has created must
adapt flexibly to meet the challenges in a rapidly growing knowledge economy. Above
all, constitutional interpretation is but a process in achieving justice, liberty and
dignity to every citizen.
117 Undoubtedly, there have been aberrations. In the evolution of the doctrine in India, which places
the dignity of the individual and freedoms and liberties at the forefront, there have been a few
discordant notes. Two of them need attention.
Discordant Notes
(i) ADM Jabalpur
118 In ADM Jabalpur v Shivakant Shukla199 (ADM Jabalpur), the issue before
this Court was whether an order issued by the President under Article 359(1) of the Constitution
suspends the right of every person to move any Court for the enforcement of the right to personal
liberty under Article 21 upon being detained under a law providing for preventive detention. The
submission of the detenues in this Court was (1976) 2 SCC 521 PART I that the suspension of the

remedy to enforce Article 21 does not automatically entail suspension of the right or the rule of law
and that even during an emergency the rule of law could not be suspended. A majority of four judges
of this Court (Justice H R Khanna dissenting) held that:
Liberty is confined and controlled by law, whether common law or statute. It is in the
words of Burke a regulated freedom. It is not an abstract or absolute freedom. The
safeguard of liberty is in the good sense of the people and in the system of
representative and responsible government which has been evolved. If extraordinary
powers are given, they are given because the emergency is extraordinary, and are
limited to the period of the emergency.200 Dealing with the issue as to whether
Article 21 is the sole repository of the right to life, Ray C J, observed that where any
right which existed before the commencement of the Constitution has been
incorporated in Part III, the common law right would not exist under the
Constitution. In a concurring judgment Justice Beg held that while adopting the
Constitution, there was a notional surrender by the people of India of the control over
these rights to a sovereign republic and it is only the Constitution which is supreme
and which can confer rights and powers. There was, in this view, a notional surrender
of individual freedom. Justice Beg held that:
The whole object of guaranteed fundamental rights is to make those basic aspects of
human freedom, embodied in fundamental rights, more secure than others not so
selected. In thus recognising and declaring certain basic aspects of rights as
fundamental by the Constitution of the country, the purpose was to protect them
against undue encroachments upon them by the legislative, or executive, and,
sometimes even judicial (e.g. Article 20) organs of the State.
The encroachment must remain within permissible limits and must Ibid, at page 571
(para 33) PART I take place only in prescribed modes. The intention could never be
to preserve something concurrently in the field of natural law or common law. It was
to exclude all other control or to make the Constitution the sole repository of ultimate
control over those aspects of human freedom which were guaranteed there.201
(emphasis supplied) A similar position was adopted by Justice Chandrachud:
The right to personal liberty has no hallmark and therefore when the right is put in
action it is impossible to identify whether the right is one given by the Constitution or
is one which existed in the pre-Constitution era. If the argument of the respondents is
correct, no action to enforce the right to personal liberty can at all fall within the
mischief of the Presidential Order even if it mentions Articles 19, 20, 21 and 22
because, every preliminary objection by the Government to a petition to enforce the
right to personal liberty can be effectively answered by contending that what is being
enforced is either the natural right to personal liberty or generally, the
pre-Constitution right to personal liberty.

The error of the respondents argument lies in its assumption, and in regard to the
argument of some of the counsel in its major articulate premise, that the qualitative
content of the non-constitutional or pre-constitutional right to personal liberty is
different from the content of the right to personal liberty conferred by Part III of the
Constitution202 (emphasis supplied) In his view:
It therefore does not make any difference whether any right to personal liberty was in
existence prior to the enactment of the Constitution, either by way of a natural right,
statutory right, common law right or a right available under the law of torts.
Whatever may be the source of the right and whatever may be its jurisdiction, the
right in essence and substance is the right to personal liberty. That right having been
included in Part III, its Ibid, at page 604 (para 183) Ibid, at page 664 (para 379)
PART I enforcement will stand suspended if it is mentioned in the Presidential Order
issued under Article 359(1).203 Justice Bhagwati held as follows:
Now, to my mind, it is clear that when this principle of rule of law that the Executive
cannot deprive a person of his liberty except by authority of law, is recognised and
embodied as a fundamental right and enacted as such in Article 21, it is difficult to
comprehend how it could continue to have a distinct and separate existence,
independently and apart from this article in which it has been given constitutional
vesture. I fail to see how it could continue in force under Article 372 when it is
expressly recognised and embodied as a fundamental right in Article 21 and finds a
place in the express provisions of the Constitution. Once this principle is recognised
and incorporated in the Constitution and forms part of it, it could not have any
separate existence apart from the Constitution, unless it were also enacted as a
statutory principle by some positive law of the State204 (emphasis supplied) In his
view, it is the Constitution which is supreme and if it ordains that a person who is
detained otherwise than in accordance with law would not be entitled to enforce the
right of personal liberty, the Court was duty bound to give effect to it:
it cannot be overlooked that, in the ultimate analysis, the protection of personal

liberty and the supremacy of law which sustains it must be governed by the
Constitution itself. The Constitution is the paramount and supreme law of the land
and if it says that even if a person is detained otherwise than in accordance with the
law. he shall not be entitled to enforce his right of personal liberty, whilst a
Presidential Order under Article 359, clause (1) specifying Article 21 is in force, I have
to give effect to it. Sitting as I do, as a Judge under the Constitution, I cannot ignore
the plain and emphatic command of the Constitution for what I may consider to be
necessary to meet the ends of justice. It is said that law has Ibid, at page 666 (para
383) Ibid, at page 701 (para 459) PART I the feminine capacity to tempt each devotee
to find his own image in her bosom. No one escapes entirely. Some yield blindly,
some with sophistication. Only a few more or less effectively resist. I have always
leaned in favour of upholding personal liberty, for, I believe, it is one of the most

cherished values of mankind. Without it life would not be worth living. It is one of the
pillars of free democratic society. Men have readily laid down their lives at its altar, in
order to secure it, protect it and preserve it. But I do not think it would be right for
me to allow my love of personal liberty to cloud my vision or to persuade me to place
on the relevant provision of the Constitution a construction which its language
cannot reasonably bear. I cannot assume to myself the role of Plato's Philosopher
King in order to render what I consider ideal justice between the citizen and the
State. After all, the Constitution is the law of all laws and there alone judicial
conscience must find its ultimate support and its final resting place. It is in this spirit
of humility and obedience to the Constitution and driven by judicial compulsion, that
I have come to the conclusion that the Presidential Order dated June 27, 1975 bars
maintainability of a writ petition for habeas corpus where an order of detention is
challenged on the ground that it is mala fide or not under the Act or not in
compliance with it.205 In his dissenting opinion, Justice Khanna emphatically held
that the suspension of the right to move any Court for the enforcement of the right
under Article 21, upon a proclamation of emergency, would not affect the
enforcement of the basic right to life and liberty. The Constitution was not the sole
repository of the right to life and liberty:
I am of the opinion that Article 21 cannot be considered to be the sole repository of

the right to life and personal liberty. The right to life and personal liberty is the most
precious right of human beings in civilised societies governed by the rule of law.
Many modern Constitutions incorporate certain fundamental rights, including the
one relating to personal freedom. According to Blackstone, the absolute rights of
Englishmen were the rights of personal security, personal liberty and private
property. The American Declaration of Independence (1776) states that all men are
created equal, and Ibid, at pages 723-724 (para 487) PART I among their inalienable
rights are life, liberty, and the pursuit of happiness206 Even in the absence of Article
21, it would not have been permissible for the State to deprive a person of his life and
liberty without the authority of the law:
Even in the absence of Article 21 in the Constitution, the State has got no power to
deprive a person of his life or liberty without the authority of law. This is the essential
postulate and basic assumption of the rule of law and not of men in all civilised
nations.
Without such sanctity of life and liberty, the distinction between a lawless society and
one governed by laws would cease to have any meaning. The principle that no one
shall be deprived of his life or liberty without the authority of law is rooted in the
consideration that life and liberty are priceless possessions which cannot be made the
plaything of individual whim and caprice and that any act which has the effect of
tampering with life and liberty must receive sustenance from and sanction of the laws
of the land. Article 21 incorporates an essential aspect of that principle and makes it
part of the fundamental rights guaranteed in Part III of the Constitution. It does not,

however, follow from the above that if Article 21 had not been drafted and inserted in
Part III, in that event it would have been permissible for the State to deprive a person
of his life or liberty without the authority of law. No case has been cited before us to
show that before the coming into force of the Constitution or in countries under rule
of law where there is no provision corresponding to Article 21, a claim was ever
sustained by the courts that the State can deprive a person of his life or liberty
without the authority of law207 The remedy for the enforcement of the right to life or
liberty would not stand suspended even if the right to enforce Article 21 is suspended:
Recognition as fundamental right of one aspect of the pre-
constitutional right cannot have the effect of making things less favourable so far as
the sanctity of life and personal liberty is Ibid, at page 747 (para 525) Ibid, at pages
749-750 (para 530) PART I concerned compared to the position if an aspect of such
right had not been recognised as fundamental right because of the vulnerability of
fundamental rights accruing from Article 359208 Justice Khanna held that while
wide powers to order preventive detention are vested in the State, there is no
antithesis between the power to detain and power of the Court to examine the legality
of such a detention:
The impact upon the individual of the massive and comprehensive powers of
preventive detention with which the administrative officers are armed has to be
cushioned with legal safeguards against arbitrary deprivation of personal liberty if
the premises of the rule of law is not to lose its content and become meaningless209
119 The judgments rendered by all the four judges constituting the majority in ADM
Jabalpur are seriously flawed. Life and personal liberty are inalienable to human
existence. These rights are, as recognised in Kesavananda Bharati, primordial rights.
They constitute rights under natural law. The human element in the life of the
individual is integrally founded on the sanctity of life. Dignity is associated with
liberty and freedom. No civilized state can contemplate an encroachment upon life
and personal liberty without the authority of law. Neither life nor liberty are bounties
conferred by the state nor does the Constitution create these rights. The right to life
has existed even before the advent of the Constitution. In recognising the right, the
Constitution does not become the sole repository of the right. It would be
preposterous to suggest that a democratic Constitution without a Bill of Rights would
leave individuals governed by the state without either the existence of the right to live
Ibid, at page 751 (para 531) Ibid, page 767 (para 574) PART I or the means of
enforcement of the right. The right to life being inalienable to each individual, it
existed prior to the Constitution and continued in force under Article 372 of the
Constitution. Justice Khanna was clearly right in holding that the recognition of the
right to life and personal liberty under the Constitution does not denude the
existence of that right, apart from it nor can there be a fatuous assumption that in
adopting the Constitution the people of India surrendered the most precious aspect
of the human persona, namely, life, liberty and freedom to the state on whose mercy

these rights would depend. Such a construct is contrary to the basic foundation of the
rule of law which imposes restraints upon the powers vested in the modern state
when it deals with the liberties of the individual. The power of the Court to issue a
Writ of Habeas Corpus is a precious and undeniable feature of the rule of law.
120 A constitutional democracy can survive when citizens have an undiluted

assurance that the rule of law will protect their rights and liberties against any
invasion by the state and that judicial remedies would be available to ask searching
questions and expect answers when a citizen has been deprived of these, most
precious rights.
The view taken by Justice Khanna must be accepted, and accepted in reverence for the strength of
its thoughts and the courage of its convictions. 121 When histories of nations are written and
critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to
the archives, reflective PART I of what was, but should never have been. The decision of the US
Supreme Court in Buck v Bell210 ranks amongst the latter. It was a decision in which Justice Oliver
Wendell Holmes Jr. accepted the forcible sterilization by tubular ligation of Carrie Bucks as part of a
programme of state sponsored eugenic sterilization. Justice Holmes, while upholding the
programme opined that: three generations of imbeciles is enough211. In the same vein was the
decision of the US Supreme Court in Korematsu v United States212, upholding the imprisonment of
a citizen in a concentration camp solely because of his Japanese ancestry. ADM Jabalpur must be
and is accordingly overruled. We also overrule the decision in Union of India v Bhanudas Krishna
Gawde213, which followed ADM Jabalpur. 122 In I R Coelho v State of Tamil Nadu214, this Court
took the view that ADM Jabalpur has been impliedly overruled by various subsequent decisions:
During Emergency, the fundamental rights were read even more restrictively as
interpreted by the majority in ADM, Jabalpur v. Shivakant Shukla [(1976) 2 SCC
521]. The decision in ADM, Jabalpur [(1976) 2 SCC 521] about the restrictive reading
of right to life and liberty stood impliedly overruled by various subsequent
decisions.215 274 US 200 (1927) A moving account of the times and the position is to
be found in Siddhartha Mukherjee, The Gene: An Intimate History, Penguin Books
Ltd. (2016), pages 78-85.
323 US 214 (1944) (1977) 1 SCC 834 (2007) 2 SCC 1 Ibid, at page 76 (para 29) PART I We now
expressly do so.
123 As a result of the Forty-Fourth Amendment to the Constitution, Article 359 has been amended
to provide that during the operation of a proclamation of emergency, the power of the President to
declare a suspension of the right to move a Court for the enforcement of the fundamental rights
contained in Part III shall not extend to Articles 20 and 21.
(ii) Suresh Koushal

124 Another discordant note which directly bears upon the evolution of the
constitutional jurisprudence on the right to privacy finds reflection in a two judge Bench decision of
this Court in Suresh Kumar Koushal v NAZ foundation216 (Koushal). The proceedings before this
Court arose from a judgment217 of the Delhi High Court holding that Section 377 of the Indian
Penal Code, insofar as it criminalises consensual sexual acts of adults in private is violative of
Articles 14, 15 and 21 of the Constitution. The Delhi High Court, however, clarified that Section 377
will continue to govern non-consensual penile, non-vaginal sex and penile non-vaginal sex involving
minors. Among the grounds of challenge was that the statutory provision constituted an
infringement of the rights to dignity and privacy. The Delhi High Court held that:
The sphere of privacy allows persons to develop human relations without interference
from the outside community or from (2014) 1 SCC 1 Naz Foundation v Government
of NCT, 2010 Cri LJ 94 PART I the State. The exercise of autonomy enables an
individual to attain fulfilment, grow in self-esteem, build relationships of his or her
choice and fulfil all legitimate goals that he or she may set. In the Indian
Constitution, the right to live with dignity and the right of privacy both are recognised
as dimensions of Article 21218 Section 377 was held to be a denial of the dignity of an
individual and to criminalise his or her core identity solely on account of sexuality
would violate Article 21. The High Court adverted at length to global trends in the
protection of privacy dignity rights of homosexuals, including decisions emanating
from the US Supreme Court, the South African Constitutional Court and the
European Court of Human Rights. The view of the High Court was that a statutory
provision targeting homosexuals as a class violates Article 14, and amounted to a
hostile discrimination on the grounds of sexual orientation (outlawed by Article 15).
The High Court, however, read down Section 377 in the manner which has been
adverted to above.
125 When the matter travelled to this Court, Justice Singhvi, speaking for the Bench dealt with
several grounds including the one based on privacy dignity. The Court recognised that the right to
privacy which is recognised by Article 12 of the Universal Declaration and Article 17 of ICCPR has
been read into Article 21 through expansive reading of the right to life and liberty. This Court,
however, found fault with the basis of the judgment of the High Court for the following, among
other reasons:
the Division Bench of the High Court overlooked that a miniscule fraction of the
country's population constitutes Ibid, at page 110 (para 48) PART I lesbians, gays,
bisexuals or transgenders and in last more than 150 years less than 200 persons have
been prosecuted (as per the reported orders) for committing offence under Section
377 IPC and this cannot be made sound basis for declaring that section ultra vires the
provisions of Articles 14, 15 and 21 of the Constitution.219 (emphasis supplied) The
privacy and dignity based challenge was repelled with the following observations:

In its anxiety to protect the so-called rights of LGBT persons and to declare that
Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court
has extensively relied upon the judgments of other jurisdictions. Though these
judgments shed considerable light on various aspects of this right and are
informative in relation to the plight of sexual minorities, we feel that they cannot be
applied blindfolded for deciding the constitutionality of the law enacted by the Indian
Legislature.220 (emphasis supplied) 126 Neither of the above reasons can be
regarded as a valid constitutional basis for disregarding a claim based on privacy
under Article 21 of the Constitution. That a miniscule fraction of the countrys
population constitutes lesbians, gays, bisexuals or transgenders (as observed in the
judgment of this Court) is not a sustainable basis to deny the right to privacy. The
purpose of elevating certain rights to the stature of guaranteed fundamental rights is
to insulate their exercise from the disdain of majorities, whether legislative or
popular. The guarantee of constitutional rights does not depend upon their exercise
being favourably regarded by majoritarian opinion.
The test of popular acceptance does not furnish a valid basis to disregard rights which
are conferred with the sanctity of constitutional protection. Discrete and insular
Koushal (Supra note 216), at page 69-70 (para 66) Ibid, at page 78 (para 77) PART I
minorities face grave dangers of discrimination for the simple reason that their views,
beliefs or way of life does not accord with the mainstream. Yet in a democratic
Constitution founded on the rule of law, their rights are as sacred as those conferred
on other citizens to protect their freedoms and liberties. Sexual orientation is an
essential attribute of privacy. Discrimination against an individual on the basis of
sexual orientation is deeply offensive to the dignity and self-worth of the individual.
Equality demands that the sexual orientation of each individual in society must be protected on an
even platform. The right to privacy and the protection of sexual orientation lie at the core of the
fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.
127 The view in Koushal that the High Court had erroneously relied upon international precedents
in its anxiety to protect the so-called rights of LGBT. persons is similarly, in our view, unsustainable.
The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be
so-called rights. The expression so-called seems to suggest the exercise of a liberty in the garb of a
right which is illusory. This is an inappropriate construction of the privacy based claims of the LGBT
population. Their rights are not so-called but are real rights founded on sound constitutional
doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the
essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal
protection demands protection of the identity of every individual without discrimination.
PART I 128 The decision in Koushal presents a de minimis rationale when it asserts that there have
been only two hundred prosecutions for violating Section 377. The de minimis hypothesis is
misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as
opposed to a large number of persons, are subjected to hostile treatment. The reason why such acts

of hostile discrimination are constitutionally impermissible is because of the chilling effect which
they have on the exercise of the fundamental right in the first place. For instance, pre-publication
restraints such as censorship are vulnerable because they discourage people from exercising their
right to free speech because of the fear of a restraint coming into operation. The chilling effect on the
exercise of the right poses a grave danger to the unhindered fulfilment of ones sexual orientation, as
an element of privacy and dignity. The chilling effect is due to the danger of a human being
subjected to social opprobrium or disapproval, as reflected in the punishment of crime. Hence the
Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be
accepted. Consequently, we disagree with the manner in which Koushal has dealt with the privacy
dignity based claims of LGBT persons on this aspect. Since the challenge to Section 377 is pending
consideration before a larger Bench of this Court, we would leave the constitutional validity to be
decided in an appropriate proceeding.
PART J J Indias commitments under International law 129 The recognition of privacy as a
fundamental constitutional value is part of Indias commitment to a global human rights regime.
Article 51 of the Constitution, which forms part of the Directive Principles, requires the State to
endeavour to foster respect for international law and treaty obligations in the dealings of organised
peoples with one another221. Article 12 of the Universal Declaration of Human Rights, recognises
the right to privacy:
Article 12: No one shall be subjected to arbitrary interference with his privacy, family,
home or correspondence, nor to attacks upon his honour and reputation. Everyone
has the right to the protection of the law against such interference or attacks.
Similarly, the International Covenant on Civil and Political Rights was adopted on 16
December 1979 and came into effect on 23 March 1976. India ratified it on 11
December 1977. Article 17 of the ICCPR provides thus:
The obligations imposed by this article require the State to adopt legislative and other
measures to give effect to the prohibition against such interferences and attacks as
well as to the protection of the right. The Protection of Human Rights Act, 1993
which has been enacted by Parliament refers to the ICCPR as a human rights
instrument. Section 2(1)(d) defines human rights:
Article 51(c) of the Indian Constitution PART J human rights means the rights
relating to life, liberty, equality and dignity of the individual guaranteed by the
Constitution or embodied in the International Covenants and enforceable by courts
in India. Section 2(1)(f) defines International Covenants:
International Covenants means the International Covenant on Civil and Political

Rights and the International Covenant on Economic, Social and Cultural rights
adopted by the General Assembly of the United Nations on the 16th December, 1966
[and such other Covenant or Convention adopted by the General Assembly of the
United Nations as the Central Government may, by notification, specify Under
Section 12(f) of the Protection of Human Rights Act, 1993, the National Human

Rights Commission:
is entrusted with the function of studying treaties and other international

instruments on human rights and make recommendations for their effective
implementation. 130 The ICCPR casts an obligation on states to respect, protect and
fulfil its norms.
The duty of a State to respect mandates that it must not violate the right. The duty to protect
mandates that the government must protect it against interference by private parties. The duty to
fulfil postulates that government must take steps towards realisation of a right. While elaborating
the rights under Article 17, general comment 16 specifically stipulates that:
..there is universal recognition of the fundamental importance, and enduring

relevance, of the right to privacy and of the need to ensure that it is safeguarded, in
law and practice. PART J Significantly, while acceding to the ICCPR, India did not
file any reservation or declaration to Article 17. While India filed reservations against
Articles 1, 9 and 13, there was none to Article 17:
Article 1 refers to the right to self-determination. The reservation to Article 1 states

that the Government of the Republic of India declares that the words the right of
self-determination appearing in [this article] apply only to the peoples under foreign
domination and that these words do not apply to sovereign independent States or to a
section of a people or nation-which is the essence of national integrity. The
reservation to Article 9, which refers to the right to liberty and security of person,
detention and compensation payable on wrongful arrest or detention, states that the
government of the Republic of India takes the position that the provisions of the
article shall be so applied as to be in consonance with the provisions of clauses (3) to
(7) of article 22 of the Constitution of India. Further under the Indian Legal System,
there is no enforceable right to compensation for persons claiming to be victims of
unlawful arrest or detention against the State. The reservation to Article 13 which
refers to protections for aliens, states that the Government of the Republic of India
reserves its right to apply its law relating to foreigners. On 30 June 2014, a report was
presented by the Office of the United Nations High Commissioner for Human
Rights.222 The report underscores that:
there is universal recognition of the fundamental importance, and enduring

relevance, of the right to privacy and of the need to ensure that it is safeguarded, in
law and in practice.223 The Right to privacy in the Digital age, Report of the Office of
the United Nations High Commissioner for Human Rights (30 June 2014) Ibid, at
page 5 (para 13) PART J 131 In Bachan Singh v State of Punjab224 (Bachan Singh),
this Court considered in relation to the death penalty, the obligations assumed by
India in international law, following the ratification of the ICCPR. The Court held
that the requirements of Article 6 of the ICCPR are substantially similar to the
guarantees contained in Articles 20 and 21 of the Constitution. The penal law of India

was held to be in accord with its international commitments. In Francis Coralie, this
Court, while explaining the ambit of Article 21, held that:
there is implicit in Article 21 the right to protection against torture or cruel, inhuman
or degrading treatment which is enunciated in Article 5 of the Universal Declaration
of Human Rights and guaranteed by Article 7 of the International Covenant on Civil
and Political Rights225 132 In Vishaka v State of Rajasthan226, this Court observed
that in the absence of domestic law, the Convention on the Elimination of
Discrimination against Women (CEDAW) is applicable. In NALSA, while dealing
with the rights of transgenders, this Court found that the international conventions
were not inconsistent with the fundamental rights guaranteed by the Constitution
and must be recognised and followed.
133 The position in law is well settled. Where there is a contradiction between
international law and a domestic statute, the Court would give effect to the latter. In
(1980) 2 SCC 684 Francis Coralie (Supra note 159), at page 619 (para 8) (1997) 6 SCC
241 PART K the present case, there is no contradiction between the international
obligations which have been assumed by India and the Constitution. The Court will
not readily presume any inconsistency. On the contrary, constitutional provisions
must be read and interpreted in a manner which would enhance their conformity
with the global human rights regime. India is a responsible member of the
international community and the Court must adopt an interpretation which abides by
the international commitments made by the country particularly where its
constitutional and statutory mandates indicate no deviation. In fact, the enactment of
the Human Rights Act by Parliament would indicate a legislative desire to implement
the human rights regime founded on constitutional values and international
conventions acceded to by India.
K Comparative Law
134 This section analyses the evolution of the concept of privacy in other
jurisdictions from a comparative law perspective. The Court is conscious of the limits
of a comparative approach. Each country is governed by its own constitutional and
legal structure. Constitutional structures have an abiding connection with the history,
culture, political doctrine and values which a society considers as its founding
principles. Foreign judgments must hence be read with circumspection ensuring that
the text is not read isolated from its context. The countries which have been dealt
with are:
(i) United Kingdom;

(ii) United States;
(iii) South Africa; and

(iv) Canada.
The narrative will then proceed to examine the decisions of the European Court of
Human Rights, the Court of Justice of the European Union and the Inter-American
Court of Human Rights. These decisions are indicative of the manner in which the
right to privacy has been construed in diverse jurisdictions based on the histories of
the societies they govern and the challenges before them.
(i) U K decisions The first common law case regarding protection of privacy is said to be Semaynes
Case227 (1604). The case related to the entry into a property by the Sheriff of London in order to
execute a valid writ. The case is famous for the words of Sir Edward Coke:
That the house of every one is to him as his castle and fortress, as well for his defence against injury
and violence, as for his repose Then, in the case of Entick v Carrington228 (1765), Enticks house had
been forcibly entered into by agents of the State/King. Lord Camden CJ held that:
By the laws of England, every invasion of private property, be it ever so minute, is a

trespass. No man can set his foot upon my ground without my licence, but he is liable
to an action, though the damage be nothing; which is proved by every declaration in
trespass, where the defendant is called upon to answer for bruising the grass and
even treading upon the soil. Peter Semayne v Richard Gresham, 77 ER 194 (1765) 19
St. Tr. 1029 PART K Privacy jurisprudence developed further in the 19th century. In
1849, in Prince Albert v Strange229 (1849), publication was sought to be restrained
of otherwise unpublished private etchings and lists of works done by Prince Albert
and Queen Victoria. In the High Court of Chancery, Lord Cottenham observed that:
where privacy is the right invaded, postponing the injunction would be equivalent to
denying it altogether. The interposition of this Court in these cases does not depend
upon any legal right, and to be effectual, it must be immediate. However, the
approach adopted by the Court in Prince Albert case took a different turn in the case
of Kaye v Robertson230 (1991). In this case, when the appellant, after an accident,
was recovering from brain surgery in a private hospital room, two journalists posed
as doctors and took photographs of him. The appellant attempted to obtain an order
to restrain publication of the photographs. The Court of Appeal held that:
in English law there is no right to privacy, and accordingly there is no right of action
for breach of a person's privacy The decision in R v Director of Serious Fraud Office,
ex parte Smith 231 (1993) discussed the question of the right to silence. The applicant
(the chairman and managing director of a company) was charged of doing acts with

the intent to defraud its creditors. After having been cautioned, he was asked to
answer questions of the Director of the Serious Fraud Office. The issue was whether
the requirement to (1849) 41 ER 1171 [1991] FSR 62 [1993] AC 1 PART K answer
questions infringed the right to silence. It was held that the powers of the Director of
the Serious Fraud Office, under the Criminal Justice Act 1987, entitled him/her to
compel the applicant to answer questions on pain of commission of a criminal
offence. Lord Mustill, who delivered the leading opinion of the Court, held that:
[It] is a simple reflection of the common view that one person should so far as
possible be entitled to tell another person to mind his own business. All civilised
states recognise this assertion of personal liberty and privacy. Equally, although there
may be pronounced disagreements between states, and between individual citizens
within states, about where the line should be drawn, few would dispute that some
curtailment of the liberty is indispensable to the stability of society; and indeed in the
United Kingdom today our lives are permeated by enforceable duties to provide
information on demand, created by Parliament and tolerated by the majority, albeit
in some cases with reluctance. Lord Mustills statement underlines the approach
taken by the common law to privacy that it recognised privacy as a principle of
general value and that privacy had only been given discrete and specific protection at
common law.232 This approach was diluted in the case of Wainwright v Home
Office233(2004), where a mother and son were subjected to a strip-search when
visiting a prison in 1997, in accordance with existing Prison Rules. The son, who was
mentally impaired and suffered from cerebral palsy, later developed post-traumatic
stress disorder. Claims for damages arising from trespass and trespass to the person
were issued. At the time Lord Neuberger, Privacy in the 21st Century, UK Association
of Jewish Lawyers and Jurists' Lecture (28 November 2012) [2004] 2 AC 406 PART
K of the incident, the Human Rights Act, 1998 (HRA) had not yet come into force.
When the case reached before House of Lords, it was argued that the law of tort
should give a remedy for any kind of distress caused by an infringement of the right
of privacy protected by article 8 of the European Convention for the Protection of
Human Rights.
It was further argued that reliance must be placed upon the judgment of Sedley LJ in
Douglas v Hello! Ltd234 (2001), where it was said that:
"What a concept of privacy does, however, is accord recognition to the fact that the
law has to protect not only those people whose trust has been abused but those who
simply find themselves subjected to an unwanted intrusion into their personal lives.
The law no longer needs to construct an artificial relationship of confidentiality
between intruder and victim: it can recognise privacy itself as a legal principle drawn
from the fundamental value of personal autonomy." (emphasis supplied) However,
Lord Hoffman in Wainwright rejected all the contentions and held that:

I do not understand Sedley LJ to have been advocating the creation of a high-level

principle of invasion of privacy. His observations are in my opinion no more
(although certainly no less) than a plea for the extension and possibly renaming of
the old action for breach of confidence. Lord Hoffman also observed that:
What the courts have so far refused to do is to formulate a general principle of

invasion of privacy There seems to me a great difference between identifying privacy
as a value which underlies the existence of a rule of law (and may point the direction
in which the law should develop) and privacy as a principle of law in itself. The
English common law is familiar with [2001] QB 967 PART K the notion of underlying
values - principles only in the broadest sense - which direct its development Nor is
there anything in the jurisprudence of the European Court of Human Rights which
suggests that the adoption of some high level principle of privacy is necessary to
comply with article 8 of the Convention. The European Court is concerned only with
whether English law provides an adequate remedy in a specific case in which it
considers that there has been an invasion of privacy contrary to article 8(1) and not
justifiable under article 8(2). There has been a transformation in this approach after
the Human Rights Act, 1998 (HRA) came into force. For the first time, privacy was
incorporated as a right under the British law.235 In Campbell v MGN236 (2004), a
well-known model was photographed leaving a rehabilitation clinic, following public
denials that she was a recovering drug addict. The photographs were published in a
publication run by MGN.
She sought damages under the English law through her lawyers to bring a claim for
breach of confidence engaging Section 6 of the Human Rights Act. The House of
Lords by majority decided in her favour. Lord Hope writing for the majority held:
[I]f there is an intrusion in a situation where a person can reasonably expect his
privacy to be respected, that intrusion will be capable of giving rise to liability unless
the intrusion can be justified [A] duty of confidence arises when confidential
information comes to the knowledge of a person where he has notice that the
information is confidential. The UK Human Rights Act incorporates the rights set out
in the European Convention on Human Rights (ECHR) into domestic British law.
The Preamble of the Act states that it gives further effect to rights and freedoms
guaranteed under the ECHR. Under the Act (S. 6), it is unlawful for any public
authority, including a court or tribunal at any level, to act in a manner which is
incompatible with a Convention right. The Convention rights take precedence over
rules of common law or equity, and over most subordinate legislations. The Act,
thereby, protects the right to privacy, which has been provided under Article 8 (1) of
the ECHR. See Ben Emmerson et al. (ed), Human Rights and Criminal Justice, Sweet
& Maxwell (2000). See also Concerns and Ideas about the Developing English Law of
Privacy, Institute of Global Law, available online at
http://www.ucl.ac.uk/laws/global_law/publications/institute/docs/privacy_100804.pdf.

[2004] 2 AC 457.
PART K In holding so, Lord Hope relied upon the following statement of Lord Woolf
in A v B Inc237 (2003):
A duty of confidence will arise whenever a party subject to the duty is in a situation
where he either knows or ought to know that the other person can reasonably expect
his privacy to be protected. Lord Hope also held that the Courts, in order to decide a
case, must carry out a balancing operation, weighing the public interest in
maintaining confidence against a countervailing public interest favouring disclosure.
Baroness Hale wrote a concurring judgment and held that:
The Human Rights 1998 Act does not create any new cause of action between private
persons. But if there is a relevant cause of action applicable, the court as a public
authority must act compatibly with both parties' Convention rights. In a case such as
this, the relevant vehicle will usually be the action for breach of confidence, as Lord
Woolf CJ held in A v B plc [2002] EWCA Civ 337, [2003] QB 195, 202, para 4 :
"[Articles 8 and 10] have provided new parameters within which the court will
decide, in an action for breach of confidence, whether a person is entitled to have his
privacy protected by the court or whether the restriction of freedom of expression
which such protection involves cannot be justified. The court's approach to the issues
which the applications raise has been modified because, under section 6 of the 1998
Act, the court, as a public authority, is required not to 'act in a way which is
incompatible with a Convention right'. The court is able to achieve this by absorbing
the rights which articles 8 and 10 protect into the long-
established action for breach of confidence. This involves giving a new strength and
breadth to the action so that it accommodates the requirements of these articles."
[2003] QB 195 PART K Later, in Douglas v Hello! Ltd238, it was held that:
What the House [in Campbell] was agreed upon was that the knowledge, actual or
imputed, that information is private will normally impose on anyone publishing that
information the duty to justify what, in the absence of justification, will be a wrongful
invasion of privacy. Subsequent cases establish the contribution the HRA has made
in jurisprudence on privacy in the UK. In Associated Newspapers Limited v His Royal
Highness the Prince of Wales239 (2006), an appeal was made against the judgment
in respect of the claim of Prince Charles for breach of confidence and infringement of
copyright.
The case brought about when The Mail on Sunday published extracts of a dispatch by
the Prince of Wales. The Court held that:

The information at issue in this case is private information, public disclosure of

which constituted an interference with Prince Charles Article 8 rights. As heir to the
throne, Prince Charles is an important public figure. In respect of such persons the
public takes an interest in information about them that is relatively trivial. For this
reason public disclosure of such information can be particularly intrusive Prince
Charles has a valid claim based on breach of confidence and interference with his
Article 8 rights. In Murray v Big Pictures (UK) Ltd240 (2008), a photographer had
taken a series of photographs of a writers infant son, which were later published in a
newspaper. The issue was whether there was misuse of private information by taking
photographs. It was held that:
[2006] QB 125 [2006] EWCA Civ 1776 [2008] 3 WLR 1360 PART K [The] question of
whether there is a reasonable expectation of privacy is a broad one, which takes
account of all the circumstances of the case. They include the attributes of the
claimant, the nature of the activity in which the claimant was engaged, the place at
which it was happening, the nature and purpose of the intrusion, the absence of
consent and whether it was known or could be inferred, the effect on the claimant
and the circumstances in which and the purposes for which the information came
into the hands of the publisher [I]t is at least arguable that David had a reasonable
expectation of privacy. The fact that he is a child is in our view of greater significance
than the judge thought. R v The Commissioner of Police of the Metropolis241 (2011)
was a case concerning the extent of the police's power (under guidelines issued by the
Association of Chief Police Officers- the ACPO guidelines) to indefinitely retain
biometric data associated with individuals who are no longer suspected of a criminal
offence. The UK Supreme Court, by a majority held that the police force's policy of
retaining DNA evidence in the absence of 'exceptional circumstances' was unlawful
and a violation of Article 8 of the European Convention on Human Rights. Lord
Dyson, on behalf of the majority, held that:
It is important that, in such an important and sensitive area as the retention of

biometric data by the police, the court reflects its decision by making a formal order
to declare what it considers to be the true legal position. But it is not necessary to go
further. Section 8(1) of the HRA gives the court a wide discretion to grant such relief
or remedy within its powers as it considers just and appropriate.
Since Parliament is already seized of the matter, it is neither just nor appropriate to
make an order requiring a change in the legislative scheme within a specific period
[2011] UKSC 21 PART K .he present ACPO guidelines are unlawful because they are
incompatible with article 8 of the ECHR. I would grant no other relief. In the matter
of an application by JR38 for Judicial Review (Northern Ireland) 242 (2015), the
Appellant was involved in rioting in 2010, when still only 14 years of age.
The police, in order to identify those responsible, and for the sake of deterrence, published CCTV
footage depicting the Appellant in two newspapers. The issue involved was: Whether the publication

of photographs by the police to identify a young person suspected of being involved in riotous
behaviour and attempted criminal damage can ever be a necessary and proportionate interference
with that persons article 8 rights? The majority held that Article 8 was not engaged, as there was no
reasonable expectation of privacy in the case. Lord Toulson (with whom Lord Hodge agreed), while
stating that the conduct of the police did not amount, prima facie, to an interference with the
appellants right to respect for his private life, held that:
The reasonable or legitimate expectation test is an objective test.
It is to be applied broadly, taking account of all the circumstances of the case (as Sir Anthony Clarke
said in Murrays case) and having regard to underlying value or values to be protected. Thus, for
example, the publication of a photograph of a young person acting in a criminal manner for the
purpose of enabling the police to discover his identity may not fall within the scope of the protection
of personal autonomy which is the purpose of article 8, but the publication of the same photograph
for another purpose might. [2015] UKSC 42 PART K Lord Clarke wrote a separate judgment
concurring with Lord Toulson and held that:
the criminal nature of what the appellant was doing was not an aspect of his private
life that he was entitled to keep private. He could not have had an objectively
reasonable expectation that such photographs, taken for the limited purpose of
identifying who he was, would not be published. The decision in PJS v News Group
Newspapers Ltd243 (2016) dealt with an anonymised privacy injunction244. The
injunction was sought by the claimant to restrain publication of details of his sexual
relationship with two other people, on the ground that the publication would breach
his rights to privacy and confidentiality, protected by Article 8 of ECHR. The UK
Supreme Court by majority ruled in favour of the applicant. Speaking on behalf of the
majority, Lord Mance held that:
having regard to the nature of the material sought to be published and the identity
and financial circumstances of the appellant, that the appellants real concern is
indeed with the invasion of privacy that would be involved in further disclosure and
publication in the English media, and that any award of damages, however assessed,
would be an inadequate remedy. The HRA has rendered clarity on the existence of a
right to privacy in UK jurisprudence and substantially resolved conflicting
approaches regarding privacy in decided cases. The HRA, by incorporating the
provisions of the European [2016] UKSC 26 In English law, an anonymised
injunction is an interim injunction which restrains a person from publishing
information which concerns the applicant and is said to be confidential or private
where the names of either or both of the parties to the proceedings are not stated. See
Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised
Injunctions and Open Justice (2011), available online at
https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/super-injunction-repo

20052011.pdf PART K Convention on Human Rights (ECHR), has adopted the

guarantee of the right to privacy into UK domestic law. The Convention, together
with its adoption into domestic legislation, has led to a considerable change in the
development of protection of human privacy in English law.
(ii) US Supreme Court decisions The US Constitution does not contain an express right to privacy.
But American privacy jurisprudence reflects that it has been protected under several
amendments245 of the US Constitution.
As early as 1886, in Boyd v United States246, the question before the US Supreme Court was
whether compulsory production of a persons private papers to be used in evidence against him in a
judicial proceeding, is an unreasonable search and seizure within the meaning of the Fourth
Amendment. Justice Bradley delivered the opinion of the Court and held as follows:
The principles laid down in this opinion affect the very essence of constitutional
liberty and security they apply to all invasions on the part of the government and its
employees of the sanctity of a man's home and the privacies of life. It is not the
breaking of his doors and the rummaging of his drawers that constitutes the essence
of the offence, but it is the invasion of his indefeasible right of personal security,
personal liberty, and private property, -- it is the invasion of this sacred right ...
The concept of privacy plays a major role in the jurisprudence of the First, Third, Fourth, Fifth, and
Fourteenth Amendments. The Ninth Amendment has also been interpreted to justify broadly
reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight
amendments. 116 US 616 (1886) PART K And any compulsory discovery by extorting the party's
oath, or compelling the production of his private books and papers, to convict him of crime or to
forfeit his property, is contrary to the principles of a free government... It may suit the purposes of
despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom.
(emphasis supplied) In two decisions in the 1920s, the Court read the Fourteenth Amendments
liberty to prohibit states from making laws interfering with the private decisions of parents and
educators to shape the education of their children. In Meyer v Nebraska247 (1923), the Court struck
down a state law that prohibited the teaching of foreign languages to students that had not yet
completed the eighth grade. The Court in a 7:2 decision, written by Justice McReynolds, concluded
that the state failed to show a compelling need to infringe upon the rights of parents and teachers to
decide on the best course of education for young students. On liberty, Justice McReynolds held:
Without doubt, it denotes not merely freedom from bodily restraint, but also the right
of the individual to contract, to engage in any of the common occupations of life, to
acquire useful knowledge, to marry, establish a home and bring up children, to
worship God according to the dictates of his own conscience, and generally to enjoy
those privileges long recognized at common law as essential to the orderly pursuit of
happiness by free men. The established doctrine is that this liberty may not be
interfered with, under the guise of protecting the public interest, by legislative action
which is arbitrary or without reasonable relation to some purpose within the

competency of the State to effect. 262 US 390 (1923) PART K Two years later, in
Pierce v Society of Sisters248 (1925), the Court, relying upon Mayer v Nebraska,
struck down the Oregon Compulsory Education Act, which mandated all children
(between eight and sixteen years) to attend public schools. It was held the said statute
is an unreasonable interference with the liberty of the parents and guardians to direct
the upbringing of the children, and in that respect violates the Fourteenth
Amendment.
In Olmstead v United States249 (1928), the question before the Court was whether the use of
evidence of private telephone conversations, intercepted by means of wiretapping amounted to a
violation of the Fourth and Fifth Amendments. In a 5:4 decision, it was held that there was no
violation of the Fourth and Fifth Amendments. Chief Justice Taft wrote the majority judgment,
holding that:
The Amendment itself shows that the search is to be of material things -- the person,
the house, his papers, or his effects. The Amendment does not forbid what was done
here. There was no searching. There was no seizure. The evidence was secured by the
use of the sense of hearing, and that only. There was no entry of the houses or offices
of the defendants. However, Justice Louis Brandeis wrote a dissenting opinion and
observed that:
time works changes, brings into existence new conditions and purposes." Subtler and
more far-reaching means of invading privacy have become available to the
Government. Discovery and invention have made it possible for the Government, by
means far more effective than stretching upon the rack, to obtain disclosure in court
of what is whispered in the closet. Moreover, in the (268) US 510 (1925) 277 US 438
(1928) PART K application of a constitution, our contemplation cannot be only of
what has, been but of what may be. The progress of science in furnishing the
Government with means of espionage is not likely to stop with wiretapping. Ways
may someday be developed by which the Government, without removing papers from
secret drawers, can reproduce them in court, and by which it will be enabled to
expose to a jury the most intimate occurrences of the home. Advances in the psychic
and related sciences may bring means of exploring unexpressed beliefs, thoughts and
emotions (emphasis supplied) He questioned whether the Constitution affords no
protection against such invasions of individual security. Justice Brandeis answers
this question in a celebrated passage:
The makers of our Constitution undertook to secure conditions favorable to the

pursuit of happiness. They sought to protect Americans in their beliefs, their
thoughts, their emotions and their sensations. They conferred, as against the
Government, the right to be let alone -- the most comprehensive of rights, and the
right most valued by civilized men. To protect that right, every unjustifiable intrusion
by the Government upon the privacy of the individual, whatever the means
employed, must be deemed a violation of the Fourth Amendment... (emphasis

supplied) The Court, in the case of Griswold v Connecticut250 (1965), invalidated a

state law prohibiting the possession, sale, and distribution of contraceptives to
married couples, for the reason that the law violated the right to marital privacy.
Justice Douglas, who delivered the main opinion, observed that this right emanated
from penumbras of the fundamental constitutional guarantees and rights in the Bill
of Rights, which together create zones of privacy. Accordingly, it was held that:
381 US 479 (1965) PART K The present case, then concerns a relationship lying
within the zone of privacy created by several fundamental constitutional guarantees
Would we allow the police to search the sacred precincts of marital bedrooms of
telltale signs of the use of contraceptives? The very idea is repulsive to the notions of
privacy surrounding the marriage relationship. Justice Goldberg wrote in the
concurring opinion that:
The fact that no particular provision of the Constitution explicitly forbids the State
from disrupting the traditional relation of the family
-- a relation as old and as fundamental as our entire civilization --
surely does not show that the Government was meant to have the power to do so.
Rather, as the Ninth Amendment expressly recognizes, there are fundamental
personal rights such as this one, which are protected from abridgment by the
Government, though not specifically mentioned in the Constitution. The 1967
decision in Katz v United States251 (Katz) overruled Olmstead v United States
(supra) and revolutionized the interpretation of the Fourth Amendment regarding
the extent to which a constitutional right to privacy applies against government
interference. In this case, Charles Katz was a gambler who used a public telephone
booth to transmit illegal wagers. Unbeknownst to Katz, the FBI which was
investigating Katzs activity, was recording his conversations via an electronic
eavesdropping device attached to the exterior of the phone booth. Subsequently, Katz
was convicted based on these recordings. He challenged his conviction, arguing that
the recordings were obtained in violation of his Fourth Amendment rights. The
constitutional question in the case was whether the 4th Amendment protection from
unreasonable searches and seizures was restricted to the search and seizure of 389
US 347 (1967) PART K tangible property, or did it extend to intangible areas such as
conversations overheard by others. It was held that the Government's eavesdropping
activities violated the privacy, upon which petitioner justifiably relied, while using the
telephone booth, and thus constituted a search and seizure within the meaning of the
Fourth Amendment, and that the Amendment governs not only the seizure of
tangible items, but extends as well to the recording of oral statements.
Prior to 1967 when determining the reasonable expectation of privacy for purposes of discussing
Fourth Amendment violations, the analysis was focused on whether the authority had trespassed on
a private location. This trespass doctrine was the prevailing test until Katz, which extended the

protection of the Fourth Amendment from places to people, affording individuals more privacy even
in public. The trespass doctrine applied in Olmstead v United States (supra) was held to be no
longer relevant.
Justice Stewart wrote the majority (7:1) opinion and held that:
One who occupies it [a telephone booth], shuts the door behind him, and pays the toll
that permits him to place a call is surely entitled to assume that the words he utters
into the mouthpiece will not be broadcast to the world. To read the Constitution more
narrowly is to ignore the vital role that the public telephone has come to play in
private communication. (emphasis supplied) Justice Harlan wrote the concurring
judgment holding that:
a) that an enclosed telephone booth is an area where, like a home a person has a
constitutionally protected reasonable expectation of privacy; (b) that electronic, as
well as physical, PART K intrusion into a place that is in this sense private may
constitute a violation of the Fourth Amendment.... (emphasis supplied) The
reasonable expectation of privacy test was formulated as follows:
....the Fourth Amendment protects people, not places." The question, however, is
what protection it affords to those people. Generally, as here, the answer to that
question requires reference to a "place." My understanding of the rule that has
emerged from prior decisions is that there is a twofold requirement, first that a
person has exhibited an actual (subjective) expectation of privacy and, second, that
the expectation be one that society is prepared to recognize as "reasonable." Thus, a
man's home is, for most purposes, a place where he expects privacy, but objects,
activities, or statements that he exposes to the "plain view" of outsiders are not
"protected,"
because no intention to keep them to himself has been exhibited. On the other hand,
conversations in the open would not be protected against being overheard, for the
expectation of privacy under the circumstances would be unreasonable. (emphasis
supplied) In Stanley v Georgia252 (1969), the Court analyzed the constitutionality of
a statute imposing criminal sanctions upon the knowing possession of obscene
matter. The Court, in a unanimous decision, held that mere private possession of
obscene matter cannot constitutionally be made a crime:
For also fundamental is the right to be free, except in very limited circumstances,
from unwanted governmental intrusions into one's privacy...
[T]he rights that the appellant is asserting in the case before us...the right to read or
observe what he pleases -- the right to satisfy his intellectual and emotional needs in
the privacy of his own home..the right to be free from state inquiry into the contents
of his library...

394 US 557 (1969) PART K Whatever the power of the state to control public
dissemination of ideas inimical to the public morality, it cannot constitutionally
premise legislation on the desirability of controlling a person's private thoughts.
Seven years after Griswold, the Court expanded the right to privacy beyond the
marital bedroom to include unmarried persons. In Eisenstadt v Baird253 (1972), the
Court invalidated a law prohibiting the distribution of contraceptives to unmarried
persons, ruling that it violated the Equal Protection Clause of the Constitution:
It is true that in Griswold the right of privacy in question inhered in the marital
relationship. Yet the marital couple is not an independent entity with a mind and
heart of its own, but an association of two individuals each with a separate
intellectual and emotional makeup.
If the right of privacy means anything, it is the right of the individual, married or
single, to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a child. The
decision in Paris Adult Theatre I v Slaton254 (1973), upheld a state court's injunction
against the showing of obscene films in a movie theatre, restricted to consenting
adults. The Court distinguished the case from Stanley v Georgia (supra), on the
ground that the privacy of the home in Stanley was not the same as the commercial
exhibition of obscene movies in a theatre. Chief Justice Burger observed that the
prior decisions of the Supreme Court on the right to privacy only included those
personal rights that were fundamental" or implicit in the concept of ordered 405 US
438 (1972) 413 US 49 (1973) PART K liberty such as the personal intimacies of the
home, the family, marriage, motherhood, procreation and childbearing and held that:
Nothing, however, in this Court's decisions intimates that there is any "fundamental"
privacy right "implicit in the concept of ordered liberty" to watch obscene movies in
places of public accommodation The idea of a "privacy" right and a place of public
accommodation are, in this context, mutually exclusive. In the landmark decision on
the right to abortion, Roe v Wade255 (1973), the Court dealt with the question of the
right of an unmarried pregnant woman to terminate her pregnancy by abortion. The
constitutionality of a Texas Statute prohibiting abortions except with respect to those
procured or admitted by medical advice for the purpose of saving the life of the
mother was challenged on the ground that the law improperly invaded the right and
the choice of a pregnant woman to terminate her pregnancy and was violative of the
liberty guaranteed under the Fourteenth Amendment and the right to privacy
recognized in Griswold. The Court ruled 7:2 that a right to privacy under the Due
Process Clause of the Fourteenth Amendment extended to a woman's decision to
have an abortion, but that this right must be balanced against the state's interests in
regulating abortions. Justice Blackmun delivered the majority judgment and held
that:

The Constitution does not explicitly mention any right of privacy. In a line of
decisions, however, the Court has recognised that a right of personal privacy, or a
guarantee of certain areas or zones of privacy, does exist under the Constitution. In
varying contexts, the Court or individual Justices have, indeed, found at least the
roots of that right in the First Amendment; in the penumbras of the Bill of Rights; in
the Ninth 410 US 113 (1973) PART K Amendment; or in the concept of liberty
guaranteed by the first section of the Fourteenth Amendment...
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal
liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the
Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's
decision whether or not to terminate her pregnancy. (emphasis supplied) The right to privacy in
bank records was analysed by the US Supreme Court in United States v Miller256 (1976). In this
case federal agents were investigating the defendant for his involvement in a bootlegging conspiracy.
The agents subpoenaed two banks and received his bank records. As a result, he was indicted. The
question was whether an individual reasonably can expect that records kept incidental to his
personal banking transactions will be protected from uncontrolled government inspection. In a 6:3
opinion, the Supreme Court held that a bank depositor has no Fourth Amendment interest in the
records that his bank is required to keep in compliance with the Bank Secrecy Act of 1970, and that
Miller had no right to privacy in his bank records. Writing for the majority, Justice Lewis F. Powell
asserted that the documents subpoenaed... are not [Millers] private papers, but instead, part of the
banks business records. It was held:
There is no legitimate "expectation of privacy" in the contents of the original checks

and deposit slips, since the checks are not confidential communications, but
negotiable instruments to be used in commercial transactions, and all the documents
obtained contain only information voluntarily conveyed to the banks and exposed to
their employees in the ordinary course of business.
425 US 435 (1976) PART K The Fourth Amendment does not prohibit the obtaining of information
revealed to a third party and conveyed by him to Government authorities. The Act's recordkeeping
requirements do not alter these considerations so as to create a protectable Fourth Amendment
interest of a bank depositor in the bank's records of his account. However, Justice Brennan
dissented and held that:
A bank customer's reasonable expectation is that, absent a compulsion by legal

process, the matters he reveals to the bank will be utilized by the bank only for
internal banking purposes... [A] depositor reveals many aspects of his personal
affairs, opinions, habits, associations. Indeed, the totality of bank records provides a
virtual current biographyDevelopment of...sophisticated instruments have
accelerated the ability of the government to intrude into areas which a person
normally chooses to exclude from prying eyes and inquisitive minds. Consequently,
judicial interpretations of the constitutional protection of individual privacy must
keep pace with the perils created by these new devices. Continuing its trend of

expansion of individual rights in the 1960s and 1970s, particularly in the domain of
reproductive health - the right to contraceptives as well as the right to abortion, the
decision in Carey v Population Services International257 (1977) expanded these
rights from adults to also include minors. In this case, a New York law banning sale of
even non-prescription contraceptives by persons other than licensed pharmacists;
sale or distribution to minors under sixteen; and contraceptive display and
advertising was declared unconstitutional. Justice Brennan delivered the majority
opinion of the Court and held that the Fourteenth Amendment is not for adults alone
and Minors, as well as adults, are protected by the Constitution:
431 US 678 (1977) PART K This right of personal privacy includes "the interest in
independence in making certain kinds of important decisions." ... While the outer
limits of this aspect of privacy have not been marked by the Court, it is clear that
among the decisions that an individual may make without unjustified government
interference are personal decisions "relating to marriage...; procreation...;
contraception...;
family relationships...; and childrearing and education... It was further held that:
The decision whether or not to beget or bear a child is at the very heart of this cluster
of constitutionally protected choices... This is understandable, for in a field that, by
definition, concerns the most intimate of human activities and relationships,
decisions whether to accomplish or to prevent conception are among the most private
and sensitive The Court also held that the right to privacy may be limited by a
regulation, which is governed by a sufficient compelling state interest.
In Smith v Maryland258 (1979), it was held that installation and use of a pen register was not a
search within the meaning of the Fourth Amendment, and hence no warrant was required. Justice
Blackmun delivered the majority (5: 4) opinion and held that the petitioners claim that he had a
legitimate expectation of privacy could not be sustained:
First, we doubt that people in general entertain any actual expectation of privacy in
the numbers they dial. All telephone users realize that they must "convey" phone
numbers to the telephone company, since it is through telephone company 442 US
735 (1979) PART K switching equipment that their calls are completed. All
subscribers realize, moreover, that the phone company has facilities for making
permanent records of the numbers they dial, for they see a list of their long-distance
(toll) calls on their monthly bills. In fact, pen registers and similar devices are
routinely used by telephone companies "for the purposes of checking billing
operations, detecting fraud, and preventing violations of law." (emphasis supplied)
The majority adopted the reasonable expectation of privacy test as formulated by
Justice Harlan in Katz and held as follows:

[The] inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally
embraces two discrete questions. The first is whether the individual, by his conduct,
has "exhibited an actual (subjective) expectation of privacy"... whether... the
individual has shown that "he seeks to preserve [something] as private"... The second
question is whether the individual's subjective expectation of privacy is "one that
society is prepared to recognize as reasonable,'"... whether... the individual's
expectation, viewed objectively, is "justifiable" under the circumstances.
Since the pen register was installed on telephone company property at the telephone
company's central offices, petitioner obviously cannot claim that his "property" was
invaded or that police intruded into a "constitutionally protected area."
Thus the Court held that the petitioner in all probability entertained no actual
expectation of privacy in the phone numbers he dialled, and that, even if he did, his
expectation was not legitimate. However, the judgment also noted the limitations of
the Katz test:
Situations can be imagined, of course, in which Katz' two-
pronged inquiry would provide an inadequate index of Fourth Amendment

protection In such circumstances, where an individual's subjective expectations had
been "conditioned" by influences alien to well recognized Fourth Amendment
freedoms, those subjective expectations obviously could play no meaningful PART K
role in ascertaining what the scope of Fourth Amendment protection was. Justice
Stewart wrote the dissent, joined by Justice Brennan and held that there was a
legitimate expectation of privacy in this case:
...the numbers dialled from a private telephone -- like the conversations that occur
during a call -- are within the constitutional protection recognized in Katz. It seems
clear to me that information obtained by pen register surveillance of a private
telephone is information in which the telephone subscriber has a legitimate
expectation of privacy. The information captured by such surveillance emanates from
private conduct within a person's home or office -- locations that without question
are entitled to Fourth and Fourteenth Amendment protection. Further, that
information is an integral part of the telephonic communication that, under Katz, is
entitled to constitutional protection Justice Marshal dissented and opined on the
dangers of permitting such surveillance, holding:
The use of pen registers, I believe, constitutes such an extensive intrusion. To hold
otherwise ignores the vital role telephonic communication plays in our personal and
professional relationships, as well as the First and Fourth Amendment interests
implicated by unfettered official surveillance. Privacy in placing calls is of value not
only to those engaged in criminal activity. The prospect of unregulated governmental
monitoring will undoubtedly prove disturbing even to those with nothing illicit to

hide. Many individuals, including members of unpopular political organizations or

journalists with confidential sources, may legitimately wish to avoid disclosure of
their personal contacts...
Permitting governmental access to telephone records on less than probable cause

may thus impede certain forms of political affiliation and journalistic endeavor that
are the hallmark of a truly free society. Particularly given the Government's previous
reliance on warrantless telephonic surveillance to trace reporters' sources and
monitor protected political activity...
PART K I am unwilling to insulate use of pen registers from independent judicial

review. (emphasis supplied) In Planned Parenthood v Casey259 (1992), several
Pennsylvania state statutory provisions regarding abortion such as spousal consent
were challenged. The Court reaffirmed- what it called- the essential holding260 of
Roe v Wade (supra), and observed:
...Our precedents have respected the private realm of family life which the state
cannot enter. ... These matters, involving the most intimate and personal choices a
person may make in a lifetime, choices central to personal dignity and autonomy, are
central to the liberty protected by the Fourteenth Amendment. At the heart of liberty
is the right to define ones own concept of existence, of meaning, of the universe, and
of the mystery of human life. Beliefs about these matters could not define the
attributes of personhood were they formed under compulsion of the State The
womans right to terminate her pregnancy before viability is the most central
principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot
renounce. In Minnesota v Carter261 (1998), the question was whether the Fourth
Amendment protected against the viewing by an outside police officer, through a
drawn window blind, of the defendants bagging cocaine in an apartment. The Court
answered this question in the negative. Chief Justice Rehnquist delivered the
majority opinion of the 505 US 833 (1992) The essential holding of Roe, as
summarized in Planned Parenthood, comprised of the following three parts:
(1) a recognition of a woman's right to choose to have an abortion before foetal

viability and to obtain it without undue interference from the State, whose
pre-viability interests are not strong enough to support an abortion prohibition or the
imposition of substantial obstacles to the woman's effective right to elect the
procedure; (2) a confirmation of the State's power to restrict abortions after viability,
if the law contains exceptions for pregnancies endangering a woman's life or health;
and (3) the principle that the State has legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life of the fetus that may
become a child.
525 US 83 (1998) PART K Court noting that [t]he text of the Amendment suggests that its
protections extend only to people in their houses. The case was distinguished from Minnesota v

Olson262 (1990), where the Supreme Court decided that an overnight guest in a house had the sort
of expectation of privacy that the Fourth Amendment protects. The Court was of the view that while
an overnight guest in a home may claim the protection of the Fourth Amendment, one who is merely
present with the consent of the householder may not. The respondents, in this case, were not
overnight guests, but were present for a business transaction and were only in the home for a few
hours. The Court held:
Property used for commercial purposes is treated differently for Fourth Amendment
purposes from residential property. "An expectation of privacy in commercial
premises, however, is different from, and indeed less than, a similar expectation in an
individual's home."...
And while it was a "home" in which respondents were present, it was not their home the purely
commercial nature of the transaction engaged in here, the relatively short period of time on the
premises, and the lack of any previous connection between respondents and the householder, all
lead us to conclude .... any search which may have occurred did not violate their Fourth Amendment
rights. (emphasis supplied) Justice Ginsburg wrote the dissenting opinion joined by Justice Stevens
and Justice Souter, and held that:
Our decisions indicate that people have a reasonable expectation of privacy in their
homes in part because they have the prerogative 495 US 91 (1990) PART K to exclude
others Through the hosts invitation, the guest gains a reasonable expectation of
privacy in the home. Minnesota v. Olson, 495 U. S. 91 (1990), so held with respect to
an overnight guest. The logic of that decision extends to shorter term guests as well.
In Kyllo v United States263 (2001), the Court held (5:4 majority) that the thermal
imaging of the house of a person suspected of growing marijuana was a violation of
the right to privacy. Justice Scalia delivered the opinion of the Court and held that
there is no distinction between off-the-wall and through-the-wall surveillance as both
lead to an intrusion into an individuals privacy:
Limiting the prohibition of thermal imaging to intimate details would not only be
wrong in principle; it would be impractical in application, failing to provide a
workable accommodation between the needs of law enforcement and the interests
protected by the Fourth Amendment, Wewould have to develop a jurisprudence
specifying which home activities are intimate and which are not. And even when (if
ever) that jurisprudence were fully developed, no police officer would be able to know
in advance whether his through-the-wall surveillance picks up intimate detailsand
thus would be unable to know in advance whether it is constitutional (emphasis
supplied) It was concluded that even though no significant compromise of the
homeowners privacy had occurred due to the thermal imaging, the long view, from
the original meaning of the Fourth Amendment must be taken forward.
533 US 27 (2001) PART K In Lawrence v Texas264, the Court in a 6:3 decision struck
down the sodomy law in Texas and by extension invalidated sodomy laws in 13 other

states, making same-
sex sexual activity legal in every state and territory of the United States. The Court overturned its
previous ruling on the same issue in the 1986 case, Bowers v Hardwick265 (1986), where it upheld a
challenged Georgia statute and did not find a constitutional protection of sexual privacy. Justice
Anthony Kennedy wrote the majority opinion (6: 3 decision) and held that:
The petitioners are entitled to respect for their private lives. The State cannot demean
their existence or control their destiny by making their private sexual conduct a crime
It is a promise of the Constitution that there is a realm of personal liberty which the
government may not enter The Texas statute furthers no legitimate state interest
which can justify its intrusion into the personal and private life of the individual.
Informational privacy was the core issue in NASA v Nelson266 (2011). The Court
held unanimously that NASAs background checks of contract employees did not
violate any constitutional privacy right. The employees had argued that their
constitutional right to privacy as envisaged in previous US Supreme Court judgments
namely Whalen v Roe267 (1977) and Nixon v Administrator of General Services268
(1977), 539 US 558 (2003) 478 US 186 (1986) 562 US 134 (2011) 429 US 589 (1977).
In this case, for the first time, the Court explicitly recognized an individuals interest
in nondisclosure of information. The Court chose to address the status of privacy in
the Constitution, underlining that the constitutional right to privacy remains largely
undefined and then identified the types of constitutionally protected privacy interests
as follows: The cases sometimes characterized as protecting privacy have in fact
involved at least two different kinds of interests. One is the individual interest in
avoiding disclosure of personal matters, and another is the interest in independence
in making certain kinds of important decisions. 433 US 425 (1977). In this case, the
former President of US, Nixon, was challenging the Presidential Recordings and
Material Preservation Act, 1974 on the ground that it violated his right of privacy, as
there would PART K was violated by background checks. The majority judgment
delivered by Justice Alito, decided the case assuming that there existed a
constitutional right to privacy. The Court held that:
We hold, however, that the challenged portions of the Governments background

check do not violate this right in the present case. The Governments interests as
employer and proprietor in managing its internal operations, combined with the
protections against public dissemination provided by the Privacy Act of 1974, satisfy
any interest in avoiding disclosure that may arguably ha[ve] its roots in the
Constitution The Government has good reason to ask employees about their recent
illegal-drug use. The majority also rejected all the contentions regarding the misuse
of collected data and held:
the mere possibility that security measures will fail provides no proper ground for a
broad-based attack on government information-collection practices. Ibid.
Respondents also cite a portion of SF85 that warns of possible disclosure [t]o the

news media or the general public. App. 89. By its terms, this exception allows public
disclosure only where release is in the public interest and would not result in an
unwarranted invasion of personal privacy. Ibid. Respondents have not cited any
example of such a disclosure, nor have they identified any plausible scenario in which
their information might be unduly disclosed under this exception In light of the
protection provided by the Privacy Acts nondisclosure requirement, and because the
challenged portions of the forms consist of reasonable inquiries in an employment
background check, we conclude that the Governments inquiries do not violate a
constitutional right to informational privacy. (emphasis supplied) be intrusion
through the screening of his documents. Nixons plea was rejected by the Court, which
held held that any intrusion [against privacy] must be weighed against the public
interest.
PART K Justice Scalia, in a concurring opinion joined by Justice Thomas, agreed that the
background checks did not violate any constitutional rights, but argued that the Court should have
settled the constitutional privacy question in the negative. The view held was that there exists no
constitutional right to informational privacy. Scalia J. criticized the Court's decision to evade the
constitutional question, stating that:
If, on the other hand, the Court believes that there is a constitutional right to
informational privacy, then I fail to see the minimalist virtues in delivering a lengthy
opinion analyzing that right while coyly noting that the right is assumed rather than
decided The Court decides that the Government did not violate the right to
informational privacy without deciding whether there is a right to informational
privacy, and without even describing what hypothetical standard should be used to
assess whether the hypothetical right has been violated. (emphasis supplied) In
United States v Jones269 (2012), it was held unanimously that installing a Global
Positioning System (GPS) tracking device on a vehicle and using the device to
monitor the vehicle's movements constitutes a search under the Fourth Amendment.
However, the judges were split 5:4 as to the fundamental reasons behind the conclusion. Justice
Scalia delivered the majority judgment, applying the trespass test. It was held that the Governments
physical intrusion onto the defendant's car for the purpose of obtaining information constituted
trespass and therefore a search. Justice 565 US 400 (2012) PART K Scalia, however, left
unanswered the question surrounding the privacy implications of a warrantless use of GPS data
without physical intrusion. Justice Sonia Sotomayor, concurred with Justice Scalia, but addressed
the privacy aspects of the judgment. Justice Sotomayor agreed with Justice Alitos concurrence that
physical intrusion is now unnecessary to many forms of surveillance, and held that [i]n cases of
electronic or other novel modes of surveillance that do not depend upon a physical invasion on
property, the majority opinions trespassory test may provide little guidance. It was further observed:
GPS monitoring generates a precise, comprehensive record of a persons public

movements that reflects a wealth of detail about her familial, political, professional,
religious, and sexual associations.

Disclosed in [GPS] data will be trips the indisputably private nature of which takes little imagination
to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment
center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the
mosque, synagogue or church, the gay bar and on and on The Government can store such records
and efficiently mine them for information years into the future And because GPS monitoring is
cheap in comparison to conventional surveillance techniques and, by design, proceeds
surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices:
limited police resources and community hostility The net result is that GPS monitoringby making
available at a relatively low cost such a substantial quantum of intimate information about any
person whom the Government, in its unfettered discretion, chooses to trackmay alter the
relationship between citizen and government in a way that is inimical to democratic society.
(emphasis supplied) Justice Sotomayor concluded, by stating:
PART K [I] doubt that people would accept without complaint the warrantless disclosure to the
Government of a list of every Web site they had visited [or phone numbers dialled]... I would not
assume that all information voluntarily disclosed to some member of the public for a limited
purpose is, for that reason alone, disentitled to Fourth Amendment protection. In Florida v
Jardines270 (2013), the Court held that police use of a trained detection dog to sniff for narcotics on
the front porch of a private home is a search within the meaning of the Fourth Amendment to the
US Constitution, and therefore, without consent, requires both probable cause and a search warrant.
Justice Scalia who delivered the opinion of the Court held as follows:
We regard the area immediately surrounding and associated with the home..as part
of the home itself for Fourth Amendment purposes. .This area around the home is
intimately linked to the home, both physically and psychologically, and is where
privacy expectations are most heightened. (emphasis supplied) Justice Kagan, in a
concurring opinion, wrote:
Like the binoculars, a drug-detection dog is a specialized device for discovering

objects not in plain view (or plain smell). And as in the hypothetical above, that
device was aimed here at a home the most private and inviolate (or so we expect) of
all the places and things the Fourth Amendment protects the device is not in general
public use, training it on a home violates our minimal expectation of privacyan
expectation that exists, and that is acknowledged to be reasonable. (emphasis
supplied) 569 US 1 (2013) PART K Three years ago, in Riley v California271 (2014),
the Court unanimously held that the warrantless search and seizure of digital
contents of a cell phone during an arrest is unconstitutional. Chief Justice Roberts
delivered the opinion of the Court and commented on the impact on privacy in an era
of cell phones:
Before cell phones, a search of a person was limited by physical realities and tended
as a general matter to constitute only a narrow intrusion on privacy...the possible
intrusion on privacy is not physically limited in the same way when it comes to cell
phonesData on a cell phone can also reveal where a person has been. Historic

location information is a standard feature on many smart phones and can reconstruct
someones specific movements down to the minute, not only around town but also
within a particular building Mobile application software on a cell phone, or apps,
offer a range of tools for managing detailed information about all aspects of a persons
life Modern cell phones are not just another technological convenience. With all they
contain and all they may reveal, they hold for many Americans the privacies of life...
The fact that technology now allows an individual to carry such information in his
hand does not make the information any less worthy of the protection for which the
Founders fought. Our answer to the question of what police must do before searching
a cell phone seized incident to an arrest is accordingly simple get a warrant.
(emphasis supplied) In Obergefell v Hodges272, the Court held in a 5:4 decision that
the fundamental right to marry is guaranteed to same-sex couples by both the Due
Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
Justice Kennedy authored the majority opinion (joined by Justices Ginsburg, Breyer,
Sotamayor and Kagan):
573 US __ (2014) 576 US __ (2015) PART K Indeed, the Court has noted it would be
contradictory to recognize a right of privacy with respect to other matters of family
life and not with respect to the decision to enter the relationship that is the
foundation of the family in our society. (emphasis supplied) The development of the
jurisprudence on the right to privacy in the United States of America shows that even
though there is no explicit mention of the word privacy in the Constitution, the courts
of the country have not only recognised the right to privacy under various
Amendments of the Constitution but also progressively extended the ambit of
protection under the right to privacy. In its early years, the focus was on property and
protection of physical spaces that would be considered private such as an individuals
home. This trespass doctrine became irrelevant when it was held that what is
protected under the right to privacy is people, not places. The reasonable expectation
of privacy test has been relied on subsequently by various other jurisdictions while
developing the right to privacy. Having located the right to privacy in the person,
American jurisprudence on the right to privacy has developed to shield various
private aspects of a persons life from interference by the state - such as conscience,
education, personal information, communications and conversations, sexuality,
marriage, procreation, contraception, individual beliefs, thoughts and emotions,
political and other social groups. Various judgments of the Court have also analysed
technological developments which have made surveillance more pervasive and
affecting citizens privacy. In all these cases, the Court has tried to balance the
interests of the individual in maintaining the right to privacy with the interest of the
State in maintaining law and order. Decisions of the Supreme Court decriminalizing
PART K consensual sexual activity between homosexuals and guaranteeing same-sex
couples the right to marry indicate that the right to privacy is intrinsic to the
constitutional guarantees of liberty and equal protection of laws.

(iii) Constitutional right to privacy in South Africa In South Africa, the right to privacy has been
enshrined in Section 14 of the Bill of Rights in the 1996 Constitution. Section 14 provides that:
14. Privacy.-Everyone has the right to privacy, which includes the right not to have-
(a) their person or home searched;
(6) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed. In National Media Ltd v Jooste273 (1996),
Justice Harms defined privacy in the following terms:
Privacy is an individual condition of life characterised by exclusion from the public

and publicity. The condition embraces all those personal facts which a person
concerned has determined him to be excluded from the knowledge of outsiders and
in respect of which he has the will that they be kept private On the ambit of the right
to privacy, the Court held that:
A right to privacy encompasses the competence to determine the destiny of private

facts The individual concerned is entitled to dictate the ambit of disclosure ...
1996 (3) SA 262 (A) PART K the purpose and method [of] the disclosure... when and
under what conditions private facts may be made public. A contrary view will place
undue constraints upon the individual's so-called absolute rights of personality It will
also mean that rights of personality are of a lower order than real or personal rights.
In Bernstein v Bester and Others274 (1996), the South African Supreme Court decided on a
challenge to the constitutionality of certain sections of the Companies Act, on the ground that
examination under these sections violated the general right to personal privacy (section 13). It was
held that the provisions were not in breach of the Constitution. Justice Ackermann expounded upon
the concept of privacy as follows:
The scope of privacy has been closely related to the concept of identity and ... [that]
the right [is] based on a notion of the unencumbered self, but on the notion of what is
necessary to have ones own autonomous identity.
The Court observed that like every other right, the right to privacy also has its limits:
[67] In the context of privacy it is only the inner sanctum of a person, such as his/her
family life, sexual preference and home environment, which is shielded from erosion
by conflicting rights of the community.

This implies that community rights and the rights of fellow members place a corresponding
obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a
concrete member of civil society. Privacy is acknowledged in the truly personal realm, but as a
person moves into communal relations and activities such as business and social interaction, the
scope of personal space shrinks accordingly. 1996 (2) SA 751 (CC) PART K The constitutional
validity of laws making sodomy an offence was challenged in National Coalition for Gay and Lesbian
Equality v Minister of Justice275 (1999). It was held that the common law offence of sodomy was
inconsistent with the Constitution of the Republic of South Africa, 1996. Ackermann J. described
how discrimination leads to invasion of privacy and held that:
Privacy recognises that we all have a right to a sphere of private intimacy and
autonomy which allows us to establish and nurture human relationships without
interference from the outside community. The way in which we give expression to our
sexuality is at the core of this area of private intimacy. If, in expressing our sexuality,
we act consensually and without harming one another, invasion of that precinct will
be a breach of our privacy Sachs J. discussed the interrelation between equality and
privacy and held that:
...equality and privacy cannot be separated, because they are both violated
simultaneously by anti-sodomy laws. In the present matter, such laws deny equal
respect for difference, which lies at the heart of equality, and become the basis for the
invasion of privacy. At the same time, the negation by the state of different forms of
intimate personal behaviour becomes the foundation for the repudiation of equality.
On the meaning of autonomy, the Court observed that:
Autonomy must mean far more than the right to occupy an envelope of space in
which a socially detached individual can act freely from interference by the state.
What is crucial is the nature of the activity, not its site. While recognising the unique
worth of each person, the Constitution does not presuppose that a holder of rights is
as an isolated, lonely and abstract figure possessing a disembodied and socially
disconnected self. It acknowledges that people live in their bodies, their communities,
their cultures, their places and their times. ...It is not for the state to choose or to
arrange the choice 1999 (1) SA 6 (CC) PART K of partner, but for the partners to
choose themselves. (emphasis supplied) Justice Sachs noted that the motif which
links and unites equality and privacy, and which runs right through the protections
offered by the Bill of Rights, is dignity.
In Investigating Directorate: Serious Offences v Hyundai Motor Distributors Ltd276 (2001), the
Court was concerned with the constitutionality of the provisions of the National Prosecuting
Authority Act that authorised the issuing of warrants of search and seizure for purposes of a
preparatory investigation. Langa J. delivered judgment on the right to privacy of juristic persons
and held that:

... privacy is a right which becomes more intense the closer it moves to the intimate
personal sphere of the life of human beings, and less intense as it moves away from
that core. This understanding of the right flows... from the value placed on human
dignity by the Constitution. Juristic persons are not the bearers of human dignity.
Their privacy rights, therefore, can never be as intense as those of human beings.
However, this does not mean that juristic persons are not protected by the right to privacy.
Exclusion of juristic persons would lead to the possibility of grave violations of privacy in our
society, with serious implications for the conduct of affairs. Highlighting the need to balance
interests of the individual and the State, it was held that:
[54] ...Search and seizure provisions, in the context of a preparatory investigation,

serve an important purpose in the fight against crime.
That the state has a pressing interest which involves the security and freedom of the community as a
whole is beyond question. It is an objective which is sufficiently important to justify the limitation of
the 2001 (1) SA 545 (CC) PART K right to privacy of an individual in certain circumstances.On the
other hand, state officials are not entitled without good cause to invade the premises of persons for
purposes of searching and seizing property; ...A balance must therefore be struck between the
interests of the individual and that of the state, a task that lies at the heart of the inquiry into the
limitation of rights. (emphasis supplied) In Minister of Home Affairs and Another v Fourie and
Another277 (2006), the Constitutional Court of South Africa ruled unanimously that same-sex
couples have a constitutional right to marry. The judgment delivered by Justice Sachs, held that:
Section 9(1) of the Constitution provides: Everyone is equal before the law and has
the right to equal protection and benefit of the law.... Sections 9(1) and 9(3) cannot be
read as merely protecting same-sex couples from punishment or stigmatisation. They
also go beyond simply preserving a private space in which gay and lesbian couples
may live together without interference from the state.
Indeed, what the applicants in this matter seek is not the right to be left alone, but the right to be
acknowledged as equals and to be embraced with dignity by the law It is demeaning to adoptive
parents to suggest that their family is any less a family and any less entitled to respect and concern
than a family with procreated children. It is even demeaning of a couple who voluntarily decide not
to have children or sexual relations with one another; this being a decision entirely within their
protected sphere of freedom and privacy... (emphasis supplied) In NM and Others v Smith and
Others278 (2007), the names of three women who were HIV positive were disclosed in a biography.
They alleged that the publication, without their prior consent, violated their rights to privacy,
dignity and psychological integrity. The Court by majority held that the respondents were aware that
the applicants had not given their express consent but had published their names, thereby 2006 (1)
SA 524 (CC).
2007 (5) SA 250 (CC).

PART K violating their privacy and dignity rights. Justice Madala delivered the majority judgment
on the basis of the value of privacy and confidentiality in medical information and held that:
Private and confidential medical information contains highly sensitive and personal
information about individuals. The personal and intimate nature of an individuals
health information, unlike other forms of documentation, reflects delicate decisions
and choices relating to issues pertaining to bodily and psychological integrity and
personal autonomy Individuals value the privacy of confidential medical information
because of the vast number of people who could have access to the information and
the potential harmful effects that may result from disclosure. The lack of respect for
private medical information and its subsequent disclosure may result in fear
jeopardising an individuals right to make certain fundamental choices that he/she
has a right to make. There is therefore a strong privacy interest in maintaining
confidentiality. The decision of the Court was that there must be a pressing social
need for the right to privacy to be interfered with and that there was no such
compelling public interest in this case.
In the dissenting opinion, Justice ORegan held that the publication of the names and HIV status of
the women was neither intentional nor negligent. In that view, the respondents had assumed that
consent was given because the applicants names and HIV status were published in a publication,
with no disclaimer regarding their consent to the contrary. While elaborating on the constitutional
right of privacy, the Court held that:
... although as human beings we live in a community and are in a real sense both constituted by and
constitutive of that community, PART K we are nevertheless entitled to a personal sphere from
which we may and do exclude that community. In that personal sphere, we establish and foster
intimate human relationships and live our daily lives. This sphere in which to pursue our own ends
and interests in our own ways, although often mundane, is intensely important to what makes
human life meaningful. According to the decision, there are two inter-related reasons for the
constitutional protection of privacy- one flows from the constitutional conception of what it means
to be a human being and the second from the constitutional conception of the state:
An implicit part of [the first] aspect of privacy is the right to choose what personal
information of ours is released into the public space. The more intimate that
information, the more important it is in fostering privacy, dignity and autonomy that
an individual makes the primary decision whether to release the information. That
decision should not be made by others. This aspect of the right to privacy must be
respected by all of us, not only the state.
Secondly, we value privacy as a necessary part of a democratic society and as a constraint on the
power of the state... In authoritarian societies, the state generally does not afford such protection.
People and homes are often routinely searched and the possibility of a private space from which the
state can be excluded is often denied. The consequence is a denial of liberty and human dignity. In
democratic societies, this is impermissible. (emphasis supplied) The limits of the right to privacy

and the need to balance it with other rights emerge from the following observations:
Recognition of legitimate limits on the inviolability of personal space, however, does

not mean that the space is not worthy of protection. The Constitution seeks to ensure
that rights reinforce one another in a constructive manner in order to promote
human rights generally. At times our Constitution recognises that a balance has to be
found to provide protection for the different rights. PART K On the inter-relationship
between the right to privacy, liberty and dignity, the Court observed that:
The right to privacy recognises the importance of protecting the sphere of our
personal daily lives from the public. In so doing, it highlights the inter-relationship
between privacy, liberty and dignity as the key constitutional rights which construct
our understanding of what it means to be a human being. All these rights are
therefore inter-dependent and mutually reinforcing.
We value privacy for this reason at least that the constitutional conception of being a
human being asserts and seeks to foster the possibility of human beings choosing
how to live their lives within the overall framework of a broader community.
(emphasis supplied) The interim as well as the Final Constitution of South Africa
contain explicit provisions guaranteeing the right to privacy. The Judges of South
African Supreme Court have given an expansive meaning to the right, making
significant inter-linkages between equality, privacy and dignity. In doing so, it has
been acknowledged that the right to privacy does not exist in a vacuum, its
contravention having a significant bearing on other citizen rights as well. Such an
interpretation may prove to have a catalytic effect on a country transitioning from an
apartheid state to a democratic nation.
(iv) Constitutional right to privacy in Canada Although the Canadian Charter of Rights and
Freedoms of 1982 (the Charter) does not explicitly provide for a right to privacy, certain sections of
the Charter have been relied on by the Supreme Court of Canada to recognize a right to privacy.
Most PART K notably, Section 8279 (the Canadian version of the Fourth Amendment of the US
Constitution) has been employed in this respect. Privacy issues have also been recognized in respect
of Section 7280 of the Charter. In 1983, the Privacy Act was enacted to regulate how federal
government collects, uses and discloses personal information.281 The Personal Information
Protection and Electronic Documents Act (PIPEDA) governs how private sector organisations
collect, use and disclose personal information in the course of commercial activities One of the
landmark cases on the right to privacy was Hunter v Southam Inc282 (1984). This was also the first
Supreme Court of Canada decision to consider Section 8 of the Charter. In this case, the Combines
Investigation Act had authorized several civil servants to enter the offices of Southam Inc and
examine documents. The company claimed that this Act violated Section 8 of the Canadian Charter.
The Court unanimously held that the Combines Investigation Act violated the Charter as it did not
provide an appropriate standard for administering warrants. Dickson J. wrote the opinion of the
Court and observed that the Canadian Charter is a purposive document whose purpose is to
guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it

enshrines and to Section 8 of the Charter provides as follows: Everyone has the right to be secure
against unreasonable search or seizure. Section 7 of the Canadian Charter deals with life, liberty and
security of person and states that: Everyone has the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with the principles of fundamental
justice. In Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 SCR 773,
the Supreme Court of Canada recognised the Privacy Act as having a "quasi-constitutional" status,
as it is closely linked to the values and rights set out in the Constitution. The Court also stated that
the "The Privacy Act is a reminder of the extent to which the protection of privacy is necessary to the
preservation of a free and democratic society.
[1984] 2 SCR 145 PART K constrain governmental action inconsistent with those rights and
freedoms. The Court held that since Section 8 is an entrenched constitutional provision, it was not
vulnerable to encroachment by legislative enactments in the same way as common law protections.
The Court held that the purpose of Section 8 is to protect an individual's reasonable expectation of
privacy but right to privacy must be balanced against the governments duty to enforce the law. It
was further held that:
The guarantee of security from unreasonable search and seizure only protects a
reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is
expressed negatively as freedom from "unreasonable" search and seizure, or
positively as an entitlement to a "reasonable" expectation of privacy, indicates that an
assessment must be made as to whether in a particular situation the public's interest
in being left alone by government must give way to the government's interest in
intruding on the individual's privacy in order to advance its goals, notably those of
law enforcement. In Her Majesty, The Queen v Brandon Roy Dyment283 (1988), a
patient had met with an accident on a highway. A doctor collected a sample of blood
from his wound.
The blood sample was taken for medical purposes but was given to a police officer. As a result of an
analysis carried out by the police officer, the patient was charged with impaired driving. The Court
held that the seizing of blood taken for medical purposes was a violation of Section 8 of the Charter
and that the spirit of the Charter must not be constrained by narrow legalistic classifications based
on notions of property. It was further held:
[1988] 2 SCR 417 PART K [L]egal claims to privacy in this sense were largely confined to the home.
But [t]o protect privacy only in the home ... is to shelter what has become, in modern society, only a
small part of the individual's daily environmental need for privacy... Privacy is at the heart of liberty
in a modern state...Grounded in man's physical and moral autonomy, privacy is essential for the
well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it
also has profound significance for the public order. The restraints imposed on government to pry
into the lives of the citizen go to the essence of a democratic state. (emphasis supplied) On the
importance of informational privacy, it was held:

This notion of privacy derives from the assumption that all information about a
person is in a fundamental way his own, for him to communicate or retain for himself
as he sees fit...
In modern society, especially, retention of information about oneself is extremely important. We

may, for one reason or another, wish or be compelled to reveal such information, but situations
abound where the reasonable expectations of the individual that the information shall remain
confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be
protected. Justice La Forest wrote on the importance of consent and held that the use of a person's
body without his consent to obtain information about him, invades an area of personal privacy
essential to the maintenance of his human dignity. The Court found that the patient had a
well-founded and reasonable expectation of privacy that his blood sample, collected by the doctor,
would be used for medical purposes only and that such expectation is intended to protect people not
things. It was held that:
PART K In the present case, however, the respondent may, for some purposes perhaps, be deemed
to have impliedly consented to a sample being taken for medical purposes, but he retained an
expectation that his privacy interest in the sample continue past the time of its takingUnder these
circumstances, the sample was surrounded by an aura of privacy meriting Charter protection. For
the state to take it in violation of a patient's right to privacy constitutes a seizure for the purposes of
s. 8. R v Plant284 (1993) is a leading decision of the Supreme Court of Canada on the protection of
personal information under the Charter. In this case, a police officer, on the basis of information
that marijuana was being grown in an area, accessed the electrical utilitys computer system and
discovered that a particular house was consuming an extremely high amount of electricity. Two
officers then performed a warrantless perimeter search of the property and observed that the
basement windows were covered with something opaque and a that a vent had been blocked using a
plastic bag. On the basis of this information, the police obtained a warrant to search the home and
discovered over a hundred seedling marijuana plants. The accused was charged with cultivation of
marijuana and possession for the purpose of trafficking. The issue was whether the warrantless
perimeter search of his home and the seizure of electricity consumption records violated his right
against unreasonable search and seizure under section 8 of the Charter.
[1993] 3 S.C.R. 281 PART K The judgment delivered by Justice Sopinka relied on a part of the
United States v Miller285 decision, that in order to be constitutionally protected the information
must be of a personal and confidential nature and held that:
In fostering the underlying values of dignity, integrity and autonomy, it is fitting that
s. 8 of the Charter should seek to protect a biographical core of personal information
which individuals in a free and democratic society would wish to maintain and
control from dissemination to the state. This would include information which tends
to reveal intimate details of the lifestyle and personal choices of the individual. The
Court held that the perimeter search violated the Charter and that the seizure of
consumption records was not in violation of Section 8. This decision was based on
the ground that the pattern of electricity consumption revealed as a result of

computer investigations could not be said to reveal intimate details since electricity
consumption reveals very little about the personal lifestyle or private decisions. In
Her Majesty, The Queen v Walter Tessling286 (2004), the Supreme Court of Canada
held that the use of thermal imaging by the police in the course of an investigation of
a suspect's property did not constitute a violation of the accused's right to a
reasonable expectation of privacy under Section 8 of the Canadian Charter.
On the reasonable expectation of privacy, it was held that the totality of circumstances need to be
considered with particular emphasis on both the existence of a subjective expectation of privacy, and
the objective reasonableness of the expectation. The Court ruled that the cases of privacy interests
(protected by S. 8 of the Canadian 425 US 435 (1976) (2004) SCC 67 PART K Charter) need to be
distinguished between personal privacy, territorial privacy and informational privacy. The Court
relied on Justice Sopinkas understanding of the scope of the protection of informational privacy in R
v Plant (supra) and held that the information generated by FLIR imaging did not reveal a
biographical core of personal information or intimate details of [his] lifestyle, and therefore section
8 had not been violated. The decision in R v Spencer287 (2014) was related to informational
privacy. In this case, the appellant used an online software to download child pornography onto a
computer and shared it publicly. The police requested subscriber information associated with an IP
address from the appellants Internet Service Provider and on the basis of it, searched the computer
used by him. The Canadian Supreme Court unanimously ruled that the request for an IP address
infringed the Charter's guarantee against unreasonable search and seizure. It was held that the
appellant had a reasonable expectation of privacy. In doing so, it assessed whether there is a
reasonable expectation of privacy in the totality of the circumstances, which includes the nature of
the privacy interests implicated by the state action and factors more directly concerned with the
expectation of privacy, both subjectively and objectively viewed, in relation to those interests. It was
further held:
...factors that may be considered in assessing the reasonable expectation of privacy

can be grouped under four main headings for analytical convenience: (1) the subject
matter of the alleged search; (2) the claimant's interest in the subject matter; (3) the
claimant's subjective expectation of privacy in the subject (2014) SCC 43 PART K
matter; and (4) whether this subjective expectation of privacy was objectively
reasonable, having regard to the totality of the circumstances. (emphasis supplied)
The issue in the case was whether there is a privacy interest in subscriber information
with respect to computers used in homes for private purposes. The Court applied a
broad approach in understanding the online privacy interests and held that:
Privacy is admittedly a "broad and somewhat evanescent concept"... [T]he Court has
described three broad types of privacy interests -
territorial, personal, and informational - which, while often overlapping, have proved
helpful in identifying the nature of the privacy interest or interests at stake in
particular situations The Court found that the nature of appellants privacy interest in
subscriber information relating to a computer used privately was primarily an

informational one and held:
... the identity of a person linked to their use of the Internet must be recognized as
giving rise to a privacy interest beyond that inherent in the persons name, address
and telephone number found in the subscriber information. It then set out three key
elements of informational privacy: privacy as secrecy, privacy as control, and privacy
as anonymity. It further emphasised on the importance of anonymity in
informational privacy, particularly in the age of the Internet and held that:
... anonymity may, depending on the totality of the circumstances, be the foundation
of a privacy interest that engages constitutional protection against unreasonable
search and seizure... PART K Though the Court stopped short of recognizing an
absolute right to anonymity, it held that anonymous Internet activity engages a high
level of informational privacy. The Court further held that:
The disclosure of this information will often amount to the identification of a user
with intimate or sensitive activities being carried out online, usually on the
understanding that these activities would be anonymous.
A request by a police officer that an ISP voluntarily disclose such information

amounts to a search. The Canadian Supreme Court has used provisions of the Charter
to expand the scope of the right to privacy, used traditionally to protect individuals
from an invasion of their property rights, to an individuals reasonable expectation of
privacy. The right to privacy has been held to be more than just a physical right as it
includes the privacy in information about ones identity. Informational privacy has
frequently been addressed under Section 8 of the Charter. Canadian privacy
jurisprudence has developed with the advent of technology and the internet. Judicial
decisions have significant implications for internet/digital privacy.
(v) Privacy under The European Convention on Human Rights and the European Charter In Europe,
there are two distinct but related frameworks to ensure the protection of the right of privacy. The
first is the European Convention on Human Rights (ECHR), an international agreement to protect
human rights and fundamental freedoms in Europe. The second is the Charter of Fundamental
Rights of the European Union (CFREU), a treaty enshrining certain political, social, and economic
rights for the PART K European Union. Under ECHR (the Convention), the European Court of
Human Rights (ECtHR), also known as the Strasbourg Court, is the adjudicating body, which hears
complaints by individuals on alleged breaches of human rights by signatory states. Similarly, under
CFREU (the Charter), the Court of Justice of the European Union (CJEU), also called the
Luxembourg Court, is the chief judicial authority of the European Union and oversees the uniform
application and interpretation of European Union law, in co-operation with the national judiciary of
the member states. Article 8 of the ECHR provides that:
Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is
in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of
others. Under the Charter, the relevant provisions are:
Article 7 Respect for private and family life Everyone has the right to respect for his
or her private and family life, home and communications.
Article 8 Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
PART K
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the
person concerned or some other legitimate basis laid down by law. Everyone has the right of access
to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.
Article 52 Scope of guaranteed rights
1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be
provided for by law and respect the essence of those rights and freedoms. Subject to the principle of
proportionality, limitations may be made only if they are necessary and genuinely meet objectives of
general interests recognised by the Union of the need to protect the rights and freedoms of others.
2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on
European Union shall be exercised under the conditions and within the limits defined by those
Treaties.
3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention
of the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those
rights shall be the same as those laid down by the said Convention. This provision shall not prevent
Union law providing more extensive protection. Article 52(3) provides for the ECHR as a minimum
standard of human rights in the EU. Article 52(3) thus leads the EU to be indirectly bound by the
ECHR as it must always be obeyed when restricting fundamental rights in the EU. Moreover, in the
pre- Charter era, the protection of privacy was held to form part of the right to privacy in line with
how the ECtHR in Strasbourg interprets Art. 8 of ECHR till date288. In the case of J McB v LE, Case
C-400/10 PPU, [2010] ECR I-nyr, the CJEU ruled that where Charter rights paralleled ECHR rights,

the Court of Justice should follow any consistent jurisprudence of the European Court of Human
Rights, elucidating that: It is clear that the said Article 7 [of the EU Charter] contains rights
corresponding to those guaranteed by Article 8(1) of the ECHR. Article 7 of the Charter must
therefore be given the same meaning and the same scope as Article 8(1) of the ECHR... Reference
can be passed to a case before ECtHR, PART K Thus, in order to understand the protection extended
to the right to privacy in EU, the jurisprudence of Article 8 of the Convention and Article 7 of the
Charter need to be analyzed. The term private life is an essential ingredient of both these provisions
and has been interpreted to encompass a wide range of interests. In the case of Niemietz v
Germany289 (1992), the ECtHR observed that:
The Court does not consider it possible or necessary to attempt an exhaustive

definition of the notion of "private life". However, it would be too restrictive to limit
the notion to an "inner circle" in which the individual may live his own personal life
as he chooses and to exclude therefrom entirely the outside world not encompassed
within that circle.
Respect for private life must also comprise to a certain degree the right to establish and develop
relationships with other human beings. Similarly, in Costello-Roberts v United Kingdom290 (1993),
the ECtHR stated that the notion of "private life" is a broad one and is not susceptible to exhaustive
definition.
This broad approach is also present in the recent cases of European jurisprudence. In S and Marper
v United Kingdom291 (2008), the ECtHR held, with respect to right to respect for private life, that :
...the concept of private life... covers the physical and psychological integrity of a
person... It can therefore embrace multiple aspects of the person's physical and social
identity... Elements such as, for example, gender identification, name and sexual
orientation and sexual life fall within the personal sphere protected by Article 8...
Beyond a person's Varec SA v. État belge, Case C-450/06, [2008] ECR I-581, where it
was observed that that: ...the right to respect for private life, enshrined in Article 8 of
the ECHR, which flows from the common constitutional traditions of the Member
States.... is restated in Article 7 of the Charter of fundamental rights of the European
Union.
Application no. 13710/88, judgment dated 16 September 1992.
Application no. 13134/87, judgment dated 25 March 1993.
[2008] ECHR 1581 PART K name, his or her private and family life may include other means of
personal identification and of linking to a family... Information about the person's health is an
important element of private life... The Court furthermore considers that an individual's ethnic
identity must be regarded as another such element... The concept of private life moreover includes
elements relating to a person's right to their image In Uzun v Germany292 (2010), the European
Court of Human Rights while examining an application claiming violation of Article 8 observed that:

Article 8 protects, inter alia, a right to identity and personal development, and the
right to establish and develop relationships with other human beings and the outside
world. There is, therefore, a zone of interaction of a person with others, even in a
public context, which may fall within the scope of private life...
There are a number of elements relevant to a consideration of whether a person's private life is
concerned by measures effected outside a person's home or private premises. Since there are
occasions when people knowingly or intentionally involve themselves in activities which are or may
be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be
a significant, although not necessarily conclusive, factor Thus, the determination of a complaint by
an individual under Article 8 of the Convention necessarily involves a two-stage test293, which can
be summarized as below:
Stage 1: Article 8 para. 1 1.1 Does the complaint fall within the scope of one of the
rights protected by Article 8 para 1?
1.2 If so, is there a positive obligation on the State to respect an individuals right and
has it been fulfilled? Stage 2: Article 8 para. 2 2.1 Has there been an interference with
the Article 8 right?
2.2 If so, Application No. 35623/05 Ursula Kilkelly, The right to respect for private and family life: A
guide to the implementation of Article 8 of the European Convention on Human Rights, Council of
Europe (2001), at page 9 PART K 2.2.1 is it in accordance with law?
2.2.2 does it pursue a legitimate aim?
2.2.3 is it necessary in a democratic society?
This test is followed by the Court each time it applies Article 8 in a given case. In other words, a fair
balance is struck between the general interest of the community and the interests of the individual.
The Grand Chamber of 18 judges at the ECtHR, in S and Marper v United Kingdom (supra),
examined the claim of the applicants that their Right to Respect for Private Life under Article 8 was
being violated as their fingerprints, cell samples and DNA profiles were retained in a database after
successful termination of criminal proceedings against them. The Court held that there had been a
violation of Article 8 of the Convention. Finding that the retention at issue had constituted a
disproportionate interference with the applicants right to respect for private life, the Court held that
the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples
and DNA profiles of persons...fails to strike a fair balance between the competing public and private
interests and that the respondent State has overstepped any acceptable margin of appreciation. It
was further held that:
The mere storing of data relating to the private life of an individual amounts to an
interference within the meaning of Article 8. However, in determining whether the

personal information retained by the authorities involves any of the private-life

aspects mentioned above, the Court will have due regard to the specific context in
which the information at issue has been recorded and retained, the nature of the
records, the way in which these records are used and processed and the results that
may be obtained. PART K Applying the above principles, it was held that:
The Court notes at the outset that all three categories of the personal information
retained by the authorities in the present cases, namely fingerprints, DNA profiles
and cellular samples, constitute personal data within the meaning of the Data
Protection Convention as they relate to identified or identifiable individuals. The
Government accepted that all three categories are personal data within the meaning
of the Data Protection Act 1998 in the hands of those who are able to identify the
individual. Regarding the retention of cellular samples and DNA profiles, it was held
that:
Given the nature and the amount of personal information contained in cellular
samples, their retention per se must be regarded as interfering with the right to
respect for the private lives of the individuals concerned. That only a limited part of
this information is actually extracted or used by the authorities through DNA
profiling and that no immediate detriment is caused in a particular case does not
change this conclusion [T]he DNA profiles' capacity to provide a means of identifying
genetic relationships between individuals is in itself sufficient to conclude that their
retention interferes with the right to the private life of the individuals concerned...
The possibility the DNA profiles create for inferences to be drawn as to ethnic origin
makes their retention all the more sensitive and susceptible of affecting the right to
private life. Regarding retention of fingerprints, it was held that:
...fingerprints objectively contain unique information about the individual concerned

allowing his or her identification with precision in a wide range of circumstances.
They are thus capable of affecting his or her private life and retention of this
information without the consent of the individual concerned cannot be regarded as
neutral or insignificant In Uzun v Germany (supra), the ECtHR examined an
application claiming violation of Article 8 of European Convention of Human Rights
where the applicants data was PART K obtained via the Global Positioning System
(GPS) by the investigation agencies and was used against him in a criminal
proceeding. In this case, the applicant was suspected of involvement in bomb attacks
by the left-wing extremist movement. The Court unanimously concluded that there
had been no violation of Article 8 and held as follows:
GPS surveillance of Mr Uzun had been ordered to investigate several counts of

attempted murder for which a terrorist movement had claimed responsibility and to
prevent further bomb attacks. It therefore served the interests of national security
and public safety, the prevention of crime and the protection of the rights of the
victims. It had only been ordered after less intrusive methods of investigation had

proved insufficient, for a relatively short period of time three months and it had
affected Mr Uzun only when he was travelling with his accomplices car. Therefore, he
could not be said to have been subjected to total and comprehensive surveillance.
Given that the investigation concerned very serious crimes, the Court found that the
GPS surveillance of Mr Uzun had been proportionate. The decision of the CJEU in
the case Asociación Nacional de Establecimientos Financieros de Crédito (ASNEF) v
Spain294 relied upon the Article 7 right to respect for private life and Article 8(1) of
the Charter to find that the implementation in Spain of the Data Protection Directive
was defective in that it applied only to information kept in a specified public data
bank rather than more generally to public and private databases, on the basis that the
processing of data appearing in non-public sources necessarily implies that
information relating to the data subjects private life will thereafter be known by the
data controller and, as the case may be, by the third party or parties to whom the data
is disclosed. This more serious infringement of the data C-468/10, 24 November,
[2011] ECR I-nyr PART K subjects rights enshrined in Articles 7 and 8 of the Charter
must be properly taken into account.
In Digital Rights Ireland Ltd v Minister295 (2014), the CJEU examined the validity of a Data
Protection Directive, which required telephone and internet service providers to retain details of
internet and call data for 6 to 24 months, as well as related data necessary to identify the subscriber
or user, so as to ensure that the data is available for the purpose of prevention, investigation,
detection and prosecution of serious crimes. The Court ruled that the Directive is incompatible with
Article 52(1) of the Charter, because the limitations which the said Directive placed were not
accompanied by the necessary principles for governing the guarantees needed to regulate access to
the data and their use. It was held that:
To establish the existence of an interference with the fundamental right to privacy, it

does not matter whether the information on the private lives concerned is sensitive or
whether the persons concerned have been inconvenienced in any way. While stating
that data relating to the use of electronic communications is particularly important
and therefore a valuable tool in the prevention of offences and the fight against crime,
in particular organised crime, the Court looked into the proportionality of the
interference with the right to privacy and held that:
As regards the necessity for the retention of data required by Directive 2006/24, it
must be held that the fight against serious crime, in particular against organised
crime and terrorism, is indeed of the utmost importance in order to ensure public
security and its C-293/12 PART K effectiveness may depend to a great extent on the
use of modern investigation techniques. However, such an objective of general
interest, however fundamental it may be, does not, in itself, justify a retention
measure such as that established by Directive 2006/24 being considered to be
necessary for the purpose of that fight... Highlighting that the said Directive does not
provide for sufficient safeguards, it was held that by adopting the Directive, the EU
exceeded the limits imposed by compliance with the principle of proportionality in

the light of Articles 7, 8 and 52(1) of the Charter. In RE v The United Kingdom296
(2015), the applicant was arrested and detained on three occasions in relation to the
murder of a police officer. He claimed violation of Article 8 under the regime of
covert surveillance of consultations between detainees and their lawyers, medical
advisors and appropriate adults297 sanctioned by the existing law. The ECtHR held
that:
The Courtconsiders that the surveillance of a legal consultation constitutes an

extremely high degree of intrusion into a persons right to respect for his or her
private life and correspondence... Consequently, in such cases it will expect the same
safeguards to be in place to protect individuals from arbitrary interference with their
Article 8 rights...
Surveillance of appropriate adult-detainee consultations were not subject to legal

privilege and therefore a detainee would not have the same expectation of
privacy.The relevant domestic provisions, insofar as they related to the possible
surveillance of consultations between detainees and appropriate adults, were
accompanied by adequate safeguards against abuse, notably as concerned the
authorisation, review and record keeping. Hence, there is no violation of Article 8.
Application No. 62498/11 As per the facts of the case, an appropriate adults could be
a relative or guardian, or a person experienced in dealing with mentally disordered or
mentally vulnerable people.
PART K In Roman Zakharov v Russia298 (2015), ECtHR examined an application claiming

violation of Article 8 of the Convention alleging that the mobile operators had permitted
unrestricted interception of all telephone communications by the security services without prior
judicial authorisation, under the prevailing national law. The Court observed that:
Mr Zakharov was entitled to claim to be a victim of a violation of the European

Convention, even though he was unable to allege that he had been the subject of a
concrete measure of surveillance. Given the secret nature of the surveillance
measures provided for by the legislation, their broad scope (affecting all users of
mobile telephone communications) and the lack of effective means to challenge them
at national level Russian law did not meet the quality of law requirement and was
incapable of keeping the interception of communications to what was necessary in a
democratic society.
There had accordingly been a violation of Article 8 of the Convention. Both the ECtHR and the
CJEU, while dealing with the application and interpretation of Article 8 of ECHR and Article 7 of the
Charter, have kept a balanced approached between individual interests and societal interests. The
two-step test in examining an individual claim related to a Convention right has strictly been
followed by ECtHR.

(vi) Decisions of the Inter-American Court of Human Rights Article 11 of the American Convention
on Human Rights deals with the Right to Privacy. The provision is extracted below:
1. Everyone has the right to have his honor respected and his dignity recognized.
Application No. 47143/06 PART K
2. No one may be the object of arbitrary or abusive interference with his private life, his family, his
home, or his correspondence, or of unlawful attacks on his honor or reputation.
3. Everyone has the right to the protection of the law against such interference or attacks. The
decision in Artavia Murillo ET AL. (In Vitro Fertilization) v Costa Rica299 (2012), addressed the
question of whether the States prohibition on the practice of in vitro fertilisation constituted an
arbitrary interference with the right to private life. The Court held that:
The scope of the protection of the right to private life has been interpreted in broad
terms by the international human rights courts, when indicating that this goes
beyond the right to privacy.
The protection of private life encompasses a series of factors associated with the dignity of the
individual, including, for example, the ability to develop his or her own personality and aspirations,
to determine his or her own identity and to define his or her own personal relationships. The
concept of private life encompasses aspects of physical and social identity, including the right to
personal autonomy, personal development and the right to establish and develop relationships with
other human beings and with the outside world. The effective exercise of the right to private life is
decisive for the possibility of exercising personal autonomy on the future course of relevant events
for a persons quality of life. Private life includes the way in which individual views himself and how
he decides to project this view towards others, and is an essential condition for the free development
of the personality Furthermore, the Court has indicated that motherhood is an essential part of the
free development of a womans personality. Based on the foregoing, the Court considers that the
decision of whether or not to become a parent is part of the right to private life and includes, in this
case, the decision of whether or not to become a mother or father in the genetic or biological sense.
(emphasis supplied) PART K In Escher et al v Brazil300 (2009), telephonic interception and
monitoring of telephonic lines was carried out by the military police of the State between April and
June 1999. The Court found that the State violated the American Convention on Human Rights and
held that:
Article 11 applies to telephone conversations irrespective of their content and can

even include both the technical operations designed to record this content by taping
it and listening to it, or any other element of the communication process; for
example, the destination or origin of the calls that are made, the identity of the
speakers, the frequency, time and duration of the calls, aspects that can be verified
without the need to record the content of the call by taping the conversation Article 11
of the Convention recognizes that every person has the right to respect for his honor,

prohibits an illegal attack against honor and reputation, and imposes on the States
the obligation to provide legal protection against such attacks. In general, the right to
honor relates to self-esteem and self-worth, while reputation refers to the opinion
that others have of a person [O]wing to the inherent danger of abuse in any
monitoring system, this measure must be based on especially precise legislation with
clear, detailed rules. The American Convention protects the confidentiality and
inviolability of communications from any kind of arbitrary or abusive interference
from the State or individuals;
consequently, the surveillance, intervention, recording and dissemination of such communications

is prohibited, except in the cases established by law that are adapted to the objects and purposes of
the American Convention. Like other international jurisdictions, the Inter-American Court of
Human Rights dealt with the concept of privacy and private life in broad terms which enhance the
value of liberty and freedom.
PART L The development of the law on privacy in these jurisdictions has drawn sustenance from the
importance and sanctity attributed to individual freedom and liberty. Constitutions which, like the
Indian Constitution, contain entrenched rights place the dignity of the individual on a high pedestal.
Despite cultural differences and disparate histories, a study of comparative law provides reassurance
that the path which we have charted accords with a uniform respect for human values in the
constitutional culture of the jurisdictions which we have analysed. These values are universal and of
enduring character.
L Criticisms of the privacy doctrine
135 The Attorney General for India, leading the arguments before this Court on
behalf of Union of India, has been critical of the recognition being given to a general right of privacy.
The submission has several facets, among them being:
(i) there is no general or fundamental right to privacy under the Constitution;
(ii) no blanket right to privacy can be read as part of the fundamental rights and where some of the
constituent facets of privacy are already covered by the enumerated guarantees in Part III, those
facets will be protected in any case;
(iii) where specific species of privacy are governed by the protection of liberty in Part III of the
Constitution, they are subject to reasonable restrictions in the public interest as recognized in
several decisions of this Court ; PART L
(iv) privacy is a concept which does not have any specific meaning or definition and the expression
is inchoate; and

(v) the draftsmen of the Constitution specifically did not include such a right as part of the chapter
on fundamental rights and even the ambit of the expression liberty which was originally sought to be
used in the draft Constitution was pruned to personal liberty. These submissions have been
buttressed by Mr Aryama Sundaram, learned senior counsel.
136 Criticism and critique lie at the core of democratic governance. Tolerance of dissent is equally a
cherished value. In deciding a case of such significant dimensions, the Court must factor in the
criticisms voiced both domestically and internationally. These, as we notice, are based on academic,
philosophical and practical considerations.
137 The Stanford Encyclopaedia of Philosophy adverts to several sceptical and critical accounts of
privacy. The criticism is set out thus:
There are several sceptical and critical accounts of privacy.
According to one well known argument there is no right to privacy and there is nothing special about
privacy, because any interest protected as private can be equally well explained and protected by
other interests or rights, most notably rights to property and bodily security (Thomson, 1975). Other
critiques argue that privacy interests are not distinctive because the personal interests they protect
are economically inefficient (Posner, 1981) or that they are not grounded in any adequate legal
doctrine (Bork, 1990). Finally, there is the feminist critique of privacy, that granting special status
PART L to privacy is detrimental to women and others because it is used as a shield to dominate and
control them, silence them, and cover up abuse (MacKinnon, 1989).301 138 In a 2013 article
published in the Harvard Law Review, a professor of law at Georgetown Law Center, Georgetown
University, described privacy as having an image problem302. Privacy, as she notes, has been cast
as old-fashioned at best and downright harmful at worst - anti-progressive, overly costly, and
inimical to the welfare of the body politic303. The consequences in her view are predictable:
when privacy and its purportedly outdated values must be balanced against the
cutting-edge imperatives of national security, efficiency, and entrepreneurship,
privacy comes up the loser. The list of privacy counterweights is long and growing.
The recent additions of social media, mobile platforms, cloud computing, data
mining, and predictive analytics now threaten to tip the scales entirely, placing
privacy in permanent opposition to the progress of knowledge.304 The article
proceeds to explain that the perception of privacy as antiquated and socially
retrograde is wrong. Nonetheless, this criticism has relevance to India. The nation
aspires to move to a knowledge based economy. Information is the basis of
knowledge. The scales must, according to this critique, tip in favour of the paramount
national need for knowledge, innovation and development. These concerns cannot be
discarded and must be factored in. They are based on the need to provide economic
growth and social welfare to large swathes of an impoverished society.
Privacy , Stanford Encyclopaedia of Philosophy (2002) , available at

https://plato.stanford.edu/entries/privacy/ Julie E Cohen, What Privacy Is For, Harvard Law

Review (2013), Vol. 126, at page 1904 Ibid Ibid, at pages 1904-1905.
PART L 139 Another criticism, which is by Robert Bork, questions the choice of fundamental values
of the Constitution by judges of the US Supreme Court and the theory (propounded by Justice
Douglas in Griswold) of the existence of penumbras or zones of privacy created by the Bill of Rights
as a leap of judicial interpretation.305 140 The Stanford Encyclopaedia of Philosophy seeks to offer
an understanding of the literature on privacy in terms of two concepts: reductionism and
coherentism.306 Reductionists are generally critical of privacy while the Coherentists defend
fundamental values of privacy interests. The criticisms of privacy have been broadly summarised as
consisting of the following :
a Thomsons Reductionism307 Judith Jarvis Thomson, in an article published in 1975, noted that
while there is little agreement on the content of privacy, ultimately privacy is a cluster of rights
which overlap with property rights or the right to bodily security. In her view, the right to privacy is
derivative in the sense that a privacy violation is better understood as violation of a more basic right.
For this criticism, see : Robert H Bork, Neutral Principles and some First Amendment Problems,
Indiana Law Journal (Fall 1971), Vol. 47(1), at pages 8-9 Supra note 301 Judith Jarvis Thomson, The
Right to Privacy , Philosophy and Public Affairs (1975), Vol. 4, at pages 295-
314, as cited in Supra note 301
b Posners Economic critique308
Richard Posner, in the Economics of Justice published in 1981, argued that privacy is protected in
ways that are economically inefficient. In his view, privacy should be protected only when access to
information would reduce its value such as when a student is allowed access to a letter of
recommendation for admission, rendering such a letter less reliable. According to Posner, privacy
when manifested as control over information about oneself, is utilised to mislead or manipulate
others.
c Borks critique Robert Bork, in The Tempting of America: The Political Seduction of the Law309,
has been severe in his criticism of the protection of privacy by the US Supreme Court. In his view,
Justice Douglas in Griswold did not derive privacy from some pre-existing right but sought to create
a new right which has no foundation in the Bill of Rights, thereby overstepping the bounds of a
judge by making new law and not by interpreting it.
Many theorists urge that the constitutional right to privacy is more correctly regarded as a right to
liberty.

The powerful counter argument to these criticisms is that while individuals possess multiple
liberties under the Constitution, read in isolation, many of them are not related to the kinds of
concerns that emerge in privacy issues. In this view, liberty is a concept Richard Posner, The
Economics of Justice, Harvard University Press (1981), as cited in Supra note 301 Robert Bork, The
Tempting of America : The Political Seduction of the Law, Simon and Schuster (1990), as cited in
Supra note 301 PART L which is broader than privacy and issues or claims relating to privacy are a
sub-set of claims to liberty.310 Hence it has been argued that privacy protects liberty and that
privacy protection gains for us the freedom to define ourselves and our relations to others311. This
rationale understands the relationship between liberty and privacy by stipulating that while liberty
is a broader notion, privacy is essential for protecting liberty. Recognizing a constitutional right to
privacy is a reaffirmation of the individual interest in making certain decisions crucial to ones
personality and being.
d Feminist critique Many writers on feminism express concern over the use of privacy as a veneer
for patriarchal domination and abuse of women. Patriarchal notions still prevail in several societies
including our own and are used as a shield to violate core constitutional rights of women based on
gender and autonomy. As a result, gender violence is often treated as a matter of family honour
resulting in the victim of violence suffering twice over the physical and mental trauma of her dignity
being violated and the perception that it has cause an affront to honour. Privacy must not be utilised
as a cover to conceal and assert patriarchal mindsets.
Catherine MacKinnon in a 1989 publication titled Towards a Feminist Theory of the State312
adverts to the dangers of privacy when it is used to cover up physical harm done to women by
perpetrating their subjection. Yet, it must also be noticed Supra note 301 Ibid Catherine
MacKinnon, Toward a Feminist Theory of the State, Harvard University Press (1989), as cited in
Supra note 301 PART L that women have an inviolable interest in privacy. Privacy is the ultimate
guarantee against violations caused by programmes not unknown to history, such as state imposed
sterilization programmes or mandatory state imposed drug testing for women. The challenge in this
area is to enable the state to take the violation of the dignity of women in the domestic sphere
seriously while at the same time protecting the privacy entitlements of women grounded in the
identity of gender and liberty. 141 The submission that privacy has no accepted or defined
connotation can be analysed with reference to the evolution of the concept in the literature on the
subject. Some of the leading approaches which should be considered for an insight into the ambit
and content of privacy:
(i) Alan Westin313 defined four basic states of privacy which reflect on the nature and extent of the
involvement of the individual in the public sphere. At the core is solitude the most complete state of
privacy involving the individual in an inner dialogue with the mind and conscience.314 The second
state is the state of intimacy which refers not merely to intimate relations between spouses or
partners but also between family, friends and colleagues. The third state is of anonymity where an
individual seeks freedom from identification despite being in a public space. The fourth state is
described as a state of reservation which is expressed as the need to Westins categorization of
privacy is based on the specific values which it sub-serves. Westin has drawn support from the
distinction made in 1960 by William L. Prosser for the purposes of civil privacy violations or torts,

Westin adopted a value based approach, unlike the harms based approach of Prosser. For Prossers
work, see William L. Prosser, Privacy, California Law Review (1960), Vol. 48(3), pages 383-423.
Bert-Jaap Koops et al., A Typology of Privacy, University of Pennsylvania Journal of International
Law (2017), Vol. 38, Issue 2, at page 496 PART L hold some aspects of ourselves back from others,
either as too personal and sacred or as too shameful and profane to express315.
(ii) Roger Clarke has developed a classification of privacy on Maslows pyramid of values316. The
values described in Maslows pyramid are: self-actualization, self- esteem, love or belonging, safety
and physiological or biological need. Clarkes categories include (a) privacy of the person also known
as bodily privacy. Bodily privacy is violated by compulsory extraction of samples of body fluids and
body tissue and compulsory sterilization; (b) privacy of personal behaviour which is part of a private
space including the home; (c) Privacy of personal communications which is expressed as the
freedom of communication without interception or routine monitoring of ones communication by
others; (d) Privacy of personal data which is linked to the concept of informational privacy.
(iii) Anita Allen has, in a 2011 publication, developed the concept of unpopular privacy317.
According to her, governments must design unpopular privacy laws and duties to protect the
common good, even if privacy is being forced on individuals who may not want it. Individuals under
this approach are not permitted to waive their privacy rights. Among the component elements which
she notices are : (a) physical or spatial privacy illustrated by the privacy in the home; (b)
informational privacy including information data or facts about persons or their communications;
(c) Ibid, at page 497 Ibid, at 498 Ibid, at 500 PART L decisional privacy which protects the right of
citizens to make intimate choices about their rights from intrusion by the State; (d) proprietary
privacy which relates to the protection of ones reputation; (e) associational privacy which protects
the right of groups with certain defined characteristics to determine whom they may include or
exclude.318 Privacy has distinct connotations including (i) spatial control; (ii) decisional autonomy;
and (iii) informational control.319 Spatial control denotes the creation of private spaces. Decisional
autonomy comprehends intimate personal choices such as those governing reproduction as well as
choices expressed in public such as faith or modes of dress. Informational control empowers the
individual to use privacy as a shield to retain personal control over information pertaining to the
person. With regard to informational privacy, it has been stated that :
perhaps the most convincing conception is proposed by Helen Nissenbaum who

argues that privacy is the expectation that information about a person will be treated
appropriately. This theory of contextual integrity believes people do not want to
control their information or become inaccessible as much as they want their
information to be treated in accordance with their expectation (Nissenbaum 2004,
2010, 2011).320 Integrated together, the fundamental notions of privacy have been
depicted in a seminal article published in 2017 titled A Typology of privacy321 in the
University Ibid, at pages 500-501 Bhairav Acharya, The Four Parts of Privacy in
India, Economic & Political Weekly (2015), Vol. 50 Issue 22, at page 32 Ibid, at page
34 Bert-Jaap Koops et al., A Typology of Privacy, University of Pennsylvania Journal
of International Law (2017), Vol. 38 Issue 2, at page 566 PART L of Pennsylvania
Journal of International Law. The article contains an excellent visual depiction of

privacy, which is presented in the following format :
semi-private public zone

personal intimate zone inconspicuous
zone zone secrecy
(emphasis
on)
Freedom communicational proprietary
to be let spatial privacy Privacy
bodily privacy Privacy
alone
informational privacy
(emphasis on) intellectual

Freedom to privacy decisional associational behavioural
self-
development privacy privacy privacy
142 The above diagrammatical representation presents two primary axes: a
horizontal axis consisting of four zones of privacy and a vertical axis which
emphasises two aspects of freedom: the freedom to be let alone and the freedom for
self-development. The nine primary types of privacy are, according to the above
depiction: (i) bodily privacy which reflects the privacy of the physical body. Implicit
in this is the negative freedom of being able to prevent others from violating ones
body or from restraining the freedom of bodily movement; (ii) spatial privacy which
is reflected in the privacy of a private space through which access of others can be
restricted to the space; intimate relations and family life are an apt illustration of
spatial privacy; (iii) communicational privacy which is reflected in enabling an
individual to PART M restrict access to communications or control the use of
information which is communicated to third parties; (iv) proprietary privacy which is
reflected by the interest of a person in utilising property as a means to shield facts,
things or information from others; (v) intellectual privacy which is reflected as an
individual interest in the privacy of thought and mind and the development of
opinions and beliefs; (vi) decisional privacy reflected by an ability to make intimate

decisions primarily consisting ones sexual or procreative nature and decisions in

respect of intimate relations; (vii) associational privacy which is reflected in the
ability of the individual to choose who she wishes to interact with; (viii) behavioural
privacy which recognises the privacy interests of a person even while conducting
publicly visible activities. Behavioural privacy postulates that even when access is
granted to others, the individual is entitled to control the extent of access and
preserve to herself a measure of freedom from unwanted intrusion; and (ix)
informational privacy which reflects an interest in preventing information about the
self from being disseminated and controlling the extent of access to information.
M Constituent Assembly and privacy: limits of originalist interpretation 143 The founding fathers of
the Constitution, it has been urged, rejected the notion of privacy being a fundamental right. Hence
it has been submitted that it would be outside the realm of constitutional adjudication for the Court
to declare a fundamental right to privacy. The argument merits close consideration. PART M 144 On
17 March 1947, K M Munshi submitted Draft articles on the fundamental rights and duties of
citizens to the Sub-committee on fundamental rights. Among the rights of freedom proposed in
clause 5 were the following322 :
(f) the right to the inviolability of his home,
(g) the right to the secrecy of his correspondence,
(h) the right to maintain his person secure by the law of the Union from exploitation
in any manner contrary to law or public authority 145 On 24 March 1947, Dr
Ambedkar submitted a Memorandum and Draft articles on the rights of states and
minorities. Among the draft articles on fundamental rights of citizens was the
following323 :
10. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures, shall not be violated and no warrants
shall issue but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized 146 The draft report of the Sub-committee submitted on 3 April 1947
contained a division between the fundamental rights into justiciable and
non-justiciable rights.
Clause 9(d) and Clause 10 provided as follows324 :
9(d) The right of every citizen to the secrecy of his correspondence. Provision may be
made by law to regulate the interception or detention of articles and messages in
course of transmission by post, telegraph or otherwise on the occurrence of any
public emergency or in the interests of public safety or tranquillity B. Shiva Rao, The
Framing of Indias Constitution, Indian Institute of Public Administration (1967), Vol.
2, at page 75 Ibid, at page 87 Ibid, at page 139 PART M

10. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures, shall not be violated and no warrants
shall issue but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized 147 Dr B N Rau in his notes on the draft report had reservations about clause
10 which were expressed thus325:
Clause 10. If this means that there is to be no search without a courts warrant, it may
seriously affect the powers of investigation of the police. Under the existing law, eg.,
Criminal Procedure Code, section 165 (relevant extracts given below), the police have
certain important powers. Often in the course of investigation, a police officer gets
information that stolen property has been secreted in a certain place. If he searches it
at once, as he can at present, there is a chance of his recovering it; but he has to apply
for a courts warrant, giving full details, the delay involved, under Indian conditions of
distance and lack of transport in the interior may be fatal. A note was submitted by
Sir Alladi Krishnaswamy Iyer on 10 April 1947 objecting to the secrecy of
correspondence mentioned in clause 9(d) and the protection against unreasonable
searches in clause 10326 :
Clause (d). In regard to secrecy of correspondence I raised a point during the

discussions that it need not find a place in chapter on fundamental rights and it had
better be left to the protection afforded by the ordinary law of the land contained in
the various enactments.
There is no such right in the American Constitution. Such a provision finds a place
only in the post-First World War constitutions. The effect of the clauses upon the
sections of the Indian Evidence Act bearing upon privilege will have to be considered.
Restrictions -vide chapter 9, s 120-127. The result of Ibid, at page 152 Ibid, at pages
158-159 PART M this clause will be that every private correspondence will assume the
rank of a State paper, or, in the language of s. 123 and 124, a record relating to the
affairs of State.
A clause like this might checkmate the prosecution in establishing any case of
conspiracy or abetment, the plaintiff being helpless to prove the same by placing
before the court the correspondence that passed between the parties which in all
these cases would furnish the most material evidence. The opening words of the
clause public order and morality would not be of any avail in such cases. On a very
careful consideration of the whole subject I feel that inclusion of such a clause in the
chapter on fundamental rights will lead to endless complications and difficulties in
the administration of justice. It will be for the committee to consider whether a
reconsideration of the clause is called for in the above circumstances.
Clause 10. Unreasonable searches, In regard to this subject I pointed out the difference between the
conditions obtaining in America at the time when the American Constitution was drafted and the

conditions in India obtaining at present after the provisions of the Criminal Procedure Code in this
behalf have been in force for nearly a century. The effect of the clause, as it is, will be to abrogate
some of the provisions of the Criminal Procedure Code and to leave it to the Supreme Court in
particular cases to decide whether the search is reasonable or unreasonable. While I am averse to
reagitating the matter I think it may not be too late for the committee to consider this particular
clause. During the course of the comments and suggestions on the draft Constitution, Jaya Prakash
Narayan suggested the inclusion of the secrecy of postal, telegraphic and telephonic
communications. Such an inclusion was, however, objected to on the following grounds327 :
It is also hardly necessary to include secrecy of postal, telegraphic and telephonic

communications as a fundamental right in the Constitution itself as that might lead
to practical difficulties in B. Shiva Rao, The Framing of Indias Constitution: A Study,
Indian Institute of Public Administration (1968), at pages 219-220 PART M the
administration of the posts and telegraph department. The relevant laws enacted by
the Legislature on the subject (the Indian Post Office Act, 1898 and the Indian
Telegraph Act, 1885) permit interception of communications sent through post,
telegraph or telephone only in specified circumstances, such as, on the occurrence of
an emergency and in the interests of public safety. Eventually, clause 9(d) and clause
10 were dropped from the chapter dealing with fundamental rights.
148 This discussion would indicate that there was a debate during the course of the drafting of the
Constitution on the proposal to guarantee to every citizen the right to secrecy of correspondence in
clause 9(d) and the protection to be secure against unreasonable searches and seizures in their
persons houses, papers and assets. The objection to clause 9(d) was set out in the note of dissent of
Sir Alladi Krishnaswamy Iyer and it was his view that the guarantee of secrecy of correspondence
may lead to every private correspondence becoming a state paper. There was also a feeling that this
would affect the prosecution especially in cases of conspiracy or abetment. Similarly, his objection to
clause 10 was that it would abrogate some of the provisions of the Code of Criminal Procedure. B N
Rau likewise stated that this would seriously affect the powers of investigation of the police. The
clause protecting the secrecy of correspondence was thus dropped on the ground that it would
constitute a serious impediment in prosecutions while the protection against unreasonable searches
and seizures was deleted on the ground that there were provisions in the Code of Criminal
Procedure, 1898 covering the area. The debates of the Constituent Assembly indicate PART M that
the proposed inclusion (which was eventually dropped) was in two specific areas namely
correspondence and searches and seizures. From this, it cannot be concluded that the Constituent
Assembly had expressly resolved to reject the notion of the right to privacy as an integral element of
the liberty and freedoms guaranteed by the fundamental rights.
149 The Constitution has evolved over time, as judicial interpretation, led to the recognition of
specific interests and entitlements. These have been subsumed within the freedoms and liberties
guaranteed by the Constitution. Article 21 has been interpreted by this Court to mean that life does
not mean merely a physical existence. It includes all those faculties by which life is enjoyed. The
ambit of the procedure established by law has been interpreted to mean that the procedure must be
fair, just and reasonable. The coalescence of Articles 14, 19 and 21 has brought into being a

jurisprudence which recognises the inter-relationship between rights. That is how the requirements
of fairness and non-discrimination animate both the substantive and procedural aspects of Article
21. These constitutional developments have taken place as the words of the Constitution have been
interpreted to deal with new exigencies requiring an expansive reading of liberties and freedoms to
preserve human rights under the rule of law. Indias brush with a regime of the suspension of life and
personal liberty in the not too distant past is a grim reminder of how tenuous liberty can be, if the
judiciary is not vigilant. The interpretation of the Constitution cannot be frozen by its original
understanding. The Constitution has evolved and must continuously evolve PART M to meet the
aspirations and challenges of the present and the future. Nor can judges foresee every challenge and
contingency which may arise in the future. This is particularly of relevance in an age where
technology reshapes our fundamental understanding of information, knowledge and human
relationships that was unknown even in the recent past. Hence as Judges interpreting the
Constitution today, the Court must leave open the path for succeeding generations to meet the
challenges to privacy that may be unknown today.
150 The impact of the decision in Cooper is to establish a link between the fundamental rights
guaranteed by Part III of the Constitution. The immediate consequence of the decision is that a law
which restricts the personal liberties contained in Article 19 must meet the test of permissible
restrictions contemplated by Clauses 2 to 6 in relation to the fundamental freedom which is
infringed. Moreover, since the fundamental rights are inter-related, Article 21 is no longer to be
construed as a residue of rights which are not specifically enumerated in Article 19. Both sets of
rights overlap and hence a law which affects one of the personal freedoms under Article 19 would, in
addition to the requirement of meeting the permissible restrictions contemplated in clauses 2 to 6,
have to meet the parameters of a valid procedure established by law under Article 21 where it
impacts on life or personal liberty. The law would be assessed not with reference to its object but on
the basis of its effect and impact on the fundamental rights. Coupled with the breakdown of the
theory that the fundamental rights are water-tight compartments, the post Maneka jurisprudence
infused the test of fairness and reasonableness in determining whether the procedure PART M
established by law passes muster under Article 21. At a substantive level, the constitutional values
underlying each article in the Chapter on fundamental rights animate the meaning of the others.
This development of the law has followed a natural evolution. The basis of this development after all
is that every aspect of the diverse guarantees of fundamental rights deals with human beings. Every
element together with others contributes in the composition of the human personality. In the very
nature of things, no element can be read in a manner disjunctive from the composite whole. The
close relationship between each of the fundamental rights has led to the recognition of
constitutional entitlements and interests. Some of them may straddle more than one, and on
occasion several, fundamental rights. Yet others may reflect the core value upon which the
fundamental rights are founded. Even at the birth of the Constitution, the founding fathers
recognised in the Constituent Assembly that, for instance, the freedom of speech and expression
would comprehend the freedom of the press. Hence the guarantee of free speech and expression has
been interpreted to extend to the freedom of the press. Recognition of the freedom of the press does
not create by judicial fiat, a new fundamental right but is an acknowledgment of that, which lies
embedded and without which the guarantee of free speech and expression would not be complete.
Similarly, Article 21 has been interpreted to include a spectrum of entitlements such as a right to a

clean environment, the right to public health, the right to know, the right to means of
communication and the right to education, besides a panoply of rights in the context of criminal law
and procedure in matters such as handcuffing and speedy trial. The rights which have been held to
flow out of Article 21 include the following:
PART M
(i) The right to go abroad Satwant Singh Sawhney v D Ramarathnam APO New Delhi 328.
(ii) The right against solitary confinement Sunil Batra v Delhi Administration329.
(iii) The right of prisoners against bar fetters Charles Sobraj v Supdt. Central Jail330.
(iv) The right to legal aid M H Hoskot v State of Maharashtra331.
(v) The right to speedy trial Hussainara Khatoon v Home Secretary, State of Bihar332.
(vi) The right against handcuffing Prem Shankar Shukla v Delhi Administration333.
(vii) The right against custodial violence Sheela Barse v State of Maharashtra334.
(viii) The right against public hanging A G of India v Lachma Devi335.
(ix) Right to doctors assistance at government hospitals Paramanand Katara v Union of India336.
(x) Right to shelter Shantistar Builders v N K Totame337.
(xi) Right to a healthy environment Virender Gaur v State of Haryana338.
(xii) Right to compensation for unlawful arrest Rudal Sah v State of Bihar339. (1967) 3 SCR 525
(1978) 4 SCC 494 (1978) 4 SCC 104 (1978) 3 SCC 544 (1980) 1 SCC 81 (1980) 3 SCC 526 (1983) 2
SCC 96 (1989) Suppl.(1) SCC 264 (1989) 4 SCC 286 (1990) 1 SCC 520 (1995) 2 SCC 577 (1983) 4
SCC 141 PART M
(xiii) Right to freedom from torture Sunil Batra v Delhi Administration340.
(xiv) Right to reputation Umesh Kumar v State of Andhra Pradesh341.
(xv) Right to earn a livelihood Olga Tellis v Bombay Municipal Corporation342. Neither is this an
exercise in constitutional amendment brought about by judicial decision nor does it result in the
creation of a new set of fundamental rights. The exercise has been one of interpreting existing rights
guaranteed by the Constitution and while understanding the core of those rights, to define the ambit
of what the right comprehends.

151 The draftsmen of the Constitution had a sense of history both global and domestic as they
attempted to translate their vision of freedom into guarantees against authoritarian behaviour. The
Constitution adopted a democratic form of government based on the rule of law. The framers were
conscious of the widespread abuse of human rights by authoritarian regimes in the two World Wars
separated over a period of two decades. The framers were equally conscious of the injustice suffered
under a colonial regime and more recently of the horrors of partition. The backdrop of human
suffering furnished a reason to preserve a regime of governance based on the rule of law which
would be subject to democratic accountability against a violation of fundamental freedoms. The
content of the fundamental rights evolved over the (1978) 4 SCC 494 (2013) 10 SCC 591 (1985) 3
SCC 545 PART M course of our constitutional history and any discussion of the issues of privacy,
together with its relationship with liberty and dignity, would be incomplete without a brief reference
to the course of history as it unravels in precedent. By guaranteeing the freedoms and liberties
embodied in the fundamental rights, the Constitution has preserved natural rights and ring-fenced
them from attempts to attenuate their existence.
Technology, as we experience it today is far different from what it was in the lives of the generation
which drafted the Constitution. Information technology together with the internet and the social
media and all their attendant applications have rapidly altered the course of life in the last decade.
Todays technology renders models of application of a few years ago obsolescent. Hence, it would be
an injustice both to the draftsmen of the Constitution as well as to the document which they
sanctified to constrict its interpretation to an originalist interpretation. Todays problems have to be
adjudged by a vibrant application of constitutional doctrine and cannot be frozen by a vision suited
to a radically different society. We describe the Constitution as a living instrument simply for the
reason that while it is a document which enunciates eternal values for Indian society, it possesses
the resilience necessary to ensure its continued relevance. Its continued relevance lies precisely in its
ability to allow succeeding generations to apply the principles on which it has been founded to find
innovative solutions to intractable problems of their times. In doing so, we must equally understand
that our solutions must continuously undergo a process of re-engineering. PART N N Is the
statutory protection to privacy reason to deny a constitutional right? 152 The Union government and
some of the States which have supported it have urged this Court that there is a statutory regime by
virtue of which the right to privacy is adequately protected and hence it is not necessary to read a
constitutional right to privacy into the fundamental rights. This submission is sought to be fortified
by contending that privacy is merely a common law right and the statutory protection is a reflection
of that position.
153 The submission betrays lack of understanding of the reason why rights are protected in the first
place as entrenched guarantees in a Bill of Rights or, as in the case of the Indian Constitution, as
part of the fundamental rights. Elevating a right to the position of a constitutionally protected right
places it beyond the pale of legislative majorities. When a constitutional right such as the right to
equality or the right to life assumes the character of being a part of the basic structure of the
Constitution, it assumes inviolable status: inviolability even in the face of the power of amendment.
Ordinary legislation is not beyond the pale of legislative modification. A statutory right can be
modified, curtailed or annulled by a simple enactment of the legislature. In other words, statutory
rights are subject to the compulsion of legislative majorities. The purpose of infusing a right with a

constitutional element is precisely to provide it a sense of immunity from popular opinion and, as its
reflection, from legislative annulment. Constitutionally protected rights embody the liberal belief
that personal liberties of the individual are so sacrosanct that it is necessary to ensconce them in a
PART O protective shell that places them beyond the pale of ordinary legislation. To negate a
constitutional right on the ground that there is an available statutory protection is to invert
constitutional theory. As a matter of fact, legislative protection is in many cases, an acknowledgment
and recognition of a constitutional right which needs to be effectuated and enforced through
protective laws. For instance, the provisions of Section 8(1)(j) of the Right to Information Act, 2005
which contain an exemption from the disclosure of information refer to such information which
would cause an unwarranted invasion of the privacy of the individual.
But the important point to note is that when a right is conferred with an entrenched constitutional
status in Part III, it provides a touchstone on which the validity of executive decision making can be
assessed and the validity of law can be determined by judicial review. Entrenched constitutional
rights provide the basis of evaluating the validity of law. Hence, it would be plainly unacceptable to
urge that the existence of law negates the rationale for a constitutional right or renders the
constitutional right unnecessary.
O Not an elitist construct
154 The Attorney General argued before us that the right to privacy must be
forsaken in the interest of welfare entitlements provided by the State. In our view, the submission
that the right to privacy is an elitist construct which stands apart from the PART O needs and
aspirations of the large majority constituting the rest of society, is unsustainable. This submission
betrays a misunderstanding of the constitutional position. Our Constitution places the individual at
the forefront of its focus, guaranteeing civil and political rights in Part III and embodying an
aspiration for achieving socio- economic rights in Part IV. The refrain that the poor need no civil
and political rights and are concerned only with economic well-being has been utilised though
history to wreak the most egregious violations of human rights. Above all, it must be realised that it
is the right to question, the right to scrutinize and the right to dissent which enables an informed
citizenry to scrutinize the actions of government. Those who are governed are entitled to question
those who govern, about the discharge of their constitutional duties including in the provision of
socio-economic welfare benefits. The power to scrutinize and to reason enables the citizens of a
democratic polity to make informed decisions on basic issues which govern their rights. The theory
that civil and political rights are subservient to socio-economic rights has been urged in the past and
has been categorically rejected in the course of constitutional adjudication by this Court.
155 Civil and political rights and socio-economic rights do not exist in a state of antagonism. The
conditions necessary for realising or fulfilling socio-economic rights do not postulate the subversion
of political freedom. The reason for this is simple. Socio-economic entitlements must yield true
benefits to those for whom they are intended. This can be achieved by eliminating rent-seeking
behaviour and by PART O preventing the capture of social welfare benefits by persons who are not

entitled to them. Capture of social welfare benefits can be obviated only when political systems are
transparent and when there is a free flow of information. Opacity enures to the benefit of those who
monopolize scarce economic resources. On the other hand, conditions where civil and political
freedoms flourish ensure that governmental policies are subjected to critique and assessment. It is
this scrutiny which sub-serves the purpose of ensuring that socio-economic benefits actually
permeate to the under- privileged for whom they are meant. Conditions of freedom and a vibrant
assertion of civil and political rights promote a constant review of the justness of socio-economic
programmes and of their effectiveness in addressing deprivation and want. Scrutiny of public affairs
is founded upon the existence of freedom. Hence civil and political rights and socio-economic rights
are complementary and not mutually exclusive. 156 Some of these themes have been addressed in
the writings of the Nobel laureate, Amartya Sen. Sen compares the response of many
non-democratic regimes in critical situations such as famine with the responses of democratic
societies in similar situations.343 His analysis reveals that the political immunity enjoyed by
government leaders in authoritarian states prevents effective measures being taken to address such
conditions:
For example, Botswana had a fall in food production of 17 percent and Zimbabwe one
of 38 percent between 1979-1981 and 1983-
1984, in the same period in which the food production decline Amartya Sen, Development as
Freedom, Oxford University Press (2000), at page 178-179 PART O amounted to a relatively modest
11 or 12 percent in Sudan and Ethiopia. But while Sudan and Ethiopia, with comparatively smaller
declines in food output, had massive famines, Botswana and Zimbabwe had none, and this was
largely due to timely and extensive famine prevention policies by these latter countries. Had the
governments in Botswana and Zimbabwe failed to undertake timely action, they would have been
under severe criticism and pressure from the opposition and would have gotten plenty of flak from
newspapers. In contrast, the Ethiopian and Sudanese governments did not have to reckon with
those prospects, and the political incentives provided by democratic institutions were thoroughly
absent in those countries. Famines in Sudan and Ethiopia and in many other countries in
sub-Saharan Africa were fed by the political immunity enjoyed by governmental leaders in
authoritarian countries. This would seem to apply to the present situation in North Korea as
well.344 In the Indian context, Sen points out that the Bengal famine of 1943 was made viable not
only by the lack of democracy in colonial India but also by severe restrictions on reporting and
criticism imposed on the Indian press, and the voluntary practice of silence on the famine that the
British-owned media chose to follow345. Political liberties and democratic rights are hence regarded
as constituent components of development.346 In contrast during the drought which took place in
Maharashtra in 1973, food production failed drastically and the per capita food output was half of
that in sub-Saharan Africa. Yet there was no famine in Maharashtra where five million people were
employed in rapidly organized public projects while there were Ibid, at page 179 Amartya Sen, The
Idea of Justice, Penguin Books (2009), at page 339 Ibid, at page 347 PART O substantial famines in
sub-Saharan Africa. This establishes what he terms as the protective role of democracy. Sen has
analysed the issue succinctly:
The causal connection between democracy and the non-

occurrence of famines is not hard to seek. Famines kill millions of people in different countries in
the world, but they dont kill the rulers. The kings and the presidents, the bureaucrats and the
bosses, the military leaders and the commanders never are famine victims. And if there are no
elections, no opposition parties, no scope for uncensored public criticism, then those in authority
dont have to suffer the political consequences of their failure to prevent famines. Democracy, on the
other hand, would spread the penalty of famines to the ruling groups and political leaders as well.
This gives them the political incentive to try to prevent any threatening famine, and since famines
are in fact easy to prevent (the economic argument clicks into the political one at this stage), the
approaching famines are firmly prevented.347 There is, in other words, an intrinsic relationship
between development and freedom:
development cannot really be seen merely as the process of increasing inanimate

objects of convenience, such as raising the GNP per head, or promoting
industrialization or technological advance or social modernization. These
accomplishments are, of course, valuable often crucially important but their value
must depend on what they do to the lives and freedoms of the people involved. For
adult human beings, with responsibility for choice, the focus must ultimately be on
whether they have the freedom to do what they have reason to value. In this sense,
development consists of expansion of peoples freedom.348 Amartya Sen,
Development as Freedom, Oxford University Press (2000), at page 180 Amartya Sen,
The Country of First Boys, Oxford University Press, Pg.80-81 PART O In an article
recently published in July 2017 in Public Law, titled The Untapped Potential of the
Mandela Constitution349, Justice Edwin Cameron, a distinguished judge of the
Constitutional Court of South Africa, has provided a telling example.
President Mbeki of South Africa doubted the medical science underlying AIDS and effectively
obstructed a feasible ARV programme. This posture of AIDS denialism plunged South Africa into a
crisis of public health as a result of which the drug Nevirapine which was offered to the South
African government free of charge was refused. Eventually it was when the South African
Constitutional Court intervened in the Treatment Action Campaign decision350 that it was held that
the government had failed the reasonableness test. The article notes that as a result of the decision,
the drug became available and hundreds and thousands, perhaps millions, of lives have been saved.
Besides, the article notes that the judgment changed the public discourse of AIDS and cut-through
the obfuscation of denials and in doing so, dealt it a fatal blow351.
Examples can be multiplied on how a state sanctioned curtain of misinformation or state mandated
black-outs of information can cause a serious denial of socio- economic rights. The strength of
Indian democracy lies in the foundation provided by Edwin Cameron and Max Taylor, The
Untapped Potential of the Mandela Constitution, Public Law (2017), at page 394 Minister of Health
v Treatment Action Campaign, (2002) 5 SA 721 (CC) Edwin Cameron and Max Taylor, The
Untapped Potential of the Mandela Constitution, Public Law (2017), at page 395 PART P the
Constitution to liberty and freedom. Liberty and freedom are values which are intrinsic to our
constitutional order. But they also have an instrumental value in creating conditions in which
socio-economic rights can be achieved. India has no iron curtain. Our society prospers in the

shadow of its drapes which let in sunshine and reflect a multitude of hues based on language,
religion, culture and ideologies. 157 We need also emphasise the lack of substance in the submission
that privacy is a privilege for the few. Every individual in society irrespective of social class or
economic status is entitled to the intimacy and autonomy which privacy protects. It is privacy as an
intrinsic and core feature of life and personal liberty which enables an individual to stand up against
a programme of forced sterilization. Then again, it is privacy which is a powerful guarantee if the
State were to introduce compulsory drug trials of non-consenting men or women. The sanctity of
marriage, the liberty of procreation, the choice of a family life and the dignity of being are matters
which concern every individual irrespective of social strata or economic well being. The pursuit of
happiness is founded upon autonomy and dignity. Both are essential attributes of privacy which
makes no distinction between the birth marks of individuals.
P Not just a common law right 158 There is also no merit in the defence of the Union and the States
that privacy is merely a common law right. The fact that a right may have been afforded protection
at common law does not constitute a bar to the constitutional recognition of the right. PART P The
Constitution recognises the right simply because it is an incident of a fundamental freedom or
liberty which the draftsperson considered to be so significant as to require constitutional protection.
Once privacy is held to be an incident of the protection of life, personal liberty and of the liberties
guaranteed by the provisions of Part III of the Constitution, the submission that privacy is only a
right at common law misses the wood for the trees. The central theme is that privacy is an intrinsic
part of life, personal liberty and of the freedoms guaranteed by Part III which entitles it to protection
as a core of constitutional doctrine. The protection of privacy by the Constitution liberates it, as it
were, from the uncertainties of statutory law which, as we have noted, is subject to the range of
legislative annulments open to a majoritarian government. Any abridgment must meet the
requirements prescribed by Article 21, Article 19 or the relevant freedom. The Constitutional right is
placed at a pedestal which embodies both a negative and a positive freedom. The negative freedom
protects the individual from unwanted intrusion. As a positive freedom, it obliges the State to adopt
suitable measures for protecting individual privacy. An apt description of this facet is contained in
the Max Planck Encyclopaedia of Comparative Constitutional Law, in its section on the right to
privacy352 :
2. The right to privacy can be both negatively and positively defined. The negative
right to privacy entails the individuals are protected from unwanted intrusion by both
the state and private actors into their private life, especially features that define their
personal identity such as sexuality, religion and political affiliation, ie the inner core
of a persons private life.
Anna Jonsson Cornell, Right to Privacy, Max Planck Encyclopaedia of Comparative Constitutional
Law PART Q The positive right to privacy entails an obligation of states to remove obstacles for an
autonomous shaping of individual identities. Q Substantive Due Process 159 During the course of
the hearing, Mr Rakesh Dwivedi, learned Senior Counsel appearing on behalf of the State of Gujarat
submitted that the requirement of a valid law with reference to Article 21 is not conditioned by the
notion of substantive due process. Substantive due process, it was urged is a concept which has been
evolved in relation to the US Constitution but is inapposite in relation to the Indian Constitution.

The history surrounding the drafting of Article 21 indicates a conscious decision by the Constituent
Assembly not to introduce the expression due process of law which is incorporated in the Fifth and
Fourteenth Amendments of the US Constitution. The draft Constitution which was prepared by the
Drafting Committee chaired by Dr B R Ambedkar contained a due process clause to the effect that
nor any State shall deprive any person of life, liberty and property without due process of law. The
clause as originally drafted was subjected to three important changes in the Constituent Assembly.
Firstly, the reference to property was deleted from the above clause of the draft Constitution. The
members of the Constituent Assembly perceived that retaining the right to property as part of the
due process clause would pose a serious impediment to legislative reform particularly with the
redistribution of property. The second important change arose from a meeting which Shri B N Rau
had with Justice PART Q Felix Frankfurter in the US. In the US particularly in the years around the
Great Depression, American Courts had utilised the due process clause to invalidate social welfare
legislation. In the Lochner353 era, the US Supreme Court invalidated legislation such as statutes
prohibiting employers from making their employees work for more than ten hours a day or sixty
hours a week on the supposition that this infringed the liberty of contract. Between 1899 and 1937
(excluding the civil rights cases), 159 US Supreme Court decisions held state statutes
unconstitutional under the due process and equal protection clauses. Moreover, 25 other statutes
were struck down under the due process clause together with other provisions of the American
Constitution.354 Under the due process clause, the US Supreme Court struck down labour
legislation prohibiting employers from discriminating on the grounds of union activity; regulation of
wages; regulation of prices for commodities and services; and legislation denying entry into
business. 355 These decisions were eventually distinguished or overruled in 1937 and thereafter.356
160 The Constituent Assembly, in this background, made a second important change in the original
draft by qualifying the expression liberty with the word personal. Shri B N Rau suggested that if this
qualification were not to be introduced, Lochner v New York, 198 US 45 (1905) William B Lockhart,
et al, Constitutional Law: Cases- Comments-Questions, West Publishing Co. (1986), 6th edition, at
page 394 Adair v United States, 208 US 161, 28 S. Ct. 277, 52 L.Ed. 436 (1908) (fifth amendment);
Adkins v Childrens Hosp. 261 US 525, 43 S.Ct. 22, 70 L.Ed (1923) (fifth amendment); Tyson & Bro.
v. Banton, 273 US 418, 47 S.Ct. 426, 71 L.Ed. 718 (1927); and New State Ice Co. v. Liebmann, 285 US
262, 52 S Ct. 371, 76 L.Ed. 747 (1932) NLRB v Jones & Laughlin Stell Corp. (1937);
West Coast Hotel Co. v Parrish, 300 US 379, 57 S. Ct. 578, 81 L.Ed. 703 (1937) PART Q even price
control legislation would be interpreted as interfering with the opportunity of contract between
seller and buyer (see in this context B Shiva Raos The Framing of Indias Constitution: A Study 357).
161 The third major change which the Constituent Assembly made was that the phrase due process
of law was deleted from the text of the draft Constitution. Following B N Raus meeting with Justice
Frankfurter, the Drafting Committee deleted the phrase due process of law and replaced it with
procedure established by law. Granville Austin refers to the interaction between Frankfurter and B
N Rau and the reason for the deletion358 :
Soon after, Rau began his trip to the United States, Canada, Eire, and England to talk
with justices, constitutionalists, and statesmen about the framing of the Constitution.
In the United States he met Supreme Court Justice Felix Frankfurter, who told him

that he considered the power of judicial review implied in the due process clause both
undemocratic because a few judges could veto legislation enacted by the
representatives of a nation and burdensome to the Judiciary. Frankfurter had been
strongly influenced by the Harvard Law Schools great constitutional lawyer, James
Bradley Thayer, who also feared that too great a reliance on due process as a
protection against legislative oversight or misbehaviour might weaken the democratic
process. Thayers views had impressed Rau even before he met Frankfurter. In his
Constitutional Precedents, Rau had pointed out that Thayer and others had drawn
attention to the dangers of attempting to find in the Supreme Court instead of in the
lessons of experience a safeguard against the mistakes of the representatives of
people. B. Shiva Rao, The Framing of Indias Constitution: A Study, Indian Institute
of Public Administration (1968), at page 235. See also B. Shiva Rao, The Framing of
Indias Constitution, Vol. 2, at pages 20-36, 147-153 Granville Austin, The Indian
Constitution: Cornerstone of a Nation, Oxford University Press (1966), at page103
PART Q Though several members of the Constituent Assembly spoke against the
deletion, Sir Alladi Krishnaswamy Ayyar supported the move on the ground that the
expression due process would operate as a great handicap for all social legislation and
introduce judicial vagaries into the moulding of law359. In his words360 :
In the development of the doctrine of due process the United States Supreme Court
has not adopted a consistent view at all and the decisions are conflicting The
Minimum Wage Law or a Restraint on Employment have in some cases been
regarded as an invasion of personal liberty and freedom, by the United States
Supreme Court in its earlier decisions, the theory being that it is an essential part of
personal liberty that every person in the world be she a woman, be he a child over
fourteen years of age or be he a labourer, has the right to enter into any contract he or
she liked and it is not the province of other people to interfere with that liberty. On
that ground, in the earlier decisions of Supreme Court it has been held that the
Minimum Wages Laws are invalid as invading personal liberty The clause may serve
as a great handicap for all social legislation, and for the protection of women I trust
that the House will take into account the various aspects of this question, the future
progress of India, the well-being and the security of the States, the necessity of
maintaining a minimum of liberty, the need for co-ordinating social control and
personal liberty, before coming to a decision. One thing also will have to be taken into
account, viz., that the security of the State is far from being so secure as we are
imagining at present On the other hand, several members of the Constituent
Assembly preferred the retention of the phrase due process, among them being Dr
Sitaramayya, T T Krishnamachari, K Santhanam, M A Ayyangar, Dr B V Keskar, S L
Saksena, Thakur Constituent Assembly Debates, Vol. 7 (6th December 1948),
available at http://parliamentofindia.nic.in/ls/debates/vol7p20b.htm Ibid PART Q
Das Bhargava, Hukam Singh and four members of the Muslim League.361 K M
Munshi stated that362 :

a substantive interpretation of due process could not apply to liberty of contract the
basis on which the United States Supreme Court had, at the beginning of the century,
declared some social legislation to be an infringement of due process and hence
unconstitutional but only to liberty of person, because personal had been added to
qualify liberty. When a law has been passed which entitles the government to take
away the personal liberty of an individual, Munshi said, the court will consider
whether the law which has been passed is such as is required by the exigencies of the
case and therefore, as I said, the balance will be struck between individual liberty and
social control. Other Assembly members agreed: whilst not wishing to impede the
passage of social reform legislation they sought to protect the individuals personal
liberty against prejudicial action by an arbitrary Executive. Dr B R Ambedkar in an
insightful observation, presented the merits and demerits of the rival viewpoints
dispassionately. In his words363 :
There are two views on this point. One view is this; that the legislature may be trusted
not to make any law which would abrogate the fundamental rights of man, so to say,
the fundamental rights which apply to every individual, and consequently, there is no
danger arising from the introduction of the phrase due process. Another view is this :
that it is not possible to trust the legislature;
the legislature is likely to err, is likely to be led away by passion, by party prejudice,
by party considerations, and the legislature may make a law which may abrogate
what may be regarded as the fundamental principles which safeguard the individual
rights of a citizen. We are therefore placed in two difficult positions. One is to give the
judiciary the authority to sit in judgment over the will of the legislature and to
question the law made by the legislature on the ground that it is not good law, in
consonance with fundamental principles. Is that a desirable principle? The second
position is that Granville Austin (Supra note 358), at page 105 Ibid, at pages 105-106
Constituent Assembly Debates, Vol. 7 (13th December 1948), available at
http://parliamentofindia.nic.in/ls/debates/vol7p25a.htm PART Q the legislature
ought to be trusted not to make bad laws. It is very difficult to come to any definite
conclusion. There are dangers on both sides. For myself I cannot altogether omit the
possibility of a Legislature packed by party men making laws which may abrogate or
violate what we regard as certain fundamental principles affecting the life and liberty
of an individual. At the same time, I do not see how five or six gentlemen sitting in
the Federal or Supreme Court examining laws made by the Legislature and by dint of
their own individual conscience or their bias or their prejudices be trusted to
determine which law is good and which law is bad. It is rather a case where a man has
to sail between Charybdis and Scylla and I therefor would not say anything. I would
leave it to the House to decide in any way it likes. The amendments proposed by some
members to reintroduce due process were rejected on 13 December 1948 and the
phrase due process of law was deleted from the original draft Constitution. However,
Article 22 was introduced into the Constitution to protect against arbitrary arrest and
detention by incorporating several safeguards.

162 In Gopalan, the Preventive Detention Act, 1950 was challenged on the ground that it denied
significant procedural safeguards against arbitrary detention. The majority rejected the argument
that the expression procedure established by law meant procedural due process. Chief Justice Kania
noted that Article 21 of our Constitution had consciously been drawn up by the draftsmen so as to
not use the word due process which was used in the American Constitution. Hence it was
impermissible to read the expression procedure established by law to mean procedural due process
or as requiring compliance with natural justice. Justice Patanjali Sastri held that reading the
expression due process of law into the Constitution was impermissible since it would lead to those
subtle and elusive criteria PART Q implied in the phrase which it was the deliberate purpose of the
framers of our Constitution to avoid. Similarly, Justice Das also observed that our Constitution
makers had deliberately declined to adopt the uncertain and shifting American doctrine of due
process of law which could not, therefore, be read into Article 21. Hence, the view of the majority
was that once the procedure was established by a validly enacted law, Article 21 would not be
violated. 163 In his celebrated dissent, Justice Fazl Ali pointed out that the phrase procedure
established by law was borrowed from the Japanese Constitution (which was drafted under
American influence at the end of the Second World War) and hence the expression means
procedural due process. In Justice Fazl Alis view the deprivation of life and personal liberty under
Article 21, had to be preceded by (i) a notice; (ii) an opportunity of being heard; (iii) adjudication by
an impartial tribunal; and (iv) an orderly course of procedure. Formulating these four principles,
Justice Fazl Ali held thus:
Article 21 purports to protect life and personal liberty, and it would be a precarious
protection and a protection not worth having, if the elementary principle of law
under discussion which, according to Halsbury is on a par with fundamental rights, is
to be ignored and excluded. In the course of his arguments, the learned counsel for
the petitioner repeatedly asked whether the Constitution would permit a law being
enacted, abolishing the mode of trial permitted by the existing law and establishing
the procedure of trial by battle or trial by ordeal which was in vogue in olden times in
England. The question envisages something which is not likely to happen, but it does
raise a legal problem which can perhaps be met only in this way that if the expression
procedure established by law simply means any procedure established or enacted by
statute it will be difficult to give a negative answer to the question, but if the word law
includes what I have endeavoured to show it does, such an answer may be justified. It
seems to me that there is nothing PART Q revolutionary in the doctrine that the
words procedure established by law must include the four principles set out in
Professor Willis book, which, as I have already stated, are different aspects of the
same principle and which have no vagueness or uncertainty about them. These
principles, as the learned author points out and as the authorities show, are not
absolutely rigid principles but are adaptable to the circumstances of each case within
certain limits. I have only to add that it has not been seriously controverted that law
in this article means valid law and procedure means certain definite rules of
proceeding and not something which is a mere pretence for procedure.364 In
Maneka, where the passport of the petitioner was impounded without furnishing
reasons, a majority of judges found that the expression procedure established by law

did not mean any procedure howsoever arbitrary or fanciful. The procedure had to be
fair, just and reasonable. The views of Justices Chandrachud, Bhagwati and Krishna
Iyer emerge from the following brief extracts:
Chandrachud, J.:
But the mere prescription of some kind of procedure cannot ever meet the mandate
of Article 21. The procedure prescribed by law has to be fair, just and reasonable, not
fanciful, oppressive or arbitrary.365 Bhagwati, J.:
The principle of reasonableness, which legally as well as philosophically, is an

essential element of equality or non- arbitrariness pervades Article 14 like a brooding
omnipresence and the procedure contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with Article 14. It must be right and just
and fair and not arbitrary, fanciful or oppressive;
otherwise, it would be no procedure at all and the requirement of Article 21 would not
be satisfied.366 Gopalan (Supra note 3), at pages 60-61 (para 77) Maneka (Supra
note 5), at page 323 (para 48) Ibid, at page 284 (para 7) PART Q Krishna Iyer, J.:
So I am convinced that to frustrate Article 21 by relying on any formal adjectival

statute, however, flimsy or fantastic its provisions be, is to rob what the constitution
treasures.
To sum up, procedure in Article 21 means fair, not formal procedure. Law is reasonable law, not any
enacted piece.367 Soon after the decision in Maneka, the Supreme Court considered a challenge to
the provisions for solitary confinement under Section 30(2) of the Prisons Act, 1894 which
stipulated that a prisoner under sentence of death is to be kept in a cell apart from other prisoners.
In Sunil Batra v Delhi Administration368, the Court pointed out that Sections 73 and 74 of the Penal
Code which contain a substantive punishment by way of solitary confinement was not under
challenge. Section 30(2) of the Prisons Act was read down by holding that the expression under
sentence of death would apply only after the entire process of remedies had been exhausted by the
convict and the clemency petition had been denied. Justice D A Desai, speaking for the majority,
held that:
the word law in the expression procedure established by law in Article 21 has been
interpreted to mean in Maneka Gandhis case that the law must be right, just and fair
and not arbitrary, fanciful or oppressive.369 Ibid, at page 338 (paras 82 and 85)
(1978) 4 SCC 494 Ibid, at pages 574-575 (para 228) PART Q Justice Krishna Iyer took
note of the fact that our Constitution does not contain a due process clause and
opined that after the decision in Maneka, the absence of such a clause would make no
difference:

true, our Constitution has no due process clause or the VIIIth Amendment; but, in
this branch of law, after Cooper and Maneka Gandhi the consequence is the same.370
164 A substantive challenge to the constitutional validity of the death penalty on a
conviction on a charge of murder was raised in Bachan Singh371. The judgment
noted:
136. Article 21 reads as under:
No person shall be deprived of his life or personal liberty except according to

procedure established by law. If this Article is expanded in accordance with the
interpretative principle indicated in Maneka Gandhi, it will read as follows:
No person shall be deprived of his life or personal liberty except according to fair, just
and reasonable procedure established by valid law."
In the converse positive form, the expanded Article will read as below:
A person may be deprived of his life or personal liberty in accordance with fair, just
and reasonable procedure established by valid law.372 Bachan Singh clearly involved
a substantive challenge to the constitutional validity of a statutory provision. The
majority adjudicated upon the constitutional challenge under Article 21 and held that
it did not suffer from substantive or procedural invalidity.
Ibid, at page 518 (para 52) (1980) 2 SCC 684 Ibid, at page 730 (para 136) PART Q In his dissent373,
Justice Bhagwati significantly observed that the word procedure under Article 21 would cover the
entire process by which deprivation is effected and that would include not only the adjectival but
also substantive part of law. In the view of the Court:
The word procedure in Article 21 is wide enough to cover the entire process by which
deprivation is effected and that would include not only the adjectival but also the
substantive part of law.374 In Mithu v State of Punjab375 (Mithu), a Constitution
Bench considered the validity of Section 303 of the Penal Code which provided for a
mandatory death penalty where a person commits murder while undergoing a
sentence of life imprisonment. Section 303 excluded the procedural safeguards under
Section 235(2) and 354(3) of the Criminal Procedure Code under which the accused
is required to be heard on the question of sentence and special reasons need to be
adduced for imposing the death sentence. In the course of the judgment,
Chandrachud C J indicated examples of situations where a substantive enactment
could be challenged on the touchstone of Articles 14 and 21. The observations of the
Court, which are extracted below would indicate that while the Court did not use the
expression substantive due process it recognised that a law would be amenable to
challenge under Article 21 not only on the ground that the procedure which it
prescribes is not fair, just and reasonable but (1982) 3 SCC 24 Ibid, at page 55 (para
17) (1983) 2 SCC 277 PART Q on the touchstone of having imposed a penalty which is

savage or, as the Court held, an anathema of civilised jurisprudence :
These decisions have expanded the scope of Article 21 in a significant way and it is
now too late in the day to contend that it is for the legislature to prescribe the
procedure and for the courts to follow it; that it is for the legislature to provide the
punishment and for the courts to impose it. Two instances, undoubtedly extreme,
may be taken by way of illustration for the purpose of showing how the courts are not
bound, and are indeed not free, to apply a fanciful procedure by a blind adherence to
the letter of the law or to impose a savage sentence. A law providing that an accused
shall not be allowed to lead evidence in self-defence will be hit by Articles 14 and 21.
Similarly, if a law were to provide that the offence of theft will be punishable with the
penalty of the cutting of hands, the law will be bad as violating Article 21. A savage
sentence is anathema to the civilized jurisprudence of Article 21. These are, of course,
extreme illustrations and we need have no fear that our legislatures will ever pass
such laws. But these examples serve to illustrate that the last word on the question of
justice and fairness does not rest with the legislature. Just as reasonableness of
restrictions under clauses (2) to (6) of Article 19 is for the courts to determine, so is it
for the courts to decide whether the procedure prescribed by a law for depriving a
person of his life or liberty is fair, just and reasonable.
The question which then arises before us is whether the sentence of death, prescribed
by Section 303 of the Penal Code for the offence of murder committed by a person
who is under a sentence of life imprisonment, is arbitrary and oppressive so as to be
violative of the fundamental right conferred by Article 21.376 (emphasis supplied) In
A K Roy v Union of India377, dealing with the question of preventive detention, a
Constitution Bench of this Court adverted to the conscious decision in the
Constituent Ibid, at pages 284-285 (para 6) (1982) 1 SCC 271 PART Q Assembly to
delete the expression due process of law from Article 21. The Court held that:
The fact that England and America do not resort to preventive detention in normal
times was known to our Constituent Assembly and yet it chose to provide for it,
sanctioning its use for specified purposes. The attitude of two other well-known
democracies to preventive detention as a means of regulating the lives and liberties of
the people was undoubtedly relevant to the framing of our Constitution. But the
framers having decided to adopt and legitimise it, we cannot declare it
unconstitutional by importing our notions of what is right and wrong. The power to
judge the fairness and justness of procedure established by a law for the purposes of
Article 21 is one thing: that power can be spelt out from the language of that article.
Procedural safeguards are the handmaids of equal justice and since, the power of the
government is colossal as compared with the power of an individual, the freedom of
the individual can be safe only if he has a guarantee that he will be treated fairly. The
power to decide upon the justness of the law itself is quite another thing: that power
springs from a due process provision such as is to be found in the 5th and 14th
Amendments of the American Constitution by which no person can be deprived of

life, liberty or property without due process of law.378 (emphasis supplied) In Saroj
Rani v Sudarshan Kumar379, this Court upheld the constitutional validity of the
provision for restitution of conjugal rights contained in Section 9 of the Hindu
Marriage Act, 1955. The Court found that the provision served a social purpose of
preventing the breakdown of marriages and contained safeguards against its being
used arbitrarily.
Ibid, at page 301 (para 35) (1984) 4 SCC 90 PART Q In Mohd. Arif v Supreme
Court380, a Constitution Bench of this Court held that the expression reasonable
procedure in the context of Article 21 would encompass an oral hearing of review
petitions arising out of death penalties. Tracing the history of the evolution of Article
21, Justice Rohinton Fali Nariman, speaking for the majority in the Constitution
Bench, observed as follows:
The wheel has turned full circle. Substantive due process is now to be applied to the
fundamental right to life and liberty.381 More recently, Justice Chelameswar,
speaking for a Bench of two judges in Rajbala v State of Haryana382, has struck a
note of caution, by drawing attention to the position that the expression due process
of law was consciously deleted in the drafting process after the framing of the
Constitution. Hence, in the view of the learned Judge, it would be inappropriate to
incorporate notions of substantive due process adopted in the US while examining
the constitutionality of Indian legislation. The Court observed:
From the above extract from McDowell & Co. case it is clear that the courts in this
country do not undertake the task of declaring a piece of legislation unconstitutional
on the ground that the legislation is arbitrary since such an exercise implies a value
judgment and courts do not examine the wisdom of some specific provision of the
Constitution. To undertake such an examination would amount to virtually importing
the doctrine of substantive due process employed by the American Supreme Court at
an earlier point of time while examining the constitutionality of Indian legislation. As
pointed out in the above extract, even in United States the doctrine is currently of
doubtful legitimacy. This Court long back in A.S.
(2014) 9 SCC 737 Ibid, at page 756 (para 28) (2016) 2 SCC 445 PART Q Krishna v.
State of Madras [1957 SCR 399] declared that the doctrine of due process has no
application under the Indian Constitution. As pointed out by Frankfurter, J.
arbitrariness became a mantra.383 (emphasis supplied) The constitutional history
surrounding the drafting of Article 21 contains an abundant reflection of a deliberate
and studied decision of the Constituent Assembly to delete the expression due
process of law from the draft Constitution when the Constitution was adopted. In the
Constituent Assembly, the Drafting Committee chaired by Dr B R Ambedkar had
included the phrase but it came to be deleted after a careful evaluation of the vagaries
of the decision making process in the US involving interpretation of the due process
clause. Significantly, present to the mind of the framers of our Constitution was the

invalidation of social welfare legislation in the US on the anvil of the due process
clause on the ground that it violated the liberty of contract of men, women and
children to offer themselves for work in a free market for labour. This model
evidently did not appeal to those who opposed the incorporation of a similar phrase
into the Indian Constitution.
Yet the debates in the Constituent Assembly indicate that there was a substantial body of opposition
to the deletion of the due process clause, which eventually led Dr B R Ambedkar to objectively sum
up the rival view points for decision by the House. Evidently due process was substituted with the
expression procedure established by law. Liberty was qualified by personal.
Ibid, at page 481 (para 64) PART Q Having noticed this, the evolution of Article 21, since the
decision in Cooper indicates two major areas of change. First, the fundamental rights are no longer
regarded as isolated silos or water tight compartments. In consequence, Article 14 has been held to
animate the content of Article 21. Second, the expression procedure established by law in Article 21
does not connote a formalistic requirement of a mere presence of procedure in enacted law. That
expression has been held to signify the content of the procedure and its quality which must be fair,
just and reasonable. The mere fact that the law provides for the deprivation of life or personal liberty
is not sufficient to conclude its validity and the procedure to be constitutionally valid must be fair,
just and reasonable. The quality of reasonableness does not attach only to the content of the
procedure which the law prescribes with reference to Article 21 but to the content of the law itself. In
other words, the requirement of Article 21 is not fulfilled only by the enactment of fair and
reasonable procedure under the law and a law which does so may yet be susceptible to challenge on
the ground that its content does not accord with the requirements of a valid law. The law is open to
substantive challenge on the ground that it violates the fundamental right.
In dealing with a substantive challenge to a law on the ground that it violates a fundamental right,
there are settled principles of constitutional interpretation which hold the field. The first is the
presumption of constitutionality384 which is based on the Charanjit Lal Chowdhury v. The Union of
India, AIR 1951 SC 41 ; Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar, AIR 1958 SC 538 ;
Burrakur Coal Co. Ltd. v. Union of India AIR 1961 SC 954 ; Pathumma v. State of Kerala (1970) 2
SCR 537 ; R.K. Garg v. Union of India, (1981) 4 SCC 675 ; State of Bihar v. Bihar Distillery Limited,
AIR 1997 SC 1511 ; State of Andhra Pradesh v. K. Purushottam Reddy (2003) 9 SCC 564, ; Mardia
Chemicals Ltd. v. Union of India, (2004) 4 SCC 311 ; State of Gujarat v. Mirzapur Moti Kureshi
Kassab Jamat, PART Q foundational principle that the legislature which is entrusted with the duty
of law making best understands the needs of society and would not readily be assumed to have
transgressed a constitutional limitation. The burden lies on the individual who asserts a
constitutional transgression to establish it. Secondly, the Courts tread warily in matters of social and
economic policy where they singularly lack expertise to make evaluations. Policy making is
entrusted to the state.385 The doctrine of separation of powers requires the Court to allow deference
to the legislature whose duty it is to frame and enact law and to the executive whose duty it is to
enforce law. The Court would not, in the exercise of judicial review, substitute its own opinion for
the wisdom of the law enacting or law enforcing bodies. In the context of Article 19, the test of
reasonableness was explained in the erudite words of Chief Justice Patanjali Sastri in State of

Madras v V G Row386, where the learned Chief Justice held thus:
It is important in this context to bear in mind that the test of reasonableness,

wherever prescribed, should be applied to each individual statute impugned, and no
abstract standard, or general pattern of reasonableness can be laid down as
applicable to all cases. The nature of the right alleged to have been infringed, the
underlying purpose of the restrictions imposed, the extent and urgency of the evil
sought to be remedied thereby, the disproportion of the imposition, the prevailing
conditions at the time, should all enter into the judicial verdict. In evaluating 2005
(8) SCC 534 ; Bhanumati v. State of Uttar Pradesh, (2010) 12 SCC 1 ; K.T. Plantation
Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1 ; State of Madhya Pradesh v. Rakesh
Kohli, (2012) 6 SCC 312 ; Namit Sharma v.
Union of India, (2013) 1 SCC 745 R.K. Garg v. Union of India, (1981) 4 SCC 675; Maharashtra State
Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kurmarsheth, AIR 1984
SC 1543; State of Andhra Pradesh v. McDowell, (1996) 3 SCC 709 ; Union of India v. Azadi Bachao
Andolan, (2004) 10 SCC 1 ; State of U.P. v. Jeet S. Bisht, (2007) 6 SCC 586 ; K.T. Plantation Pvt. Ltd.
v. State of Karnataka, (2011) 9 SCC 1 ; Bangalore Development Authority v. The Air Craft Employees
Cooperative Society Ltd., 2012 (1) SCALE 646 (1952) SCR 597 PART Q such elusive factors and
forming their own conception of what is reasonable, in all the circumstances of a given case, it is
inevitable that the social philosophy and the scale of values of the judges participating in the
decision should play an important part, and the limit of their interference with legislative judgment
in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering
reflection that the Constitution is meant not only for people of their way of thinking but for all, and
that the majority of the elected representatives of the people have, in authorizing the imposition of
the restrictions, considered them to be reasonable.387 (emphasis supplied) 165 The Court, in the
exercise of its power of judicial review, is unquestionably vested with the constitutional power to
adjudicate upon the validity of a law. When the validity of a law is questioned on the ground that it
violates a guarantee contained in Article 21, the scope of the challenge is not confined only to
whether the procedure for the deprivation of life or personal liberty is fair, just and reasonable.
Substantive challenges to the validity of laws encroaching upon the right to life or personal liberty
has been considered and dealt with in varying contexts, such as the death penalty (Bachan Singh)
and mandatory death sentence (Mithu), among other cases. A person cannot be deprived of life or
personal liberty except in accordance with the procedure established by law. Article 14, as a
guarantee against arbitrariness, infuses the entirety of Article 21. The inter-relationship between the
guarantee against arbitrariness and the protection of life and personal liberty operates in a
multi-faceted plane. First, it ensures that the procedure for deprivation must be fair, just and
reasonable. Second, Article 14 impacts both the procedure and the expression law.
Ibid, at page 607 PART Q A law within the meaning of Article 21 must be consistent with the norms
of fairness which originate in Article 14. As a matter of principle, once Article 14 has a connect with
Article 21, norms of fairness and reasonableness would apply not only to the procedure but to the
law as well.

166 Above all, it must be recognized that judicial review is a powerful guarantee against legislative
encroachments on life and personal liberty. To cede this right would dilute the importance of the
protection granted to life and personal liberty by the Constitution. Hence, while judicial review in
constitutional challenges to the validity of legislation is exercised with a conscious regard for the
presumption of constitutionality and for the separation of powers between the legislative, executive
and judicial institutions, the constitutional power which is vested in the Court must be retained as a
vibrant means of protecting the lives and freedoms of individuals. 167 The danger of construing this
as an exercise of substantive due process is that it results in the incorporation of a concept from the
American Constitution which was consciously not accepted when the Constitution was framed.
Moreover, even in the country of its origin, substantive due process has led to vagaries of judicial
interpretation. Particularly having regard to the constitutional history surrounding the deletion of
that phrase in our Constitution, it would be inappropriate to equate the jurisdiction of a
Constitutional Court in India to entertain a substantive challenge to the validity of a law with the
exercise of substantive due process under the US Constitution. Reference to substantive due process
in some of the judgments is PART R essentially a reference to a substantive challenge to the validity
of a law on the ground that its substantive (as distinct from procedural) provisions violate the
Constitution.
R Essential nature of privacy 168 What, then, does privacy postulate? Privacy postulates the
reservation of a private space for the individual, described as the right to be let alone. The concept is
founded on the autonomy of the individual. The ability of an individual to make choices lies at the
core of the human personality. The notion of privacy enables the individual to assert and control the
human element which is inseparable from the personality of the individual. The inviolable nature of
the human personality is manifested in the ability to make decisions on matters intimate to human
life. The autonomy of the individual is associated over matters which can be kept private. These are
concerns over which there is a legitimate expectation of privacy. The body and the mind are
inseparable elements of the human personality. The integrity of the body and the sanctity of the
mind can exist on the foundation that each individual possesses an inalienable ability and right to
preserve a private space in which the human personality can develop. Without the ability to make
choices, the inviolability of the personality would be in doubt. Recognizing a zone of privacy is but
an acknowledgment that each individual must be entitled to chart and pursue the course of
development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and
behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one
is free of social expectations. In that zone of privacy, an individual PART R is not judged by others.
Privacy enables each individual to take crucial decisions which find expression in the human
personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies,
preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition
of heterogeneity, of the right of the individual to be different and to stand against the tide of
conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of
publicity in matters which are personal to his or her life. Privacy attaches to the person and not to
the place where it is associated. Privacy constitutes the foundation of all liberty because it is in
privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy
are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural
culture. 169 Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic

and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally

protected interest in itself. In its instrumental facet, dignity and freedom are inseparably
inter-twined, each being a facilitative tool to achieve the other. The ability of the individual to
protect a zone of privacy enables the realization of the full value of life and liberty. Liberty has a
broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet
others can be fulfilled only within a private space. Privacy enables the individual to retain the
autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on
vital matters of concern to life. Privacy has not been couched as an independent fundamental right.
But that does not detract from the constitutional protection afforded PART R to it, once the true
nature of privacy and its relationship with those fundamental rights which are expressly protected is
understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a
guarantee against arbitrary state action. It prevents the state from discriminating between
individuals. The destruction by the state of a sanctified personal space whether of the body or of the
mind is violative of the guarantee against arbitrary state action. Privacy of the body entitles an
individual to the integrity of the physical aspects of personhood. The intersection between ones
mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in
what is right, and the freedom of self-determination. When these guarantees intersect with gender,
they create a private space which protects all those elements which are crucial to gender identity.
The family, marriage, procreation and sexual orientation are all integral to the dignity of the
individual. Above all, the privacy of the individual recognises an inviolable right to determine how
freedom shall be exercised. An individual may perceive that the best form of expression is to remain
silent. Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative
endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon
notes which musically lead to silence. The silence, which lies within, reflects on the ability to choose
how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood.
The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or
her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice
of preferences on various facets of life including what and how one will eat, the way one will dress,
the faith one will espouse and a myriad other PART R matters on which autonomy and
self-determination require a choice to be made within the privacy of the mind. The constitutional
right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith
and the freedom to express or not express those choices to the world. These are some illustrations of
the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty. The
Constitution does not contain a separate article telling us that privacy has been declared to be a
fundamental right. Nor have we tagged the provisions of Part III with an alpha suffixed right of
privacy: this is not an act of judicial redrafting. Dignity cannot exist without privacy. Both reside
within the inalienable values of life, liberty and freedom which the Constitution has recognised.
Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which
straddles across the spectrum of fundamental rights and protects for the individual a zone of choice
and self-determination.
Privacy represents the core of the human personality and recognizes the ability of each individual to
make choices and to take decisions governing matters intimate and personal. Yet, it is necessary to
acknowledge that individuals live in communities and work in communities. Their personalities

affect and, in turn are shaped by their social environment. The individual is not a hermit. The lives
of individuals are as much a social phenomenon. In their interactions with others, individuals are
constantly engaged in behavioural patterns and in relationships impacting on the rest of society.
Equally, the life of the individual is being consistently shaped by cultural and social values imbibed
from living in the community. This state of flux which represents a PART S constant evolution of
individual personhood in the relationship with the rest of society provides the rationale for reserving
to the individual a zone of repose. The lives which individuals lead as members of society engender a
reasonable expectation of privacy. The notion of a reasonable expectation of privacy has elements
both of a subjective and objective nature. Privacy at a subjective level is a reflection of those areas
where an individual desire to be left alone. On an objective plane, privacy is defined by those
constitutional values which shape the content of the protected zone where the individual ought to be
left alone. The notion that there must exist a reasonable expectation of privacy ensures that while on
the one hand, the individual has a protected zone of privacy, yet on the other, the exercise of
individual choices is subject to the rights of others to lead orderly lives. For instance, an individual
who possesses a plot of land may decide to build upon it subject to zoning regulations. If the
building bye laws define the area upon which construction can be raised or the height of the
boundary wall around the property, the right to privacy of the individual is conditioned by
regulations designed to protect the interests of the community in planned spaces. Hence while the
individual is entitled to a zone of privacy, its extent is based not only on the subjective expectation of
the individual but on an objective principle which defines a reasonable expectation.
S Informational privacy 170 Ours is an age of information. Information is knowledge. The old adage
that knowledge is power has stark implications for the position of the individual where PART S data
is ubiquitous, an all-encompassing presence. Technology has made life fundamentally
interconnected. The internet has become all pervasive as individuals spend more and more time
online each day of their lives. Individuals connect with others and use the internet as a means of
communication. The internet is used to carry on business and to buy goods and services. Individuals
browse the web in search of information, to send e-mails, use instant messaging services and to
download movies. Online purchases have become an efficient substitute for the daily visit to the
neighbouring store. Online banking has redefined relationships between bankers and customers.
Online trading has created a new platform for the market in securities. Online music has
refashioned the radio. Online books have opened up a new universe for the bibliophile. The
old-fashioned travel agent has been rendered redundant by web portals which provide everything
from restaurants to rest houses, airline tickets to art galleries, museum tickets to music shows.
These are but a few of the reasons people access the internet each day of their lives. Yet every
transaction of an individual user and every site that she visits, leaves electronic tracks generally
without her knowledge. These electronic tracks contain powerful means of information which
provide knowledge of the sort of person that the user is and her interests388. Individually, these
information silos may seem inconsequential. In aggregation, they disclose the nature of the
personality: food habits, language, health, hobbies, sexual preferences, friendships, ways of dress
and political affiliation. In See Francois Nawrot, Katarzyna Syska and Przemyslaw Switalski,
Horizontal application of fundamental rights Right to privacy on the internet, 9th Annual European
Constitutionalism Seminar (May 2010), University of Warsaw, available at
h t t p : / / e n . z p c . w p i a . u w . e d u . p l / w p -

content/uploads/2010/04/9_Horizontal_Application_of_Fundamental_Rights.pdf PART S
aggregation, information provides a picture of the being: of things which matter and those that dont,
of things to be disclosed and those best hidden. 171 Popular websites install cookie files by the users
browser. Cookies can tag browsers for unique identified numbers, which allow them to recognise
rapid users and secure information about online behaviour. Information, especially the browsing
history of a user is utilised to create user profiles. The use of algorithms allows the creation of
profiles about internet users. Automated content analysis of e-mails allows for reading of user
e-mails. An e-mail can be analysed to deduce user interests and to target suitable advertisements to
a user on the site of the window. The books which an individual purchases on-line provide footprints
for targeted advertising of the same genre. Whether an airline ticket has been purchased on
economy or business class, provides vital information about employment profile or spending
capacity. Taxi rides booked on-line to shopping malls provide a profile of customer preferences. A
woman who purchases pregnancy related medicines on-line would be in line to receive
advertisements for baby products. Lives are open to electronic scrutiny. To put it mildly, privacy
concerns are seriously an issue in the age of information. 172 A Press Note released by the Telecom
Regulatory Authority of India on 3 July, 2017389 is indicative of the prevalence of telecom services
in India as on 31 December, 2016. The total number of subscribers stood at 1151.78 million,
r e f l e c t i n g a 1 1 . 1 3 P r e s s R e l e a s e 4 5 / 2 0 1 7 , a v a i l a b l e a t
http://trai.gov.in/sites/default/files/PR_No.45of2017.pdf PART S percent change over the previous
year. There were 683.14 million urban subscribers and 468.64 million rural subscribers. The total
number of internet subscribers stood at 391.50 million reflecting an 18.04 per cent change over the
previous quarter. 236.09 million were broadband subscribers. 370 million is the figure of wireless
internet subscribers. The total internet subscribers per 100 population stood at 30.56; urban
internet subscribers were 68.86 per 100 population; and rural internet subscribers being 13.08. The
figures only increase. 173 The age of information has resulted in complex issues for informational
privacy. These issues arise from the nature of information itself. Information has three facets: it is
nonrivalrous, invisible and recombinant390. Information is nonrivalrous in the sense that there can
be simultaneous users of the good use of a piece of information by one person does not make it less
available to another. Secondly, invasions of data privacy are difficult to detect because they can be
invisible. Information can be accessed, stored and disseminated without notice. Its ability to travel
at the speed of light enhances the invisibility of access to data, information collection can be the
swiftest theft of all391. Thirdly, information is recombinant in the sense that data output can be
used as an input to generate more data output.
Christina P. Moniodis, Moving from Nixon to NASA: Privacy s Second Strand- A Right to
Informational Privacy, Yale Journal of Law and Technology (2012), Vol. 15 (1), at page 153 Ibid
PART S 174 Data Mining processes together with knowledge discovery can be combined to create
facts about individuals. Metadata and the internet of things have the ability to redefine human
existence in ways which are yet fully to be perceived. This, as Christina Moniodis states in her
illuminating article results in the creation of new knowledge about individuals; something which
even she or he did not possess. This poses serious issues for the Court. In an age of rapidly evolving
technology it is impossible for a judge to conceive of all the possible uses of information or its
consequences:

The creation of new knowledge complicates data privacy law as it involves

information the individual did not possess and could not disclose, knowingly or
otherwise. In addition, as our state becomes an information state through increasing
reliance on information such that information is described as the lifeblood that
sustains political, social, and business decisions. It becomes impossible to
conceptualize all of the possible uses of information and resulting harms. Such a
situation poses a challenge for courts who are effectively asked to anticipate and
remedy invisible, evolving harms. 392 The contemporary age has been aptly regarded
as an era of ubiquitous dataveillance, or the systematic monitoring of citizens
communications or actions through the use of information technology393. It is also
an age of big data or the collection of data sets. These data sets are capable of being
searched; they have linkages with other data sets; and are marked by their exhaustive
scope and the permanency of collection.394 The challenges which big data poses to
privacy interests emanate from Ibid, at page 154 Yvonne McDermott,
Conceptualizing the right to data protection in an era of Big Data, Big Data and
Society (2017), at page 1 Ibid, at pages 1 and 4 PART S State and non-State entities.
Users of wearable devices and social media networks may not conceive of themselves
as having volunteered data but their activities of use and engagement result in the
generation of vast amounts of data about individual lifestyles, choices and
preferences. Yvonne McDermott speaks about the quantified self in eloquent terms:
The rise in the so-called quantified self, or the self-tracking of biological,

environmental, physical, or behavioural information through tracking devices,
Internet-of-things devices, social network data and other means (?Swan.2013) may
result in information being gathered not just about the individual user, but about
people around them as well. Thus, a solely consent-based model does not entirely
ensure the protection of ones data, especially when data collected for one purpose can
be repurposed for another.395 175 Daniel J Solove deals with the problem of
aggregation. Businesses and governments often aggregate a variety of information
fragments, including pieces of information which may not be viewed as private in
isolation to create a detailed portrait of personalities and behaviour of
individuals.396 Yet, it is now a universally accepted fact that information and data
flow are increasingly central to social and economic ordering397. Individuals are
identified with reference to tax records, voting eligibility, and government-provided
entitlements. There is what is now described as veillant panoptic assemblage, where
data gathered through the ordinary citizens veillance Ibid, at page 4 Christina P.
Moniodis, Moving from Nixon to NASA: Privacy s Second Strand- A Right to
Informational Privacy, Yale Journal of Law and Technology (2012), Vol. 15 (1), at
page 159. The article attributes Daniel Soloves work on privacy as- Daniel J. Solove,
Understanding Privacy 70 (2008).
Ibid, at page 156 PART S practices finds its way to state surveillance mechanisms,
through the corporations that hold that data398.

176 The balance between data regulation and individual privacy raises complex issues requiring
delicate balances to be drawn between the legitimate concerns of the State on one hand and
individual interest in the protection of privacy on the other. 177 The sphere of privacy stretches at
one end to those intimate matters to which a reasonable expectation of privacy may attach. It
expresses a right to be left alone. A broader connotation which has emerged in academic literature of
a comparatively recent origin is related to the protection of ones identity. Data protection relates
closely with the latter sphere. Data such as medical information would be a category to which a
reasonable expectation of privacy attaches. There may be other data which falls outside the
reasonable expectation paradigm. Apart from safeguarding privacy, data protection regimes seek to
protect the autonomy of the individual. This is evident from the emphasis in the European data
protection regime on the centrality of consent. Related to the issue of consent is the requirement of
transparency which requires a disclosure by the data recipient of information pertaining to data
transfer and use. 178 Another aspect which data protection regimes seek to safeguard is the
principle of non-discrimination which ensures that the collection of data should be carried out
Yvonne McDermott, Conceptualizing the right to data protection in an era of Big Data, Big Data and
Society (2017), at page 4.
PART S in a manner which does not discriminate on the basis of racial or ethnic origin, political or
religious beliefs, genetic or health status or sexual orientation. 179 Formulation of a regime for data
protection is a complex exercise which needs to be undertaken by the State after a careful balancing
of the requirements of privacy coupled with other values which the protection of data sub-serves
together with the legitimate concerns of the State. One of the chief concerns which the formulation
of a data protection regime has to take into account is that while the web is a source of lawful
activity-both personal and commercial, concerns of national security intervene since the seamless
structure of the web can be exploited by terrorists to wreak havoc and destruction on civilised
societies. Cyber attacks can threaten financial systems. Richard A Posner, in an illuminating article,
has observed:
Privacy is the terrorists best friend, and the terrorists privacy has been enhanced by
the same technological developments that have both made data mining feasible and
elicited vast quantities of personal information from innocents: the internet, with its
anonymity, and the secure encryption of digitized data which, when combined with
that anonymity, make the internet a powerful tool of conspiracy. The government has
a compelling need to exploit digitization in defense of national security399 Posner
notes that while people value their informational privacy, yet they surrender it at the
drop of a hat by readily sharing personal data in the course of simple daily
transactions. The paradox, he observes, can be resolved by noting that as long as
Richard A. Posner, Privacy, Surveillance, and Law, The University of Chicago Law
Review (2008), Vol.75, at page 251 PART S people do not expect that the details of
their health, intimacies and finances among others will be used to harm them in
interaction with other people, they are content to reveal those details when they
derive benefits from the revelation. 400 As long as intelligence personnel can be
trusted to use the knowledge gained only for the defence of the nation, the public will
be compensated for the costs of diminished privacy in increased security from

terrorist attacks401. Posners formulation would indicate that the State does have a
legitimate interest when it monitors the web to secure the nation against cyber
attacks and the activities of terrorists.
180 While it intervenes to protect legitimate state interests, the state must nevertheless put into
place a robust regime that ensures the fulfilment of a three-fold 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 existence 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 existence 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 Ibid Ibid PART S manifest arbitrariness. Legitimacy, as a postulate, involves a
value judgment. Judicial review does not re-appreciate 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 three-fold requirement for a valid law arises out of the mutual inter-dependence 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. 181 Apart from national security, the state may have justifiable reasons for the collection
and storage of data. In a social welfare state, the government embarks upon programmes which
provide benefits to impoverished and marginalised sections of society. There is a vital state interest
in ensuring that scarce public resources are not dissipated by the diversion of resources to persons
who do not qualify as recipients. Allocation of resources for human development is coupled with a
legitimate concern that the utilisation of resources should not be siphoned away for extraneous
purposes. Data mining with the object of ensuring that resources are properly deployed to legitimate
beneficiaries is a valid ground for the state to insist on the PART S collection of authentic data. But,
the data which the state has collected has to be utilised for legitimate purposes of the state and
ought not to be utilised unauthorizedly for extraneous purposes. This will ensure that the legitimate
concerns of the state are duly safeguarded while, at the same time, protecting privacy concerns.
Prevention and investigation of crime and protection of the revenue are among the legitimate aims
of the state. Digital platforms are a vital tool of ensuring good governance in a social welfare state.
Information technology legitimately deployed is a powerful enabler in the spread of innovation and
knowledge. 182 A distinction has been made in contemporary literature between anonymity on one
hand and privacy on the other.402 Both anonymity and privacy prevent others from gaining access
to pieces of personal information yet they do so in opposite ways. Privacy involves hiding
information whereas anonymity involves hiding what makes it personal. An unauthorised parting of
the medical records of an individual which have been furnished to a hospital will amount to an

invasion of privacy. On the other hand, the state may assert a legitimate interest in analysing data
borne from hospital records to understand and deal with a public health epidemic such as malaria or
dengue to obviate a serious impact on the population. If the State preserves the anonymity of the
individual it could legitimately assert a valid state interest in the preservation of public health to
design appropriate policy interventions on the basis of the data available to it.
See in this connection, Jeffrey M. Skopek, Reasonable Expectations of Anonymity, Virginia Law
Review (2015), Vol.101, at pages 691-762 PART S 183 Privacy has been held to be an intrinsic
element of the right to life and personal liberty under Article 21 and as a constitutional value which
is embodied in the fundamental freedoms embedded in Part III of the Constitution. Like the right to
life and liberty, privacy is not absolute. The limitations which operate on the right to life and
personal liberty would operate on the right to privacy. Any curtailment or deprivation of that right
would have to take place under a regime of law. The procedure established by law must be fair, just
and reasonable. The law which provides for the curtailment of the right must also be subject to
constitutional safeguards. 184 The Union government constituted a Group of Experts on privacy
under the auspices of the erstwhile Planning Commission. The Expert Group in its Report403
(dated 16 October 2012) proposed a framework for the protection of privacy concerns which, it was
expected, would serve as a conceptual foundation for legislation protecting privacy. The framework
suggested by the expert group was based on five salient features: (i) Technological neutrality and
interoperability with international standards; (ii) Multi-Dimensional privacy; (iii) Horizontal
applicability to state and non- state entities; (iv) Conformity with privacy principles; and (v) A
co-regulatory enforcement regime. After reviewing international best practices, the Expert Group
proposed nine privacy principles. They are:
Report of the Group of Experts on Privacy (16 October, 2012), Government of India, available at
http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf PART S
(i) Notice: A data controller shall give simple-to-understand notice of its information practices to all
individuals in clear and concise language, before personal information is collected;
(ii) Choice and Consent: A data controller shall give individuals choices (opt-in/opt-
out) with regard to providing their personal information, and take individual consent only after
providing notice of its information practices;
(iii) Collection Limitation: A data controller shall only collect personal information from data
subjects as is necessary for the purposes identified for such collection, regarding which notice has
been provided and consent of the individual taken. Such collection shall be through lawful and fair
means;
(iv) Purpose Limitation: Personal data collected and processed by data controllers should be
adequate and relevant to the purposes for which it is processed. A data controller shall collect,
process, disclose, make available, or otherwise use personal information only for the purposes as
stated in the notice after taking consent of individuals. If there is a change of purpose, this must be

notified to the individual. After personal information has been used in accordance with the
identified purpose it should be destroyed as per the identified procedures. Data retention mandates
by the government should be in compliance with the National Privacy Principles;
(v) Access and Correction: Individuals shall have access to personal information about them held by
a data controller; shall be able to seek correction, amendments, or deletion of such information
where it is inaccurate; be able to confirm that a data controller holds or is processing information
about them; be PART S able to obtain from the data controller a copy of the personal data. Access
and correction to personal information may not be given by the data controller if it is not, despite
best efforts, possible to do so without affecting the privacy rights of another person, unless that
person has explicitly consented to disclosure;
(vi) Disclosure of Information: A data controller shall not disclose personal information to third
parties, except after providing notice and seeking informed consent from the individual for such
disclosure. Third parties are bound to adhere to relevant and applicable privacy principles.
Disclosure for law enforcement purposes must be in accordance with the laws in force. Data
controllers shall not publish or in any other way make public personal information, including
personal sensitive information;
(vii) Security: A data controller shall secure personal information that they have either collected or
have in their custody, by reasonable security safeguards against loss, unauthorised access,
destruction, use, processing, storage, modification, deanonymization, unauthorized disclosure
[either accidental or incidental] or other reasonably foreseeable risks;
(viii) Openness: A data controller shall take all necessary steps to implement practices, procedures,
policies and systems in a manner proportional to the scale, scope, and sensitivity to the data they
collect, in order to ensure compliance with the privacy principles, information regarding which shall
be made in an intelligible form, using clear and plain language, available to all individuals; and
(ix) Accountability: The data controller shall be accountable for complying with measures which give
effect to the privacy principles. Such measures should PART T include mechanisms to implement
privacy policies; including tools, training, and education; external and internal audits, and requiring
organizations or overseeing bodies extend all necessary support to the Privacy Commissioner and
comply with the specific and general orders of the Privacy Commissioner. 185 During the course of
the hearing of these proceedings, the Union government has placed on the record an Office
Memorandum dated 31 July 2017 by which it has constituted a committee chaired by Justice B N
Srikrishna, former Judge of the Supreme Court of India to review inter alia data protection norms in
the country and to make its recommendations. The terms of reference of the Committee are :
a) To study various issues relating to data protection in India;
b) To make specific suggestions for consideration of the Central Government on

principles to be considered for data protection in India and suggest a draft data
protection bill.

Since the government has initiated the process of reviewing the entire area of data protection, it
would be appropriate to leave the matter for expert determination so that a robust regime for the
protection of data is put into place. We expect that the Union government shall follow up on its
decision by taking all necessary and proper steps.
T Our Conclusions 1 The judgment in M P Sharma holds essentially that in the absence of a
provision similar to the Fourth Amendment to the US Constitution, the right to privacy cannot
PART T be read into the provisions of Article 20 (3) of the Indian Constitution. The judgment does
not specifically adjudicate on whether a right to privacy would arise from any of the other provisions
of the rights guaranteed by Part III including Article 21 and Article 19. The observation that privacy
is not a right guaranteed by the Indian Constitution is not reflective of the correct position. M P
Sharma is overruled to the extent to which it indicates to the contrary.
2 Kharak Singh has correctly held that the content of the expression life under Article 21 means not
merely the right to a persons animal existence and that the expression personal liberty is a
guarantee against invasion into the sanctity of a persons home or an intrusion into personal
security. Kharak Singh also correctly laid down that the dignity of the individual must lend content
to the meaning of personal liberty. The first part of the decision in Kharak Singh which invalidated
domiciliary visits at night on the ground that they violated ordered liberty is an implicit recognition
of the right to privacy. The second part of the decision, however, which holds that the right to
privacy is not a guaranteed right under our Constitution, is not reflective of the correct position.
Similarly, Kharak Singhs reliance upon the decision of the majority in Gopalan is not reflective of
the correct position in view of the decisions in Cooper and in Maneka. Kharak Singh to the extent
that it holds that the right to privacy is not protected under the Indian Constitution is overruled.
PART T 3 (A) Life and personal liberty are inalienable rights. These are rights which are inseparable
from a dignified human existence. The dignity of the individual, equality between human beings and
the quest for liberty are the foundational pillars of the Indian Constitution;
(B) Life and personal liberty are not creations of the Constitution. These rights are recognised by the
Constitution as inhering in each individual as an intrinsic and inseparable part of the human
element which dwells within; (C) Privacy is a constitutionally protected right which emerges
primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements
of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and
guaranteed by the fundamental rights contained in Part III; (D) Judicial recognition of the existence
of a constitutional right of privacy is not an exercise in the nature of amending the Constitution nor
is the Court embarking on a constitutional function of that nature which is entrusted to Parliament;
(E) Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive
function. At a normative level privacy sub-serves those eternal values upon which the guarantees of
life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of
entitlements and interests which lie at the foundation of ordered liberty;
PART T (F) Privacy includes at its core the preservation of personal intimacies, the sanctity of family
life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left

alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control
vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy.
Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the
legitimate expectation of privacy may vary from the intimate zone to the private zone and from the
private to the public arenas, it is important to underscore that privacy is not lost or surrendered
merely because the individual is in a public place. Privacy attaches to the person since it is an
essential facet of the dignity of the human being;
(G) This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or
interests comprised in the right to privacy. The Constitution must evolve with the felt necessities of
time to meet the challenges thrown up in a democratic order governed by the rule of law. The
meaning of the Constitution cannot be frozen on the perspectives present when it was adopted.
Technological change has given rise to concerns which were not present seven decades ago and the
rapid growth of technology may render obsolescent many notions of the present. Hence the
interpretation of the Constitution must be resilient and flexible to allow future generations to adapt
its content bearing in mind its basic or essential features;
PART T (H) Like other rights which form part of the fundamental freedoms protected by Part III,
including the right to life and personal liberty under Article 21, privacy is not an absolute right. A
law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions
on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the
basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be
valid with reference to the encroachment on life and personal liberty under Article
21. An invasion of life or personal liberty must meet the three-fold requirement of
(i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state
aim; and (iii) proportionality which ensures a rational nexus between the objects and the means
adopted to achieve them; and (I) Privacy has both positive and negative content. The negative
content restrains the state from committing an intrusion upon the life and personal liberty of a
citizen. Its positive content imposes an obligation on the state to take all necessary measures to
protect the privacy of the individual.
4 Decisions rendered by this Court subsequent to Kharak Singh, upholding the right to privacy
would be read subject to the above principles. 5 Informational privacy is a facet of the right to
privacy. The dangers to privacy in an age of information can originate not only from the state but
from non-state actors as well. We commend to the Union Government the need to examine and put
into place a robust regime for data protection. The creation of such a regime requires PART T a
careful and sensitive balance between individual interests and legitimate concerns of the state. The
legitimate aims of the state would include for instance protecting national security, preventing and
investigating crime, encouraging innovation and the spread of knowledge, and preventing the
dissipation of social welfare benefits. These are matters of policy to be considered by the Union
government while designing a carefully structured regime for the protection of the data. Since the
Union government has informed the Court that it has constituted a Committee chaired by Honble

Shri Justice B N Srikrishna, former Judge of this Court, for that purpose, the matter shall be dealt
with appropriately by the Union government having due regard to what has been set out in this
judgment. 6 The reference is answered in the above terms.
...........................................CJI [JAGDISH SINGH KHEHAR] ..............................................J [R K

AGRAWAL] ..............................................J [Dr D Y CHANDRACHUD] PART T
.............................................J [S ABDUL NAZEER] New Delhi;
Dated : 24, August 2017 Reportable IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL
JURISDICTION WRIT PETITION (CIVIL) NO.494 OF 2012 Justice K.S. Puttaswamy (Retd.) &
Another Petitioners Versus Union of India & Others Respondents WITH TRANSFERRED CASE
(CIVIL) NO.151 OF 2013 TRANSFERRED CASE (CIVIL) NO.152 OF 2013 WRIT PETITION (CIVIL)
NO. 833 OF 2013 WRIT PETITION (CIVIL) NO. 829 OF 2013 WRIT PETITION (CIVIL) NO. 932
OF 2013 CONTEMPT PETITION (CIVIL) NO. 144 OF 2014 IN WRIT PETITION (CIVIL) NO. 494
OF 2012 TRANSFER PETITION (CIVIL) NO. 313 OF 2014 TRANSFER PETITION (CIVIL) NO. 312
OF 2014 SPECIAL LEAVE PETITION (CRIMINAL) NO. 2524 OF 2014 WRIT PETITION (CIVIL)
NO. 37 OF 2015 WRIT PETITION (CIVIL) NO. 220 OF 2015 CONTEMPT PETITION (CIVIL) NO.
674 OF 2015 IN WRIT PETITION (CIVIL) NO. 829 OF 2013 TRANSFER PETITION (CIVIL) NO.
921 OF 2015 CONTEMPT PETITION (CIVIL) NO. 470 OF 2015 IN WRIT PETITION (CIVIL) NO.
494 OF 2012 WRIT PETITION (CIVIL) NO. 797 OF 2016 CONTEMPT PETITION (CIVIL) NO. 844
OF 2017 IN WRIT PETITION (CIVIL) NO. 494 OF 2012 WRIT PETITION (CIVIL) NO. 342 OF 2017
WRIT PETITION (CIVIL) NO. 372 OF 2017 JUDGMENT Chelameswar, J.
1. I have had the advantage of reading the opinion of my learned brothers Justice Nariman and
Justice Chandrachud. Both of them in depth dealt with various questions that are required to be
examined by this Bench, to answer the reference. The factual background in which these questions
arise and the history of the instant litigation is set out in the judgments of my learned brothers.
There is no need to repeat. Having regard to the importance of the matter, I am unable to desist
recording few of my views regarding the various questions which were debated in this matter.
2. The following three questions, in my opinion, constitute the crux of the enquiry;
(i) Is there any Fundamental Right to Privacy under the Constitution of India?
(ii) If it exists, where is it located?
(iii) What are the contours of such Right?
3. These questions arose because Union of India and some of the respondents took a stand that, in
view of two larger bench judgments of this Court1, no fundamental right of privacy is guaranteed
under the Constitution.

4. Therefore, at the outset, it is necessary to examine whether it is the ratio decidendi of M.P.
Sharma and Kharak Singh that under our Constitution there is no Fundamental Right of Privacy;
and if that be indeed the ratio of either of the two rulings whether they were rightly decided? The
issue which fell for the consideration of M.P. Sharma & Others v. Satish Chandra & Others, AIR
1954 SC 300 and Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295, (both decisions of
Constitution Bench of Eight and Six Judges respectively). this Court in M.P. Sharma was whether
seizure of documents from the custody of a person accused of an offence would amount to
testimonial compulsion prohibited under Article 20(3) of our Constitution?
5. The rule against the testimonial compulsion is contained in Article 20(3)2 of our Constitution.
The expression testimonial compulsion is not found in that provision. The mandate contained in
Article 20(3) came to be described as the rule against testimonial compulsion. The rule against
self-incrimination owes its origin to the revulsion against the inquisitorial methods adopted by the
Star Chamber of England3 and the same was incorporated in the Fifth Amendment of the American
Constitution.4 Article 20(3) of the Constitution of India: No person accused of any offence shall be
compelled to be a witness against himself. In English law, this principle of protection against
self-incrimination had a historical origin. It resulted from a feeling of revulsion against the
inquisitorial methods adopted and the barbarous sentences imposed, by the Court of Star Chamber,
in the exercise of its criminal jurisdiction. This came to a head in the case of John Lilburn, 3 State
Trials 1315, which brought about the abolition of the Star Chamber and the firm recognition of the
principle that the accused should not be put on oath and that no evidence should be taken from him.
This principle, in course of time, developed into its logical extensions, by way of privilege of
witnesses against self-incrimination, when called for giving oral testimony or for production of
documents. A change was introduced by the Criminal Evidence Act of 1898 by making an accused a
competent witness on his own behalf, if he applied for it. But so far as the oral testimony of
witnesses and the production of documents are concerned, the protection against self-incrimination
continued as before. (See Phipson on Evidence, 9th Edition, pages 215 and 474).
These principles, as they were before the statutory change in 1898, were carried into the American
legal system and became part of its common law. (See Wigmore on Evidence, Vol.VIII, pages 301 to
303). This was later on incorporated into their Constitution by virtue of the Fifth Amendment
thereof. Amendment V of the American Constitution: "No person ..shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without
due process of law "
6. Does the rule against testimonial compulsion, entrenched as a fundamental right under our
Constitution create a right of privacy? - is a question not examined in M.P. Sharma. It was argued in
M.P. Sharma that a search to obtain documents for investigation into an offence is a compulsory
procuring of incriminatory evidence from the accused himself and is, therefore, hit by Article 20(3)
by necessary implication flowing from certain canons of liberal construction. Originally the rule was
invoked only against oral evidence. But the judgment in Boyd v. United States5, extended the rule
even to documents procured during the course of a constitutionally impermissible search6.

This Court refused to read the principle enunciated in Boyd into Article 20(3) on the ground: we
have nothing in our Constitution corresponding to the Fourth Amendment.
This Court held that the power of search and seizure is an overriding power of the State for the
protection of social security. It further held that such power (1) is necessarily regulated by law; and
(2) Since the Constitution makers have not made any provision analogous to the 116 US 616 A
search in violation of the safeguards provided under the Fourth Amendment The right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and the persons or things
to be seized. American Fourth Amendment, such a requirement could not be read into Article 20(3).
It was in the said context that this Court referred to the right of privacy:
A power of search and seizure is in any system of jurisprudence an overriding power

of the State for the protection of social security and that power is necessarily
regulated by law. When the Constitution makers have thought fit not to subject such
regulation to Constitutional limitations by recognition of a fundamental right to
privacy, analogous to the American Fourth Amendment, we have no justification to
import it, into a totally different fundamental right, by some process of strained
construction.
7. I see no warrant for a conclusion (which is absolute) that their lordships held that there is no right
of privacy under our Constitution. All that, in my opinion, their Lordships meant to say was that
contents of the U.S. Fourth Amendment cannot be imported into our Constitution, while
interpreting Article 20(3). That is the boundary of M.P. Singhs ratio. Such a conclusion, in my
opinion, requires a further examination in an appropriate case since it is now too well settled that
the text of the Constitution is only the primary source for understanding the Constitution and the
silences of the Constitution are also to be ascertained to understand the Constitution. Even
according to the American Supreme Court, the Fourth Amendment is not the sole repository of the
right to privacy7. Therefore, values other than those informing the Fourth Amendment can ground a
right of privacy if such values are a part of the Indian Constitutional framework, and M.P. Sharma
does not contemplate this possibility nor was there an occasion, therefore as the case was concerned
with Article 20(3). Especially so as the Gopalan era compartmentalization ruled the roost during the
time of the M.P. Sharma ruling and there was no Maneka Gandhi interpretation of Part III as a
cohesive and fused code as is presently.
Whether the right of privacy is implied in any other fundamental right guaranteed under Articles 21,
14, 19 or 25 etc. was not examined in M.P Sharma. The question whether a fundamental right of
privacy is implied from these Articles, is therefore, res integra and M.P. Sharma is no authority on
that aspect. I am, therefore, of the opinion that M.P. Sharma is not an authority for an absolute
proposition that there is no right of privacy under our Constitution; and such is not the ratio of that
judgment.

In Griswold v. Connecticut, 381 US 479, Douglas, J who delivered the opinion of the Court opined
that the I, II, IV, V and IX Amendments creates zones of privacy. Goldberg, J. opined that even the
XIV Amendment creates a zone of privacy. This undoubtedly grounds a right of privacy beyond the
IV amendment. Even after Griswold, other cases like Roe v. Wade, 410 U.S. 113 (1973) have made
this point amply clear by sourcing a constitutional right of privacy from sources other than the IV
amendment.
8. The issue in Kharak Singh was the constitutionality of police regulations of UP which inter alia
provided for surveillance of certain categories of people by various methods, such as, domiciliary
visits at night, verification of movements and absences etc. Two judgments (4:2) were delivered.
Majority took the view that the impugned regulation insofar as it provided for domiciliary visits at
night is unconstitutional whereas the minority opined the impugned regulation is in its entirety
unconstitutional.
The Court was invited to examine whether the impugned regulations violated the fundamental
rights of Kharak Singh guaranteed under Articles 21 and 19(1)(d). In that context, this Court
examined the scope of the expression personal liberty guaranteed under Article 21. Majority
declared that the expression personal liberty occurring under Article 21: is used in the Article as
compendious term to include within itself all the varieties of rights which go to make up the
personal liberties of man other than those dealt with in several clauses of Article 19(1). In other
words, while Article 19(1) deals with particular species or attributes of that freedom, personal liberty
in Article 21 takes in and comprises the residue.
9. The Kharak Singh majority opined that the impugned regulation insofar as it provided for
domiciliary visits is plainly violative of Article 21. The majority took note of the American decision in
Wolf v. Colorado, 338 US 25 wherein it was held that State lacks the authority to sanction incursion
into privacy of citizens. Such a power would run counter to the guarantee of the Fourteenth
Amendment8 and against the very essence of a scheme of ordered liberty.9 The majority judgment
in Kharak Singh noticed that the conclusion recorded in Wolf v. Colorado is based on the
prohibition contained in the Fourth Amendment of the U.S. Constitution, and a corresponding
provision is absent in our Constitution. Nonetheless, their Lordships concluded that the impugned
regulation insofar as it sanctioned domiciliary visits is plainly violative of Article 21. For this
conclusion, their Lordships relied upon the English Common Law maxim that every man's house is
his castle"10. In substance domiciliary visits violate liberty guaranteed under Article 21.
The twin conclusions recorded, viz., that Article 21 takes within its sweep various rights other than
mere freedom from physical restraint; and domiciliary visits by police violate the right of Kharak
Singh guaranteed under Article 21, are a great leap from Frankfurter, J.
Murphy, J.
See (1604) 5 Coke 91 Semaynes case the law declared by this Court in Gopalan11 - much before R.C.
Cooper12 and Maneka Gandhi13 cases. The logical inconsistency in the judgment is that while on
the one hand their Lordships opined that the maxim every mans house is his castle is a part of the

liberty under Article 21, concluded on the other, that absence of a provision akin to the U.S. Fourth
Amendment would negate the claim to the right of privacy. Both statements are logically
inconsistent. In the earlier part of the judgment their Lordships noticed14 that it is the English
Common Law which formed the basis of the U.S. Fourth Amendment and is required to be read into
Article 21; but nevertheless declined to read the right of privacy into Article 21. This is the
incongruence.
10. Interestingly as observed by Justice Nariman, when it came to the constitutionality of the other
provisions impugned in Kharak Singh, their Lordships held that such provisions are not violative of
Article 21 since there is no right to privacy under our A.K. Gopalan Vs. State of Madras AIR 1950 SC
27 RC Cooper Vs. Union of India (1970) 1 SCC 248 Maneka Gandhi Vs. Union of India (1978) 1 SCC
248 See F/N 3 (supra) Constitution15. I completely endorse the view of my learned brother Nariman
in this regard.
11. I now proceed to examine the salient features of the minority view.
(i) Disagreement with the majority on the conclusion that Article 21 contains those aspects of
personal liberty excluding those enumerated under Article 19(1);
(ii) after noticing that Gopalan held that the expression personal liberty occurring under Article 21 is
only the antithesis of physical restraint or coercion, opined that in modern world coercion need not
only be physical coercion but can also take the form of psychological coercion;
(iii) further the right to personal liberty takes in not only a right to be free from restrictions placed
on his movements, but also free from encroachments on his private life.;
Nor do we consider that Article 21 has any relevance in the context as was sought to be suggested by
learned Counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed
right under our Constitution and therefore the attempt to ascertain the movements of an individual
which is merely a manner in which privacy is invaded is not an infringement of a fundamental right
guaranteed by Part III.
(iv) Though our Constitution does not expressly declare the right to privacy as a fundamental right,
the said right is an essential ingredient of personal liberty.
In substance Kharak Singh declared that the expression personal liberty in Article 21 takes within its
sweep a bundle of rights. Both the majority and minority are ad idem on that conclusion. The only
point of divergence is that the minority opined that one of the rights in the bundle is the right of
privacy. In the opinion of the minority the right to privacy is an essential ingredient of personal
liberty. Whereas the majority opined that the right of privacy is not a guaranteed right under our
Constitution, and therefore the same cannot be read into Article 21.16
12. I am of the opinion that the approach adopted by the majority is illogical and against settled
principles of interpretation of even an ordinary statute; and wholly unwarranted in the context of

constitutional interpretation. If a right is recognised by the express language of a statute, no

question of implying such a right from Kharak Singh v. The State of U.P. & Others, (1962) 1 SCR 332
at page 351 Nor do we consider that Article 21 has any relevance in the context as was sought to be
suggested by learned Counsel for the petitioner. As already pointed out, the right of privacy is not a
guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an
individual which is merely a manner in which privacy is invaded is not an infringement of a
fundamental right guaranteed by Part III. some provision of such statute arises. Implications are
logical extensions of stipulations in the express language of the statute and arise only when a statute
is silent on certain aspects. Implications are the product of the interpretative process, of silences of a
Statute. It is by now well settled that there are implications even in written Constitutions.17 The
scope and amplitude of implications are to be ascertained in the light of the scheme and purpose
sought to be achieved by a statute. The purpose of the statute is to be ascertained from the overall
scheme of the statute. Constitution is the fundamental law adumbrating the powers and duties of
the various organs of the State and rights of the SUBJECTS18 and limitations thereon, of the State.
In my opinion, provisions purportedly conferring power on the State are in fact limitations on the
State power to infringe on the liberty of SUBJECTS. In the context of the interpretation of a
Constitution (1947) 74 CLR 31 The Melbourne Corporation v. The Commonwealth ... Thus, the
purpose of the Constitution, and the scheme by which it is intended to be given effect, necessarily
give rise to implications as to the manner in which the Commonwealth and the States respectively
may exercise their powers, vis-à-vis each other. Also see: His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala & Another, (1973) 4 SCC Citizens and non-citizens who are
amenable to the Constitutional authority of the State the intensity of analysis to ascertain the
purpose is required to be more profound.19 The implications arising from the scheme of the
Constitution are Constitutions dark matter and are as important as the express stipulations in its
text. The principle laid down by this Court in Kesvananda20, that the basic structure of the
Constitution cannot be abrogated is the most outstanding and brilliant exposition of the dark matter
and is a part of our Constitution, though there is nothing in the text suggesting that principle. The
Two categories of Constitutional interpretation - textualist and living constitutionalist approach are
well known. The former, as is illustrated by the Gopalan case, focuses on the text at hand i.e. the
language of the relevant provision. The text and the intent of the original framers are determinative
under the textualist approach. The living constitutionalist approach, while acknowledging the
importance of the text, takes into account a variety of factors as aids to interpret the text. Depending
on the nature of factor used, academics have added further nuance to the this approach of
interpretation (For instance, in his book titled Constitutional Interpretation (which builds on his
earlier work titled Constitutional Fate), Philip Bobbitt categorizes the six approaches to
interpretation of Constitutions as historical, textual, prudential, doctrinal, structural, and ethical.
The latter four approaches treat the text as less determinative than the former two approaches). This
court has progressively adopted a living constitutionalist approach. Varyingly, it has interpreted the
Constitutional text by reference to Constitutional values (liberal democratic ideals which form the
bedrock on which our text sits); a mix of cultural, social, political and historical ethos which
surround our Constitutional text; a structuralist technique typified by looking at the structural
divisions of power within the Constitution and interpreting it as an integrated whole etc. This court
need not, in the abstract, fit a particular interpretative technique within specific pigeonholes of a
living constitutionalist interpretation. Depending on which particular source is most useful and

what the matter at hand warrants, the court can resort to variants of a living constitutionalist
interpretation. This lack of rigidity allows for an enduring constitution. The important criticisms
against the living constitutionalist approach are that of uncertainty and that it can lead to arbitrary
exercise of judicial power. The living constitutionalist approach in my view is preferable despite
these criticisms, for two reasons. First, adaptability cannot be equated to lack of discipline in judicial
reasoning. Second, it is still the text of the constitution which acquires the requisite interpretative
hues and therefore, it is not as if there is violence being perpetrated upon the text if one resorts to
the living constitutionalist approach.
His Holiness Kesavananda Bharati Sripadagalvaru & Others. v. State of Kerala & Another (1973) 4
SCC 225 necessity of probing seriously and respectfully into the invisible portion of the Constitution
cannot be ignored without being disrespectful to the hard earned political freedom and the declared
aspirations of the liberty of we the people of India. The text of enumerated fundamental rights is
only the primary source of expressed information as to what is meant by liberty proclaimed by the
preamble of the Constitution.
13. To embrace a rule that the text of the Constitution is the only material to be looked at to
understand the purpose and scheme of the Constitution would not only be detrimental to liberties of
SUBJECTS but could also render the administration of the State unduly cumbersome. Fortunately,
this Court did not adopt such a rule of interpretation barring exceptions like Gopalan (supra) and
ADM Jabalpur21. Else, this Court could not have found the freedom of press under Article 19(1)(a)
and the other rights22 which were ADM Jabalpur Vs. S.S. Shukla AIR 1976 SC 1207 Sakal Papers (P)
Ltd. & Others etc. v. Union of India, AIR 1962 SC 305 at page 311 Para 28. It must be borne in mind
that the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense.
Certain rights have been enshrined in our Constitution as fundamental and, therefore, while
considering the nature and content of those rights the Court must not be too astute to interpret the
language of the Constitution in so literal a sense as to whittle them down. On the other hand the
Court must interpret the Constitution in a manner which would enable the citizen to enjoy the rights
guaranteed by it in the fullest measure subject, of course, to permissible restrictions. Bearing this
principle in mind it would be clear that the right to freedom of speech and expression carries with it
the right to publish and circulate one's ideas, opinions and views with complete freedom and by
resorting to any available means of publication, subject again to such restrictions as could be
legitimately imposed under clause (2) of Article 19. The first decision of this Court in which this was
recognized is Romesh Thapar v. State of Madras, AIR 1950 SC 124.. There, this Court held that held
to be flowing from the guarantee under Article 21. Romesh Thappar23 and Sakal Papers (supra) are
the earliest acknowledgment by this Court of the existence of Constitutions dark matter. The series
of cases in which this Court subsequently perceived various rights in the expression life in Article 21
is a resounding confirmation of such acknowledgment.
14. The U.S. VIth Amendment confers a right to speedy and public trial to the accused, the right to
be informed of the nature and cause of the accusation, the right to have the assistance of counsel for
his defence etc. None of those rights are expressed in the text of our Constitution. Nonetheless, this
Court declared these rights as implicit in the text of Articles 14 or 21. The VIIIth Amendment24 of
the American Constitution contains stipulations prohibiting excessive bails, fines, cruel and unusual

punishments etc. Cruel punishments were not unknown to this country. They were in vogue in the
middle ages. Flaying a man alive was one of the freedom of speech and expression includes freedom
of propagation of ideas and that this freedom is ensured by the freedom of circulation. In that case
this Court has also pointed out that freedom of speech and expression are the foundation of all
democratic organisations and are essential for the proper functioning of the processes of democracy.
... Romesh Thappar Vs. State of Madras AIR 1950 SC 124 VIII Amendment to the American
Constitution:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted. favoured punishments of some of the Rulers of those days. I only hope that
this Court would have no occasion to hear an argument that the Parliament or State legislatures
would be constitutionally competent to prescribe cruel punishments like amputation or blinding or
flaying alive of convicts merely an account of a prescription akin to the VIIIth Amendment being
absent in our Constitution.25
15. This Court by an interpretive process read the right to earn a livelihood26, the right to
education27, the right to speedy trial28, the right to protect ones reputation29 and the right to have
an environment free of pollution30 in the expression life under Article 21 of the Indian Constitution.
Similarly, the right to go abroad31 and the right to speedy trial of criminal cases32 were read into
the expression liberty occurring Mithu Etc. Vs. State of Punjab Etc. Etc., AIR 1983 SC 473 - If a law
were to provide that the offence of theft will be punishable with the penalty of the cutting of hands,
the law will be bad as violating Article 21. A savage sentence is anathema to the civilized
jurisprudence of Article 21. Olga Tellis Vs. Bombay Municipal Corporation (1985) 3 SCC 545 Mohini
Jain Vs. State of Karnataka (1992) 3 SCC 666, Unnikrishnan J.P. Vs. State of Andhra Pradesh (1993)
1 SCC 645 Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622 State of Bihar Vs.
Lal Krishna Advani (2003) 8 SCC 361 Shantistar Builders Vs. Narayan Khimalal Totame (1990) 1
SCC 520, M.C. Mehta Vs. Kamal Nath (2000) 6 SCC Satwant Singh Sawhney Vs. Asst. Passport
Officer 1967 (3) SCR 525, In Re. Hussainara Khatoon & Ors. Vs. Home Secretary, Home Secretary,
Bihar (1980) 1 SCC 81 under Article 21. This court found delayed execution of capital punishment
violated both the rights of life and liberty guaranteed under Article 2133 and also perceived
reproductive rights and the individuals autonomy regarding sterilization to being inherent in the
rights of life and liberty under Art. 2134.
16. None of the above-mentioned rights are to be found anywhere in the text of the Constitution.
17. To sanctify an argument that whatever is not found in the text of the Constitution cannot become
a part of the Constitution would be too primitive an understanding of the Constitution and contrary
to settled cannons of constitutional interpretation. Such an approach regarding the rights and
liberties of citizens would be an affront to the collective wisdom of our people and the wisdom of the
members of the Constituent Assembly. The fact that some of the members opined during the course
of debates in that Assembly, that the right of privacy need not find an express mention in the
Constitution, would not necessarily lead to the conclusion that they were oblivious to the
importance of the right to privacy.

Vatheeswaran, T.V. Vs. State of T.N. (1983) 2 SCC 68 Devika Biswas Vs. Union of India (2016) 10
SCC 726 Constituent Assembly was not a seminar on the right to privacy and its amplitude. A close
scrutiny of the debates reveals that the Assembly only considered whether there should be an
express provision guaranteeing the right of privacy in the limited context of searches and secrecy of
correspondence. Dimensions of the right of privacy are much larger and were not fully examined.
The question whether the expression liberty in Article 21 takes within its sweep the various aspects
of the right of privacy was also not debated. The submissions before us revolve around these
questions. Petitioners assert that the right to privacy is a part of the rights guaranteed under Article
19 and 21 and other Articles.
18. The Constitution of any country reflects the aspirations and goals of the people of that country
voiced through the language of the few chosen individuals entrusted with the responsibility of
framing its Constitution. Such aspirations and goals depend upon the history of that society. History
invariably is a product of various forces emanating from religious, economic and political events35.
However, various forces which go into the making of history are dynamic. Those who are entrusted
with the responsibility of the working of the Constitution must necessarily keep track of the
dynamics of such forces. Evolution of science and growth of technology is another major factor in
the modern world which is equally a factor to be kept in mind to successfully work the constitution.
The degree of refinement of the Constitution depends upon the wisdom of the people entrusted with
the responsibility of framing the Constitution. Constitution is not merely a document signed by 284
members of the Constituent Assembly. It is a politically sacred instrument created by men and
women who risked lives and sacrificed their liberties to fight alien rulers and secured freedom for
our people, not only of their generation but generations to follow. The Constitution cannot be seen
as a document written in ink to replace one legal regime by another. It is a testament created for
securing the goals professed in the Preamble36. Part-III of the Constitution is incorporated to
ensure achievement of the objects contained in the Preamble.37 We the People of this country are
the intended beneficiaries38 of the Constitution. It must be seen as a document written in the blood
of innumerable martyrs of Kesavananda Bharati (supra) Para 91. Our Preamble outlines the
objectives of the whole constitution. It expresses what we had thought or dreamt for so long. In re,
The Kerala Education Bill, 1957, AIR 1958 SC 956 To implement and fortify these supreme purposes
set forth in the Preamble, Part III of our Constitution has provided for us certain fundamental
rights. Bidi Supply Co. v. Union of India & Others, AIR 1956 SC 479 at page 487 Para 23. After all,
for whose benefit was the Constitution enacted? What was the point of making all this other about
fundamental rights? I am clear that the Constitution is not for the exclusive benefit governments
and States; it is not only for lawyers and politicians and officials and those highly placed. It also
exists for the common man, for the poor and the humble, for those who have businesses at stake, for
the butcher, the baker and the candlestick maker. It lays down for this land a rule of law as
understood in the free democracies of the world. It constitutes India into a Sovereign Republic and
guarantees in every page rights and freedom to the side by side and consistent with the overriding
power of the State to act for the common good of all. Jalianwala Bagh and the like. Man is not a
creature of the State. Life and liberty are not granted by the Constitution. Constitution only
stipulates the limitations on the power of the State to interfere with our life and liberty. Law is
essential to enjoy the fruits of liberty; it is not the source of liberty and emphatically not the
exclusive source.

19. To comprehend whether the right to privacy is a Fundamental Right falling within the sweep of
any of the Articles of Part-III, it is necessary to understand what fundamental right and the right of
privacy mean conceptually. Rights arise out of custom, contract or legislation, including a written
Constitution. The distinction between an ordinary legislation and an enacted Constitution is that the
latter is believed and expected to be a relatively permanent piece of legislation which cannot be
abrogated by a simple majority of representatives elected for a limited tenure to legislative bodies
created thereby. The Constitution of any country is a document which contains provisions specifying
the rules of governance in its different aspects. It defines the powers of the legislature and the
procedures for law making, the powers of the executive to administer the State by enforcing the law
made by the legislature and the powers of the judiciary. The underlying belief is that the
Constitution of any country contains certain core political values and beliefs of the people of that
country which cannot normally be tinkered with lightly, by transient public opinion.
20. The Constitution of India is one such piece of legislation. Comparable are constitutions of
United States of America, Canada and Australia to mention only some. All such Constitutions apart
from containing provisions for administration of the State, contain provisions specifying or
identifying certain rights of citizens and even some of the rights of non-citizens (both the classes of
persons could be collectively referred to as SUBJECTS for the sake of convenience). Such rights
came to be described as basic, primordial, inalienable or fundamental rights. Such rights are a
protective wall against States power to destroy the liberty of the SUBJECTS.
Irrespective of the nomenclature adopted in different countries, such rights are believed in all
democratic countries39 to Bidi Supply Co. v. Union of India & Others, AIR 1956 SC 479 Para 24. I
make no apology for turning to older democracies and drawing inspiration from them, for though
our law is an amalgam drawn from many sources, its firmest foundations are rooted in the freedoms
of other lands where men are free in the democratic sense of the term. England has no fundamental
rights as such and its Parliament is supreme but the liberty of the subject is guarded there as
jealously as the supremacy of Parliament. be rights which cannot be abridged or curtailed totally by
ordinary legislation and unless it is established that it is so necessary to abridge or curtail those
rights in the larger interest of the society. Several Constitutions contain provisions stipulating
various attendant conditions which any legislation intending to abridge such (fundamental) rights is
required to comply with.
21. Provisions of any written Constitution create rights and obligations, belonging either to
individuals or the body politic as such. For example, the rights which are described as fundamental
rights in Chapter-III of our Constitution are rights of individuals whereas provisions of dealing with
elections to legislative bodies create rights collectively in the body politic mandating periodic
elections. They also create rights in favour of individuals to participate in such electoral process
either as an elector or to become an elected representative of the people/voters.
22. Though each of the rights created by a Constitution is of great importance for sustenance of a
democratic form of Government chosen by us for achieving certain objectives declared in the
Preamble, the framers of our Constitution believed that some of the rights enshrined in the
Constitution are more crucial to the pursuit of happiness of the people of India and, therefore, called

them fundamental rights. The belief is based on the study of human history and the Constitution of
other nations which in turn are products of historical events.
The scheme of our Constitution is that the power of the State is divided along a vertical axis between
the Union and the States and along the horizontal axis between the three great branches of
governance, the legislative, the executive and the judiciary. Such division of power is believed to be
conducive to preserving the liberties of the people of India. The very purpose of creating a written
Constitution is to secure justice, liberty and equality to the people of India. Framers of the
Constitution believed that certain freedoms are essential to enjoy the fruits of liberty and that the
State shall not be permitted to trample upon those freedoms except for achieving certain important
and specified objectives in the larger interests of society. Therefore, the authority of the State for
making a law inconsistent with fundamental rights, is cabined within constitutionally proclaimed
limitations.
23. Provisions akin to the Fundamental Rights guaranteed under our Constitution exist in American
Constitution also40. They are anterior to our Constitution.
24. The inter-relationship of various fundamental rights guaranteed under Part III of the
Constitution and more specifically between Articles 14, 19 and 21 of the Constitution has been a
matter of great deal of judicial discourse starting from A.K. Gopalan. The march of the law in this
regard is recorded by Justices Nariman and Chandrachud in detail.
25. R.C. Cooper and Maneka Gandhi gave a different orientation to the topic. Justice Bhagwati in
Maneka Gandhi speaking for the majority opined41 that in view of the later decision of this Court in
The first 8 amendments to the Constitution are some of them.
5. ....It was in Kharak Singh v. State of U.P. & Ors. that the question as to the, proper scope and
meaning of the expression personal liberty' came up pointedly for consideration for the first time
before this Court. The majority of the Judges took the view "that personal liberty' is used in the
article as a compendious term to include within itself all the varieties of rights which go to make up
the personal liberties' of man other than those dealt with in the several clauses of Article 19(1). In
other words, while Article 19(1) deals with particular species or attributes of that freedom, 'personal
liberty' in Article 21 takes in and comprises the residue". The minority judges, however, disagreed
with this view taken by the majority and explained their position in the following words : "No doubt
the expression 'personal liberty' is a comprehensive one and the right to move freely is an attribute
of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and,
therefore, the expression 'personal liberty' in Article 21 excludes that attribute. In our view, this is
not a correct approach. Both are independent fundamental rights, though there is overlapping.
There is no question of one being carved out of another. The fundamental right of life and personal
liberty has many attributes and some of them are found in Article 19. If a person's fundamental right
under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a
complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the
attributes covered by Article 19(1) are concerned". There can be no doubt that in view of the decision
of this Court in R. C. R.C. Cooper, the minority view (in Kharak Singh) must be regarded as correct

and the majority view must be held to be overruled. Consequently, it was held that any law which
deprives any person of the liberty guaranteed under Article 21 must not only be just, fair and
reasonable, but must also satisfy that it does not at the same time violate one or some of the other
fundamental rights enumerated under Article 19, by demonstrating that the law is strictly in
compliance with one of the corresponding clauses 2 to 6 of Article 19.42
26. In Kharak Singh, Ayyangar, J. speaking for the majority held that the expression personal liberty
used in Article 21 is a compendious term to include within itself all varieties of rights which Cooper
v. Union of India(2) the minority view must be regarded as correct and the majority view must be
held to have been overruled.
6. ..The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article
19 and that even if there is a law prescribing a procedure for depriving a person of 'personal liberty'
and there is consequently no infringement of the fundamental right conferred by Article 21, such
law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet
the challenge of that article. This proposition can no longer be disputed after the decisions in R. C.
Cooper's case, Shambhu Nath Sarkar's case and Haradhan Saha's case. Now, if a law depriving a
person of 'personal liberty' and prescribing a procedure for that purpose within the meaning of
Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19
which may be applicable in a given situation, ex hypothesi it must also be liable to be tested with
reference to Article 14. This was in fact not disputed by the learned Attorney General and indeed he
could not do so in view of the clear and categorical statement made by Mukharjea, J., in A. K.
Gopalan's case that Article 21 "presupposes that the law is a valid and binding law under the
provisions of the Constitution having regard to the competence of the legislature and the subject it
relates to and does not infringe any of the fundamental rights which the Constitution provides for",
including Article 14..... constitute the personal liberties of a man other than those specified in the
several clauses of Article 19(1). In other words, Article 19(1) deals with particular species or
attributes of personal liberty mentioned in Article
21. Article 21 takes in and comprises the residue. Such a construction was not accepted by the
minority. The minority opined that both Articles 19 and 21 are independent fundamental rights but
they are overlapping.43
27. An analysis of Kharak Singh reveals that the minority opined that the right to move freely is an
attribute of personal liberty. Minority only disputed the correctness of the proposition that by
enumerating certain freedoms in Article 19(1), the makers of the Constitution excluded those
freedoms from the expression liberty in Article 21. The minority opined that both the freedoms
enumerated in Article 19(1) and 21 are independent fundamental rights, though there is
overlapping.
The expression liberty is capable of taking within its sweep not only the right to move freely,
guaranteed under Article 19(1)(d); No doubt the expression personal liberty is a comprehensive one
and the right to move freely is an attribute of personal liberty. It is said that the freedom to move
freely is carved out of personal liberty and, therefore, the expression personal liberty in Art. 21

excludes that attribute. In our view, this is not a correct approach. Both are independent
fundamental rights, though there is overlapping. but also each one of the other freedoms mentioned
under Article 19(1). Personal liberty takes within its sweep not only the right not to be subjected to
physical restraints, but also the freedom of thought, belief, emotion and sensation and a variety of
other freedoms. The most basic understanding of the expression liberty is the freedom of an
individual to do what he pleases. But the idea of liberty is more complex than that. Abraham
Lincolns statement44 that our nation was conceived in liberty is equally relevant in the context of
the proclamation contained in our Preamble; and as evocatively expressed in the words of Justice
Brandies;
Those who won our independence believed that the final end of the State was to make
men free to develop their faculties; and that in its government the deliberative forces
should prevail over the arbitrary. They valued liberty both as an end and as a means.
They believed liberty to be the secret of happiness and courage to be the secret of
liberty. Whitney v. California, 274 U.S. 357, 375
28. The question now arises as to what is the purpose the framers of the Constitution sought to
achieve by specifically enumerating some of the freedoms which otherwise would form part of the
expression liberty. To my mind the answer is that the Constituent Gettysburg Speech Assembly
thought it fit that some aspects of liberty require a more emphatic declaration so as to restrict the
authority of the State to abridge or curtail them. The need for such an emphatic declaration arose
from the history of this nation. In my opinion, the purpose sought to be achieved is two-fold. Firstly,
to place the expression liberty beyond the argumentative process45 of ascertaining the meaning of
the expression liberty, and secondly, to restrict the authority of the State to abridge those
enumerated freedoms only to achieve the purposes indicated in the corresponding clauses (2) to (6)
of Article 19.46 It must be remembered that the authority of the That was exactly the States
submission in A.K. Gopalans case which unfortunately found favour with this Court. (2) Nothing in
sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable restrictions on the exercise 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 foreign States, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence (3) Nothing in sub clause (b) of the said
clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from
making any law imposing, in the interests of the sovereignty and integrity of India or public order,
reasonable restrictions on the exercise of the right conferred by the said sub clause (4) Nothing in
sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes,
or prevent the State from making any law imposing, in the interests of the sovereignty and integrity
of India or public order or morality, reasonable restrictions on the exercise of the right conferred by
the said sub clause (5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation
of any existing law in so far as it imposes, or prevent the State from making any law imposing,
reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in
the interests of the general public or for the protection of the interests of any Scheduled Tribe (6)
Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, in the interests of the general public,

reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in
particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it
relates to, or prevent the State from making any law relating to,
(i) the professional or technical qualifications necessary for practising any profession or carrying on
any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade,
business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise
State to deprive any person of the fundamental right of liberty is textually unlimited as the only
requirement to enable the State to achieve that result is to make a law. When it comes to deprivation
of the freedoms under Article 19(1), the requirement is: (a) that there must not only be a law but
such law must be tailored to achieve the purposes indicated in the corresponding sub-Article47; and
(b) to declare that the various facets of liberty enumerated in Article 19(1) are available only to the
citizens of the country but not all SUBJECTS.48 As it is now clearly held by this Court that the rights
guaranteed under Articles 14 and 21 are not confined only to citizens but available even to
non-citizens aliens or incorporated bodies even if they are incorporated in India etc.
29. The inter-relationship of Article 19 and 21, if as understood by me, as stated in para 28, the
authority of the State to deprive any person of his liberty is circumscribed by certain factors;
(1) It can only be done under the authority of law That was exactly the States submission in A.K.
Gopalans case which unfortunately found favour with this Court. See Hans Muller of Nurenburg Vs.
Superintendent, Presidency Jail, Calcutta and Others AIR 1955 SC 367, (Paras 34 and 38) State
Trading Corporation of India Ltd. Vs. The Commercial Tax Officer and Others, AIR 1963 SC 1811,
Para 20 Indo-China Steam Navigation Co. Ltd. Vs. Jasjit Singh, Additional Collector of Customs,
Calcutta and Others, AIR 1964 SC 1140, (Para 35) Charles Sobraj Vs. Supdt. Central Jail, Tihar, New
Delhi, AIR 1978 SC 104, (Para 16 ) Louis De Raedt Vs. Union of India and Others, (1991) 3 SCC 554,
(Para 13) (2) law in the context means a valid legislation.
(3) If the person whose liberty is sought to be deprived is a citizen and that liberty happens to be one
of the freedoms enumerated in Article 19(1), such a law is required to be a reasonable within the
parameters stipulated in clauses (2) to (6) of Article 19, relevant to the nature of the entrenched
freedom/s, such law seeks to abridge.
(4) If the person whose liberty is sought to be deprived of is a non-citizen or even if a citizen is with
respect to any freedom other than those specified in Articles 19(1), the law should be just, fair and
reasonable.
30. My endeavour qua the aforesaid analysis is only to establish that the expression liberty in Article
21 is wide enough to take in not only the various freedoms enumerated in Article 19(1) but also many
others which are not enumerated. I am of the opinion that a better view of the whole scheme of the
chapter on fundamental rights is to look at each one of the guaranteed fundamental rights not as a
series of isolated points, but as a rational continuum of the legal concept of liberty i.e. freedom from

all substantial, arbitrary encroachments and purposeless restraints sought to be made by the State.
Deprivation of liberty could lead to curtailment of one or more of freedoms which a human being
possesses, but for interference by the State.
31. Whether it is possible to arrive at a coherent, integrated and structured statement explaining the
right of privacy is a question that has been troubling scholars and judges in various jurisdictions for
decades.49 Considerable amount of literature both academic and judicial came into existence. In
this regard various taxonomies50 have been proposed suggesting that there are a number of
interests and values into which the right to privacy could be dissected.
32. Claims for protection of privacy interests can arise against the State and its instrumentalities and
against non-State entities such as, individuals acting in their private capacity and bodies corporate
or unincorporated associations etc., without any element of State participation. Apart from
academic literature, different Gobind v. State of Madhya Pradesh & Another, (1975) 2 SCC 148 Para
23. The most serious advocate of privacy must confess that there are serious problems of defining
the essence and scope of the right. For a detailed account of the taxonomy of the constitutional right
to privacy in India see, Mariyam Kamil, The Structure of the Right to Privacy in India (MPhil thesis,
University of Oxford, 2015). claims based on different asserted privacy interests have also found
judicial support. Cases arose in various jurisdictions in the context of privacy interests based on (i)
Common Law; (ii) statutory recognition; and (iii) constitutionally protected claims of the right of
privacy.
33. I am of the opinion that for answering the present reference, this Court is only concerned with
the question whether SUBJECTS who are amenable to the laws of this country have a Fundamental
Right of Privacy against the State51. The text of the Constitution is silent in this regard. Therefore, it
is required to examine whether such a right is implied in any one or more of the Fundamental
Rights in the text of the Constitution.
34. To answer the above question, it is necessary to understand conceptually identify the nature of
the right to privacy.
35. My learned brothers have discussed various earlier decisions of this Court and of the Courts of
other countries, dealing with the claims of the Right of Privacy. International Treaties and
Conventions have been referred to to establish the existence and It is a settled principle of law that
some of the Fundamental Rights like 14 and 29 are guaranteed even to non- citizens recognition of
the right to privacy in the various parts of the world, and have opined that they are to be read into
our Constitution in order to conclude that there exists a Fundamental Right to privacy under our
Constitution. While Justice Nariman opined 94. This reference is answered by stating that the
inalienable fundamental right to privacy resides in Article 21 and other fundamental freedoms
contained in Part III of the Constitution of India. M.P. Sharma (supra) and the majority in Kharak
Singh (supra), to the extent that they indicate to the contrary, stand overruled. The later judgments
of this Court recognizing privacy as a fundamental right do not need to be revisited. These cases are,
therefore, sent back for adjudication on merits to the original Bench of 3 honourable Judges of this
Court in light of the judgment just delivered by us. Justice Chandrachud held :

(C) Privacy is a constitutionally protected right which emerges primarily from the
guarantee of life and personal liberty in Article 21 of the Constitution. Elements of
privacy also arise in varying contexts from the other facets of freedom and dignity
recognised and guaranteed by the fundamental rights contained in Part III;
36. One of the earliest cases where the constitutionality of States action allegedly infringing the right
of privacy fell for the consideration of the US Supreme Court is Griswold et al v. Connecticut, 381 US
479. The Supreme Court of the United States sustained a claim of a privacy interest on the theory
that the Constitution itself creates certain zones of privacy - repose and intimate decision.52
Building on this framework, Bostwick53 suggested that there are in fact, three aspects of privacy
repose, sanctuary and intimate decision. Repose refers to freedom from unwarranted stimuli,
sanctuary to protection against intrusive observation, and intimate decision to autonomy with
respect to the most personal life choices. Whether any other facet of the right of privacy exists
cannot be divined now. In my opinion, there is no need to resolve all definitional concerns at an
abstract level to understand the nature of the right to privacy. The ever growing possibilities of
technological and psychological intrusions by the State into the liberty of SUBJECTS must leave
some doubt in this context. Definitional uncertainty is no reason to not recognize the existence of
the right of privacy. For the purpose of this case, it is sufficient to go by the understanding that the
right to privacy consists of three facets i.e. repose, sanctuary and intimate decision. Each of these
facets is so essential for the liberty of human beings that I see no reason to doubt that the right to
privacy is part of the liberty guaranteed by our Constitution.
Griswold v Connecticut 381 US 479 (1965) 487.
Gary Bostwick, A Taxonomy of Privacy: Repose, Sanctuary, and Intimate Decision (1976) 64
California Law Review 1447.
37. History abounds with examples of attempts by governments to shape the minds of SUBJECTS.
In other words, conditioning the thought process by prescribing what to read or not to read; what
forms of art alone are required to be appreciated leading to the conditioning of beliefs; interfering
with the choice of people regarding the kind of literature, music or art which an individual would
prefer to enjoy.54 Such conditioning is sought to be achieved by screening the source of information
or prescribing penalties for making choices which governments do not approve.55 Insofar as
religious beliefs are concerned, a good deal of the misery our species suffer owes its existence to and
centres around competing claims of the right to propagate religion. Constitution of India protects
the liberty of all SUBJECTS guaranteeing56 the freedom of Stanley Vs. Georgia, 394 U.S. 557 (1969)
- that the mere private possession of obscene matter cannot constitutionally be made a crime.
State has no business telling a man, sitting alone in his own house, what books he may read or what
films he may watch. Our whole constitutional heritage rebels at the thought of giving government
the power to control mens minds.
(1986) 3 SCC 615, Bijoe Emmanuel & Ors vs State Of Kerala & Others

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 existing 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.
Explanation I.- The wearing and carrying of kirpans shall be deemed to be included in the
profession of the Sikh religion.
conscience and right to freely profess, practice and propagate religion. While the right to freely
profess, practice and propagate religion may be a facet of free speech guaranteed under Article
19(1)(a), the freedom of the belief or faith in any religion is a matter of conscience falling within the
zone of purely private thought process and is an aspect of liberty. There are areas other than
religious beliefs which form part of the individuals freedom of conscience such as political belief etc.
which form part of the liberty under Article 21.
38. Concerns of privacy arise when the State seeks to intrude into the body of SUBJECTS.57
Corporeal punishments were not unknown to India, their abolition is of a recent vintage. Forced
feeding of certain persons by the State raises concerns of privacy. An individuals rights to refuse life
prolonging medical treatment or terminate his life is another freedom which fall within the zone of
the right of privacy. I am conscious of the fact that the issue is pending before this Court. But in
various other jurisdictions, there Explanation II.- In sub-clause (b) of clause (2), the reference to
Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist
religion, and the reference to Hindu religious institutions shall be construed accordingly.\ Skinner
Vs. Oklahoma, 316 U.S. 535 (1942) - There are limits to the extent to which a legislatively
represented majority may conduct biological experiments at the expense of the dignity and
personality and natural powers of a minority even those who have been guilty of what the majority
defines as crimes - Jackson, J. is a huge debate on those issues though it is still a grey area.58 A
womans freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the
realm of privacy.
Similarly, the freedom to choose either to work or not and the freedom to choose the nature of the
work are areas of private decision making process. The right to travel freely within the country or go
abroad is an area falling within the right of privacy. The text of our Constitution recognised the
freedom to travel throughout the country under Article 19(1)(d). This Court has already recognised
that such a right takes within its sweep the right to travel abroad.59 A persons freedom to choose
the place of his residence once again is a part of his right of privacy60 recognised by the
Constitution of India under Article 19(1)(e) though the pre- dominant purpose of enumerating the

above mentioned two freedoms in Article 19(1) is to disable both the federal and State Governments
from creating barriers which are incompatible with the federal nature of our country and its
Constitution. The choice For the legal debate in this area in US, See Chapter 15.11 of the American
Constitutional Law by Laurence H. Tribe 2nd Edition.
Maneka Gandhi Vs. Union of India, (1978) 1 SCC 248 Williams Vs. Fears, 179 U.S. 270 (1900)
Undoubtedly the right of locomotion, the right to remove from one place to another according to
inclination, is an attribute of personal liberty,. of appearance and apparel are also aspects of the
right of privacy. The freedom of certain groups of SUBJECTS to determine their appearance and
apparel (such as keeping long hair and wearing a turban) are protected not as a part of the right of
privacy but as a part of their religious belief. Such a freedom need not necessarily be based on
religious beliefs falling under Article 25. Informational traces are also an area which is the subject
matter of huge debate in various jurisdictions falling within the realm of the right of privacy, such
data is as personal as that of the choice of appearance and apparel. Telephone tappings and internet
hacking by State, of personal data is another area which falls within the realm of privacy. The instant
reference arises out of such an attempt by the Union of India to collect bio-metric data regarding all
the residents of this country.
The above-mentioned are some of the areas where some interest of privacy exists. The examples
given above indicate to some extent the nature and scope of the right of privacy.
40. I do not think that anybody in this country would like to have the officers of the State intruding
into their homes or private property at will or soldiers quartered in their houses without their
consent. I do not think that anybody would like to be told by the State as to what they should eat or
how they should dress or whom they should be associated with either in their personal, social or
political life. Freedom of social and political association is guaranteed to citizens under Article
19(1)(c). Personal association is still a doubtful area.61 The decision making process regarding the
freedom of association, freedoms of travel and residence are purely private and fall within the realm
of the right of privacy. It is one of the most intimate decisions.
All liberal democracies believe that the State should not have unqualified authority to intrude into
certain aspects of human life and that the authority should be limited by parameters constitutionally
fixed. Fundamental rights are the only constitutional firewall to prevent States interference with
those core freedoms constituting liberty of a human being. The right to privacy is certainly one of
the core freedoms which is to be The High Court of AP held that Article 19(1)(c) would take within
its sweep the matrimonial association in T. Sareetha Vs. T. Venkata Subbaiah, AIR 1983 AP 356.
However, this case was later overruled by this Court in Saroj Rani Vs. Sudarshan Kumar Chadha,
AIR 1984 SC 1562 defended. It is part of liberty within the meaning of that expression in Article 21.
41. I am in complete agreement with the conclusions recorded by my learned brothers in this regard.
42. It goes without saying that no legal right can be absolute. Every right has limitations. This aspect
of the matter is conceded at the bar. Therefore, even a fundamental right to privacy has limitations.
The limitations are to be identified on case to case basis depending upon the nature of the privacy

interest claimed. There are different standards of review to test infractions of fundamental rights.
While the concept of reasonableness overarches Part III, it operates differently across Articles (even
if only slightly differently across some of them). Having emphatically interpreted the Constitutions
liberty guarantee to contain a fundamental right of privacy, it is necessary for me to outline the
manner in which such a right to privacy can be limited. I only do this to indicate the direction of the
debate as the nature of limitation is not at issue here.
43. To begin with, the options canvassed for limiting the right to privacy include an Article 14 type
reasonableness enquiry62; limitation as per the express provisions of Article 19; a just, fair and
reasonable basis (that is, substantive due process) for limitation per Article 21; and finally, a just,
fair and reasonable standard per Article 21 plus the amorphous standard of compelling state
interest. The last of these four options is the highest standard of scrutiny63 that a court can adopt. It
is from this menu that a standard of review for limiting the right of privacy needs to be chosen.
44. At the very outset, if a privacy claim specifically flows only from one of the expressly enumerated
provisions under Article 19, then the standard of review would be as expressly provided under
Article 19. However, the possibility of a privacy claim being entirely traceable to rights other than
Art. 21 is bleak. Without discounting that possibility, it needs to be noted that Art. 21 is the bedrock
of 62A challenge under Article 14 can be made if there is an unreasonable classification and/or if the
impugned measure is arbitrary. The classification is unreasonable if there is no intelligible
differentia justifying the classification and if the classification has no rational nexus with the
objective sought to be achieved. Arbitrariness, which was first explained at para 85 of E.P. Royappa
v. State of Tamil Nadu, AIR 1974 SC 555, is very simply the lack of any reasoning.
A tiered level of scrutiny was indicated in what came to be known as the most famous footnote in
Constitutional law that is Footnote Four in United States v. Carolene Products, 304 U.S. 144 (1938).
Depending on the graveness of the right at stake, the court adopts a correspondingly rigorous
standard of scrutiny. the privacy guarantee. If the spirit of liberty permeates every claim of privacy,
it is difficult if not impossible to imagine that any standard of limitation, other than the one under
Article 21 applies. It is for this reason that I will restrict the available options to the latter two from
the above described four.
45. The just, fair and reasonable standard of review under Article 21 needs no elaboration. It has
also most commonly been used in cases dealing with a privacy claim hitherto.64 Gobind resorted to
the compelling state interest standard in addition to the Article 21 reasonableness enquiry. From the
United States where the terminology of compelling state interest originated, a strict standard of
scrutiny comprises two things- a compelling state interest and a requirement of narrow tailoring
(narrow tailoring means that the law must be narrowly framed to achieve the objective). As a term,
compelling state interest does not have definite contours in the US. Hence, it is critical that this
standard be adopted with some clarity as to when and in what types of privacy claims it is to be
used. Only in privacy claims which deserve District Registrar & Collector, Hyderabad v Canara Bank
AIR 2005 SC 186; State of Maharashtra v Bharat Shanti Lal Shah (2008) 13 SCC 5.

the strictest scrutiny is the standard of compelling State interest to be used. As for others, the just,
fair and reasonable standard under Article 21 will apply. When the compelling State interest
standard is to be employed must depend upon the context of concrete cases. However, this
discussion sets the ground rules within which a limitation for the right of privacy is to be found.
.......................................J. (J. CHELAMESWAR) New Delhi August 24, 2017.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT

PETITION (CIVIL) No.494 OF 2012 JUSTICE K S PUTTASWAMY (RETD.) AND ANR. .
PETITIONERS VERSUS UNION OF INDIA AND ORS. . RESPONDENTS WITH T.C. (CIVIL) No.
151 OF 2013 T.C. (CIVIL) No. 152 OF 2013 W.P. (CIVIL) No. 833 OF 2013 W.P. (CIVIL) No. 829 OF
2013 W.P. (CIVIL) No. 932 OF 2013 CONMT. PET. (CIVIL) No.144 OF 2014 IN W.P.(C)
NO.494/2012 T.P. (CIVIL) No. 313 OF 2014 T.P. (CIVIL) No. 312 OF 2014 S.L.P. (CRL) No.2524 OF
2014 W.P. (CIVIL) No. 37 OF 2015 W.P. (CIVIL) No. 220 OF 2015 CONMT. PET. (CIVIL) No.674
OF 2015 IN W.P.(C) NO.829/2013 T.P. (CIVIL) No. 921 OF 2015 CONMT. PET. (C) No.470 OF 2015
IN W.P.(C) NO.494/2012 CONMT. PET. (C) No.444 OF 2016 IN W.P.(C) NO.494/2012 CONMT.
PET. (C) No.608 OF 2016 IN W.P.(C) NO.494/2012 W.P.(CIVIL) NO.797/2016 CONMT. PET.
(CIVIL) No.844 OF 2017 IN W.P.(C) NO.494/2012 AND W.P. (CIVIL) No. 342 OF 2017 W.P.
(CIVIL) No. 372 OF 2017 JUDGMENT S. A. BOBDE, J.
The Origin of the Reference
1. This reference calls on us to answer questions that would go to the very heart of the liberty and
freedom protected by the Constitution of India. It arises in the context of a constitutional challenge
to the Aadhaar project, which aims to build a database of personal identity and biometric
information covering every Indian the worlds largest endeavour of its kind. To the Petitioners
argument therein that Aadhaar would violate the right to privacy, the Union of India, through its
Attorney General, raised the objection that Indians could claim no constitutional right of privacy in
view of a unanimous decision of 8 Judges of this Court in M.P. Sharma v. Satish Chandra1 and a
decision by a majority of 4 Judges in Kharak Singh v. State of Uttar Pradesh2.
2. The question, which was framed by a Bench of three of us and travels to us from a Bench of five,
was the following:
12. We are of the opinion that the cases on hand raise far-reaching questions of
importance involving interpretation of the Constitution. What is at stake is the
amplitude of the fundamental rights including that precious and inalienable right
under Article 21. If the observations made in MP Sharma and Kharak Singh are to be
read literally and accepted as the law of this country, the fundamental rights
guaranteed under the Constitution of India and more particularly right to liberty
under Article 21 would be denuded of vigour and vitality. At the same time, we are
also of the opinion that the institutional integrity and judicial discipline require that
pronouncements made by larger Benches of this Court cannot be ignored by smaller
Benches without appropriately explaining the reasons for not following the

pronouncements made by such larger Benches. With due respect to all the learned
Judges who rendered subsequent judgments where right to privacy is asserted or
referred to their Lordships concern for the liberty of human beings, we are of the
humble opinion that there appears to be certain amount of apparent unresolved
contradiction in the law declared by this Court.
13. Therefore, in our opinion to give quietus to the kind of controversy raised in this batch of cases
once and for all, it is better that the ratio decidendi of MP Sharma and Kharak Singh is scrutinized
and the MP Sharma v. Satish Chandra, 1954 SCR 1077 Kharak Singh v. State of UttarPradesh, AIR
1963 SC 1295 jurisprudential correctness of the subsequent decisions of this Court where the right to
privacy is either asserted or referred be examined and authoritatively decided by a Bench of
appropriate strength3.
3. We have had the benefit of submissions from Shri Soli Sorabjee, Shri Gopal Subramanium, Shri
Shyam Divan, Shri Arvind Datar, Shri Anand Grover, Shri Sajan Poovayya, Ms. Meenakshi Arora,
Shri Kapil Sibal, Shri P.V. Surendranath and Ms. Aishwarya Bhati for the Petitioners, and Shri K.K.
Venugopal, learned Attorney General for the Union of India, Shri Tushar Mehta, learned Additional
Solicitor General for the Union, Shri Aryama Sundaram for the State of Maharashtra, Shri Rakesh
Dwivedi for the State of Gujarat, Shri Arghya Sengupta for the State of Haryana, Shri Jugal Kishore
for the State of Chattisgarh and Shri Gopal Sankaranarayanan for an intervenor supporting the
Respondents. We would like to record our appreciation for their able assistance in a matter of such
great import as the case before us. Justice KS Puttaswamy (Retd.) v. Union of India, W.P. (Civil) No.
494 of 2012, Order dated 11 August 2015 The Effect of M.P. Sharma and Kharak Singh
4. The question of whether Article 21 encompasses a fundamental right to privacy did not fall for
consideration before the 8 Judges in the M.P. Sharma Court. Rather, the question was whether an
improper search and seizure operation undertaken against a company and its directors would
violate the constitutional bar against testimonial compulsion contained in Article 20(3) of the
Constitution. This Court held that such a search did not violate Article 20(3). Its reasoning
proceeded on the footing that the absence of a fundamental right to privacy analogous to the Fourth
Amendment to the United States constitution in our own constitution suggested that the
Constituent Assembly chose not to subject laws providing for search and seizure to constitutional
limitations. Consequently, this Court had no defensible ground on which to import such a right into
Article 20(3), which was, at any event, a totally different right.
5. M.P. Sharma is unconvincing not only because it arrived at its conclusion without enquiry into
whether a privacy right could exist in our Constitution on an independent footing or not, but
because it wrongly took the United States Fourth Amendment which in itself is no more than a
limited protection against unlawful surveillance to be a comprehensive constitutional guarantee of
privacy in that jurisdiction.
6. Neither does the 4:2 majority in Kharak Singh v. State of Uttar Pradesh (supra) furnish a basis for
the proposition that no constitutional right to privacy exists. Ayyangar, J.s opinion for the majority
found that Regulation 236 (b) of the Uttar Pradesh Police Regulations, which inter alia enabled the

police to make domiciliary visits at night was plainly violative of Article 214. In reasoning towards
this conclusion, the Court impliedly acknowledged a constitutional right to privacy. In particular, it
began by finding that though India has no like guarantee to the Fourth Amendment, an
unauthorised intrusion into a persons home and the disturbance caused to him thereby, is as it were
the violation of a common law right of a man an ultimate essential of ordered liberty, if not of the
very concept of civilization5. It proceeded to affirm that the statement in Semaynes case6 that the
house of everyone is to him as Id., at p. 350 Id., at p. 349 (1604) 5 Coke 91 his castle and fortress as
well as for his defence against injury and violence as for his repose articulated an abiding principle
which transcends mere protection of property rights and expounds a concept of personal liberty.
Thus far, the Kharak Singh majority makes out the case of the Attorney General. But, in its final
conclusion, striking down Regulation 236 (b) being violative of Article 21 could not have been
arrived at without allowing that a right of privacy was covered by that guarantee.
7. The M.P. Sharma Court did not have the benefit of two interpretative devices that have
subsequently become indispensable tools in this Courts approach to adjudicating constitutional
cases. The first of these devices derives from R.C. Cooper v. Union of India7 and its progeny
including Maneka Gandhi v. Union of India8 which require us to read Part IIIs guarantees of rights
together. Unlike AK Gopalan v. State of Madras9 which held the field in M.P. Sharmas time, rights
demand to be read as overlapping rather than in silos, so that Part III is now conceived as a
constellation of harmonious and mutually reinforcing (1970) 1 SCC 248 (1978) 1 SCC 248 AIR 1950
SC 27 guarantees. Part III does not attempt to delineate rights specifically.
I take the right to privacy, an indispensable part of personal liberty, to have this character. Such a
view would have been wholly untenable in the AK Gopalan era.
8. M.P. Sharma also predates the practice of the judicial enumeration of rights implicit in a
guarantee instantiated in the constitutional text. As counsel for the Petitioners correctly submitted,
there is a whole host of rights that this court has derived from Article 21 to evidence that
enumeration is a well-embedded interpretative practice in constitutional law. Article 21s guarantee
to the right to life is home to such varied rights as the right to go abroad (Maneka Gandhi v. Union
of India), the right to livelihood (Olga Tellis v. Bombay Municipal Corporation10) and the right to
medical care (Paramanand Katara v. Union of India11).
9. Therefore, nothing in M.P. Sharma and Kharak Singh supports the conclusion that there is no
fundamental right to privacy in our (1985) 3 SCC 545 (1989) 4 SCC 286 Constitution. These two
decisions and their inconclusiveness on the question before the Court today have been discussed in
great detail in the opinions of Chelameswar J., Nariman J., and Chandrachud J., I agree with their
conclusion in this regard. To the extent that stray observations taken out of their context may
suggest otherwise, the shift in our understanding of the nature and location of various fundamental
rights in Part III brought about by R.C. Cooper and Maneka Gandhi has removed the foundations of
M.P. Sharma and Kharak Singh.
10. Petitioners submitted that decisions numbering atleast 30 beginning with Mathews, J.s
full-throated acknowledgement of the existence and value of a legal concept of privacy in Gobind v.

State of M.P.12 form an unbroken line of cases that affirms the existence of a constitutional right to
privacy. In view of the foregoing, this view should be accepted as correct.
The Form of the Privacy Right
11. It was argued for the Union by Mr. K.K. Venugopal, learned Attorney General that the right of
privacy may at best be a common law (1975) 2 SCC 148 right, but not a fundamental right
guaranteed by the Constitution. This submission is difficult to accept. In order to properly
appreciate the argument, an exposition of the first principles concerning the nature and evolution of
rights is necessary.
12. According to Salmond, rights are interests protected by rules of right, i.e., by moral or legal
rules13. When interests are worth protecting on moral grounds, irrespective of the existence of a
legal system or the operation of law, they are given the name of a natural right. Accordingly, Roscoe
Pound refers to natural law as a theory of moral qualities inherent in human beings, and to natural
rights as deductions demonstrated by reason from human nature14. He defines natural rights, and
distinguishes them from legal rights (whether at common law or under constitutions) in the
following way:
Natural rights mean simply interests which we think ought to be secured demands
which human beings may make which we think ought to be satisfied. It is perfectly
true that neither law nor state creates them. But it is fatal to all sound thinking to
treat them as legal conceptions. For legal rights, the devices which law employs to
secure such of these PJ FITZGERALD, SALMOND ON JURISPRUDENCE 217
(Twelfth Edition, 1966) ROSCOE POUND, THE SPIRIT OF THE COMMON LAW 88
(1921) interests as it is expedient to recognize, are the work of the law and in that
sense the work of the state.15 Privacy, with which we are here concerned, eminently
qualifies as an inalienable natural right, intimately connected to two values whose
protection is a matter of universal moral agreement: the innate dignity and autonomy
of man.
13. Legal systems, which in India as in England, began as monarchies, concentrated the power of the
government in the person of the king. English common law, whether it is expressed in the laws of
the monarch and her Parliament, or in the decisions of the Courts, is the source of what the Attorney
General correctly takes to be our own common law. Semaynes case16, in which it was affirmed that a
mans home is his castle and that even the law may only enter it with warrant, clearly shows that
elements of the natural right of privacy began to be received into the common law as early as in
1604. Where a natural law right could not have been enforced at law, the common law right is Id., at
p. 92 (1604) 5 Coke 91 evidently an instrument by which invasions into the valued interest in
question by ones fellow man can be addressed. On the very same rationale as Seymayne, Chapter 17
of the Indian Penal Code, 1860, treats trespass against property as a criminal offence17.
14. With the advent of democracy and of limited constitutional government came the state, a new
actor with an unprecedented capacity to interfere with natural and common law rights alike. The

state differs in two material ways from the monarch, the previous site in which governmental power
(including the power to compel compliance through penal laws) was vested. First, the state is an
abstract and diffuse entity, while the monarch was a tangible, single entity. Second, the advent of the
state came with a critical transformation in the status of the governed from being subjects under the
monarch to becoming citizens, Several other pre-constitutional enactments which codify the
common law also acknowledge a right to privacy, both as between the individuals and the
government, as well as between individuals inter se. These include:
1. S. 126-9, The Indian Evidence Act, 1872 (protecting certain classes of

communication as privileged)
2. S. 4, The Indian Easements Act, 1882 (defining easements as the right to choose
how to use and enjoy a given piece of land)
3. S. 5(2), The Indian Telegraph Act, 1885 (specifying the permissible grounds for the
Government to order the interception of messages)
4. S. 5 and 6, The Bankers Books (Evidence) Act, 1891 (mandating a court order for
the production and inspection of bank records)
5. S. 25 and 26, The Indian Post Office Act, 1898 (specifying the permissible grounds
for the interception of postal articles) and themselves becoming agents of political
power qua the state.
Constitutions like our own are means by which individuals the Preambular people of India create
the state, a new entity to serve their interests and be accountable to them, and transfer a part of
their sovereignty to it. The cumulative effect of both these circumstances is that individuals
governed by constitutions have the new advantage of a governing entity that draws its power from
and is accountable to them, but they face the new peril of a diffuse and formless entity against whom
existing remedies at common law are no longer efficacious.
15. Constitutions address the rise of the new political hegemon that they create by providing for a
means by which to guard against its capacity for invading the liberties available and guaranteed to
all civilized peoples. Under our constitutional scheme, these means declared to be fundamental
rights reside in Part III, and are made effective by the power of this Court and the High Courts
under Articles 32 and 226 respectively. This narrative of the progressive expansion of the types of
rights available to individuals seeking to defend their liberties from invasion from natural rights to
common law rights and finally to fundamental rights is consistent with the account of the
development of rights that important strands in constitutional theory present18.
16. This court has already recognized the capacity of constitutions to be the means by which to
declare recognized natural rights as applicable qua the state, and of constitutional courts to enforce
these declarations. In Kesavananda Bharati v. State of Kerala19, Mathew, J. borrows from Roscoe
Pound to explain this idea in the following terms:

While dealing with natural rights, Roscoe Pound states on p. 500 of Vol. I of his Jurisprudence:
Perhaps nothing contributed so much to create and foster hostility to courts and law and
constitutions as this conception of the courts as guardians of individual natural rights against the
State and against society; this conceiving of the law as a final and absolute body of doctrine
declaring these individual natural rights; this theory of constitutions as declaratory of common law
principles, which are also natural-law principles, anterior to the State and of superior validity to
enactments by the authority of the state; this theory of Constitutions as having for their purpose to
guarantee and maintain the natural rights of individuals against the Government and all its
agencies.In effect, it set up the received traditional social, political, and economic ideals of the legal
profession as a super- constitution, beyond the reach of any agency but judicial decision. (Emphasis
supplied) MARTIN LOUGHLIN, THE FOUNDATIONS OF PUBLIC LAW 344-46 (2010) (1973) 4
SCC 225, 1461 at p. 783 This Court also recognizes the true nature of the relation between the citizen
and the state as well as the true character and utility of Part III. Accordingly, in Peoples Union of
Civil Liberties v. Union of India20, it has recently been affirmed that the objective of Part III is to
place citizens at centre stage and make the state accountable to them. In Society for Unaided Private
Schools of Rajasthan v. Union of India21, it was held that [f]undamental rights have two aspects,
firstly, they act as fetter on plenary legislative powers, and secondly, they provide conditions for
fuller development of our people including their individual dignity.
17. Once we have arrived at this understanding of the nature of fundamental rights, we can
dismantle a core assumption of the Unions argument: that a right must either be a common law
right or a fundamental right. The only material distinctions between the two classes of right of which
the nature and content may be the same lie in the incidence of the duty to respect the right and in
the forum in which a failure to do so can be redressed. Common law rights are horizontal in (2005)
2 SCC 436 (2012) 6 SCC 1 at 27 their operation when they are violated by ones fellow man, he can be
named and proceeded against in an ordinary court of law. Constitutional and fundamental rights, on
the other hand, provide remedy against the violation of a valued interest by the state, as an abstract
entity, whether through legislation or otherwise, as well as by identifiable public officials, being
individuals clothed with the powers of the state. It is perfectly possible for an interest to
simultaneously be recognized as a common law right and a fundamental right. Where the
interference with a recognized interest is by the state or any other like entity recognized by Article
12, a claim for the violation of a fundamental right would lie. Where the author of an identical
interference is a non-state actor, an action at common law would lie in an ordinary court.
18. Privacy has the nature of being both a common law right as well as a fundamental right. Its
content, in both forms, is identical. All that differs is the incidence of burden and the forum for
enforcement for each form.
The Content of the Right of Privacy
19. It might be broadly necessary to determine the nature and content of privacy in order to consider
the extent of its constitutional protection. As in the case of life under Article 21, a precise definition
of the term privacy may not be possible. This difficulty need not detain us. Definitional and
boundary-setting challenges are not unique to the rights guaranteed in Article 21. This feature is

integral to many core rights, such as the right to equality. Evidently, the expansive character of any
right central to constitutional democracies like ours has nowhere stood in the way of recognizing a
right and treating it as fundamental where there are strong constitutional grounds on which to do
so.
20. The existence of zones of privacy is felt instinctively by all civilized people, without exception.
The best evidence for this proposition lies in the panoply of activities through which we all express
claims to privacy in our daily lives. We lock our doors, clothe our bodies and set passwords to our
computers and phones to signal that we intend for our places, persons and virtual lives to be private.
An early case in the Supreme Court of Georgia in the United States describes the natural and
instinctive recognition of the need for privacy in the following terms:
The right of privacy has its foundation in the instincts of nature. It is recognized
intuitively, consciousness being the witness that can be called to establish its
existence. Any person whose intellect is in a normal condition recognizes at once that
as to each individual member of society there are matters private and there are
matters public so far as the individual is concerned. Each individual as instinctively
resents any encroachment by the public upon his rights which are of a private nature
as he does the withdrawal of those of his rights which are of a public nature22.
The same instinctive resentment is evident in the present day as well. For instance, the
non-consensual revelation of personal information such as the state of ones health, finances, place
of residence, location, daily routines and so on efface ones sense of personal and financial security.
In District Registrar and Collector v. Canara Bank23, this Court observed what the jarring reality of
a lack of privacy may entail:
...If the right is to be held to be not attached to the person, then we would not shield
our account balances, income figures and personal telephone and address books from
the public eye, but might instead go about with the information written on our
foreheads or our bumper stickers. Pavesich v. New England Life Insurance co. et al.,
50 S.E. 68 (Supreme Court of Georgia) (2005) 1 SCC 496 at 48
21. Privacy is [t]he condition or state of being free from public attention to intrusion into or
interference with ones acts or decisions24. The right to be in this condition has been described as
the right to be let alone25. What seems to be essential to privacy is the power to seclude oneself and
keep others from intruding it in any way. These intrusions may be physical or visual, and may take
any of several forms including peeping over ones shoulder to eavesdropping directly or through
instruments, devices or technological aids.
22. Every individual is entitled to perform his actions in private. In other words, she is entitled to be
in a state of repose and to work without being disturbed, or otherwise observed or spied upon. The
entitlement to such a condition is not confined only to intimate spaces such as the bedroom or the
washroom but goes with a person wherever he is, even in a public place. Privacy has a deep affinity
with seclusion (of our physical persons and things) as well as such ideas as repose, solitude,

confidentiality and secrecy (in our communications), and BLACKS LAW DICTIONARY (Bryan
Garner, ed.) 3783 (2004) Samuel D. Warren and Louis D. Brandeis, The Right To Privacy, 4 HARV.
L. REV. 193 intimacy. But this is not to suggest that solitude is always essential to privacy. It is in
this sense of an individuals liberty to do things privately that a group of individuals, however large,
is entitled to seclude itself from others and be private. In fact, a conglomeration of individuals in a
space to which the rights of admission are reserved as in a hotel or a cinema hall must be regarded
as private. Nor is the right to privacy lost when a person moves about in public. The law requires a
specific authorization for search of a person even where there is suspicion26. Privacy must also
mean the effective guarantee of a zone of internal freedom in which to think. The disconcerting
effect of having another peer over ones shoulder while reading or writing explains why individuals
would choose to retain their privacy even in public. It is important to be able to keep ones work
without publishing it in a condition which may be described as private. The vigour and vitality of the
various expressive freedoms guaranteed by the Constitution depends on the existence of a
corresponding guarantee of cognitive freedom. Narcotic Drugs and Psychotropic Substances Act,
1985, s. 42
23. Even in the ancient and religious texts of India, a well-developed sense of privacy is evident. A
woman ought not to be seen by a male stranger seems to be a well-established rule in the Ramayana.
Grihya Sutras prescribe the manner in which one ought to build ones house in order to protect the
privacy of its inmates and preserve its sanctity during the performance of religious rites, or when
studying the Vedas or taking meals. The Arthashastra prohibits entry into anothers house, without
the owners consent27. There is still a denomination known as the Ramanuj Sampradaya in southern
India, members of which continue to observe the practice of not eating and drinking in the presence
of anyone else. Similarly in Islam, peeping into others houses is strictly prohibited28. Just as the
United States Fourth Amendment guarantees privacy in ones papers and personal effects, the
Hadith makes it reprehensible to read correspondence between others. In Christianity, we find the
aspiration to live without interfering in the affairs of others in the text of the Bible29. Confession of
ones sins is a private act30. KAUTILYAS ARTHASHASTRA189-90 (R. Shamasastri, trans., 1915) AA
MAUDUDI , HUMAN RIGHTS IN ISLAM 27 (1982) Thessalonians 4:11 THE BIBLE Religious and
social customs affirming privacy also find acknowledgement in our laws, for example, in the Civil
Procedure Codes exemption of a pardanashin ladys appearance in Court31.
24. Privacy, that is to say, the condition arrived at after excluding other persons, is a basic
pre-requisite for exercising the liberty and the freedom to perform that activity. The inability to
create a condition of selective seclusion virtually denies an individual the freedom to exercise that
particular liberty or freedom necessary to do that activity.
25. It is not possible to truncate or isolate the basic freedom to do an activity in seclusion from the
freedom to do the activity itself. The right to claim a basic condition like privacy in which
guaranteed fundamental rights can be exercised must itself be regarded as a fundamental right.
Privacy, thus, constitutes the basic, irreducible condition necessary for the exercise of personal
liberty and freedoms guaranteed by the Constitution. It is the inarticulate major premise in Part III
of the Constitution.

James 5:16 THE BIBLE Code of Civil Procedure, 1989, S. 132 Privacys Connection to Dignity and
Liberty
26. Undoubtedly, privacy exists, as the foregoing demonstrates, as a verifiable fact in all civilized
societies. But privacy does not stop at being merely a descriptive claim. It also embodies a normative
one. The normative case for privacy is intuitively simple. Nature has clothed man, amongst other
things, with dignity and liberty so that he may be free to do what he will consistent with the freedom
of another and to develop his faculties to the fullest measure necessary to live in happiness and
peace. The Constitution, through its Part III, enumerates many of these freedoms and their
corresponding rights as fundamental rights. Privacy is an essential condition for the exercise of most
of these freedoms. Ex facie, every right which is integral to the constitutional rights to dignity, life,
personal liberty and freedom, as indeed the right to privacy is, must itself be regarded as a
fundamental right.
27. Though he did not use the name of privacy, it is clear that it is what J.S. Mill took to be
indispensable to the existence of the general reservoir of liberty that democracies are expected to
reserve to their citizens. In the introduction to his seminal On Liberty (1859), he characterized
freedom in the following way:
This, then, is the appropriate region of human liberty. It comprises, first, the inward
domain of consciousness; demanding liberty of conscience, in the most
comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and
sentiment on all subjects, practical or speculative, scientific, moral, or theological.
The liberty of expressing and publishing opinions may seem to fall under a different
principle, since it belongs to that part of the conduct of an individual which concerns
other people; but, being almost of as much importance as the liberty of thought itself,
and resting in great part on the same reasons, is practically inseparable from it.
Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of
our life to suit our own character; of doing as we like, subject to such consequences as
may follow: without impediment from our fellow-creatures, so long as what we do
does not harm them, even though they should think our conduct foolish, perverse, or
wrong. Thirdly, from this liberty of each individual, follows the liberty, within the
same limits, of combination among individuals; freedom to unite, for any purpose
not involving harm to others: the persons combining being supposed to be of full age,
and not forced or deceived.
No society in which these liberties are not, on the whole, respected, is free, whatever may be its form
of government; and none is completely free in which they do not exist absolute and unqualified. The
only freedom which deserves the name, is that of pursuing our own good in our own way, so long as
we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper
guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by
suffering each other to live as seems good to themselves, than by compelling each to live as seems
good to the rest.

Though this doctrine is anything but new, and, to some persons, may have the air of a truism, there
is no doctrine which stands more directly opposed to the general tendency of existing opinion and
practice. Society has expended fully as much effort in the attempt (according to its lights) to compel
people to conform to its notions of personal, as of social excellence.32 (Emphasis supplied)
28. The first and natural home for a right of privacy is in Article 21 at the very heart of personal
liberty and life itself. Liberty and privacy are integrally connected in a way that privacy is often the
basic condition necessary for exercise of the right of personal liberty. There are innumerable
activities which are virtually incapable of being performed at all and in many cases with dignity
unless an individual is left alone or is otherwise empowered to ensure his or her privacy. Birth and
death are events when privacy is required for ensuring dignity amongst all civilized people. Privacy
is thus one of those rights instrumentally required if one is to enjoy33 rights specified and
enumerated in the constitutional text. JOHN STUART MILL, ON LIBERTY AND OTHER ESSAYS
15-16 (Stefan Collini ed., 1989) (1859) Laurence H. Tribe and Michael C. Dorf, Levels Of Generality
In The Definition Of Rights, 57 U. CHI . L. REV. 1057 (1990) at 1068
29. This Court has endorsed the view that life must mean something more than mere animal
existence34 on a number of occasions, beginning with the Constitution Bench in Sunil Batra (I) v.
Delhi Administration35. Sunil Batra connected this view of Article 21 to the constitutional value of
dignity. In numerous cases, including Francis Coralie Mullin v. Administrator, Union Territory of
Delhi36, this Court has viewed liberty as closely linked to dignity. Their relationship to the effect of
taking into the protection of life the protection of faculties of thinking and feeling, and of temporary
and permanent impairments to those faculties. In Francis Coralie Mullin, Bhagwati, J. opined as
follows37:
Now obviously, the right to life enshrined in Article 21 cannot be restricted to mere
animal existence. It means something much more than just physical survival. In
Kharak Singh v. State of Uttar Pradesh, Subba Rao J. quoted with approval the
following passage from the judgment of Field J. in Munn v. Illinois to emphasize the
quality of life covered by Article 21:
By the term life as here used something more is meant than mere animal existence. The inhibition
Munn v. Illinois, (1877) 94 US 113 (Per Field, J.) as cited In Kharak Singh at p. 347-8 (1978) 4 SCC
494 (1981) 1 SCC 608 Francis Coralie Mullin at 7 against its deprivation extends to all those limbs
and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or
amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the
body through which the soul communicates with the outer world. and this passage was again
accepted as laying down the correct law by the Constitution Bench of this Court in the first Sunil
Batra case (supra). Every limb or faculty through which life is enjoyed is thus protected by Article 21
and a fortiori, this would include the faculties of thinking and feeling. Now deprivation which is
inhibited by Article 21 may be total or partial, neither any limb or faculty can be totally destroyed
nor can it be partially damaged. Moreover it is every kind of deprivation that is hit by Article 21,
whether such deprivation be permanent or temporary and, furthermore, deprivation is not an act
which is complete once and for all: it is a continuing act and so long as it lasts, it must be in

accordance with procedure established by law. It is therefore clear that any act which damages or
injures or interferes with the use of, any limb or faculty of a person, either permanently or even
temporarily, would be within the inhibition of Article 21. (Emphasis supplied) Privacy is therefore
necessary in both its mental and physical aspects as an enabler of guaranteed freedoms.
30. It is difficult to see how dignity whose constitutional significance is acknowledged both by the
Preamble and by this Court in its exposition of Article 21, among other rights can be assured to the
individual without privacy. Both dignity and privacy are intimately intertwined and are natural
conditions for the birth and death of individuals, and for many significant events in life between
these events. Necessarily, then, the right of privacy is an integral part of both life and personal
liberty under Article 21, and is intended to enable the rights bearer to develop her potential to the
fullest extent made possible only in consonance with the constitutional values expressed in the
Preamble as well as across Part III.
Privacy as a Travelling Right
31. I have already shown that the right of privacy is as inalienable as the right to perform any
constitutionally permissible act. Privacy in all its aspects constitutes the springboard for the exercise
of the freedoms guaranteed by Article 19(1). Freedom of speech and expression is always dependent
on the capacity to think, read and write in private and is often exercised in a state of privacy, to the
exclusion of those not intended to be spoken to or communicated with. A peaceful assembly requires
the exclusion of elements who may not be peaceful or who may have a different agenda. The
freedom to associate must necessarily be the freedom to associate with those of ones choice and
those with common objectives. The requirement of privacy in matters concerning residence and
settlement is too well-known to require elaboration. Finally, it is not possible to conceive of an
individual being able to practice a profession or carry on trade, business or occupation without the
right to privacy in practical terms and without the right and power to keep others away from his
work.
32. Ex facie, privacy is essential to the exercise of freedom of conscience and the right to profess,
practice and propagate religion vide Article 25. The further right of every religious denomination to
maintain institutions for religious and charitable purposes, to manage its own affairs and to own
and administer property acquired for such purposes vide Article 26 also requires privacy, in the
sense of non-interference from the state. Article 28(3) expressly recognizes the right of a student
attending an educational institution recognized by the state, to be left alone. Such a student cannot
be compelled to take part in any religious instruction imparted in any such institution unless his
guardian has consented to it.
33. The right of privacy is also integral to the cultural and educational rights whereby a group having
a distinct language, script or culture shall have the right to conserve the same. It has also always
been an integral part of the right to own property and has been treated as such in civil law as well as
in criminal law vide all the offences and torts of trespass known to law.

34. Therefore, privacy is the necessary condition precedent to the enjoyment of any of the
guarantees in Part III. As a result, when it is claimed by rights bearers before constitutional courts, a
right to privacy may be situated not only in Article 21, but also simultaneously in any of the other
guarantees in Part III. In the current state of things, Articles 19(1), 20(3), 25, 28 and 29 are all rights
helped up and made meaningful by the exercise of privacy. This is not an exhaustive list. Future
developments in technology and social ordering may well reveal that there are yet more
constitutional sites in which a privacy right inheres that are not at present evident to us.
Judicial Enumeration of the Fundamental Right to Privacy
35. There is nothing unusual in the judicial enumeration of one right on the basis of another under
the Constitution. In the case of Article 21s guarantee of personal liberty, this practice is only natural
if Salmonds formulation of liberty as incipient rights38 is correct. By the process of enumeration,
constitutional courts merely give a name and specify the core of guarantees already present in the
residue of constitutional liberty. Over time, the Supreme Court has been able to imply by its
interpretative process, that several fundamental rights including the right to privacy emerge out of
expressly stated Fundamental Rights. In Unni Krishnan, J.P. v. State of A.P.39, a Constitution
Bench of this Court held that several unenumerated rights fall within Article 21 since personal
liberty is of widest amplitude40 on the way to affirming the existence of a right to education. It went
on to supply the following indicative list of such rights, which included the right to privacy:
30. The following rights are held to be covered under Article 21:
SALMOND, at p. 228 (1993) SCC 1 645 Id. at 29
1. The right to go abroad. Satwant Singh v. D.
Ramarathnam A.P. O., New Delhi (1967) 3 SCR 525.
2. The right to privacy. Gobind v. State of M.P.., (1975)2 SCC 148. In this case reliance was placed on
the American decision in Griswold v. Connecticut, 381 US 479 at 510.
3. The right against solitary confinement. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494 at
545.
4. The right against bar fetters. Charles Sobhraj v. Supdt. (Central Jail0, (1978)4 SCR 104
5. The right to legal aid. MH Hoskot v. State of Maharashtra, (1978) 3 SCC 544.
6. The right to speedy trial. Hussainara Khatoon v. Home Secy, State of Bihar, (1980)1 SCC81
7. The right against hand cuffing. Prem Shankar v. Delhi Administration (1980) 3 SCC 526
8. The right against delayed execution. TV Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC

9. The right against custodial violence. Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96.
10. The Right against public hanging. A.G. of India v. Lachmadevi, (1989) Supp. 1 SCC264
11. Doctors Assistance. Paramananda Katra v.
Union of India, (1989) 4 SCC 286.
12. Shelter. Santistar Builder v. N.KI. Totame, (1990) 1 SCC 520 In the case of privacy, the case for
judicial enumeration is especially strong. It is no doubt a fair implication from Article 21, but also
more. Privacy is be a right or condition, logically presupposed41 by rights expressly recorded in the
constitutional text, if they are to make sense. Laurence H. Tribe And Michael C. Dorf, Levels Of
Generality In The Definition Of Rights, 57 U. CHI. L. REV. 1057 (1990) at p. 1068 As a result,
privacy is more than merely a derivative constitutional right. It is the necessary and unavoidable
logical entailment of rights guaranteed in the text of the constitution.
36. Not recognizing character of privacy as a fundamental right is likely to erode the very
sub-stratum of the personal liberty guaranteed by the constitution. The decided cases clearly
demonstrate that particular fundamental rights could not have been exercised without the
recognition of the right of privacy as a fundamental right. Any derecognition or diminution in the
importance of the right of privacy will weaken the fundamental rights which have been expressly
conferred.
37. Before proceeding to the question of how constitutional courts are to review whether a violation
of privacy is unconstitutional, three arguments from the Union and the states deserve to be dealt
with expressly.
38. The Learned Attorney General relied on cases holding that there is no fundamental right to trade
in liquor to submit by analogy that there can be no absolute right to privacy. Apprehensions that the
recognition of privacy would create complications for the state in its exercise of powers is not
well-founded. The declaration of a right cannot be avoided where there is good constitutional
ground for doing so. It is only after acknowledging that the right of privacy is a fundamental right,
that we can consider how it affects the plenary powers of the state. In any event, the state can always
legislate a reasonable restriction to protect and effectuate a compelling state interest, like it may
while restricting any other fundamental right. There is no warrant for the assumption or for the
conclusion that the fundamental right to privacy is an absolute right which cannot be reasonably
restricted given a sufficiently compelling state interest.
39. Learned Additional Solicitor General, Shri Tushar Mehta listed innumerable statutes which
protect the right of privacy wherever necessary and urged that it is neither necessary nor
appropriate to recognize privacy as a fundamental right. This argument cannot be accepted any
more in the context of a fundamental right to privacy than in the context of any other fundamental
right. Several legislations protect and advance fundamental rights, but their existence does not make
the existence of a corresponding fundamental right redundant. This is obviously so because

legislations are alterable and even repealable unlike fundamental rights, which, by design, endure.
40. Shri Rakesh Dwivedi, appearing for the State of Gujarat, while referring to several judgments of
the Supreme Court of the United States, submitted that only those privacy claims which involve a
reasonable expectation of privacy be recognized as protected by the fundamental right. It is not
necessary for the purpose of this case to deal with the particular instances of privacy claims which
are to be recognized as implicating a fundamental right. Indeed, it would be premature to do. The
scope and ambit of a constitutional protection of privacy can only be revealed to us on a
case-by-case basis. The Test for Privacy
41. One way of determining what a core constitutional idea is, could be by considering its opposite,
which shows what it is not. Accordingly, we understand justice as the absence of injustice, and
freedom as the absence of restraint. So too privacy may be understood as the antonym of publicity.
In law, the distinction between what is considered a private trust as opposed to a public trust
illuminates what I take to be core and irreducible attributes of privacy. In Deoki Nandan v.
Murlidhar42, four judges of this Court articulated the distinction in the following terms:
The distinction between a private trust and a public trust is that whereas in the
former the beneficiaries are specific individuals, in the latter they are the general
public or a class thereof. While in the former the beneficiaries are persons who are
ascertained or capable of being ascertained, in the latter they constitute a body which
is incapable of ascertainment. This same feature, namely the right of a member of
public as such to enter upon or use such property, distinguishes private property
from public property and private ways from public roads.
42. Privacy is always connected, whether directly or through its effect on the actions which are
sought to be secured from interference, to the act of associating with others. In this sense, privacy is
usually best understood as a relational right, even as its content frequently concerns the exclusion of
others from ones society.
43. The trusts illustration also offers us a workable test for determining when a constitutionally
cognizable privacy claim has been made, and the basis for acknowledging that the existence of such
a claim (1956) SCR 756 is context-dependent. To exercise ones right to privacy is to choose and
specify on two levels. It is to choose which of the various activities that are taken in by the general
residue of liberty available to her she would like to perform, and to specify whom to include in ones
circle when performing them. It is also autonomy in the negative, and takes in the choice and
specification of which activities not to perform and which persons to exclude from ones circle.
Exercising privacy is the signaling of ones intent to these specified others whether they are ones co-
participants or simply ones audience as well as to society at large, to claim and exercise the right. To
check for the existence of an actionable claim to privacy, all that needs to be considered is if such an
intent to choose and specify exists, whether directly in its manifestation in the rights bearers actions,
or otherwise.

44. Such a formulation would exclude three recurring red herrings in the Respondents arguments
before us. Firstly, it would not admit of arguments that privacy is limited to property or places. So,
for example, taking one or more persons aside to converse at a whisper even in a public place would
clearly signal a claim to privacy, just as broadcasting ones words by a loudspeaker would signal the
opposite intent. Secondly, this formulation would not reduce privacy to solitude. Reserving the
rights to admission at a large gathering place, such as a cinema hall or club, would signal a claim to
privacy. Finally, neither would such a formulation require us to hold that private information must
be information that is inaccessible to all others. Standards of Review of Privacy Violations
45. There is no doubt that privacy is integral to the several fundamental rights recognized by Part III
of the Constitution and must be regarded as a fundamental right itself. The relationship between the
right of privacy and the particular fundamental right (or rights) involved would depend on the
action interdicted by a particular law. At a minimum, since privacy is always integrated with
personal liberty, the constitutionality of the law which is alleged to have invaded into a rights
bearers privacy must be tested by the same standards by which a law which invades personal liberty
under Article 21 is liable to be tested. Under Article 21, the standard test at present is the rationality
review expressed in Maneka Gandhis case. This requires that any procedure by which the state
interferes with an Article 21 right to be fair, just and reasonable, not fanciful, oppressive or
arbitrary43.
46. Once it is established that privacy imbues every constitutional freedom with its efficacy and that
it can be located in each of them, it must follow that interference with it by the state must be tested
against whichever one or more Part III guarantees whose enjoyment is curtailed. As a result, privacy
violations will usually have to answer to tests in addition to the one applicable to Article 21. Such a
view would be wholly consistent with R.C. Cooper v. Union of India.
Conclusion
47. In view of the foregoing, I answer the reference before us in the following terms:
a. The ineluctable conclusion must be that an inalienable constitutional right to

privacy inheres in Part III of the Constitution. M.P. Sharma and the majority opinion
in Kharak Singh must stand overruled to the extent that they indicate to the contrary.
Maneka Gandhi v. Union of India (1978) 1 SCC 248 at para 48 b. The right to privacy is inextricably
bound up with all exercises of human liberty both as it is specifically enumerated across Part III, and
as it is guaranteed in the residue under Article 21. It is distributed across the various articles in Part
III and, mutatis mutandis, takes the form of whichever of their enjoyment its violation curtails.
c. Any interference with privacy by an entity covered by Article 12s description of the state must
satisfy the tests applicable to whichever one or more of the Part III freedoms the interference affects.
................................. J.

[S. A. BOBDE] New Delhi;
August 24, 2017 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL

ORIGINAL/APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION WRIT
PETITION (CIVIL) NO.494 OF 2012 JUSTICE K.S. PUTTASWAMY (RETD.) AND ANR.
PETITIONERS VERSUS UNION OF INDIA AND ORS. RESPONDENTS WITH TRANSFERRED
CASE (CIVIL) NO.151 OF 2013 TRANSFERRED CASE (CIVIL) NO.152 OF 2013 WRIT PETITION
(CIVIL) NO.833 OF 2013 WRIT PETITION (CIVIL) NO.829 OF 2013 WRIT PETITION (CIVIL)
NO.932 OF 2013 CONTEMPT PETITION (CIVIL) NO.144 OF 2014 IN WRIT PETITION (CIVIL)
NO.494 OF 2012 TRANSFER PETITION (CIVIL) NO. 313 OF 2014 TRANSFER PETITION (CIVIL)
NO. 312 OF 2014 SPECIAL LEAVE PETITION (CRIMINAL) NO.2524 OF 2014 WRIT PETITION
(CIVIL) NO.37 OF 2015 WRIT PETITION (CIVIL) NO.220 OF 2015 CONTEMPT PETITION
(CIVIL) NO.674 OF 2015 IN WRIT PETITION (CIVIL) NO.829 OF 2013 TRANSFER PETITION
(CIVIL) NO. 921 OF 2015 CONTEMPT PETITION (CIVIL) NO.470 OF 2015 IN WRIT PETITION
(CIVIL) NO.494 OF 2012 CONTEMPT PETITION (CIVIL) NO.444 OF 2016 IN WRIT PETITION
(CIVIL) NO.494 OF 2012 CONTEMPT PETITION (CIVIL) NO.608 OF 2016 IN WRIT PETITION
(CIVIL) NO.494 OF 2012 WRIT PETITION (CIVIL) NO.797 OF 2016 CONTEMPT PETITION
(CIVIL) NO.844 OF 2017 IN WRIT PETITION (CIVIL) NO.494 OF 2012 WRIT PETITION (CIVIL)
NO.342 OF 2017 WRIT PETITION (CIVIL) NO.372 OF 2017 JUDGMENT R.F. Nariman, J.
Prologue
1. The importance of the present matter is such that whichever way it is decided, it will have huge
repercussions for the democratic republic that we call Bharat i.e. India. A Bench of 9-Judges has
been constituted to look into questions relating to basic human rights. A 3-Judge Bench of this
Court was dealing with a scheme propounded by the Government of India popularly known as the
Aadhar card scheme. Under the said scheme, the Government of India collects and compiles both
demographic and biometric data of the residents of this country to be used for various purposes.
One of the grounds of attack on the said scheme is that the very collection of such data is violative of
the Right to Privacy. After hearing the learned Attorney General, Shri Gopal Subramanium and Shri
Shyam Divan, a 3-Judge Bench opined as follows:
12. We are of the opinion that the cases on hand raise far reaching questions of
importance involving interpretation of the Constitution. What is at stake is the
amplitude of the fundamental rights including that precious and inalienable right
under Article 21.
If the observations made in M.P. Sharma (supra) and Kharak Singh (supra) are to be
read literally and accepted as the law of this country, the fundamental rights
guaranteed under the Constitution of India and more particularly right to liberty
under Article 21 would be denuded of vigour and vitality. At the same time, we are
also of the opinion that the institutional integrity and judicial discipline require that
pronouncement made by larger Benches of this Court cannot be ignored by the
smaller Benches without appropriately explaining the reasons for not following the

pronouncements made by such larger Benches.
With due respect to all the learned Judges who rendered the subsequent
judgmentswhere right to privacy is asserted or referred to their Lordships concern for
the liberty of human beings, we are of the humble opinion that there appears to be
certain amount of apparent unresolved contradiction in the law declared by this
Court.
13. Therefore, in our opinion to give a quietus to the kind of controversy raised in this
batch of cases once for all, it is better that the ratio decidendi of M.P. Sharma (supra)
and Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the
subsequent decisions of this Court where the right to privacy is either asserted or
referred be examined and authoritatively decided by a Bench of appropriate strength.
2. The matter was heard by a Bench of 5 learned Judges on July 18, 2017, and was thereafter
referred to 9 learned Judges in view of the fact that the judgment in M.P. Sharma and others v.
Satish Chandra, District Magistrate, Delhi, and others, 1954 SCR 1077, was by a Bench of 8 learned
Judges of this Court.
3. Learned senior counsel for the petitioners, Shri Gopal Subramanium, Shri Shyam Divan, Shri
Arvind Datar, Shri Sajan Poovayya, Shri Anand Grover and Miss Meenakshi Arora, have argued that
the judgments contained in M.P. Sharma (supra) and Kharak Singh v. State of U.P., (1964) 1 SCR
332, which was by a Bench of 6 learned Judges, should be overruled as they do not reflect the
correct position in law. In any case, both judgments have been overtaken by R.C. Cooper v. Union of
India, (1970) 1 SCC 248, and Maneka Gandhi v. Union of India, (1978) 1 SCC 248, and therefore
require a revisit at our end. According to them, the right to privacy is very much a fundamental right
which is co-terminus with the liberty and dignity of the individual. According to them, this right is
found in Articles 14, 19, 20, 21 and 25 when read with the Preamble of the Constitution. Further, it
was also argued that several international covenants have stated that the right to privacy is
fundamental to the development of the human personality and that these international covenants
need to be read into the fundamental rights chapter of the Constitution. Also, according to them, the
right to privacy should be evolved on a case to case basis, and being a fundamental human right
should only yield to State action if such State action is compelling, necessary and in public interest.
A large number of judgments were cited by all of them. They also invited this Court to pronounce
upon the fact that the right to privacy is an inalienable natural right which is not conferred by the
Constitution but only recognized as such.
4. Shri Kapil Sibal, learned senior counsel on behalf of the States of Karnataka, West Bengal, Punjab
and Puducherry broadly supported the petitioners. According to him, the 8- Judge Bench and the
6-Judge Bench decisions have ceased to be relevant in the context of the vastly changed
circumstances of today. Further, according to him, State action that violates the fundamental right
to privacy must contain at least four elements, namely:
The action must be sanctioned by law;

The proposed action must be necessary in a

democratic society for a legitimate aim;
The extent of such interference must be

proportionate to the need for such
interference;
There must be procedural guarantees against

abuse of such interference.
5. Shri P.V. Surendra Nath, appearing on behalf of the State of Kerala, also supported the petitioners
and stated that the constitutional right to privacy very much exists in Part III of the Constitution.
6. Appearing on behalf of the Union of India, Shri K.K. Venugopal, learned Attorney General for
India, has argued that the conclusions arrived at in the 8-Judge Bench and the 6- Judge Bench
decisions should not be disturbed as they are supported by the fact that the founding fathers
expressly rejected the right to privacy being made part of the fundamental rights chapter of the
Constitution. He referred in copious detail to the Constituent Assembly debates for this purpose.
Further, according to him, privacy is a common law right and all aspects of privacy do not elevate
themselves into being a fundamental right. If at all, the right to privacy can only be one amongst
several varied rights falling under the umbrella of the right to personal liberty. According to him, the
right to life stands above the right to personal liberty, and any claim to privacy which would destroy
or erode this basic foundational right can never be elevated to the status of a fundamental right. He
also argued that the right to privacy cannot be claimed when most of the aspects which are sought to
be protected by such right are already in the public domain and the information in question has
already been parted with by citizens.
7. Shri Tushar Mehta, learned Additional Solicitor General of India, appearing for UIDAI and the
State of Madhya Pradesh, generally supported and adopted the arguments of the learned Attorney
General. According to him, privacy is an inherently vague and subjective concept and cannot,
therefore, be accorded the status of a fundamental right. Further, codified statutory law in India
already confers protection to the individuals right to privacy. According to him, no further
expansion of the rights contained in Part III of our Constitution is at all warranted. Also, the
position under English Law is that there is no common law right to privacy. He cited before us
examples of other countries in the world where privacy is protected by legislation and not by or
under the Constitution.
8. Shri Aryama Sundaram, appearing for the State of Maharashtra, also supported the arguments
made by the learned Attorney General. According to him, there is no separate privacy right and
violation of a fundamental right should directly be traceable to rights expressly protected by Part III
of the Constitution. Further, privacy is a vague and inchoate expression. He also referred to the
Constituent Assembly debates to buttress the same proposition that the right to privacy was
expressly discountenanced by the framers of the Constitution. He went on to state that personal

liberty in Article 21 is liberty which is circumscribed i.e. it relates only to the person of the individual
and is smaller conceptually than civil liberty. According to him, the ratio of Kharak Singh (supra) is
that there is no fundamental right to privacy, but any fundamental right that is basic to ordered
liberty would certainly be included as a fundamental right. According to him, Gobind v. State of
Madhya Pradesh, (1975) 2 SCC 148, did not state that there was any fundamental right to privacy
and the later judgments which referred only to Gobind (supra) as laying down such a right are
incorrect for this reason.
9. Shri Rakesh Dwivedi, learned senior counsel appearing for the State of Gujarat, has argued that
both the petitioners as well as the learned Attorney General have taken extreme positions.
According to him, the petitioners state that in the case of every invasion of a privacy right,
howsoever trivial, the fundamental right to privacy gets attracted, whereas according to the learned
Attorney General, there is no fundamental right to privacy at all. He asked us to adopt an
intermediate position namely, that it is only if the U.S. Supreme Courts standard that a petitioner
before a Court satisfies the test of reasonable expectation of privacy that such infraction of privacy
can be elevated to the level of a fundamental right. According to Shri Dwivedi, individual personal
choices made by an individual are already protected under Article 21 under the rubric personal
liberty. It is only when individuals disclose certain personal information in order to avail a benefit
that it could be said that they have no reasonable expectation of privacy as they have voluntarily and
freely parted with such information. Also, according to him, it is only specialized data, if parted with,
which would require protection. As an example, he stated that a persons name and mobile number,
already being in the public domain, would not be reasonably expected by that person to be
something private. On the other hand, what is contained in that persons bank account could
perhaps be stated to be information over which he expects a reasonable expectation of privacy and
would, if divulged by the bank to others, constitute an infraction of his fundamental right to privacy.
According to him:
when a claim of privacy seeks inclusion in Article 21 of the Constitution of India, the
Court needs to apply the reasonable expectation of privacy test. It should see:
(i) What is the context in which a privacy law is set up.
(ii) Does the claim relate to private or family life, or a confidential relationship.
(iii) Is the claim serious one or is it trivial.
(iv) Is the disclosure likely to result in any serious or significant injury and the nature
and the extent of disclosure.
(v) Is disclosure for identification purpose or relates to personal and sensitive

information of an identified person.
(vi) Does disclosure relate to information already disclosed publicly to third parties or several
parties willingly and unconditionally. Is the disclosure in the course of e commerce or social media?

Assuming, that in a case that it is found that a claim for privacy is protected by Article 21 of the
Constitution, the test should be following:-
(i) the infringement should be by legislation.
(ii) the legislation should be in public interest.
(iii) the legislation should be reasonable and have nexus with the public interest.
(iv) the State would be entitled to adopt that measure which would most efficiently achieve the
objective without being excessive.
(v) if apart from Article 21, the legislation infringes any other specified Fundamental Right then it
must stand the test in relation to that specified Fundamental Right.
(vi) Presumption of validity would attach to the legislations.
10. Shri A. Sengupta, appearing on behalf of the State of Haryana, has supported the arguments of
the learned Attorney General and has gone on to state that even the U.S. Supreme Court no longer
uses the right to privacy to test laws that were earlier tested on this ground. Any right to privacy is
conceptually unsound, and only comprehensive data protection legislation can effectively address
concerns of data protection and privacy. The Government of India is indeed alive to the need for
such a law. He further argued that privacy as a concept is always marshaled to protect liberty and,
therefore, argued that the formulation that should be made by this Court is whether a liberty
interest is at all affected; is such liberty personal liberty or other liberty that deserves constitutional
protection and is there a countervailing legitimate State interest.
11. Shri Jugal Kishore, appearing on behalf of the State of Chhattisgarh, has also broadly supported
the stand of the learned Attorney General.
12. Shri Gopal Sankaranarayanan, appearing on behalf of the Centre for Civil Society, argued that
M.P. Sharma (supra) and Kharak Singh (supra) are correctly decided and must be followed as there
has been no change in the constitutional context of privacy from Gopalan (supra) through R.C.
Cooper (supra) and Maneka Gandhi (supra). He further argued that being incapable of precise
definition, privacy ought not to be elevated in all its aspects to the level of a fundamental right.
According to him, the words life and personal liberty in Article 21 have already been widely
interpreted to include many facets of what the petitioners refer to as privacy. Those facets which
have statutory protection are not protected by Article 21. He also argued that we must never forget
that when recognizing aspects of the right to privacy as a fundamental right, such aspects cannot be
waived and this being the case, a privacy interest ought not to be raised to the level of a fundamental
right. He also cautioned us against importing approaches from overseas out of context.
Early Views on Privacy

13. Any discussion with regard to a right of privacy of the individual must necessarily begin with
Semaynes case, 77 ER
194. This case was decided in the year 1603, when there was a change of guard in England. The
Tudor dynasty ended with the death of Elizabeth I, and the Stuart dynasty, a dynasty which hailed
from Scotland took over under James VI of Scotland, who became James I of England.1 James I was
an absolute monarch who ruled believing that he did so by Divine Right. Semaynes case (supra) was
decided in this historical setting.
14. The importance of Semaynes case (supra) is that it decided that every mans home is his castle
and fortress for his defence against injury and violence, as well as for his repose. William Pitt, the
Elder, put it thus: The poorest man may in his cottage bid defiance to all the force of the Crown. It
may be frail its roof may shake the wind may blow through it the storm may enter, the rain may
enter but the King of England cannot enter all his force dare not cross the threshold of the ruined
tenement. A century and a half later, pretty much the same thing was said in Huckle v. Money, 95
ER 768 (1763), in which it was held that Magistrates cannot exercise arbitrary powers which violated
the Magna Carta (signed by King John, conceding certain rights to his barons in 1215), and if they
did, exemplary damages must be given for the same. It was stated It is interesting to note that from
1066 onwards, England has never been ruled by a native Anglo-Saxon. The Norman French dynasty
which gave way to the Plantagenet dynasty ruled from 1066-1485; the Welsh Tudor dynasty then
ruled from 1485-1603 AD; the Stuart dynasty, a Scottish dynasty, then ruled from 1603; and barring
a minor hiccup in the form of Oliver Cromwell, ruled up to 1714. From 1714 onwards, members of a
German dynasty from Hanover have been monarchs of England and continue to be monarchs in
England. that, To enter a mans house by virtue of a nameless warrant, in order to procure evidence
is worse than the Spanish Inquisition, a law under which no Englishman would wish to live an hour.
15. This statement of the law was echoed in Entick v. Carrington, 95 ER 807 (1765), in which Lord
Camden held that an illegal search warrant was subversive of all the comforts of society and the
issuance of such a warrant for the seizure of all of a mans papers, and not only those alleged to be
criminal in nature, was contrary to the genius of the law of England. A few years later, in Da Costa v.
Jones, 98 ER 1331 (1778), Lord Mansfield upheld the privacy of a third person when such privacy
was the subject matter of a wager, which was injurious to the reputation of such third person. The
wager in that case was as to whether a certain Chevalier Deon was a cheat and imposter in that he
was actually a woman. Such wager which violated the privacy of a third person was held to be
injurious to the reputation of the third person for which damages were awarded to the third person.
These early judgments did much to uphold the inviolability of the person of a citizen.
16. When we cross the Atlantic Ocean and go to the United States, we find a very interesting article
printed in the Harvard Law Review in 1890 by Samuel D. Warren and Louis D. Brandeis [(4 Harv. L.
Rev. 193)]. The opening paragraph of the said article is worth quoting:
THAT the individual shall have full protection in person and in property is a principle
as old as the common law; but it has been found necessary from time to time to
define anew the exact nature and extent of such protection. Political, social, and

economic changes entail the recognition of new rights, and the common law, in its
eternal youth, grows to meet the demands of society. Thus, in very early times, the
law gave a remedy only for physical interference with life and property, for trespasses
vi et armis. Then the right to life served only to protect the subject from battery in its
various forms; liberty meant freedom from actual restraint; and the right to property
secured to the individual his lands and his cattle. Later, there came a recognition of
mans spiritual nature, of his feelings and his intellect. Gradually the scope of these
legal rights broadened; and now the right to life has come to mean the right to enjoy
life, the right to be let alone; the right to liberty secures the exercise of extensive civil
privileges; and the term property has grown to comprise every form of possession
intangible, as well as tangible.
17. This article is of great importance for the reason that it spoke of the right of the individual to be
let alone. It stated in unmistakable terms that this right is not grounded as a property right, but is
grounded in having the right of an inviolate personality. Limitations on this right were also
discussed in some detail, and remedies for the invasion of this right of privacy were suggested, being
an action of tort for damages in all cases and perhaps an injunction in some. The right of privacy as
expounded in this article did not explore the ramifications of the said right as against State action,
but only explored invasions of this right by private persons. Three Great Dissents
18. When the Constitution of India was framed, the fundamental rights chapter consisted of rights
essentially of citizens and persons against the State. Article 21, with which we are directly
concerned, was couched in negative form in order to interdict State action that fell afoul of its
contours. This Article, which houses two great human rights, the right to life and the right to
personal liberty, was construed rather narrowly by the early Supreme Court of India. But then, there
were Judges who had vision and dissented from their colleagues. This judgment will refer to three
great dissents by Justices Fazl Ali, Subba Rao and Khanna.
19. Charles Evans Hughes, before he became the Chief Justice of the United States and while he was
still a member of the New York Court of Appeals, delivered a set of six lectures at Columbia
University.2 The famous passage oft quoted in many judgments comes from his second lecture. In
words that resonate even today, he stated:
A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the
intelligence of a future day, when a later decision may possibly correct the error into
which the dissenting judge believes the court to have been betrayed..
20. Brandeis, J. had a somewhat different view. He cautioned that in most matters it is more
important that the applicable rule of law be settled than that it be settled right. [See Burnet v.
Coronado Oil & Gas Co., 285 U.S. 393 at 406 (1932)]. John P. Frank wrote, in 1958, of the Brandeis
view as follows:
Brandeis was a great institutional man. He realized that . random dissents . weaken
the institutional impact of the Court and handicap it in the doing of its fundamental

job. Dissents . need to be saved for major matters if the Court is not to appear
indecisive and quarrelsome.. To have discarded some of his separate opinions is a
supreme example of Brandeiss sacrifice to the strength and consistency of the Court.
And he had his reward:
See, E. Gaffney Jr., The Importance of Dissent and the Imperative of Judicial Civility (1994) 28 Val.
U.L. Rev 583. his shots were all the harder because he chose his ground.3
21. Whichever way one looks at it, the foresight of Fazl Ali, J. in A.K. Gopalan v. State of Madras,
1950 SCR 88, simply takes our breath away. The subject matter of challenge in the said case was the
validity of certain provisions of the Preventive Detention Act of 1950. In a judgment which
anticipated the changes made in our constitutional law twenty years later, this great Judge said:
To my mind, the scheme of the Chapter dealing with the fundamental rights does not
contemplate what is attributed to it, namely, that each article is a code by itself and is
independent of the others. In my opinion, it cannot be said that articles 19, 20, 21 and
22 do not to some extent overlap each other.
The case of a person who is convicted of an offence will come under articles 20 and 21 and also
under article 22 so far as his arrest and detention in custody before trial are concerned. Preventive
detention, which is dealt with in article 22, also amounts to deprivation of personal liberty which is
referred to in article 21, and is a violation of the right of freedom of movement dealt with in article
19(1)(d). That there are other instances of overlapping of articles in the Constitution may be
illustrated by reference to article 19(1)(f) and article 31 both of which deal with the right to property
and to some extent overlap each other. (at page 148) John P. Frank, Book Review, 10 J. Legal
Education 401, 404 (1958). He went on thereafter to hold that the fact that due process was not
actually used in Article 21 would be of no moment. He said:
It will not be out of place to state here in a few words how the Japanese Constitution
came into existence. It appears that on the 11th October, 1945, General McArthur
directed the Japanese Cabinet to initiate measures for the preparation of the
Japanese Constitution, but, as no progress was made, it was decided in February,
1946, that the problem of constitutional reform should be taken over by the
Government Section of the Supreme Commanders Headquarters. Subsequently the
Chief of this Section and the staff drafted the Constitution with the help of American
constitutional lawyers who were called to assist the Government Section in the task.
This Constitution, as a learned writer has remarked, bore on almost every page
evidences of its essentially Western origin, and this characteristic was especially
evident in the preamble particularly reminiscent of the American Declaration of
Independence, a preamble which, it has been observed, no Japanese could possibly
have conceived or written and which few could even understand [See Ogg and Zinks
Modern Foreign Governments]. One of the characteristics of the Constitution which
undoubtedly bespeaks of direct American influence is to be found in a lengthy
chapter, consisting of 31 articles, entitled Rights and Duties of the People, which

provided for the first time an effective Bill of Rights for the Japanese people. The
usual safeguards have been provided there against apprehension without a warrant
and against arrest or detention without being informed of the charges or without
adequate cause (articles 33 and 34).
Now there are two matters which deserve to be noticed:- (1) that the Japanese Constitution was
framed wholly under American influence; and (2) that at the time it was framed the trend of judicial
opinion in America was in favour of confining the meaning of the expression due process of law to
what is expressed by certain American writers by the somewhat quaint but useful expression
procedural due process. That there was such a trend would be clear from the following passage
which I quote from Carl Brent Swishers The Growth of Constitutional Power in the United States
(page 107):-
The American history of its interpretation falls into three periods.
During the first period, covering roughly the first century of government under the Constitution, due
process was interpreted principally as a restriction upon procedureand largely the judicial
procedureby which the government exercised its powers. During the second period, which, again
roughly speaking, extended through 1936, due process was expanded to serve as a restriction not
merely upon procedure but upon the substance of the activities in which the government might
engage. During the third period, extending from 1936 to date, the use of due process as a substantive
restriction has been largely suspended or abandoned, leaving it principally in its original status as a
restriction upon procedure. In the circumstances mentioned, it seems permissible to surmise that
the expression procedure established by law as used in the Japanese Constitution represented the
current trend of American judicial opinion with regard to due process of law, and, if that is so, the
expression as used in our Constitution means all that the American writers have read into the words
procedural due process. But I do not wish to base any conclusions upon mere surmise and will try to
examine the whole question on its merits.
The word law may be used in an abstract or concrete sense. Sometimes it is preceded by an article
such as a or the or by such words as any, all, etc., and sometimes it is used without any such prefix.
But, generally, the word law has a wider meaning when used in the abstract sense without being
preceded by an article. The question to be decided is whether the word law means nothing more
than statute law.
Now whatever may be the meaning of the expression due process of law, the word law is common to
that expression as well as procedure established by law and though we are not bound to adopt the
construction put on law or due process of law in America, yet since a number of eminent American
Judges have devoted much thought to the subject, I am not prepared to hold that we can derive no
help from their opinions and we should completely ignore them. (at pages 159-161) He also went on
to state that law in Article 21 means valid law.
On all counts, his words were a cry in the wilderness. Insofar as his vision that fundamental rights
are not in distinct watertight compartments but do overlap, it took twenty years for this Court to

realize how correct he was, and in R.C. Cooper (supra), an 11-Judge Bench of this Court, agreeing
with Fazl Ali, J., finally held:
52. In dealing with the argument that Article 31(2) is a complete code relating to
infringement of the right to property by compulsory acquisition, and the validity of
the law is not liable to be tested in the light of the reasonableness of the restrictions
imposed thereby, it is necessary to bear in mind the enunciation of the guarantee of
fundamental rights which has taken different forms. In some cases it is an express
declaration of a guaranteed right: Articles 29(1), 30(1), 26, 25 & 32; in others to
ensure protection of individual rights they take specific forms of restrictions on State
action legislative or executiveArticles 14, 15, 16, 20, 21, 22(1), 27 and 28; in some
others, it takes the form of a positive declaration and simultaneously enunciates the
restriction thereon: Articles 19(1) and 19(2) to (6); in some cases, it arises as an
implication from the delimitation of the authority of the State, e.g., Articles 31(1) and
31(2); in still others, it takes the form of a general prohibition against the State as
well as others: Articles 17, 23 and 24. The enunciation of rights either express or by
implication does not follow a uniform pattern. But one thread runs through them:
they seek to protect the rights of the individual or groups of individuals against
infringement of those rights within specific limits. Part III of the Constitution weaves
a pattern of guarantees on the texture of basic human rights. The guarantees delimit
the protection of those rights in their allotted fields: they do not attempt to enunciate
distinct rights.
53. We are therefore unable to hold that the challenge to the validity of the provision for acquisition
is liable to be tested only on the ground of non-compliance with Article 31(2). Article 31(2) requires
that property must be acquired for a public purpose and that it must be acquired under a law with
characteristics set out in that Article. Formal compliance with the conditions under Article 31(2) is
not sufficient to negative the protection of the guarantee of the right to property. Acquisition must
be under the authority of a law and the expression law means a law which is within the competence
of the Legislature, and does not impair the guarantee of the rights in Part III. We are unable,
therefore, to agree that Articles 19(1)(f) and 31(2) are mutually exclusive.4 (at page 289)
22. Insofar as the other part of Fazl Ali, J.s judgment is concerned, that due process was an elastic
enough expression to comprehend substantive due process, a recent judgment in Mohd. Arif v.
Registrar, Supreme Court of India & Ors., (2014) 9 SCC 737, by a Constitution Bench of this Court,
has held:-
27. The stage was now set for the judgment in Maneka Gandhi (1978) 1 SCC 248.
Several judgments were delivered, and the upshot of all of Shri Gopal
Sankaranarayanan has argued that the statement contained in R.C. Cooper (supra)
that 5 out of 6 learned Judges had held in Gopalan (supra) that Article 22 was a
complete code and was to be read as such, is incorrect. He referred to various extracts
from the judgments in Gopalan (supra) to demonstrate that this was, in fact,
incorrect as Article 21 was read together with Article 22. While Shri Gopal

Sankaranarayanan may be correct, it is important to note that at least insofar as

Article 19 was concerned, none of the judgments except that of Fazl Ali, J. were
prepared to read Articles 19 and 21 together. Therefore, on balance, it is important to
note that R.C.
Cooper (supra) cleared the air to state that none of the fundamental rights can be construed as being
mutually exclusive.
them was that Article 21 was to be read along with other fundamental rights, and so read not only
has the procedure established by law to be just, fair and reasonable, but also the law itself has to be
reasonable as Articles 14 and 19 have now to be read into Article 21. [See: at SCR pp. 646-648 per
Beg, CJ., at SCR pp. 669, 671-674 and 687 per Bhagwati, J. and at SCR pp. 720-723 per Krishna
Iyer, J.]. Krishna Iyer, J. set out the new doctrine with remarkable clarity thus (SCR p.723, para 85):
85. To sum up, procedure in Article 21 means fair, not formal procedure. Law is
reasonable law, not any enacted piece. As Article 22 specifically spells out the
procedural safeguards for preventive and punitive detention, a law providing for such
detentions should conform to Article 22. It has been rightly pointed out that for other
rights forming part of personal liberty, the procedural safeguards enshrined in Article
21 are available. Otherwise, as the procedural safeguards contained in Article 22 will
be available only in cases of preventive and punitive detention, the right to life, more
fundamental than any other forming part of personal liberty and paramount to the
happiness, dignity and worth of the individual, will not be entitled to any procedural
safeguard save such as a legislatures mood chooses.
28. Close on the heels of Maneka Gandhi case came Mithu vs. State of Punjab, (1983) 2 SCC 277, in
which case the Court noted as follows: (SCC pp.
283-84, para 6) 6In Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, while dealing with the
question as to whether a person awaiting death sentence can be kept in solitary confinement,
Krishna Iyer J. said that though our Constitution did not have a due process clause as in the
American Constitution; the same consequence ensued after the decisions in the Bank
Nationalisation case (1970) 1 SCC 248, and Maneka Gandhi case (1978) 1 SCC 248. In Bachan Singh
(Bachan Singh v. State of Punjab, (1980) 2 SCC 684) which upheld the constitutional validity of the
death penalty, Sarkaria J., speaking for the majority, said that if Article 21 is understood in
accordance with the interpretation put upon it in Maneka Gandhi, it will read to say that: (SCC
p.730, para 136) 136. No person shall be deprived of his life or personal liberty except according to
fair, just and reasonable procedure established by valid law. The wheel has turned full circle.
Substantive due process is now to be applied to the fundamental right to life and liberty.5 Shri
Rakesh Dwivedi has argued before us that in Maneka Gandhi (supra), Chandrachud, J. had, in
paragraph 55 of the judgment, clearly stated that substantive due process is no part of the
Constitution of India. He further argued that Krishna Iyer, J.s statement in Sunil Batra (supra) that
a due process clause as contained in the U.S. Constitution is now to be read into Article 21, is a
standalone statement of the law and that substantive due process is an expression which brings in

its wake concepts which do not fit into the Constitution of India. It is not possible to accept this
contention for the reason that in the Constitution Bench decision in Mithu (supra), Chandrachud,
C.J., did not refer to his concurring judgment in Maneka Gandhi (supra), but instead referred, with
approval, to Krishna Iyer, J.s statement of the law in paragraph 6. It is this statement that is
reproduced in paragraph 28 of Mohd. Arif (supra). Also, substantive due process in our context only
means that a law can be (at pages 755-756)
23. The second great dissent, which is of Subba Rao, J., in Kharak Singh (supra), has a direct
bearing on the question to be decided by us.6 In this judgment, Regulation 237 of the U.P. Police
Regulations was challenged as violating fundamental struck down under Article 21 if it is not fair,
just or reasonable on substantive and not merely procedural grounds. In any event, it is
Chandrachud,C.Js earlier view that is a standalone view. In Collector of Customs, Madras v.
Nathella Sampathu Chetty, (1962) 3 SCR 786 at 816, a Constitution Bench of this Court, when asked
to apply certain American decisions, stated the following:
It would be seen that the decisions proceed on the application of the due process
clause of the American Constitution. Though the tests of reasonableness laid down by
clauses (2) to (6) of Article 19 might in great part coincide with that for judging of due
process, it must not be assumed that these are identical, for it has to be borne in mind
that the Constitution framers deliberately avoided in this context the use of the
expression due process with its comprehensiveness, flexibility and attendant
vagueness, in favour of a somewhat more definite word reasonable, and caution has,
therefore, to be exercised before the literal application of American decisions.
Mathew, J. in Kesavananda Bharati v. State of Kerala, (1973) Supp. SCR 1 at 824, 825
and 826 commented on this particular passage thus:
When a court adjudges that a legislation is bad on the ground that it is an

unreasonable restriction, it is drawing the elusive ingredients for its conclusion from
several sources. In fact, you measure the reasonableness of a restriction imposed by
law by indulging in an authentic bit of special legislation [See Learned Hand, Bill of
Rights, p. 26]. The words reason and reasonable denote for the common law lawyer
ideas which the Civilians and the Canonists put under the head of the law of nature
The limitations in Article 19 of the Constitution open the doors to judicial review of
legislation in India in much the same manner as the doctrine of police power and its
companion, the due process clause, have done in the United States. The restrictions
that might be imposed by the Legislature to ensure the public interest must be
reasonable and, therefore, the Court will have to apply the yardstick of reason in
adjudging the reasonableness. If you examine the cases relating to the imposition of
reasonable restrictions by a law, it will be found that all of them adopt a standard
which the American Supreme Court has adopted in adjudging reasonableness of a
legislation under the due process clause.. In the light of what I have said, I am unable
to understand how the word reasonable is more definite than the words due process"

Chief Justice S.R. Das in his farewell speech had this to say about Subba Rao, J.,
Then we have brother Subba Rao, who is extremely unhappy because all our
fundamental rights are going to the dogs on account of some ill-
conceived judgments of his colleagues which require reconsideration. rights under Article 19(1)(d)
and Article 21. The Regulation reads as follows:-
Without prejudice to the right of Superintendents of Police to put into practice any
legal measures, such as shadowing in cities, by which they find they can keep in touch
with suspects in particular localities or special circumstances, surveillance may for
most practical purposes be defined as consisting of one or more of the following
measures:-
(a) Secret picketing of the house or approaches to the house of suspects;
(b) domiciliary visits at night;
(c) through periodical inquiries by officers not below the rank of Sub-Inspector into
repute, habits, associations, income, expenses and occupation;
(d) the reporting by constables and chaukidars of movements and absences from
home;
(e) the verification of movements and absences by means of inquiry slips;
(f) the collection and record on a history-sheet of all information bearing on conduct.
24. All 6 Judges struck down sub-para (b), but Subba Rao, J. joined by Shah, J., struck down the
entire Regulation as violating the individuals right to privacy in the following words:
Further, the right to personal liberty takes in not only a right to be free from
restrictions placed on his movements, but also free from encroachments on his
private life. It is true our Constitution does not expressly declare a right to privacy as
a fundamental right, but the said right is an essential ingredient of personal liberty.
Every democratic country sanctifies domestic life; it is expected to give him rest,
physical happiness, peace of mind and security. In the last resort, a persons house,
where he lives with his family, is his castle: it is his rampart against encroachment on
his personal liberty. The pregnant words of that famous Judge, Frankfurter J., in
Wolf v. Colorado (1949) 338 U.S. 25, pointing out the importance of the security of
ones privacy against arbitrary intrusion by the police, could have no less application
to an Indian home as to an American one. If physical restraints on a persons
movements affect his personal liberty, physical encroachments on his private life
would affect it in a larger degree. Indeed, nothing is more deleterious to a mans
physical happiness and health than a calculated interference with his privacy. We

would, therefore, define the right of personal liberty in Article 21 as a right of an

individual to be free from restrictions or encroachments on his person, whether those
restrictions or encroachments are directly imposed or indirectly brought about by
calculated measures.
If so understood, all the acts of surveillance under Regulation 236 infringe the fundamental right of
the petitioner under Article 21 of the Constitution. (at page 359) The 8 Judge Bench Decision in
M.P. Sharma and the 6 Judge Bench Decision in Kharak Singh
25. This takes us to the correctness of the aforesaid view, firstly in light of the decision of the
8-Judge Bench in M.P. Sharma (supra). The facts of that case disclose that certain searches were
made as a result of which a voluminous mass of records was seized from various places. The
petitioners prayed that the search warrants which allowed such searches and seizures to take place
be quashed, based on an argument founded on Article 20(3) of the Constitution which says that no
person accused of any offence shall be compelled to be a witness against himself. The argument
which was turned down by the Court was that since this kind of search would lead to the discovery of
several incriminating documents, a person accused of an offence would be compelled to be a witness
against himself as such documents would incriminate him. This argument was turned down with
reference to the law of testimonial compulsion in the U.S., the U.K. and in this country. While
dealing with the argument, this Court noticed that there is nothing in our Constitution
corresponding to the Fourth Amendment of the U.S. Constitution, which interdicts unreasonable
searches and seizures. In so holding, this Court then observed:
It is, therefore, clear that there is no basis in the Indian law for the assumption that a
search or seizure of a thing or document is in itself to be treated as compelled
production of the same.
Indeed a little consideration will show that the two are essentially different matters for the purpose
relevant to the present discussion. A notice to produce is addressed to the party concerned and his
production in compliance therewith constitutes a testimonial act by him within the meaning of
article 20(3) as above explained. But search warrant is addressed to an officer of the Government,
generally a police officer. Neither the search nor the seizure are acts of the occupier of the searched
premises. They are acts of another to which he is obliged to submit and are, therefore, not his
testimonial acts in any sense. A power of search and seizure is in any system of jurisprudence an
overriding power of the State for the protection of social security and that power is necessarily
regulated by law. When the Constitution makers have thought fit not to subject such regulation to
constitutional limitations by recognition of a fundamental right to privacy, analogous to the
American Fourth Amendment, we have no justification to import it, into a totally different
fundamental right, by some process of strained construction. (at pages 1096-1097)
26. The first thing that strikes one on reading the aforesaid passage is that the Court resisted the
invitation to read the U.S. Fourth Amendment into the U.S. Fifth Amendment; in short it refused to
read or import the Fourth Amendment into the Indian equivalent of that part of the Fifth
Amendment which is the same as Article 20(3) of the Constitution of India. Also, the fundamental

right to privacy, stated to be analogous to the Fourth Amendment, was held to be something which
could not be read into Article 20(3).
27. The second interesting thing to be noted about these observations is that there is no broad ratio
in the said judgment that a fundamental right to privacy is not available in Part III of the
Constitution. The observation is confined to Article 20(3). Further, it is clear that the actual finding
in the aforesaid case had to do with the law which had developed in this Court as well as the U.S.
and the U.K. on Article 20(3) which, on the facts of the case, was held not to be violated. Also we
must not forget that this was an early judgment of the Court, delivered in the Gopalan (supra) era,
which did not have the benefit of R.C. Cooper (supra) or Maneka Gandhi (supra). Quite apart from
this, it is clear that by the time this judgment was delivered, India was already a signatory to the
Universal Declaration of Human Rights, Article 12 of which states:
No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the
right to the protection of the law against such interference or attacks.
28. It has always been the law of this Court that international treaties must be respected. Our
Constitution contains Directive Principle 51(c), which reads as under:
51. The State shall endeavour to
(a) & (b) xxx xxx xxx
(c) foster respect for international law and treaty obligations in the dealings of
organized peoples with one another; In order that legislation be effected to
implement an international treaty, Article 253 removes legislative competence from
all the States and entrusts only the Parliament with such legislation. Article 253 reads
as follows:
253. Legislation for giving effect to international agreements. - Notwithstanding

anything in the foregoing provisions of this Chapter, Parliament has power to make
any law for the whole or any part of the territory of India for implementing any
treaty, agreement or convention with any other country or countries or any decision
made at any international conference, association or other body. We were shown
judgments of the highest Courts in the U.K. and the U.S in this behalf. At one extreme
stands the United Kingdom, which states that international treaties are not a part of
the laws administered in England. At the other end of the spectrum, Article VI of the
U.S. Constitution declares:
xxx xxx xxx This Constitution, and the laws of the United States which shall be made
in pursuance thereof; and 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 notwithstanding.
xxx xxx xxx It is thus clear that no succor can be drawn from the experience of either
the U.K. or the U.S. We must proceed in accordance with the law laid down in the
judgments of the Supreme Court of India.
29. Observations of several judgments make it clear that in the absence of any specific prohibition in
municipal law, international law forms part of Indian law and consequently must be read into or as
part of our fundamental rights. (For this proposition, see: Bachan Singh v. State of Punjab, (1980) 2
SCC 684 at paragraph 139, Francis Coralie Mullin v. Administrator, Union Territory of Delhi & Ors.,
(1981) 1 SCC 608 at paragraph 8, Vishaka & Ors. v. State of Rajasthan & Ors., (1997) 6 SCC 241 at
paragraph 7 and National Legal Services Authority v. Union of India, (2014) 5 SCC 438 at
paragraphs 51-60). This last judgment is instructive in that it refers to international treaties and
covenants, the Constitution, and various earlier judgments. The conclusion in paragraph 60 is as
follows:
The 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. (at page 487)
30. In fact, the Protection of Human Rights Act, 1993, makes interesting reading in this context.
Section 2(1)(d) and (f) are important, and read as follows:
2. Definitions. (1) In this Act, unless the context otherwise requires, -
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) human rights means the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution or embodied in the International
Covenants and enforceable by courts in India;
(e) xxx xxx xxx

(f) International Covenants means the
International Covenant on Civil and Political Rights and the International Covenant
on Economic, Social and Cultural Rights adopted by the General Assembly of the
United Nations on the 16th December, 1966 and such other Covenant or Convention
adopted by the General Assembly of the United Nations as the Central Government
may, by notification, specify;
31. In terms of Section 12(f), one important function of the National Human Rights Commission is
to study treaties and other international instruments on human rights and make recommendations
for their effective implementation. In a recent judgment delivered by Lokur, J. in Extra Judl. Exec.
Victim Families Association & Anr. v. Union of India & Ors. in W.P.(Crl.) No.129 of 2012 decided on
July 14, 2017, this Court highlighted the Protection of Human Rights Act, 1993 as follows:-
29. Keeping this in mind, as well as the Universal Declaration of Human Rights,
Parliament enacted the Protection of Human Rights Act, 1993. The Statement of
Objects and Reasons for the Protection of Human Rights Act, 1993 is of considerable
significance and accepts the importance of issues relating to human rights with a
view, inter alia, to bring accountability and transparency in human rights
jurisprudence. The Statement of Objects and Reasons reads as under:-
1. India is a party to the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural rights, adopted by the
General Assembly of the United Nations on the 16th December, 1966. The human
rights embodied in the aforesaid covenants stand substantially protected by the
Constitution.
2. However, there has been growing concern in the country and abroad about issues
relating to human rights. Having regard to this, changing social realities and the
emerging trends in the nature of crime and violence, Government has been reviewing
the existing laws, procedures and systems of administration of justice; with a view to
bringing about greater accountability and transparency in them, and devising
efficient and effective methods of dealing with the situation.
3. Wide ranging discussions were held at various fora such as the Chief Ministers
Conference on Human Rights, seminars organized in various parts of the country and
meetings with leaders of various political parties. Taking into account the views
expressed in these discussions, the present Bill is brought before Parliament.
30. Under the provisions of the Protection of Human Rights Act, 1993 the NHRC has been
constituted as a high-powered statutory body whose Chairperson is and always has been a retired
Chief Justice of India. Amongst others, a retired judge of the Supreme Court and a retired Chief
Justice of a High Court is and has always been a member of the NHRC.
31. In Ram Deo Chauhan v. Bani Kanta Das ((2010) 14 SCC 209), this Court recognized that the
words human rights though not defined in the Universal Declaration of Human Rights have been
defined in the Protection of Human Rights Act, 1993 in very broad terms and that these human
rights are enforceable by courts in India. This is what this Court had to say in this regard in
paragraphs 47-49 of the Report:

Human rights are the basic, inherent, immutable and inalienable rights to which a
person is entitled simply by virtue of his being born a human. They are such rights
which are to be made available as a matter of right. The Constitution and legislations
of a civilised country recognise them since they are so quintessentially part of every
human being. That is why every democratic country committed to the rule of law put
into force mechanisms for their enforcement and protection.
Human rights are universal in nature.
The Universal Declaration of Human Rights (hereinafter referred to as UDHR)

adopted by the General Assembly of the United Nations on 10-12-1948 recognises
and requires the observance of certain universal rights, articulated therein, to be
human rights, and these are acknowledged and accepted as equal and inalienable and
necessary for the inherent dignity and development of an individual. Consequently,
though the term human rights itself has not been defined in UDHR, the nature and
content of human rights can be understood from the rights enunciated therein.
Possibly considering the wide sweep of such basic rights, the definition of human rights in the 1993
Act has been designedly kept very broad to encompass within it all the rights relating to life, liberty,
equality and dignity of the individual guaranteed by the Constitution or embodied in the
International Covenants and enforceable by courts in India. Thus, if a person has been guaranteed
certain rights either under the Constitution or under an International Covenant or under a law, and
he is denied access to such a right, then it amounts to a clear violation of his human rights and
NHRC has the jurisdiction to intervene for protecting it.
32. It may also be noted that the International Principles on the Application of Human Rights to
Communication Surveillance (hereinafter referred to as the Necessary and Proportionate
Principles), which were launched at the U.N. Human Rights Council in Geneva in September 2013,
were the product of a year-long consultation process among civil society, privacy and technology
experts. The Preamble to the Necessary and Proportionate Principles states as follows:
Privacy is a fundamental human right, and is central to the maintenance of

democratic societies. It is essential to human dignity and it reinforces other rights,
such as freedom of expression and information, and freedom of association, and is
recognized under international human rights law..
33. Ignoring Article 12 of the 1948 Declaration would by itself sound the death knell to the
observations on the fundamental right of privacy contained in M.P. Sharma (supra).
34. It is interesting to note that, in at least three later judgments, this judgment was referred to only
in passing in: (1) Sharda v. Dharmpal, (2003) 4 SCC 493 at 513-514:
54. The right to privacy has been developed by the Supreme Court over a period of
time. A bench of eight judges in M.P. Sharma v. Satish Chandra (AIR 1954 SC 300),

AIR at pp. 306-07, para 18, in the context of search and seizure observed that:
When the Constitution-makers have thought fit not to subject such regulation to
constitutional limitations by recognition of a fundamental right to privacy, analogous
to the American Fourth Amendment, we have no justification to import it, into a
totally different fundamental right, by some process of strained construction.
55. Similarly in Kharak Singh v. State of U.P. (AIR 1963 SC 1295), the majority
judgment observed thus: (AIR p. 1303, para 20) The right of privacy is not a
guaranteed right under our Constitution and therefore the attempt to ascertain the
movements of an individual which is merely a manner in which privacy is invaded is
not an infringement of a fundamental right guaranteed by Part III.
56. With the expansive interpretation of the phrase personal liberty, this right has
been read into Article 21 of the Indian Constitution. (See R.
Rajagopal v. State of T.N., (1994) 6 SCC 632 and Peoples Union for Civil Liberties v. Union of India,
(1997) 1 SCC 301). In some cases the right has been held to amalgam of various rights. (2) District
Registrar and Collector, Hyderabad & Anr. v. Canara Bank etc., (2005) 1 SCC 496 at 516, where this
Court held:
35. The earliest case in India to deal with privacy and search and seizure was M.P.
Sharma v.
Satish Chandra (1954 SCR 1077) in the context of Article 19(1)(f) and Article 20(3) of the
Constitution of India. The contention that search and seizure violated Article 19(1)(f) was rejected,
the Court holding that a mere search by itself did not affect any right to property, and though seizure
affected it, such effect was only temporary and was a reasonable restriction on the right. The
question whether search warrants for the seizure of documents from the accused were
unconstitutional was not gone into. The Court, after referring to the American authorities, observed
that in the US, because of the language in the Fourth Amendment, there was a distinction between
legal and illegal searches and seizures and that such a distinction need not be imported into our
Constitution. The Court opined that a search warrant was addressed to an officer and not to the
accused and did not violate Article 20(3). In the present discussion the case is of limited help. In
fact, the law as to privacy was developed in later cases by spelling it out from the right to freedom of
speech and expression in Article 19(1)(a) and the right to life in Article 21. And (3) Selvi v. State of
Karnataka, (2010) 7 SCC 263 at 363, this Court held as follows:-
205. In M.P. Sharma (M.P. Sharma v. Satish Chandra, AIR 1954 SC 300: 1954 SCC
1077), it had been noted that the Indian Constitution did not explicitly include a right
to privacy in a manner akin to the Fourth Amendment of the US Constitution. In that
case, this distinction was one of the reasons for upholding the validity of search
warrants issued for documents required to investigate charges of misappropriation
and embezzlement.

35. It will be seen that different smaller Benches of this court were not unduly perturbed by the
observations contained in M.P. Sharma (supra) as it was an early judgment of this Court delivered in
the Gopalan (supra) era which had been eroded by later judgments dealing with the inter-relation
between fundamental rights and the development of the fundamental right of privacy as being part
of the liberty and dignity of the individual.
36. Therefore, given the fact that this judgment dealt only with Article 20(3) and not with other
fundamental rights; given the fact that the 1948 Universal Declaration of Human Rights containing
the right to privacy was not pointed out to the Court; given the fact that it was delivered in an era
when fundamental rights had to be read disjunctively in watertight compartments; and given the
fact that Article 21 as we know it today only sprung into life in the post Maneka Gandhi (supra) era,
we are of the view that this judgment is completely out of harms way insofar as the grounding of the
right to privacy in the fundamental rights chapter is concerned.
37. We now come to the majority judgment of 4 learned Judges in Kharak Singh (supra). When
examining sub-clause
(b) of Regulation 236, which endorsed domiciliary visits at night, even the majority had no
hesitation in striking down the aforesaid provision. This Court said that life used in Article 21 must
mean something more than mere animal existence and liberty something more than mere freedom
from physical restraint. This was after quoting the judgment of Field, J. in Munn v. Illinois, 94 U.S.
113 (1876). The majority judgment, after quoting from Gopalan (supra), then went on to hold that
Article 19(1) and Article 21 are to be read separately, and so read held that Article 19(1) deals with
particular species or attributes of personal liberty, whereas Article 21 takes in and comprises the
residue.7
38. This part of the judgment has been expressly overruled by R.C. Cooper (supra) as recognized by
Bhagwati, J. in Maneka Gandhi (supra):
5. It is obvious that Article 21, though couched in negative language, confers the
fundamental right to life and personal liberty. So far as the right to personal liberty is
concerned, it is ensured by providing that no one shall be deprived of personal liberty
except according to procedure prescribed by law. The first question that arises for
consideration on the language of Article 21 is: what is the meaning and content of the
words personal liberty as used in this article? This question incidentally came up for
discussion in some of the judgments in A.K. Gopalan v. State of Madras (AIR 1950 SC
27: 1950 SCR 88: 51 Cri LJ 1383) and the observations made by Patanjali Sastri, J.,
Mukherjea, J., and S.R. Das, J., seemed to place a narrow interpretation on the words
personal liberty so as to confine the protection of Article 21 to freedom of the person
against unlawful detention.
But there was no definite pronouncement made on this point since the question before the Court
was not so much the interpretation of the words personal liberty as the inter-relation between This
view of the law is obviously incorrect. If the Preamble to the Constitution of India is to be a guide as

to the meaning of the expression liberty in Article 21, liberty of thought and expression would fall in
Article 19(1)(a) and Article 21 and belief, faith and worship in Article 25 and Article 21. Obviously,
liberty in Article 21 is not confined to these expressions, but certainly subsumes them. It is thus
clear that when Article 21 speaks of liberty, it is, atleast, to be read together with Articles 19(1)(a)
and 25. Articles 19 and 21. It was in Kharak Singh v. State of U.P. (AIR 1963 SC 1295: (1964) 1 SCR
332:
(1963) 2 Cri LJ 329) that the question as to the proper scope and meaning of the expression
personal liberty came up pointedly for consideration for the first time before this Court. The
majority of the Judges took the view that personal liberty is used in the article as a compendious
term to include within itself all the varieties of rights which go to make up the personal liberties of
man other than those dealt with in the several clauses of Article 19(1). In other words, while Article
19(1) deals with particular species or attributes of that freedom, personal liberty in Article 21 takes
in and comprises the residue. The minority Judges, however, disagreed with this view taken by the
majority and explained their position in the following words: No doubt the expression personal
liberty is a comprehensive one and the right to move freely is an attribute of personal liberty. It is
said that the freedom to move freely is carved out of personal liberty and, therefore, the expression
personal liberty in Article 21 excludes that attribute. In our view, this is not a correct approach. Both
are independent fundamental rights, though there is overlapping. There is no question of one being
carved out of another. The fundamental right of life and personal liberty has many attributes and
some of them are found in Article 19. If a person's fundamental right under Article 21 is infringed,
the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the
said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1)
are concerned. There can be no doubt that in view of the decision of this Court in R.C. Cooper v.
Union of India [(1970) 2 SCC 298: (1971) 1 SCR 512] the minority view must be regarded as correct
and the majority view must be held to have been overruled. (at pages 278-279)
39. The majority judgment in Kharak Singh (supra) then went on to refer to the Preamble to the
Constitution, and stated that Article 21 contained the cherished human value of dignity of the
individual as the means of ensuring his full development and evolution. A passage was then quoted
from Wolf v. Colorado, 338 U.S. 25 (1949) to the effect that the security of ones privacy against
arbitrary intrusion by the police is basic to a free society. The Court then went on to quote the U.S.
Fourth Amendment which guarantees the rights of the people to be secured in their persons, houses,
papers and effects against unreasonable searches and seizures. Though the Indian Constitution did
not expressly confer a like guarantee, the majority held that nonetheless an unauthorized intrusion
into a persons home would violate the English Common Law maxim which asserts that every mans
house is his castle. In this view of Article 21, Regulation 236(b) was struck down.
40. However, while upholding sub-clauses (c), (d) and (e) of Regulation 236, the Court stated (at
page 351):
As already pointed out, the right of privacy is not a guaranteed right under our Constitution and
therefore the attempt to ascertain the movements of an individual which is merely a manner in
which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III. This

passage is a little curious in that clause (b) relating to domiciliary visits was struck down only on the
basis of the fundamental right to privacy understood in the sense of a restraint against the person of
a citizen. It seems that the earlier passage in the judgment which stated that despite the fact that the
U.S. Fourth Amendment was not reflected in the Indian Constitution, yet any unauthorized
intrusion into a persons home, which is nothing but a facet of the right to privacy, was given a go by.
41. Peculiarly enough, without referring to the extracted passage in which the majority held that the
right to privacy is not a guaranteed right under our Constitution, the majority judgment has been
held as recognizing a fundamental right to privacy in Article 21. (See: PUCL v. Union of India, (1997)
1 SCC 301 at paragraph 14; Mr. X v. Hospital Z, (1998) 8 SCC 296 at paragraphs 21 and 22; District
Registrar and Collector, Hyderabad & Anr. v. Canara Bank, etc., (2005) 1 SCC 496 at paragraph 36;
and Thalappalam Service Co- operative Bank Limited & Ors. v. State of Kerala & Ors., (2013) 16 SCC
82 at paragraph 57).
42. If the passage in the judgment dealing with domiciliary visits at night and striking it down is
contrasted with the later passage upholding the other clauses of Regulation 236 extracted above, it
becomes clear that it cannot be said with any degree of clarity that the majority judgment upholds
the right to privacy as being contained in the fundamental rights chapter or otherwise. As the
majority judgment contradicts itself on this vital aspect, it would be correct to say that it cannot be
given much value as a binding precedent. In any case, we are of the view that the majority judgment
is good law when it speaks of Article 21 being designed to assure the dignity of the individual as a
most cherished human value which ensures the means of full development and evolution of a
human being. The majority judgment is also correct in pointing out that Article 21 interdicts
unauthorized intrusion into a persons home. Where the majority judgment goes wrong is in holding
that fundamental rights are in watertight compartments and in holding that the right of privacy is
not a guaranteed right under our Constitution. It can be seen, therefore, that the majority judgment
is like the proverbial curates egg good only in parts. Strangely enough when the good parts alone are
seen, there is no real difference between Subba Rao, J.s approach in the dissenting judgment and
the majority judgment. This then answers the major part of the reference to this 9-Judge Bench in
that we hereby declare that neither the 8-Judge nor the 6- Judge Bench can be read to come in the
way of reading the fundamental right to privacy into Part III of the Constitution.
43. However, the learned Attorney General has argued in support of the 8-Judge Bench and the
6-Judge Bench, stating that the framers of the Constitution expressly rejected the right to privacy
being made part of the fundament rights chapter of the Constitution. While he may be right,
Constituent Assembly debates make interesting reading only to show us what exactly the framers
had in mind when they framed the Constitution of India. As will be pointed out later in this
judgment, our judgments expressly recognize that the Constitution governs the lives of 125 crore
citizens of this country and must be interpreted to respond to the changing needs of society at
different points in time.
44. The phrase due process was distinctly avoided by the framers of the Constitution and replaced
by the colourless expression procedure established by law. Despite this, owing to changed
circumstances, Maneka Gandhi (supra) in 1978, followed by a number of judgments, have read what

was expressly rejected by the framers into Article 21, so that by the time of Mohd. Arif (supra), this
Court, at paragraph 28, was able to say that the wheel has turned full circle and substantive due
process is now part and parcel of Article 21. Given the technological revolution of the later part of
the 20th century and the completely altered lives that almost every citizen of this country leads,
thanks to this revolution, the right to privacy has to be judged in todays context and not yesterdays.
This argument, therefore, need not detain us.
45. The learned Attorney General then argued that between the right to life and the right to personal
liberty, the former has primacy and any claim to privacy which would destroy or erode this basic
foundational right can never be elevated to the status of a fundamental right. Elaborating further, he
stated that in a developing country where millions of people are denied the basic necessities of life
and do not even have shelter, food, clothing or jobs, no claim to a right to privacy as a fundamental
right would lie. First and foremost, we do not find any conflict between the right to life and the right
to personal liberty. Both rights are natural and inalienable rights of every human being and are
required in order to develop his/her personality to the fullest. Indeed, the right to life and the right
to personal liberty go hand-in-hand, with the right to personal liberty being an extension of the right
to life. A large number of poor people that Shri Venugopal talks about are persons who in todays
completely different and changed world have cell phones, and would come forward to press the
fundamental right of privacy, both against the Government and against other private individuals.
We see no antipathy whatsoever between the rich and the poor in this context. It seems to us that
this argument is made through the prism of the Aadhar (Targeted Delivery of Financial and other
Subsidies, Benefits and Services) Act, 2016, by which the Aadhar card is the means to see that
various beneficial schemes of the Government filter down to persons for whom such schemes are
intended. This 9-Judge Bench has not been constituted to look into the constitutional validity of the
Aadhar Act, but it has been constituted to consider a much larger question, namely, that the right of
privacy would be found, inter alia, in Article 21 in both life and personal liberty by rich and poor
alike primarily against State action. This argument again does not impress us and is rejected.
46. Both the learned Attorney General and Shri Sundaram next argued that the right to privacy is so
vague and amorphous a concept that it cannot be held to be a fundamental right. This again need
not detain us. Mere absence of a definition which would encompass the many contours of the right
to privacy need not deter us from recognizing privacy interests when we see them. As this judgment
will presently show, these interests are broadly classified into interests pertaining to the physical
realm and interests pertaining to the mind. As case law, both in the U.S. and India show, this
concept has travelled far from the mere right to be let alone to recognition of a large number of
privacy interests, which apart from privacy of ones home and protection from unreasonable
searches and seizures have been extended to protecting an individuals interests in making vital
personal choices such as the right to abort a fetus; rights of same sex couples- including the right to
marry; rights as to procreation, contraception, general family relationships, child rearing, education,
data protection, etc. This argument again need not detain us any further and is rejected.
47. As to the argument that if information is already in the public domain and has been parted with,
there is no privacy right, we may only indicate that the question as to voluntary parting with
information has been dealt with, in the judgment in Miller v. United States, 425 US 435 (1976). This

Court in Canara Bank (supra) referred to the criticism of this judgment as follows:
(A) Criticism of Miller
(i) The majority in Miller, 425 US 435 (1976), laid down that a customer who has
conveyed his affairs to another had thereby lost his privacy rights. Prof. Tribe states
in his treatise (see p. 1391) that this theory reveals alarming tendencies because the
Court has gone back to the old theory that privacy is in relation to property while it
has laid down that the right is one attached to the person rather than to property. If
the right is to be held to be not attached to the person, then we would not shield our
account balances, income figures and personal telephone and address books from the
public eye, but might instead go about with the information written on our foreheads
or our bumper stickers. He observes that the majority in Miller, 425 US 435 (1976),
confused privacy with secrecy and that even their notion of secrecy is a strange one,
for a secret remains a secret even when shared with those whom one selects for one's
confidence. Our cheques are not merely negotiable instruments but yet the world can
learn a vast amount about us by knowing how and with whom we have spent our
money. Same is the position when we use the telephone or post a letter. To say that
one assumes great risks by opening a bank account appeared to be a wrong
conclusion. Prof. Tribe asks a very pertinent question (p. 1392):
Yet one can hardly be said to have assumed a risk of surveillance in a context where,
as a practical matter, one had no choice. Only the most committed and perhaps civilly
committable hermit can live without a telephone, without a bank account, without
mail. To say that one must take a bitter pill with the sweet when one licks a stamp is
to exact a high constitutional price indeed for living in contemporary society. He
concludes (p. 1400):
In our information-dense technological era, when living inevitably entails leaving not
just informational footprints but parts of one's self in myriad directories, files,
records and computers, to hold that the Fourteenth Amendment did not reserve to
individuals some power to say when and how and by whom that information and
those confidences were to be used, would be to denigrate the central role that
informational autonomy must play in any developed concept of the self.
(ii) Prof. Yale Kamisar (again quoted by Prof. Tribe) (p. 1392) says:
It is beginning to look as if the only way someone living in our society can avoid
assuming the risk that various intermediate institutions will reveal information to the
police is by engaging in drastic discipline, the kind of discipline of life under
totalitarian regimes. (at pages 520-521) It may also be noticed that Miller (supra) was
done away with by a Congressional Act of 1978. This Court then went on to state:

(B) Response to Miller by Congress We shall next refer to the response by Congress to
Miller, 425 US 435 (1976). (As stated earlier, we should not be understood as
necessarily recommending this law as a model for India.) Soon after Miller, 425 US
435 (1976), Congress enacted the Right to Financial Privacy Act, 1978 (Public Law
No. 95-630) 12 USC with Sections 3401 to 3422). The statute accords customers of
banks or similar financial institutions, certain rights to be notified of and a right to
challenge the actions of Government in court at an anterior stage before disclosure is
made. Section 3401 of the Act contains definitions. Section 3402 is important, and it
says that except as provided by Section 3403(c) or (d), 3413 or 3414, no government
authority may have access to or obtain copies of, or the information contained in the
financial records of any customer from a financial institution unless the financial
records are reasonably described and that (1) such customer has authorised such
disclosure in accordance with Section 3404; (2) such records are disclosed in
response to (a) administrative subpoenas or summons to meet requirement of
Section 3405; (b) the requirements of a search warrant which meets the
requirements of Section 3406; (c) requirements of a judicial subpoena which meets
the requirement of Section 3407; or (d) the requirements of a formal written
requirement under Section 3408. If the customer decides to challenge the
Governments access to the records, he may file a motion in the appropriate US
District Court, to prevent such access. The Act also provides for certain specific
exceptions. (at page 522)
48. Shri Sundaram has argued that rights have to be traced directly to those expressly stated in the
fundamental rights chapter of the Constitution for such rights to receive protection, and privacy is
not one of them. It will be noticed that the dignity of the individual is a cardinal value, which is
expressed in the Preamble to the Constitution. Such dignity is not expressly stated as a right in the
fundamental rights chapter, but has been read into the right to life and personal liberty. The right to
live with dignity is expressly read into Article 21 by the judgment in Jolly George Varghese v. Bank
of Cochin, (1980) 2 SCC 360 at paragraph 10. Similarly, the right against bar fetters and handcuffing
being integral to an individuals dignity was read into Article 21 by the judgment in Charles Sobraj v.
Delhi Administration, (1978) 4 SCC 494 at paragraphs 192, 197-B, 234 and 241 and Prem Shankar
Shukla v. Delhi Administration, (1980) 3 SCC 526 at paragraphs 21 and 22. It is too late in the day to
canvas that a fundamental right must be traceable to express language in Part III of the
Constitution. As will be pointed out later in this judgment, a Constitution has to be read in such a
way that words deliver up principles that are to be followed and if this is kept in mind, it is clear that
the concept of privacy is contained not merely in personal liberty, but also in the dignity of the
individual.
49. The judgment in Stanley v. Georgia, 22 L.Ed. 2d 542 at 549, 550 and 551 (1969) will serve to
illustrate how privacy is conceptually different from an expressly enumerated fundamental right. In
this case, the appellant before the Court was tried and convicted under a Georgia statute for
knowingly having possession of obscene material in his home. The U.S. Supreme Court referred to
judgments which had held that obscenity is not within the area of constitutionally protected speech
under the First Amendment to the U.S. Constitution. Yet, the Court held:

It is now well established that the Constitution protects the right to receive
information and ideas. This freedom [of speech and press] necessarily protects the
right to receive Martin v. City of Struthers, 319 US 141, 143, 87 L Ed 1313, 1316, 63 S
Ct 862 (1943); see Griswold v. Connecticut, 381 US 479, 482, 14 L Ed 2d 510, 513, 85
S Ct 1678 (1965); Lamont v. Postmaster General, 381 U.S. 301, 307-308, 14 L Ed 2d
398, 402, 403, 85 S Ct 1493 (1965) (Brennan, J., concurring); cf. Pierce v.
Society of the Sisters, 268 U.S. 510, 69 L Ed 1070, 45 S Ct 571, 39 ALR 468 (1925). This right to
receive information and ideas, regardless of their social worth, see Winters v. New York, 333 US
507, 510, 92 L Ed 840, 847, 68 S Ct 665 (1948), is fundamental to our free society. Moreover, in the
context of this casea prosecution for mere possession of printed or filmed matter in the privacy of a
person's own homethat right takes on an added dimension. For also fundamental is the right to be
free, except in very limited circumstances, from unwanted governmental intrusions into one's
privacy These are the rights that appellant is asserting in the case before us. He is asserting the right
to read or observe what he pleasesthe right to satisfy his intellectual and emotional needs in the
privacy of his own home. He is asserting the right to be free from state inquiry into the contents of
his library. Georgia contends that appellant does not have these rights, that there are certain types of
materials that the individual may not read or even possess. Georgia justifies this assertion by
arguing that the films in the present case are obscene. But we think that mere categorization of these
films as obscene is insufficient justification for such a drastic invasion of personal liberties
guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other
statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the
First Amendment means anything, it means that a State has no business telling a man, sitting alone
in his own house, what books he may read or what films he may watch. Our whole constitutional
heritage rebels at the thought of giving government the power to control men's minds. (Emphasis
Supplied) The Court concluded by stating:
We hold that the First and Fourteenth Amendments prohibit making mere private possession of
obscene material a crime. Roth and the cases following that decision are not impaired by today's
holding. As we have said, the States retain broad power to regulate obscenity; that power simply
does not extend to mere possession by the individual in the privacy of his own home.
50. This case, more than any other, brings out in bold relief, the difference between the right to
privacy and the right to freedom of speech. Obscenity was held to be outside the freedom of speech
amended by the First Amendment, but a privacy interest which related to the right to read obscene
material was protected under the very same Amendment. Obviously, therefore, neither is privacy as
vague and amorphous as has been argued, nor is it correct to state that unless it finds express
mention in a provision in Part III of the Constitution, it should not be regarded as a fundamental
right.
51. Shri Sundarams argument that personal liberty is different from civil liberty need not detain us
at all for the reason that at least qua the fundament right to privacy that right being intimately
connected with the liberty of the person would certainly fall within the expression personal liberty.

52. According to Shri Sundaram, every facet of privacy is not protected. Instances of actions which,
according to him, are not protected are:
Taxation laws requiring the furnishing of
information;
In relation to a census;
Details and documents required to be
furnished for the purpose of obtaining a passport;
Prohibitions pertaining to viewing
pornography.
53. We are afraid that this is really putting the cart before the horse. Taxation laws which require the
furnishing of information certainly impinge upon the privacy of every individual which ought to
receive protection. Indeed, most taxation laws which require the furnishing of such information also
have, as a concomitant provision, provisions which prohibit the dissemination of such information
to others except under specified circumstances which have relation to some legitimate or important
State or societal interest. The same would be the case in relation to a census and details and
documents required to be furnished for obtaining a passport. Prohibitions pertaining to viewing
pornography have been dealt with earlier in this judgment. The U.S. Supreme Courts decision in
Stanley (supra) held that such prohibitions would be invalid if the State were to intrude into the
privacy of ones home.
54. The learned Attorney General drew our attention to a number of judgments which have held that
there is no fundamental right to trade in liquor and cited Khoday Distilleries Ltd. v. State of
Karnataka, (1995) 1 SCC 574. Quite obviously, nobody has the fundamental right to carry on
business in crime. Indeed, in a situation where liquor is expressly permitted to be sold under a
licence, it would be difficult to state that such seller of liquor would not have the fundamental right
to trade under Article 19(1)(g), even though the purport of some of our decisions seems to stating
exactly that See the difference in approach between the earlier Constitution Bench judgment in
Krishna Kumar Narula v. State of Jammu and Kashmir, (1967) 3 SCR 50, and the later Constitution
Bench judgment in Har Shankar v. The Dy. Excise and Taxation Commr., (1975) 1 SCC 737. In any
event, the analogy to be drawn from the cases dealing with liquor does not take us further for the
simple reason that the fundamental right to privacy once recognized, must yield in given
circumstances to legitimate State interests in combating crime. But this arises only after recognition
of the right to privacy as a fundamental right and not before. What must be a reasonable restriction
in the interest of a legitimate State interest or in public interest cannot determine whether the
intrusion into a persons affairs is or is not a fundamental right. Every State intrusion into privacy
interests which deals with the physical body or the dissemination of information personal to an
individual or personal choices relating to the individual would be subjected to the balancing test
prescribed under the fundamental right that it infringes depending upon where the privacy interest
claimed is founded.
55. The learned Attorney General and Shri Tushar Mehta, learned Additional Solicitor General, in
particular, argued that our statutes are replete with a recognition of the right to privacy, and Shri
Tushar Mehta cited provisions of the Right to Information Act, 2005, the Indian Easements Act,
1882, the Indian Penal Code, 1860, the Indian Telegraph Act, 1885, the Bankers Books Evidence
Act, 1891, the Credit Information Companies (Regulation) Act, 2005, the Public Financial
Institutions (Obligation as to Fidelity and Secrecy) Act, 1983, the Payment and Settlement Systems
Act, 2007, the Income Tax Act, 1961, the Aadhaar (Targeted Delivery of Financial and other
Subsidies, Benefits and Services) Act, 2016, the Census Act, 1948, the Collection of Statistics Act,
2008, the Juvenile Justice (Care and Protection of Children) Act, 2015, the Protection of Children
from Sexual Offences Act, 2012 and the Information Technology Act, 2000. According to them,
since these statutes already protect the privacy rights of individuals, it is unnecessary to read a
fundamental right of privacy into Part III of the Constitution.
56. Statutory law can be made and also unmade by a simple Parliamentary majority. In short, the
ruling party can, at will, do away with any or all of the protections contained in the statutes
mentioned hereinabove. Fundamental rights, on the other hand, are contained in the Constitution
so that there would be rights that the citizens of this country may enjoy despite the governments
that they may elect. This is all the more so when a particular fundamental right like privacy of the
individual is an inalienable right which inheres in the individual because he is a human being. The
recognition of such right in the fundamental rights chapter of the Constitution is only a recognition
that such right exists notwithstanding the shifting sands of majority governments. Statutes may
protect fundamental rights; they may also infringe them. In case any existing statute or any statute
to be made in the future is an infringement of the inalienable right to privacy, this Court would then
be required to test such statute against such fundamental right and if it is found that there is an
infringement of such right, without any countervailing societal or public interest, it would be the
duty of this Court to declare such legislation to be void as offending the fundamental right to
privacy. This argument, therefore, also merits rejection.
57. Shri Rakesh Dwivedi referred copiously to the reasonable expectation of privacy test laid down
by decisions of the U.S. Supreme Court. The origin of this test is to be found in the concurring
judgment of Harlan, J. in Katz v. United States, 389 U.S. 347 (1967). Though this test has been
applied by several subsequent decisions, even in the United States, the application of this test has
been criticized.
58. In Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469 at 477 (1998), the concurring judgment of
Scalia, J. criticized the application of the aforesaid test in the following terms:
The dissent believes that [o]ur obligation to produce coherent results requires that
we ignore this clear text and 4-century-old tradition, and apply instead the

notoriously unhelpful test adopted in a benchmar[k] decision that is 31 years old.

Post, at 110, citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576
(1967). In my view, the only thing the past three decades have established about the
Katz test (which has come to mean the test enunciated by Justice Harlans separate
concurrence in Katz, see id., at 360, 88 S.Ct. 507) is that, unsurprisingly, those actual
(subjective) expectation[s] of privacy that society is prepared to recognize as
reasonable, id., at 361, 88 S.Ct.
507, bear an uncanny resemblance to those expectations of privacy that this Court considers
reasonable. When that self-indulgent test is employed (as the dissent would employ it here) to
determine whether a search or seizure within the meaning of the Constitution has occurred (as
opposed to whether that search or seizure is an unreasonable one), it has no plausible foundation in
the text of the Fourth Amendment. That provision did not guarantee some generalized right of
privacy and leave it to this Court to determine which particular manifestations of the value of
privacy society is prepared to recognize as reasonable. Ibid. In Kyllo v. United States, 533 U.S. 27,
121 S. Ct. 2038 at 2043 (2001), the U.S. Supreme Court found that the use of a thermal imaging
device, aimed at a private home from a public street, to detect relative amounts of heat within the
private home would be an invasion of the privacy of the individual. In so holding, the U.S. Supreme
Court stated:
The Katz testwhether the individual has an expectation of privacy that society is
prepared to recognize as reasonablehas often been criticized as circular, and hence
subjective and unpredictable. See 1 W. LaFave, Search and Seizure §2.1(d), pp.
393-394 (3d ed. 1996); Posner, The Uncertain Protection of Privacy by the Supreme
Court, 1979 S. Ct. Rev. 173, 188; Carter, supra, at 97, 119 S.
Ct. 469 (SCALIA, J., concurring). But see Rakas, supra, at 143-144, n. 12, 99 S. Ct.
421. While it may be difficult to refine Katz when the search of areas such as
telephone booths, automobiles, or even the curtilage and uncovered portions of
residences are at issue, in the case of the search of the interior of homesthe
prototypical and hence most commonly litigated area of protected privacythere is a
ready criterion, with roots deep in the common law, of the minimal expectation of
privacy that exists, and that is acknowledged to be reasonable. To withdraw
protection of this minimum expectation would be to permit police technology to
erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by
sense-enhancing technology any information regarding the interior of the home that
could not otherwise have been obtained without physical intrusion into a
constitutionally protected area, Silverman, 365 U.S., at 512, 81 S. Ct. 679 constitutes a
searchat least where (as here) the technology in question is not in general public use.
This assures preservation of that degree of privacy against government that existed when the Fourth
Amendment was adopted.

59. It is clear, therefore, that in the country of its origin, this test though followed in certain
subsequent judgments, has been the subject matter of criticism. There is no doubt that such a test
has no plausible foundation in the text of Articles 14, 19, 20 or 21 of our Constitution. Also, as has
rightly been held, the test is circular in the sense that there is no invasion of privacy unless the
individual whose privacy is invaded had a reasonable expectation of privacy. Whether such
individual will or will not have such an expectation ought to depend on what the position in law is.
Also, this test is intrinsically linked with the test of voluntarily parting with information, inasmuch
as if information is voluntarily parted with, the person concerned can reasonably be said to have no
expectation of any privacy interest. This is nothing other than reading of the reasonable expectation
of privacy with the test in Miller (supra), which is that if information is voluntarily parted with, no
right to privacy exists. As has been held by us, in Canara Bank (supra), this Court referred to Miller
(supra) and the criticism that it has received in the country of its origin, and refused to apply it in
the Indian context. Also, as has been discussed above, soon after Miller (supra), the Congress
enacted the Right to Financial Privacy Act, 1978, doing away with the substratum of this judgment.
Shri Dwivedis argument must, therefore, stand rejected.
60. Shri Gopal Sankaranarayanan, relying upon the statement of law in Behram Khurshid Pesikaka
v. State of Bombay, (1955) 1 SCR 613, Basheshar Nath v. CIT, (1959) Supp. (1) SCR 528 and Olga
Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545, has argued that it is well established that
fundamental rights cannot be waived. Since this is the law in this country, if this Court were to hold
that the right to privacy is a fundamental right, then it would not be possible to waive any part of
such right and consequently would lead to the following complications:
All the statutory provisions that deal with aspects of privacy would be vulnerable.
The State would be barred from contractually obtaining virtually any information about a person,
including identification, fingerprints, residential address, photographs, employment details, etc.,
unless they were all found to be not a part of the right to privacy.
The consequence would be that the judiciary would be testing what aspects of privacy could be
excluded from Article 21 rather than what can be included in Article 21. This argument again need
not detain us. Statutory provisions that deal with aspects of privacy would continue to be tested on
the ground that they would violate the fundamental right to privacy, and would not be struck down,
if it is found on a balancing test that the social or public interest and the reasonableness of the
restrictions would outweigh the particular aspect of privacy claimed. If this is so, then statutes which
would enable the State to contractually obtain information about persons would pass muster in
given circumstances, provided they safeguard the individual right to privacy as well. A simple
example would suffice. If a person was to paste on Facebook vital information about himself/herself,
such information, being in the public domain, could not possibly be claimed as a privacy right after
such disclosure. But, in pursuance of a statutory requirement, if certain details need to be given for
the concerned statutory purpose, then such details would certainly affect the right to privacy, but
would on a balance, pass muster as the State action concerned has sufficient inbuilt safeguards to
protect this right viz. the fact that such information cannot be disseminated to anyone else, save on
compelling grounds of public interest.

The Fundamental Right to Privacy
61. This conclusion brings us to where the right to privacy resides and what its contours are. But
before getting into this knotty question, it is important to restate a few constitutional fundamentals.
62. Never must we forget the great John Marshall, C.J.s admonition that it is a Constitution that we
are expounding. [(see: McCulloch v. Maryland, 17 U.S. 316 at 407 (1819)]. Indeed a Constitution is
meant to govern peoples lives, and as peoples lives keep evolving and changing with the times, so
does the interpretation of the Constitution to keep pace with such changes. This was well expressed
in at least two judgments of this Court. In Ashok Tanwar & Anr. v. State of H.P. & Ors., (2005) 2
SCC 104, a Constitution Bench stated as follows:
This apart, the interpretation of a provision of the Constitution having regard to

various aspects serving the purpose and mandate of the Constitution by this Court
stands on a separate footing. A constitution unlike other statutes is meant to be a
durable instrument to serve through longer number of years, i.e., ages without
frequent revision. It is intended to serve the needs of the day when it was enacted and
also to meet needs of the changing conditions of the future. This Court in R.C.
Poudyal v. Union of India, 1994 Supp (1) SCC 324, in paragraph 124, observed thus:
124. In judicial review of the vires of the exercise of a constitutional power such as the
one under Article 2, the significance and importance of the political components of
the decision deemed fit by Parliament cannot be put out of consideration as long as
the conditions do not violate the constitutional fundamentals. In the interpretation of
a constitutional document, words are but the framework of concepts and concepts
may change more than words themselves. The significance of the change of the
concepts themselves is vital and the constitutional issues are not solved by a mere
appeal to the meaning of the words without an acceptance of the line of their growth.
It is aptly said that the intention of a Constitution is rather to outline principles than
to engrave details. In the First B.N. Rau Memorial Lecture on Judicial Methods M.
Hidayatullah, J. observed:
More freedom exists in the interpretation of the Constitution than in the

interpretation of ordinary laws. This is due to the fact that the ordinary law is more
often before courts, that there are always dicta of judges readily available while in the
domain of constitutional law there is again and again novelty of situation and
approach. Chief Justice Marshall while deciding the celebrated McCulloch v.
Maryland [4 Wheaton (17 US) 316 : 4 L Ed 579 (1819)] (Wheaton at p. 407, L.Ed. at p.
602) made the pregnant remarkwe must never forget that it is the constitution we are
expounding meaning thereby that it is a question of new meaning in new
circumstances. Cardozo in his lectures also said: The great generalities of the
Constitution have a content and a significance that vary from age to age. Chief Justice
Marshall in McCulloch v. Maryland [4 Wheaton (17 US) 316 : 4 L Ed 579 (1819)]

(L.Ed at pp 603-604) declared that the Constitution was intended to endure for ages
to come, and consequently, to be adapted to the various crises of human affairs. In
this regard it is worthwhile to see the observations made in paragraphs 324 to 326 in
Supreme Court Advocates-on-Record Assn, (1993) 4 SCC 441:
(SCC pp. 645-46) 324. The case before us must be considered in the light of our entire experience
and not merely in that of what was said by the framers of the Constitution. While deciding the
questions posed before us we must consider what is the judiciary today and not what it was fifty
years back. The Constitution has not only to be read in the light of contemporary circumstances and
values, it has to be read in such a way that the circumstances and values of the present generation
are given expression in its provisions. An eminent jurist observed that constitutional interpretation
is as much a process of creation as one of discovery.
325. It would be useful to quote hereunder a paragraph from the judgment of Supreme Court of
Canada in Hunter v. Southam Inc. (1984) 2 SCR 145: [SCR at p.156 (Can)] It is clear that the
meaning of unreasonable cannot be determined by recourse to a dictionary, nor for that matter, by
reference to the rules of statutory construction. 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 exercise 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. Professor Paul Freund
expressed this idea aptly when he admonished the American Courts not to read the provisions of the
Constitution like a last will and testament lest it become one.
326. The constitutional provisions cannot be cut down by technical construction rather it has to be
given liberal and meaningful interpretation.
The ordinary rules and presumptions, brought in aid to interpret the statutes, cannot be made
applicable while interpreting the provisions of the Constitution. In Minister of Home Affairs v.
Fisher [(1979) 3 All ER 21 : 1980 AC 319] dealing with Bermudian Constitution, Lord Wilberforce
reiterated that a Constitution is a document sui generis, calling for principles of interpretation of its
own, suitable to its character. This Court in Aruna Roy v. Union of India, (2002) 7 SCC 368, recalled
the famous words of the Chief Justice Holmes that spirit of law is not logic but it has been
experience and observed that these words apply with greater force to constitutional law. In the same
judgment this Court expressed that Constitution is a permanent document framed by the people and
has been accepted by the people to govern them for all times to come and that the words and
expressions used in the Constitution, in that sense, have no fixed meaning and must receive
interpretation based on the experience of the people in the course of working of the Constitution.
The same thing cannot be said in relation to interpreting the words and expressions in a statute. (at
pages 114-116)

63. To similar effect is the judgment of a 9-Judge Bench in I.R. Coelho (dead) by LRs v. State of
Tamil Nadu & Ors., (2007) 2 SCC 1, which states:
42. The Constitution is a living document. The constitutional provisions have to be

construed having regard to the march of time and the development of law. It is,
therefore, necessary that while construing the doctrine of basic structure due regard
be had to various decisions which led to expansion and development of the law. (at
page 79)
64. It is in this background that the fundamental rights chapter has been interpreted. We may also
refer to paragraph 19 in M. Nagaraj & Ors. v. Union of India & Ors., (2006) 8 SCC 212, for the
proposition that any true interpretation of fundamental rights must be expansive, like the universe
in which we live. The content of fundamental rights keeps expanding to keep pace with human
activity.
65. It is as a result of constitutional interpretation that after Maneka Gandhi (supra), Article 21 has
been the repository of a vast multitude of human rights8.
66. In India, therefore, the doctrine of originalism, which was referred to and relied upon by Shri
Sundaram has no place. According to this doctrine, the first inquiry to be made is (1) The right to go
abroad. Maneka Gandhi v. Union of India (1978) 1 SCC 248 at paras 5, 48, 90, 171 and 216; (2) The
right of prisoners against bar fetters. Charles Sobraj v. Delhi Administration (1978) 4 SCC 494 at
paras 192, 197-B, 234 and 241; (3) The right to legal aid. M.H. Hoskot v. State of Maharashtra (1978)
3 SCC 544 at para 12; (4) The right to bail. Babu Singh v. State of Uttar Pradesh (1978) 1 SCC 579 at
para 8; (5) The right to live with dignity. Jolly George Varghese v. Bank of Cochin (1980) 2 SCC 360
at para 10; (6) The right against handcuffing. Prem Shankar Shukla v. Delhi Administration (1980) 3
SCC 526 at paras 21 and 22; (7) The right against custodial violence. Sheela Barse v. State of
Maharashtra (1983) 2 SCC 96 at para 1; (8) The right to compensation for unlawful arrest. Rudul
Sah v. State of Bihar (1983) 4 SCC 141 at para 10; (9) The right to earn a livelihood. Olga Tellis v.
Bombay Municipal Corporation (1985) 3 SCC 545 at para 37; (10) The right to know. Reliance
Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers (1988) 4 SCC 592 at para 34; (11)
The right against public hanging. A.G. of India v. Lachma Devi (1989) Supp (1) SCC 264 at para 1;
(12) The right to doctors assistance at government hospitals. Paramanand Katara v. Union of India
(1989) 4 SCC 286 at para 8; (13) The right to medical care. Paramanand Katara v. Union of India
(1989) 4 SCC 286 at para 8; (14) The right to shelter. Shantistar Builders v. N.K. Totame (1990) 1
SCC 520 at para 9 and 13; (15) The right to pollution free water and air. Subhash Kumar v. State of
Bihar (1991) 1 SCC 598 at para 7; (16) The right to speedy trial. A.R. Antulay v. R.S. Nayak (1992) 1
SCC 225 at para 86; (17) The right against illegal detention. Joginder Kumar v. State of Uttar
Pradesh (1994) 4 SCC 260 at paras 20 and 21; (18) The right to a healthy environment. Virender
Gaur v. State of Haryana (1995) 2 SCC 577 at para 7; (19) The right to health and medical care for
workers. Consumer Education and Research Centre v. Union of India (1995) 3 SCC 42 at paras 24
and 25; (20) The right to a clean environment. Vellore Citizens Welfare Forum v. Union of India
(1996) 5 SCC 647 at paras 13, 16 and 17; (21) The right against sexual harassment. Vishaka and
others v. State of Rajasthan and others (1997) 6 SCC 241 at paras 3 and 7; (22) The right against

noise pollution. In Re, Noise Pollution (2005) 5 SCC 733 at para 117; (23) The right to fair trial.
Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors. (2006) 3 SCC 374 at paras 36 and 38;
(24) The right to sleep. In Re, Ramlila Maidan Incident (2012) 5 SCC 1 at paras 311 and 318; (25)
The right to reputation. Umesh Kumar v. State of Andhra Pradesh (2013) 10 SCC 591 at para 18;
(26) The right against solitary confinement. Shatrugan Chauhan & Anr. v. Union of India (2014) 3
SCC 1 at para 241. whether the founding fathers had accepted or rejected a particular right in the
Constitution. According to the learned Attorney General and Shri Sundaram, the right to privacy has
been considered and expressly rejected by our founding fathers. At the second level, according to
this doctrine, it is not open to the Supreme Court to interpret the Constitution in a manner that will
give effect to a right that has been rejected by the founding fathers. This can only be done by
amending the Constitution. It was, therefore, urged that it was not open for us to interpret the
fundamental rights chapter in such a manner as to introduce a fundamental right to privacy, when
the founding fathers had rejected the same. It is only the Parliament in its constituent capacity that
can introduce such a right. This contention must be rejected having regard to the authorities cited
above. Further, in our Constitution, it is not left to all the three organs of the State to interpret the
Constitution. When a substantial question as to the interpretation of the Constitution arises, it is
this Court and this Court alone under Article 145(3) that is to decide what the interpretation of the
Constitution shall be, and for this purpose the Constitution entrusts this task to a minimum of 5
Judges of this Court.
67. Does a fundamental right to privacy reside primarily in Article 21 read with certain other
fundamental rights?
68. At this point, it is important to advert to the U.S. Supreme Courts development of the right of
privacy.
The earlier cases tended to see the right of privacy as a property right as they were part of what was
called the Lochner era during which the doctrine of substantive due process elevated property rights
over societal interests9. Thus in an early case, Olmstead v. United States, 277 U.S. 438 at 474, 478
and 479 (1928), the majority of the Court held that wiretaps attached to telephone wires on public
streets did not constitute a search under the Fourth Amendment since there was no physical entry
into any house or office of the defendants. In a classic dissenting judgment, Louis Brandeis, J. held
that this 9 th This era lasted from the early 20 Century till 1937, when the proverbial switch in time
that saved nine was made by Justice Roberts. It was only from 1937 onwards that President
Roosevelts New Deal legislations were upheld by a majority of 5:4, having been struck down by a
majority of 5:4 previously. was too narrow a construction of the Fourth Amendment and said in
words that were futuristic that:
Moreover, in the application of a constitution, our contemplation cannot be only of

what has been but of what may be. The progress of science in furnishing the
Government with means of espionage is not likely to stop with wiretapping. Ways
may someday be developed by which the Government, without removing papers from
secret drawers, can reproduce them in court, and by which it will be enabled to
expose to a jury the most intimate occurrences of the home. Advances in the psychic

and related sciences may bring means of exploring unexpressed beliefs, thoughts and
emotions. That places the liberty of every man in the hands of every petty officer was
said by James Otis of much lesser intrusions than these. To Lord Camden, a far
slighter intrusion seemed subversive of all the comforts of society. Can it be that the
Constitution affords no protection against such invasions of individual security?
69. Also in a ringing declaration of the right to privacy, that great Judge borrowed from his own
co-authored article, written almost 40 years earlier, in order to state that the right of privacy is a
constitutionally protected right:
The protection guaranteed by the Amendments is much broader in scope. The

makers of our Constitution undertook to secure conditions favorable to the pursuit of
happiness. They recognized the significance of mans spiritual nature, of his feelings,
and of his intellect. They knew that only a part of the pain, pleasure and satisfaction
of life are to be found in material things.
They sought to protect Americans in their beliefs, their thoughts, their emotions and
their sensations. They conferred, as against the Government, the right to be let alone
the most comprehensive of rights, and the right most valued by civilized men.
To protect that right, every unjustifiable intrusion by the Government upon the privacy of the
individual whatever the means employed, must be deemed a violation of the Fourth Amendment.
And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be
deemed a violation of the Fifth. Brandeis, J.s view was held as being the correct view of the law in
Katz (supra).
70. A large number of judgments of the U.S. Supreme Court since Katz (supra) have recognized the
right to privacy as falling in one or other of the clauses of the Bill of Rights in the U.S. Constitution.
Thus, in Griswold v. Connecticut, 381 U.S. 479 (1965), Douglas, J.s majority opinion found that the
right to privacy was contained in the penumbral regions of the First, Third, Fourth and Fifth
Amendments to the U.S. Constitution. Goldberg, J. found this right to be embedded in the Ninth
Amendment which states that certain rights which are not enumerated are nonetheless recognized
as being reserved to the people. White, J. found this right in the due process clause of the
Fourteenth Amendment, which prohibits the deprivation of a persons liberty without following due
process. This view of the law was recognized and applied in Roe v. Wade, 410 U.S. 113 (1973), in
which a womans right to choose for herself whether or not to abort a fetus was established, until the
fetus was found viable. Other judgments also recognized this right of independence of choice in
personal decisions relating to marriage, Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18
L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542, 62 S.Ct. 1110,
1113-1114, 86 L.Ed. 1655 (1942); contraception, Eisenstadt v. Baird, 405 U.S. 438, 453-454, 92 S.Ct.
1029, 1038-1039, 31 L.Ed.2d 349 (1972), family relationships, Prince v. Massachusetts, 321 U.S. 158,
166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); and child rearing and education, Pierce v. Society of
Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925).

71. In a recent decision of the U.S. Supreme Court in United States v. Jones, 565 U.S. 400 (2012),
the U.S. Supreme Courts majority judgment traces the right of privacy through the labyrinth of case
law in Part II of Scalia, J.s opinion, and regards it as a constitutionally protected right.
72. Based upon the prevalent thinking of the U.S. Supreme Court, a seminal judgment was delivered
by Mathew, J. in Gobind (supra). This judgment dealt with the M.P. Police Regulations, similar to
the Police Regulations contained in Kharak Singh (supra). After setting out the majority and
minority opinions in the said judgment, Mathew, J. went on to discuss the U.S. Supreme Court
judgments in Griswold (supra) and Roe (supra). In a very instructive passage the learned Judge
held:
22. 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. 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. Obviously, if the
enforcement of morality were held to be a compelling as well as a permissible State
interest, the characterization of a claimed right as a fundamental privacy right would
be of far less significance. The question whether enforcement of morality is a State
interest sufficient to justify the infringement of a fundamental privacy right need not
be considered for the purpose of this case and therefore we refuse to enter the
controversial thicket whether enforcement of morality is a function of State.
23. Individual autonomy, perhaps the central concern of any system of limited government, is
protected in part under our Constitution by explicit constitutional guarantees. In the application of
the Constitution our contemplation cannot only be of what has been but what may be. Time works
changes and brings into existence new conditions. Subtler and far reaching means of invading
privacy will make it possible to be heard in the street what is whispered in the closet. Yet, too broad
a definition of privacy raises serious questions about the propriety of judicial reliance on a right that
is not explicit in the Constitution. Of course, privacy primarily concerns the individuals. 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.
24. Any right to privacy must encompass and protect the personal intimacies of the home, the family
marriage, motherhood, procreation and child rearing. This catalogue approach to the question is
obviously not as instructive as it does not give analytical picture of distinctive characteristics of the
right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying
the concept has been the assertion that a claimed right must be a fundamental right implicit in the
concept of ordered liberty.
27. There are two possible theories for protecting privacy of home. The first is that activities in the
home harm others only to the extent that they cause offence resulting from the mere thought that

individuals might be engaging in such activities and that such harm is not constitutionally
protectable by the State. The second is that individuals need a place of sanctuary where they can be
free from societal control. The importance of such a sanctuary is that individuals can drop the mask,
desist for a while from projecting on the world the image they want to be accepted as themselves, an
image that may reflect the values of their peers rather than the realities of their natures.
28. The right to privacy in any event will necessarily have to go through a process of case- by-case
development. Therefore, even assuming that the right to personal liberty, the right to move freely
throughout the territory of India and the freedom of speech create an independent right of privacy
as an emanation from them which one can characterize as a fundamental right, we do not think that
the right is absolute. (at pages 155-157) The Police Regulations were, however, not struck down, but
were termed as being perilously close to being unconstitutional.
73. Shri Sundaram has brought to our notice the fact that Mathew, J. did not declare privacy as a
fundamental right. By this judgment, he reached certain conclusions on the assumption that it was a
fundamental right. He is correct in this submission. However, this would not take the matter very
much further inasmuch as even though the later judgments have referred to Gobind (supra) as the
starting point of the fundamental right to privacy, in our view, for the reasons given by us in this
judgment, even dehors Gobind (supra) these cases can be supported on the ground that there exists
a fundamental right to privacy.
74. In R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632, this Court had to decide on the rights
of privacy vis-a-vis the freedom of the press, and in so doing, referred to a large number of
judgments and arrived at the following conclusion:
26. We may now summarise the broad principles flowing from the above discussion:
(1) The right to privacy is implicit in the right to life and liberty guaranteed to the
citizens of this country by Article 21. It is a right to be let alone. A citizen has a right
to safeguard the privacy of his own, his family, marriage, procreation, motherhood,
childbearing and education among other matters. None can publish anything
concerning the above matters without his consentwhether truthful or otherwise and
whether laudatory or critical. If he does so, he would be violating the right to privacy
of the person concerned and would be liable in an action for damages. Position may,
however, be different, if a person voluntarily thrusts himself into controversy or
voluntarily invites or raises a controversy.
(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid
aspects becomes unobjectionable if such publication is based upon public records including court
records. This is for the reason that once a matter becomes a matter of public record, the right to
privacy no longer subsists and it becomes a legitimate subject for comment by press and media
among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an
exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap,
abduction or a like offence should not further be subjected to the indignity of her name and the

incident being publicised in press/media.
(3) There is yet another exception to the rule in (1) aboveindeed, this is not an exception but an
independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the
remedy of action for damages is simply not available with respect to their acts and conduct relevant
to the discharge of their official duties. This is so even where the publication is based upon facts and
statements which are not true, unless the official establishes that the publication was made (by the
defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant
(member of the press or media) to prove that he acted after a reasonable verification of the facts; it
is not necessary for him to prove that what he has written is true. Of course, where the publication is
proved to be false and actuated by malice or personal animosity, the defendant would have no
defence and would be liable for damages.
It is equally obvious that in matters not relevant to the discharge of his duties, the public official
enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no
reiteration that judiciary, which is protected by the power to punish for contempt of court and
Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of
the Constitution of India, represent exceptions to this rule.
(4) So far as the Government, local authority and other organs and institutions exercising
governmental power are concerned, they cannot maintain a suit for damages for defaming them.
(5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or
provision having the force of law does not bind the press or media.
(6) There is no law empowering the State or its officials to prohibit, or to impose a prior restraint
upon the press/media.10 (at pages 649-651)
75. Similarly, in PUCL v. Union of India, (1997) 1 SCC 301, this Court dealt with telephone tapping
as follows:
17. We have, therefore, no hesitation in holding that right to privacy is a part of the
right to life and personal liberty enshrined under Article 21 of the Constitution. Once
the facts in a given case constitute a right to privacy, Article 21 is attracted. The said
right cannot be curtailed except according to procedure established by law.
18. The right to privacyby itselfhas not been identified under the Constitution. As a concept it may
be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has
been infringed in a given case would depend on It will be noticed that this judgment grounds the
right of privacy in Article 21. However, the Court was dealing with the aforesaid right not in the
context of State action, but in the context of press freedom. the facts of the said case. But the right to
hold a telephone conversation in the privacy of ones home or office without interference can
certainly be claimed as right to privacy. Conversations on the telephone are often of an intimate and
confidential character. Telephone conversation is a part of modern mans life. It is considered so

important that more and more people are carrying mobile telephone instruments in their pockets.
Telephone conversation is an important facet of a mans private life. Right to privacy would certainly
include telephone conversation in the privacy of ones home or office. Telephone-tapping would,
thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure
established by law. (at page 311) The Court then went on to apply Article 17 of the International
Covenant on Civil and Political Rights, 1966 which recognizes the right to privacy and also referred
to Article 12 of the Universal Declaration of Human Rights, 1948 which is in the same terms. It then
imported these international law concepts to interpret Article 21 in accordance with these concepts.
76. In Sharda v. Dharmpal (supra), this Court was concerned with whether a medical examination
could be ordered by a Court in a divorce proceeding. After referring to some of the judgments of this
Court and the U.K. Courts, this Court held:
81. To sum up, our conclusions are:
1. A matrimonial court has the power to order a person to undergo medical test.
2. Passing of such an order by the court would not be in violation of the right to
personal liberty under Article 21 of the Indian Constitution.
3. However, the court should exercise such a power if the applicant has a strong prima facie case and
there is sufficient material before the court. If despite the order of the court, the respondent refuses
to submit himself to medical examination, the court will be entitled to draw an adverse inference
against him. (at page 524) In Canara Bank (supra), this Court struck down Section 73 of the Andhra
Pradesh Stamp Act, as it concluded that the involuntary impounding of documents under the said
provision would be violative of the fundamental right of privacy contained in Article 21. The Court
exhaustively went into the issue and cited many U.K. and U.S. judgments. After so doing, it analysed
some of this Courts judgments and held:
53. Once we have accepted in Gobind [(1975) 2 SCC 148 : 1975 SCC (Cri) 468] and in
later cases that the right to privacy deals with persons and not places, the documents
or copies of documents of the customer which are in a bank, must continue to remain
confidential vis-a-vis the person, even if they are no longer at the customers house
and have been voluntarily sent to a bank. If that be the correct view of the law, we
cannot accept the line of Miller, 425 US 435 (1976), in which the Court proceeded on
the basis that the right to privacy is referable to the right of property theory. Once
that is so, then unless there is some probable or reasonable cause or reasonable basis
or material before the Collector for reaching an opinion that the documents in the
possession of the bank tend to secure any duty or to prove or to lead to the discovery
of any fraud or omission in relation to any duty, the search or taking notes or extracts
therefore, cannot be valid. The above safeguards must necessarily be read into the
provision relating to search and inspection and seizure so as to save it from any
unconstitutionality.

56. In Smt. Maneka Gandhi vs. Union of India, (1978) 1 SCC 248, a seven-Judge Bench decision,
P.N. Bhagwati, J. (as His Lordship then was) held that the expression personal liberty in Article 21 is
of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of
man and some of them have been raised to the status of distinct fundamental rights and given
additional protection under Article 19 (emphasis supplied). Any law interfering with personal liberty
of a person must satisfy a triple test: (i) it must prescribe a procedure; (ii) the procedure must
withstand the test of one or more of the fundamental rights conferred under Article 19 which may be
applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14.
As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorizing
interference with personal liberty and right of privacy must also be right and just and fair and not
arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of
Article 14 it would be no procedure at all within the meaning of Article 21. (at pages 523 and 524) In
Selvi v. State of Karnataka (supra), this Court went into an in depth analysis of the right in the
context of lie detector tests used to detect alleged criminals. A number of judgments of this Court
were examined and this Court, recognizing the difference between privacy in a physical sense and
the privacy of ones mental processes, held that both received constitutional protection. This was
stated in the following words:
224. Moreover, a distinction must be made between the character of restraints placed
on the right to privacy. While the ordinary exercise of police powers contemplates
restraints of a physical nature such as the extraction of bodily substances and the use
of reasonable force for subjecting a person to a medical examination, it is not viable
to extend these police powers to the forcible extraction of testimonial responses. In
conceptualising the right to privacy we must highlight the distinction between privacy
in a physical sense and the privacy of ones mental processes.
225. So far, the judicial understanding of privacy in our country has mostly stressed on the
protection of the body and physical spaces from intrusive actions by the State. While the scheme of
criminal procedure as well as evidence law mandates interference with physical privacy through
statutory provisions that enable arrest, detention, search and seizure among others, the same cannot
be the basis for compelling a person to impart personal knowledge about a relevant fact. The theory
of interrelationship of rights mandates that the right against self-incrimination should also be read
as a component of personal liberty under Article
21. Hence, our understanding of the right to privacy should account for its intersection with Article
20(3). Furthermore, the rule against involuntary confessions as embodied in Sections 24, 25, 26 and
27 of the Evidence Act, 1872 seeks to serve both the objectives of reliability as well as voluntariness
of testimony given in a custodial setting. A conjunctive reading of Articles 20(3) and 21 of the
Constitution along with the principles of evidence law leads us to a clear answer. We must recognise
the importance of personal autonomy in aspects such as the choice between remaining silent and
speaking. An individuals decision to make a statement is the product of a private choice and there
should be no scope for any other individual to interfere with such autonomy, especially in
circumstances where the person faces exposure to criminal charges or penalties. (at pages 369-370)

77. All this leads to a discussion on what exactly is the fundamental right of privacy where does it fit
in Chapter III of the Constitution, and what are the parameters of its constitutional protection.
78. In an instructive article reported in Volume 64 of the California Law Review, written in 1976,
Gary L. Bostwick suggested that the right to privacy in fact encompasses three separate and distinct
rights. According to the learned author, these three components are the components of repose,
sanctuary, and intimate decision. The learned author puts it thus (at pages 1482-1483):-
The extent of constitutional protection is not the only distinction between the types of
privacy. Each zone protects a unique type of human transaction. Repose maintains
the actors peace; sanctuary allows an individual to keep some things private, and
intimate decision grants the freedom to act in an autonomous fashion. Whenever a
generalized claim to privacy is put forward without distinguishing carefully between
the transactional types, parties and courts alike may become hopelessly muddled in
obscure claims. The clear standards that appear within each zone are frequently
ignored by claimants anxious to retain some aspect of their personal liberty and by
courts impatient with the indiscriminate invocation of privacy.
Finally, it should be recognized that the right of privacy is a continually evolving

right. This Comment has attempted to show what findings of fact will lead to the legal
conclusion that a person has a right to privacy. Yet the same findings of fact may lead
to different conclusions of law as time passes and societys ideas change about how
much privacy is reasonable and what kinds of decisions are best left to individual
choice. Future litigants must look to such changes in community concerns and
national acceptance of ideas as harbingers of corresponding changes in the contours
of the zones of privacy.
79. Shortly thereafter, in 1977, an instructive judgment is to be found in Whalen v. Roe, 429 U.S.
589 at 598 and 599 by the U.S. Supreme Court. This case dealt with a legislation by the State of New
York in which the State, in a centralized computer file, registered the names and addresses of all
persons who have obtained, pursuant to a Doctors prescription, certain drugs for which there is both
a lawful and unlawful market. The U.S. Supreme Court upheld the statute, finding that it would
seem clear that the States vital interest in controlling the distribution of dangerous drugs would
support the legislation at hand. In an instructive footnote 23 to the judgment, the U.S. Supreme
Court found that the right to privacy was grounded after Roe (supra) in the Fourteenth
Amendments concept of personal liberty. Having thus grounded the right, the U.S. Supreme Court
in a very significant passage stated:
At the very least, it would seem clear that the States vital interest in controlling the
distribution of dangerous drugs would support a decision to experiment with new
techniques for control Appellees contend that the statute invades a constitutionally
protected zone of privacy. The cases sometimes characterized as protecting privacy
have in fact involved at least two different kinds of interests. One is the individual
interest in avoiding disclosure of personal matters, and another is the interest in

independence in making certain kinds of important decisions.
80. In fact, in the Constitution of South Africa of 1996, which Constitution was framed after
apartheid was thrown over by the South African people, the right to privacy has been expressly
declared as a fundamental freedom as follows:
10. Human dignity Everyone has inherent dignity and the right to have their dignity
respected and protected.
12. Freedom and security of the person (1) Everyone has the right to freedom and
security of the person, which includes the right
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.
(2) Everyone has the right to bodily and psychological integrity, which includes the
right
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their informed

consent.
14. Privacy Everyone has the right to privacy, which includes the right not to have
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed. The Constitutional Court of South
Africa in NM & Ors. v.

Smith & Ors., 2007 (5) SA 250 (CC), had this to say about the fundamental right to privacy
recognized by the South African Constitution:
131. The right to privacy recognizes the importance of protecting the sphere of our
personal daily lives from the public. In so doing, it highlights the inter-relationship
between privacy, liberty and dignity as the key constitutional rights which construct
our understanding of what it means to be a human being. All these rights are
therefore interdependent and mutually reinforcing. We value privacy for this reason
at least that the constitutional conception of being a human being asserts and seeks
to foster the possibility of human beings choosing how to live their lives within the
overall framework of a broader community. The protection of this autonomy, which
flows from our recognition of individual human worth, presupposes personal space
within which to live this life.
132. This first reason for asserting the value of privacy therefore lies in our constitutional
understanding of what it means to be a human being. An implicit part of this aspect of privacy is the
right to choose what personal information of ours is released into the public space. The more
intimate that information, the more important it is in fostering privacy, dignity and autonomy that
an individual makes the primary decision whether to release the information. That decision should
not be made by others. This aspect of the right to privacy must be respected by all of us, not only the
state... (Emphasis Supplied)
81. In the Indian context, a fundamental right to privacy would cover at least the following three
aspects:
Privacy that involves the person i.e. when there is some invasion by the State of a
persons rights relatable to his physical body, such as the right to move freely;
Informational privacy which does not deal with a persons body but deals with a
persons mind, and therefore recognizes that an individual may have control over the
dissemination of material that is personal to him. Unauthorised use of such
information may, therefore lead to infringement of this right; and The privacy of
choice, which protects an individuals autonomy over fundamental personal choices.
For instance, we can ground physical privacy or privacy relating to the body in Articles 19(1)(d) and
(e) read with Article 21; ground personal information privacy under Article 21; and the privacy of
choice in Articles 19(1)(a) to (c), 20(3), 21 and 25. The argument based on privacy being a vague and
nebulous concept need not, therefore, detain us.
82. We have been referred to the Preamble of the Constitution, which can be said to reflect core
constitutional values. The core value of the nation being democratic, for example, would be hollow
unless persons in a democracy are able to develop fully in order to make informed choices for
themselves which affect their daily lives and their choice of how they are to be governed.

83. In his well-known thesis On Liberty, John Stuart Mill, as far back as in 1859, had this to say:
. the sole end for which mankind are warranted, individually or collectively, in
interfering with the liberty of action of any of their number, is self-
protection. That the only purpose for which power can be rightfully exercised over any member of a
civilised community, against his will, is to prevent harm to others. His own good, either physical or
moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will
be better for him to do so, because it will make him happier, because, in the opinions of others, to do
so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning
with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any
evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must
be calculated to produce evil to someone else. The only part of the conduct of any one, for which he
is amenable to society, is that which concerns others. In the part which merely concerns himself, his
independence is, of right, absolute. Over himself, over his own body and mind, the individual is
sovereign.
() This, then, is the appropriate region of human liberty. It comprises, first, the inward domain of
consciousness; demanding liberty of conscience in the most comprehensive sense; liberty of thought
and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative,
scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall
under a different principle, since it belongs to that part of the conduct of an individual which
concerns other people; but, being almost of as much importance as the liberty of thought itself, and
resting in great part on the same reasons, is practically inseparable from it. Secondly, the principle
requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of
doing as we like, subject to such consequences as may follow: without impediment from our fellow
creatures, so long as what we do does not harm them, even though they should think our conduct
foolish, perverse, or wrong. Thirdly, from this liberty of each individual, follows the liberty, within
the same limits, of combination among individuals; freedom to unite, for any purpose not involving
harm to others: the persons combining being supposed to be of full age, and not forced or deceived.
No society in which these liberties are not, on the whole, respected, is free, whatever may be its form
or government; and none is completely free in which they do not exist absolute and unqualified. The
only freedom which deserves the name, is that of pursuing our own good in our own way, so long as
we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Noting the
importance of liberty to individuality, Mill wrote:
It is not by wearing down into uniformity all that is individual in themselves, but by
cultivating it, and calling it forth, within the limits imposed by the rights and
interests of others, that human beings become a noble and beautiful object of
contemplation; and as the works partake the character of those who do them, by the
same process human life also becomes rich, diversified, and animating, furnishing
more abundant aliment to high thoughts and elevating feelings, and strengthening
the tie which binds every individual to the race, by making the race infinitely better

worth belonging to. In proportion to the development of his individuality, each

person becomes more valuable to himself, and is therefore capable of being more
valuable to others. There is a greater fullness of life about his own existence, and
when there is more life in the units there is more in the mass which is composed of
them.. The means of development which the individual loses by being prevented from
gratifying his inclinations to the injury of others, are chiefly obtained at the expense
of the development of other people. To be held to rigid rules of justice for the sake of
others, develops the feelings and capacities which have the good of others for their
object. But to be restrained in things not affecting their good, by their mere
displeasure, develops nothing valuable, except such force of character as may unfold
itself in resisting the restraint. If acquiesced in, it dulls and blunts the whole nature.
To give any fair play to the nature of each, it is essential that different persons should
be allowed to lead different lives. (Emphasis Supplied)
84. Liberty in the Preamble to the Constitution, is said to be of thought, expression, belief, faith and
worship. This cardinal value can be found strewn all over the fundamental rights chapter. It can be
found in Articles 19(1)(a), 20, 21, 25 and 26. As is well known, this cardinal constitutional value has
been borrowed from the Declaration of the Rights of Man and of the Citizen of 1789, which defined
liberty in Article 4 as follows:
Liberty consists in being able to do anything that does not harm others: thus, the
exercise of the natural rights of every man has no bounds other than those that
ensure to the other members of society the enjoyment of these same rights. These
bounds may be determined only by Law. Even in this limited sense, privacy begins
where liberty ends when others are harmed, in one sense, issues relating to
reputation, restraints on physical locomotion etc. set in. It is, therefore, difficult to
accept the argument of Shri Gopal Subramanium that liberty and privacy are
interchangeable concepts. Equally, it is difficult to accept the Respondents
submission that there is no concept of privacy, but only the constitutional concept of
ordered liberty. Arguments of both sides on this score must, therefore, be rejected.
85. But most important of all is the cardinal value of fraternity which assures the dignity of the
individual.11 The dignity of the individual encompasses the right of the individual to develop to the
full extent of his potential. And this development can only be if an individual has autonomy over
fundamental personal choices and control over dissemination of personal information which may be
infringed through an unauthorized use of such information. It is clear that Article 21, more than any
of the other Articles in the fundamental rights chapter, reflects each of In 1834, Jacques-Charles
Dupont de lEure associated the three terms liberty, equality and fraternity together in the Revue
Républicaine, which he edited, as follows:
Any man aspires to liberty, to equality, but he cannot achieve it without the assistance of other men,
without fraternity. Many of our decisions recognize human dignity as being an essential part of the
fundamental rights chapter. For example, see Prem Shankar Shukla v. Delhi Administration, (1980)
3 SCC 526 at paragraph 21, Francis Coralie Mullin v. Administrator, Union Territory of Delhi & Ors.,

(1981) 1 SCC 608 at paragraphs 6, 7 and 8, Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC
161 at paragraph 10, Maharashtra University of Health Sciences v. Satchikitsa Prasarak Mandal,
(2010) 3 SCC 786 at paragraph 37, Shabnam v. Union of India, (2015) 6 SCC 702 at paragraphs 12.4
and 14 and Jeeja Ghosh v. Union of India, (2016) 7 SCC 761 at paragraph 37. these constitutional
values in full, and is to be read in consonance with these values and with the international covenants
that we have referred to. In the ultimate analysis, the fundamental right of privacy, which has so
many developing facets, can only be developed on a case to case basis. Depending upon the
particular facet that is relied upon, either Article 21 by itself or in conjunction with other
fundamental rights would get attracted.
86. But this is not to say that such a right is absolute. This right is subject to reasonable regulations
made by the State to protect legitimate State interests or public interest. However, when it comes to
restrictions on this right, the drill of various Articles to which the right relates must be scrupulously
followed. For example, if the restraint on privacy is over fundamental personal choices that an
individual is to make, State action can be restrained under Article 21 read with Article 14 if it is
arbitrary and unreasonable; and under Article 21 read with Article 19(1) (a) only if it relates to the
subjects mentioned in Article 19(2) and the tests laid down by this Court for such legislation or
subordinate legislation to pass muster under the said Article. Each of the tests evolved by this Court,
qua legislation or executive action, under Article 21 read with Article 14; or Article 21 read with
Article 19(1)(a) in the aforesaid examples must be met in order that State action pass muster. In the
ultimate analysis, the balancing act that is to be carried out between individual, societal and State
interests must be left to the training and expertise of the judicial mind.
87. It is important to advert to one other interesting argument made on the side of the petitioner.
According to the petitioners, even in British India, the right to privacy was always legislatively
recognized. We were referred to the Indian Telegraph Act of 1885, vintage and in particular Section
5 thereof which reads as under:-
5. (1) On the occurrence of any public emergency, or in the interest of the public safety, the Governor
General in Council or a Local Government, or any officer specially authorized in this behalf by the
Governor General in Council, may
(a) take temporary possession of any telegraph established, maintained or worked by any person
licensed under this Act; or
(b) order that any message or class of messages to or from any person or class of persons, or relating
to any particular subject, brought for transmission by or transmitted or received by any telegraph,
shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government
or an officer thereof mentioned in the order.
(2) If any doubt arises as to the existence of a public emergency, or whether any act done under
sub-section (1) was in the interest of the public safety, a certificate signed by a Secretary to the
Government of India or to the Local Government shall be conclusive proof on the point. We were
also referred to Section 26 of the Indian Post Office Act, 1898 for the same purpose.

26. Power to intercept postal articles for public good. (1) On the occurrence of any public emergency,
or in the interest of the public safety or tranquility, the Central Government, or a State Government,
or any officer specially authorized in this behalf by the Central or the State Government may, by
order in writing, direct that any postal article or class or description of postal articles in course of
transmission by post shall be intercepted or detained, or shall be disposed of in such manner as the
authority issuing the order may direct.
(2) If any doubt arises as to the existence of a public emergency, or as to whether any act done under
sub-section (1) was in the interest of the public safety or tranquility, a certificate of the Central
Government or, as the case may be, of the State Government shall be conclusive proof on the point.
88. Coming to more recent times, the Right to Information Act, 2005 in Section 8(1)(j) states as
follows:-
8. Exemption from disclosure of information. (1) Notwithstanding anything

contained in this Act, there shall be no obligation to give any citizen,
(a) to (i) xxx xxx xxx
(j) information which relates to personal information the disclosure of which has not
relationship to any public activity or interest, or which would cause unwarranted
invasion of the privacy of the individual unless the Central Public Information Officer
or the State Public Information Officer or the appellate authority, as the case may be,
is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information, which cannot be denied to the Parliament or a State Legislature shall
not be denied to any person. It will be noticed that in this statutory provision, the expression privacy
of the individual is specifically mentioned. In an illuminating judgment, reported as Thalappalam
Service Co-operative Bank Limited & Ors., v. State of Kerala & Ors., (2013) 16 SCC 82, this Court
dealt with the right to information as a facet of the freedom of speech guaranteed to every
individual. In certain instructive passages, this Court held: 57. The right to privacy is also not
expressly guaranteed under the Constitution of India.
However, the Privacy Bill, 2011 to provide for the right to privacy to citizens of India and to regulate
the collection, maintenance and dissemination of their personal information and for penalization for
violation of such rights and matters connected therewith, is pending. In several judgments including
Kharak Singh v. State of U.P. (AIR 1963 SC 1295 : (1963) 2 Cri LJ 329), R. Rajagopal v.
State of T.N. (1994) 6 SCC 632, Peoples Union for Civil Liberties v. Union of India (1997) 1 SCC 301
and State of Maharashtra v. Bharat Shanti Lal Shah (2008) 13 SCC 5, this Court has recognized the
right to privacy as a fundamental right emanating from Article 21 of the Constitution of India.
58. The right to privacy is also recognized as a basic human right under Article 12 of the Universal
Declaration of Human Rights Act, 1948, which states as follows:

12. No one shall be subjected to arbitrary interference with his privacy, family, home
or correspondence, not to attack upon his honour and reputation.
Everyone has the right to the protection of the law against such interference or
attacks.
59. Article 17 of the International Covenant on Civil and Political Rights Act, 1966, to which India is
a party also protects that right and states as follows:
17. (1) No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home and correspondence nor to unlawful attacks on his honour and
reputation.
60. This Court in R. Rajagopal, (1994) 6 SCC 632 held as follows: (SCC pp. 649-50, para 26) (1) The
right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by
Article
21. It is a right to be let alone. A citizen has a right to safeguard the privacy of his own, his family,
marriage, procreation, motherhood, child bearing and education among other matters.
62. The public authority also is not legally obliged to give or provide information even if it is held, or
under its control, if that information falls under clause (j) of sub-section (1) of Section 8. Section
8(1)(j) is of considerable importance so far as this case is concerned, hence given below, for ready
reference:-
8. Exemption from disclosure of information (1) Notwithstanding anything contained

in this Act, there shall be no obligation to give any citizen
(a) to (i) xxx xxx xxx
(j) information which relates to personal information the disclosure of which has no
relationship to any public activity or interest, or which would cause unwarranted
invasion of the privacy of the individual unless the Central Public Information Officer
or the State Public Information Officer or the appellate authority, as the case may be,
is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information which cannot be denied to Parliament or a State

Legislature shall not be denied to any person.
63. Section 8 begins with a non obstante clause, which gives that section an overriding effect, in case
of conflict, over the other provisions of the Act. Even if, there is any indication to the contrary, still
there is no obligation on the public authority to give information to any citizen of what has been
mentioned in clauses (a) to (j). The public authority, as already indicated, cannot access all the
information from a private individual, but only those information which he is legally obliged to pass

on to a public authority by law, and also only those information to which the public authority can
have access in accordance with law. Even those information, if personal in nature, can be made
available only subject to the limitations provided in Section 8(j) of the RTI Act. Right to be left
alone, as propounded in Olmstead v. United States [72 L Ed 944 : 277 US 438 (1928)], is the most
comprehensive of the rights and most valued by civilized man.
64. Recognizing the fact that the right to privacy is a sacrosanct facet of Article 21 of the
Constitution, the legislation has put a lot of safeguards to protect the rights under Section 8(j), as
already indicated. If the information sought for is personal and has no relationship with any public
activity or interest or it will not subserve larger public interest, the public authority or the officer
concerned is not legally obliged to provide those information. Reference may be made to a recent
judgment of this Court in Girish Ramchandra Deshpande v. Central Information Commissioner
(2013) 1 SCC 212, wherein this Court held that since there is no bona fide public interest in seeking
information, the disclosure of said information would cause unwarranted invasion of privacy of the
individual under Section 8(1)(j) of the Act. Further, if the authority finds that information sought for
can be made available in the larger public interest, then the officer should record his reasons in
writing before providing the information, because the person from whom information is sought for,
has also a right to privacy guaranteed under Article 21 of the Constitution. (at page 112-114)
89. There can be no doubt that counsel for the petitioners are right in their submission that the
legislature has also recognized the fundamental right of privacy and, therefore, it is too late in the
day to go back on this. Much water has indeed flowed under the bridge since the decisions in M.P.
Sharma (supra) and Kharak Singh (supra).
The Inalienable Nature of the Right to Privacy
90. Learned counsel for the petitioners also referred to another important aspect of the right of
privacy. According to learned counsel for the petitioner this right is a natural law right which is
inalienable. Indeed, the reference order itself, in paragraph 12, refers to this aspect of the
fundamental right contained. It was, therefore, argued before us that given the international
conventions referred to hereinabove and the fact that this right inheres in every individual by virtue
of his being a human being, such right is not conferred by the Constitution but is only recognized
and given the status of being fundamental. There is no doubt that the petitioners are correct in this
submission. However, one important road block in the way needs to be got over.
91. In Additional District Magistrate, Jabalpur v. S.S. Shukla, (1976) 2 SCC 521, a Constitution
Bench of this Court arrived at the conclusion (by majority) that Article 21 is the sole repository of all
rights to life and personal liberty, and, when suspended, takes away those rights altogether.
A remarkable dissent was that of Khanna,J.12 Khanna, J. was in line to be Chief Justice of India but
was superseded because of this dissenting judgment. Nani Palkhivala in an article written on this
great Judges supersession ended with a poignant sentence, To the stature of such a man, the Chief
Justiceship of India can add nothing. Seervai, in his monumental treatise Constitutional Law of
India had to this to say:

53. If in this Appendix the dissenting judgment of Khanna J. has not been considered
in detail, it is not for lack of admiration for the judgment, or the courage which he
showed in delivering it regardless of the cost and consequences to himself. It cost him
the Chief Justiceship of India, but it gained for him universal esteem not only for his
courage but also for his inflexible judicial independence. If his judgment is not
considered in detail it is because under the theory of precedents which we have
adopted, a dissenting judgment, however valuable, does not lay down the law and the
object of a critical examination of the majority judgments in this Appendix was to
show that those judgments are untenable in law, productive of grave public mischief
and ought to be overruled at the earliest opportunity. The conclusion which Justice
Khanna has reached on the effect of the suspension of Article 21 is correct. His
reminder that the rule of law did not merely mean giving effect to an enacted law was
timely, and was reinforced by his reference to the mass murders of millions of Jews
in Nazi concentration camps under an enacted law.
The learned Judge held:-
525. The effect of the suspension of the right to move any court for the enforcement
of the right conferred by Article 21, in my opinion, is that when a petition is filed in a
court, the court would have to proceed upon the basis that no reliance can be placed
upon that article for obtaining relief from the court during the period of emergency.
Question then arises as to whether the rule that no one shall be deprived of his life or
personal liberty without the authority of law still survives during the period of
emergency despite the Presidential Order suspending the right to move any court for
the enforcement of the right contained in Article 21. The answer to this question is
linked with the answer to the question as to whether Article 21 is the sole repository
of the right to life and personal liberty.
After giving the matter my earnest consideration, I am of the opinion that Article 21 cannot be
considered to be the sole repository of the right to life and personal liberty. The right to life and
personal liberty is the most precious right of human beings in civilised societies governed by the rule
of law. Many modern Constitutions incorporate certain fundamental rights, including the one
relating to personal freedom. According to Blackstone, the absolute rights of Englishmen were the
rights of personal security, personal liberty and private property. The American Declaration of
Independence (1776) states that all men are created equal, and among their inalienable rights are
life, liberty, and the pursuit of happiness. The Second Amendment to the US Constitution refers
inter alia to security of person, while the Fifth Amendment prohibits inter alia deprivation of life
However, the legal analysis in this Chapter confirms his conclusion though on different grounds
from those which he has given. (at Appendix pg. 2229). and liberty without due process, of law. The
different Declarations of Human Rights and fundamental freedoms have all laid stress upon the
sanctity of life and liberty. They have also given expression in varying words to the principle that no
one shall be derived of his life or liberty without the authority of law. The International Commission
of Jurists, which is affiliated to UNESCO, has been attempting with, considerable success to give
material content to the rule of law, an expression used in the Universal Declaration of Human

Rights. One of its most notable achievements was the Declaration of Delhi, 1959. This resulted from
a Congress held in New Delhi attended by jurists from more than 50 countries, and was based on a
questionnaire circulated to 75,000 lawyers. Respect for the supreme value of human personality was
stated to be the basis of all law (see page 21 of the Constitutional and Administrative Law by O.
Hood Phillips, 3rd Ed.).
531. I am unable to subscribe to the view that when right to enforce the right under Article 21 is
suspended, the result would be that there would be no remedy against deprivation of a persons life
or liberty by the State even though such deprivation is without the authority of law or even in
flagrant violation of the provisions of law. The right not to be deprived of ones life or liberty without
the authority of law was not the creation of the Constitution. Such right existed before the
Constitution came into force. The fact that the framers of the Constitution made an aspect of such
right a part of the fundamental rights did not have the effect of exterminating the independent
identity of such right and of making Article 21 to be the sole repository of that right. Its real effect
was to ensure that a law under which a person can be deprived of his life or personal liberty should
prescribe a procedure for such deprivation or, according to the dictum laid down by Mukherjea, J. in
Gopalans case, such law should be a valid law not violative of fundamental rights guaranteed by Part
III of the Constitution. Recognition as fundamental right of one aspect of the pre-
constitutional right cannot have the effect of making things less favourable so far as the sanctity of
life and personal liberty is concerned compared to the position if an aspect of such right had not
been recognised as fundamental right because of the vulnerability of fundamental rights accruing
from Article 359. I am also unable to agree that in view of the Presidential Order in the matter of
sanctity of life and liberty, things would be worse off compared to the state of law as it existed before
the coming into force of the Constitution. (at pages 747 and 751)
92. According to us this is a correct enunciation of the law for the following reasons:
(i) It is clear that the international covenants and declarations to which India was a party, namely,
the 1948 Declaration and the 1966 Covenant both spoke of the right to life and liberty as being
inalienable. Given the fact that this has to be read as being part of Article 21 by virtue of the
judgments referred to supra, it is clear that Article 21 would, therefore, not be the sole repository of
these human rights but only reflect the fact that they were inalienable; that they inhere in every
human being by virtue of the person being a human being;
(ii) Secondly, developments after this judgment have also made it clear that the majority judgments
are no longer good law and that Khanna, J.s dissent is the correct version of the law. Section 2(1)(d)
of the Protection of Human Rights Act, 1993 recognises that the right to life, liberty, equality and
dignity referable to international covenants and enforceable by Courts in India are human rights.
And international covenants expressly state that these rights are inalienable as they inhere in
persons because they are human beings. In I.R. Coelho (supra), this Court noticed in paragraph 29
that, The decision in ADM Jabalpur, (1976) 2 SCC 521, about the restrictive reading of the right to
life and liberty stood impliedly overruled by various subsequent decisions., and expressly held that
these rights are natural rights that inhere in human beings thus:-

61. The approach in the interpretation of fundamental rights has been evidenced in a recent case M.
Nagaraj v. Union of India, (2006) 8 SCC 212, in which the Court noted:
20. 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 the 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 India [AIR 1962 SC 305 : (1962) 3 SCR 842], 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 Madras [AIR 1950 SC 27 : 1950 SCR 88 :
1950 Cri LJ 1383]. Article 21 of the Constitution provides that no person shall be deprived of his life
and personal liberty except 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 [A.K. Gopalan v. State of Madras (AIR 1950 SC 27 :
1950 SCR 88 :
1950 Cri LJ 1383)] and held in its landmark judgment in Maneka Gandhi v. Union of India, (1978) 1
SCC 248, that the procedure contemplated by Article 21 must answer the test of reasonableness. The
Court further held that the procedure should also be in conformity with the principles of natural
justice. This example is given to demonstrate an instance of expansive interpretation of a

fundamental right. The expression 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. (at pages 85-86)
(iii) Seervai in a trenchant criticism of the majority judgment states as follows:
30. The result of our discussion so far may be stated thus: Article 21 does not confer a
right to life or personal liberty: Article 21 assumes or recognizes the fact that those
rights exist and affords protection against the deprivation of those rights to the extent
there provided. The expression procedure established by law does not mean merely a
procedural law but must also include substantive laws. The word law must mean a
valid law, that is, a law within the legislative competence of the legislature enacting it,
which law does not violate the limitations imposed on legislative power by
fundamental rights. Personal liberty means the liberty of the person from external
restraint or coercion. Thus Article 21 protects life and personal liberty by putting
restrictions on legislative power, which under Articles 245 and 246 is subject to the
provisions of this Constitution, and therefore subject to fundamental rights. The
precise nature of this protection is difficult to state, first because among other things,
such protection is dependent on reading Article 21 along with other Articles
conferring fundamental rights, such as Articles 14, 20 and 22(1) and (2); and,
secondly, because fundamental rights from their very nature refer to ordinary laws
which deal with the subject matter of those rights.
31. The right to life and personal liberty which inheres in the body of a living person is recognized
and protected not merely by Article 21 but by the civil and criminal laws of India, and it is
unfortunate that in the Habeas Corpus Case this aspect of the matter did not receive the attention
which it deserved.
Neither the Constitution nor any law confers the right to life. That right arises from the existence of
a living human body. The most famous remedy for securing personal liberty, the writ of habeas
corpus, requires the production before the court of the body of the person alleged to be illegally
detained. The Constitution gives protection against the deprivation of life and personal liberty; so do
the civil and criminal laws in force in India (See, Seervai, Constitutional Law of India (4th Edition)
Appendix pg. 2219).
We are of the view that the aforesaid statement made by the learned author reflects the correct
position in constitutional law. We, therefore, expressly overrule the majority judgments in ADM
Jabalpur (supra).
93. Before parting with this subject, we may only indicate that the majority opinion was done away
with by the Constitutions 44th Amendment two years after the judgment was delivered. By that
Amendment, Article 359 was amended to state that where a proclamation of emergency is in
operation, the President may by order declare that the right to move any Court for the enforcement

of rights conferred by Part III of the Constitution may remain suspended for the period during
which such proclamation is in force, excepting Articles 20 and 21. On this score also, it is clear that
the right of privacy is an inalienable human right which inheres in every person by virtue of the fact
that he or she is a human being.
Conclusion
94. This reference is answered by stating that the inalienable fundamental right to privacy resides in
Article 21 and other fundamental freedoms contained in Part III of the Constitution of India. M.P.
Sharma (supra) and the majority in Kharak Singh (supra), to the extent that they indicate to the
contrary, stand overruled. The later judgments of this Court recognizing privacy as a fundamental
right do not need to be revisited. These cases are, therefore, sent back for adjudication on merits to
the original Bench of 3 honourable Judges of this Court in light of the judgment just delivered by us.
......J.
(R.F. Nariman) New Delhi;
August 24, 2017.

PETITION (CIVIL) NO. 494 OF 2012 Justice K.S. Puttaswamy (Retd.) & Anr. .Petitioner (s)
VERSUS Union of India & Ors. .Respondent(s) WITH T.C.(C) No. 151 of 2013 T.C.(C) No. 152 of
2013 W.P.(C) No. 833 of 2013 W.P.(C) No. 829 of 2013 W.P.(C) No. 932 of 2013 Cont. Pet. (C) No.
144 of 2014 IN W.P. (C) No. 494 of 2012 T.P. (C) No. 313 of 2014 T.P. (C) No. 312 of 2014 S.L.P.
(Crl.) No. 2524 of 2014 W.P. (C) No. 37 of 2015 W.P. (C) No. 220 of 2015 Cont. Pet. (C) No. 674 of
2015 IN W.P. (C) No. 829 of 2013 T.P.(C) No. 921 of 2015 Cont. Pet. (C) No. 470 of 2015 IN W.P. (C)
No. 494 of 2012 Cont. Pet. (C) No. 444 of 2016 IN W.P. (C) No. 494 of 2012 Cont. Pet. (C) No. 608
of 2016 IN W.P. (C) No. 494 of 2012 W.P. (C) No. 797 of 2016 Cont. Pet. (C) No. 844 of 2017 IN
W.P. (C) No. 494 of 2012 W.P. (C) No. 342 of 2017 AND W.P. (C) No. 372 of 2017 JUDGMENT
Abhay Manohar Sapre, J.
1) I have had the benefit of reading the scholarly opinions of my esteemed learned brothers, Justice
J. Chelameswar, Justice S.A. Bobde, Justice Rohinton Fali Nariman and Dr. Justice D.Y.
Chandrachud.
Having read them carefully, I have nothing more useful to add to the reasoning and the conclusion
arrived at by my esteemed brothers in their respective opinions.
2) However, keeping in view the importance of the questions referred to this Bench, I wish to add
only few words of concurrence of my own.
3) In substance, two questions were referred to this Nine Judge Bench, first, whether the law laid
down in the case of M.P.Sharma and others vs. Satish Chandra, District Magistrate Delhi & Ors.,

AIR 1954 SC 300 and Kharak Singh vs. State of Uttar Pradesh & Ors. AIR 1963 SC 1295 insofar as it
relates to the "right to privacy of an individual is correct and second, whether "right to privacy" is a
fundamental right under Part III of the Constitution of India?
4) Before I examine these two questions, it is apposite to take note of the Preamble to the
Constitution, which, in my view, has bearing on the questions referred.
5) The Preamble to the Constitution reads as under:-
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all
its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all FRATERNITY assuring the dignity of the individual and the unity
and integrity of the Nation;
6) Perusal of the words in the Preamble would go to show that every word used therein was
cautiously chosen by the founding fathers and then these words were arranged and accordingly
placed in a proper order. Every word incorporated in the Preamble has significance and proper
meaning.
7) The most important place of pride was given to the "People of India" by using the expression, WE,
THE PEOPLE OF INDIA, in the beginning of the Preamble. The Constitution was accordingly
adopted, enacted and then given to ourselves.
8) The keynote of the Preamble was to lay emphasis on two positive aspects one, "the Unity of the
Nation" and the second "Dignity of the individual". The expression "Dignity" carried with it moral
and spiritual imports. It also implied an obligation on the part of the Union to respect the
personality of every citizen and create the conditions in which every citizen would be left free to find
himself/herself and attain self- fulfillment.
9) The incorporation of expression "Dignity of the individual" in the Preamble was aimed essentially
to show explicit repudiation of what people of this Country had inherited from the past. Dignity of
the individual was, therefore, always considered the prime constituent of the fraternity, which
assures the dignity to every individual. Both expressions are interdependent and intertwined.
10) In my view, unity and integrity of the Nation cannot survive unless the dignity of every
individual citizen is guaranteed. It is inconceivable to think of unity and integration without the

assurance to an individual to preserve his dignity. In other words, regard and respect by every
individual for the dignity of the other one brings the unity and integrity of the Nation.
11) The expressions "liberty, "equality" and "fraternity" incorporated in the Preamble are not
separate entities. They have to be read in juxtaposition while dealing with the rights of the citizens.
They, in fact, form a union. If these expressions are divorced from each other, it will defeat the very
purpose of democracy.
12) In other words, liberty cannot be divorced from equality so also equality cannot be divorced
from liberty and nor can liberty and equality be divorced from fraternity. The meaning assigned to
these expressions has to be given due weightage while interpreting Articles of Part III of the
Constitution.
13) It is, therefore, the duty of the Courts and especially this Court as sentinel on the qui vive to
strike a balance between the changing needs of the Society and the protection of the rights of the
citizens as and when the issue relating to the infringement of the rights of the citizen comes up for
consideration. Such a balance can be achieved only through securing and protecting liberty, equality
and fraternity with social and political justice to all the citizens under rule of law (see-S.S. Bola &
Ors. vs. B.D. Sardana & Ors. 1997 (8) SCC 522).
14) Our Constitution has recognized certain existing cherished rights of an individual. These rights
are incorporated in different Articles of Part III of the Constitution under the heading-Fundamental
Rights. In so doing, some rights were incorporated and those, which were not incorporated, were
read in Part III by process of judicial interpretation depending upon the nature of right asserted by
the citizens on case-to-case basis.
15) It was not possible for the framers of the Constitution to incorporate each and every right be that
a natural or common law right of an individual in Part III of the Constitution. Indeed, as we can see
whenever occasion arose in the last 50 years to decide as to whether any particular right alleged by
the citizen is a fundamental right or not, this Court with the process of judicial interpretation
recognized with remarkable clarity several existing natural and common law rights of an individual
as fundamental rights falling in Part III though not defined in the Constitution. It was done keeping
in view the fact that the Constitution is a sacred living document and, hence, susceptible to
appropriate interpretation of its provisions based on changing needs of "We, the People and other
well defined parameters.
16) Article 21 is perhaps the smallest Article in terms of words (18) in the Constitution. It is the heart
of the Constitution as was said by Dr. B. R. Ambedkar. It reads as under: -
No person shall be deprived of his life or personal liberty except according to

procedure established by law.
17) This Article is in Part III of the Constitution and deals with Fundamental rights of
the citizens. It has been the subject matter of judicial interpretation by this Court

along with other Articles of Part III in several landmark cases beginning from
A.K.Gopalan vs. State of Madras, AIR 1950 SC 27 up to Mohd Arif @ Ashfaq vs.
Registrar, Supreme Court of India (2014) 9 SCC 737. In between this period, several
landmark judgments were rendered by this Court.
18) Part III of the Constitution and the true meaning of the expression "personal liberty" in Article
21 and what it encompasses was being debated all along in these cases. The great Judges of this
Court with their vast knowledge, matured thoughts, learning and with their inimitable style of
writing coupled with the able assistance of great lawyers gradually went on to expand the meaning
of the golden words (personal liberty) with remarkable clarity and precision.
19) The learned Judges endeavored and expanded the width of the fundamental rights and
preserved the freedom of the citizens. In the process of the judicial evolution, the law laid down in
some earlier cases was either overruled or their correctness doubted.
20) It is a settled rule of interpretation as held in the case of Rustom Cavasjee Cooper vs. Union of
India, (1970) 1 SCC 248 that the Court should always make attempt to expand the reach and ambit
of the fundamental rights rather than to attenuate their meaning and the content by process of
judicial construction. Similarly, it is also a settled principle of law laid down in His Holiness
Kesavananda Bharati Sripadagalvaru vs. State of Kerala & Anr., (1973) 4 SCC 225 that the Preamble
is a part of the Constitution and, therefore, while interpreting any provision of the Constitution or
examining any constitutional issue or while determining the width or reach of any provision or when
any ambiguity or obscurity is noticed in any provision, which needs to be clarified, or when the
language admits of meaning more than one, the Preamble to the Constitution may be relied on as a
remedy for mischief or/and to find out the true meaning of the relevant provision as the case may
be.
21) In my considered opinion, the two questions referred herein along with few incidental questions
arising therefrom need to be examined carefully in the light of law laid down by this Court in several
decided cases. Indeed, the answer to the questions can be found in the law laid down in the decided
cases of this Court alone and one may not require taking the help of the law laid down by the
American Courts.
22) It is true that while interpreting our laws, the English decisions do guide us in reaching to a
particular conclusion arising for consideration. The law reports also bear the testimony that this
Court especially in its formative years has taken the help of English cases for interpreting the
provisions of our Constitution and other laws.
23) However, in the last seven decades, this Court has interpreted our Constitution keeping in view
the socio, economic and political conditions of the Indian Society, felt need of, We, the People of this
Country and the Country in general in comparison to the conditions prevailing in other Countries.
24) Indeed, it may not be out of place to state that this Court while interpreting the provisions of
Indian Companies Act, which is modeled on English Companys Act has cautioned that the Indian

Courts will have to adjust and adapt, limit or extend, the principles derived from English decisions,
entitled as they are to great respect, suiting the conditions to the Indian society as a whole. (See -
Hind Overseas (P) Ltd. vs. Raghunath Prasad Jhunjhunwala & Anr.
(1976) 3 SCC 259). The questions referred need examination in the light of these principles.
25) In my considered opinion, right to privacy of any individual is essentially a natural right, which
inheres in every human being by birth. Such right remains with the human being till he/she
breathes last. It is indeed inseparable and inalienable from human being. In other words, it is born
with the human being and extinguish with human being.
26) One cannot conceive an individual enjoying meaningful life with dignity without such right.
Indeed, it is one of those cherished rights, which every civilized society governed by rule of law
always recognizes in every human being and is under obligation to recognize such rights in order to
maintain and preserve the dignity of an individual regardless of gender, race, religion, caste and
creed. It is, of course, subject to imposing certain reasonable restrictions keeping in view the social,
moral and compelling public interest, which the State is entitled to impose by law.
27) Right to privacy is not defined in law except in the dictionaries. The Courts, however, by process
of judicial interpretation, has assigned meaning to this right in the context of specific issues involved
on case- to-case basis.
28) The most popular meaning of right to privacy is - "the right to be let alone. In Gobind vs. State of
Madhya Pradesh & Anr., (1975) 2 SCC 148, K.K.Mathew, J. noticed multiple facets of this right (Para
21-25) and then gave a rule of caution while examining the contours of such right on case-to-case
basis.
29) In my considered view, the answer to the questions can be found in the law laid down by this
Court in the cases beginning from Rustom Cavasjee Cooper (supra) followed by Maneka Gandhi vs.
Union of India & Anr. (1978) 1 SCC 248, Peoples Union for Civil Liberties (PUCL) vs. Union of India
& Anr., (1997) 1 SCC 301, Gobinds case (supra), Mr. "X" vs. Hospital Z (1998) 8 SCC 296, District
Registrar & Collector, Hyderabad & Anr. vs. Canara Bank & Ors., (2005) 1 SCC 496 and lastly in
Thalappalam Service Coop. Bank Ltd. & Ors. vs. State of Kerala & Ors., (2013) 16 SCC 82.
30) It is in these cases and especially the two namely, Gobind(supra) and District Registrar(supra),
their Lordships very succinctly examined in great detail the issue in relation to "right to privacy" in
the light of Indian and American case law and various international conventions.
31) In Gobind case, the learned Judge, K.K.Mathew J. speaking for the Bench held and indeed
rightly in Para 28 as under:
28. The right to privacy in any event will necessarily have to go through a process of
case-by-case development. Therefore, even assuming that the right to personal
liberty, the right to move freely throughout the territory of India and the freedom of

speech create an independent right of privacy as an emanation from them which one
can characterize as a fundamental right, we do not think that the right is absolute.
32) Similarly in the case of District Registrar(supra), the learned Chief Justice
R.C.Lahoti (as His Lordship then was) speaking for the Bench with his distinctive
style of writing concluded in Para 39 as under :
39. We have referred in detail to the reasons given by Mathew, J. in Gobind to show
that, the right to privacy has been implied in Articles 19(1)(a) and (d) and Article 21;
that, the right is not absolute and that any State intrusion can be a reasonable
restriction only if it has reasonable basis or reasonable materials to support it.
33) In all the aforementioned cases, the question of right to privacy was examined in
the context of specific grievances made by the citizens wherein their Lordships, inter
alia, ruled that firstly, right to privacy has multiple facets and though such right can
be classified as a part of fundamental right emanating from Article 19(1)(a) and (d)
and Article 21, yet it is not absolute and secondly, it is always subject to certain
reasonable restrictions on the basis of compelling social, moral and public interest
and lastly, any such right when asserted by the citizen in the Court of law then it has
to go through a process of case-to-case development.
34) I, therefore, do not find any difficulty in tracing the "right to privacy emanating
from the two expressions of the Preamble namely, "liberty of thought, expression,
belief, faith and worship" and "Fraternity assuring the dignity of the individual and
also emanating from Article 19 (1)(a) which gives to every citizen "a freedom of
speech and expression"
and further emanating from Article 19(1)(d) which gives to every citizen "a right to move freely
throughout the territory of India" and lastly, emanating from the expression personal liberty" under
Article 21. Indeed, the right to privacy is inbuilt in these expressions and flows from each of them
and in juxtaposition.
35) In view of foregoing discussion, my answer to question No. 2 is that right to privacy is a part of
fundamental right of a citizen guaranteed under Part III of the Constitution. However, it is not an
absolute right but is subject to certain reasonable restrictions, which the State is entitled to impose
on the basis of social, moral and compelling public interest in accordance with law.
36) Similarly, I also hold that the right to privacy has multiple facets, and, therefore, the same has to
go through a process of case-to-case development as and when any citizen raises his grievance
complaining of infringement of his alleged right in accordance with law.
37) My esteemed learned brothers, Justice J.

Chelameswar, Justice S.A. Bobde, Justice Rohinton Fali Nariman and Dr. Justice D.Y. Chandrachud
have extensively dealt with question No. 1 in the context of Indian and American Case law on the
subject succinctly. They have also dealt with in detail the various submissions of the learned senior
counsel appearing for all the parties.
38) I entirely agree with their reasoning and the conclusion on question No. 1 and hence do not wish
to add anything to what they have said in their respective scholarly opinions.
39) Some learned senior counsel appearing for the petitioners, however, argued that the law laid
down by this Court in some earlier decided cases though not referred for consideration be also
overruled while answering the questions referred to this Bench whereas some senior counsel also
made attempts to attack the legality and correctness of Aadhar Scheme in their submissions.
40) These submissions, in my view, cannot be entertained in this case. It is for the reason that
firstly, this Bench is constituted to answer only specific questions; secondly, the submissions
pressed in service are not referred to this Bench and lastly, it is a settled principle of law that the
reference Court cannot travel beyond the reference made and is confined to answer only those
questions that are referred. (See - Naresh Shridhar Mirajkar & Ors. vs. State of Maharashtra & Anr.
(1966) 3 SCR 744 at page 753).
41) Suffice it to say that as and when any of these questions arise in any case, the appropriate Bench
will examine such questions on its merits in accordance with law.
42) Before I part, I wish to place on record that it was pleasure hearing the erudite arguments
addressed by all the learned counsel. Every counsel argued with brevity, lucidity and with
remarkable clarity. The hard work done by each counsel was phenomenal and deserves to be
complimented. Needless to say, but for their able assistance both in terms of oral argument as well
as written briefs (containing thorough submissions, variety of case law and the literature on the
subject), it was well nigh impossible to express the views.
..................................J.
[ABHAY MANOHAR SAPRE] New Delhi, August 24, 2017.

PETITION (CIVIL) NO. 494 OF 2012 JUSTICE K.S. PUTTASWAMY (RETD.), AND ANOTHER
PETITIONERS VS.
UNION OF INDIA AND OTHERS RESPONDENTS
WITH
T.C. (CIVIL) NO. 151 OF 2013
T.C. (CIVIL) NO. 152 OF 2013

W.P.(CIVIL)NO. 833 OF 2013
CONTEMPT PETITION (CIVIL) NO.144 OF 2014 IN W.P. (C) NO.494/2012 T.P. (CIVIL) NO. 313
OF 2014 T.P. (CIVIL) NO.312 OF 2014 S.L.P. (CRL.) NO.2524 OF 2014 W.P.(C) NO.37 OF 2015
W.P.(CIVIL) NO. 220 OF 2015 CONTEMPT PETITION (C) NO.674 OF 2015 IN W.P. (C) NO.829
OF 2013 T.P. (CIVIL) NO. 921/2015 CONTEMPT PETITION (C) NO.470 OF 2015 IN W.P.(C)
NO.494 OF 2012 CONTEMPT PETITION (C) NO.444 OF 2016 IN W.P. (C) NO.494 OF 2012
CONTEMPT PETITION (C) NO.608 OF 2016 IN W.P. (C) NO.494 OF 2012 W.P.(C) NO. 797 OF
2016 CONTEMPT PETITION (C) NO.844 OF 2017 IN W.P. (C) NO.494 OF 2012 AND W.P. (CIVIL)
NO. 000372 OF 2017 JUDGMENT SANJAY KISHAN KAUL, J
1. I have had the benefit of reading the exhaustive and erudite opinions of Rohinton F. Nariman, J,
and Dr. D.Y. Chandrachud, J. The conclusion is the same, answering the reference that privacy is
not just a common law right, but a fundamental right falling in Part III of the Constitution of India. I
agree with this conclusion as privacy is a primal, natural right which is inherent to an individual.
However, I am tempted to set out my perspective on the issue of privacy as a right, which to my
mind, is an important core of any individual existence.
2. A human being, from an individual existence, evolved into a social animal. Society thus envisaged
a collective living beyond the individual as a unit to what came to be known as the family. This, in
turn, imposed duties and obligations towards the society. The right to do as you please became
circumscribed by norms commonly acceptable to the larger social group. In time, the acceptable
norms evolved into formal legal principles.
3. The right to be, though not extinguished for an individual, as the society evolved, became hedged
in by the complexity of the norms. There has been a growing concern of the impact of technology
which breaches this right to be, or privacy by whatever name we may call it.
4. The importance of privacy may vary from person to person dependent on his/her approach to
society and his concern for being left alone or not. That some people do not attach importance to
their privacy cannot be the basis for denying recognition to the right to privacy as a basic human
right.
5. It is not India alone, but the world that recognises the right of privacy as a basic human right. The
Universal Declaration of Human Rights to which India is a signatory, recognises privacy as an
international human right.
6. The importance of this right to privacy cannot be diluted and the significance of this is that the
legal conundrum was debated and is to be settled in the present reference by a nine-Judges

Constitution Bench.
7. This reference has arisen from the challenge to what is called the Aadhar Card Scheme. On
account of earlier judicial pronouncements, there was a cleavage of opinions and to reconcile this
divergence of views, it became necessary for the reference to be made to a nine- Judges Bench.
8. It is nobodys case that privacy is not a valuable right, but the moot point is whether it is only a
common law right or achieves the status of a fundamental right under the Grundnorm the Indian
Constitution. We have been ably assisted by various senior counsels both for and against the
proposition as to whether privacy is a Constitutional right or not.
PRIVACY
9. In the words of Lord Action:
the sacred rights of mankind are not to be rummaged for among old parchments of
musty records. They are written, as with a sunbeam, in the whole volume of human
nature, by the hand of Divinity itself, and can never be obscured by mortal power1.
10. Privacy is an inherent right. It is thus not given, but already exists. It is about respecting an
individual and it is undesirable to ignore a persons wishes without a compelling reason to do so.
11. The right to privacy may have different aspects starting from the right to be let alone in the
famous article by Samuel Warren and Louis D. Brandeis 2 . One such aspect is an individuals right
to control dissemination of his personal information. There is nothing wrong in individuals limiting
access and their ability to shield from unwanted access. This aspect of the right to privacy has
assumed particular The History of Freedom and Other Essays (1907), p 587 The Right to Privacy 4
HLR 193 significance in this information age and in view of technological improvements. A
person-hood would be a protection of ones personality, individuality and dignity.3 However, no
right is unbridled and so is it with privacy. We live in a society/ community. Hence, restrictions arise
from the interests of the community, state and from those of others. Thus, it would be subject to
certain restrictions which I will revert to later.
PRIVACY & TECHNOLOGY
12. We are in an information age. With the growth and development of technology, more
information is now easily available. The information explosion has manifold advantages but also
some disadvantages. The access to information, which an individual may not want to give, needs the
protection of privacy.
The right to privacy is claimed qua the State and non-State actors. Recognition and enforcement of
claims qua non-state actors may require legislative intervention by the State. Daniel Solove, 10
Reasons Why Privacy Matters published on January 20, 2014
https://www.teachprivacy.com/10-reasons-privacy-matters/ A. Privacy Concerns Against The State

13. The growth and development of technology has created new instruments for the possible
invasion of privacy by the State, including through surveillance, profiling and data collection and
processing. Surveillance is not new, but technology has permitted surveillance in ways that are
unimaginable. Edward Snowden shocked the world with his disclosures about global surveillance.
States are utilizing technology in the most imaginative ways particularly in view of increasing global
terrorist attacks and heightened public safety concerns. One such technique being adopted by States
is profiling. The European Union Regulation of 20164 on data privacy defines Profiling as any form
of automated processing of personal data consisting of the use of personal data to evaluate certain
personal aspects relating to a natural person, in particular to analyse or predict aspects concerning
that natural person's performance at work, economic situation, health, personal preferences,
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free
movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)
interests, reliability, behaviour, location or movements5. Such profiling can result in discrimination
based on religion, ethnicity and caste. However, profiling can also be used to further public interest
and for the benefit of national security.
14. The security environment, not only in our country, but throughout the world makes the safety of
persons and the State a matter to be balanced against this right to privacy. B. Privacy Concerns
Against Non-State Actors
15. The capacity of non-State actors to invade the home and privacy has also been enhanced.
Technological development has facilitated journalism that is more intrusive than ever before.
16. Further, in this digital age, individuals are constantly generating valuable data which can be used
by non-State actors to track their moves, choices and preferences. Data is generated not just by
active sharing of information, but also passively, with every click on the world Regulation (EU)
2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of
natural persons with regard to the processing of personal data and on the free movement of such
data, and repealing Directive 95/46/EC (General Data Protection Regulation) wide web. We are
stated to be creating an equal amount of information every other day, as humanity created from the
beginning of recorded history to the year 2003 enabled by the world wide web.6
17. Recently, it was pointed out that Uber, the worlds largest taxi company, owns no vehicles.
Facebook, the worlds most popular media owner, creates no content. Alibaba, the most valuable
retailer, has no inventory. And Airbnb, the worlds largest accommodation provider, owns no real
estate. Something interesting is happening.7 Uber knows our whereabouts and the places we
frequent. Facebook at the least, knows who we are friends with. Alibaba knows our shopping habits.
Airbnb knows where we are travelling to. Social networks providers, search engines, e-mail service
providers, messaging applications are all further examples of non-state actors that have extensive
knowledge of our movements, financial transactions, conversations both personal and professional,
health, mental state, interest, travel locations, fares and shopping habits. As we move towards
becoming a digital economy Michael L. Rustad, SannaKulevska, Reconceptualizing the right to be
forgotten to enable transatlantic data flow, 28 Harv. J.L. & Tech. 349

https://techcrunch.com/2015/03/03/in-the-age-of-disintermediation-the-battle-is-all-for-the-customer-interface/
Tom Goodwin The Battle is for Customer Interface and increase our reliance on internet based
services, we are creating deeper and deeper digital footprints passively and actively.
18. These digital footprints and extensive data can be analyzed computationally to reveal patterns,
trends, and associations, especially relating to human behavior and interactions and hence, is
valuable information. This is the age of big data. The advancement in technology has created not
just new forms of data, but also new methods of analysing the data and has led to the discovery of
new uses for data. The algorithms are more effective and the computational power has magnified
exponentially. A large number of people would like to keep such search history private, but it rarely
remains private, and is collected, sold and analysed for purposes such as targeted advertising. Of
course, big data can also be used to further public interest. There may be cases where collection and
processing of big data is legitimate and proportionate, despite being invasive of privacy otherwise.
19. Knowledge about a person gives a power over that person. The personal data collected is capable
of effecting representations, influencing decision making processes and shaping behaviour. It can be
used as a tool to exercise control over us like the big brother State exercised. This can have a
stultifying effect on the expression of dissent and difference of opinion, which no democracy can
afford.
20. Thus, there is an unprecedented need for regulation regarding the extent to which such
information can be stored, processed and used by non-state actors. There is also a need for
protection of such information from the State. Our Government was successful in compelling
Blackberry to give to it the ability to intercept data sent over Blackberry devices. While such
interception may be desirable and permissible in order to ensure national security, it cannot be
unregulated.8
21. The concept of invasion of privacy is not the early conventional thought process of poking ones
nose in another persons affairs. It is not so simplistic. In todays world, privacy is a limit on the
governments power as well as the power of private sector entities.9 Kadhim Shubber, Blackberry
gives Indian Government ability to intercept messages published by Wired on 11 July, 2013
http://www.wired.co.uk/article/blackberry-india Daniel Solove, 10 Reasons Why Privacy Matters
published on January 20, 2014 https://www.teachprivacy.com/10-reasons-privacy-matters/
22. George Orwell created a fictional State in Nineteen Eighty-Four. Today, it can be a reality. The
technological development today can enable not only the state, but also big corporations and private
entities to be the big brother.
The Constitution of India - A Living Document
23. The Constitutional jurisprudence of all democracies in the world, in some way or the other, refer
to the brooding spirit of the law, the collective conscience, the intelligence of a future day, the
heaven of freedom , etc. The spirit is justice for all, being the cherished value.

24. This spirit displays many qualities, and has myriad ways of expressing herself at times she was
liberty, at times dignity. She was equality, she was fraternity, reasonableness and fairness. She was
in Athens during the formative years of the demoscratos and she manifested herself in England as
the Magna Carta. Her presence was felt in France during the Revolution, in America when it was
being founded and in South Africa during the times of Mandela.
25. In our country, she inspired our founding fathers The Sovereign, Socialist, Secular Democratic
Republic of India was founded on her very spirit.
26. During the times of the Constituent Assembly, the great intellectuals of the day sought to give
this brooding spirit a form, and sought to invoke her in a manner that they felt could be understood,
applied and interpreted they drafted the Indian Constitution.
27. In it they poured her essence, and gave to her a grand throne in Part III of the Indian
Constitution.
28. The document that they created had her everlasting blessings, every part of the Constitution
resonates with the spirit of Justice and what it stands for: peaceful, harmonious and orderly social
living. The Constitution stands as a codified representation of the great spirit of Justice itself. It is
because it represents that Supreme Goodness that it has been conferred the status of the
Grundnorm, that it is the Supreme Legal Document in the country.
29. The Constitution was not drafted for a specific time period or for a certain generation, it was
drafted to stand firm, for eternity. It sought to create a Montesquian framework that would endear
in both war time and in peace time and in Ambedkars famous words, if things go wrong under the
new Constitution the reason will not be that we had a bad Constitution. What we will have to say is
that Man was vile.10
30. It has already outlived its makers, and will continue to outlive our generation, because it
contains within its core, a set of undefinable values and ideals that are eternal in nature. It is
because it houses these values so cherished by mankind that it lives for eternity, as a Divine
Chiranjeevi.
31. The Constitution, importantly, was also drafted for the purpose of assisting and at all times
supporting this peaceful, harmonious and orderly social living. The Constitution thus lives for the
people. Its deepest wishes are that civil society flourishes and there is a peaceful social order. Any
change in the sentiments of the people are recognised by it. It seeks to incorporate within its fold all
possible civil rights which existed in the past, and those rights which may appear on the horizon of
the future. It endears. The Constitution was never intended to serve as a means to stifle the
protection of the valuable rights of its citizens. Its aim and purpose was completely the opposite.
Dhananjay Keer, Dr.Ambedkar: Life and Mission, Bombay: Popular Prakashan, 1971 [1954], p.410.)

32. The founders of the Constitution, were aware of the fact that the Constitution would need
alteration to keep up with the mores and trends of the age. This was precisely the reason that an
unrestricted amending power was sought to be incorporated in the text of the Constitution in Part
20 under Article 368. The very incorporation of such a plenary power in a separate part altogether is
prima facie proof that the Constitution, even during the times of its making was intended to be a
timeless document, eternal in nature, organic and living.
33. Therefore, the theory of original intent itself supports the stand that the original intention of the
makers of the Constitutional was to ensure that it does not get weighed down by the originalist
interpretations/remain static/fossilised, but changes and evolves to suit the felt need of the times.
The original intention theory itself contemplates a Constitution which is organic in nature.
34. The then Chief Justice of India, Patanjali Sastri, in the State of West Bengal vs. Anwar Ali
Sarkar11 observed as follows:
90. I find it impossible to read these portions of the Constitution without regard to the background
out of which AIR 1952 SCR 284 they arose. I cannot blot out their history and omit from
consideration the brooding spirit of the times. They are not just dull, lifeless words static and
hide-bound as in some mummified manuscript, but, living flames intended to give life to a great
nation and order its being, tongues of dynamic fire, potent to mould the future as well as guide the
present. The Constitution must, in my judgment, be left elastic enough to meet from time to time the
altering conditions of a changing world with its shifting emphasis and differing needs.
35. How the Constitution should be read and interpreted is best found in the words of Khanna,J., in
Kesavananda Bharati v. State of Kerala12 as follows:
1437. . A Constitution is essentially different from pleadings filed in Court of litigating

parties. Pleadings contain claim and counter-claim of private parties engaged in
litigation, while a Constitution provides for the framework of the different organs of
the State viz. the executive, the legislature and the judiciary. A Constitution also
reflects the hopes and aspirations of a people. Besides laying down the norms for the
functioning of different organs a Constitution encompasses within itself the broad
indications as to how the nation is to march forward in times to come. A Constitution
cannot be regarded as a mere legal document to be read as a will or an agreement nor
is Constitution like a plaint or written statement filed in a suit between two litigants.
A Constitution must of necessity be the vehicle of the life of a nation. It has also to be
borne in mind that a Constitution is not a gate but a (1973) 4 SCC 225 road. Beneath
the drafting of a Constitution is the awareness that things do not stand still but move
on, that life of a progressive nation, as of an individual, is not static and stagnant but
dynamic and dashful. A Constitution must therefore contain ample provision for
experiment and trial in the task of administration.
A Constitution, it needs to be emphasised, is not a document for fastidious dialectics but the means
of ordering the life of a people. It had (sic) its roots in the past, its continuity is reflected in the

present and it is intended for the unknown future. The words of Holmes while dealing with the U.S.
Constitution have equal relevance for our Constitution. Said the great Judge: the provisions of the
Constitution are not mathematical formulas having their essence in their form; they are organic
living institutions transplanted from English soil. Their significance is vital not formal; it is to be
gathered not simply by taking the words and a dictionary, but by considering their origin and the
line of their growth. [See Gompers v. United States, 233 U.S. 604, 610 (1914)]. It is necessary to
keep in view Marshall's great premises that It is a Constitution we are expounding. To quote the
words of Felix Frankfurter in his tribute to Holmes: Whether the Constitution is treated primarily as
a text for interpretation or as an instrument of Government may make all the difference in the word.
The fate of cases, and thereby of legislation, will turn on whether the meaning of the document is
derived from itself or from one's conception of the country, its development, its needs, its place in a
civilized society. (See Mr Justice Holmes edited by Felix Frankfurter, p. 58). (Emphasis supplied)
36. In the same judgment, K.K. Mathew, J., observed :
1563 ... That the Constitution is a framework of great governmental powers to be

exercised for great public ends in the future, is not a pale intellectual concept but a
dynamic idea which must dominate in any consideration of the width of the
amending power. No existing Constitution has reached its final form and shape and
become, as it were a fixed thing incapable of further growth. Human societies keep
changing; needs emerge, first vaguely felt and unexpressed, imperceptibly gathering
strength, steadily becoming more and more exigent, generating a force which, if left
unheeded and denied response so as to satisfy the impulse behind it, may burst
forthwith an intensity that exacts more than reasonable satisfaction. [See Felix
Frankfurter, of Law and Men, p 35] As Wilson said, a living Constitution must be
Darwinian in structure and practice. [See Constitutional Government in The United
States, p 25] The Constitution of a nation is the outward and visible manifestation of
the life of the people and it must respond to the deep pulsation for change within. A
Constitution is an experiment as all life is an experiment. [See Justice Holmes in
Abrams v United States, 250 US 616]
37. In the context of the necessity of the doctrine of flexibility while dealing with the Constitution, it
was observed in Union of India vs. Naveen Jindal13 :
39. Constitution being a living organ, its ongoing interpretation is permissible. The
supremacy of the Constitution is essential to bring social changes in the national
polity evolved with the passage of time.
(2004) 2 SCC 510
40. Interpretation of the Constitution is a difficult task. While doing so, the Constitutional courts are
not only required to take into consideration their own experience over the time, the international
treaties and covenants but also keeping the doctrine of flexibility in mind. This Court times without
number has extended the scope and extent of the provisions of the fundamental rights, having

regard to several factors including the intent and purport of the Constitution-makers as reflected in
Parts IV and IV-A of the Constitution of India.
38. The document itself, though inked in a parched paper of timeless value, never grows old. Its
ideals and values forever stay young and energetic, forever changing with the times. It represents
the pulse and soul of the nation and like a phoenix, grows and evolves, but at the same time remains
young and malleable.
39. The notions of goodness, fairness, equality and dignity can never be satisfactorily defined, they
can only be experienced. They are felt. They were let abstract for the reason that these rights, by
their very nature, are not static. They can never be certainly defined or applied, for they change not
only with time, but also with situations. The same concept can be differently understood, applied
and interpreted and therein lies their beauty and their importance. This multiplicity of
interpretation and application is the very core which allows them to be differently understood and
applied in changing social and cultural situations.
40. Therefore, these core values, these core principles, are all various facets of the spirit that
pervades our Constitution and they apply and read differently in various scenarios. They manifest
themselves differently in different ages, situations and conditions. Though being rooted in ancient
Constitutional principles, they find mention and applicability as different rights and social
privileges. They appear differently, based on the factual circumstance. Privacy, for example is
nothing but a form of dignity, which itself is a subset of liberty.
41. Thus, from the one great tree, there are branches, and from these branches there are
sub-branches and leaves. Every one of these leaves are rights, all tracing back to the tree of justice.
They are all equally important and of equal need in the great social order. They together form part of
that great brooding spirit. Denial of one of them is the denial of the whole, for these rights, in
manner of speaking, fertilise and nurture each other.
42. What is beautiful in this biological, organic growth is this: While the tree appears to be great and
magnificent, apparently incapable of further growth, there are always new branches appearing, new
leaves and buds growing. These new rights, are the rights of future generations that evolve over the
passage of time to suit and facilitate the civility of posterity. They are equally part of this tree of
rights and equally trace their origins to those natural rights which we are all born with. These leaves,
sprout and grow with the passage of time, just as certain rights may get weeded out due to natural
evolution.
43. At this juncture of time, we are incapable and it is nigh impossible to anticipate and foresee what
these new buds may be. There can be no certainty in making this prediction. However, what remains
certain is that there will indeed be a continual growth of the great tree that we call the Constitution.
This beautiful aspect of the document is what makes it organic, dynamic, young and everlasting.
And it is important that the tree grows further, for the Republic finds a shade under its branches.

44. The challenges to protect privacy have increased manifold. The observations made in the context
of the need for law to change, by Bhagwati, J., as he then was, in National Textile Workers Union Vs.
P.R. Ramakrishnan would equally apply to the requirements of interpretation of the Constitution in
the present context:
We cannot allow the dead hand of the past to stifle the growth of the living present.
Law cannot stand still; it must change with the changing social concepts and values.
If the bark that protects the tree fails to grow and expand along with the tree, it will
either choke the tree or if it is a living tree, it will shed that bark and grow a new
living bark for itself. Similarly, if the law fails to respond to the needs of changing
society, then either it will stifle the growth of the society and choke its progress or if
the society is vigorous enough, it will cast away the law which stands in the way of its
growth. Law must therefore constantly be on the move adapting itself to the
fast-changing society and not lag behind.
45. It is wrong to consider that the concept of the supervening spirit of justice manifesting in
different forms to cure the evils of a new age is unknown to Indian history. Lord Shri Krishna
declared in Chapter 4 Text 8 of The Bhagavad Gita thus:
! ||
(1983) 1 SCC 228
46. The meaning of this profound statement, when viewed after a thousand generations is this: That
each age and each generation brings with it the challenges and tribulations of the times. But that
Supreme spirit of Justice manifests itself in different eras, in different continents and in different
social situations, as different values to ensure that there always exists the protection and
preservation of certain eternally cherished rights and ideals. It is a reflection of this divine Brooding
spirit of the law, the collective conscience, the intelligence of a future day that has found mention in
the ideals enshrined in inter- alia, Article 14 and 21, which together serve as the heart stones of the
Constitution. The spirit that finds enshrinement in these articles manifests and reincarnates itself in
ways and forms that protect the needs of the society in various ages, as the values of liberty, equality,
fraternity, dignity, and various other Constitutional values, Constitutional principles. It always
grows stronger and covers within its sweep the great needs of the times. This spirit can neither
remain dormant nor static and can never be allowed to fossilise.
47. An issue like privacy could never have been anticipated to acquire such a level of importance
when the Constitution was being contemplated. Yet, today, the times we live in necessitate that it be
recognised not only as a valuable right, but as a right Fundamental in Constitutional jurisprudence.

48. There are sure to be times in the future, similar to our experience today, perhaps as close as 10
years from today or as far off as a 100 years, when we will debate and deliberate whether a certain
right is fundamental or not. At that time it must be understood that the Constitution was always
meant to be an accommodative and all-encompassing document, framed to cover in its fold all those
rights that are most deeply cherished and required for a peaceful, harmonious and orderly social
living.
49. The Constitution and its all-encompassing spirit forever grows, but never ages.
Privacy is essential to liberty and dignity
50. Rohinton F. Nariman, J., and Dr. D.Y. Chandrachud J., have emphasized the importance of the
protection of privacy to ensure protection of liberty and dignity. I agree with them and seek to refer
to some legal observations in this regard:
In Robertson and Nicol on Media Law15 it was observed:
Individuals have a psychological need to preserve an intrusion-free zone for their

personality and family and suffer anguish and stress when that zone is violated.
Democratic societies must protect privacy as part of their facilitation of individual
freedom, and offer some legal support for the individual choice as to what aspects of
intimate personal life the citizen is prepared to share with others. This freedom in
other words springs from the same source as freedom of expression: a liberty that
enhances individual life in a democratic community.
51. Lord Nicholls and Lord Hoffmann in their opinion in Naomi Campbells case16
recognized the importance of the protection of privacy.
Lord Hoffman opined as under:
50. What human rights law has done is to identify private information as something
worth protecting as an aspect of human autonomy and dignity. And this recognition
has raised inescapably the question of why it should be worth protecting against the
state but not against a private person. There may of course be justifications for the
publication of private information by private persons which would not be available to
the state - I have particularly in mind the position of the media, to which I shall
return in a moment - but I can see no logical ground for saying that a person should
have less protection against a private individual than he would have against the state
for the Geoffrey Robertson, QC and Andrew Nicol, QC, Media Law fifth edition p. 265
Campbell V. MGN Ltd.2004 UKHL 22 publication of personal information for which
there is no justification. Nor, it appears, have any of the other judges who have
considered the matter.

51. The result of these developments has been a shift in the centre of gravity of the
action for breach of confidence when it is used as a remedy for the unjustified
publication of personal information. . Instead of the cause of action being based upon
the duty of good faith applicable to confidential personal information and trade
secrets alike, it focuses upon the protection of human autonomy and dignity - the
right to control the dissemination of information about one's private life and the right
to the esteem and respect of other people. Lord Nicholls opined as under:
12. The present case concerns one aspect of invasion of privacy: wrongful disclosure
of private information. The case involves the familiar competition between freedom
of expression and respect for an individual's privacy. Both are vitally important
rights. Neither has precedence over the other. The importance of freedom of
expression has been stressed often and eloquently, the importance of privacy less so.
But it, too, lies at the heart of liberty in a modern state. A proper degree of privacy is
essential for the well- being and development of an individual. And restraints
imposed on government to pry into the lives of the citizen go to the essence of a
democratic state: see La Forest J in R v Dymont [1988] 2 SCR 417, 426.
52. Privacy is also the key to freedom of thought. A person has a right to think. The thoughts are
sometimes translated into speech but confined to the person to whom it is made. For example, one
may want to criticize someone but not share the criticism with the world. Privacy Right To Control
Information
53. I had earlier adverted to an aspect of privacy the right to control dissemination of personal
information. The boundaries that people establish from others in society are not only physical but
also informational. There are different kinds of boundaries in respect to different relations. Privacy
assists in preventing awkward social situations and reducing social frictions. Most of the
information about individuals can fall under the phrase none of your business. On information
being shared voluntarily, the same may be said to be in confidence and any breach of confidentiality
is a breach of the trust. This is more so in the professional relationships such as with doctors and
lawyers which requires an element of candor in disclosure of information. An individual has the
right to control ones life while submitting personal data for various facilities and services. It is but
essential that the individual knows as to what the data is being used for with the ability to correct
and amend it. The hallmark of freedom in a democracy is having the autonomy and control over our
lives which becomes impossible, if important decisions are made in secret without our awareness or
participation.17
54. Dr. D.Y. Chandrachud, J., notes that recognizing a zone of privacy is but an acknowledgement
that each individual must be entitled to chart and pursue the course of development of their
personality. Rohinton F. Nariman,J., recognizes informational privacy which recognizes that an
individual may have control over the dissemination of material which is personal to him.
Recognized thus, from the right to privacy in this modern age emanate certain other rights such as
the right of individuals to exclusively commercially exploit their identity and personal information,
to control the information that is available about them on the world wide web and to disseminate

certain personal information for limited purposes alone.
55. Samuel Warren and Louis Brandeis in 1890 expressed the belief that an individual should
control the degree and type of private personal information that is made public :
Daniel Solove, 10 Reasons Why Privacy Matters published on January 20, 2014
https://www.teachprivacy.com/10-reasons-privacy-matters/ The common law secures to each
individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and
emotions shall be communicated to others.... It is immaterial whether it be by word or by signs, in
painting, by sculpture, or in music.... In every such case the individual is entitled to decide whether
that which is his shall be given to the public. This formulation of the right to privacy has particular
relevance in todays information and digital age.
56. An individual has a right to protect his reputation from being unfairly harmed and such
protection of reputation needs to exist not only against falsehood but also certain truths. It cannot
be said that a more accurate judgment about people can be facilitated by knowing private details
about their lives people judge us badly, they judge us in haste, they judge out of context, they judge
without hearing the whole story and they judge with hypocrisy. Privacy lets people protect
themselves from these troublesome judgments18.
57. There is no justification for making all truthful information available to the public. The public
does not have an interest in knowing Daniel Solove, 10 Reasons Why Privacy Matters published on
January 20, 2014 https://www.teachprivacy.com/10-reasons-privacy-matters/ all information that
is true. Which celebrity has had sexual relationships with whom might be of interest to the public
but has no element of public interest and may therefore be a breach of privacy.19 Thus, truthful
information that breaches privacy may also require protection.
58. Every individual should have a right to be able to exercise control over his/her own life and
image as portrayed to the world and to control commercial use of his/her identity. This also means
that an individual may be permitted to prevent others from using his image, name and other aspects
of his/her personal life and identity for commercial purposes without his/her consent.20
59. Aside from the economic justifications for such a right, it is also justified as protecting individual
autonomy and personal dignity. The right protects an individuals free, personal conception of the
self. The right of publicity implicates a persons interest in autonomous self- The UK Courts granted
in super-injunctions to protect privacy of certain celebrities by tabloids which meant that not only
could the private information not be published but the very fact of existence of that case &
injunction could also not be published.
The Second Circuits decision in Haelan Laboratories v. Topps Chewing Gum. 202 F.2d 866 (2d Cir.
1953) penned by Judge Jerome Frank defined the right to publicity as the right to grant the
exclusive privilege of publishing his picture.

definition, which prevents others from interfering with the meanings and values that the public
associates with her.21
60. Prosser categorized the invasion of privacy into four separate torts22:
1) Unreasonable intrusion upon the seclusion of another;
2) Appropriation of anothers name or likeness;
3) Unreasonable publicity given to the others private life; and
4) Publicity that unreasonably places the other in a false light before the public From the second
tort, the U.S. has adopted a right to publicity.23
61. In the poetic words of Felicia Lamport mentioned in the book The Assault on Privacy24 :
DEPRIVACY Although we feel unknown, ignored As unrecorded blanks, Take heart!

Our vital selves are stored In giant data banks, Our childhoods and maturities,
Efficiently compiled, Our Stocks and insecurities, All permanently filed, Mark P.
McKenna, The Right of Publicity and Autonomous Self-Definition, 67 U. PITT. L.
REV. 225, 282 (2005).
William L. Prosser, Privacy, 48 CAL. L. REV. 383 (1960) the scope of the right to publicity varies
across States in the U.S. Arthur R. Miller, The University of Michigan Press Our tastes and our
proclivities, In gross and in particular, Our incomes, our activities Both extra-and curricular.
And such will be our happy state Until the day we die When well be snatched up by the great
Computer in the Sky INFORMATIONAL PRIVACY
62. The right of an individual to exercise control over his personal data and to be able to control
his/her own life would also encompass his right to control his existence on the internet. Needless to
say that this would not be an absolute right.The existence of such a right does not imply that a
criminal can obliterate his past, but that there are variant degrees of mistakes, small and big, and it
cannot be said that a person should be profiled to the nth extent for all and sundry to know.
63. A high school teacher was fired after posting on her Facebook page that she was so not looking
forward to another [school] year since that the school districts residents were arrogant and snobby.
A flight attended was fired for posting suggestive photos of herself in the companys uniform.25 In
the pre-digital era, such incidents would have never occurred. People could then make mistakes and
embarrass themselves, with the comfort that the information will be typically forgotten over time.
64. The impact of the digital age results in information on the internet being permanent. Humans
forget, but the internet does not forget and does not let humans forget. Any endeavour to remove
information from the internet does not result in its absolute obliteration. The foot prints remain. It

is thus, said that in the digital world preservation is the norm and forgetting a struggle26.
65. The technology results almost in a sort of a permanent storage in some way or the other making
it difficult to begin life again giving up past mistakes. People are not static, they change and grow
through their lives. They evolve. They make mistakes. But they are entitled to re-invent themselves
and reform and correct their mistakes. It is Patricia Sánchez Abril, Blurred Boundaries: Social
Media Privacy and the Twenty-First-Century Employee, 49 AM. BUS. L.J. 63, 69 (2012).
Ravi Antani, THE RESISTANCE OF MEMORY : COULD THE EUROPEAN UNIONS RIGHT TO BE
FORGOTTEN EXIST IN THE UNITED STATES ?
privacy which nurtures this ability and removes the shackles of unadvisable things
which may have been done in the past.
66. Children around the world create perpetual digital footprints on social network
websites on a 24/7 basis as they learn their ABCs:
Apple, Bluetooth, and Chat followed by Download, E-Mail, Facebook, Google,

Hotmail, and Instagram.27 They should not be subjected to the consequences of their
childish mistakes and naivety, their entire life.
Privacy of children will require special protection not just in the context of the virtual
world, but also the real world.
67. People change and an individual should be able to determine the path of his life
and not be stuck only on a path of which he/she treaded initially. An individual
should have the capacity to change his/her beliefs and evolve as a person. Individuals
should not live in fear that the views they expressed will forever be associated with
them and thus refrain from expressing themselves.
Michael L. Rustad, Sanna Kulevska, Reconceptualizing the right to be forgotten to enable

transatlantic data flow, 28 Harv. J.L. & Tech. 349
68. Whereas this right to control dissemination of personal information in the physical and virtual
space should not amount to a right of total eraser of history, this right, as a part of the larger right of
privacy, has to be balanced against other fundamental rights like the freedom of expression, or
freedom of media, fundamental to a democratic society.
69. Thus, The European Union Regulation of 201628 has recognized what has been termed as the
right to be forgotten. This does not mean that all aspects of earlier existence are to be obliterated, as
some may have a social ramification. If we were to recognize a similar right, it would only mean that
an individual who is no longer desirous of his personal data to be processed or stored, should be able
to remove it from the system where the personal data/ information is no longer necessary, relevant,
or is incorrect and serves no legitimate interest. Such a right cannot be exercised where the

information/ data is necessary, for exercising the right of freedom of expression and information,
for compliance with legal obligations, for the Supra performance of a task carried out in public
interest, on the grounds of public interest in the area of public health, for archiving purposes in the
public interest, scientific or historical research purposes or statistical purposes, or for the
establishment, exercise or defence of legal claims. Such justifications would be valid in all cases of
breach of privacy, including breaches of data privacy.
Data Regulation
70. I agree with Dr. D.Y. Chandrachud, J., that formulation of data protection is a complex exercise
which needs to be undertaken by the State after a careful balancing of privacy concerns and
legitimate State interests, including public benefit arising from scientific and historical research
based on data collected and processed. The European Union Regulation of 201629 of the European
Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to
the processing of personal data and on the free movement of such data may provide useful guidance
in this regard. The State must ensure that Supra information is not used without the consent of
users and that it is used for the purpose and to the extent it was disclosed. Thus, for e.g. , if the
posting on social media websites is meant only for a certain audience, which is possible as per tools
available, then it cannot be said that all and sundry in public have a right to somehow access that
information and make use of it.
Test: Principle of Proportionality and Legitimacy
71. The concerns expressed on behalf of the petitioners arising from the possibility of the State
infringing the right to privacy can be met by the test suggested for limiting the discretion of the
State: (i) The action must be sanctioned by law;
(ii) The proposed action must be necessary in a democratic society for a legitimate aim;
(iii) The extent of such interference must be proportionate to the need for such interference;
(iv) There must be procedural guarantees against abuse of such interference. The Restrictions
72. The right to privacy as already observed is not absolute. The right to privacy as falling in part III
of the Constitution may, depending on its variable facts, vest in one part or the other, and would
thus be subject to the restrictions of exercise of that particular fundamental right. National security
would thus be an obvious restriction, so would the provisos to different fundamental rights,
dependent on where the right to privacy would arise. The Public interest element would be another
aspect.
73. It would be useful to turn to The European Union Regulation of 201630 . Restrictions of the
right to privacy may be justifiable in the following circumstances subject to the principle of
proportionality:

(a) Other fundamental rights: The right to privacy must be considered in relation to
its function in society and be balanced against other fundamental rights.
(b) Legitimate national security interest
(c) Public interest including scientific or historical research purposes or statistical purposes Supra
(d) Criminal Offences: the need of the competent authorities for prevention investigation,
prosecution of criminal offences including safeguards against threat to public security;
(e) The unidentifiable data: the information does not relate to identifiedor identifiable natural
person but remains anonymous. The European Union Regulation of 2016 31 refers to
pseudonymisation which means the processing of personal data in such a manner that the personal
data can no longer be attributed to a specific data subject without the use of additional information,
provided that such additional information is kept separately and is subject to technical and
organisational measures to ensure that the personal data are not attributed to an identified or
identifiable natural person;
(f) The tax etc: the regulatory framework of tax and working of financial institutions, markets may
require disclosure of private information. But then this would not entitle the disclosure of the
information to all and sundry and there should be data protection rules according to the objectives
of the processing. There may however, be processing which is compatible for the purposes for which
it is initially collected.
Report of Group of Experts on Privacy
74. It is not as if the aspect of privacy has not met with concerns. The Planning Commission of India
constituted the Group of Experts on Privacy Supra under the Chairmanship of Justice A.P. Shah,
which submitted a report on 16 October, 2012. The five salient features, in his own words, are as
follows:
1. Technological Neutrality and Interoperability with International Standards: The

Group agreed that any proposed framework for privacy legislation must be
technologically neutral and interoperable with international standards. Specifically
the Privacy Act should not make any reference to specific technologies and must be
generic enough such that the principles and enforcement mechanisms remain
adaptable to changes in society, the marketplace, technology, and the government. To
do this it is important to closely harmonise the right to privacy with multiple
international regimes, create trust and facilitate cooperation between national and
international stakeholders and provide equal and adequate levels of protection to
data processed inside India as well as outside it. In doing so, the framework should
recognise that data has economic value, and that global data flows generate value for
the individual as data creator, and for businesses that collect and process such data.
Thus, one of the focuses of the framework should be on inspiring the trust of global

clients and their end users, without compromising the interests of domestic
customers in enhancing their privacy protection.
2. Multi-Dimensional Privacy: This report recognises the right to privacy in its multiple dimensions.
A framework on the right to privacy in India must include privacy-related concerns around data
protection on the internet and challenges emerging therefrom, appropriate protection from
unauthorised interception, audio and video surveillance, use of personal identifiers, bodily privacy
including DNA as well as physical privacy, which are crucial in establishing a national ethos for
privacy protection, though the specific forms such protection will take must remain flexible to
address new and emerging concerns.
3. Horizontal Applicability: The Group agreed that any proposed privacy legislation must apply both
to the government as well as to the private sector. Given that the international trend is towards a set
of unified norms governing both the private and public sector, and both sectors process large
amounts of data in India, it is imperative to bring both within the purview of the proposed
legislation.
4. Conformity with Privacy Principles: This report recommends nine fundamental Privacy Principles
to form the bedrock of the proposed Privacy Act in India. These principles, drawn from best
practices internationally, and adapted suitably to an Indian context, are intended to provide the
baseline level of privacy protection to all individual data subjects. The fundamental philosophy
underlining the principles is the need to hold the data controller accountable for the collection,
processing and use to which the data is put thereby ensuring that the privacy of the data subject is
guaranteed.
5. Co-Regulatory Enforcement Regime: This report recommends the establishment of the office of
the Privacy Commissioner, both at the central and regional levels. The Privacy Commissioners shall
be the primary authority for enforcement of the provisions of the Act. However, rather than
prescribe a pure top-down approach to enforcement, this report recommends a system of
co-regulation, with equal emphasis on Self-Regulating Organisations (SROs) being vested with the
responsibility of autonomously ensuring compliance with the Act, subject to regular oversight by the
Privacy Commissioners. The SROs, apart from possessing industry-specific knowledge, will also be
better placed to create awareness about the right to privacy and explaining the sensitivities of
privacy protection both within industry as well as to the public in respective sectors. This
recommendation of a co-regulatory regime will not derogate from the powers of courts which will be
available as a forum of last resort in case of persistent and unresolved violations of the Privacy Act.
75. The enactment of a law on the subject is still awaited. This was preceded by the Privacy Bill of
the year of 2005 but there appears to have been little progress. It was only in the course of the
hearing that we were presented with an office memorandum of the Ministry of Electronics and
Information Technology dated 31.7.2017, through which a Committee of Experts had been
constituted to deliberate on a data protection framework for India, under the Chairmanship of Mr.
Justice B.N. Srikrishna, former Judge of the Supreme Court of India, in order to identify key data
protection issues in India and recommend methods of addressing them. So there is hope !

76. The aforesaid aspect has been referred to for purposes that the concerns about privacy have been
left unattended for quite some time and thus an infringement of the right of privacy cannot be left to
be formulated by the legislature. It is a primal natural right which is only being recognized as a
fundamental right falling in part III of the Constitution of India.
CONCLUSION
77. The right of privacy is a fundamental right. It is a right which protects the inner sphere of the
individual from interference from both State, and non-State actors and allows the individuals to
make autonomous life choices.
78. It was rightly expressed on behalf of the petitioners that the technology has made it possible to
enter a citizens house without knocking at his/her door and this is equally possible both by the State
and non-State actors. It is an individuals choice as to who enters his house, how he lives and in what
relationship. The privacy of the home must protect the family, marriage, procreation and sexual
orientation which are all important aspects of dignity.
79. If the individual permits someone to enter the house it does not mean that others can enter the
house. The only check and balance is that it should not harm the other individual or affect his or her
rights. This applies both to the physical form and to technology. In an era where there are wide,
varied, social and cultural norms and more so in a country like ours which prides itself on its
diversity, privacy is one of the most important rights to be protected both against State and
non-State actors and be recognized as a fundamental right. How it thereafter works out in its
inter-play with other fundamental rights and when such restrictions would become necessary would
depend on the factual matrix of each case. That it may give rise to more litigation can hardly be the
reason not to recognize this important, natural, primordial right as a fundamental right.
80. There are two aspects of the opinion of Dr. D.Y. Chandrachud,J., one of which is common to the
opinion of Rohinton F. Nariman,J., needing specific mention. While considering the evolution of
Constitutional jurisprudence on the right of privacy he has referred to the judgment in Suresh
Kumar Koushal Vs. Naz Foundation.32 In the challenge laid to Section 377 of the Indian Penal Code
before the Delhi High Court, one of the grounds of challenge was that the said provision amounted
to an infringement of the right to dignity and privacy. The Delhi High Court, inter alia, observed that
the right to live with dignity and the right of privacy both are recognized as dimensions of Article 21
of the Constitution of India. The view of the High Court, however did not find (2014) 1 SCC 1 favour
with the Supreme Court and it was observed that only a miniscule fraction of the countrys
population constitutes lesbians, gays, bisexuals or transgenders and thus, there cannot be any basis
for declaring the Section ultra virus of provisions of Articles 14, 15 and 21 of the Constitution. The
matter did not rest at this, as the issue of privacy and dignity discussed by the High Court was also
observed upon. The sexual orientation even within the four walls of the house thus became an aspect
of debate. I am in agreement with the view of Dr. D.Y. Chandrachud, J., who in paragraphs 123 &
124 of his judgment, states that the right of privacy cannot be denied, even if there is a miniscule
fraction of the population which is affected. The majoritarian concept does not apply to
Constitutional rights and the Courts are often called up on to take what may be categorized as a

non-majoritarian view, in the check and balance of power envisaged under the Constitution of India.
Ones sexual orientation is undoubtedly an attribute of privacy. The observations made in Mosley vs.
News Group Papers Ltd. 33, in a broader concept may be usefully referred to:
(2008) EWHS 1777 (QB) 130 It is not simply a matter of personal privacy versus the public interest.
The modern perception is that there is a public interest in respecting personal privacy. It is thus a
question of taking account of conflicting public interest considerations and evaluating them
according to increasingly well recognized criteria.
131. When the courts identify an infringement of a persons Article 8 rights, and in particular in the
context of his freedom to conduct his sex life and personal relationships as he wishes, it is right to
afford a remedy and to vindicate that right. The only permitted exception is where there is a
countervailing public interest which in the particular circumstances is strong enough to outweigh it;
that is to say, because one at least of the established limiting principles comes into play. Was it
necessary and proportionate for the intrusion to take place, for example, in order to expose illegal
activity or to prevent the public from being significantly misled by public claims hitherto made by
the individual concerned (as with Naomi Campbells public denials of drug-taking)? Or was it
necessary because the information, in the words of the Strasbourg court in Von Hannover at (60)
and (76), would make a contribution to a debate of general interest? That is, of course, a very high
test, it is yet to be determined how far that doctrine will be taken in the courts of this jurisdiction in
relation to photography in public places. If taken literally, it would mean a very significant change in
what is permitted. It would have a profound effect on the tabloid and celebrity culture to which we
have become accustomed in recent years.
81. It is not necessary to delve into this issue further, other than in the context of privacy as that
would be an issue to be debated before the appropriate Bench, the matter having been referred to a
larger Bench.
82. The second aspect is the discussion in respect of the majority judgment in the case of ADM
Jabalpur vs. Shivkant Shukla34 in both the opinions. In I.R. Coelho Vs. The State of Tamil Nadu35
it was observed that the ADM Jabalpur case has been impliedly overruled and that the supervening
event was the 44th Amendment to the Constitution, amending Article 359 of the Constitution. I fully
agree with the view expressly overruling the ADM Jabalpur case which was an aberration in the
constitutional jurisprudence of our country and the desirability of burying the majority opinion ten
fathom deep, with no chance of resurrection.
83. Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in
part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part.
This is the call of today. The old order changeth yielding place to new.
..J.
(SANJAY KISHAN KAUL) New Delhi August 24 , 2017.

(1976) 2 SCC 521 (2007) 2 SCC 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL
ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO 494 OF 2012 JUSTICE
K.S.PUTTASWAMY (RETD.), AND ANR. ..Petitioners VERSUS UNION OF INDIA AND ORS.
..Respondents WITH T.C. (CIVIL) NO 151 OF 2013 T.C. (CIVIL) NO 152 OF 2013 W.P.(CIVIL) NO
833 OF 2013 W.P.(CIVIL) NO 829 OF 2013 W.P.(CIVIL) NO 932 OF 2013 CONMT. PET. (CIVIL)
NO 144 OF 2014 IN W.P.(C)NO.494/2012 T.P.(CIVIL) NO 313 OF 2014 T.P.(CIVIL) NO 312 OF
2014 S.L.P(CRL.)NO.2524/2014 W.P.(CIVIL)NO.37/2015 W.P.(CIVIL)NO.220/2015 CONMT. PET.
(C)NO.674/2015 IN W.P.(C)NO.829/2013 T.P.(CIVIL)NO.921/2015 CONMT.PET.(C)NO.470/2015
IN W.P.(C)NO.494/2012 CONMT.PET.(C)NO.444/2016 IN W.P.(C)NO.494/2012
CONMT.PET.(C)NO.608/2016 IN W.P.(C)NO.494/2012 W.P.(CIVIL)NO.797/2016
CONMT.PET.(C)NO.844/2017 IN W.P.(C)NO.494/2012 W.P.(C) NO.342/2017 AND WITH
W.P.(C)NO.000372/2017 ORDER OF THE COURT 1 The judgment on behalf of the Honble Chief
Justice Shri Justice Jagdish Singh Khehar, Shri Justice R K Agrawal, Shri Justice S Abdul Nazeer
and Dr Justice D Y Chandrachud was delivered by Dr Justice D Y Chandrachud. Shri Justice J
Chelameswar, Shri Justice S A Bobde, Shri Justice Abhay Manohar Sapre, Shri Justice Rohinton Fali
Nariman and Shri Justice Sanjay Kishan Kaul delivered separate judgments.
2 The reference is disposed of in the following terms:
(i) The decision in M P Sharma which holds that the right to privacy is not protected by the
Constitution stands over-ruled;
(ii) The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected
by the Constitution stands over-ruled;
(iii) The right to privacy is protected as an intrinsic part of the right to life and personal liberty
under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
(iv) Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above lay
down the correct position in law.
........................................................CJI [JAGDISH SINGH KHEHAR] ................................................J

[J CHELAMESWAR] ...................................................J [S A BOBDE]
.........................................................J [R K AGRAWAL] ...................................................J
[ROHINTON FALI NARIMAN] ................................................J [ABHAY MANOHAR SAPRE]
............................................................J [Dr D Y CHANDRACHUD]
............................................................J [SANJAY KISHAN KAUL]
.........................................................J [S ABDUL NAZEER] New Delhi;
AUGUST 24, 2017

Vallabhbhai Khushalbhai Patel vs State Of Gujarat And Anr. on 25 July, 1979
Gujarat High Court

Equivalent citations: AIR 1980 Guj 144, (1980) GLR 1
Author: Divan
Bench: B Divan, R Mankad
JUDGMENT Divan, C.J.
1. The petitioner herein has challenged under Article 226 of the Constitution notifications under
Sections 4 and 6 of the Land Acquisition Act. The petitioner is the owner of agricultural land'
bearing survey No. 20/2 (Paiki) admeasuring 4 Acres 26 Gunthas situated at village Sankari, in
Bardoli Taluka of Surat District. His land is part of survey No. 2012. A portion of the said land
admeasuring about one acre is waste and uncultivable land and the remaining portion of the land is
cultivable. The land is perennially irrigated and is watered by irrigation canal supplying water from
Kakarapar Water Bund Scheme.The petitioners and his family members are cultivating the land
personally. Sugarcane is the main crop grown in the land and the income derived by cultivation of
this land is the main source of income of the petitioner and his family members. It is the petitioner's
case that as far back as May 1, 1968, a notification under Section 4 of the Land Acquisition Act was
issued stating that the land of the petitioner was likely to be needed for the construction of houses of
Halpatis under the Halpati Housing Scheme. The petitioner opposed this proposed acquisition inter
alia on the ground that waste and uncultivable land either belonging to the State Government or
vested in the Panchayats was available in the vicinity and that land could be suitably utilised for
housing Halpatis and that apart from the Government land and the land vested in the Panchayats,
there were waste and uncultivable lands owned by private individuals which could be suitably
acquired at a cheaper rate and made available to the Halpatis. Subsequently, on April 20, 1971 the
Government cancelled the notification dated May, 1, 1968 that had been issued under Section 4 of
the Land Acquisition Act. Another notification was issued under Section 4 on September 4, 1973,
stating that the portion of the land admeasuring 0.74 Hectares and 57 square metres was likely to be
needed for a public purpose, namely, construction of houses for Halpatis under the Halpatis
Housing Scheme. The petitioner filed his objection under Section 5-A of the Land Acquisition Act
contending inter alia that the notification was issued as a 'deliberate attempt to harass and subdue
the petitioner who had launched a compaign against imposition of ceiling on the holding of
agricultural land. The notification was published in the Gazette of October 4, 1973. Thereafter a
notification was issued by the Govt. of Gujarat on Sept. 4, 1976, under Section 6 of Land Acquisition
Act and this notification under Section 6 came to be published in the Gujarat Government Gazette of
September 16, 1976. The notification under S. 6 as originally issued and published in the Govt.
Gazette was faulty inasmuch as no public purpose whatsoever was stated in the notification. In the
body of the notification it was mentioned that the land was likely to be needed for the public
purpose 'specified in column 4 of the Schedule to the notification and even the satisfaction of the
Government was recorded in the following terms a "that the said land is needed to be acquired at the
public expense for the purpose specified in column 4 of-the schedule hereto", and the declaration as
contemplated by sub-section (1) of Section 6 was also with reference to column 4 of the schedule to
the notification and in column 4 in the schedule under the heading "public purpose for which the
land is needed" there was no mention of any public purpose and that column was blank. The
notification as published in the Gujarat' Government Gazette of September 16, 1976, also showed

Col. 4 of the Schedule as blank Thereafter on October 20, 1976, an Erratum was issued by the
Government of Gujarat mentioning that in the Schedule to the notification dated September 16,
1976, in col. 4 under the head "Public purpose for which the land is needed" the following words
should be read: "for construction of houses for Halpatis under Halpatis Housing Scheme". Thus the
blank which was found in the original notification and also in the notification as published in the
Government Gazette was sought to be filled up by this Erratum issued on October 20, 1976, which
Erratum came to be published in the Gazette on Oct. 28, 1976. Under Section 6 sub-section (1) of the
Land Acquisition Act, the Government has first to consider the report, if any, made under Section
5-A of the Act. After that consideration, if the Government is satisfied that any particular land is
needed for a public purpose or for a company, then, a declaration has to be made by the
Government to that effect and the declaration has tol be under the signature of a Secretary to
Government or of some officer duly authorised to certify its orders. Under the proviso to sub-section
(1), no declaration in respect of any particular land covered by a notification under Section 4
sub-section (1) shall be made after the expiry of three years from the date of such publication. Under
sub-section (1) of Section 6, every declaration shall be published in the Official Gazette, and shall
also state the district or other territorial division in which the land is situate etc. Therefore, the three
stages, namely, consideration of the report, if any, under Section 5-A, the stage of satisfaction that a
particular land is needed for a public purpose and the stage of making a declaration are three
distinct stages which must follow one after the other under the scheme of Section 6(1). The
declaration has a great deal of importance in view of Section 6(2) because the declaration shall be
conclusive evidence that land is needed for a public purpose and after making such declaration the
appropriate Government may acquire the land in the manner appearing in the rest of the provisions
of the Land, Acquisition Act. In the instant case, a declaration was made under Section 6 after the
Government was satisfied and after the Government considered the report under Section 5-A.
Annexure B to the petition which is the notification dated 14th September, 1976,Issued under
Section 6 states that the report under Section 5-A was considered and after consideration of the
report, Government was satisfied that land mentioned in the Schedule was required to be acquired
at public expense for the purpose specified in column 4 of the Schedule to the notification and there
after, in the third paragraph, it was declared under Section 6 of the Act that the lands required for
the purpose specified in column 4 of the Schedule were needed for that public purpose. Now since
col. 4 of the Schedule to the notification was blank, it meant that there was no public purpose in
respect of which the declaration contemplated by Section 6(1) was made when the notification was
issued on September 14, 1976. It was only by the Erratum dated October 20, 1976, which came to be
issued more than three years after the publication of the notification under Section 4 that complete
declaration setting out the public purpose came to be issued. 'Mr. Nanavati for the Govt. contended
before us that originally on the Government files the notification itself was complete but it was only
when publication was made in the Government Gazette of September 16, 1976 that, by some
mistake, the public purpose came to be omitted in column 4 and col. 4 was left blank. If that was so,
the language of the Errstum, part of Annexure B to the petition, would be totally different. The
Erratum, says: "In the schedule appended to the Government notification Revenue Department No
dated 14th Sept.,1976, issued under Section 6 of the Land Acquisition Act, 1894 (I of 1894) in the
acquisition of land for construction of houses for Halpatis under Halpati Hous ing scheme..........
read 'for construction of houses for the Halpatis under Halpatis Housing Scheme". Therefore, what
was being corrected was the notification issued under section 6 and not merely the Gazette

publication. The Erratum nowhere mentions that an error had occurred in the Publication though
the original notification was correct and in accordance with the Provisions of Section 6. It is only
when the Erratum was issued on October 20, 1976, that a complete notification under Section 6
came in existence and by that time the period of three years for making declaration had expired.
Therefore, it is obvious that the requirement of Section 6(1) was not met within the period of three
years from the publication of the notification under Section 4. The notification under Section 6
issued on September 14, 1976, though purported to be corrected by the Erratum of October 20, 1976,
is made beyond the period of three years contemplated by the proviso to Section 6(1) and hence it
was beyond the competence of the Government to make any such declaration. Since there is no valid
declaration in the eye of the law within the period of three years from the date of publication of
Section 4(1) notification, Section 4 notification is also infructuous and of no use whatsoever. Hence,
the notification under Section 4 is struck down as it has now become infructuous; and the
notification under Section 6, even after its amendment by the Erratum of October 20, 1976, is
invalid and must be quashed and set aside by reason of the fact that it is beyond the period of three
years mentioned in Section 6(1). Both the notifications under Sections 4 and 6 are therefore quashed
and set aside. This special civil application is, therefore allowed, In view of the clear position
emerging regarding the notification under Section 6. We have not gone in any other aspect of the
matter and we have not allowed Mr. Shah to argue any of those other points. Rule is made absolute.
The respondents will pay the costs of this petition to the petitioner.
2. Application allowed.

The Chief Electoral Officer And vs Sunny Joseph on 9 September, 2005
Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 1495 of 2005
1. THE CHIEF ELECTORAL OFFICER AND

... Petitioner
Vs
1. SUNNY JOSEPH,
... Respondent
2. THE DELIMITATION COMMISSION OF INDIA,
3. SHRI.TANDON,
4. SHRI.MOHANDAS,
For Petitioner :SRI.MURALI PURUSHOTHAMAN, SC,ELE.COMMN.
For Respondent :SRI.K.RAMAKUMAR

The Hon'ble the Chief Justice MR.RAJEEV GUPTA
The Hon'ble MR. Justice K.S.RADHAKRISHNAN
Dated : 09/09/2005
O R D E R
.PL 50 .SP 2 RAJEEV GUPTA, C.J. & K.S.RADHAKRISHNAN,J.@@ j
----------------------------------@@ j W.A. No. 1495 of 2005 & W.P.C.No 19772 of 2005@@ j
----------------------------------@@ j .SP 2 Dated: 9th September, 2005@@ j JUDGMENT@@

jEEEEEEEE K.S. Radhakrishnan,J.@@ CCCCCCCCCCCCCCCCCCCCCC ((HDR 0 WA 1495/05 &
WPC 19772/05
--#--
)) .HE 1 Whether an order issued by Delimitation Commissioner under sub-section (1) of Section 10
of the Delimitation Act and published in the Gazette under sub-section (2) is susceptible to
challenge under Article 226 in view of the specific bar contained in Article 329
(a) of the Constitution of India, is the question that has come up for consideration in this case.
2. Petitioner, President of the District Congress Committee, Kannur, has moved this court under
Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext. P8 notification
dated 31.05.2005 issued by the Delimitation Commission of India under the Delimitation Act and
also for a declaration that the delimitation of constituencies in the State of Kerala in particular in the
Kannur district is violative of Articles 14, 19 and 21 of the Constitution of India. Writ of mandamus
was also sought for seeking a direction to the Delimitation Commission to consider the various
objections raised by the petitioner and other people's representative including its associate members
and to delimit the constituencies accordingly.
3. The fourth respondent in the writ petition raised a preliminary objection regarding the
maintainability of the writ petition. Learned single judge felt that the preliminary objection as well
as the merits of the case could be dealt with simultaneously and directed the Election Commission
and others to file their statement or counter affidavit in the writ petition. Election Commission is
aggrieved by non consideration of the preliminary objection at the threshhold and has filed W.A. No
1495 of 2005. When the writ appeal came up for hearing we have called for the writ petition also for
final hearing to consider the question of maintainability of the petition.
4. Petitioner is stated to be the President of the District Congress Committee, Kannur and he is also
a voter in Kannur Constituency,Kannur district. Petitioner submits even though various objections
were raised before the Delimitation Commission in respect of the delimitation of the Kannur
Assembly Constituency, Commission has rejected those suggestions and objections and published
the notification dated 31.5.2005 in a most unscientific manner without any application of mind to
the issues involved. Power of the delimitation, it is alleged, has been abused to achieve an oblique
and ulterior motive. Respondents refuted the various allegation raised against the Delimitation
Commission and submitted that all the procedural formalities were complied with by the
Commission and it took a conscious decision while delimiting the constituencies. Further it was
pointed out that the Delimitation Commission was constituted in terms of the provisions of the
Delimitation Act, 33 of 2002, consisting of former Judge of the Supreme Court as its Chairperson
and the allegation raised against the Commission is totally baseless. Fourth respondent, Chief
Electoral Officer and Secretary to Government therefore filed I.A. No 10110 of 2005 to recall the
order dated 5.7.2005 passed by the learned single judge to the extent of directing him to file
statement on merits and to hear the maintainability of the writ petition.
5. Sri Murali Purushothaman, counsel appearing for the Chief Electoral Officer submitted that the
Delimitation Commission of India has already issued the notification dated 31.05.2005 under
Section 10(1) of the Delimitation Act, 2002 delimiting the assembly constituencies in the State of
Kerala. Section 10 (2) of the Delimitation Act, 2002 provides that upon publication in the Gazette of
India, every order of the Delimitation Commission delimiting constituencies shall have the force of
law and that order cannot be called in question in any court in view of the express bar of judicial
review under Article 329(a) of the Constitution of India. Counsel placed considerable reliance on the
decision of the Constitution Bench of the apex court in Meghraj Kothari@@ CCCCCCCCCCCCCCC
v.Delimitation Commission and others (AIR 1967 SC 669) in@@
CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC order to substantiate his contention. Reference
was also made to the decision of the apex court in N.P. Ponnuswami@@ CCCCCCCCCCCCCCCC v.

Returning Officer, Namakhal Constituency (AIR 1952@@

CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC S.C. 64). Counsel also referred to
the Constitution Bench decision of the apex court in Indira Nehru Gandhi v.@@
CCCCCCCCCCCCCCCCCCCCCC Shri Raj Narain (AIR 1975 SC 2299). Reference was also@@
CCCCCCCCCCCCCCC made to the decisions of the apex court in Boddula@@ CCCCCCC Krishnaiah
a n d a n o t h e r v . S t a t e E l e c t i o n C o m m i s s i o n e r , @ @
CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC A.P. and others
(AIR 1996 SC 1595), State of U.P. v.@@ CCCCCCCCCCCCCCCCCCCC CCCCCCCCCCCCCCCCC
Pradhan Sangh Kshetra Samiti (AIR 1995 S.C.1512), Anugrah@@
CCCCCCCCCCCCCCCCCCCCCCCCCCCC CCCCCCC Narain Singh v. State of U.P. (1996) 6 SCC 303)
and L.@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC CC Chandrakumar v. Union of India
(1997 (3) SCC 261).@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC
6. Counsel appearing for the writ petitioner Sri K. Ramakumar submitted that judicial review is the
basic feature of the Constitution and the same cannot be excluded. Counsel made reference to the
decision of a Division Bench of this court in Kunhabdulla v. State of@@
CCCCCCCCCCCCCCCCCCCCCCCCCC Kerala (2000 (3) KLT 45). Counsel also made reference
to@@ CCCCCC the decision of the Supreme Court in State of Rajasthan@@
CCCCCCCCCCCCCCCCCCCC v.Union of India (AIR 1977 S.C. 1361), S.R.Bommai v.@@
CCCCCCCCCCCCCCCCC CCCCCCCCCCCCC Union of India (1994 S.C. 1918) and Kartar Singh v.@@
CCCCCCCCCCCCCC CCCCCCCCCCCCCCCCC State of Punjab (JT. 1994 (2) SCC 423) and the
decision@@ CCCCCCCCCCCCCCCCCCC of a Full Bench of this court in Amaravila Krishnan
Nair@@ CCCCCCCCCCCCCCCCCCCCCCCCC v. Election Commissioner of India (1970 KLT
787).@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC Counsel submitted that even in
respect of Article 323A and 368, exclusion of jurisdiction of the court was declared illegal by the
Supreme Court. Counsel placed reliance on the decision of the apex court in L.Chandrakumar v.
Union@@ CCCCCCCCCCCCCCCCCCCCCCCC of India (AIR 1997 S.C. 1125). Counsel submitted
that@@ CCCCCCCC exclusion of jurisdiction under 10th Schedule was held to be not binding on
courts. Reference was made to the decision of the apex court in Kihota Hollohon v. Zachillu@@
CCCCCCCCCCCCCCCCCCCCCCCCCCCC (AIR 1993 S.C. 412) and Ravi Naik v. Union of India
(AIR@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCC 1994 S.C. 1558). Counsel submitted that without
providing for any adjudicative machinery there cannot be any exclusion of jurisdiction of the court.
Counsel also submitted that law can be attacked as void under Part III of the Constitution of India.
Reliance was placed on the decisions of the apex court in In re under Art. 143 of@@
CCCCCCCCCCCCCCCCCCCCCCCCCCC the Constitution of India (AIR 1965 S.C. 745) and Union@@
CCCCCCCCCCCCCCCCCCCCCCCCCCC CCCCC of India v. S.R.Vohra and others (2004 (2) SCC
150).@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC Counsel submitted that administrative
action vitiated by malafides can be subjected to judicial scrutiny. Counsel placed reliance on the
decision of the apex court in Election Commission of India v. Ashok Kumar (2000 (8) SCC@@
CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC
216), Delhi Development Autority and another v. UEE@@

CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC Electrical Engineering
(P) Ltd. (2004 (11) SCC 213),@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC Chandran

v.Union of India (2003 (2) KLT 567) and State of@@ CCCCCCCCCCCCCCCCCCCCCCCCC
CCCCCCCCC A.P. v. Govardhanlal Pitti (2003 (4) SCC 739). Counsel@@
CCCCCCCCCCCCCCCCCCCCCCCCCCCCC therefore submitted that the notification issued by the
Delimitation Commission can be questioned before this court.
7. Parliament in the 53rd year of the Republic of India has enacted the Delimitation Act 2002 to
provide for the readjustment of the allocation of seats in the House of the People to the States, the
total number of seats in the Legislative Assembly into territorial constituencies for elections to the
House of the People and Legislative Assemblies of the States and Union territories and for matters
connected therewith. Section 3 of the Act deals with constitution of Delimitation Commission, which
states that as soon as may be after the commencement of the Act, the Central Government shall
constitute a Commission to be called the Delimitation Commission. The Commission shall consist of
three members of which one shall be a person who is or has been a judge of the Supreme Court, to
be appointed by the Central Government who shall be the Chairperson of the Commission and
another member shall be the Chief Election Commissioner or an Election Commissioner nominated
by the Chief Election Commissioner, ex officio and the third member shall be the State Election
Commissioner of concerned State, ex officio. Section 4 deals with duties of the Commission. Section
9 of the Act deals with delimitation of constituencies and Section 10 deals with publication of orders
and their date of operation. Sub section (2) of Section 10 states that upon publication in the Gazette
of India, every such order shall have the force of law and shall not be called in question in any court.
After publication of the notification, every such order shall be laid before the House of the People
and the Legislative Assemblies of the States concerned. For easy reference we may quote the
relevant provisions of the Delimitation Act.
.SP 1
10. Publication of orders and their date of@@ i operation.- (1) The Commission shall cause each of
its orders made under Section 8 or Section 9 to be published in the Gazette of India and in the
Official Gazettes of the States concerned and simultaneously cause such orders to be published at
last in two vernacular newspapers and publicize on radio, television and other possible media
available to the public and after such publication in the official gazettes of the States concerned,
every District Election Officer shall cause to be affixed, the Gazette version of such orders relating to
the area under his jurisdiction, on a conspicuous part of his office for public notice.
( 2 ) U p o n p u b l i c a t i o n i n t h e G a z e t t e o f I n d i a , @ @ i
CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC every such order shall have the force
of law and@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC shall not be
c a l l e d i n q u e s t i o n i n a n y c o u r t . @ @
CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC (3) As soon as may be after such
publication,@@ i every such order shall be laid before the House of the People and the Legislative
Assemblies of the States concerned.
(emphasis supplied) .SP 2 Contention was raised that apart from the specific bar under sub-section
(2) of Section 10 of the Delimitation Act, upon publication in the Gazette of India, orders passed by

the Commission under Sections 8 and 9 shall have the force of law and shall not be called in
question in any court. Article 329 (a) also stipulates that 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. For easy
reference we may refer to Article 329 of the Constitution as well.
.SP 1
329. Bar to interference by courts in electoral@@ i matters. Notwithstanding anything in this

Constitution-
( a ) t h e v a l i d i t y o f a n y l a w r e l a t i n g t o t h e @ @ i
CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC delimitation of constituencies or
the allotment of@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC seats
t o s u c h c o n s t i t u e n c i e s , m a d e o r p u r p o r t i n g @ @
CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC to be made under Article
3 2 7 o r A r t i c l e 3 2 8 , s h a l l @ @
CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC not be called in question in
any court;@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC
(b) no election to either House of Parliament or@@ i 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 to
such manner as may be provided for by or under any law made by the appropriate Legislature.
(emphasis supplied) .SP 2 Several decisions were cited at the bar, but the Constitution Bench of the
apex court in Meghraj Kothari@@ CCCCCCCCCCCCCCC v.Delimitation Commission and others
(AIR 1967 S.C. 669)@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC would answer most of
the issues raised for our consideration. That was a case where a resident voter of Ujjain challenged
the notification published in the Gazette of India dated 24.7.1964 which showed Ujjain as a .PL 52
constituency reserved for the scheduled castes. Notification was issued under sub-section (1) to
Section 10 of the Delimitation Commission Act 1962 and the same was published after considering
all the objections and suggestions. Contention was raised that Ujjain City was there from the very
inception of the Constitution of India, which was a general constituency and by virtue of the fact that
the City was converted into reserved constituency petitioner's right to be a candidate for Parliament
election was taken away. High Court of Madhya Pradesh summarily rejected the petition under
Article 226 of the Constitution on the ground that under Article 329
(a) of the Constitution the notification could not be questioned in any court which was upheld by the
apex court. The apex court held as follows:
.SP 1 "In our view, therefore, the objection to@@ i the delimitation of constituencies could only be
entertained by the Commission before the date specified. Once the orders made by the Commission
under Ss. 8 and 9 were published in the Gazette of India and in the official gazettes of the States
concerned, these matters could no longer be reagitated in a court of law. There seems to be very

good reason behind such a provision. If the orders made under Ss. 8 and 9 were not to be treated as
final, the effect would be that any voter, if he so wished, could hold up an election indefinitely by
questioning the delimitation of the constituencies from court to court. Section 10 (2) of the Act
clearly demonstrates the intention of the Legislature that the orders under Ss. 8 and 9 published
under S. 10(1) were to be treated as law which was not to be questioned in any court.
It is true that an order under Section 8@@ i or 9 published under S. 10(1) is not part of an Act of
Parliament, but its effect is to be the same."
.SP 2 In paragraph 11 of the judgment the apex court held as follows:
.SP 1 "It will be noted from the above that it@@ i was the intention of the legislature that every
order under Ss. 8 and 9 after publication is to have the force of law and not to be made the subject
matter of controversy in any court. In other words, Parliament by enacting S. 10(2) wanted to make
it clear that orders passed under Ss. 8 and 9 were to be treated as having the binding force of law
and not mere administrative directions. This is further reinforced by sub-s. (4) of S.10 according to
which the readjustment of representation of the several territorial constituencies in the House of the
People and the delimitation of those constituencies provided for in any such order (i.e. under S. 8 or
S.9) was to apply in relation to every election to the House held after the publication of the order in
the Gazette of India and these provisions contained in the order were to be supersede all provisions
relating to such representation and delimitation contained in the Representation of People Act, 1950
and the Delimitation of Parliamentary and Assembly Constituencies Order, 1961. In effect, this
means the complete effacement of all provisions of this nature which were in force before the
passing of the orders under Ss. 8 and 9 and only such orders were to hold the field. Therefore
although the impugned notification was not a statute passed by Parliament, it was a law relating to
the delimitation of constituencies or the allotment of seats to such constituencies made under Art.
327 of the Constitution."
.SP 2 Constitution bench while deciding Meghraj Kothari's case@@ CCCCCCCCCCCCCCCCCCCCCC

(AIR 1967 S.C. 669) made reference to another decision in N.P.Ponnuswamy v. Returning Officer
(AIR 1952 S.C. 64).@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC That was a case where
the appellant was a person who had filed a nomination paper for election to the Madras Legislative
Assembly from the Namakkal constituency which was rejected. Consequently he had moved the
High Court under Article 226 of the Constitution praying for a writ of certiorari to quash the order
of the Returning Officer rejecting his nomination paper and to direct him to include his name in the
list of valid nominations to be published. The application was dismissed by the High Court on the
ground that it had no jurisdiction to interfere with the order of the Returning Officer by reason of
Article 329(b) of the Constitution. The apex court examined the notable difference in the language
used in Arts. 327 and 328 on the one hand and Art. 329 on the other and held as follows:
.SP 1 " (W)hile the first two articles begin with the@@ i 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 Art. 327, or by the State Legislatures under Art. 328, cannot exclude the

jurisdiction of the High Court under Art. 226 of the Constitution, that jurisdiction is excluded in
regard to matters provided for in Art. 329."
.SP 2 Considerable reliance was placed by Sri K.Ramakumar, counsel appearing for the writ
petitioner, on the decision of a Full Bench of this court in Amaravila Krishnan Nair@@
CCCCCCCCCCCCCCCCCCCCCCCCC v. Election Commissioner of India (1970 KLT 787) and@@
CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC contended that the Draconian words that
the order shall not be called in question in any court which find place in sub-section (2) of Section 10
of the Delimitation Act 2002 and Article 329(a) of the Constitution may not be a bar in invoking the
jurisdiction of this court under Article 226 of the Constitution of India, which according to the
counsel, cannot be taken away by any legislature. In Amaravila Krishnan Nair's case, supra (1970
KLT 787) the@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCC court after referring to Ponnuswamy's
case ( AIR 1952 SC@@ CCCCCCCCCCCCCCCCC
64) held that if a person cannot question a material irregularity in the preparation of the electoral
rolls in a proceeding under Art. 226 for failure to comply with the provisions of the Representation
of the People Act 1950 or the Rules, the position would be that it cannot be questioned either before
or during the progress of or after the election. The court felt it was difficult to uphold such a
position, unless compelled by some clear provision of the law, as that would be sanctioning the
vesting of a uncontrolled power in any agency bound to act in accordance with the provisions of the
Representation of People Act 1950 in the matter of preparation of electoral rolls. Full Bench in the
above case was dealing with the irregularity in the preparation of electoral roll and whether that
irregularity could be questioned in a petition under Article 226 of the Constitution of India.
Preliminary objection of maintainability of the writ petition was raised on the basis of Article 329(b)
of the Constitution and not under Article 329(a). So also the situation in Ponnuswamy's case. It was
in that context the Full Bench opined that non-compliance with the mandatory provision of the
Representation of People Act 1950 may make the proceeding for preparation of electoral rolls null
and void and that Section 30 of the Representation of People Act may not bar a suit for declaration
that the proceedings are a nullity.
8. We may in this connection refer to some of the parallel provisions contained in Panchayat Raj Act
and Municipalities Act. After the introduction of Part IX in the Constitution of India by the 73rd
Amendment Act 1992 and Part IXA by the Seventy Fourth Amendment Act 1992, the apex court had
occasion to consider the jurisdiction of High Courts with regard to matters referred to allotment of
seats and preparation of electoral rolls. The apex court in State of U.P. v. Pradhan Sangh Kshetra
Samiti@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC and others (1995
Supp.(2) SCC 305) examined the scope of@@ CCCCCCCCCCC Sections 2 (t), 2 (g), 2 (kk) and 2 (ll)
of the U.P.Panchayat Raj Act 1947 in the context of Article 243-O, 243-C, 243-K and 226 of the
Constitution of India and held that it is for the Government to decide in what manner the panchayat
areas and the constituencies in each panchayat area would be delimited and not for the court to
dictate the manner in which the same would be done. So long as the panchayat areas and the
constituencies are delimited in conformity with the constitutional provisions or without committing
a breach thereof, the courts cannot interfere with the same. The court held that neither the
delimitation of the panchayat area nor of the constituencies could have been challenged nor the

court could have entertained such challenge except on the ground that before the delimitation, no
objections were invited and no hearing was given. Even this challenge could not have been
entertained after the notification for holding the elections was issued. The court held that the High
Court erred in not only entertaining the challenge but also in going into the merits of the alleged
grievances although the challenge was made after the notification for election was issued. The court
referred to the decision of the apex court in Meghraj Kothari's case and held that@@
CCCCCCCCCCCCCCCCCCCCCC Sections 8 and 9 of the Delimitation Commission Act showed that
the matters therein dealt with were not subject to the scrutiny of any court of law. The court held
that there was a very good reason for such a provision because if the orders made under Sections 8
and 9 were not to be treated as final, the result would be that any voter, if he so wished, could hold
up an election indefinitely by questioning the delimitation of the constituencies from court to court.
The court further held that although an order under Section 8 or Section 9 of the Delimitation
Commission Act and published under Section 10 (1) of that Act is not part of an Act of Parliament,
its effect is the same. The court concluded that Section 10 (4) of that Act puts such an order in the
same positon as a law made by Parliament itself which could only be made by it under Article 327.
Reading Articles 243-C, 243-K and 243-O in place of Article 327 and Section 2 (kk), 11-F and 12-BB
of the Act in place of Sections 8 and 9 of the Delimitation Act, 1950, the apex court pointed out that
neither the delimitation of the panchayat area nor of the constituencies in the said areas and the
allotments of the seats to the constituencies could have been challenged nor the court could have
entertained such challenge except on the ground that before the delimitation, no objections were
invited and no hearing was given.
9. The apex court in Anugrah Narain Singh v.@@ CCCCCCCCCCCCCCCCCCCCCCCCCC State of

U.P. (1996 (6) SCC 303) examined the scope of@@ CCCCCCCCCCCCCC Article 243-ZG in the light
of Article 226 of the Constitution of India. There is clear and absolute bar in considering any matter
on any ground after the publication of the notification preceding the election. The court held that
the validity of the notification made under Article 243 ZG cannot be questioned in any court and no
election to a Municipality can be questioned except by election petition. Decisions referred to herein
before would positively show that once orders issued under Sections 8 and 9 were published in the
Gazette of India and official gazette of the State concerned, those matters could no longer be
agitated in a court of law under Article 226 of the Constitution of India.
10. Counsel appearing for the petitioner placed considerable reliance on the decisions in
Kesavananda@@ CCCCCCCCCCC Bharathi's case (AIR 1973 S.C. 1461), State of Rajasthan@@
CCCCCCCCCCCCCCC CCCCCCCCCCCCCCCCCC v. Union of India(AIR 1977 S.C. 1361) and
S.R.Bommai v.@@ CCCCCCCCCCCCCCCCCCC CCCCCCCCCCCCCC Union of India (AIR 1994 S.C.
1918) and other decisions@@ CCCCCCCCCCCCCCC and contended that since Article 226 of the
Constitution being basic structure of the Constitution judicial review of orders passed under
Sections 8 and 9 of the Delimitation Act 2002 carnnot be excluded from the purview of judicial
review. Counsel submitted even in spite of Articles 323-A and 365 exclusion of jurisdiction of court
was declared illegal. Relying on the decision of the apex court in L. Chandrakumar's case (AIR 1997
S.C. 125)@@ CCCCCCCCCCCCCCCCCCCCCCCCCC counsel also submitted that exclusion of
jurisdiction under 10th Schedule was held to be not binding on courts. In any view counsel
submitted that any law as understood under Article 329(a) of the Constitution can be challenged

under Article 226 of the Constitution of India.
11. We find it unable to agree with the proposition urged by counsel for the petitioner. Basic
structure theory enunciated in Kesavananda Bharathi's case@@
CCCCCCCCCCCCCCCCCCCCCCCCCCC (AIR 1973 S.C. 1461), came up for consideration before the
apex court in Smt Indira Nehru Gandhi v. Raj Narain@@
CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC (AIR 1975 S.C.2299) and in paragraph
667 of the judgment,@@ C Justice Shri Y.V.Chandrachud dealing with the argument of the counsel
that judicial review is part of the basic structure of the Constitution noticed that when the
Constitution was originally enacted it expressly excluded judicial review in a large variety of
important matters. Reference was made to Articles 31 (4), 31 (6), 136(2), 227(4), 262(2) and 329(a)
of the Constitution of India. The court noticed that each of the provisions has a purpose behind it
but those provisions would show that the Constitution did not regard judicial review as an
indispensable measure of the legality or propriety of every determination. Article 136(2) expressly
took away the power of the Supreme Court to grant special leave to appeal from the decisions of any
court or Tribunal constituted by a law relating to the Armed Forces. Article 262 (2) authorised the
Parliament to make a law providing that the Supreme Court or any other court shall have no
jurisdiction over certain river disputes. Reference was also made to Articles 103 (1) and 329(b).
Article 102 prescribes disqualificzations for membership of the Parliament. It was noticed that by
Article 103 (1) any question arising under Article 102 as to whether a member of the Parliament has
become subject to any disqualification has to be referred to the President whose decision is final.
Further President is required by Article 103 (2) to obtain the opinion of the Election Commission
and to act according to its opinion. The court noticed that in a vital matter pertaining to the election
for membership of the Parliament the framers of the Constitution had left the decision to the
judgment of the executive. Further Articles 327 and 328 give power to the Parliament and the State
Legislatures to provide by law for all matters relating to elections to the respective legislatures
including the preparation of electoral rolls and the delimitation of constituencies. It also noticed
that by Article 329 (a) the validity of any law relating to the delimitation of constituencies or the
allotment of seats to such constituencies cannot be called in question in any court. Referring to
Article 329 (b) the court pointed out that the article provides that no election to the Parliament or
the State Legislature 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. Judicial review there can be excluded in certain limited areas, though it is considered to
be the basic structure of the Constitution.
12. The Constitution Bench of the apex court later in L. Chandrakumar v. Union of India and
others@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC (1997 (3) SCC
261) after referring to the decisions of the apex court in Kesavananda Bharati's case, Minerva
Mills@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC Ltd. v. Union of India
(1980 (3) SCC 625) and Indira@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCC CCCCCC Nehru
Gandhi's case, noticed that Article 329(a) as an@@ CCCCCCCCCCCCCCCCCCC example and
pointed out that judicial review cannot be considered to be a part of the basic structure so far as
election to the legislature is concerned. In the above decision, apex court held that the power of
judicial review over legislative action vested in the High Courts under Article 226 and in the

Supreme Court under Article 32 of the Constitution, constituting part of its basic structure and
therefore ordinarily the power of the High@@ CCCCCCCCCC Courts and the Supreme Court to test
the constitutional validity of legislations can never be ousted or excluded. Constitutional Bench
therefore noticed that in extra ordinary circumstances, for example, for purity of election and other
related matters judicial review cannot be considered to be part of basic structure and same can be
ousted by law.
13. The apex court in State of Karnataka v.@@ CCCCCCCCCCCCCCCCCCCCCCCC State of A.P. and
others (2000 (9) SCC 572) examined the@@ CCCCCCCCCCCCCCCCCCCCCCCCCC scope of Articles
131 and 262 in the light of Section 11 of the Inter-State Water Disputes Act, 1956. It is in exercise of
the constitutional power under Article 261(1) Parliament has enacted law viz. Inter-State Water
Disputes Act, 1956. Section 11 of the said Act provides that neither the Supreme Court nor any other
court shall have jurisdiction in respect of any water dispute which could be referred to a tribunal
under the Act. Though the court held on facts that the question involved is with regard to water the
writ petition was not with regard to water dispute. The court noticed that Parliament has got power
notwithstanding anything contained in the Constitution to pass a law ousting the jurisdiction of the
Supreme Court or any other court in respect of inter-state water disputes. Recently the Supreme
Court had occasion to consider the scope of Article 363 in the light of Article 226 of the Constitution
of India in Dr Karan Singh@@ CCCCCCCCCCCCCC v. State of J & K and another (2004 (5) SCC
698). After@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC referring to the decision in Madhav
Rao Jivaji Rao Scindia@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCC v. Union of India (1971 (1)
SCC 85) the court held that@@ CCCCCCCCCCCCCCCCCC any right arising out of or relating to a
treaty, covenant, agreement etc. as mentioned in Article 363 is barred to be determined by any
court.
14. The above mentioned decisions would show even though judicial review is part of the basic
structure of the Constitution, but Constitution could exclude judicial review in certain situations.
Articles 31 (4), 31 (6), 136 (2), 227 (4), 262(2), 243 O, 243 ZG, 329(a) etc. have excluded the scope of
judicial review with a laudable objective pointing that the judicial review in certain situations may
not be regarded as an indispensable measure to determine the legality or propriety of actions. The
.PL 58 difference in the phraseology used in Article 329(a) and
(b) may give some room for challenging the orders passed under Article 329(b) under Article 226 of
the Constitution of India on certain limited grounds but not the orders relating to delimitation of
constituencies which fall under Article 329 (a). The words "shall not be called in question" are
absent in Article 329 (b) but very much present in Article 329 (a). Article 329 (b) enables aggrieved
person to question the election by an election petition as provided for under any law. The decision in
Meghraj Kothari's case, in our view, is an authority for the proposition that orders passed under
Sections 8, 9 and 10(2) of the Delimitation Act and have to be treated as law under Article 329 (a) of
the Constitution and therefore cannot be called in question in any court. We therefore decline
jurisdiction of this court holding that the petition under Article 226 of the Constitution of India is
not maintainable in view of the specific bar contained under Article 329(a) of the Constitution.
Preliminary objection is therefore upheld and W.P.C. No 19772 of 2005 would stand dismissed and
allow Writ Appeal 1495 of 205.

.SP 1 Sd/-
(RAJEEV GUPTA, CHIEF JUSTICE) Sd/-
(K.S. RADHAKRISHNAN, JUDGE) 09/09/2005 en/ [true copy] WPC 19772 OF 2005@@
CCCCCCCCCCCCCCCCC APPENDIX Petitioner's exhibits:
Ext.P1 -True copy of the petition submitted by the petitioner before R1.
Ext.P2 - True copy of notification dt 23.3.2005 issued by the Government of Kerala.
Ext.P3 - True copy of the representation submitted before R1 by the President, Pallikunnu Grama
Panchayat & others. Ext.P4 - True copy ofthe representation submitted before R1 by the President
Puzhathi Grama Panchayat & others. Ext.P5 - True copy of the representation submitted before R1
by the Chairperson, Kannur Municipality & others. Ext.P6 - True copy of the letter dated 22.4.2005
addressed to Sri Sudhakaran MLA by the RTO, Kannur Ext.P7 - True copy ofthe Map along with the
proposals for the delimitation of Constituencies in Kannur Dist. Ext.P8 - True copy of the
Notification dt 31.5.2005 (No 1822/EL3/2002/Elec.)issued by the Government of Kerala.
[true copy] W.A.No.1495 of 2005 and W.P.C.No 19772 of 2005 JUDGMENT@@ EEEEEEEE
09/09/2005 W.A.No. of 2000 JUDGMENT@@ EEEEEEEE W.A.No. of 2000 JUDGMENT@@
EEEEEEEE W.A.No. of 2000 JUDGMENT@@ EEEEEEEE

JK National Panthers Party vs The Union Of India & Ors on 9 November, 2010

J&K; National Panthers Party vs The Union Of India & Ors on 9 November, 2010
Author: Ganguly
Bench: G.S. Singhvi, Asok Kumar Ganguly
REPORTABLE

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2010

(Arising out of Special Leave Petition (C) No.22224/09
J & K National Panthers Party ...Appellant(s)
- Versus -
The Union of India and others ...Respondent(s)
J U D G M E N T
GANGULY, J.
1. Leave granted.
2. Jammu and Kashmir National Panthers Party, a recognized political party in the State of Jammu
and Kashmir has filed this appeal before this Court seeking to impugn the judgment of Jammu and
Kashmir High Court, dated 2nd of June 2009. The High Court dismissed both the writ petitions
which raised identical questions. They were heard together and disposed of by the impugned
judgment.
3. The main thrust of the challenge before the High Court, as well as before this Court is on the
following question: whether or not the action of the government in postponing the delimitation of
territorial constituencies of the State pertaining to the Legislative Assembly until the relevant figures
published after the first census taken after 2026 is legally sustainable?
4. In fact the appellant is aggrieved by an amendment to the Jammu and Kashmir Representation of
the People Act 1957, especially the amendment in Section 3 thereof. This amendment has been
brought about in 2002. Section 3 of the Jammu and Kashmir Representation of the People Act 1957
(hereinafter the said Act), as amended from time to time, is set out below:-

"3. Constitution of Delimitation Commission (1) {As soon as may be after the completion of each
census} the Government shall constitute a Commission to be called the Delimitation Commission
which shall consist of three member as follows:
(a) two members, each of whom shall be a person {who is or has} been a judge of the Supreme Court
or of a High Court in India; and
(b) a Deputy Election Commissioner nominated by the Chief Election Commissioner:
{Provided that until the relevant figures for the first census taken after the year 2026 have been
published, it shall not be necessary to constitute a Commission to determine the delimitation of
Assembly Constituencies in the State under this sub- section} (2) The Governor shall nominate one
of the members appointed under clause (a) of sub- section (1) to be the Chairman of the
Delimitation Commission.
(3) The Delimitation Commission shall determine the delimitation of Assembly Constituencies in
the State within such period as may be specified by the Governor."
5. There has been a corresponding amendment also in the sub-section 3 of Section 47 of the
Constitution of Jammu and Kashmir, 1957, (hereinafter referred to as Constitution of J & K).
Section 47 (3) as amended is set out below:- "47(3) Upon the completion of each census, the
number, extent and boundaries of the territorial constituencies shall be readjusted by such authority
and in such manner as the Legislature may by law determine:
Provided that such readjustment shall not effect representation in the Legislative Assembly until the
dissolution of the then existing Assembly {;Provided that until the relevant figures for the first
census taken after the year 2026 have been published, it shall not be necessary to readjust the total
number of seats in the Legislative Assembly of the State and the division of the State into territorial
constituencies under this sub- section}."
6. The main grievance of the appellant seems to be that in view of the postponing of the delimitation
of the constituencies as a result of the aforesaid amendments, the growing imbalance in the matter
of composition of various constituencies would continue despite the census operation being carried
out. It has been argued before this Court that normally the delimitation exercise is consequent upon
a census operation. As a result of the census operation the composition of the population is
reflected. That gives rise to an exercise in delimitation for a proper representation of rights of the
people in a democratic polity. The further contention is that without these demographical changes
being properly reflected in the composition of constituencies by way of a delimitation exercise, the
essence of democracy will be defeated in the election. The appellant, therefore, urge that without an
exercise in delimitation immediately upon the completion of census operation, the election in the
State of Jammu and Kashmir will not reflect the true voice of democracy and the popular view
would, therefore, be gagged and would not find a proper representation.

7. In this case we are not concerned much with any factual controversy. In this case the Court has
been called upon to decide the correctness or otherwise of contention of the appellant in the context
of the relevant laws and the constitutional provisions.
8. Admittedly, in the State of Jammu and Kashmir, the census operation was completed in 2001, but
the delimitation was done in 1995.
9. At present in the State of Jammu and Kashmir there are 87 constituencies. Out of that 46 are in
Kashmir Valley, 37 in Jammu and 4 are in Ladakh region. Under Section 47(1) of the Constitution of
J & K, it is provided that the Legislative Assembly shall consist of 111 members chosen by direct
election from territorial constituencies of the State. Under proviso to Section 47 of the Constitution
of J & K, it is provided that if the Governor is of the opinion that women are not adequately
represented in the assembly, he may nominate not more than two women members. However, it is
provided in Section 48 of the Constitution that until the area of the State which is under the
occupation of Pakistan ceases to be so occupied and the people residing in that area elect their
representatives, those 24 seats in the Legislative Assembly shall remain vacant for Pakistan
occupied Kashmir and will not be taken into account for counting the total membership of the
assembly. The said area would be excluded in delimiting the territorial constituencies of the state.
10. The learned Counsel, Professor Bhim Singh, appearing for the appellant submits that of the 37
constituencies in Jammu, some are reserved for Scheduled Castes and Scheduled Tribes whereas of
the 46 constituencies in Kashmir valley, not a single one is reserved for Scheduled Castes and
Scheduled Tribes. But if the census operation is properly perused, it becomes clear that some of the
constituencies in the Kashmir valley should also have been reserved for Scheduled Castes and
Scheduled Tribes, had a delimitation exercise been conducted on the basis of census operation. The
impugned amendment is, therefore, unfair, undemocratic and unconstitutional as it seeks to defer
the delimitation exercise only upon the declaration of census results after 2026.
11. In the writ petition filed before the High Court no substantial challenge has been made to the
amendment of the Constitution of the J & K. In the writ petition in paragraph 16, very vaguely this
challenge has been made and which is set out below:
"16. If no Delimitation Commission is constituted till 2026, it would mean that there will be no
rotation of the Assembly constituencies till the census in 2031. It would mean that reserved
Assembly constituencies shall not be rotated from 1996 to 2031 i.e. for 35 years reserved seats shall
not be changed. This is an unparallel (sic) instance of the massacre of the rule of law, the principles
of the natural justice and of course, denial of justice and equity guaranteed by Article 14 and Article
21 of the Constitution of India. This Act violates the letter of spirit of Section 47 among other
provisions as well as that of the J & K Representation of the People Act."
12. In the prayers made in that Writ Petition, prayers B and C have become infructuous. Prayer D is
aimed at Section 47 of the Constitution of J & K but we do not find adequate pleading challenging
the amendment to Section 47 of the Constitution of J & K.

13. Professor Bhim Singh submitted that he was arguing this case on behalf of about 10, 143, 700
people (as per 2001 Census) of Jammu and Kashmir. He stated that on 27th October 1947, Jammu
and Kashmir became a part of India and on 26th January 1957, the Constitution of Jammu and
Kashmir was adopted. He also urged that in view of Article 370 of the Constitution of India,
autonomy has been granted to the State of Jammu and Kashmir. The learned counsel repeatedly
harped on the question that not holding of a delimitation exercise immediately after the completion
of the census as a result of the aforesaid amendment is unconstitutional. In fact, the learned counsel
argued that the said amendment to the Constitution of J & K was itself violative of the Basic
Structure of the Constitution of India as applicable to the State of Jammu and Kashmir, as well as
the Constitution of J & K.
14. Dealing with the aforesaid arguments of the appellant (petitioner before the High Court), the
Division Bench of the High Court, inter alia, held that delimitation for the purpose of dividing the
State into single member territorial constituency maybe a Basic Feature of democracy contemplated
in the Constitution. However, High Court opined that the readjustment of the extent and boundaries
of such territorial constituency upon completion of each census was neither a mandate of the
Constitution, nor the essence of democracy as per the Basic Structure doctrine of the Indian
Constitution.
15. The High Court dealt with the decision of the Supreme Court of the United States of America in
the case of Charles W. Baker vs. Joe C. Carr reported in 369 US 186. In this decision, the plaintiffs
who were entitled to vote to elect members of Tennessee legislature filed a class action for a
declaration that Tennessee Apportionment Act of 1901 was unconstitutional as it violated the 14th
Amendment of the Constitution of the United States. It was alleged that the impugned act sought to
bring about a gross disproportion of representation to the members of the public in respect of their
voting right. Thus, the Act placed the plaintiffs in a position of constitutionally unjustifiable
equality. Initially the District Court, where the case was filed, held that it lacked jurisdiction to
decide the issue. Thereupon, on appeal the Supreme Court reversed the judgment and remanded the
case to the District Court holding, inter alia, that the District Court has the jurisdiction in the matter
and also held that the plaintiffs had the locus to challenge the Tennessee Apportionment act.
16. However, Justice Frankfurter and Justice Harlan dissented and held that the nature of
controversy is unfit for federal judicial action, and that the existing apportionment was not so
unreasonable so as to offend the equal protection clause. The majority opinion in that case was,
however, based on the principle of approximate equality in the voice of every voter.
17. In the judgment impugned herein, the High Court held that our Constitution never contemplated
equality in the value of vote in view of the several other provisions of the Constitution. Supporting
the judgment, the learned Solicitor General of India drew the attention of this Court to the various
provisions of the Constitution of India namely, Articles 81, 82 and 170. The learned Solicitor General
also referred to a decision of the Constitution Bench of this Court in R. C. Poudyal and others vs.
Union of India and others, (1994) Supp 1 SCC 324, wherein this Court examined Article 170 (2)
while dealing with the reservation of 12 seats for Sikkimese of Bhutia-Lepcha origin in the State of
Sikkim. One of the main questions which were raised in that case is as follows: "Whether Section

7(1-A) and Section 25-A of the Representation of the People Act, 1950 [as inserted by Election Laws
(Extension to Sikkim) Act, 1976 and Representation of the People (Amendment) Act, 1980
respectively] and section 5-A (2) of the Representation of the People Act, 1951 [as inserted by the
Representation of the People (Amendment) Act, 1980] providing for reservation of 12 seats, out of
32 seats in the Sikkim Legislative Assembly in favour of Bhutias- Lepchas, are unconstitutional as
violative of the basic features of democracy and republicanism under the Indian Constitution?"
(Para 85, page 373 of the report)
18. While deciding the said issue, this Court took into consideration the decisions of the Supreme
Court of the United States in Charles W. Baker [supra], and B. A. Reynolds etc. vs. M. O. Sims
- 377 US 533.
19. This Court relied on the opinion of Chief Justice Earl Warren in B.A. Reynolds (supra). At page
536 of the report the learned Chief Justice held as follows:-
"......We realize that it is a practical impossibility to arrange legislative districts so that each one has
an identical number of residents, or citizens, or voters. Mathematical exactness or precision is
hardly a workable constitutional requirement."
20. The learned Chief Justice also relied on historical factors in support of his opinion and held:-
"History indicates, however, that many States have deviated, to a greater or lesser degree, from the
equal-population principle in the apportionment of seats in at least one house of their legislatures.
So long as the divergences from a strict population standard are based on legitimate considerations
incident to the effectuation of a rational state policy, some deviations from the equal-population
principle are constitutionally permissible with respect to the apportionment of seats in either or
both of the two houses of a bicameral state legislature." (page 537 of the report)
21. After relying on the aforesaid judgments and noticing the position in Australian Constitution the
majority opinion of this Court was rendered by Justice Venkatachaliah (as His Lordship then was).
By a remarkably erudite formulation of principles, His Lordship held:- "It is true that the right to
vote is central to the right of participation in the democratic process. However, there is less
consensus amongst theorists on the propriety of judicial activism in the voting area. In India, the
Delimitation Laws made under Article 327 of the Constitution of India, are immune from the
judicial test of their validity and the process of allotment of seats and constituencies is not liable to
be called in question in any court by virtue of Article 329 (a) of the Constitution." (Para 119, page
383 of the report)
22. It was repeatedly held in Poudyal (supra) that "a perfectly arithmetical equality of value of votes
is not a constitutionally mandated imperative of democracy and, secondly, that even if the impugned
provisions make a departure from tolerance limits and the constitutionally permissible latitudes, the
discriminations arising are justifiable on the basis of the historical considerations peculiar to and
characteristic of the evolution of Sikkim's political institutions."

23. In this case the same is true of the evolution of the political institutions of Jammu and Kashmir.
This position has been again reiterated in para 126 in Poudyal's case in the following words:
"An examination of the constitutional scheme would indicate that the concept of òne person one
vote' is in its very nature considerably tolerant of imbalances and departures from a very strict
application and enforcement. The provision in the Constitution indicating proportionality of
representation is necessarily a broad, general and logical principle but not intended to be expressed
with arithmetical precision...The principle of mathematical proportionality of representation is not a
declared basic requirement in each and every part of the territory of India. Accommodations and
adjustments, having regard to the political maturity, awareness and degree of political development
in different parts of India, might supply the justification for even non-elected Assemblies wholly or
in part, in certain parts of the country. The differing degrees of political development and maturity
of various parts of the country, may not justify standards based on mathematical accuracy." (Page
385 of the report)
24. Even Justice S.C. Agrawal, who partly dissented with the majority, agreed with the majority
opinion on this aspect of the matter by holding as under:-
"The principle of one man one vote envisages that there should be parity in the value of votes of
electors. Such a parity though ideal for a representative democracy is difficult to achieve. There is
some departure in every system following this democratic path. In the matter of delimitation of
constituencies, it often happens that the population of one constituency differs from that of the
other constituency and as a result although both the constituencies elect one member, the value of
the vote of the elector in the constituency having lesser population is more than the value of the vote
of the elector of the constituency having a larger population...". (para 182, page 402 of the report)
25. On a perusal of the aforesaid principles as laid down by this Court in the Constitution Bench
judgment, we are of the opinion that a right to caste vote is a valuable right but to demand any
uniform value of one's voting right through the process of delimitation, disregarding the statutory
and constitutional dispensation based on historical reasons is not a justiciable right.
26. In the context of this question we must keep in mind the constitutional scheme in Part XV
relating to election. Article 327 of the Constitution empowers the Parliament to make a law relating
to delimitation of constituencies. The mandate of Article 329A is that any law relating to the
delimitation of constituencies or the allotment of seats to such constituencies shall not be called in
question in any Court. Identical provisions have been made in Section 142 of the Constitution of J &
K. Section 142(a) is set out below:-
"142. Bar to interference by courts in electoral matters. - Notwithstanding anything in this

constitution-
(a) the validity of any law relating to the delimitation of territorial constituencies for the purpose of
electing members of the Legislative Assembly or the allotment of seats to such constituencies, made
or purporting to be made under section 141, shall not be called in question in any court;"

27. It is, therefore, clear that there is an express constitutional bar to any challenge being made to
the delimitation law which is made under Constitutional provisions. Therefore, the substantial
challenge of the appellant in this proceeding is not to be entertained by any Court, including this
Court. The other aspect of the question is that the amendment to Section 47(3) of the Constitution of
J & K violates Basic Structure of the Constitution. This challenge is also not based on a sound
principle.
28. The judgment of this Court in His Holiness Kesavananda Bharati Sripadagalvaru v. State of
Kerala and another, (1973) 4 SCC 225, which introduced the concept of Basic Structure in our
constitutional jurisprudence is the spontaneous response of an activist Court after working with our
Constitution for about 25 years. This Court felt that in the absence of such a stance by the
constitutional Court there are clear tendencies that the tumultuous tides of democratic
majoritarianism of our country may engulf the constitutional values of our nascent democracy. The
judgment in Kesavananda Bharti (supra) is possibly an "auxiliary precaution against a possible tidal
wave in the vast ocean of Indian democracy".
29. But we must have a clear perception of what the Basic Structure is. It is hazardous to define what
is the Basic Structure of the Constitution as what is basic does not remain static for all time to come.
However, the basic features have been culled out from various pronouncements of this Court. In the
14th Edition of Shorter Constitution of India by D.D. Basu, these features have been noted as
under:- "(a) Supremacy of the Constitution.
(a) Rule of law.
(b) The principle of Separation of Powers.
(c) The principles behind fundamental rights.
(d) The objectives specified in the Preamble to the Constitution.
(e) Judicial review; Art.32.;

Arts.226/227.
(f) Federalism
(g) Secularism.
(h) The sovereign, democratic, republican structure.
(i) Freedom and dignity of the

individual.
(j) Unity and integrity of the Nation.
(k) The principle of equality; not every feature of equality, but the quintessence of equal justice
(l) The rule of equality in public employment.

(m) The èssence' of other Fundamental Rights in Part III.
(n) The concept of social and economic justice-to build a welfare State; part IV in toto.
(o) The balance between Fundamental Rights and Directive Principles.
(p) The Parliamentary system of government.
(q) The principle of free and fair elections.
(r) Limitations upon the amending power conferred by Art. 368.
(s) Independence of the judiciary; but within the four corners of the Constitution and not beyond
that.
(t) Independent and efficient judicial system.
(u) Powers of the Supreme Court under Arts. 32, 136, 141, 142.
(v) Effective access to justice."
(see page 2236-2238)
30. Of these features `free and fair election' in Clause (r) comes closest with the question discussed
in this case.
31. This Court has already held relying on the Constitution Bench judgment in Poudyal (supra) that
ensuring uniformity in the value of votes is not a constitutionally mandated imperative of free and
fair election under our constitutional dispensation. Therefore, the argument on the question of Basic
Structure is also without substance and is rejected.
32. For the reasons aforesaid, this Court does not find any merit in the appeal and which is
accordingly dismissed. Parties are left to bear their own costs.
.......................J.
(G.S. SINGHVI) .......................J.
(ASOK KUMAR GANGULY) New Delhi November 09, 2010

Shradha Devi vs Krishna Chandra Pant & Others on 26 October, 1982

Equivalent citations: 1982 AIR 1569, 1983 SCR (1) 681
Author: D Desai
Bench: Desai, D.A.
PETITIONER:
SHRADHA DEVI
Vs.
RESPONDENT:
KRISHNA CHANDRA PANT & OTHERS
DATE OF JUDGMENT26/10/1982
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
SEN, A.P. (J)
CITATION:
1982 AIR 1569 1983 SCR (1) 681
1982 SCC (3) 389 1982 SCALE (2)964
CITATOR INFO :
F 1983 SC1311 (16)
R 1984 SC 382 (2)
ACT:
Representation of the People Act , 1951-Election
Petition-Elector's duty-Nature of proof-Required for a
relief of scrutiny and recount on the allegation of miscount
in an election petition.
HEADNOTE:
The appellant was one of the 19 candidates for the 11
members to be elected at the biennial election for electing
members to Council of States from the constituency of
elected members of the Uttar Pradesh Legislative Assembly,
at the election held on 28th March, 1979.
The election was to be in accordance with the system of
proportional representation by means of single transferable
vote. In all 421 members exercised their franchise. Eleven
ballot papers were rejected by the returning officer as
invalid and the 1st Respondent was declared elected in the
14th count.
The appellant, thereupon, filed an election petition
under section 81 of the 1951 Act before the Lucknow Bench of
the Allahabad High Court for scrutiny and recount on the

allegation of miscount. The appellant alleged that (i) the

result of the election in so far as it concerns the returned
candidate (i.e.) 1st respondent-has been materially affected
by the improper rejection of valid votes by wrongly
declaring them invalid as well as by improper reception of
what otherwise would have been the invalid votes if the
Returning Officer had been consistent in his approach, and,
therefore, the election of the returned candidate not only
should be declared void but in his place by a proper
computation of votes, the petitioner should be declared
elected to the 11th vacancy, (ii) there had been an improper
rejection of the valid votes cast in her favour and that has
materially affected the result of the election; and (iii)
even though it was obligatory upon the Returning Officer to
show all the ballot papers which he rejected as invalid, to
the candidates and/or their counting agents, he only showed
four out of the eleven ballot papers held invalid by him and
did not show the rest of them. Even these four were wrongly
rejected and cannot be said to be covered by Rule 73(2)(d)
of the Election Rules. The High Court dismissed the election
petition and hence the appeal by special leave.
The appellant contended that (i) where the election is
to be held in accordance with the system of proportional
representation by means of the single transferable vote, if
the first preference is properly and ascertainably cast any
682
error in setting out the remaining preferences would not
enable the Returning Officer to reject the whole ballot
paper; and (ii) every unrequired mark, cutting, erasure
cannot tantamount to any indication which would enable the
voter to be identified but the writing or mark must be such
that the voter can be and not merely might be identified and
there is no such cutting mark or erasure within the meaning
of Rule 73(2)(d) of the Conduct of Election Rules; 1961.
Allowing the appeal, the Court
^
HELD: 1:1. When a petition is for relief of scrutiny
and recount on the allegation of miscount, the petitioner
has to offer prima facie proof of errors in counting and if
errors in counting are prima facie established, a recount
can be ordered. If the allegation is of improper rejection
of valid votes which is covered by the broad spectrum of
scrutiny and recount because of miscount, petitioner must
furnish prima facie proof of such error. If proof is
furnished of some errors in respect of some ballot papers,
scrutiny and recount cannot be limited to those ballot
papers only. If the recount is limited to those ballot
papers in respect of which there is a specific allegation of
error and the correlation is established, the approach would
work havoc in a Parliamentary constituency where more often
10,000 or more votes are rejected as invalid. [690 A-C]
1:2. Law does not require that while giving proof of
prima facie error in counting each head of error must be

tested by only sample examination of some of the ballot

papers which answer the error and then take into
consideration only those ballot papers and not others. This
is not the area of inquiry in a petition for relief of
recount on the ground of miscount. True it is that 'a
recount is not granted as of right, but on evidence of good
grounds for believing that there has been a mistake on the
part of Returning Officer. Prima facie proof of error
complained of must be given by the election petitioner and
it must further be shown that the errors are of such
magnitude that the result of the election so far as it
affects the returned candidate is materially affected, then
recount is directed. [690 C-E]
1:3. It is not the requirement of law that in respect
of each ballot paper rejected as invalid a specific averment
must be so ma e as to identify the ballot paper and the only
those that can be correlated to the allegations in the
petition specifically and not generally shall be recounted.
That is contrary to the requirement of the Act and the
Rules. [691 B-C]
2:1. A combined reading of Rules 37A(1), 73(2)(a) and
73(2)(b) of the conduct of Election Rules 1961, makes clear
that when voting is in accordance with the proportional
representation by means of the single transferable vote it
is obligatory to cast the first preference vote for ensuring
the validity of the ballot paper and the first preference
vote must be so cast as not to leave any one in doubt about
it. The remaining preferences are optional with the elector.
He may or may not exercise his franchise for the remaining
preferences. Rule 73(2) is exhaustive of the grounds on
which a ballot paper at a voting at election by Assembly
members shall be rejected as invalid and on a true and in
depth reading of it, it does not transpire that the
683
failure to cast the remaining preferences would invalidate
the ballot papers. This is so because under rule 37A(1)
every elector has only one vote at an election irrespective
of the number of seats to be filled. The vote is only one
and even if there is more than one seat to be filled in,
subsequent preferences may be indicated by the elector and
it is optional with him not to exercise preferences outside
his only one vote which he must cast by indicating
unambiguously his first preference. [695 D-G]
2:2. If there is only one vote at such an election and
the preferences are as many as there are seats
chronologically to be indicated and failure to exercise
preferences subsequent to first preference would not
invalidate the ballot paper, it must follow as a corollary
that if the elector has committed some error in exercising
his preferences lower down the ladder the whole of the
ballot paper cannot be rejected as invalid. Therefore, it
must follow that not only such a ballot paper has to be held
as valid ballot paper but its validity shall continue upto

the stage in preferences where an error or confusion

transpires which would not permit computation of subsequent
preferences below the level of error. To illustrate the
point if as in the present case the voter had option to
exercise 11 preferences and if he has exercised his
preferences 1 to 5 correctly and unambiguously and has
committed an error in exercising sixth preference and it
cannot be said with certainty for whom the sixth preferences
vote was cast, the ballot paper has to be held valid in
computation of votes upto and inclusive of the fifth
preference and rejected for the preferences down below as if
the elector has not exercised his further preferences which
was optional with him. The ballot paper can thus be
partially valid and this is the logical outcome of the
system of voting. [695 F-H, 696 A-C-E]
3:1. Free and fair election being the fountain source
of Parliamentary democracy attempt of the Returning Officer
and the Court should be not to chart the easy course of
rejecting ballot papers as invalid under the slightest
pretext but serious attempt should be made before rejecting
ballot papers as invalid to ascertain, if possible, whether
the elector has cast his vote with sufficient clarity
revealing his intendment. In this case, the Returning
Officer has charted an easy course unsupportable by evidence
and the High Court failed to exercise its jurisdiction of
scrutiny of all ballot papers once a serious error has been
pointed out in respect of two ballot papers out of a total
of 11 invalid ballot papers. [700 E-G]
3:2 Rule 73(2)(d), provides that a ballot paper shall
be invalid on which, there is any mark or writing by which
the elector can be identified. Section 94of the
Representation of People Act, 1951 ensures secrecy of ballot
and it cannot be infringed because no witness or other
person shall be required to state for whom he has voted at
an election. To ensure free and fair election which is
pivotal for setting up a parliamentary democracy, this vital
principle was enacted in s. 94 to ensure that a voter would
be able to vote uninhibited by any fear or any undesirable
consequence of disclosure of how he voted. As a corollary it
is provided that if there is any mark or writing on the
ballot paper which enables the elector to be identified the
ballot paper would be
684
rejected as invalid. But the mark or writing must be such as
would unerringly lead to the identity of the voter. Any mark
or writing of an innocuous nature or meaningless import
cannot be raised to the level of such suggestive mark or
writing as to reveal the identity of the voter. There must
be some causal connection between the mark and the identity
of the voter that looking at one the other becomes revealed.
Therefore the mark or a writing itself must reasonably give
indication of the voter's identity. It may be that there may
be extrinsic evidence from which it can be inferred that the

mark was placed by the voter by some arrangement. [697 F-H,

698 A-D]
Raghubir Singh Gill v. Gurcharan Singh Tohra & Others,
[1980] 3 S.C.R. 1302; followed.
Woodward v. Sarsons & Another, [1874-75] 10 L.R. (CP)
733, quoted with approval.
3:3. The words "can be identified" in Rule 73(2)(d)
cannot be interpreted to mean "might possibly be
identified". The mark or writing which would invalidate the
ballot paper must be such as to unerringly point in the
direction of identity of the voter. In the absence of
suggested mark or writing the ballot paper cannot be
rejected merely because there is some mark or writing on the
ground that by the mark or writing the voter may be
identified. [698 D-F]
Sohan Lal v. Abinash Chander & Others, [1953] 4
Election Law Reports, 55 approved.
3:4. In the instant case, (i) there was specific
averment in para 18 of the petition that the marks were not
such as to lead to identity of the elector and that the
ballot papers could not be rejected as invalid under rule
73(2)(d). This allegation is wholly substantiated by a
casual look at the remaining nine ballot papers. The error
is apparent; Once the error has been established the
scrutiny and recount had to be ordered as a prima facie case
of miscount is made out and, therefore, the decision of the
High Court is liable to be set aside, (ii) As the High Court
has not undertaken to examine the validity of each ballot
paper it would not be proper for the Supreme Court to
undertake the same for the first time here; (iii) the
position of law having been made very clear, namely, that
once an error is established it is not necessary that the
pleadings must show error in respect of each individual
invalid ballot paper, and a prima facie proof of error
resulting in miscount having been established a scrutiny and
recount has to be ordered. And the serutiny of invalid
ballot papers must precede the recount; and (iv) there is no
evidence of any prior arrangement between candidate and the
voter regarding identity and (v) the ballot papers could not
have been rejected on the ground mentioned in rule 73(2)(d),
such marks, being in this case, some erasures or a bracket.
[699 F-H; 700 A-A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 277 of 1980.
(From the Judgment and Order dated the 11th December, 1979 of the Allahabad High Court in
Election Petition No. 2 of 1978.) A.P.S. Chauhan, C.K. Ratnaparkhi and D.P.S. Chauhan for the
Appellant.

A.N. Sen and C.P. Lal for Respondent No. 1.
S.S. Khanduja for RR. 4 & 5.
Miss Kamlesh Bansal for Respondent No. 16.
The Judgment of the Court was delivered by DESAI, J. An unsuccessful candidate for election to
council of States (Rajya Sabha) at the election held on March 28, 1979, is the appellant. At the
biennial election for electing members to Council of States from the constituency of elected
members of the Uttar Pradesh Legislative Assembly, 19 candidates including the appellant and the
1st respondent were duly nominated as candidates. 11 members were to be elected. Election was to
be held as mandated by clause (4) of Article 80 of the Constitution in accordance with the system of
proportional representation by means of the single transferable vote. After the poll was closed
according to the time prescribed by the Election Commission under s. 56 of the Representation of
the People Act, 1951 ('1951 Act' for short), the Returning Officer, PW. 4 Satya Priya Singh
commenced counting of votes. As the election was to be in accordance with the system of
proportional representation by means of the single transferable vote, the Returning Officer as
required by rule 76 of the Conduct of Election Rules, 1961 ('Rules' for short), proceeded to ascertain
the quota. In all 421 members exercised the franchise. Eleven ballot papers were rejected by the
Returning Officer as invalid. Accordingly the quota was worked out at the value of 3417.
Respondents 2 to 11 were declared elected as each of them secured the value of ballot papers greater
than the quota in the course of counting. As the counting proceeded further, the contest was
between the election petitioner (appellant) and the 1st respondent and the 1st respondent was
declared elected in the 14th count. Once all the 11 vacancies were filled in, counting was closed.
Petitioner filed an election petition under s. 81 of the 1951 Act in the High Court of Judicature
(Lucknow Bench), Lucknow. The petition was for scrutiny and recount on the allegation of miscount
and directed against the 1st respondent because he was declared elected to the last vacancy.
Petitioner alleged that the result of the election in so far as it concerns the returned candidate - 1st
respondent has been materially affected by the improper rejection of valid votes by wrongly
declaring them invalid as well as by improper reception of what otherwise would have been the
invalid votes if the Returning Officer had been consistent in his approach and, therefore, the election
of the returned candidate not only should be declared void but in his place by a proper computation
of votes the petitioner should be declared elected to the 11th vacancy. The petition primarily being
for relief of scrutiny and recount on the allegation of miscount it was necessary to allege and offer
prima facie proof of the possible errors in the counting which, if satisfactorily established, would
enable the court to direct a recount. It may be stated that no prima facie proof has been offered of
the improper reception of an otherwise invalid vote in favour of the 1st respondent and that
allegation may be excluded from further consideration. Petitioner alleged that there has been an
improper rejection of the valid votes cast in her favour and that has materially affected the result of
the election. Petitioner states that even though it was obligatory upon the Returning Officer to show
all the ballot papers which he rejected as invalid to the candidates and/or their counting agents, he
only showed four out the eleven ballot papers held invalid by him and did not show the rest of them.

To the question as to why votes were rejected as invalid it is alleged that the Returning Officer
informed the counting agents that there were marks and cuttings in the ballot papers which may
possibly identify the voters and, therefore, such ballot papers have been rejected on the ground set
out in rule 73 (2) (d) of the Rules. Four specific allegations of error, improper rejection of votes
otherwise valid necessitating scrutiny and recount are set out in paras 14, 15, 17 and 18 of the
election petition. It was also alleged that of the four ballot papers shown there was one in which first
preference was indicated in favour of the petitioner but that was illegally rejected by the Returning
Officer on the ground that it contained an overwriting in respect of the 10th preference vote marked
by the voter. The second error alleged in the petition is that in one ballot paper the 4th preference
figure was put in a bracket and this was illegally rejected on the ground that the voter can be
identified. The third allegation is to the effect that the ballot paper containing a 1st preference vote
cast in favour of the candidate Shri Surendra Mohan was illegally rejected by the Returning Officer
on the ground that the voter had given his 1st preference vote at two places whereas in fact the voter
had given his 1st preference vote only to Shri Surendra Mohan and had given 11th preference vote to
another candidate which could be demonstrably established by scrutiny of the ballot paper. The
fourth error alleged to have crept in the counting was that the Returning Officer invalidated two
other ballot papers on the ground that there were overwritings in the 8th and 9th preference votes
respectively and that even though these ballot papers did not contain any mark or writing by which
the voters could be identified, they were rejected as invalid contrary to the relevant provision. It was
urged that these prima facie errors when substantiated would clearly make out a case of miscount
and the same can be corrected by scrutiny and recount. The scrutiny and recount was sought to be
confined specifically to the decision of the Returning Officer rejecting 11 votes as invalid. The
contentions were crystylised in the course of hearing of the appeal by urging that where the election
is to be held in accordance with the system of proportional representation by means of the single
transferable vote, if the first preference is properly and ascertainably cast any error in setting out the
remaining preferences would not enable the Returning Officer to reject the whole ballot paper as
invalid. The second specific contention is that every unrequired mark, cutting, erasure cannot
tantamount to any indication which would enable the voter to be identified but the writing or mark
must be such that the voter can be and not merely might be identified and there is no such cutting,
mark or erasure.
The 1st respondent contested the petition, inter alia, contending that the quota was not 3417 as
contended for on behalf of the petitioner but it was 3217 and that respondents 2 to 11 received more
than quota hence they were declared elected and that the contest continued between him and the
petitioner and in the 14th count the 1st respondent was declared elected as the value of his ballot
papers exceeded the value of ballot papers of other continuing candidates together with the surplus
votes not transferred. He specifically denied though he was not present at the counting that all the
ballot papers rejected at the counting were not shown to the counting agents and contended that no
error in counting is shown and that it is not open to the court to direct recount by first examining
the ballot papers rejected as invalid. Some technical contentions were taken by him with which we
are not concerned in this appeal.
A learned single Judge of the High Court to whom the election petition was assigned framed as
many as 11 issues on which the parties were at variance. In the course of hearing of the petition the

petitioner moved an application for a direction that an inspection of the 11 ballot papers rejected as
invalid by the Returning Officer may be given to the petitioner. The Court directed inspection of four
ballot papers to be given as per order dated May 2, 1979. The 1st respondent, the returned candidate
questioned the correctness of this order in this Court in special leave petition filed by him. In the
mean time all the disputed 11 ballot papers were summoned from the Returning Officer and the
Court directed the Joint Registrar to open the sealed packet containing ballot papers and consistent
with the allegations in paras 14, 15, 17 and 18 of the petition, try to correlate the ballot papers in
respect of which the allegation of improper rejection may prima facie appear to be of substance and
give inspection of those four ballot papers to both the parties. The learned counsel appearing for the
petitioner was not inclined to take inspection in this truncated manner and disclosed his desire to
move this Court against the order granting only inspection of four ballot papers. The learned Judge
by his order dated May 16, 1979, directed that the sealed packet containing the ballot papers shall
not be opened until further orders of the Court and the same shall be kept in safe custody with the
Joint Registrar. It appears, thereafter the petitioner preferred the special leave petition but
ultimately the same appears to have been withdrawn and sought direction of the Court for
compliance with the order for showing four ballot papers as per the previous order. The Court
accordingly directed that the Joint Registrar shall open the sealed packet of the rejected ballot
papers and allow the returned candidate or his counsel and the petitioner or her counsel to have
visual inspection of the ballot papers without allowing the parties or their counsel to handle the
ballot papers. Time and date of the inspection was fixed by the Court. The Joint Registrar opened
the sealed envelope but found some difficulty in complying with the order of the Court directing
giving of inspection of four ballot papers out of 11 rejected ballot papers because there was no
specification as to which four ballot papers were to be the subject-matter of inspection. Ultimately
he took recourse to the averments in the petition, examined each allegation, attempted to correlate
it to the ballot papers in his hand and found that only two ballot papers could be correlated to the
allegations made in the petition and gave inspection of two ballot papers and kept other 9 ballot
papers, of which he did not give inspection, in sealed envelope. On this report of the Joint Registrar
the learned Judge called for the sealed envelope, opened up the envelope in the presence of the
learned counsel for the parties to verify the correctness of the report of the Joint Registrar and being
satisfied that it was correct, he made an order to that effect on December 5, 1979.
Thereafter the parties went to trial. Neither the unsuccessful candidate, the petitioner, nor the 1st
respondent, the returned candidate, stepped into the witness box. On behalf of the petitioner PW. 1
Shri Shakir Ali Siddiqi, PW. 2 Udit Narain Sharma, election agent of candidate Shri Surendra
Mohan, and PW. 3 Kalpnath Singh election agent of the petitioner were examined. RW. 1 Habibul
Rahman Nomani, counting agent of Smt. Manohara, RW. 2 Deo Bahadur Singh, election agent of
the returned candidate 1st respondent, RW. 3 Prabhat Kumar Misra, observer deputed by the
Election Commission and RW. 4 Satya Priya Singh, Returning Officer were examined on behalf of
the returned candidate.
The learned Judge rejected the petition substantially holding that the petitioner has failed to prove
that all eleven rejected ballot papers were not shown to the counting agents. It was held that
petitioner failed to prove such error in counting which would enable her to seek relief of scrutiny
and recount. In reaching this conclusion, with great respect, the learned judge has completely

misdirected himself as to the nature of proof required for a relief of scrutiny and recount on the
allegation of miscount. The learned Judge first took up the allegations of errors in counting, more
particularly directed to the allegation of improper rejection of valid votes which would materially
affect the result as set out in paras 14, 15, 17 and 18 of the petition, and then through the help of the
Joint Registrar excluded the nine ballot papers without giving inspection and only took into
consideration two ballot papers which answered the error as complained of and then proceeded to
hold that even if these two ballot papers rejected as invalid are taken into account and the value of
the votes computed, the result would not be materially affected and, therefore, rejected the election
petition.
When a petition is for relief of scrutiny and recount on the allegation of miscount, the petitioner has
to offer prima facie proof of errors in counting and if errors in counting are prima facie established a
recount can be ordered. If the allegation is of improper rejection of valid votes which is covered by
the broad spectrum of scrutiny and recount because of miscount, petitioner must furnish prima
facie proof of such error. If proof is furnished of some errors in respect of some ballot papers,
scrutiny and recount cannot be limited to those ballot papers only. If the recount is limited to those
ballot papers in respect of which there is specific allegation of error and the correlation is
established, the approach would work havoc in a Parliamentary constituency where more often we
find 10,000 or more votes being rejected as invalid. Law does not require that while giving proof of
prima facie error in counting each head of error must be tested by only sample examination of some
of the ballot papers which answer the error and then take into consideration only those ballot papers
and not others. This is not the area of inquiry in a petition for relief of recount on the ground of
miscount. True it is that 'a recount is not granted as of right, but on evidence of good grounds for
believing that there has been a mistake on the part of Returning Officer' (See Halsbury's Laws of
England, 4th Edn,, Vol. 15, para 940). This Court has in terms held that prima facie proof of error
complained of must be given by the election petitioner and it must further be shown that the errors
are of such magnitude that the result of the election so far as it affects the returned candidate is
materially affected, then recount is directed. What was broadly alleged by the petitioner in the
election petition was that where election is held in accordance with the proportional representation
by the single transferable vote it would be illegal and erroneous for the Returning Officer to reject as
invalid a ballot paper if after first preference vote is validly cast some error is committed in
indicating the remaining preferences. Instances of error is committed in indicating the remaining
preferences. Instances of error set out in paras 14, 15, 17 and 18 spelt out a ground that the ballot
papers which were rejected under rule 73 (2) (d) did not contain or carry any mark or writing by
which elector can be identified and that there has been thus improper rejection of a vote otherwise
validly cast or which is partially valid. Without allowing inspection of all the disputed ballot papers
the learned judge has accepted that at least two ballot papers can be correlated to allegation in para
15 and 17 which would prove the allegations made in the petition. The learned Judge, however held
that the rejection of these two ballot papers was correct. A further observation is that even if the
rejection of these two ballot papers is held to be improper, the result of the election so far as
returned candidate is concerned is not materially affected. And it would be succinctly pointed out
that allegation in para 18 in respect of two other ballot papers is wholly substantiated. Even at the
cost of repetition it must be said that it is not the requirement of law that in respect of each ballot
paper rejected as invalid a specific averment must be so made as to identify the ballot paper and

only those that can be correlated to the allegations in the petition specifically and not generally shall
be recounted. That is contrary to the requirement of the Act and the Rules.
The impermissible approach of the learned Judge compelled us with the consent of learned counsel
of the parties to call for the 11 ballot papers rejected as invalid. A direction to open sealed envelopes
was given and at the request of learned counsel for the parties Xerox copy of each ballot paper was
supplied to both the sides and the appeal was further set down for hearing.
We now proceed to examine the contentions in this petition. Let us first have a look at the relevant
constitutional and statutory provisions. Clause (4) of Article 80 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. The fasciculous of Rules in Parts VI and VII of the Rules are relevant. Part
VI is headed 'Voting at Elections by Assembly Members and Council Constituencies'. Rule 70
provides that the provisions of rules 28 to 35 and 36 to 48 shall apply : (a) to every election by
assembly members in respect of which no direction has been issued under clause (a) of rule 68,
subject to the modifications set out in the sub-rules of Rule 70. The important modification of which
we must take notice is the introduction of rule 37A setting out the method of voting at such election.
It may be extracted :
"37A. Method of voting-(1) Every elector has only one vote at an election irrespective
of the number of seats to be filled.
(2) An elector in giving his vote-
(a) shall place on his ballot paper the figure 1 in the space opposite the name of the
candidate for whom he wishes to vote in the first instance, and
(b) may, in addition, place on his ballot paper the figure 2, or, the figures 2 and 3, or
the figures, 2, 3 and 4 and so on in the space opposite the names of the other
candidates in the order of his preference.
Explanation-The figures referred to in clauses (a) and (b) of this sub-rule may be
marked in the international from of Indian numerals or in the Roman form or in the
form used in any Indian language but shall not be indicated in words".
Part VII is headed 'Counting of votes at Elections by Assembly Members or in Council

Constituencies'. It defines expressions such as 'continuing candidate' 'count', 'exhausted paper' 'first
preference', original vote', surplus' transferred vote' and 'unexhaused paper. These are technical
terms each having bearing on the question of counting of votes. 'First preference' vote has been
defined to mean the figure 1 set opposite the a name of a candidate; 'second preference' means the
figure 2 set opposite the name of a candidate: 'third preference' means the figure 3 set opposite the
name of a candidate, and so on. 'Original vote' is defined to mean in relation to any candidate, a vote
derived from a ballot paper on which a first preference is recorded, for such candidate. Rule 73

provides for scrutiny and opening of ballot boxes and packets of postal ballot papers. Sub-rule (2) of
rule 73 is material which may be extracted:
"73. Scrutiny and opening of ballot boxes and packets of postal ballot papers-
(2) A ballot paper shall be invalid on which-
(a) the figure 1 is not marked; or
(b) the figure 1 is set opposite the name of more than one candidate or is so placed as
to render it doubtful to which candidate it is intended to apply; or
(c) the figure 1 and some other figures are set opposite the name of the same
candidate; or
(d) there is any mark or writing by which the elector can be identified; or
(e) there is any figure marked otherwise than with the article supplied for the purpose
:
Provided that this clause shall not apply to a postal ballot paper.
Provided further that where the returning officer is satisfied that any such defect as is
mentioned in this clause has been caused by any mistake or failure on the part of a
presiding officer or polling officer, the ballot paper shall not be rejected, merely on
the ground of such defect.
Explanation-The figures referred to in clauses
(a), (b) and (c) of this sub-rule may be marked in the international form of Indian
numerals or in the Roman form or in the form used in any Indian language, but shall
not be indicated in words."
The Returning Officer while counting votes at election by Assembly members has to bear in mind
the implication of voting in accordance with the proportional representation by means of the single
transferable vote. What is obligatory in this system of voting is that every elector must exercise his
first preference vote. Rule 37A (1) specifies that every elector has one vote only irrespective of the
number of seats to be filled in at such election. Rest are preferences. In order to exercise franchise at
such election the elector is under a duty to give his 1st preference vote. Where the 1st preference vote
is not exercised the ballot paper will have to be rejected as invalid as mandated by rule 73 (2) (a)
which provides that the ballot paper shall be invalid on which figure 1 is not marked. By the
combined reading of rule 37A (2) (a) with rule 73 (2) (a) it unquestionably transpires that in this
system of voting as understood in contradistinction to single member constituency where a cross
has to be placed against the name or the symbol of the candidate the first preference vote is a sine

qua non for validity of the ballot paper. The provision contained in rule 37A (2) (b) read with rule 73
(2) (a) and (b) would manifestly show that the elector is not required to exercise all preference
available to him at the election. To illustrate, if as in the present case there were 11 vacancies, the
elector can go on exercising his preferences up to 11th number by putting figures 1 to 11 against the
candidates whom the elector wants to accord his preferences according to his own choice. But while
exercising the preferences it is obligatory in order to render the ballot paper valid to give first
preference vote. It is optional for the elector to exercise or not to exercise his remaining preferences.
This must be so in the very nature of things because this system of voting was devised to provide
minority representation. If amongst 421 electors as in the present case a party has 220 members
owing allegiance to the party and each one can exercise 11 votes with the reservation that not more
than one vote can be given to one candidate and that a cross up to the totality of number 11 can be
placed against 11 different candidates, no one else having 201 votes in his pocket can get elected. To
avoid this monolithic political pocket borough of votes this more advanced system of proportional
representation by means of the single transferable vote was devised. The very expression
'proportional representation' is onomatopoetic in the sense it shows that various interests especially
the minority groups can secure representation by this more advanced method of franchise. True,
where there are single member constituencies this system is not helpful. But where there are multi
member constituencies this system has a distinct advantage and the advantage becomes discernible
from the fact that rule 37A (2) (a) provides that an elector in giving his vote shall place on his ballot
paper the figure 1 in the space opposite the name of the candidate for whom he wishes to vote in the
first instance. The expression 'shall' demonstrates the mandate of the section and when compared
with sub-clause (b) which provides that an elector in giving his vote may, in addition, place in his
ballot paper the figure 2 or the figures 2, 3, 4 etc which would bring in sharp focuss the mandatory
and the directory part in clauses 2 (a) and 2 (b). The underlying thrust of the section becomes
further manifest by referring to rule 73 (2) (a) and
(b) which provide that a ballot paper shall be invalid on which the figure 1 is not marked or the
figure 1 is set opposite the name of more than one candidate or is so placed as to render it doubtful
to which it is intended to apply. Sub-clause (c) of sub-rule (2) of rule 73 further brings out the
intendment of the provision because it mandates that the ballot paper shall be invalid on which the
figure 1 and some other figures 1 are set opposite the name of the same candidate. It, therefore,
necessarily, follows that when voting is in accordance with the proportional representation by
means of the single transferable vote it is obligatory to cast the first preference vote for ensuring the
validity of the ballot paper and the first preference vote must be so cast as not to leave any one in
doubt about it. The remaining preferences are optional with the elector. He may or may not exercise
his franchise for the remaining preferences. If he chooses not to exercise remaining preferences the
ballot paper cannot be rejected as invalid for failure to exercise the remaining preferences. Rule 73
(2) is exhaustive of the grounds on which a ballot paper at a voting at election by Assembly members
shall be rejected as invalid and on a true and in depth reading of it, it does not transpire that the
failure to cast the remaining preferences would invalidate the ballot paper. This conclusion is
reinforced by the provision contained in rule 37A (1) which provides that every elector has only one
vote at an election irrespective of the number of seats to be filled. Therefore, the vote is only one and
even if there is more than one seat to be filled in, subsequent preferences may be indicated by the
elector and it is optional with him not to exercise preferences outside his only one vote which he

must cast by indicating unambiguously his first preference.
What then follows ? If there is only one vote at such an election and the preference are as many as
there are seats chronologically to be indicated and failure to exercise preferences subsequent to first
preference would not invalidate the ballot paper, it must follow as a corollary that if the elector has
committed some error in exercising his preferences lower down the ladder the whole of the ballot
paper cannot be rejected as invalid. To illustrate, if the elector has with sufficient clarity exercised
his preferences, say 1 to 5 in chronological order but while exercising his sixth preference he having
the right to exercise the preference up to 11, has committed an error, the error, in exercising his sixth
preference would not render the whole ballot paper invalid and his preference up to 5 will have to be
taken into account while computing the votes. We specifically invited learned counsel on both sides
to assist us in examining this aspect as we were treading on an uncovered ground. In fact, we
adjourned the matter to enable Mr. Chauhan, learned counsel for the petitioner and Mr. A.K. Sen,
learned counsel for the respondent to study the problem and at the resumed hearing it was not only
not disputed but unambiguously conceded that in view of the provision contained in rule 37A read
with rule 73 (2) once the first preference vote has been clearly and unambiguously exercised the
ballot paper cannot be rejected on the ground that lower down the ladder there was some error in
exercising the subsequent preferences. If this is the correct interpretation of rule 37A, it must follow
that not only such a ballot paper has to be held as valid ballot paper but its validity shall continue up
to the stage in preferences where an error or confusion transpires which would not permit
computation of subsequent preferences below the level of error. To illustrate the point, if as in the
present case the voter had option to exercise 11 Preferences and if he has exercised his preferences 1
to 5 correctly and unambiguously and has committed an error in exercising sixth preference and it
cannot be said with certainty for whom the sixth preference vote was cast, the ballot paper has to be
held valid in computation of votes up to and inclusive of the fifth preference and rejected for the
preferences down below as if the elector has not exercised his further preferences which was
optional with him. The ballot paper can thus be partially valid. This is not a startling proposition but
is the logical outcome of the system of voting. No authority is needed in support of it but one is
required it is to be found in the statement of law in paragraph 636, page 345, Vol. 15 of the
Halsbury's Laws of England, 4th Edn. It may be extracted :
"636. Ballot papers rejected in part-Where at a local government election or poll

consequent on a parish or community meeting the voter is entitled to vote for more
than one candidate or at a poll consequent on a parish or community meeting on
more than one question, a ballot paper is not to be deemed to be void for uncertainty
as respects any vote as to which no uncertainty arises and that vote is to be counted".
We have examined this aspect in depth because out of 11 invalid ballot papers which we have
marked now in the Xerox copies from 'A' to 'K' for identification, ballot paper marked 'B' has been
rejected under rule 73 (2) (b) by the Returning Officer on the ground that figure 1 appears against
two candidates J.P. Singh and Surendra Mohan. The High Court has accepted the rejection as valid.
It is difficult to accept this view of the Returning Officer affirmed by the High Court because figure 1
has been clearly marked against the candidate Surendra Mohan and the figure 11 is noted against
the candidate J.P. Singh. There is some overwriting in the two strokes of 11 but it must be

remembered that explanation appended to rule 37A permits that the figures indicating preferences
may be marked in the international form of in Indian numerals or in the Roman form or in the form
used in any Indian language but shall not be indicated in words. All other figures indicating the
preferences have been written in Hindi numerals and 11 is by two strokes having the loop at the top
slightly overwritten but the preference is the 11th preference against J.P. Singh, is indisputable and
is clearly visible to the naked eye. Obviously this ballot paper marked 'B' could not have been
rejected on the ground mentioned in rule 73 (2) (b).
We may now turn to remaining nine ballot papers. Remaining nine ballot papers have been rejected
on the ground that by some mark on the ballot paper itself the voter can be identified. There is a
specific allegation to that effect in para 18 of the election petition. Before we examine each
individual ballot paper, let the full import of the provision be made clear. Rule 73 (2) (d) provides
that a ballot paper shall be invalid on which there is any mark or writing by which the elector can be
identified. Section 94 of the 1951 Act ensures secrecy of ballot and it cannot be infringed because no
witness or other person shall be required to state for whom he has voted at an election. Section 94
was interpreted by this Court on Raghbir Singh Gill v. Gurcharan Singh Tohra & Ors,(1) to confer a
privilege upon the voter not to be compelled to disclose how and for whom he voted. To ensure free
and fair election which is pivotal for setting up a parliamentary democracy, this vital principle was
enacted in s. 94 to ensure that a voter would be able to vote uninhibited by any fear or any
undesirable consequence of disclosure of how he voted. As a corollary it is provided that if there is
any mark or writing on the ballot paper which enables the elector to be identified the ballot paper
would be rejected as invalid. But the mark or writing must be such as would unerringly lead to the
identity of the voter. Any mark or writing of an innocuous nature or meaningless import cannot be
raised to the level of such suggestive mark or writing as to reveal the identity of the voter. In
Wodward v. Sarsons & Anr.,(1) interpreting an identical provision it was observed as under :
"It is not every writing or every mark besides the number on the back which is to
make the paper void, but only such a writing or mark as is one by which the voter can
be identified".
It would imply that there must be some causal connection between the mark and the identity of the
voter that looking at one the other becomes revealed. Therefore, the mark or a writing itself must
reasonably give indication of the voter's identity. It may be that there must be extrinsic evidence
from which it can be inferred that the mark was placed by the voter by some arrangement. In this
context one can advantageously refer to the statement of law in Halsbury's Laws of England.(2) It
may be extracted :
"634. Ballot papers rejected for marks of identification-Any ballot paper on which
anything is written or marked by which the voter can be identified, except the printed
number on the back, is void and must not be counted. The writing or mark must be
such that the voter can be, and not merely might possibly be, identified"
"As respects ballot papers which have names, initials, figures or other possible marks
of identification on them by which it might be suggested that the voter could be

identified, it has been said that the court should look at the paper and from its own
opinion whether what is there has been put there by the voter for the purpose of
indicating for whom he votes; if the voter has not voted in the proper way (if for
example he has made two crosses, or some other such marks which might have been
intended for purposes of identification), but the Court comes to the conclusion on
looking at the paper that the real thing that the voter has been doing is to try, badly or
mistakenly, to give his vote, and make it clear for whom he voted, then these marks
should not be considered to be marks of identification unless there is positive
evidence of some agreement to show that it was so".
In Woodward's case the Court came to the conclusion that the placing of two crosses or three crosses
or a single stroke in line of a cross or a straight line or a mark like imperfect letter 'P' in addition to
the cross or star instead of a cross or a cross blurred or marked with a tremulous hand, or a cross
placed on the left side of the ballot paper, or a pencil line drawn through the name of the candidate
not voted for, or a ballot paper torn longitudinally through the centre, are not marks which would
invalidate the votes on the ground that the mark was such that the voter can be identified. Similarly,
Election Tribunal in Sohan Lal v. Abinash Chander & Ors.,(1) held that addition of a horizontal line
after figure 1 indicating first preference vote would not invalidate the ballot paper, unless there was
evidence that the horizontal line was drawn so as to reveal the identity of the voter. In the absence of
any such evidence the ballot paper was held valid. It would, therefore, follow that the mark or
wriring which would invalidate the ballot paper must be such as to unerringly point in the direction
of identity of the votor. In the absence of such suggested mark or writing the ballot paper cannot be
rejected merely because there is some mark or writing on the ground that by the mark or writing the
voter may be identified. One has to bear in mind the difference between 'can be identified' and
'might possibly be identified'.
The High Court did not examine the other 9 ballot papers on the erroneous view that only two were
correlated to the averments in the plaint. There was specific averment in para 18 of the petition that
the marks were not such as to lead to identity of the elector and that the ballot papers could not be
rejected as invalid under rule 73 (2)
(d). This allegation is wholly substantiated by a casual look at the remaining nine ballot papers. The
error is apparent. Once the error has been established the scrutiny and recount had to be ordered as
a prima facie case of miscount is made out and, therefore, the decision of the High Court is liable to
be set aside. At one stage we were inclined to examine the validity of each ballot paper. But as the
High Court has not undertaken that exercise it would not be proper for us to undertake the same for
the first time here. The position of law having been made very clear, namely, that once an error is
established it is not necessary that the pleadings must show error in respect of each individual
invalid ballot paper, and prima facie proof of error resulting in miscount having been established, a
scrutiny and recount has to be ordered. And the scrutiny of invalid ballot papers must precede the
recount. It is further made clear that where voting is in accordance with the proportional
representation by the single transferable vote a ballot paper can be valid in part. And it must be
remembered that every mark or writing does not result in invalidation of the vote The mark or
identification should be such as to unerringly reveal the identity of the voter and the evidence of

prior arrangement connecting the mark must be made available. There is no such evidence.
Therefore, the ballot papers could not have been rejected on the ground mentioned in rule 73 (2)
(d), such marks being in this case some erasures or a bracket.
Free and fair election being the fountain source of Parliamentary democracy attempt of the
Returning Officer and the Court should be not to chart the easy course of rejecting ballot papers as
invalid under the slightest pretext but serious attempt should be made before rejecting ballot papers
as invalid to ascertain, if possible, whether the elector has cast his vote with sufficient clarity
revealing his intendment. In this case we are satisfied that the Returning Officer has charted an easy
course unsupportable by evidence and the High Court failed to exercise its jurisdiction of scrutiny of
all ballot papers once a serious error has been pointed out in respect of two ballot papers out of a
total of 11 invalid ballet papers. Therefore, we find it difficult to accept the view taken by the High
Court. Accordingly, this appeal is allowed and the judgment and order of the High Court are set
aside and the matter is remanded to the High Court for further proceeding according to law. The
High Court shall examine all invalid ballot papers, ascertain the reasons for the rejection, satisfy
itself whether the reason is valid or unconvincing, and decide the validity of the ballot paper as a
whole or in part and direct computation of the votes over again. The High Court may bear in mind
that the decision of the Returning Officer rejecting ballot papers as invalid is subject to review of the
High Court in a proper election petition (See Halsbury's Laws of England, para 638, page 345, Vol.
15, 4th Edn.).
It would be open to the High Court to take assistance of the Chief Electoral Officer or such other
person well versed in computing the votes in this complicated system of counting as considered
necessary to determine the final outcome of recount.
As the matter has been delayed sufficiently, we hope that the High Court would expeditiously
dispose of the same. The costs of the hearing in this Court would abide the final outcome of the
appeal.
S.R. Appeal allowed.

Ganga Ram & Ors vs Union Of India & Ors on 2 February, 1970

Author: I Dua
Bench: Dua, I.D.
PETITIONER:
GANGA RAM & ORS.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT:
02/02/1970
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
RAY, A.N.
HIDAYATULLAH, M. (CJ)
SHAH, J.C.
HEGDE, K.S.
GROVER, A.N.
CITATION:
1970 AIR 2178 1970 SCR (3) 481
1970 SCC (1) 377
CITATOR INFO :
RF 1972 SC1375 (39)
R 1974 SC 1 (40A)
R 1974 SC 246 (13,17)
R 1976 SC 490 (34)
RF 1977 SC2051 (33)
R 1978 SC 327 (7,9)
C 1980 SC 452 (51)
RF 1981 SC1041 (11)
RF 1981 SC1699 (3)
D 1985 SC1605 (11,17)
APR 1989 SC1256 (8)
ACT:
Indian Railways Establishment Manual-Para 20(b) of Chapter
11 whether violates Arts. 14 and 16 of Constitution of
India-Discrimination whether exists between direct recruits
and promotees in respect of posts of Grade I Accounts
Clerks.

HEADNOTE:
The petitioners were officiating clerks Grade I in the
office of the Deputy Chief Accounts Officer (Traffic
Accounts Branch) Northern Railway. They had been promoted
to these posts after passing a qualifying examination which
in the Indian Railways Establishment Manual was referred to
as the Appendix 2 Examination. When respondents 4 to 6 and
11 who had passed the said examination later than the
petitioners were shown as senior to the petitioners in Grade
I on the strength of para 20(b) of Chapter 11 and other
relevant provisions of the aforesaid Manual, the petitioner
filed a writ petition under Arts. 14 and 16 of the
Constitution. Discrimination according to the petitioners
arose because while seniority among direct recruits to Grade
I was fixed on the basis of their appointment, the seniority
of promotees to Grade I like the petitioners was regulated
by their seniority in Grade It without regard being paid to
the fact of their having 'Passed the Appendix 2 examination
earlier or their having officiated in Grade 1.
HELD : (i) The equality of opportunity in the matter of
services undoubtedly takes within its fold all stages of
services from initial appointment to its termination
including promotion but it does not prohibit the
prescription of reasonable rules for selection and
promotion, applicable to all members of a classified group.
Mere production of inequality is not enough to attract the
constitutional inhibition because every classification is
likely in some degree to produce some inequality. The
classification need not be scientifically perfect or
logically complete. The matter has to be considered in a
practical way without whittling down the equality clause.
The classification must however be founded on intelligible
differentia which on rational grounds distinguishes persons
grouped together from those left out, and it must bear a
just and reasonable relation to the object sought to be
achieved. [483 F-H; 484 A]
(ii) The State which encounters diverse problems arising
from a variety of circumstances is entitled to lay down
conditions of efficiency and other qualifications for
securing the best service for being eligible for promotion
in its different departments. In the present case the
object which is sought to be achieved by the relevant
provisions is the requisite efficiency in the Accounts
Department of the Railway establishment. The departmental
authority is the proper judge of its requirements. [488 C-D]
The direct recruits and the promotees like the petitioners
clearly constitute different classes and this classification
is sustainable on intelligible differentia which has a
reasonable connection with the object of efficiency Fought
to be achieved, Promotion to Grade I is guided by the
482
consideration of seniority-cum-merit. It is therefore
difficult to find fault with the provision which places in

one group all those Grade 11 clerks who have qualified by

passing the Appendix 2 examination. The fact that the
promotees from Grade 11 who have officiated for some time
are not given the credit of this period when a permanent
vacancy arises also does not attract the prohibition
contained in Arts. 14 and 16. It does not constitute any
hostile discrimination and is neither arbitrary nor un-
reasonable: It applies uniformly to all members of the class
of Grade 11 clerks who have qualified and become eligible.
The petitioners had not discharged the onus which lay on
them to prove discrimination. [488 F]
Meryyn Coutindo v. Collector of Customs, Bombay, [1966] 3
S.C.R. 600, referred to.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 124 of 1967. Petition under Art. 32 of the
Constitution of India for enforcement of the fundamental rights.
S. K. Mehta and K. L. Mehta, for the petitioners. N. S. Bindra and S. P. Nayar, for respondents Nos. 1
to 3. Harbans Singh for respondents Nos. 4 to 10. The Judgment of the Court was delivered by Dua,
J. Out of the five petitioners in this petition under Art. 32 of the Constitution Kashmiri Lal,
petitioner no. 5 having since retired, is no longer interested in the result of these proceedings. The
claim of only four petitioners thus survives for consideration. They are officiating clerks, Grade 1, in
the office of Deputy Chief Accounts Officer (Traffic Accounts Branch) Northern Railway. They were
promoted from Grade 11 after passing the departmental qualifying examination described as
Appendix 2 examination. They claim that their seniority should be determined as from the date of
their appointment as officiating clerks Grade I and not on the basis of their position in the gradation
list of Clerks, Grade 11. Their grievance is that they were appointed as officiating clerks Grade 1, after
passing the Appendix 2 examination long before respondents 4 to 6 and 11 but these four
respondents are shown as senior to the petitioners on the ground of their seniority in Grade II. The
petitioners seek to support their claim by relying on Arts. 14 and 16 of the Constitution. The
seniority of the direct recruits to Grade 1, the petitioners complain, is determined on the basis of
their appointment, whereas the seniority of the petitioners, who are promotees. from Grade II to
officiate in Grade 1, continues to be determined on the basis of their seniority in Grade II. It is
emphasised that both the direct recruits and the promotees, like the petitioners, have to pass the
Appendix 2 examination. But their seniority is determined by different methods. It is further
complained that Grade II clerks who pass the qualifying Appendix 2 examination are not promoted
immediately. They have to -wait till a vacancy occurs and even at the time of filling the vacancy the
seniormost qualified clerk is selected for promotion without giving any preference to those who have
qualified earlier in point of time. Again, when a permanent post falls vacant all the eligible clerks in
Grade II are considered at par without giving any credit or preference to those who have already
officiated as Clerks, Grade 1. A junior clerk, Grade II, qualifying earlier, according to the petitioners'
grievance, continues to remain junior for the purpose of promotion and confirmation in the
permanent post in Grade I and a senior clerk, Grade 11, qualifying later retains his seniority for this

purpose. Similarly, in filling leave vacancies it is complained that if a clerk is appointed to officiate
in short term leave vacancy, then on the return of the incumbent of the post, instead of reverting the
clerk so appointed to officiate, the junior-most according to the gradation list in Grade 11, officiating
in Grade I, is reverted even though he may have qualified earlier than the former and may also have
officiated for some time against a regular post in Grade 1. The petitioners' right of equality before
the law and equality of opportunity in matters of public employment is stated thus to have been
violated. The right of equality is guaranteed by Arts. 14 to 16 of our Constitution. The petitioners rely
on Arts. 14 and 16(1)Article 14 is an injunction to both the legislative and the executive organs of the
State and other subordinate authorities not to, deny to any person equality before the law or the
equal protection of the laws. Article 16 is only an instance of the general rule of equality laid in Art.
14. Sub-Article (1) of Art. 16 guarantees to every citizen equality of opportunity in matters of public
employment thereby serving to give effect to the equality before the law guaranteed by Art. 14.
The equality of opportunity in the matter of services undoubtedly takes within its fold all stages of
service from initial appointment to its termination including promotion but it does not prohibit the
prescription of reasonable rules for selection and promotion, applicable to all members of the
classified group. Mere production of inequality is not enough to attract the constitutional inhibition
because every classification is likely in some degree to produce some inequality. The State is
legitimately empowered to frame rules of classification for securing the requisite standard of
efficiency in services and the classification need not be scientifically perfect or logically complete. In
applying the wide language of Arts. 14 and 16 to concrete cases a doctrinaire approach should be
avoided and the matter considered in a practical way, of course, without whittling down the equality
clauses.
The classification, in order to be outside the vice of inequality must, however, be founded on an
intelligible differentia which on rational grounds distinguishes, persons grouped together from
those left out.
The differences which warrant a classification must be real and substantial and must bear a just and
reasonable relation to the object sought to be achieved. If this test is satisfied then the classification
cannot be hit by the vice of inequality. It is the background of this broad principle that the
petitioners' grievance is to be considered. The relevant provisions in the Indian Railways
Establishment Manual directly applicable to the petitioners' case may now be seen. They are
contained in paras 48 and 49, Chapter 1, Section B and paras 16 and 20(b) of Chapter 11. As the
petitioners also rely upon paras 17 to 19 and 21 of Chapter 11 in support of the argument that para
20(b) is discriminatory it is desirable to reproduce all these paragraphs.
"48. The classes included in this group and the normal channel of their promotion are as under :-
Clerks, Grade 11 (110-180) Clerks Grade I (Rs. 130-300)
---- - - - - - -

Sub-Heads (Rs. 210-380) Stock Verifiers (Rs. 210-380) Junior Accountants Jr. Inspectors Jr.
Inspectors of (Rs. 270-435) of Station Ac/s Store Accounts (Rs. 270-435) (Rs. 270-435) Sr.
Accountants Sr. Inspectors of Sr. Inspectors of (Rs. 435-575) Station Ac/s Stores Ac/s (Rs. 435-575)
Rs. 435-575) Recruitment :-Initially in the grade of Clerks, Grade 11 Direct recruitment for 20%
vacancies in the grade of Clerks, Grade I.
Qualifications :-
(a) Age (i) For clerks, Grade 11 18-21.
(ii) For clerks, Grade 1 18-25
(b) Education For clerks, Grade 11, Matriculation, till replaced by Higher Secondary. For clerks,
Grade 1, University Degree, preference being given to persons with I and 11 Division honours and
Master's Degree. Directly recruited Clerks, Grade 1, will be on probation for one year and will be
eligible for confirmation only after passing the prescribed departmental examination in Appendix
2. Necessary facilities will be given to them to enable them to acquire a working knowledge of the
rules and procedure.
49. Such of the Clerks, Grade 11, as qualify in the departmental examination as prescribed in
Appendix 2 or those who may have been permanently exempted from passing the said examination
will be eligible for promotion as Clerks, Grade 1, and sub-heads. They will be eligible for a minimum
starting pay of Rs. 150 per month or will be granted four advance increments on promotion to Grade
I after their pay has been fixed under the ordinary rules. Promotion to the grade of Sub-Heads will
be by seniority-cum-suitability. CHAPTER II " 17. Subject to what is stated in paragraphs 18 and 19
below, where the passing of a departmental examination or trade test has been prescribed_ as a
condition precedent to the promotion to a particular non-selection post, the relative seniority of the
railway servants passing the examination/test in their due turn and on the same date or different
dates which are treated as' one continuous examination, as the case may be, shall be determined
with reference to their substantive or basic seniority.
18. A railway servant who, for reasons beyond his control is unable to appear in the
examination/test in his turn along with others, shall be given the examination/test immediately he
is available and if he passes the same, he shall-be entitled for promotion to the post as if he had
passed the examination/test in his turn.
19. Seniority for promotion as Junior Accountants, Junior Inspectors of Station or Stores Accounts
:- Seniority for promotion to the rank of junior accountant or junior inspector of Station or Stores
Accounts should count entirely according to the date of passing the examination qualifying for
promotion to those ranks. Candidates who pass the examination in a year are ipso facto senior to
those who qualify in subsequent years irrespective of their relative seniority before passing the
examination. In the case of staff of Ex-Company Railways, who are exempted from passing the
examination, the date on

-which they are declared fit for promotion to the rank of Accountant or Inspector should be
considered as the date of their passing. On receipt of the result of the above examination each
railway administration should immediately hold a selection test of the candidates declared
successful along with any eligible ex-Company or ex-State Railway Staff, who may be asked to
appear before the selection board in accordance with the procedure laid down by the Railway Board
from time to time. While the selection board will determine in the case of the ex-Company or
ex-State Railway staff, their suitability for promotion as accountant/Inspector before placing them
on the panel, no candidate who has qualified in the said examination will be declared ineligible for
promotion as a junior Accountant/Inspector, the selection board only assigning a suitable place to
each such candidate in order of merit. The staff placed on the panel in any year will rank senior to
those empanelled in subsequent years.
20. Date of passing the Departmental Examinationl Test to regulate seniority:--
(a) Except as provided for in sub-paragraph (b) below, seniority of two or more railway servants,
who pass the departmental examination/test on different dates, not treated as one continuous
examination, will be regulated entirely by the date of passing the examination or test.
(b) The seniority of Accounts Clerks, Grade I and Stock Verifiers is to be determined with reference
to their substantive or basic seniority in Grade 11 irrespective of the dates they qualify for promotion
as Clerks Grade I by passing the examination prescribed for the purpose.
21. Seniority on promotion to non-selection posts Promotion to non-selection posts shall be on the
basis of seniority-cum-suitability being judged by the authority competent to fill the post, by oral
and/or written test or a departmental examination as considered necessary and the record of
service. The only exception to this would be in cases where for administrative convenience, which
should be recorded in writing, the competent authority considers it necessary to appoint a ,railway
servant other than the seniormost suitable railway servant to officiate in a short term vacancy not
exceeding two months as a rule and 4 months in any case. This will, however, not give the railway
servant any advantage not otherwise due to him." Appendix 2, in addition to the syllabus for the
examination provides :
"3. The examination will be conducted by the Head of each office, who will also decide the intervals
at which it should be held.
4. (a) Normally no railway servant will be permitted to take the examination more than three, but
the Financial Adviser and Chief Accounts Officer may in deserving cases premit a candidate to take
the examination for a fourth time, and, in very exceptional cases, the General Manager may permit a
candidate to take the examination for the fifth-and the last time.
(b) No railway servant, who has less than six months' service in a Railway Accounts Office or who
has not a reasonable chance of passing the examination will be allowed to appear in the examination
prescribed in this Appendix. In exceptional circumstances, the condition regarding six months'
minimum service may be waived by the General Manager.

(c) Temporary railway servants may be permitted to sit for the examination but it should be clearly
understood that the passing of this examination will not give them a claim for absorption in the
permanent cadre.
(d) A candidate who fails in the examination but shows marked excellence by obtaining not less than
50% in any subject may be exempted from further examination in that subject in subsequent
examination."
It is quite clear that para 49 does not confer any right to immediate promotion on those Grade II
clerks who pass the qualifying Appendix 2 examination. The only benefit which accrues to them is
that one hurdle is removed from their way and they become eligible for being considered for
promotion to Grade
1. This promotion is governed by the test of seniority-cum- suitability. All those who qualify for
promotion are treated at par for this purpose and they are grouped together as constituting one
class. The fact that one person has qualified earlier in point of time does not by itself clothe him with
a preferential claim to promotion as against those who quality later. This examination is con-
sidered to be a continuous examination and as is clear from para 17 success at this examination does
not constitute the basis of seniority which continues to be dependent on the substantive or basic
seniority in Grade 11. The question which directly arises for determination is : does the procedure
laid down in these instructions violate the petitioners' right as guaranteed by Arts. 14 and 16 ? The
State which encounters diverse problems arising from a variety of circumstances is entitled to lay
down conditions of efficiency and other qualifications for securing the best service for being eligible
for promotion in its different departments. In the present case the object which is sought to be
achieved by the provisions reproduced earlier is the requisite efficiency in the Accounts Department
of the Railway establishment. The departmental authority is the proper judge of its requirements.
The direct recruits and the promotees like the petitioners, in our opinion, clearly constitute different
classes and this classification is sustainable on intelligible differentia which has a reasonable
connection with the object of efficiency sought to be achieved. Promotion to Grade I is guided by the
consideration of senioritycum- merit. It is, therefore, difficult to find fault with the provision which
places in one group all those Grade II clerks who have qualified by passing the Appendix 2
examination. The fact that the promotees from Grade 11 who have officiated for some time are not
given the credit of this period when a permanent vacancy arises also does not attract the prohibition
contained in Arts. 14 and 16. It does not constitute any hostile discrimination and is neither
arbitrary nor unreasonable. It applies uniformly to all members of Grade II clerks who have
qualified and become eligible. The onus in this case is on the petitioners to establish discrimination
by showing that the classification does not rest upon any just and reasonable basis. The difference
emphasised on behalf of the petitioners is too tenuous to form the basis of a serious argument. Their
challenge, therefore, fails. The decision in Mervyn Coutindo v. Collector of Customs, Bombay(1) on
which reliance has been placed on behalf of the petitioners dealt with a different problem though the
principle (1) [1963] 3 S.C.R. 600., of law laid down there seems to go against the petitioners'
submission. It was expressly observed that there is no inherent vice in the principle of fixing
seniority by rotation in a case when a service is composed in fixed proportion of direct recruits and

promotees. The distinction between direct recruits and promotees as two sources of recruitment
being a recognised difference, nor obnoxious to the equality clauses,' the provisions which concern
us cannot be struck down on the ratio of this decision.
The petition accordingly fails and is dismissed but without costs.
G.C. Petition dismissed

Chiranjit Lal Chowdhuri vs The Union Of India And Others on 4 December, 1950

Equivalent citations: 1951 AIR 41, 1950 SCR 869
Author: H J Kania
Bench: Kania, Hiralal J. (Cj), Fazal Ali, Saiyid, Sastri, M. Patanjali, Mukherjea, B.K., Das, Sudhi
Ranjan
PETITIONER:
CHIRANJIT LAL CHOWDHURI
Vs.
RESPONDENT:
THE UNION OF INDIA AND OTHERS.
DATE OF JUDGMENT:
04/12/1950
BENCH:
KANIA, HIRALAL J. (CJ)
BENCH:
KANIA, HIRALAL J. (CJ)
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
CITATION:
1951 AIR 41 1950 SCR 869
CITATOR INFO :
F 1951 SC 318 (19)
RF 1952 SC 59 (5)
F 1952 SC 75 (8,21,43,54,70)
RF 1952 SC 123 (45)
RF 1952 SC 252 (101,106)
E 1953 SC 215 (6)
F 1953 SC 404 (7)
R 1954 SC 92 (5)
D 1954 SC 119 (1)
E 1954 SC 314 (4)
F 1955 SC 74 (7)
R 1955 SC 191 (5)
R 1956 SC 20 (13)
F 1956 SC 246 (50,65)
E 1956 SC 479 (5)
F 1957 SC 503 (15,16)
R 1957 SC 877 (16)
D 1957 SC 927 (9)
E 1958 SC 538 (11,12,17)
RF 1958 SC 578 (211)
R 1958 SC 731 (15)
RF 1958 SC 956 (15)
R 1959 SC 648 (26)

RF 1959 SC 725 (11,12)

F 1960 SC 356 (8)
R 1960 SC 457 (9)
R 1960 SC 554 (9)
D 1960 SC1080 (28)
R 1962 SC 458 (21)
F 1962 SC1044 (5)
R 1963 SC 222 (22)
R 1963 SC 864 (27)
F 1963 SC1241 (84)
HO 1963 SC1811 (13,28,84,104,105,112)
RF 1965 SC 190 (4)
F 1970 SC 564 (16,54,78)
E 1970 SC2182 (7)
F 1971 SC1594 (7,8,9)
R 1971 SC1737 (45)
RF 1973 SC 106 (11)
RF 1973 SC1461 (227,265,2130)
RF 1973 SC2720 (9)
R 1974 SC 849 (10)
RF 1974 SC1389 (251)
R 1975 SC 583 (39)
R 1978 SC 327 (6)
F 1978 SC 597 (189)
F 1978 SC 771 (44)
R 1980 SC 161 (10)
RF 1983 SC 1 (168)
F 1983 SC 75 (5)
F 1984 SC 866 (4)
R 1984 SC1707 (17)
RF 1986 SC1370 (77,78)
R 1988 SC1487 (31)
RF 1991 SC 672 (33)
RF 1992 SC 1 (132,133)
R 1992 SC1277 (22,85,87,96)
ACT:
Sholapur Spinning and Weaving Company (Emergency Provi-
sions) Act (XXVIII of 1950)--Act dismissing managing agents
of a company, removing its directors, authorising Govern-
ment to appoint new directors, and curtailing rights of
shareholders in the matter of voting, etc.--Validity--Wheth-
er infringes fundamental rights--Right not to be deprived of
property save by authority of law--Right to acquire, hold
and dispose of property--Right to equal protection of
law--Constitution of India, Arts. 14, 19 (1) (f), 19(5), 1,
32--" Deprivation of property ", "Property., ,, acquisi-
tion", "taking possession., "equal protection ", meanings
of--Right to apply under Art. 32--Corporation's right to
apply--Shareholders' right.

HEADNOTE:
The Governor-General of India, finding that on account of
mismanagement and neglect a situation had arisen in the
affairs of the Sholapur Spinning and Weaving Company Ltd.
which had prejudicially affected the production of an essen-
tial commodity and had caused serious unemployment amongst a
certain section of the community, and that an emergency had
thereby arisen which rendered it necessary to make special
provision for the proper management and administration of
the said company, promulgated an Ordinance, which was subse-
quently reenacted in the form of an Act of the Legislature
called the sholpur Spinning and Weaving Company (Emergency
Provisions)Act, 1950, the net result of which was that the
Managing Agents of the said company were dismissed, the
directors holding office at the time automatically vacated
their office, the Government was authorised to appoint new
directors, the rights of the shareholders of the company
were curtailed in the matters of voting, appointment of
directors, passing of resolutions and applying for winding
up, and power was also given to the Government to further
modify the Indian Companies Act in its application to the
company; and in accordance with the provisions of the Ordi-
nance new directors were appointed by the Government. A
shareholder of the company made an application under Art. 32
of the Constitution for a declaration that the Act was void
and for enforcement of his fundamental rights by a writ of
mandamus against the Central Government, the Government of
Bombay and the directors, restraining them from exercising
any powers under the Act and from interfering with the
management of the company, on the ground that the Act was
not within the Legislative competence
870
of the Parliament and infringed his fundamental rights
guaranteed by Arts. 19 (1) (f), 31 and 14 of the Constitu-
tion and was consequently void under Art. 13. The
company was made a respondent and opposed the petition.
Held per KANIA C.J., FAZL ALI, MUKHERJEA and DAS JJ.-
(i) that the impugned Act did not infringe any fundamental
right of the petitioner under Art. 31 (1), as if did not
deprive the company or the petitioner of any property save
under authority of law;
(ii) that the impugned Act did not infringe any fundamen-
tal right guaranteed by Art. 31 (2.) inasmuch as it did not
authorise the "acquisition" of any property of the company
or of the shareholders or "the taking possession" of the
property of the petitioner, namely, the shares which he held
in the company, though he was disabled from exercising some
of the rights which an ordinary shareholder in a company
could exercise in respect of his shares, such as the right
to vote, to appoint directors, and to apply for winding up;
and, if the Act had authorised the "taking possession" of
the property of the company, the petitioner was not entitled

to any relief on that score under Art. 32;

(iii) that, as the Act did not impose any restrictions
on the petitioner's right "to acquire, hold and dispose of"
his shares, there was no infringement of Art. 19 (1) (f);
and assuming that the restrictions imposed on the right of
voting etc. were restrictions on the right to acquire, hold
or dispose of property within Art. 19 (1) (f), such restric-
tions were reasonable restrictions imposed in the interests
of the public, namely, to secure the supply of a commodity
essential to the community and to prevent serious unemploy-
ment amongst a section of the people, and were therefore
completely protected by cl. (5) of Art. 19.
Held also per KANIA C.J., FAZL ALI, and MUKHERJEA JJ.
(PATANJALI SASTRI AND DAS JJ. dissenting).--that though the
Legislature had proceeded against one company only and its
shareholders, inasmuch as even one corporation or a group of
persons can be taken to be class by itself for the purposes
of legislation, provided there is sufficient basis or reason
for it and there is a strong presumption in favour of the
constitutionality/of an enactment, the burden was on the
petitioner to prove that there were also other companies
similarly situated and this company alone had been discrimi-
nated against, and as he had failed to discharge this burden
the impugned Act cannot be held to have denied to the peti-
tioner the right to equal protection of the laws referred to
in Art. He and the petitioner was not therefore entitled to
any relief under Art. 32.
Per PATANJALI SASTRI J.--As the impugned Act plainly
denied to the shareholders of this particular company the
protections of the law relating to incorporated Joint Stock
Companies as embodied in the Indian Companies Act. it was
Prima facie within
871
the inhibition of Art. 14; and, even though when a law is
made applicable to a class of persons or things and the
classification is based on differentia having a rational
relation to the object sought to be attained, it can be no
objection to its constitutional validity that its applica-
tion is found to affect only one person or thing. since the
impugned Act selected a particular company and imposed upon
it and its shareholders burdens and disabilities on the
ground of mismanagement and neglect of duty on the part of
those charged with the conduct of its undertaking no ques-
tion of reasonable classification arose and the Act was
plainly discriminatory in character and within the constitu-
tional inhibition of Art. 14. Whilst all reasonable pre-
sumptions must undoubtedly be made in favour of the consti-
tutional validity of a law made competent legislature, no
such presumption could be raised in this case as on the face
of it the Act was discriminatory and the petitioner could
not be called upon to prove that similar mismanagement
existed in other companies. The issue was not whether the
impugned Act was ill-advised or not justified by the facts

on which it was based but whether it transgressed the ex-

plicit constitutional restriction on legislative power
imposed by Art. 14.
Per DAs J.--The impugned Act, ex facie, is nothing but
an arbitrary selection of a particular company and its
shareholders for discriminating and hostile treatment, and,
read by itself, is palpably an infringement of Art. 14 of
the Constitution. Assuming that mismanagement and neglect
in conducting the affairs of a company can be a basis of
classification and that such a classification would bear a
reasonable relation to the conduct of all delinquent compa-
nies and shareholders and may therefore create no inequali-
ty, a distinction cannot be made between the delinquent
companies inter se or between shareholders of equally delin-
quent companies, and one set cannot he punished for its
delinquency while another set is permitted to. continue, or
become, in like manner, delinquent without any punishment
unless there be some other apparent difference in their
respective obligations and unless there be some cogent
reason why prevention of mismanagement is more imperative in
one instance than in the other. The argument that the pre-
sumption being in favour of the Legislature, the onus is on
the petitioner to show that there are other individuals or
companies equally guilty of mismanagement prejudicially
affecting the production of an essential commodity and
causing serious unemployment amongst, certain section of the
community does not, in such circumstances, arise, for the
simple reason that here there has been no classification at
all and, in any case, the basis of classification by its
very nature is much wider and cannot, in its application, be
limited only to this company and its shareholders; and that
being so, there is no reason to throw on the petitioner the
almost impossible burden of proving that there are other
companies which are in fact precisely and in all particulars
similarly situated. In any event the petitioner,
872
may well claim to have discharged the onus of showing that
this company and its shareholders have been singled out for
discriminating treatment by showing that the Act, on the
face of it, has adopted a basis of classification which, by
its very nature, cannot be exclusively applicable to this
company and its shareholders but which may be equally ap-
plicable to other companies and their shareholders and has
penalised this particular company and its shareholders,
leaving out other companies and their shareholders who may
be equally guilty of the alleged vice of mismanagement and
neglect of the type referred to in the preamble in the
Ordinance.
Per PATANJALI SASTRI, MUKHERJEA and DAS JJ. (KANIA,
C.J,, dubitante).--In so far as the petitioner's rights as a
shareholder were curtailed he was entitled to apply for
relief under Art. 30, in his own right on the ground that
the Act denied to him the equal protection of the laws and

therefore contravened Art. 14 even though the other share-

holders did not join him in the application.
Per MUKHERJEA J.--The fundamental rights guaranteed by
the Constitution are available not merely to individual
citizens but to corporate bodies as well except where the
language of the provision or the nature of the right, com-
pels the inference that they are applicable only to natural
persons. An incorporated company, therefore, can come up to
the Supreme Court for enforcement of its fundamental rights
and so may the individual shareholders to enforce their own;
but as the company and its shareholders are in law separate
entities, it would not be open to an individual shareholder
to complain of a law which affects the fundamental right of
the company except to the extent that it constitutes an
infraction of his own rights as well. In order to redress a
wrong to the company the action should prima facie be
brought by the company itself.
Article 32 of the Constitution is not directly concerned
with the determination of the constitutional validity of
particular enactments, what it aims at is the enforcement of
fundamental rights guaranteed by the Constitution and to
make out a case under the Article it is incumbent on the
petitioner to establish not merely that the law complained
of is beyond the competence of the Legislature but that it
affects or invades his fundamental rights guaranteed by the
Constitution, of which he could seek enforcement by an
appropriate writ or order.
Under Art. 32 the Supreme Court has a very wide discre-
tion in the matter of framing writs to suit the exigencies
of particular cases and an application under the article
cannot be thrown out simply on the ground that the proper
writ or direction has not been prayed for.
In the context in which the word "acquisition" is used
in Art. 31 i2) it means and implies the acquiring of the
entire title of the expropriated owner whatever the nature
or extent of that right might be,
873
The guarantee against the denial of equal protection of
the laws does not mean that identically the same rules of
law should be made applicable to all persons within the
territory of India in spite of differences of circumstances
and conditions. It means only that there should be no
discrimination between one person and another if as regards
the subject-matter of the legislation their position is the
same.
Quaere : Whether the word "property"
Art. in31
means the totality of the rights which the ownership of the
property connotes, and whether clause (1) of Art. 31 contem-
plates only confiscation or destruction of property in
exercise of what are known as police powers in American law
for which no compensation is necessary.
DAS J.--The question whether an Act has deprived a
person of his "property" must depend on whether it has taken

away the substantial bulk of the rights constituting his

property. Where the most important rights possessed by the
shareholders of a company are still preserved by an Act even
though certain privileges incidental to the ownership of the
shares have been put in abeyance, the shareholders cannot be
said to have been deprived of their "property" in the sense
in which that word is used in Art. 19(1) (f) and Art. 31.
If on the face of the law there is no classification at
all, or at any rate none on the basis of any apparent dif-
ference specially peculiar to the individual or class af-
fected by the law, it is only an instance of an arbitrary
selection of an individual or class for discriminating and
hostile legislation and, therefore, no presumption can, in
such circumstances, arise at all- Assuming, however, that
even in such a case the onus is thrown on the complainant,
there can be nothing to prevent him from proving, if he can,
from the text of the law itself, that it is actually and
palpably unreasonable and arbitrary and thereby discharging
the initial onus.
The right to vote, to elect directors, to pass resolu-
tions and to present an application for winding up, are
privileges incidental to the ownership of a share, but they
are not by themselves apart from the share, "property"
within the meaning of Art. 19 (1) (f) and Art. 31; and even
assuming that they are "property" such rights cannot be said
to have been acquired or taken possession of by the Govern-
ment in this case within Art. 31 (2). The language of
clause (1) of Art. 31 is wider than that of clause (2), for
deprivation of property may well be brought about otherwise
than by acquiring or taking possession of it and in such a
case no question payment of compensation arises.
FAZAL ALI MUKHERJEA and DAS JJ.--Except in the matter
writs in the nature of habsas corpus no one but those whose
rights are directly affected by a law can raise the question
of the constitutionality of a law and claim relief under
Art. 39. A corporation being a different entity from the
shareholders, a
112
874
share-holder cannot complain on the ground that the rights
of the company under Arts. 19 (1) (f) or 31 are infringed.
FAZL ALl J.--A classification which is arbitrary and
which is made without any basis is no classification and a
proper classification must always rest upon some difference
and must hear a reasonable and lust relation to the things
in respect of which it is proposed. But the presumption is
always 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 constitutional principles.
Though Art. 14 lays down an important fundamental 'right,
which should be closely and vigilantly guarded, a doctri-
naire approach which might choke all beneficial legislation
should not be adopted, in construing it. i

A.K. Gapalan v. The State ([1950] S.C.R. 87), Minister

of State for the Army v. Dalziel (68 C.L.R 261), Yick Wo v.
Hopkins (118 U.S. 356), Southern Railway Co. v. Greene (216
U.S. 400), Gulf C. & S.F. Co. Ellis (165 U.S. 150), Middle-
ton v. Texas Power and Light & Co. (249 U.S. 152), Badice v.
New York (264 U.S. Pennsylvania Coal Co. v. Mahon (960 U.S.
3931, McCabe v. Archison (235 U.S. 151), Jeffrey Manufactur-
ing Co. v. Blang (935 U.S. 571), Newark Natural Gas and Fuel
Co. v. City of Nework U.S-403), Truax v. Raich (939 U.S.
33), Buchanan v. W'arley (245 U.S. 60) Darnell v. The State
of Indiana (226 U.S. 388), Lindely v. Natural Carbonic Gas
Co. (220 U.S. 618), and Barbier v. Connolly (113 U.S. 27)
referred to.
JUDGMENT:
ORIGINAL JURISDICTION: Petition No. 72 of 1950. Petition under article 32 of the Constitution of
India for a writ of mandamus.
V.K.T. Chari, J.S. Dawdo, Alladi Kuppuswami, and C.R. Pattabhi Raman, for the petitioner.
M.C. Setalvad, Attorney-General for India (G. N. Joshi with him) for opposite party Nos. 1 and 2.
G.N. Joshi, for opposite party Nos. 3 to 5 and 7 to 10.
1950. December 4. The Court delivered Judgment as follows.
KANIA C.J.--This is an application by the holder of one ordinary share of the Sholapur Spinning and
Weaving Company Ltd. for a writ of mandamus and certain other reliefs under article 32 of the
Constitution of India. The authorized capital of the company is Rs. 48 lakhs and the paid-up capital
is Rs. 32 lakhs, half of which is made up of fully paid ordinary shares of Rs. 1,000 each.
I have read the judgment prepared by Mr. Justice Mukher- jea. In respect of the arguments
advanced to challenge the validity of the impugned Act under articles 31 and 19 of the Constitution
of India, I agree with his line of reasoning and conclusion and have nothing more to add. On the
question whether the impugned Act infringes article 14, two points have to be considered. The first
is whether one individual shareholder can, under the circumstances of the case and particularly
when one of the respondents is the company which opposes the petition, challenge the validity of
the Act on the ground that it is a piece of discriminatory legislation, creates inequality before the law
and violates the principle of equal protection of the laws under article 14 of the Constitution of
India. The second is whether in fact the petitioner has shown that the Act runs contrary to article 14
of the Con- stitution. In this case having regard to my conclusion on the second point, I do not think
it is necessary to pronounce a definite opinion on the first point. I agree with the line of reasoning
and the conclusion of Mr. Justice Mukherjea as regards the second point relating to the invalidity
of the Act on the ground that it infringes article 14 of the Constitution and have nothing more to

add. In my opinion therefore this petition fails and is dismissed with costs.
FAZL- ALI J.--I am strongly of the opinion that this petition should be dismissed with costs.
The facts urged in the petition and the points raised on behalf of the petitioner before us are fully set
forth in the judgments of my brethren, Sastri, Mukherjea and Das JJ., and I do not wish to repeat
them here. It is sufficient to say that the main grounds on which the Sholapur Spinning and
Weaving Company (Emergency Provisions) Act, 1950 (Act No. XXVIII of 1950), which will
hereinafter be referred to as "the Act", has been assailed, is that it infringes three fundamental
rights, these being:--
(1) the right to property secured by article 31 of the Constitution;
(2) the right to acquire, hold and dispose of property, guaranteed to every citizen by article 19 (1) (f);
and (3) the right to equal protection of the laws, guaranteed by article 14.
It has been held in a number of cases in the United States of America that no one except those whose
rights are directly affected by a law can raise the question of the constitutionality of that law. This
principle has been very clearly stated by Hughes J. in McCabe v. Atchison(1), in these words :---"It is
an elementary principle that in order to justify the granting of this extraordinary relief, the
complainant's need of it and the absence of an adequate remedy at law must clearly appear. The
complainant cannot succeed because someone else may be hurt. Nor does it make any difference
that other persons who may be injured are persons of the same race or occupation. It is the fact,
clearly established, of injury to the complainant -- not to others--which justifies judicial
interference." On this statement of the law, with which I entirely agree, the scope of the discussion
on this petition is greatly restricted at least in regard to the first two fundamental rights. The
company and the shareholders are in law separate entities, and if the allegation is made that any
property belonging to the company has been taken possession of without compensation or the
right enjoyed by the company under article 19 (1) (f) has been infringed, it would be for the company
to come forward to assert or vindicate its own rights and not for any individual shareholder to do so.
In this view, the only question which has to be answered is whether the petitioner has succeeded in
showing that there has been an infringement of his rights as a shareholder under articles 31 and 19
(1) (f) of the Constitution. This question has been so elaborately dealt with by Mukherjea J., that I do
not wish to add anything to what he has said in his judgment, and all that is necessary for me to say
is that I adopt his conclusions, (1) 235 u.s. 151.
without committing myself to the acceptance of all his reasonings.
The only serious point, which in my opinion, arises in the case is whether article 14 of the
Constitution is in any way infringed by the impugned Act. This article corresponds to the equal
protection clause of the Fourteenth Amendment of the Constitution of the United States of America,
which declares that "no State shall deny to any person within its jurisdiction the equal protection of
the laws". Professor Willis dealing with this clause sums up the law as prevailing in the United
States in regard to it in these words:--

"Meaning and effect of the guaranty--The guaranty of the equal protection of the laws means the
protection of equal laws. It forbids class legislation, but does not forbid classification which rests
upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in
the objects to which it is directed or by the territory within which it is to operate. 'It merely requires
that all persons subjected to such legislation shall be treated alike under like circumstances and
conditions both in the privileges conferred and in the liabilities imposed.' 'The inhibition of the
amendment .... was designed to prevent any person or class of persons from being singled out as a
special subject for discriminating and hostile legislation'. It does not take from the states the power
to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to
them the exercise of a wide scope of discretion, and nullifies what they do only when it is without
any reasonable basis. Mathematical nicety and perfect equality are not required. Similarity, not
identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a
classification, the existence of that state of facts must be assumed. One who assails a classification
must carry the burden of showing that it does not rest upon any reasonable basis."(') Having
summed up the law in this way, the same learned author adds :--"Many different classifications (1)
Constitutional Law by Prof. Willis, (1st Edition). p.579.
of persons have been upheld as constitutional. A law applying to one person or one class of persons
is constitutional if there is sufficient basis or reason for it." There can be no doubt that article 14
provides one of the most valuable and important guarantees in the Constitution which should not be
allowed to be whittled down, and, while accepting the statement of Professor Willis as a correct
exposition of the principles underlying this guarantee, 1 wish to lay particular emphasis on the
principle enunciated by him that any classification which is arbitrary and which is made without any
basis is no classification and a proper classification must always rest upon some difference and must
bear a reasonable and just relation to the things in respect of which it is proposed.
The petitioner's case is that the shareholders of the Sholapur company have been subjected to
discrimination visa vis the shareholders of other companies, inasmuch as section 13 of the Act
subjects them to the following disabilities which the shareholders of other companies governed by
the Indian Companies Act are not subject to:-:
"(a) It shall not be lawful for the shareholders of the company or any other person to nominate or
appoint any person to be a director of the company.
(b) No resolution passed at any meeting of the shareholders of the company shall be given effect to
unless approved by the Central Government.
(c) No proceeding for the winding up of the company or for the appointment of a receiver in respect
thereof shall lie in any court unless by or with the sanction of the Central Government."
Primafacie, the argument appears to be a plausible one, but it requires a careful examination, and,
while examining it, two principles have to be borne in mind :--(1) that a law may be constitutional
even though it relates to a single individual, in those cases where 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; (2) that it is the accepted doctrine of the American courts, which I
consider to be well-founded on principle, that the presumption is always 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. A clear enunciation of this latter doctrine
is to be found in Middleton v. Texas Power and Light Company(1), in which the relevant passage
runs as follows :--
"It must be presumed that a 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 upon adequate grounds."
The onus is therefore on the petitioner to show that the legislation which is impugned is arbitrary
and unreasonable and there are other companies in the country which should have been subjected
to the same disabilities, because the reasons which led the Legislature to impose State control upon
the Sholapur company are equally applicable to them. So far as article 14 is concerned, the case of
the shareholders is dependent upon the case of the company and if it could be held that the
company has been legitimately subjected to such control as the Act provides without violation of
the article, that would be a complete answer to the petitioner's complaint.
Now, the petitioner has made no attempt to discharge the burden of proof to which I have referred,
and we are merely asked to presume that there must necessarily be other companies also which
would be open to the charge of mismanagement and negligence. The question cannot in my opinion
be treated so lightly. On the other hand, how important the doctrine of burden of proof is and how
much harm can be caused by ignoring it or tinkering with it, will be fully illustrated, by referring to
the proceedings in the Parliament in connection with the enactment of the (1) 248 U.S. 1152,157.
Act, where the circumstances which necessitated it are clearly set out. I am aware that legislative
proceedings cannot be referred to for the purpose of construing an Act or any of its provisions, but I
believe that they are relevant for the proper understanding of the circumstances under which it was
passed and the reasons which necessitated it.
A reference to the Parliamentary proceedings shows that some time ago, a representation was made
on behalf of a section of the shareholders of the Sholapur company to the Registrar of Joint Stock
Companies in Bombay, against the conduct of the managing agents, and the Government of Bombay
was moved to order a special inquiry into the affairs of the company. For the purpose of this inquiry,
two special inspectors were appointed by the Bombay Government and their report revealed
"certain astounding facts" and showed that the mill had been grossly mismanaged by the Board of
Direc- tors and the managing agents. It also revealed that the persons who were responsible for the
mismanagement were guilty of certain acts and omissions which brought them under the purview of
the law. The Bombay Government accepted the report of the inspectors and instructed the
Advocate General of Bombay to take legal proceedings against certain persons connected with the
management of the company. Thereafter, the Government of India was approached by the
Provincial Government and requiested to take special action in order to secure the early opening of
the mill. The Government of India found that they had no power to take over the management of a

particular mill, unless its working could be ensured through the existing management acting under
the direction of a Controller appointed under the Essential Supplies Act, but they also found that a
peculiar situation had been created in this case by the managing agents themselves being unable or
unwilling to conduct the affairs of the company in a satisfactory and efficient manner. The
Government of India, as a matter of precaution and lest it should be said that they were going to
interfere unnecessarily in the affairs of the company and were not allowing the existing provisions of
the law to take their own course, consulted other interests and placed the matter before the
Standing Committee of the Industrial Advisory Council where a large number of leading
industrialists of the country were present, and ultimately it was realized that this was a case where
the Government could rightly and properly intervene and there would be no occasion for any
criticism coming from any quarter. It appears from the discussion on the floor of the House that the
total number of weaving and spinning mills which were closed down for one reason or other was
about 35 in number. Some of them are said to have closed for want of cotton, some due to
overstocks, some for want o[ capital and some on account of mismanagement. The Minister for
Indus- try, who sponsored the Bill, in explaining what distinguished the case of the Sholapur mill
from the other mills against whom there might be charges of mismanagement, made it clear in the
course of the debate that "certain conditions had to be fulfilled before the Government can and
should intervene", and he set out these conditions as follows :--
"(1) The undertaking must relate to an industry which is of national importance. Not each and every
undertaking which may have to close down can be taken charge of temporarily by Government.
(2) The undertaking must be an economic unit. If it appears that it is completely uneconomic and
cannot be managed at all, there is no sense in Government taking charge of it. If anything, it will
mean the Government will have to waste money which belongs to the taxpayer on an uneconomic
unit.
(3) There must be a technical report as regards the condition of the plants, machinery, etc. which
either as they stand, or after necessary repairs and reconditioning can be properly utilised.
(4) Lastly,--and this is of considerable importance- there must be a proper enquiry held before
Government take any action. The enquiry should show that managing agents have so misbehaved
that they are no longer fit and proper persons to remain in charge of such an important
undertaking."(1) It appears from the same proceedings that the Sholapur mill is one of the largest
mills in Asia and employs 13,000 workers. Per shift, it is capable of producing 25 to 30 thousand
pounds of yarn, and also one lakh yards of cloth. It was working two shifts when it was closed down
on the 29th August, 1949. The closure of the mill meant a loss of 25 lakhs yards of cloth and one and
a half lakhs pounds of yarn per month. Prior to 1947, the highest dividend paid by the company was
Rs. 525 per share and the lowest Rs. 100, and, in 1948, when the management was taken over by the
managing agents who have been removed by the impugned Act, the accounts showed a loss of Rs. 30
lakhs, while other textile companies had been able to show very substantial profits during the same
period.

Another fact which is brought out in the proceedings is that the. managing agents had acquired
control over the majority of the shares of the company and a large number of shareholders who were
dissatisfied with the management had been rendered powerless and they could not make their voice
heard. By reason of the preponderance of their strength, the managing agents made it impossible for
a controller under the Essential Supplies Act to function and they also made it difficult for the
company to run smoothly under the normal law.
It was against this background that the Act was passed, and it is evident that the facts which were
placed before the Legislature with regard to the Sholaput mill were of an extraordinary character.
and fully justified the company being treated as a class by itself. There were undoubtedly other mills
which were open to the charge of mismanagement, but the criteria adopted by the Government
which, in my opinion, cannot be said to be arbitrary or unreasonable, is not applicable (1)
parliamentary Debates, Volume III, No. 14; 31st March 1950, pp.2394 5 to any of them. As we have
seen, one of the criteria was that a mere allegation of mismanagement should not be enough and no
drastic step such as is envisaged in the Act should be taken without there being a complete enquiry.
In the case of the Sholapur mill, a complete enquiry had been made and the revelations which were
made as a result of such enquiry were startling.
We are familiar with the expression "police power" which is in vogue in the United States of
America. This expression simply denotes that in special cases the State can step in where its
intervention seems necessary and impose special burdens for general benefit. As one of the judges
has pointed out, "the regulations may press with more or less weight upon one than upon another,
but they are designed not to impose unequal or unnecessary restrictions upon anyone, but to
promote, with as little individual inconvenience as possible, the general good."(1) It need not be
emphasized that the principles underlying what is known as police power in the United States of
America are not peculiar to that country, but are recognized in every modern civilized State.
Professor Willis dealing with the question of classification in exercise of police power makes the
following observations:
"There is no rule for determining when classification for the police power is reasonable. It is a
matter for judicial determination, but in determining the question of reasonableness the Courts
must find some economic, political or other social interest to be secured, and some relation of the
classification to the objects sought to be accomplished. In doing this the Courts may consider
matters of common knowledge, matters o[ common report, tile history of the times, and to sustain it
they will assume every state of facts which can be conceived of as existing at the time Of legislation.
The fact that only one person or one object or one business or one locality is affected is not proof of
denial of the equal protection of the laws. For such (1) Per Field J. in Barbier v. Connally. 113 U S.
27.
proof it must be shown that there is no reasonable basis for the classification."
In this particular case, the Government initially took control of the Sholapur Company by means of
an Ordinance (Ordinance No. II of 1950), of which the preamble runs as follows :-

"Whereas on account of mismanagement and neglect a situation has arisen in the affairs of the
Sholapur Spinning and Weaving Company, Limited, which has prejudicially affected the
production of an essential commodity and has caused serious unemployment amongst a certain
section of the community;
And whereas an emergency has arisen which renders it necessary to make special provision for the
proper management and administration of the aforesaid Company;
Now, therefore,........................ " In the course of the Parliamentary debate, reference was made to
the fact that the country was facing an acute cloth shortage, and one of the reasons which apparently
influenced the promulgation of the Ordinance and the passing of the Act was that the
mismanagement of the company had gravely affected the production of an essential commodity. The
facts relating to the mismanagement of this mill were carefully collected and the mischief caused
by the sudden closing of the mill to the shareholders as well as to the general public were fully
taken into consideration. Therefore, it seems to me that to say that one particular mill has been
arbitrarily and unreasonably selected and subjected to discriminatory treatment, would be an
entirely wrong proposition.
Article 14 of the Constitution, as already stated, lays down an important fundamental right, which
should be closely and vigilantly guarded, but, in construing it, we should not adopt a doctrinaire
approach which might choke all beneficial legislation.
The facts to which I have referred are to be found in a public document, and, though some of them
may (1) Constitutional Law by Prof. Willis (1st Edition) p. 580.
require further investigation forming as they do part of a one-sided version, yet they furnish good
prima, facie grounds for the exercise of the utmost caution in deciding this case and for not
departing from the ordinary rule as to the burden of proof. In the last resort, this petition can be
disposed of on the simple ground that the petitioner has not discharged the onus which lies upon
him, and I am quite prepared to rest my judgment on this ground alone. I think that the petitioner
has failed to make out any case for granting the writs or directions asked for, and the petition should
therefore be dismissed with costs. PATANJALI SASTRI J.--This is an application under article 32 of
the Constitution seeking relief against alleged infringement of certain fundamental rights of the
petitioner. The petitioner is a shareholder of the Sholapur Spinning and Weaving Company,
Limited, Sholapur, in tim State of Bombay, (hereinafter referred to as "the Company "). The
authorised share capital of the Company consisted of 1590 fully paid up ordinary shares of Rs. 1,000
each, 20 fully paid up ordinary shares of Rs. 500 each and :32,000 partly paid up redeemable
cumulative preference shares of Rs. 100 each, of which Rs. 50 only was paid up. Of these, the
petitioner held one ordinary share in his own name and 80 preference shares which, however,
having been pledged with the Bank of Baroda Ltd., now stand registered in the Bank's name.
The company was doing flourishing business till disputes arose recently between the management
and the employees, and in or about August, 1949, the mills were temporarily closed and the
company, which was one of the largest producers of cotton textiles, ceased production. Thereupon,

the Gover- nor-General intervened by promulgating on the 9th January, 1950, an Ordinance called
the Sholapur Spinning and Weaving Company (Emergency Provisions) Ordinance (No. II' of 1950),
which empowered tim Government of India to take over the control and management of the
company and its properties and effects by appointing their own Directors and to delegate all or any
of their powers to the Provincial Government. In exercise of the powers thus delegated, the
Government of Bombay appointed respondents 3 to 9 as Direc- tors to take charge of the
management and administration of the properties and affairs of the company. Subsequently, on
10th April, '1950, the Ordinance was repealed and was replaced by an Act of Parliament containing
similar provisons, namely the Sholapur Spinning and Weaving Company (Emergency Provisions)
Act (No. XXVIII of 1950) (hereinafter referred to as the "impugned Act").
The petitioner complains that the impugned Act and the action of the Government of Bombay
pursuant thereto have infringed the fundamental rights conferred on him by articles 11, 19 and 31
of the Constitution with the result that the enactment is unconstitutional and void, and the inter-
ference by the Government in the affairs of the company is unauthorised and illegal. He accordingly
seeks relief by way of injunction and mandamus against the Union of India and the State of Bombay
impfended as respondents 1 and 2 respectively in these proceedings and against respondents a to 9
who are now in management as already stated. The company is irapleaded proforma as the 10th
respondent. Before discussing the issues involved, it is necessary to examine the relevant provisions
of the impugned Act in order to see in what manner and to what extent the petitioner's rights have
been affected thereby. The preamble to the repealed Ordinance stated that "on account of mis-
management and neglect a situation has arisen in the affairs of the Sholapur Spinning and Weaving
Company, Limited, which has prejudicially affected the production of an essential commodity and
has caused serious unemployment amongst a certain section of the community and that an
emergency has arisen which renders it necessary to make special provision for the proper
management and administration of the aforesaid Company." This preamble was not reproduced in
the impugned Act. Section a empowers the Central Government to appoint as many persons as it
thinks fit to be directors of the company "for the purpose of taking over its management and
administration." Section 4 states the effect of the order appointing directors to be that (1) the old
directors shall be deemed to have vacated their office, (2) the contract with the managing agents
shall be deemed to have been terminated, (3) that the properties and effects of the company shall
be deemed to be in the custody of the new directors who are to be "for all purposes" the directors of
the company and "shall alone be entitled to exercise all the powers of the directors of the company
whether such powers are derived from the Companies Act or from the memorandum or articles of
association or otherwise." Section 5 defines the powers of the new directors. They are to manage the
business of the company "subject to the control of the Central Government" and shall have the
power to raise funds offering such security as they think fit, to carry out necessary repairs to the
machinery or other property in their custody and to employ the necessary persons and define the
necessary conditions of their service. Section 12 provides for the restoration of the management to
directors nominated by the shareholders when the purpose of the Government's intervention has
been fulfilled. Section 13 is important and reads thus: "13. Application of the Companies Act.--(1)
Notwith- standing anything contained in the Companies Act or in the memorandum or articles of
association of the company (a) it shall not be lawful for the shareholders of the company or any
other person to nominate or appoint any person to be a director of the company; (b) no resolution

passed at any meeting of the shareholders of the company shall 'be given effect to unless approved
by the Central Government; (c) no proceeding for the winding up of the company or for the
appointment of a receiver in respect, thereof shall lie in any Court unless by or with the sanction of
the Central Government. (2) Subject.
to the provisions contained in sub-section (1) and to the other provisions of this Act. and subject to
such exceptions, restrictions and limitations as the Central Govern- ment may, by notified order,
specify, the Companies Act shall continue to apply to the company in the same manner as it applied
thereto before the issue of the notified order under section 3." By section 14 the provisions of the Act
are to have effect "notwithstanding anything inconsistent therewith contained in any other law or in
any instrument having effect by virtue of any law other than this Act." Section 16 provides for
delegation of powers to the Govern- ment of Bombay to be exercised subject to the directions of the
Central Government, and section 17 bars suits or other proceedings against the Central Government
or the Government of Bombay or any director "for any damage caused or likely to be caused by
anything which is in good faith done or intended to be done in pursuance of this Act."
As a result of these provisions all the properties and effects of the company passed into the absolute
power and control of the Central Government or its delegate the Gov- ernment of Bombay, and the
normal functioning of the company as a corporate body came to an end. The shareholders have been
reduced to the position of interested, if helpless, onlookers while the business is carried on against
their will and, may be, to their disadvantage by the Government's nominees. The declared purpose
of this arrangement was, according to the Preamble of the repeated Ordinance to keep up the
production of an essential commodity and to avert serious unemployment amongst a certain section
of the community.
The question accordingly arises whether the impugned Act. which thus affects the petitioner and his
co-shareholders, while leaving untouched the shareholders of all other companies, including those
engaged in the production of essential commodities, denies to the petitioner the equal protection of
the laws under article 14 of the Constitution. The correct approach to this question is first to see
what rights have been conferred or protection extended to persons similarly situated. The relevant
protection is to be found in the provisions of the Indian Companies Act which regulates the rights
and obligations of the shareholders of incorporated companies in India. Section 21 of the Act assures
to the shareholders the protection of the stipulations contained in the memorandum and articles of
association by constituting. them a binding contract, so that neither the company nor the share-
holders have the power of doing anything inconsistent therewith. The basic right of the
shareholders to have their undertaking managed and conducted by the directors of their own choice
is ensured by section 83B. Their right to exercise control and supervision over the management by
the directors by passing resolutions at their general meeting is regulated by various provisions of the
Act. The important safeguard of winding up the company in certain unfavourable circumstances
either through court or by the shareholders thems elves voluntarily is provided for in sections 162
and
203. All these rights and safeguards, on the faith of which the shareholders embark their money in
their undertaking, are abrogated by the impugned Act in the case of the shareholders of this

company alone. In fact, the Central Govern- ment is empowered to exclude, restrict or limit the
operation of any of the provisions of the Companies Act in relation to this company. It is thus
plain that the impugned Act denies to the shareholders of this particular company the protection of
the law relating to incorporated joint stock companies in this country is embodied in the Companies
Act and is primafacie within the inhibition of article 14. It is argued, however, that article 14 does
not make it incumbent on the Legislature always to make laws applicable to all persons generally,
and that it is open to the Legis- lature 'to classify persons and things and subject them to the
operation of a particular law according to the aims and objects which that law is designed to secure.
In the present case, Parliament, it was said, came to the conclusion, on the materials placed before
them, that the affairs of the company were being grossly mismanaged so as to result in the cessation
of production of an essential commodity and serious unemployment amongst a section of the
community. In view if the detriment thus caused to public economy, it was competent for
Parliament to enact a measure applicable to this company and its shareholders alone, and
Parliament must be the judge as to whether the evil which the impugned Act was designed to
remedy prevailed to such an extent in this company as to call for special legislation. Reliance was
placed in support of this argument on certain American decisions dealing with the equal protection
clause of the Fourteenth Amendment of the Federal Constitution. It is, however, unnecessary to
discuss those decisions here, for it is undeniable that equal protection of the laws cannot mean that
all laws must be quite general in their character and application.' A legislature empowered to make
laws on a wide range of subjects must of necessity have the power of making special laws to attain
particular objects and must, for that purpose, possess large powers of distinguishing and
classifying the persons or things to be brought under the operation of such laws, provided the basis
of such classification has a just and reasonable relation to the object which the legislature has in
view. While, for instance, a classification in a law regulating labour in mines or factories may be
based on age or sex, it may not bè based on the colour of one's skin. It is also true that the class of
persons to whom a law is made applicable may be large or small, and the degree of harm which has
prompted the enactment of a particular law is a matter within the discretion of the law-makers. It is
not the province of the court to canvass the legislative judgment in such matters. But the issue here
is not whether the impugned Act was ill-advised or not justified by the facts on which it was based,
but whether it transgresses the explicit constitutional restriction on legislative power imposed by
article 14.
It is obvious that the legislation is directed solely against a particular company and shareholders and
not against any class or category of companies and no question, therefore, of reasonable legislative
classification arises. If a law is made applicable to a class of persons or things and the classification
is based upon differentia having a rational relation to the object sought to be attained, it can be no
objection to its constitutional validity that its application is found to affect only one person or thing.
For instance, a law may be passed imposing certain restrictions and burdens on joint stock
companies with a share capital of, say, Rs. 10 crores and upwards, and it may be found that there is
only one such company for the time being to which the law could be applied. If other such
companies are brought into existence in future the law would apply to them also, and no
discrimination would thus be involved. But the impugned Act, which selects this particular company
and imposes upon it and its shareholders burdens and disabilities on the ground of
mismanagement and neglect of duty on the part of those charged with the conduct of its under-

taking, is plainly discriminatory in character and is, in my judgment, within the constitutional
inhibition of article
14. Legislation based upon mismanagement or other misconduct as the differentia and made
applicable to a specified individual or corporate body is not far removed from the notorious
parliamentary procedure formerly employed in Britain of punishing individual delinquents by
passing bills of attainder, and should not, I think, receive judicial encouragement.
It was next urged that the burden of proving that the impugned Act is unconstitutional lay on the
petitioner, and that, inasmuch as he has failed to adduce any evidence to show that the selection of
this company and its shareholders for special treatment under the impugned Act was arbitrary, the
application must fail. Whilst all reasonable presumption must undoubtedly be made in support of
the constitutional validity of a law made by a competent legislature, the circumstances of the
present case would seem, to my mind to exclude such presumption. Hostile discrimination is writ
large over the face of the impugned Act and it discloses no grounds for such legislative
intcrvcntion. For all that appears no compelling public intercsts were involved. Even the preamble
to the original Ordinance was omitted. Nor did respondents 1 and 2 file any counter-statement in
this proceeding explaining the circumstances which led to the enactment of such an extraordinary
measure. There is thus nothing in the record even by way of allegation which the petitioner need
take steps to rebut. Supposing, however, that the impugned Act was passed on the same grounds as
were mentioned in the preamble to the repealed Ordinance, namely, mismanagement and neglect
prejudicially affecting the production of an essential commodity and -causing serious
unemployment amongst a section of the community, the petitioner could hardly be expected to
assume the burden of showing, not that the company's affairs were properly managed, for that is
not his case, but that there were also other companies similarly mismanaged, for that is what,
according to the respondents, he should prove in order to rebut the presumption of
constitutionality. In other words, he should be called upon to establish that this company and its
shareholders were arbitrarily singled out for the imposition of the statutory disabilities. How could
the petitioner discharge such a burden ? Was he to ask for an investigation by the Court of the
affairs of other industrial concerns in India where also there were strikes and lock outs resulting in
unemployment and cessation of production of essential commodities? Would these companies be
willing to submit to such an investigation ? And even so, how is it possible to prove that the
mismanagement and neglect which is said to have prompted the legislation in regard to this
company was prevalent in the same degree in other companies ? In such circumstances, to cast upon
the petitioner a burden of proof which it is as needless for him to assume as it is impracticable to
discharge is to lose sight of the realities of the case.
Lastly, it was argued that the constitutionality of a statute could not be impugned under article 32
except by a person whose rights were infringed by the enactment. and that, inasmuch as there was
no infringement of the individual right of a shareholder, even assuming that there was an injury to
the company as a corporate body, the petitioner was not entitled to apply for relief under that
article. Whatever validity the argument may have in relation to the petitioner's claim based on the
alleged invasion of his right of property under article 31, there can be little doubt that, so far as his
claim based on the contravention of article 14 is concerned, the petitioner is entitled to relief in his

own right As has been pointed out already, the impugned Act deprives the shareholders of the
company of important rights and safeguards which are enjoyed by the shareholders of other joint
stock companies in Indian under the Indian Companies Act. The petitioner is thus denied the equal
protection of the laws in his capacity as a shareholder, and none the less so because the other
shareholders of the company are also similarly affected. The petitioner is thereled to seek relief
under article 32 of the Constitu- tion.
In this view it becomes unnecessary to consider the questions raised under articles 19 and 31 of the
Constitu- tion.
In the result]t, I would allow the application. MUKHERJEA J.--This is an application presented by
one Chiranjitlal Chowdhuri, a shareholder of the Sholapur Spinning and Weaving Company Limited
(hereinafter referred to as the company), praying for a writ of mandamus and certain other reliefs
under article 32 of the Constitution. The company, which has its registered office within the State of
Bombay and is governed by the provisions of the Indian Companies Act, was incorporated with an
authorised capital of Rs. 48 lakhs divided into 1590, fully paid up ordinary shares of Rs. 100 each,
20 fully paid up ordinary shares of Rs. 500 each and 32,000 partly paid up cumulative preference
shares of Rs. 100 each. The present paid up capital of the company is Rs. 32 lakhs half of which is
represented by the fully paid up ordinary shares and the other half by the partly paid up cumulative
preference shares. The petitioner states in his petition that he holds in his own right three ordinary
shares and eighty prefercnce shares in the company, though according to his own admission the
,preference shares do not stand in his name but have been registered in the name of the Baroda
Bank Limited with which the shares are pledged. According to the respondents, the petitioner is the
registered holder of one single ordinary share in the company.
It appears that on July 27, 1949, the directors of the company gave a notice to the workers that the
mills would be closed, and pursuant to that notice, the mills were in fact closed on the 27th of
August following. On January 9, 1950, the Governor-General of India promulgated an Ordinance
which purported to make special provisions for the proper management and administration of the
company. It was stated in the preamble to the Ordinance that "on account of mismanagement and
neglect, a situation has arisen in the affairs of the Sholapur Spinning and Weaving Company
Limited which has prejudicially affected the production of an essential commodity and has caused
serious unemployment amongst a certain section of the community ", and it was on account of the
emergency arising from this situation that the promulgation of the Ordinance was necessary. The
provisions of the Ordinance, so far as they are material for our present purpose, may be summarised
as follows:
Under section 3 of the Ordinance, the Central Government may, at any time, by notified order,
appoint as many persons as it thinks fit, to be directors of the company for the purpose of taking
over its management and administration and may appoint one of such directors to be the Chairman.
Section 4 provides that on the issue of a notified order under section 3 all the directors of the
company holding office as such immediately before the issue of the order shall be deemed to have
vacated their offices. and any existing contract of management between the company and any
managing agent thereof shall be deemed to have terminated. The directors thus appointed shall be

for all purposes the directors of the company duly constituted under the Compa- nies Act and shall
alone be entitled to exercise all the powers of the directors of the company. The powers and the
duties of the directors are specified in section 5 and this section inter alia empowers the directors to
vary or cancel, with the previous sanction of the Central Government, any contract or agreement
entered into between the company and any other person if they are satisfied that such contract or
agreement is detrimental to the interests of the company. Section 10 lays down that no
compensation for premature termination of any contract could be claimed by the managing agent or
any other contracting party. It is provided by section 12 that so long as the management by the
statutory directors continues, the shareholders would be precluded from nominating or appointing
any person to be a director of the company and any resolution passed by them will not be effective
unless it is approved by the Central Government. This section lays down further that during this
period no proceeding for winding up of the company, or for appointment of a receiver in respect
thereof could be instituted in any court, unless it is sanctioned by the Central Government, and the
Central Government would be competent to impose any restrictions or limitations as regards
application of the provisions of the Indian Companies Act to, be affairs of the company. The only
other material provision is that contained in section 15, under which the Central Government may,
by notified order, direct that all or any of the powers exercisable by it under this Ordinance may be
exercised by the Government of Bombay.
In accordance with the provisions of section 15 mentioned above, the Central Government, by
notification issued on the same day that the Ordinance was promulgated, delegated all its powers
exercisable under the Ordinance to the Government of Bombay, On the next day, the Government of
Bombay appointed respondents 3 to 7 as directors of the company in terms of section 3 of the
Ordinance. On the 2nd of March, 1950, the respondent No. 9 was appointed a director and
respondent No. 5 having resigned his office in the meantime, the respondent No. 8 was appointed
in his place. On the 7th of April, 1950, the Ordinance was repealed and an Act was passed by the
Parliament of India, known as the Sholapur Spinning and Weaving Company (Emergency
Provisions)Act which re-enacted almost in identical terms all the provisions of the Ordinance and
provided further that all actions taken and orders made under the Ordinance shall be deemed to
have been taken or made under the corresponding provisions of the Act. The preamble to the
Ordinance was not however reproduced in the Act.
The petitioner in his petition has challenged the constitutional validity of both the Ordinance and
the Act. As the Ordinance is no longer in force and all its provisions have been incorporated in the
Act, it will not be necessary to deal with or refer to the enactments separately. Both the Ordinance
and the Act have been attacked on identical grounds and it is only necessary to enumerate briefly
what these grounds are.
The main ground put forward by the petitioner is that the pith and substance of the enactments is to
take possession of and control over the mills of the company which are its valuable assets and such
taking of possession of property is entirely beyond the powers of the Legislature. 'The provisions of
the Act, it is said, amount to deprivation of property of the shareholders as well as of the company
within the meaning of article 31 of the Constitution and the restrictions imposed on the rights of the
shareholders in respect to the shares held by them constitute an unjustifiable interference with

their rights to hold property and as such are void under article 19 (1) (f). It is urged that there was no
public purpose for which the Legislature could authorise the taking possession or acquisition of
property and such acquisition or taking of possession without payment of compensation is in
violation of the fundamental rights guaranteed by article 31 (2) of the Constitu- tion. It is said
further that the enactment denies to the company and its shareholders equality before the law. and
equal protection of laws and thus offends against the provisions of article 14 of the Constitution.
The only other material point raised is that the legislation is beyond the legislative competency of
the Parliament and is not covered by any of the items in the legislative lists. On these allegations, the
petitioner prays, in the first instance. that it may be declared that both the Act and the Ordinance
are ultra vires and void and an injunction may be issued restraining the respondents from exercising
any of the powers conferred upon them by the enactments. The third and the material prayer is for
issuing a writ of mandamus, "restraining the respondents 1 to 9 from exercising or purporting to
exercise any powers under the said Ordinance or Act and from in any manner interfering with the
management or affairs of the company under colour of or any purported exercise of any powers
under the Ordinance or the Act," The other prayers are not material for our purpose. Before I
address myself to the merits of this application it will be necessary to clear up two preliminary
matters in respect to which arguments were advanced at some length from the Bar. The first point
relates to the scope of our enquiry in the present case and raises the question as to what precisely
are the matters that have to be investigated and determined on this application of the petitioner.
The second point relates to the form of relief that can be prayed for and granted in a case of this
description. Article 32 (1) of the Constitution guarantees to every- body the right to move this court,
by appropriate proceeding, for enforcement of the fundamental rights which are enumerated in
Part 1II of the Constitution. Clause (2) of the article lays down that the Supreme Court shall have the
power to issue directions or orders or writs including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari whichever may be appropriate for the
enforcement of any of the rights conferred by this part.
Thus anybody who complains of infraction of any of the fundamental rights guaranteed by the
Constitution is at liberty to move the Supreme Court for the enforcement of such rights and this
court has been given the power to make orders and issuue directions or writs similar in nature to the
prerogative writs of English law as might be considered appropriate in particular cases. The
fundamental rights guaranteed by the Constitution are available not merely to individual citizens
but to corporate bodies as well except where the language of the provision or the nature of the right
compels the inference that they are applicable only to natural persons. An incorporated company,
therefore, can come up to this court for enforcement of its fundamental rights and so may the
individual shareholders to enforce their own; but it would not be open to an individual shareholder
to complain of an Act which affects the fundamental rights of the company except to the extent that
it constitutes an infraction of his own rights as well. This follows logically from the rule of law that a
corporation has a distinct legal personality of its own with rights and capacities, duties and
obligations separate from those of its individual members. As the rights are different and inhere in
different legal entities, it is not competent to one person to seek to enforce the rights of another
except where the law permits him to do so. A well known illustration of such exception is furnished
by the procedure that is sanctioned in an application for a writ of habeas corpus. Not only the man
who is imprisoned or detained in confinement but any person, provided he is not an absolute

stranger, can institute proceedings to obtain a writ of habeas corpus for the purpose of liberating
another from an illegal imprisonment.
The application before us under article 32 of the Con- stitution is on behalf of an individual
shareholder of the company. Article 32, as its provisions show,. is not directly concerned with the
determination of constitutional validity of particular legislative enactments. What it aims at is the
enforcing of fundamental rights guaranteed by the Constitution, no matter whether the necessity for
such enforcement arises out of an action of the executive or of the legislature. To make out a case
under this article, it is incumbent upon the petitioner to establish not merely that the law
complained of is beyond the competence of the particular legislature as not being covered by any of
the items in the legislative lists, but that it affects or invades his fundamental rights guaranteed by
the Constitu- tion, of which he could seek enforcement by an appropriate writ or order. The rights
that could be enforced under article 32 must ordinarily be the rights of the petitioner himself who
complains I of infraction of such rights and approaches the court for relief. This being the position,
the proper subject of our investigation would be what rights, if any, of the petitioner as a
shareholder of the company have been violated by the impugned legislation. A discussion of the
fundamental rights of the company as such would be outside the purview of our enquiry. It is settled
law that in order to redress a wrong done to the company, the action should prima facie be brought
by the company itself. It cannot be said that this course is not possible in the circumstances of the
present case. As the law is alleged to be unconstitutional, it is open to the old directors of the
company who have been ousted from their position by reason of the enactment to maintain that
they are directors still in the eye of law, and on that footing the majority of shareholders can also
assert 'the rights of the company as such. None of them, however, have come forward to institute
any proceeding on behalf of the company. Neither in form nor in substance does the present
application purport to be one made by the company itself. Indeed, the company is one of the
respondents, and opposes the petition. As regards the other point, it would appear from the
language of article 32 of the Constitution that. the sole object of the article is the enforcement of
fundamental rights guaranteed by the Constitution. A proceeding under this article cannot really
have any affinity to what is known as a declaratory suit. The first prayer made in the petition, n
seeks relief in the shape of a declaration that the Act is invalid and is apparently inappropriate to an
application under article 32; while the second purports to be framed for a relief by way of injunc-
tion consequent upon the first. As regards the third prayer, it has been contended by Mr. Joshi,
who appears for one of the respondents, that having regard to the nature of the case and the
allegations made by the petitioner himself, the prayer for a writ of mandamus, in the form in which
it has been made, is not tenable. What is argued is that a writ of mandamus can be prayed for, for
enforcement of statutory duties or to compel a person holding a public office to do or forbear from
doing something which is incumbent upon him to do or forbear from doing under the provisions of
any law. Assuming that the respondents in the present case are public servants, it is said that the
statutory duties which it is incumbent upon them to discharge are precisely the duties which are laid
down in the impugned Act itself. There is no legal obligation on their part to abstain from exercising
the powers conferred upon them by the impeached enactment which the court can be called upon
to enforce. These is really not much substance in this argument, for according to the petitioner the
impugned Act is not valid at all and consequently the respondents cannot take their stand on this
very Act to defeat the application for a writ in the nature of a mandamus. Any way, article 32 of the

Constitution gives us very wide discretion in the matter of framing our writs to suit the exigencies of
particular cases, and the application of the petitioner cannot be thrown out simply on the ground
that 'the proper writ or direction has not been prayed for.
Proceeding now to the merits of the case, the first contention that has been pressed before us by the
learned Counsel for the petitioner is that the effect of the Shola- pur Spinning and Weaving
Company Limited (Emergency Provi- sions) Act, has been to take away from the company and its
shareholders, possession of -property and other interests in commercial undertaking and vest the
same in certain persons who are appointed by the State, and the exercise of whose powers cannot be
directed or controlled in any way by the shareholders. As the taking of possession is not for any
public purpose and no provision for compensation has been made by the law which authorises it,
such law, it is said, violates the fundamental rights guaranteed under article 31 of the Constitution.
To appreciate the contention, it would be convenient first of all to advert to the provisions of the first
two clauses of article 31 of the Constitution. The first clause of article 31 lays down that "no person
shall be deprived of his property save by authority of law" The second clause provides: "No property,
movable or immovable, including any interest in, or in any company owning, any commercial or
industrial undertaking, shall be taken possession of or acquired for public purposes under any law
authorising the taking of such possession or such acquisition, unless the law provides for
compensation for the property taken posse- sion of or acquired and either fixes the amount of the
compensation, or specifies the principles on which, and the manner in which, the compensation is to
be determined and given."
It is a right inherent in every sovereign to take and appropriate private property belonging to
individual citizens for-public use. 'this right, which is described as eminent domain in American
law, is like the power of taxation, an offspring of political necessity, and it is supposed to be based
upon an implied reservation by Govern- ment that private property acquired by its citizens under its
protection may be taken or its use controlled for public benefit irrespective of the wishes of the
owner. Article 31 (2) of the Constitution prescribes a two- fold limit within which such superior right
of the State should be exercised. One limitation imposed upon acquisition or taking possession of
private property which is implied in the clause is that such taking must be for public purpose. The
other condition is that no property can be taken, unless the law which authorises such appropriation
contains a provision for payment of compensation in the manner laid down in the clause. So far as
article S1 (2) is concerned, the substantial question for our consideration is whether the impugned
legislation authorises any act amounting to acquisition or taking possession of private property
within the meaning of the clause.
It cannot be disputed that acquisition means and implies the acquiring of the entire title of the
expropriated owner, whatever the nature or extent of that title might be. The entire bundle of rights
which were vested in the original holder would pass on acquisition to the acquirer leaving nothing in
the former. In taking possession on the other hand, the title to the property admittedly remains in
the original holder, though he is excluded from possession or enjoyment of the property. Article 31
(,?) of the Constitu- tion itself makes a clear distinction between acquisition of property and taking
possession of it for a public purpose, though it places both of them on the same footing in the sense

that a legislation authorising either of these acts must make provision for payment of compensation
to the displaced or expropriated holder of the property. In the context in which the word
"acquisition" appears in article 31 (2), it can only mean and refer to acquisition of the entire interest
of the previous holder by transfer of title and I have no hesitation in holding that there is no such
acquisition either as regards the property of the company or of the shareholders in the present case.
The question, therefore, narrows down to this as to whether the legislation in question has
authorised the taking of possession of any property or interest belonging to the petitioner. It is
argued by the learned Attorney-General that the taking of possession as contemplated by article 31
(2) means the taking of possession of the entire bundle of rights which the previous holder had, by
excluding him from every part or item thereof. If the original holder is still left to exercise his
possession with regard to some of the rights which were within the folds of his title, it would not
amount to taking possession of the property for purposes of article 31 (2) of the Constitution.
Having laid down this proposition of law, the learned Attorney-General has taken us through the
various provisions of the impugned Act and the contention advanced by him substantially is that
neither the company nor the shareholders have been dispossessed from their property by reason of
the enactment. As regards the properties of the company, the directors, who have been given the
custody of the property, effects and actionable claims of the company, are, it is said, to exercise their
powers not in their own right but as agents of the company, whose beneficial interest in all its assets
has not been touched or taken away at all. No doubt the affairs of the company are to be managed by
a body of directors appointed by the State and not by the company, but this, it is argued, would not
amount to taking possession of any property or interest within the meaning of article 31 (2). Mr.
Chari on the other hand, has contended on behalf of the petitioner that after the management is
taken over by the statutory directors, it cannot be said that the company still retains possession or
control over its property and assets. Assuming that this State management was imposed in the
interests of the shareholders themselves and that the statutory directors are acting as the agents of
the company, the possession of the statutory directors could not, it is argued, be regarded in law as
possession of the company so long as they are bound to act in obedience to the dictates of the
Central Government and not of the company itself in the administration of its affairs. Possession of
an agent, it is said, cannot juridically be the possession of the principal, if the agent is to act not
according to the commands or dictates of the principal, but under the direction of an exterior
authority.
There can be no doubt that there is force in this contention, but as I have indicated at the outset,
we are not concerned in this case with the larger question as to how far the inter-position of this
statutory management and control amounts to taking possession of the property and assets
belonging to the company. The point for our consideration is a short one and that is whether by
virtue of the impugned legislation any property or interest of the petitioner himself, as a
shareholder of the company, has been taken possession of by the State or an authority appointed
under it, as contemplated by article 31 (2) of the Constitu- tion.
The petitioner as a shareholder has undoubtedly an interest in the company. His interest is
represented by the share he holds and the share is movable property according to the Indian
Companies Act with all the incidence of such property attached to it. Ordinarily, he is entitled to
enjoy the income arising from the shares in the shape of dividends; the share like any 'other

marketable commodity can be sold or transferred by way of mortgage or pledge. The holding of the
share in his name gives him the right to vote at the election of directors and thereby take a part,
though indirectly, in the management of the company's affairs. If the majority of shareholders sides
with him, he can have a resolution passed which would be binding on the company, and lastly, he
can institute proceedings for winding up of the company which may result in a distribution of the
net assets among the shareholders.
It cannot be disputed that the petitioner has not been dispossessed in any sense of the term of the
shares he holds. Nobody has taken the shares away from him. His legal and beneficial interest in
respect to the shares he holds is left intact. If the company declares dividend, he would be entitled to
the same. He can sell or otherwise dispose of the shares at any time at his option. The impugned Act
has affected him in this way that his right of voting at the election of directors has been kept in
abeyance so long as the management by the statutory director continues; and as a result of that, his
right to participate in the management of the company has been abridged to that extent. His rights
to pass resolutions or to institute winding up proceedings have also been restricted though they are
not wholly gone; these rights can be exercised only with the consent or sanction of the Central
Government. In my opinion, from the facts stated above, it cannot be held that the petitioner has
been dispossessed from the property owned by him. I may apply the test which Mr. Chari himself
formulated. If somebody had taken possession of the petitioner's shares and was clothed with the
authority to exercise all the powers which could be exercised by the holder of the shares under law,
then even if he purported to act as the petitioner's agent and exercise these powers for his benefit,
the possession of such person would not have been the petitioner's possession if he was bound to act
not under the directions of the petitioner or in obedience to his commands but under the directions
of some other person or authority. There is no doubt whatsoever that is not the position in the
present case. The State has not usurped the shareholders' right to vote or vested it in any other
authority. The State appoints directors of its own choice but that it does, not in exercise of the share-
holders' right to vote but in exercise of the powers vested in it by the impugned Act. Thus there has
been no dispossession of the shareholders from their right of voting at all. The same reasoning
applies to the other rights of the shareholders spoken of above, namely, their right of passing
resolutions and of presenting winding up petition. These rights have been restricted undoubtedly
and may not be capable of being exercised to the fullest extent as long as the management by the
State continues. Whether the restrictions are such as would bring the case within the mischief of
article 19 (1) (f) of the Constitution, 1 will examine presently; but 1 have no hesitation in holding that
they do not amount to dispossession of the shareholders from these rights in the sense that the
rights have been usurped by other people who are exercising them in place of the displaced
shareholders.
In the view that I have taken it is not necessary to discuss whether we can accept as sound the
contention put forward by the learned Attorney-General that the word "property" as used in article
31 of the Constitution connotes the entire property, that is to say the totality of the rights which the
ownership of the object connotes. According to Mr. Setalvad, if a shareholder is not deprived of the
entirety of his rights which he is entitled to exercise by reason of his being the owner or holder of
the share and some rights, however insignificant they might be, still remain in him, there cannot be
any dispossession as contemplated by article 31(2). It is difficult, in my opinion, to accept the

contention formulated in such broad terms. The test would certainly be as to whether the owner has
been dispossessed substantially from the rights held by him or the loss is only with regard to some
minor ingredients of the proprietory right. It is relevant to refer in this connection to an observation
made by Rich J. in a Full Bench decision of the High Court of Australia,(1) where the question
arose as to whether the taking of exclusive possession of a property for an indefinite period of time
by the Com- monwealth of Australia under Reg. 54 of the National Securi- ty Regulation amounted
to acquisition of property within the meaning of placitum 31, section 51, of the Commonwealth
Constitution. The majority of the Full Bench answered the question in the affirmative and the main
reason upon which the majority decision was based is thus expressed in the language of Rich J.--
"Property, in relation to land, is a bundle of rights exercisable with respect to the land. The tenant of
an unencumbered estate in fee simple in possession has the largest possible bundle. But there is
nothing in (1) See Minister of Stain for the Army v. Dalziel, 68 C L.R. p. 261, the placitum to suggest
that the legislature was intended to be at liberty to free itself from the restrictive provisions of the
placitum by taking care to seize something short of the whole bundle owned by the person whom it
was expropriating."
It is not, however, necessary for my purpose to pursue the matter any further, as in my opinion there
has been no dispossession of the rights of a shareholder in the present case.
Mr. Chari in course of his opening relied exclusively on clause (2) of article 31 of the Constitution.
During his reply, however, he laid some stress on clause (1) of the article as well, and his contention
seems to be that there was deprivation of property in the present case in contravention of the terms
of this clause. It is difficult to see what exactly is the contention of the learned Counsel and in which
way it assists him for purposes of the present case. It has been argued by the learned
Attorney-General that clause (1) of article 31 relates to a power different from that dealt with under
clause (2). According to him, what clause (1) contemplates is confiscation or destruction of property
in exercise of what are known as 'police powers' in American law, for which no payment of
compensation is necessary. I do not think it proper for purposes of the present case to enter into a
discussion on this somewhat debatable point which has been raised by the learned
Attorney-General. In interpreting the provisions of our Constitution, we should go by the plain
words used by the Constitution-makers and the importing of expressions like 'police power ; which
is a term of variable and indefinite connotation in American law can only make the task of
interpretation more difficult. It is also not necessary to express any opinion as to whether clauses
(1) and (2) of article 31 relate to exercise of different kinds of powers or they are to be taken as
cumulative provisions in relation to the same subjectmatter, namely, compulsory acquisition of
property. If the word "deprived" as used in clause (1) connotes the idea of destruction or
confiscation of property, obviously no such thing has happened in the present case. Again if clauses
(1) and (2) of article 31 have to be read together and "deprivation" in clause (1) is given the same
meaning as compulsory acquisition in clause (2), clause (1), which speaks neither of compensation
nor of public purpose, would not by itself, and apart from clause (2), assist the petitioner in any way.
If the two clauses are read disjunctively, the only question that may arise in connection with clause
(1) is whether or not the deprivation of property is authorised by law. Mr. Chari has raised a
question relating to the validity of the legislation on the ground of its not being covered by any of the

items in the legislative list and to this question I would advert later on; but apart from this, clause
(1) of article 31 of the Constitution seems to me to be altogether irrelevant for purposes of the
petitioner's case.
This leads me to the consideration of the next point raised by Mr. Chari, namely, whether these
restrictions offend against the provision of article 19(1)(f) of the Constitution.
Article 19(1) of the Constitution enumerates the different forms of individual liberty, the protection
of which is guaranteed by the Constitution. The remaining clauses of the article prescribe the limits
that may be placed upon these liberties by law, so that they may not conflict with public welfare or
general morality. Article 19(1)(f) guarantees to all citizens ' the right to acquire, hold or dispose of
property.' Any infringement of this provision would amount to a violation of the fundamental rights,
unless it comes within the exceptions provided for in clause (5) of the article. That clause permits
the imposition of reasonable restrictions upon the exercise of such righ teither in the interests of the
general public or for the protection of the interests of any Scheduled Tribe. Two questions,
therefore, arise in this connection: first, whether the restrictions that have been imposed upon the
rights of the petitioner as a shareholder in the company under the Sholapur Act amount to
infringement of his.right to acquire, hold or dispose of property within the meaning of article
19(1)(f) of the Constitution and secondly, if they do interefere with such rights, whether they are
covered by the exceptions 1aid down in clause (5) of the article.
So far as the first point is concerned, it is quite clear that there is no restriction whatsoever upon the
petitioner's right to acquire and dispose of any property. The shares which he holds do remain his
property and his right to dispose of them is not lettered in any way. If to 'hold' a property means to
possess it, there is no infringement of this right either, for, as I have stated already, the acts
complained of by the petitioner do not amount to dispossession of him from any property in the eye
of law. It is argued that 'holding' includes enjoyment of all benefits that are ordinarily attached to
the ownership of a property. The enjoyment of the fruits of a property is undoubtedly an incident of
ownership. The pecuniary benefit, which a share. holder derives from the shares he holds, is the
dividend and there is no limitation on the petitioner's right in this respect. The petitioner
undoubtedly has been precluded from exercising his right of voting at the election of directors so
long as the statutory directors continue to manage the affairs of the company. He cannot pass an
effective resolution in concurrence with the majority of shareholders without the consent or
sanction of the Central Government and without such sanction, there is also a disability on him to
institute any winding up proceedings in a court of law.
In my opinion, these are rights or privileges which are appurtenant to or flow from the ownership of
property, but by themselves and taken independently, they cannot be reck- oned as property capable
of being acquired, held or disposed of as is contemplated by article 19 (1) (f) of the Constitu- tion. I
do not think that there has been any restriction on the rights of a shareholder to hold, acquire or
dispose of his share by reason of the impugned enactment and consequently article 19 (1) (f) of the
Constitution is of no assistance to the petitioner. In this view, the other point does not arise for
consideration, but I may state here that even if it is conceded for argument's sake that the
disabilities imposed by the impugned legislation amount to restrictions on proprietory right, they

may very well be supported as reasonable restraints imposed in the interests of the general public,
viz., to secure the supply of a commodity essential to the community and to prevent a serious
unemployment amongst a section of the people. They are, therefore, protected completely by clause
(5)of article 19. This disposes of the second point raised by Mr. Chari. The next point urged on
behalf of the petitioner raises an important question of constitutional law which turns upon the
construction of article 14 of the Constitution. It is urged by the learned Counsel for the petitioner
that the Sholapur Act is a piece of discriminatory legislation which offends against the provision of
article 14 of the Constitu- tion. Article 14 guarantees to all persons in the territory of India equality
before the law and equal protection of the laws and its entire object, it is said, is to prevent any
person or class of persons from being singled out as a special subject of discriminatory legislation. It
is pointed out that the law in this case has selected one particular company and its shareholders and
has taken away from them the right to manage their own affairs, but the same treatment has not
been meted out to all other companies or shareholders situated in an identical manner.
Article 14 of the Constitution, it may be noted, corresponds to the equal protection clause in the
Fourteenth Amendment of the American Constitution which declares that "no State shall deny to
any person within its jurisdiction the equal protection of the laws." We have been referred in course
of the arguments on this point by the learned Counsel on both sides to quite a number of cases
decided by the American Supreme Court, where questions turning upon the construction of the
'equal protection' clause in the Ameri- can Constitution came up for consideration. A detailed
examination of these reports is neither necessary nor prof- itable for our present purpose but we
think we can cull a few general principles from some of the pronouncements of the American Judges
which might appear to us to be consonant with reason and help us in determining the true meaning
and scope of article 14 of our Constitution.
I may state here that so far as the violation of the equality clause in the Constitution is concerned,
the petitioner, as a shareholder of the company, has as much right to complain as the company
itself, for his complaint is that apart from the discrimination made against the company, the
impugned legislation has discriminated against him and the other shareholders of the company as a
group vis-a-vis the shareholders of all other companies governed by the Indian Companies Act who
have not been treated in a similar way. As the discriminatory treatment has been in respect to the
shareholders of this company alone, any one of the shareholders, whose interests are thus vitally
affected, has a right to complain and it is immaterial that there has been nodiscrimination inter se
amongst the shareholders themselves.
It must be admitted that the guarantee against the denial of equal protection of the laws does not
mean that identically the same rules of law should be made applicable to all persons within the
territory of India in spite of differences of circumstances and conditions. As has been said by the
Supreme Court of America, "equal protection of laws is a pledge of the protection of equal laws('),"
and this means "subjection to equal laws applying alike to all in the same situation(")." In other
words, there should be no discrimination between one person and another if as regards the
subject-matter of the legislation their position is the same. I am unable to accept the argument of
Mr. Chari that a legislation relating to one individual or one family or one body corporate would per
se violate the guarantee of the equal protection rule. There can certainly be a law applying to one

person or to one group of persons and it cannot be held to be (1) Yick Wo v. Hopkins, 118 U.S. at 369
(2) Southern Raliway Company v. Greene, 216 U.S 400,412.
unconstitutional if it is not discriminatory in its character (1). It would be bad law "if it arbitrarily
selects one individual or a class of individuals, one corporation or a class of corporations and visits a
penalty upon them, which is not imposed upon others guilty of like delinquency(2)." The legislature
undoubtedly has a wide field of choice in determining and classifying the subject of its laws, and if
the law deals alike with all of a certain class, it is normally not obnoxious to the charge of denial of
equal protection; but the classification should never be arbitrary. It must always rest upon some real
and substantial distinction bearing a reasonable and just relation to the things in respect to which
the classification is made; and classification made without any' substantial basis should be regarded
as invalid(3).
The question is whether judged by this test the impugned Act can be said to have contravened the
provision embodiedin article 14 of the Constitution. Obviously the Act purports to make provisions
which are of a drastic character and against the general law of the land as laid down in the Indian
Companies Act, in regard to the administration and management of the affairs of one company in
indian territory. The Act itself gives no reason for the legislation but the Ordinance, which was a
precursor of the Act expressly stated why the legislation was necessary. It said that owing to
mismanagement and neglect, a situation had arisen in the affairs of the company which prejudicially
affected the production of an essential commodity and caused serious unemployment amongst a
certain section of the community. Mr. Chari's contention in substance is that there are various
textile companies in India situated in a similar manner as the Sholapur company, against which
the same charges could be brought and for the control and regulation of which all the reasons that
are mentioned in the preamble to the Ordinance (1) Willis Constitutional Law, p. 580.
(2) Gulf C. & S. F.R. Co. v. Ellis. 163 U.S, 150, at 159. (3) Southern Railway Co. v. Greene, 216 US.
400, at 412 could be applied. Yet, it is said, the legislation has been passed with regard to this one
company alone. The argument seems plausible at first sight, but on a closer examination I do not
think that I can accept it as sound. It must be conceded that the Legislature has a wide discretion in
determining the subject matter of its laws. It is an accepted doctrine of the American Courts and
which seems to me to be well founded on principle, that the presumption is favour of the
constitutionality of an enactment and the burden is upon him who attacks it to show that there has
been a transgression of constitutional principles. As was said by the Supreme Court of America in
Middleton v. Texas Power and Light Company(1), 'It must be presumed that a Legislature
understands and correctly appreciates the needs of its own people, that its laws are directed to
problems made manifest by experience and that its discriminations are based upon adequate
grounds." This being the position, it is for the petitioner to establish facts which would prove that
the selection of this particular subject by the Legislature is unreasonable and based upon arbitrary
grounds. No allegations were made in the petition and no materials were placed before us to show as
to whether there are other companies in India which come precisely under the same category as the
Sholapur Spinning and Weaving Company and the reasons for imposing control upon the latter as
mentioned in the preamble to the Ordinance are applicable to them as well. Mr. Chari argues that
these are matters of common knowledge of which we should take judicial notice. I do not think that

this is the correct line of approach. It is quite true that the Legislature has, in this instance,
proceeded against one company only and its shareholders; but even one corporation or a group of
persons can be taken as a class by itself for the purpose of legislation, provided it exhibits some
exceptional features which are not possessed by others. The courts should prima facie (1) 219 u.s.
152 at p. 157.
lean in favour of constitutionality and should support the legislation if it is possible to do so on any
reasonable ground, and it is for the party who attacks the validity of the legislation to place all
materials before the court which would go to show that the selection is arbitrary and unsupportable.
Throwing out of vague hints that there may be other instances of similar nature is not enough for
this purpose. We have not even before us any statement on oath by the petitioner that what has been
alleged against this particular company may be said against other companies as well. If there was
any such statement, the respondents could have placed before us the whole string of events that led
up to the passing of this legislation. If we are to take judicial notice of the existence of similar other
badly managed companies, we must take notice also of the facts which appear in the parliamentary
proceedings in connection with this legislation which leave been referred to by my learned brother,
Fazl Ali J. in his judgment and which would go to establish that the facts connected with this
corporation are indeed exceptional and the discrimination that has been made can be supported on
just and reasonable grounds. I purpose- ly refrain from alluding to these facts or basing my deci-
sion thereon as we had no opportunity of investigating them properly during the course of the
hearing. As matters stand, no proper materials have been placed before us by either side and as I am
unable to say that the legislature cannot be supported on any reasonable ground, I think it to be
extremely risky to overthrow it on mere suspicion or vague conjectures. If it is possible to imagine or
think of cases of other companies where similar or identical conditions might prevail, it is also not
impossible to conceive of something" peculiar" or "unusual" to this corporation which led the
legislature to intervene in its affairs. As has been laid down by the Supreme Court of America, "The
Legislature is free to recognise degrees of harm and it may confine its restrictions to those cases
where the need is deemed to be the clearest"(1). We should (1) Radics, v. New York, 264 U.S.
bear in mind that a corporation, which is engaged in production of a commodity vitally essential to
the community, has a social character of its own, and it must not be regarded as the concern
primarily or only of those who invest their money in it. If its possibilities are large and it had a
prosperous and useful career for a long period of time and is about to collapse not for any economic
reason but through sheer perversity of the controlling authority, one cannot say that the legislature
has no authority to treat it as a class by itself and make special legislation applicable to it alone in
the interests of the community at large. The combination of circumstances which are present here
may be of such unique character as could not be existing in any other institution. But all these, I
must say, are matters which require investigation on proper materials which we have not got before
us in the present case. In these circumstances I am constrained to hold that the present applica-
tion must fail on the simple ground that the petitioner made no attempt to discharge the primafacie
burden that lay upon him and did not place before us the materials upon which a proper decision on
the point could be arrived at. In my opinion , therefore, the attack on the legislation on the ground of
the denial of equal protection of law cannot succeed.

The only other thing that requires to be considered is the argument of Mr. Chari that the law in
question is invalid as it is not covered by any of the items in the legislative list. In my opinion, this
argument has no substance. What the law has attempted to do is to regulate the affairs of this
company by laying down certain special rules for its management and administration. It is fully
covered by item No. 43 of the Union List which speaks inter alia of "incorporation, regulation and
winding up of trading corporations."
The result is that the application fails and is dismissed with costs.
DAS J.--As I have arrived at a conclusion different from that reached by the majority of this Court, I
consider it proper, out of my respect for the opinion of my learned colleagues, to state the reasons
for my conclusions in some detail.
On January 9, 1950, the Governor-General of India, acting under section 42 of the Government of
India Act, 1935, promulgated an Ordinance, being Ordinance No. II of 1950, concenrning the
Sholapur Spinning and Weaving Company, Limited, (hereafter referred to as the said company).
The preambles and the provisions of the Ordinance have been referred to in the judgment just
delivered by Mukherjea J. and need not be recapitulated by me in detail. Suffice it to say that the net
result of the Ordinance was that the managing agents of the said company were dismissed, the
directors holding office at the time automatically vacated their office, the Government was
authorised to nominate directors, the rights of the shareholders of this company were curtailed in
that it was made unlawful for them to nominate or appoint any director, no resolution passed by
them could be given effect to without the sanction of the Government and no proceeding for winding
up could be taken by them without such sanction, and power was given to the Government to
further modify the provisions of the Indian Companies Act in its application to the said company.
On the very day that the Ordinance was promulgated the Central Government acting under section
15 delegated all its powers to the Government of Bombay. On January 10, 1950, the Government of
Bombay appointed Respondents Nos. 3 to 7 as the new directors. On March 2, 1950, Respondent
No. 5 having resigned, Respondent No. 8 was appointed a director in his place and on the same day
Respondent No. 9 was also appointed as a director. In the meantime the new Constitu- tion had
come into force on January 26, 1950. On February 7, 1950, the new directors passed a resolution
sanctioning a call for Rs. 50 on the preference shares. Thereupon a suit being Suit No. 438 of 1950
was filed in the High Court of Bombay by one Dwarkadas Shrinivas against the new directors
challenging the validity of the Ordinance and the right of the new directors to make the call.
Bhagwati J. who tried the suit held that the Ordinance was valid and dismissed the suit. An appeal
(Appeal No. 48 of 1950) was taken from that decision which was dismissed by a Division Bench
(Chagla C.J. and Gajendragadkar J.) on August 29, 1950. In the meantime, on April 7, 1950, the
Ordinance was replaced by Act No. XXVIII of 1950. The Act substantially reproduced the provisions
of the Ordinance except that the preambles to the Ordinance were omitted. On May 29, 1950, the
present petition was filed by one Chiranjitlal Chowdhuri. The petitioner claims to be a shareholder
of the said company holding 80 preference shares and 3 ordinary shares. The preference shares,
according to him, stand in the name of the Bank of Baroda to whom they are said to have been
pledged. As those preference shares are not registered in the name of the petitioner he cannot assert
any right as holder of those shares. According to the respondents, the petitioner appears on the

register as holder of only one fully paid up ordinary share. For the purposes of this application, then,
the petitioner's interest in the said company must be taken as limited to only one fully paid up
ordinary share. The respondents are the Union of India, the State of Bombay and the new directors
besides the company itself. The respondent No. 5 having resigned, he is no longer a director and has
been wrongly impleaded as respondent. The reliefs prayed for are that the Ordinance and the Act
are ultra vires and void, that the Central Government and the State Government and the directors be
restrained from exercising any powers under the Ordinance or the Act, that a writ of mandamus be
issued restraining the new directors from exercising any powers under the Ordinance or the Act or
from in any manner interfering with the management of the affairs of the company under colour of
or in purported exercise of any powers under the said Ordinance or Act.
The validity of the Ordinance and the Act has been challenged before us on the following
grounds:--(i) that it was not within the legislative competence--(a) of the Gover- nor-General to
promulgate the Ordinance, or (b) of the Parliament to enact the Act, and (ii) that the Ordinance and
the Act infringe the fundamental rights of the shareholders as well as those of the said company and
are, therefore, void and inoperative under article 13.
Re (i)-.-The present application has been made by the petitioner under article 52 of the Constitution.
Sub-section (1) of that article guarantees the right to move this Court by appropriate proceedings for
the enforcement of the rights conferred by Part [1] of the Constitution. Sub-section (2) empowers
this Court to issue directions or orders or writs, including certain specified writs, whichever may be
appropriate, for the enforcement of any of the rights conferred by that Part. It is clear, therefore,
that article 32 can only be invoked for the purpose of the enforcement of the fundamental rights.
Article 32 does not permit an application merely for the purpose of agitating the competence of the
appropriate legislature in passing any particular enactment unless the enactment also infringes
any of the fundamental rights. In this case the claim is that the fundamental rights have been
infringed and, therefore, the question of legislative competence may also be incidentally raised on
this application. It does not appear to me, however, that there is any substance in this point for, in
my opinion, entry 33 of List I of the Seventh Schedule to the Government of India Act, 1935, and the
corresponding entry 43 of the Union List set out in the Seventh Schedule to the Constitu- tion
clearly support these pieces of legislation as far as the question of legislative competency is
concerned. Sec- tions 83A and 83-B of the Indian Companies Act can only be supported as valid on
the ground that they regulate the management of companies and are, therefore, within the said
entry. Likewise, the provisions of the Ordinance and the Act relating to the appointment of directors
by the Government and the curtailment of the shareholders' rights as regards the election of
directors, passing of resolutions giving directions with respect to the management of the company
and to present a winding up petition are matters touching the management of the company and, as
such, within the legislative competence of the appropriate legislative authority. In my judgment, the
Ordinance and the Act cannot be held to be invalid on the ground of legislative incompe- tency of
the authority promulgating or passing the same. Re (ii)--The fundamental rights said to have been
infringed are the right to acquire, hold and dispose of property guaranteed to every citizen by
Article 19(1)(f) and the right to property secured by article 31, In Gapalan's case (1) 1 pointed out
that the rights conferred by article 19 (1) (a) to (e) and (g) would be available to the citizen until he
was, under article 21, deprived of his life or personal liberty according to procedure established by

law and that the right to property guaranteed by article 19 (1)(f) would likewise continue until the
owner was, under article 31, deprived of such property by authority of law. Therefore, it will be
necessary to consider first whether the shareholder or the company has been deprived of his or its
property by authority of law under Article 31 for, if he or it has been so deprived, then the question
of his or its fundamental right under article 19 (1) (f) will not arise. The relevant clauses of article 31
run as follows "31. (1) No person shall be deprived of his property save by authority of law.
(2) No property, movable or immovable, including any interest in, or in any company owning, any
commercial or industrial undertaking, shall be taken possession of or acquired for public purposes
under any law authorisingthe taking of such possession or such acquisition, unless the law provides
for compensation for the property taken possession of or acquired (1) [1950] S.C.R. 88 and either
fixes the amount of the compensation, or specifies the principles on which, and the manner in
which, the compensation is to be determined and given."
Article 31 protects every person, whether such' person is a citizen or not. and it is wide enough to
cover a natural person as well as an artificial person. Whether or not, having regard to the
language used in article 5, a corporation can be called a citizen and as such entitled to the rights
guaranteed under article 19, it is quite clear that the corporation is protected by article 31, for that
article protects every "person" which expression certainly includes an artificial person.
The contention of the peitioner is that the Ordinance and the Act have infringed his fundamental
right to property as a shareholder in the said company. Article 31, like article 19(1) (f), is concerned
with "property ". Both the articles are in the same chapter and deal with fundamental rights.
Therefore, it is reasonable to say that the word "property" must be given the same meaning in
construing those two articles. What, then, is the meaning of the word "property"? It may mean
either the bundle of rights which the owner has over or in respect of a thing, tangible or intangible,
or it may mean the thing itself over or in respect of which the owner may exercise these rights. It is
quite clear that the Ordinance or the Act has not deprived the shareholder of his share itself. The
share still belongs to the shareholder. He is still entitled to the dividend that may be declared. He
can deal with or dispose of the share as he pleases. The learned Attorney-General contends that even
if the other meaning of the word "property" is adopted, the shareholder has not been deprived of
his" property" understood in that sense, that is to say he has not been deprived of the entire bundle
of rights which put together constitute his "property ". According to him the" property" of the
shareholder, besides and apart from his right to elect directors, to pass resolutions giving directions
to the directors and to present a winding up petition, consists in his right to participate in the
dividends declared on the profits made by the working of the company and, in case of winding up, to
participate in the surplus that may be left after meeting the winding up expenses and paying the
creditors. Those last mentioned rights, he points out, have not been touched at all and the
shareholder can yet deal with or dispose of his shares as he pleases and is still entitled to dividends if
and when declared. Therefore, concludes the learned Attorney-General, the shareholder cannot
complain that he has been deprived of his "property", for the totality of his rights have not been
taken away. The argument thus formulated appears to me to be somewhat too wide, for it will then
permit the legislature to authorise the State to acquire or take possession, without any
compensation, of almost the entire rights of the owner leaving to him only a few subsidiary rights.

This result could not, in my opinion, have been intended by our Constitution. As said by Rich J. in
the Minister for State for the Army v. Datziel (i) while dealing with section 31 (XXXI) of the
Australian Constitution--
"Property, in relation to land, is a bundle of rights exercisable with respect to the land. The tenant of
an unencurnbered estate in fee simple in possession has the largest possible bundle. But there is
nothing in the placitum to suggest that the legislature was intended to be at liberty to free itself
from the restrictive provisions of the placitum by taking care to seize something short of the whole
bundle owned by the person whom it is expropriating."
The learned Judge then concluded as follows at p. 286 :-
"It would in my opinion, be wholly inconsistent with the language of the placitum to hold that whilst
preventing the legislature from authorising the acquisition of a citizen's full title except upon just
terms, it leaves it open to the legislature to seize possession and enjoy the full fruits of possession
indefinitely, on any terms it chooses or upon no terms at all."
(1) (1943-1944) 68 C,L.R. 261.
In my judgment the question whether the Ordinance or the Act has deprived the shareholder of his
"property" must depend, for its answer, on whether it has taken away the substantial bulk of the
rights constituting his "property". In other words, if the rights taken away by the Ordinance or the
Act are such as would render the rights left untouched illusory and practically valueless, then there
can be no question that in effect and substance the "property" of the shareholder has been taken
away by the Ordinance or the Act. Judged by this test can it be said that the right to dispose of the
share and the right to receive dividend, if any, or to participate in the surplus in the case of winding
up that have been left to the shareholder are illusory or practically valueless, because the right to
control the management by directors elected by him, the right to pass resolutions giving directions
to the directors and the right to present a winding up petition have, for the time being, been
suspended ? I think not. The right still possessed by the shareholder are the most important of the
rights constituting his "property", although certain privileges incidental to the ownership have
been put in abeyance for the time being. It is, in my opinion, impossible to say that the Ordinance or
the Act has deprived the shareholder of his "property" in the sense in which that word is used in
article 19 (1) (f) and article 31. The curtailment of the incidental privileges, namely, the right to elect
directors, to pass resolutions and to apply for winding up may well be supported as a reasonable
restraint on the exercise and enjoyment of the shareholder's right of property imposed in the
interests of the general public under article 19 (5), namely, to secure the supply of an essential
commodity and to prevent unemployment.
Learned counsel for the petitioner, however, urges that the Ordinance and the Act have infringed the
shareholder's right to property in that he has been deprived of his valuable right to elect directors,
to give directions by passing resolutions and, in case of apprehension of loss, to present a petition
for the winding up of the company. These rights, it is urged, are by themselves "property" and it is
of this "property" that the shareholder is said to have been deprived bythe State under a law which

does not provide for payment of compensation and which is, as such, an infraction of the
shareholder's fundamental right to property under article 31 (2). Two questions arise on this
argument. Are these rights "property" within the meaning of the two articles I have mentioned ?
These rights, as already stated, are, no doubt, privileges incidental to the ownership of the share
which itself is property, but it cannot, in my opinion, be said that these rights, by themselves, and
apart from the share are "property" within the meaning of those articles, for those articles only
regard that as "property" which can by itself be acquired, disposed of or taken possession of. The
right to vote for the election of directors, the right to pass resolutions and the right to present a
petition for winding up are personal rights flowing from the ownership of the share and cannot by
themselves and apart from the share be acquired or disposed of or taken possession of as
contemplated by those articles. The second question is assuming that these rights are by themselves
"property ", what is the effect of the Ordinance and the Act on such "property". It is nobody's case
that the Ordinance or the Act has authorised any acquisition by the State of this "property" of the
shareholder or that there has in fact been any such acquisition. The only question then is whether
this "property" of the shareholder, meaning thereby only the rights mentioned above, has been
taken possession of by the State. It will be noticed that by the Ordinance or the Act these particular
rights of the shareholder have not been entirely taken away, for he can still exercise these rights
subject 0 course, to the sanction of the Government. Assuming, however, that the fetters placed on
these rights are tantamount to the taking away of the rights altogether, there is nothing to indicate
that the Ordinance or the Act has, after taking away the rights from the shareholder, vested them in
the State or in any other person named by it so as to enable the State or any other person to exercise
those rights of the shareholder. The Government undoubtedly appoints directors under the Act, but
such appointment is made in exercise of the the powers vested in the Government by the Ordinance
or the Act and not in exercise of the shareholder's right. As already indicated, entry 43 in the Union
List authorises Parliament to make laws with respect, amongst other things, to the regulation of
trading corporations. There was, therefore, nothing to prevent Parliament from amending the
Companies Act or from passing a new law regulating the management of the company by providing
that the directors, instead of being elected by the shareholders, should be appointed by the
Government. The new law has undoubtedly cut down the existing rights of the shareholder and
thereby deprived the shareholder of his unfettered right to appoint directors or to pass resolutions
giving directions or to present a winding up petition. Such deprivation, however, has not vested
the rights in the Government or its nominee. What has happened to the rights of the shareholder is
that such rights have been temporarily destroyed or kept in abeyance. The result, therefore, has
been that although the shareholder has been for the time being deprived of his "property", assuming
these rights to be "property", such "property" has not been acquired or taken possession of by the
Government. If this be the result brought about by the Ordinance and the Act, do they offend against
the fundamental rights guaranteed by article 31 ? Article 31 (1) formulates the fundamental right in a
negative form prohibiting the deprivation of property except by authority of law. It implies that a
person may be deprived of his property by authority of law. Article 31 (2) prohibits the acquisition
or taking possession of property for a public purpose under any law, unless such law provides for
payment of compensation. It is suggested that clauses (1) and (2)o[ article 31 deal with the same
topic, namely, compulsory acquisition or taking possession of property, clause (2) being only an
elaboration of clause (1). There appear to me to be two objections to this suggestion. If that were
the correct view, then clause (1).must be held to be wholly redundant and clause (2), by itself, would

have been sufficient. In the next place, such a view would exclude deprivation of property otherwise
than by acquisition or taking of possession. One can conceive of circumstances where the State may
have to deprive a person of his property without acquiring or taking possession of the same. For
example, in any emergency, in order to prevent a fire spreading, the authorities may have to
demolish an intervening building. This deprivation of property is supported in the United States of
America as an exercise of "police power ".This deprivation of property is different from acquisition
or taking of possession of property which goes by the name of "eminent domain" in the American
Law. The construction suggested implies that our Constitution has dealt with only the law of
"eminent domain ", but has not provided for deprivation of property in exercise of police powers' '. I
am not prepared to adopt such construction, for I do not feel pressed to do so by the language used
in article 31. On the contrary, the language of clause (1) of article 31 is wider than that of clause (2),
for deprivation of property may well be brought about otherwise than by acquiring or taking
possession of it. I think clause (1) enunciates the general principle that no person shall be deprived
of his property except by authority of law, which, put in a positive form, implies that a person may
be deprived of his property, provided he is so deprived by authority of law. No question of
compensation arises under clause (1). The effect of clause (2) is that only certain kinds of
deprivation of property, namely those brought about by acquisition or taking possession of it, will
not be permissible under any law, unless such law provides for payment of compensation. If the
deprivation of property is brought about by means other than acquisition or taking possession of it,
no compensation is required, provided that such deprivation is by authority of law. In this case, as
already stated, although the shareholder has been deprived of certain rights, such deprivation has
been by authority of law passed by a competent legislative authority. This deprivation having been
brought about otherwise than by acquisition or taking possession of such rights, no question of
compensation can arise and, therefore, there can be no question of the infraction of fundamental
rights under article 31 (2). It is clear, therefore, that so far as the shareholder is concerned there has
been no infringement of his fundamental rights under article 19 (1) (f) or article 31, and the
shareholder cannot question the constitutionality of the Ordinance or the Act on this ground.
As regards the company it is contended that the Ordi- nance and the Act by empowering the State to
dismiss the managing agent, to discharge the directors elected by the shareholders and to appoint
new directors have in effect authorised the State to take possession of the undertaking and assets of
the company through the new directors appointed by it without paying any compensation and,
therefore, such law is repugnant to article 31 (2) of our Constitution. It is, however, urged by the
learned Attorney-General that the mills and all other assets now in the possession and custody of
the new directors who are only servants or agents of the said company are, in the eye of the law, in
the possession and custody of the company and have not really been taken possession of by the
State. This argument, however, overlooks the fact that in order that the possession of the servant or
agent may be juridically regarded as the possession of the master or principal, the servant or agent
must be obedient to, and amenable to the directions of, the master or principal. If the master or
principal has no hand in the appointment of the servant or agent or has no control over him or has
no power to dismiss or discharge him, as in this case, the possession of such servant or agent can
hardly, in law, be regarded as the possession of the company(1). In this view of the (1) See Elements
of Law by Markby. 6th Edition. Para 371. p.

192. matter there is great force in the argument that the property of the company has been taken
possession of by the State through directors who have been appointed by the State in exercise of the
powers conferred by the Ordinance and the Act and who are under the direction and control of the
State and this has been done without payment of any compensation. The appropriate legislative
authority was no doubt induced to enact this law, because, as the preamble to the Ordinance stated,
on account of mismanagement and neglect, a situation had arisen in the affairs of the company
which had prejudicially-affected the production of an essential commodity and had caused serious
unemployment amongst a certain section of the community, but, as stated by Holmes J. in
Pennsylvania Coal Company v. Mahon(1), "A strong public desire to improve the public condition is
not enough to warrant achieving the desire by a shorter cut than the constitutional. way of paying
for the change." Here, therefore, it may well be argued that the property of the company having
been taken possession of by the State in exercise of powers conferred by a law which does not
provide for payment of any compensation, the fundamental right of the company has, in the eye of
the law, been infringed.
If the fundamental right of the company has been infringed, at all, who can complain about such
infringement ? Primafacie the company would be the proper person to come forward in vindication
of its own rights. It is said that the directors having been dismissed, the company cannot act. This,
however, is a misapprehension, for if the Act be void on account of its being unconstitutional, the
directors appointed by the shareholders have never in law been discharged and are still in the eye
of the law the directors of the company, and there was nothing to prevent them from taking
proceedings in the name of the company at their own risk as to costs. Seeing that the directors have
not come forward to make the application on behalf of the company and in its name the question
arises whether (1) 260 U,S. 393.
an individual shareholder can complain. It is well settled in the United States that no one but those
whose rights are directly affected by a law can raise the question of the constitutionality of that law.
Thus in McCabe v. Atchison(1) which arose out of a suit filed by five Negros against five Railway
Companies to restrain them from making any distinction in service on account of race pursuant to
an Oklahoma Act known as ' 'The Separate Coach Law," in upholding the dismissal of the suit
Hughes J. observed :--
"It is an elementary principle that in order to justify the granting of this extraordinary relief, the
complainants' need of it and the absence of an adequate remedy at law must clearly appear. The
complaint cannot succeed because someone else may be hurt. Nor does it make any difference that
other persons who may be injured are persons of the same race or occupation. It is the fact, clearly
established, of injury to the complainant--not to others -which justifies judicial interference."
In that case there was no allegation that anyone of the plaintiffs had ever travelled on anyone of the
rail roans or had requested any accommodation in any of the sleeping cars or that such request was
refused. The same principle was laid down in Jeffrey Manufacturing Company v. Blagg(2), Hendrick
v. MaCyland(3) and Newark Natural Gas and Fuel Company v. The City of Newark(1). In each of
these cases the Court declined to permit the person raising the question of constitutionality to do so
on the ground that his rights were not directly affected by the law or Ordinance in question. On the

other hand, in Truax v. Raich(5) and in Bu- chanan v. Warley(5) the Court allowed the plea because
in both the cases the person raising it was directly affected. In the first of the two last mentioned
cases an Arizona Act of 1914 requiring employers employing more than five workers to employ not
less than eighty per cent. native born citizens was (1) 235 u.s. 151. (4) 242 u.s. 403.
(2) 235 u.s. 571. (5) 239 u.s. 33.
(3) 235 U.S. 610 (6) 245 u.s. 60.
challenged by an alien who had been employed as a cook in a restaurant. That statute made a
violation of the Act by an employer punishable. The fact that the employment was at will or that the
employer and not the employee was subject to prosecution did not prevent the employee from
raising the question of constitutionality because the statute, if enforced, would compel the
employer to discharge the employee and, therefore, the employee was directly affected by the
statute. In the second of the two last mentioned cases a city Ordinance prevented the occupation of a
plot by a colored person in a block where a majority of the residences were occupied by white
persons. A white man sold his property in such a block to a Negro under a contract which provided
that the purchaser should not be required to accept a deed unless he would have a right, under the
laws of the city, to occupy the same as a residence. The vendor sued for specific performance and
contended that the Ordinance was unconstitutional. Although the alleged denial of constitutional
rights involved only the rights of coloured persons and the vendor was a white person yet it was held
that the vendor was directly affected, because the Courts below, in view of the Ordinance, declined
to enforce his contract and thereby directly affected his right to sell his property. It is, therefore,
clear that the constitutional validity of a law can be challenged only by a person whose interest is
directly affected by the law. The question then arises whether the infringement of the company's
rights so directly affects its shareholders as to entitle any of its shareholders to question the
constitutional validity of the law infringing the company's rights. The question has been answered in
the negative by the Supreme Court of the United States in Darnell v. The State of Indi- ana(1). In
that case the owner of a share in a Tennessee corporation was not allowed to complain that an
Indiana law discriminated against Tennessee corporations in that it did not make any allowance, as
it did in the case of Indiana corporations, where the corporation (1) 226 U.S. 388.
had property taxed within the State. This is in accord with the well established legal principle that a
corporation is a legal 'entity capable of holding pro perty and of suing or being sued and the
corporators are not, in contemplation of law, the owners of the assets of the corporation. In all
the cases referred to above the question of constitutionality was raised in connection with the equal
protection clause in the Fourteenth Amendment of the American Federal Constitution. If such be
the requirements of law in connection with the equal protection clause which corresponds to our
article 14, it appears to me to follow that only a person who is the owner of the property can raise the
question of constitutionality under article 31 of a law by which he is so deprived of his property. If
direct interest is necessary to permit a person to raise the question of constitutionality under article
14, a direct interest in the property will, I apprehend, be necessary to entitle a person to challenge a
law which is said to infringe the right to that property under article 31. In my opinion, although a
shareholder may, in a sense be interested to see that the company of which he is a shareholder is not

deprived of its property he cannot, as held in Darnell v. Indiana(1), be heard to complain, in his own
name and on his own behalf, of the infringement of the fundamental right to property of the
company, for, in law, his own right to property has not been infringed as he is not the owner of the
company's properties. An interest in the company owning an undertaking is not an interest in the
undertaking itself. The interest in the company which owns an undertaking is the "property" of the
shareholder under article 31 (2), but the undertaking is the property of the company and not that of
the shareholder and the latter cannot be said to have a direct interest in the property of the
company. This is the inevitable result of attributing a legal personality to a corporation. The
proceedings for a writ in the nature of a writ of habeas corpus appear to be somewhat different for
the (1) 226 u.S. 338 rules governing those proceedings permit, besides the person imprisoned, any
person, provided he is not an utter stranger, but is at least a friend or relation of the imprisoned
person, to apply for that particular writ. But that special rule does not appear to be applicable to the
other writs which require a direct and tangible interest in the applicant to support his application.
This must also be the case where the applicant seeks to raise the question of the constitutionality of
a under articles 14, 19 and 31. For the reasons set out above the present petitioner cannot raise the
question of constitutionality of the impugned law under article 31. He cannot complain of any
infringement of his own rights as a shareholder, because his "property" has not been acquired or
taken possession of by the State although he has been deprived of his right to vote and to present a
winding up petition by authority of law. Nor can he complain of an infringement of the company's
right to property because he is not, in the eye of law, the owner of the property in question and
accordingly not directly interested in it. In certain exceptional cases where the company's property
is injured by outsiders, a shareholder may, under the English law, alter making all endeavours to
induce the persons in charge of the affairs of the company to take steps, file a suit on behalf of
himself and other shareholders for redressing the wrong done to the company, but that principle
does not apply here for this is not a suit, nor has it been shown that any attempt was made by the
petitioner to induce the old directors to take steps nor do these proceedings purport to have been
taken by the petitioner on behalf of himself and the other shareholders of the.company.
The only other ground on which the Ordinance and the Act have been challenged is that they
infringe the the fundamental rights guaranteed by article 14 of the Constitution. "Equal protection
of the laws", as observed by Day 3. in Southern Railway Company v. Greene (1), "means subjection
to equal laws, applying (1) 216 U.S. 400 alike to all in the same situation". The inhibition of the
article that the State shall not deny to any person equality before the law or the equal protection of
the laws was designed to protect all persons against legislative discrimination amongst equals and
to prevent any person or class of persons from being singled out as a special subject for
discriminating and hostile legislation. It does not, however, mean that every law must have
universal application, for all persons are not, by nature, attainment or circumstances, in the same
position. The varying needs of different classes of persons often require separate treatment and it
is, therefore, established by judicial decisions that the equal protection clause of the Fourteenth
Amendment of the Ameri- can Constitution does not take away from the State the power to classify
persons for legislative purposes. This classification may be on different bases. It may be
geographical or according to objects or occupations or the like. If law deals equally with all of a
certain well-defined class it is not obnoxious and it is not open to the charge of a denial of equal
protection on the ground that it has no application to other persons, for the class for whom the law

has been made is different from other persons and, therefore, there is no discrimination amongst
equals. It is plain that every classification is in some degree likely' to produce some inequality, but
mere production of inequality is not by itself enough. The inequality produced, in order to encounter
the challenge of the Constitution, must be "actually and palpably unreasonable and arbitrary." Said
Day J. in Southern Railway Company v. Greene(1) :---" While reasonable classification is permitted,
without doing violence to the equal protection of the laws, such classification must be based upon
some real and substantial distinction, bearing a reasonable and just relation to the things in
respect to which such classification is imposed; and the classification cannot be arbitrarily made
without any substantial basis. Arbitrary selection, it has been said, cannot be justified by calling it
classification". Quite conceivably there may be a law relating to a single individual if it is made
apparent that, on account of some special reasons applicable only to him and inapplicable to anyone
else, that single individual is a class by himself. In Middieton v. Texas Power and Light Company(1)
it was pointed out that there was a strong presumption that a legislature understood and correctly
appreciated the needs of its own people, that its laws were directed to problems made manifest by
experience and that the discriminations were based upon adequate grounds. It was also pointed out
in that case that the burden was upon him who attacked a law for unconstitutionality. In Lindsley v.
Natural Carbonic Gas Company(2) It was also said that one who assailed the classification made in a
law must carry the burden of showing that it did not rest upon any reasonable basis but was
essentially arbitrary. If there is a classification, the Court will not hold it invalid merely because the
law might have been extended to other persons who in some respects might resemble the class for
which the law was made, for the legislature is the best judge of the needs of the particular classes
and to estimate the degree of evil so as to adjust its legislation according to the exigency found to
exist. If, however, there is, on the face of the statute, no classification at all or none on the basis of
any apparent difference specially peculiar to any particular individual or class and not applicable to
any other person or class of persons and yet the law hits only the particular individual or class it is
nothing but an attempt to arbitrarily single out an individual or class for discriminating and hostile
legislation. The presumption in favour of the legislature cannot in such a case be legitimately
stretched so as to throw the impossible onus on the complainant to prove affirmatively that there
are other individuals or class of individuals who also possess the precise amount of the identical
qualities which are attributed to him so as to form a class with him. As pointed out by Brewer J. in
the Gulf, Colorado and Santa Fe'Railway v.W.H. Ellis (3), while good faith (1} 249 U.S. 152. (2) 220
U.S. 61. (3) 165 U.S..
150. and a knowledge of existing conditions on the part of a legislature was to be presumed, yet to
carry that presumption to the extent of always holding that there must be some undisclosed and
unknown reason for subjecting certain individuals or corporations to hostile and discriminating
legislation was to make the protecting clause a mere rope of sand, in no manner restraining State
action. The complaint of the petitioner on this head is formulated in paragraph 8 (iii) of the
petition as follows :---"The Ordinance denied to the company and its shareholders equality before
the law and equal protection of the laws and was thus a violation of article 14 of the Constitution.
The power to make regulations relating to trading corporations or the control or production of
industries was a power which consistently with article 14 could be exercised only generally or with
reference to a class and not with reference to a single company or to shareholders of a single
company." The Act is also challenged on the same ground in paragraph 9 of the petition. The

learned Attorney-General contends that the petitioner as an individual shareholder cannot complain
of discrimination against the company. It will be noticed that it is not a case of a shareholder
complaining only about discrimination against the company or fighting the battle of the company
but it is a case of a shareholder complaining of discrimination against himself and other
shareholders of this company. It is true that there is no complaint of discrimination inter se the
shareholders of this company but the complaint is that the shareholders of this company, taken
as a unit, have been discriminated vis-a-vis the shareholders of other companies. Therefore, the
question as to the right of the shareholder to question the validity of a law infringing the right of the
company does not arise. Here the shareholder is complaining of the infringement of his own rights
and if such infringement can be established I see no reason why the shareholder cannot come within
article 32 to vindicate his own rights. The fact that these proceedings have been taken by one single
shareholder holding only one single fully paid up share does not appear to me to make any the least
difference in principle. If this petitioner has, by the Ordinance or the Act, been discriminated
against and denied equal protection of the law, his fundamental right has been infringed and his
right to approach this Court for redress cannot be made dependent on the readiness or willingness
of other shareholders whose rights have also been infringed to join him in these proceedings or of
the company to take substantive proceedings. To take an example, if any law discrimi- nates
against a class, say the Punjabis, any Punjabi may question the constitutionality of the law, without
joining the whole Punjabi community or without acting on behalf of all the Punjabis. To insist on his
doing so will be to put a fetter on his fundamental right under article 32 which the Constitution has
not imposed on him. Similarly, if any law deprives a particular shareholder or the shareholders of a
particular company of the ordinary rights of shareholders under the general law for reasons not
particularly and specially applicable to him or them but also applicable to other shareholders of
other companies, such law surely offends against article 14 and any one so denied the equal
protection of law may legitimately complain of the infringement of his fundamental right and is
entitled as of right to approach this Court under article 32 to enforce his own fundamental right
under article 14, irrespective of whether any other person joins him or not.
To the charge of denial of equal protection of the laws the respondents in the affidavit of Sri Vithal
N. Chandavar- kar filed in opposition to the petition make the following reply:--"With reference to
paragraph 6 of the petition, I deny the soundness of the submissions that on or from the 26th
January, 1950, when the Constitution of India came into force the said Ordinance became void
under article 13(1) of the Constitution or that the provisions thereof were inconsistent with the
provisions of Part III of the said Constitution or for any of the other grounds mentioned in
paragraph 8 of the said petition." In the whole of the affidavit in opposition there is no suggestion as
to why the promulgation of the Ordinance or the passing of the Act was considered necessary at all
or on what principle or basis either of them was founded. No attempt has been made in the affidavit
to show that the Ordinance or the Act was based upon any principle of classification at all or even
that the particular company and its shareholders possess any special qualities which are not to be
found in other companies and their shareholders and which, therefore, render this particular
company and its shareholders a class by themselves. Neither the affidavit in opposition nor the
learned Attorney-General in course of his arguments referred to the statement of the objects and
reasons for introducing the bill which was eventually enacted or the Parliamentary debates as
showing the reason why and under what circumstances this law was made and, therefore, apart

from the question of their admissibility in evidence, the petitioner has had no opportunity to deal
with or rebut them and the same cannot be used against him.
The learned Attorney-General takes his stand on the presumption that the law was founded on a
valid basis of classification, that its discriminations were based upon adequate grounds and that the
law was passed for safeguarding the needs of the people and that, therefore, the onus was upon the
petitioner to allege and prove that the classification which he challenged did not rest upon any
reasonable basis but was essentially arbitrary. I have already said that if on the face of the law there
is no classification at all or, at any rate, none on the basis of any apparent difference specially
peculiar to the individual or class affected by the law, it is only an instance of an arbitrary selection
of an individual or class for discriminating and hostile legislation and, therefore, no presumption
can, in such circumstances, arise at all. Assuming, however, that even in such a case the onus is
thrown on the complainant, there can be nothing to prevent him from proving, if he can, from the
text of. the law itself, that it is "actually and palpably unreasonable and arbitrary" and thereby
discharging the initial onus.
The Act is intituled an Act to make special provision for the proper management and administration
of the Sholapur Spinning and Weaving Company, Limited." There is not even a single preamble
alleging that the company was being mismanaged at all or that any special reason existed which
made it expedient to enact this law. The Act, on its face, does not purport to make any classification
at all or to specify any special' vice to which this particular company and its shareholders are subject
and which is not to be found in other companies and their shareholders so as to justify any special
treatment. Therefore., this Act, ex facie, is nothing but an arbitrary selection of this particular
company and its shareholders for discriminating and hostile treatment and read by itself.is
palpably an infringement of Article 14 of the Constitution.
The learned Attorney-General promptly takes us to the preambles to the Ordinance which has been
replaced by the Act and suggests that the Act is based on the same considerations on which the
Ordinance was promulgated. Assuming that it is right and permissible to refer to and utilise the
preambles, do they alter the situation ? The preambles were as follows :-"Whereas on account of
mismanagement and neglect a situation has arisen in the affairs of the Sholapur Spinning and
Weaving Company, Limited, which has prejudicially affected the production of an essential
commodity and has caused serious unemployment amongst a certain section of the community;And
whereas an emergency has arisen which renders it necessary to make special provision for the
proper management and administration of the aforesaid company;-" The above preambles quite
clearly indicate that the justification of the Ordinance rested on mismanagement and neglect
producing certain results therein specified. It will be noticed that apart from these preambles there
is no material whatever before us establishing or even suggesting that this company and its
shareholders have in fact been guilty of any mismanagement or neglect. Be that as it may, the only
reason put forward for the promulgation of the Ordinance was mismanagement resulting in falling
off of production and in producing unemployment. I do not find it necessary to say that
mismanagement and neglect in conducting the affairs of companies can never be a criterion or basis
of classification for legislative purposes. I shall assume that it is permissible to make a law whereby
all delinquent companies and 'their shareholders may be brought to book and all companies

mismanaging their affairs and the shareholders of such companies may, in the interest of the
general public, be deprived of their right to manage the affairs of their companies. Such a
classification made by a law would bear a reasonable relation to the conduct of all delinquent
companies and shareholders and may, therefore, create no inequality, for the delinquent
companies and their shareholders from a separate class and cannot claim equality of treatment with
good companies and their shareholders who are their betters. But a distinction cannot be made
between the delinquent companies inter se or between shareholders of equally delinquent
companies and one set cannot be punished for its delinquency while another set is permitted to
continue, or become, in like manner, delinquent without any punishment unless there be some
other apparent difference in their respective obligations and unless there be some cogent reason
why prevention of mismanagement is more imperative in one instance than in the other. To do so
will be nothing but an arbitrary selection which can never be justified as a permissible
classiffication. I am not saying that this particular company and its shareholders may not be guilty
of mismanagement and negligence which has brought about serious fall in production of an
essential commodity and also considerable unemployment. But if mismanagement affecting
production and resulting in unemployment is to be the basis of a classification for making a law for
preventing mismanagement and securing production and employment, the law must embrace
within its ambit all companies which now are or may hereafter become subject to the vice. This basis
of classification, by its very nature, cannot be exclusively applicable to any particular company and
its shareholders but is capable of wider application and, therefore, the law founded on that basis
must also be wide enough so as to be capable of being applicable to whoever may happen at any
time to fall within that classification. Mismanagement affecting production can never be reserved as
a special attribute peculiar to a particular company or the shareholders of a particular company. It it
were permissible for the legislature to single out an individual or class and to punish him or it for
some delinquency which may equally be found in other individuals or classes and to leave out the
other individuals or classes from the ambit of the law the prohibition of the denial of equal
protection of the laws would only be a meaningless and barren form of words. The argument that
the presumption being in favour of the legislature, the onus is on the petitioner to show there are
other individuals or companies equally guilty of mismanagement prejudicially affecting the
production of an essential commodity and causing serious unemployment amongst a certain section
of the community does not, in such. circumstances, arise, for the simple reason that here there has
been no classification at all and, in any case, the basis of classification by its very nature is much
wider and cannot, in it application, be limited only to this company and its shareholders and, that
being so, there is no reason to throw on the petitioner the almost impossible burden of proving that
there are other companies which are in fact precisely and in all particulars similarly situated In any
event, the petitioner, in my opinion, may well claim to have discharged the onus of showing that this
company and its shareholders have been singled out for discriminating treatment by showing that
the Act, on the face of it, has adopted a basis of classification which, by its very nature, cannot be
exclusively applicable to this company and its shareholders but Which may be equally appplicable
to other companies and their shareholders and has penalised this particular company and its
shareholders, leaving out other companms and their shareholders who may be equally guilty of the
alleged vice of mismanagement and neglect of the type referred to in the preambles. In my opinion
the legislation in question infringes the fundamental rights of the petitioner and offends against
article 14 of our Constitution. The result, therefore, is that this petition ought to succeed and the

petitioner should have an order in terms of prayer (3) of the petition with costs.
Petition dismissed.
Agent for the petitioner: M.S.K. Aiyengar. Agent for opposite party Nos. 1 & 2:P.A. Mehta. Agent for
opposite party Nos. 3 to 5 and 7 to 10:
Rajinder Narain.

Shibu Soren ... Appellant vs Dayanand Sahay & Ors. ... ... on 19 July, 2001

Author: D A.S.Anand
Bench: Cji, R.C. Lahoti, Shivaraj V. Patil
CASE NO.:
Appeal (civil) 3538 of 2000
PETITIONER:
SHIBU SOREN ... APPELLANT
Vs.
RESPONDENT:
DAYANAND SAHAY & ORS. ... RESPONDENTS
BENCH:
CJI, R.C. Lahoti & Shivaraj V. Patil
JUDGMENT:
DR. A.S.ANAND, CJI:
Pursuant to a Notification issued by the Election Commission for filling up seven seats of Rajya
Sabha, nine persons, including the appellant and seven respondents filed their nomination papers,
which on scrutiny were found to be valid. On the last date for withdrawal of nominations, one
candidate withdrew, thus leaving eight candidates to contest the election for seven seats. Polling
took place on 18th June, 1998 and after counting of votes, result was declared on the same date.
Appellant secured the highest number of votes (43.74) and along with respondents 2 to 7 was
declared elected. Respondent No.1 was defeated. Respondent No.1 herein, thereupon filed an
Election Petition under Section 80 and 81 of the Representation of Peoples Act, 1951 (hereinafter
referred to as the R.P. Act), calling in question election of the appellant on the ground that at the
time of filling his nomination papers, the appellant was holding "an office of profit" under the State
Government as Chairman of the Interim Jharkhand Area Autonomous Council (for short 'JAAC' ),
set up under the Jharkhand Area Autonomous Council Act, 1994 (hereinafter the JAAC Act) and was
thus disqualified to contest election to Rajya Sabha. Respondent No.1, not only sought setting aside
of the election of appellant but also a declaration to have been duly elected, instead, as a member of
the Rajya Sabha. Election petition was resisted by the appellant and it was asserted that office of
Chairman of the interim JAAC was not an 'office of profit' or even an 'office' under the State
Government and further that the election petitioner was barred from raising the challenge, for not
having raised that objection at the time of scrutiny of nomination papers before the returning
officer. It was vehemently maintained that the returned candidate had not been earning any 'profit'

and was drawing only honorarium and allowances to meet his 'out of pocket expenses' and the office
he was holding could not be treated as an 'office of profit' under the State Government and,
therefore, his election was not liable to be set aside. According to an additional plea raised by the
appellant, his disqualification, if any stood removed by Section 3 of the Parliament (Prevention of
Disqualification) Act, 1959 since he enjoyed the status of a Minister while functioning as Chairman
of the Interim Council.
On 10th May, 2000, a learned designated Judge of the Patna High Court, allowed the election
petition and set aside election of the appellant. It was held that the office of Chairman of Interim
JAAC was an 'office of profit' under the State Government because the payment of honorarium at
Rs.1750/- per month to the Chairman could not be construed as compensatory allowance. It was
also held that the Chairman of the interim JAAC held his office under the State Government and,
therefore, disqualification stipulated by Article 102(1)(a) of the Constitution of India was clearly
attracted to the appellant's election. It was further held that the said disqualification was not saved
by the Parliament "Prevention of Disqualification Act, 1959" on the pleas raised in the additional
written statement which inter alia included the plea that as Chairman of interim council, the
appellant enjoyed the 'status' and other privileges of a Minister within the State and hence his
disqualification stood removed by Section 3 of Prevention of Disqualification Act, 1959.
Consequently, the election of the appellant was declared void and respondent No.1 was declared
duly elected to Rajya Sabha. This appeal is directed against that judgment of the Patna High Court
dated 19th May, 2000.
Article 102(1)(a) of the Constitution of India deals with disqualifications for 'being chosen as' and
'for being a member of either House of Parliament' and inter alia provides:
(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;
A perusal of the above provision shows that three elements which are sine qua non for attracting the
above provision are that the person concerned must hold an office (1) under the Government of
India or any State; (2) the office should be an 'office of profit' and (3) the office should be other than
an office declared by Parliament by law not to disqualify its holder. Article 102(1)(a) (supra)
corresponds to Article 191(1)(a) of the Constitution of India which lays down similar
disqualifications for being chosen as or for being a member of the Legislative Council or Assembly of
a State.
Both Articles 102(1)(a) and Article 191(1)(a) were incorporated with a view to eliminate or in any
event reduce the risk of conflict between duty and interest amongst members of the Legislature so as
to ensure that the concerned legislator does not come under an obligation of the Executive, on
account of receiving pecuniary gain or profit from it, which may render him amenable to influence
of the Executive, while discharging his obligations as a legislator. It is in the context of Article

102(1)(a) (supra) that we have to examine the meaningful question whether the appellant in the
present case held an 'office of profit' under the State Government at the relevant time - the date of
scrutiny of nomination papers and whether that office has not been declared by the Parliament by
law not to disqualify its holder.
To examine this meaningful question let us first take a panoramic view of the case law on the
subject.
In Ravabba Subanna vs. G. S. Kaggeerappa, A.I.R. 1954 S.C. 653, the issue involved was whether a
person holding the position of Chairman of Gubbi Taluk Development Committee, could be said to
be holding an 'office of profit' under the Government.
During the elections held for Town Municipal Councillorship of Gubbi in the State of Mysore an
objection was raised at the time of scrutiny of nomination papers to the nomination of the appellant,
in that case, on the ground that he was holding an office of profit under the Government (Chairman
of Gubbi Taluk Development Committee) and was therefore disqualified for being chosen as a
Councillor under Section 14 of the Mysore Town Municipalities Act, 1951. The objection was
overruled and nomination paper of the appellant was accepted. After voting, the appellant was
declared elected. The respondent filed an Election Petition before the appropriate forum. The
learned Designated authority dismissed the Election Petition holding that the appellant who was
drawing a fee of Rs.6/- per sitting could not be said to be holding an 'office of profit' under the
Government as contemplated by Section 14 of the Act. The High Court of Mysore, accepted the
appeal filed by the respondent and set aside election of the appellant. Allowing the appeal of the
appellant this Court held that a fee of Rs.6/- which the Chairman was entitled to draw for each
sitting of the Committee was neither meant to be payment by way of remuneration nor could it
amount to 'profit'; and that the fee was paid to the Chairman to enable him to meet "out of pocket
expenses which he has to incur for attending the meetings of the committee". This Court,
accordingly, held the appellant could not be said to be "holding any office of profit" under the
Government at the material time.
In Maulana Abdul Shakur vs. Rikhab Chand and another : (1958) SCR 387 a Constitution Bench of
this Court considered the case of a Manager of a School run by a Committee of Management formed
under the provisions of the Dargah Khwaja Saheb Act, 1955. The concerned candidate had been
appointed by the Administrator of the Dargah and was being paid a salary of Rs.100/- per month.
The Government of India under sections 5 and 9 of the DKS Act, 1955 had the power to appoint as
well as remove Members of the Committee of Management and power to appoint an Administrator
in consultation with the Committee. It was found on facts, by the court, that the concerned
candidate was neither appointed by the Government of India nor was he removable by it. It was also
found that his salary was not fixed or paid by the Government but that the same was paid out of the
funds of the Dargah endowment. In the light of these facts, the Bench opined that though the
appellant was holding his appointment under a statutory body appointed by the Government, he
could not be held to be holder of an office of profit under the Government of India within the
meaning of Article 102 (1)(a) of the Constitution of India. The Bench accordingly set aside the
judgment of the High Court which had held the election of the concerned candidate to be bad on the

ground that the concerned candidate was holding an office of profit under the Government at the
relevant time. This Court observed :.
"On the other hand on March 1, 1956, he was holding his appointment under a Committee which is a
statutory body and such appointment cannot be called an appointment by or under the control of
the Government of India nor is his salary paid out of the revenues of the Government but out of the
funds of Durgah Endowment. In the circumstances the majority of the Tribunal has erred in holding
that the appellant held an office of profit under the Government and the opinion of the Chairman to
the contrary lays down the correct position."
In Kanta Kathuria vs. Manak Chand Surana, (1970) 2 SCR 835, a Constitution Bench of this Court
considered the case of an Advocate, who held an office of Special Government Pleader under the
Government of Rajasthan to conduct arbitration cases between the Government and Modern
Construction Company. Her remuneration had been fixed at Rs. 150/- per day for each date of
hearing, Rs.75/- per day for days of travel and dates on which the case was adjourned as well as for
days spent on preparation of the case. She held that office for over two years. She contested
assembly elections in 1967 and was declared elected to the Rajasthan Legislative Assembly. On her
election being challenged, the High Court held that she was disqualified on the ground of holding an
office of profit under the State Government. During the pendency of her appeal in the Supreme
Court, the Governor of Rajasthan by an Ordinance removed the particular 'disqualification'
retrospectively. The Ordinance was replaced by an Act by the Legislature. Dealing with the issue
whether the office held by the appellant in that case could be said to be an office of profit under the
State Government of Rajasthan and the effect of the Act of the state legislature removing that
disqualification, Sikri, J. speaking for the majority of the Bench opined:
"It seems to us that the High Court erred in holding that the appellant held an office. There is no
doubt that if her engagement as Special Government Pleader amounted to appointment to an office;
it would be an office of profit under the State Government of Rajasthan. The word 'office' has
various meanings and we have to see which is the appropriate meaning to be ascribed to this word in
the context. It seems to us that the words 'its holder' occurring in Art. 191(1)(a), indicate that there
must be an office which exists independently of the holder of the office. Further, the very fact that
the Legislature of the State has been authorised by Art. 191 to declare an office of profit not to
disqualify its holder, contemplates existence of an office apart from its holder. In other words, the
Legislature of a State is empowered to declare that an office of profit of a particular description or
name would not disqualify its holder and not that a particular holder of an office of profit would not
be disqualified."
and finally held that the appellant was not disqualified to contest the election under Article 191(1)(a)
of the Constitution.
Dealing with the question of removal of disqualification retrospectively by the Rajasthan Legislative
Assembly, the majority also opined that the State Legislature was competent to declare a certain
office as not to disqualify its holder to contest election to the State Legislature. Bench repelled the
argument that the impugned Act, i.e., Removal of Disqualification Act as enacted by the state

Legislature amounted to amending or altering the Representation of People Act, 1951. Consequently
the appeal of Kanta Kathuria was allowed and judgment of the High Court was set aside and election
petition of the respondent was dismissed.
The minority speaking through Hidayatullah, C.J., however, held that Ms. Kathuria was holding an
"office of profit" under the State but agreed with the majority that her disqualification stood
removed by retrospective operation of the Removal of Disqualification Act, which the State
Legislature was 'competent to enact'.
In Shivamurthy Swami vs. Agadi Sanganna Andanappa, 1971(3) SCC 870, the question under
consideration of this Court was whether a Member of Koppal Taluk Development Board as well as a
member of the District Development Council could be said to be holding an 'office of profit' under
the Government. After analysing the fact situation besides relevant provisions including provisions
of Article 102(1)(a) of the Constitution and various precedents of this Court, the Bench opined:
"... Therefore before the provisions of that Article can be attracted, it must be established that he was
holding an office under the Union or the State Government and that that office was an office of
profit and thereafter we must see whether the disqualification relating to that office has been
removed by any Parliamentary legislation. In other words, the office in question must have been
held under a Government and to that some pay, salary, emoluments or allowance is attached. The
word 'profit' connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount
would not be material; but the amount of money receivable by a person in connection with the office
he holds may be material in deciding whether the office really carries any profit...". (Emphasis
supplied) The Bench noticed that the concerned person. Sangappa, became an ex- officio member of
these bodies by virtue of his being elected as a member of the Mysore Legislative Council and
therefore "it could not be said that he was holding those offices under the Government." The Court
further opined that the allowances paid to the members of the Koppal Taluk Development Board
and District Development Council were intended to meet their out of pocket expenses and were in
the nature of compensatory allowances and not "profits". The Court summarised the tests which
may be applied to determine whether an "office" is an office of profit under the State Government
thus:
(1) whether the Government makes the appointment;
(2) whether the Government has the right to remove or dismiss the holder; (3) whether the
Government pays the remuneration;
(4) what are the functions of the holder; and (5) Does the Government exercise any control over the
performance of those functions?"
In Karbhari Bhimaji Rohamare vs. Shankar Rao Genuji Kolhe & Ors., (1975) 1 SCC 252, election of
Respondent No.1, who was a member of Wage Board for Sugar Industry constituted by the
Government of Maharashtra under Bombay Industrial Relations Act, 1946, was called in question
on various grounds. In the Supreme Court, however, only ground pressed was to the effect that the

election of first Respondent in that case was liable to be set aside on the ground that he was holding
'an office of profit' under the State Government as 'a member of the Wage Board'. After noticing
various provisions of the relevant statutes, it was held that first Respondent did hold an 'office under
the Government', but that it was not 'an office of profit'.
Reference was made to the notification constituting the Wage Board as well as to the resolution
appended thereto, which provided that non-official members of the Wage Board would be paid
honorarium at the rate of Rs.25/- per day for attending meeting of the Wage Board and that they
would also be allowed to draw Travelling Allowance and Daily Allowance at the rate prescribed
under the Bombay Civil Service Rules. This Court opined that mere drawal of Daily Allowance and
Travelling Allowance could not make membership of the Board, an 'office of profit' as the drawal of
those allowances would fall within the definition of the expression "Compensatory Allowance". The
controversy, however, centered around the question whether honorarium payable to the members of
the Wage Board could render that office as an 'office of profit'. After referring to dictionary meaning
of the word "honorarium" and its interpretation in some other judgments, this Court agreed with the
learned Judge of the High Court, who had refused to set aside the election of the first Respondent,
that "the payment of honorarium to the first Respondent, apart from Daily Allowance and Travelling
Allowance, for attending the meetings of the Board did not amount to the first Respondent 'making
any pecuniary gain thereby'." It was opined that merely because part of the payment made to the
first Respondent was called 'honorarium', it did not lead to a conclusion that it was not meant to
meet daily expenses, and was meant to be 'a source of profit'. In the words of the Court:
"...Merely because part of the payment made to the first respondent is called honorarium and part of
the payment daily allowance, we cannot come to the conclusion that the daily allowance is sufficient
to meet his daily expenses and the honorarium is a source of profit. A member of the Wage Board
cannot expect to stay in Taj Hotel and have a few drinks and claim the expenditure incurred, which
may come perhaps to Rs.150 to Rs.200 a day, for his personal expenses. In such a case it may well
be held to give him a pecuniary gain. On the other hand he is not expected to live like a sanyasi and
stay in a dharmshala and depend upon the hospitality of his friends and relatives or force himself
upon them. Nobody with a knowledge of the expenditure likely to be incurred by a person staying at
a place away from his home could fail to realise how correct the assessment of the learned Judge is.
We are satisfied that the payments made to the first respondent cannot be a source of profit unless
he stays with some friends or relatives or stays in a dharmshala..."
The Court further opined:
"The question has to be looked at in a realistic way. ...The law regarding the question whether a
person holds an office of profit should be interpreted reasonably having regard to the circumstances
of the case and the times with which one is concerned, as also the class of person whose case we are
dealing with and not divorced from reality. The first respondent did not hold an office of profit."
(Emphasis ours) This Court, thus, held that the first respondent in that case did not hold 'an office of
profit' and as such did not incur any disqualification for being a member of the legislature.

A two Judge Bench of this Court in Surya Kant Roy vs. Imamul Hai Khan (1975) 3 SCR 909 dealt
with the case of Chairman of a Board constituted under the Bihar and Orissa Mining Settlement Act,
1920. He was appointed as Chairman by the State Government from amongst the Members of the
Board. The High Court had held that the returned candidate in that case, namely the Chairman of
the Board, did not suffer from a disqualification envisaged by Article 102 of the Constitution.
Agreeing with the High Court, the Court. opined that merely because returned candidate had been
appointed as Chairman of the Board by the Government from amongst the Members of the Board, it
would not make him a person holding an office under the State Government:. The Court also held
the fact that Government provided grants to the Board, did not mean that "all the funds of the Board
were Government funds or Government properties". The Court noticed the tests laid down in
Shivamurthy Swami's case (supra) and observed that the Government did not pay the remuneration
nor did the holder of the office perform his functions for the Government and, therefore, he could
not be said to hold an office under the State Government. The question whether the office was an
'office of profit' was, however, left open for want of material on the record. The Bench opined :-
"The office held by the respondent is held under a local authority. The holding of an office of profit
in it does not bring about a disqualification even if that local authority be under the control of the
Government. The mere control of Government over the authority having the power to appoint,
dismiss, or control the working of the officer employed by such authority does not disqualify that
officer from being a candidate for election as a member of the Legislature. Therefore, the control
exercised by the Government over the Board in this case does not make the Board an organ of the
Government nor does it make the respondent a person holding an office under the Government. It
is, therefore, unnecessary to go into the question whether the office held by the respondent was an
office of profit, though we may indicate that on the evidence available in this case we have come to
the conclusion that it is not an office of profit."
(Emphasis ours) In Madhukar G. E. Pankakar Vs. Jaswant Chobbildas Rajani & Ors., (1977) 1 SCC
70, the name of the appellant was included in the list of doctors under the Employees State
Insurance Scheme. He resigned from his job under ESIS before the date of poll to the Municipal
Election, but after the date of filing of nomination papers. In challenging his election, the defeated
candidate urged that as a doctor under the ESI Corporation, the appellant was holding 'an office of
profit'. After a detailed analysis of various judgments and statutory provisions, this Court held that
appellant suffered no such disqualification. The Court elaborately dealt with the issue of
disqualification on the ground of holding 'an office of profit' under the State/Central Government
and opined:
"Back to the issue of 'office of profit'. If the position of an insurance medical officer is an 'office', it
actually yields profit or at least probably may. In this very case the appellant was making sizeable
income by way of capitation fee from the medical services, rendered to insured employees. The
crucial question then is whether this species of medical officers are holding 'office' and that 'under
government'. There is a haphazard heap of case-law about these expressions but they strike different
notes and our job is to orchestrate them in the setting of the statute. After all, all law is a means to
an end. What is the legislative end here in disqualifying holders of 'offices of profit under
government'? Obviously, to avoid a conflict between duty and interest, to cut out the misuse of

official position to advance private benefit and to avert the likelihood of influencing government to
promote personal advantage. So this is the mischief to be suppressed. At the same time we have to
bear in mind that our Constitution mandates the State to undertake multiform public welfare and
socio-economic activities involving technical persons, welfare workers, and lay people on a massive
scale so that participatory government may prove a progressive reality. In such an expanding
situation, can we keep out from elective posts at various levels many doctors, lawyers, engineers and
scientists, not to speak of an army of other non- officials who are wanted in various fields, not as
full-time government servants but as part time participants in people's projects sponsored by
government? For instance, if a National Legal Services Authority funded largely by the State comes
into being, a large segment of the legal profession may be employed part time in the ennobling
occupation of legal aid to the poor. Doctors, lawyers, engineers, scientists and other experts may
have to be invited into local bodies, legislatures and like political and administrative organs based
on election if these vital limbs of representative government are not to be the monopoly of populist
politicians or lay members but sprinkled with technicians in an age which belongs to technology. So,
an interpretation of 'office of profit' to cast the net so wide that all our citizens with specialities and
knowhow are inhibited from entering elected organs of public administration and offering
semi-voluntary services in para-official, statutory or like projects run or directed by Government or
corporations controlled by the State may be detrimental to democracy itself. Even athletes may
hesitate to come into Sports Councils if some fee for services is paid and that proves their funeral if
elected to a panchayat. A balanced view, even if it involves 'judicious irreverence' to vintage
precedents, is the wiser desideratum".
In Biharilal Dobray vs. Roshan Lal Dobray, (1984) 1 SCC 551, the Court once again reiterated that a
person, who is elected to a legislature should be free to carry out his duties fearlessly 'without being
subjected to any kind of governmental pressure' and that Article 191(1)(a) is intended to eliminate
the possibility of a conflict between duty and interest with a view to maintain purity of the
legislature and that relevant provision has to be interpreted in a realistic manner only so to achieve
that objective.
Ashok Kumar Bhattacharyya vs. Ajoy Biswas, (1985) 2 SCR 50, was a case concerning an employee
of the Agartala Municipality holding the post of an Assistant Accountant which carried a pay scale of
Rs.80-180/- per month. At the relevant time that employee was drawing a monthly salary of
Rs.200/-. The Bench opined:
"For determination of the question whether a person holds an office of profit under the Government
each case must be measured and judged in the light of the relevant provisions of the Act... To make
in all cases employees of local authorities subject to the control of Government and to treat them as
holders of office of profit under the Government would be to obliterate the specific differentiation
made under Article 58(2) and Article 102(1)(a) of the Constitution and to extend the disqualification
under Article 58(2) to one under Article 102(1)(a) to an extent not warranted by the language of the
Article."
The Bench approved the decision of the High Court holding that the returned candidate in that case
did not hold an 'office of profit' under the Government of Tripura on the date of the filing of his

nomination papers.
In Satrucharla Chandrasekher Raju Vs. Vyricherla Pradeep Kumar Dev, (1992) Supp.1 SCR 408, the
appellant had been appointed as a Single Teacher in a primary school by the Project Officer of the
Integrated Tribal Development Agency (ITDA). The High Court held that the appellant was holding
an 'office of profit' and had, thus, incurred a disqualification envisaged by Article 191(1)(a) of the
Constitution. Setting aside the order of the High Court, and allowing the appeal it was held by this
Court:
"What emerges from the above discussion is that the Government has some control over the ITDA
which is set up as a project, since it provides funds and sanctions the posts: the District Collector is
appointed as Project Officer and some officers are ex-officio members of the ITDA which carries out
the object of providing the compulsory education in tribal areas. But the ITDA is a registered Society
having its own constitution. Though the Project Officer is the District Collector, he acts as a different
entity. The power to appoint or to remove teachers is not with the Government but with the Project
Officer. The Government may have control over the appointing authority but has no direct control
over the teachers. The small post that appellant holds in ITDA is only that of a Teacher who is
directly under the control of the Project Officer. In such a situation the question of any conflict
between his duties and interests as an elected member does not arise since it cannot be said that he,
as a teacher, can be subjected to any kind of pressure by the Government which has neither the
power to appoint him nor to remove him from service. Taking a practical view of the substance of
these factors into consideration, we are of the view that the appellant cannot be held to be holding
an office of profit under the Government...".
(emphasis supplied) From a resume of precedents noticed above we find that in order to attract
disqualification contained in Article 102(1)(a), a person must not only be holding "an office" but that
office must be "an office of profit" and should be "under the Government" and should be an office
other than an office declared by the competent legislature by law, not to disqualify its holder. The
first question which comes to the fore, therefore is as to when can a person be said to be 'holding an
office of profit' under the Government.
The expression "office of profit" has not been defined either in the Constitution or in the
Representation of People Act. In common parlance, the expression 'profit' connotes an idea of some
pecuniary gain. If there is really some gain, its label - 'honorarium' - 'remuneration' - 'salary' is not
material
- it is the substance and not the form which matters and even the quantum or amount of "pecuniary
gain" is not relevant - what needs to be found out is whether the amount of money receivable by the
concerned person in connection with the office he holds, gives to him some "pecuniary gain", other
than as 'compensation' to defray his out of pocket expenses, which may have the possibility to bring
that person under the influence of the executive, which is conferring that benefit on him.
With a view to determine whether the concerned office is an "office of profit", the Court must,
however, take a realistic view. Taking a broad or general view, ignoring essential details is not

desirable nor is it permissible to take a narrow view by which technicality may overtake reality. It is
a rule of interpretation of statutes that the statutory provisions are so construed as to avoid
absurdity and to further rather than defeat or frustrate the object of the enactment. Courts,
therefore, while construing a statute avoid strict construction by construing the entire Act. (See with
advantage Ashok Kumar Bhattacharyya vs. Ajoy Biswas and ors., 1985 (2) SCR 50; Tinsukhia
Electric Supply Co. Ltd. vs. State of Assam and ors., 1989 (3) SCC 709 and Commissioner of Income
Tax, Bangalore vs. J.H. Gotla, Yadagiri, 1985 (4) SCC 343). While interpreting statutory provisions,
courts have to be mindful of the consequences of disqualifying a candidate for being chosen as, and
for being, a member of the legislature on the ground of his holding an office of profit under the State
or the Central Government, at the relevant time. The Court has to bear in mind that what is at stake
is the right to contest an election and to be a member of the legislature, indeed a very important
right in any democratic set up. "A practical view not pedantic basket of tests" must, therefore, guide
the Courts to arrive at an appropriate conclusion. A ban on candidature must have a substantial and
reasonable nexus to the object sought to be achieved namely, elimination of or in any event
reduction of possibility of misuse of the position which the concerned legislator holds or had held at
the relevant time. The principle for debarring holders of office of profit under the Government from
being a Member of Parliament is that such person cannot exercise his functions independently of
the executive of which he becomes a part by receiving "pecuniary gain". Under Article 102(1)(a), of
course, the Parliament has the jurisdiction to declare an 'office' as not to disqualify its holder to be a
Member of Parliament and likewise under Article 191(1)(a) the State Legislature has the jurisdiction
to declare an 'office' as not to disqualify its holder to be a member of the State Legislatures.
Moreover, apart from the office being an "office of profit", it must also be an office under the State or
Central Government.
When can a person be said to be holding an office of profit "under the Government" came up for
consideration by this Court in Satrucharla Chandrasekhar Raju vs. Vyricherla Pradeep Kumar Dev
and another, 1992 (4) SCC 404, and after examining a catena of authorities, it was opined :
"On a careful examination of the ratio laid down in the above-mentioned cases some of the tests or
principles that emerge for determining whether a person holds an office of profit under the
Government, may be summarised thus :
(1) The power of the Government to appoint a person in office or to revoke his appointment at its
discretion. The mere control of the Government over the authority having the power to appoint,
dismiss, or control the working of the officer employed by such authority does not disqualify that
officer from being a candidate for election as a member of the Legislature.
(2) The payment from out of the Government revenues are important factors in determining
whether a person is holding an office of profit or not of the Government. Though payment from a
source other than the Government revenue is not always a decisive factor.
(3) The incorporation of a body corporate and entrusting the functions to it by the Government may
suggest that the statute intended it to be a statutory corporation independent of the Government.
But it is not conclusive on the question whether it is really so independent. Sometimes, the form

may be that of a body corporate independent of the Government, but in substance, it may just be the
alter ego of the Government itself.
(4) The true test of determination of the said question depends upon the degree of control the
Government has over it, the extent of control exercised by very other bodies or committees, and its
composition, the degree of its dependence on the Government for its financial needs and the
functional aspect, namely, whether the body is discharging any important Governmental function or
just some function which is merely optional from the point of view of the Government." (Emphasis
ours) Thus, for determination of the core question, each case has to be judged in the light of the
relevant provisions of the statute and its own peculiar facts, keeping in view the object of enacting
Article 102 (1)(a) and 191(1)(a) namely that there should not be any conflict between duties and
interests of an elected member to ensure that the concerned legislature does not contain persons
who receive benefits from the Executive and may on that account be under its obligation and, thus,
amenable to its influence while discharging their legislative functions.
With a view to find out whether in the instant case, the appellant suffered any disqualification as
prescribed by Article 102(1)(a)(supra), it is desirable to first notice some of the relevant provisions
of Jharkhand Area Autonomous Council Act, 1994 (hereinafter JAAC Act 1994) and the provisions
under which the appellant was appointed as 'Chairman' of the 'Interim Council' of JAAC.
On the basis of certain discussions held on 28th April, 1993, a tripartite agreement was drawn up on
26.9.1994. It was agreed that JAAC should be set up to speed up the process of plenary development
of the area to fulfil the aspiration of the people of Chotta Nagpur and Santhal Pargana area. So far as
the constitution of an interim Council is concerned, clause (xix) of the Agreement provided:
"Till the aforesaid arrangements come into effect, State Government may appoint a provisional
general council comprising 50 percent from MPs, MLAs, MLCs and 50 percent from amongst the
Jharkhand Movement leaders. The State Government may also appoint an Executive Committee
drawn from among these members. Such provisional Council/Committee shall have life of not more
than six months."
The Chief Minister of Bihar, one of the signatories to the tripartite agreement, confirmed in the said
agreement that the State Government would "expedite and complete" various formalities to bring
into existence JAAC and with that end in view "introduce and seek approval of the Bihar Legislative
Assembly" to the revised Bill to deal with JAAC.
An Act to establish JAAC was thereafter enacted to provide for "plenary development of Tribal Area
of Chhota Nagpur and Santhal Pargana" view a view to fulfil ambitions of the people of the area. The
JAAC Act 1994 was to come into force with effect from the date as the State Government may by
notification in the Official Gazette appoint. This Act incorporated the substratum of clause (xix) of
the Tripartite agreement (supra) also. We may, at this stage, take note of some of the relevant
provisions of the Act. These are:
"Definitions.- In this Act, unless there is anything repugnant in the subject or context:-

(a) "Governor" means the Governor of the State of Bihar;
(b) "The State Government" means the Government of Bihar;
(c) "Area" means the area specified in sub-section (2) of Section 1;
(d) "Council" means the Jharkhand Area Autonomous Council;
(e) "Member" means the members of the Jharkhand Area Autonomous Council;
(f) The executive Council" means the executive Council constituted under Section 20 of the Act;
(g) ... ... ...
(h) "Act" means the Jharkhand Area Autonomous Council Act, 1994;
(i) "Rules" means the rule made by the State Government under this Act;
(j) "Regulations" means the regulation made by the council under this Act;
(k) "Bylaw" means the bylaw made by the Council under this Act;..."
"Section 3. The Constitution of Council.- (1) The State Government shall establish an Autonomous
Council for the area of the Council which shall consist of not more than 162 directly elected
members and not more than 18 nominated members.
(2) The Council shall be a body corporate which shall have a perpetual succession and a common
seal and right to acquire, hold and dispose off movable and immovable property within and without
the limits of the Council Area and it may sue and be sued by the aforesaid name."
"Section 6. Disqualifications for the membership.- (1) a person shall be disqualified for being chosen
and for being a member of the Council if-
(a) he holds any office of profit under the Government of India, any State Government, a local body
and corporation, Board or Authority, Co-operative Society, a company established under the
Company Act, 1956 (Central Act 1 of 1956) in which more than 25 per cent has been contributed in
the share capital by any Government or Governments, other than an office declared by the
Legislature of the State by law not to disqualify its holder; ... ... ...
(2) If he is or has been elected as a member of parliament or a member of Legislature or the

Chairman of the District Board or the Pramukh of the Panchayat Samiti or the Mayor of Municipal
Corporation or the Chairman of the Municipality and is elected as a member of Council and has not
submitted resignation from the membership of the Parliament or Legislature or from the post held
in the District Board or Panchayat Samiti or Corporation or Municipality within 21 days, he shall

cease to be the member of the Council." "11. Duration of the Council.- The Council, if not dissolved
earlier under section 12 shall continue for five years from the date appointed for its first meeting,
and no longer and on the expiration of the said period the Council shall stand dissolved."
"12. Dissolution of the Council.- (1) The Governor, after providing a reasonable opportunity of being
heard, may, in his discretion, dissolve the Council, if he is satisfied that the Council is unable to
perform its functions or is functioning in such a manner that it may not be able to achieve its
objectives. (2) On dissolution of the Council, under sub-section (1) the new Council shall be
constituted within six months from such dissolution: Provided that the said period may be extended
for six months by the Governor if circumstances exist from which he is satisfied that it is
impracticable to hold election within the said period.
(3) In case of dissolution, the Governor shall appoint an officer not below the rank of Additional
Secretary to the Government of India to exercise all the powers and to perform all the duties of the
council."
"13. Nomination of the members to the Council.- (1) The members shall be nominated to the Council
in the following manner:-
(a) Maximum 8 members of the Legislative Assembly representing their Legislative Assembly
Constituencies of the Area shall be nominated by the speaker, Bihar Legislative Assembly;
(b) Maximum two members of the Parliament representing their Lok Sabha Constituencies wholly
or mostly of the Area shall be nominated by the State Government;
(c) Maximum 8 persons having experience of Public works, urban works, rural development on
social welfare works and who are inhabitants of the Area, shall be nominated by the State
Government.
(2) the nomination of the members under clauses (a) and (b) of sub-section (1) shall be for two years
or till the duration of the Council, whichever is earlier:
Provided that on cessation of membership of Legislative Assembly or Lok Sabha before expiry of the
period of nomination, his membership of the Council shall automatically cease with effect from the
date of cessation as member of Legislative Assembly of Lok Sabha as the case may be.
(3) The nomination of members under Clause (c) of sub-section (1) may be upto the duration of the
Council:
Provided that they shall not have the right to vote.
(4) The members of the Council may be re-nominated."

"15. The Chairman of the Council.-(1) The Council shall have a Chairman who shall be a member of
the Scheduled Tribes.
(2) The Chairman shall be elected by the elected members of the Council from amongst them.
(3) The State Government may nominate any elected member as Presiding Officer for the election of
the Chairman who may determine the procedure for election."
"17. Vacancy, resignation and removal from the office of Chairman. - The member holding the office
of the Chairman of the Council.
(a) if ceases to be an elected member of the Council, he shall vacate his office;
(b) may tender his resignation in writing under his hand addressed to the Vice-Chairman at ay time;
and
(c) may be removed from his office by a resolution passed by the majority of the elected members of
the Council at that time:
Provided that no resolution for the purpose of clause (c) shall be proposed until a prior notice of at
least fourteen days intending to move the proposed resolution is given."
"23. Constitution of Interim Council and Interim Executive Council. -
(1) The State Government before constitution of the Council under Section 3, may constitute an
Interim Council.
(2) The State Government shall nominate 50 per cent members of the Interim Council out of its total
membership from the members of the Lok Sabha and the Legislative Assembly representing the
constituency which lies wholly or mostly in the Area and from the members of the Rajya Sabha and
Legislative Council, who are the inhabitants of the Area and the remaining 50 per cent members
shall be nominated from amongst the persons who are inhabitants of the Area and have interest in
its development.
(3) The State Government shall nominate the Chairman and the Vice-Chairman of the Interim
Council.
Provided that the member of the Scheduled Tribes can only be nominated as the Chairman.
(4) The State Government shall constitute an Interim Executive Council from amongst the members
of the Interim Council.
(5) The Chairman and the Vice-Chairman of the Interim Council shall be Ex- Officio Chief Executive
Councillor and Vice-Chief Executive Councillor (6) The duration of the Interim Council and the

Interim Executive Council shall be for 6 (revised to 18) months or till the constitution of the Council
under Section 3 whichever is earlier.
(7) The Chairman and the Vice-Chairman of the Interim Council and the members of the Interim
Executive Council shall hold their office during the pleasure of the State Government."
"26. Honorarium and Allowances to the Chairman, Vice-Chairman and Members.- (1) Honorarium
worth Rs. 1,750, Rs. 1,250 and Rs. 1,000 per month shall be payable to the Chairman,
Vice-Chairman and the Members of the Executive Council respectively.
(2) Save as under clause (1), honorarium of Rs. 750 per month shall be payable to the remaining
members.
(3) The Chairman, the Vice-Chairman and the members of the Executive Committee shall be paid
daily allowance at the rate of Rs.150 per day for the period spent outside the head-quarters for the
work of Council and other members shall be paid daily allowance at the rate of Rs.125 per day for
taking part in the meetings of the Council.
(4) On a tour undertaken by the Chairman, the Vice-Chairman and the Members of the Executive
Council for the works of the Council and by the members of the Council to attend the meeting of the
Council, a first class or Air-conditioned 2 tier railway fare which has actually been paid, shall be
payable:
Provided that on journey by air undertaken for the works of the Council by the Chairman and the
Vice-Chairman, the fare actually paid, shall be payable." "29. Powers and Function of the
Council.-(1) The Council shall have the following powers and functions relating to the development
of the Area:-
(a) to prepare long-term and short terms plans for all-round development of the Area;
(b) to consider the preparation and execution of projects relating to development of the Area;
(c) to formulate the projects relating to the Area;
(d) to Co-ordinate, supervise and review the projects of the Area;
(e) to suggest measures for accelerated development of the Area; ( 2) The Council may ply passenger
bus services in the Area. (3) Subject to the general guidelines of the state Government, the Council
shall have the following powers and functions on the subjects specified in Schedule 3 -
(a) to fix priority and prepare plans for development programmes;
(b) to formulate projects;

(c) to sanction projects
(d) to get projects executed;
(e) to sanction Central Plans relating the Area and to get it executed;
(f) to review, supervise, co-ordinate and monitor the projects."
"30. Supervisory powers and functions of the Council.- (1) The Council shall have such supervisory
powers and functions with respect to non-developmental and regulatory subjects specified in
schedule 3 as may be prescribed, for public purposes, by the State Government in consultation with
the Council.
(2) The Council in its area, may supervise Municipal Corporations, Municipalities, Notified Area
Committees, District Boards, Panchayat Samities and Gram Panchayats."
"34. Financial powers of the Council.- ........
(6) The Council may utilize the fund for payment of pay and allowances of the Chairman, Vice
Chairman, Members of the Council, Officers and Staff of the Council Office and on Office
expenditure and the development programmes of the area including grant to the District boards for
different development plans."
"36. The powers and Functions of Interim Council and Interim Executive Council.
- Unless the context otherwise requires or is not relevant or specially otherwise provided; the
provisions relating to the Council and the Executive Council, shall be deemed to apply to the Interim
Council and Interim Executive Council as the case may be.
"42. Direction by the State Government. - The Council in the discharge of its functions, shall be
guided by such direction on policy matters as may be given to it from time to time by the State
Government."
Learned counsel for the parties appearing before us did not dispute that the appellant by virtue of
his nomination as Chairman of interim JAA Council by the State Government held 'an office', which
existed independently of its holder. However, they were seriously at variance as to whether the office
held by the appellant could be said to be "an office of profit" as also whether it could be said that the
office of Chairman of interim Council is "an office under the State Government". We shall separately
consider the issue whether the concerned office had been declared by the competent legislature as
not to disqualify its holder.
The question whether a person holds an office of profit, as already noticed, is required to be
interpreted in a realistic manner having regard to the facts and circumstances of each case and
relevant statutory provisions. While 'a strict and narrow construction' may not be adopted which

may have the effect of 'shutting off many prominent and other eligible persons to contest the
elections' but at the same time "in dealing with a statutory provision which imposes a
disqualification on a citizen it would be unreasonable to take merely a broad and general view and
ignore the essential points". The approach which appeals to us to interpret the expression "office of
profit" is that it should be interpreted with the flavour of reality bearing in mind the object for
enactment of Article 102(1)(a) namely to eliminate or in any event to reduce the risk of conflict
between the duty and interest amongst members of the legislature by ensuring that the legislature
does not have persons who receive benefits from the Executive and may thus be amenable to its
influence. Now to some factual matrix in the present case.
The appellant was admittedly holding an office of Chairman of the Interim JAA Council when he
filed his nomination paper for election to Rajya Sabha. He belonged to the Scheduled Tribes and had
been nominated as Chairman of the Interim JAA Council, by the State Government. He held his
office 'at the pleasure' of the State Government. Appellant has also admitted in his statement in the
High Court that as Chairman of the Interim Council he was receiving:
(1) An honorarium of Rs.1750/- per month;
(2) Daily allowance at the rate of Rs.150/- per day for the period spent outside the headquarter
besides travelling expenses as prescribed; (3) Daily allowance at the rate of Rs.120/- per day for
attending meetings of the interim council;
(4) Furnished rent free accommodation (quarters) and (5) A car with Driver That receipt of daily
allowance at the rate of Rs.150/- per day for the period spent outside his headquarters and Rs.120/-
per day for attending meetings of the Interim JAA Council by the appellant, is in its very nature only
compensatory allowance, intended to meet out of pocket expenses, was not disputed by leaned
counsel for the parties either in the High Court or even before us and in our opinion rightly so. The
serious controversy, however, revolves around the nature of payment of Rs.1,750/- per month as
"honorarium" to the appellant as also whether the 'office' held by the Chairman of the Interim JAA
Council was an "office under the State Government".
Does the receipt of "honorarium at the rate of Rs.1,750/- per month by the appellant, besides other
allowances and perquisites, amount to causing any "pecuniary gains" to the appellant?
Mr. Rao, learned senior counsel appearing for the appellant is right in his submission that payment
of 'honorarium' may not by itself imply payment of any pay, salary, remuneration or emoluments to
the appellant. Indeed, "honorarium" is a concept different than salary or remuneration and its
payment cannot constitute an "office of profit" unless there is some 'pecuniary gain' for the
recipient. However, for what follows we are unable to agree with him that the payment of
honorarium, in the established facts and circumstances of the case, did not amount to giving
'pecuniary gains' or 'profits' to the appellant.
The word 'profit' for the purpose of Article 102(1)(a) or Article 191 "connotes an idea of pecuniary
gain", though neither the lable under which it is paid nor the quantum of the amount may always be

material to determine the issue. In the instant case, the appellant on his own admission was to
receive Rs.150/- per day as allowance for performing work of the interim Council outside the
headquarters and Rs.120/- per day for the days of sitting of the Council. These amounts, in our
opinion, were intended to meet out of pocket expenses of the appellant and were in the nature of
compensatory allowances and were not a source of profit. Payment of Rs.1,750/- per month as
honorarium was in addition to the aforesaid allowances. In Karbhari Bhimaji Rohamare's case
(supra) this Court opined that a person receiving an honorarium of Rs.25/- per day besides
travelling and daily allowances could not be said to be making any pecuniary gain nor could it
become a 'source of profit' for the concerned person, unless he stays "with some friends or relatives
or stays in a dharamshala..." Indeed, those observations were made taking a realistic view of the
matter based on the fact situation in that case. In the present case, besides the receipt of daily
allowances and honorarium, the appellant had, as admitted by him, also been provided with rent
free accommodation besides a car with a driver at State expense. Keeping in view these facilities, the
payment of an additional amount of Rs.1,750/- per month as an honorarium was, under the
circumstances, clearly in the nature of giving some pecuniary gain to the appellant and was not
intended to compensate the appellant for his out of pocket expenses. In various precedents relied
upon by learned counsel for the parties before us and referred to by us in an earlier part of this
judgment, the element of providing rent free accommodation and a chauffeur driven car at the State
expense in addition to "honorarium" and other allowances to the concerned person was not
involved. These are relevant factors. The grant of honorarium of Rs.1750/- per month besides other
perquisites, granted by the State Government to its own nominee, in addition to the payment of
daily allowances, to meet out of pocket expenses, does bring in an element of granting 'profits' to the
appellant. He certainly can be said to have made pecuniary gain out of the payment of honorarium
of Rs.1,750/- per month. It is not possible to construe the payment of Rs.1750/- per month, to be
payment in the nature of "compensatory allowance". While construing the true nature of
"honorarium", the grant of other perquisites cannot be overlooked or ignored. The honorarium'
receivable by the appellant at the rate of Rs.1,750/- per month, besides other 'allowances' and
'perquisites' was surely not in the nature of gratuitous payment, voluntary donation or
compensation to meet any out of pocket expenses. It was in the nature of 'remuneration' and was a
source of 'pecuniary gain'. The receipt of honorarium at the rate of Rs.1,750/- per month, besides
daily allowances, rent free accommodation and a chauffeur driven car at the State expense, to the
appellant was a benefit capable of bringing about a conflict between the duty and interest of the
appellant as a member of Parliament - the precise vice to which Article 102(1)(a) is attracted.
We are, therefore, in the established facts and circumstances of the case, in agreement with the High
Court that the appellant, as Chairman of the Interim JAA Council was in receipt of pecuniary gain in
the form of honorarium and he, thus, held an "office of profit". This now takes us to the next
question. Did the appellant hold this 'office of profit' as Chairman of Interim JAA Council "under the
State"?
The term 'Interim Council' has not been defined under the JAAC Act though provision for its
constitution, based on clause (xix) of the Tripartite Agreement has been made in Section 23 of the
Act. The JAAC Act essentially deals with setting up of a regular council its composition, jurisdiction
and status etc. so as to replace Chotta Nagpur and Santhal Pargana Development Authority, with a

view to ensure accelerated plenary development of the area through elected representatives (see:
objects and reasons of JAAC Act). As already noticed paragraph (xix) of the Tripartite Agreement
dated 26.9.1994 (supra), provided for appointment of a provisional general council by the State
Government to act as a body to facilitate setting up of a Regular council under the JAAC Act. This
provisional council was, obviously, to act as a limb or agency of the State Government, charged with
the specific task of facilitating the setting up of a Regular Council under the JAAC Act. Vide
sub-section (2) of Section 23, it is the State Government which alone shall nominate 50 percent
members of the interim council out of its total membership from the members of Lok Sabha and the
Legislative Assembly representing the constituency which lies wholly or mostly in the Area and from
the members of Rajya Sabha and Legislative Council who are inhabitants of the area. Remaining 50
per cent members were also to be nominated by the State Government from amongst persons who
are inhabitants of the area and have an interest in its development. Thus, we find that an Interim
JAA Council contemplated by JAAC Act was to consist only of nominees appointed by the State
Government, who were to hold their office 'at the pleasure of the State Government' [Section 23(7)].
No element of election is involved in the Constitution of Interim Council at all. The obligation to set
up the Regular Council, as per the tripartite agreement and confirmation made by Chief Minister of
Bihar, was that of the State Government. The State Government could discharge that function
through any of its agencies or departments. The State Government, proposed the Constitution of an
Interim Council to discharge its obligations and provided for its composition as well as the manner
of appointment and their continuance in office of the members under Section 23(2) of the JAAC Act.
Section 23(3) of the Act provided that the State Government shall nominate the Chairman and
Vice-Chairman of the Interim-Council with a rider that only a member of the Scheduled Tribes
could be so nominated. The Chairman and members were to hold office "at the pleasure of the
State". Thus, the power and jurisdiction to appoint (nominate) or remove Chairman of the Interim
JAA Council, is vested exclusively in the State Government. Vide Section 23(4) of the Act, the State
Government has the exclusive jurisdiction to constitute an Interim Executive Council from amongst
its nominees of the Interim JAA Council. The members of the Interim Executive Council are also to
hold their office during the pleasure of the State Government. The disqualifications for membership
of the regular council, as envisaged under the JAAC Act, are not attracted to membership of the
Interim Council. Because whereas Section 6(2) of JAAC Act disqualifies a Member of Parliament as
well as a member of the State Legislature, and members of other specified bodies, to be a member of
the council, unless he resigns from membership of the legislature or the local body, as the case may
be within 21 days of his election there is no such requirement in the case of interim Council. The
provision of Section 6(2) is in contra-distinction to the provisions of Section 23(2) of the Act, which
mandates the State Government shall nominate 50 per cent of the total membership of the interim
council from out of the members of Parliament or the State Legislature only. The JAAC Act,
therefore, itself drew a clear distinction between status of the interim JAA Council and the Regular
Council, both in the matter of appointment as well as of removal of members including Chairman
and Vice-Chairman as also for disqualifications referred to in Section 6 in so far as the members of
the Regular Council are concerned. Our critical analysis of the provisions of JAAC Act shows that
the Interim JAA Council, a body comprising exclusively of Government appointees, holding their
office at its pleasure, was created to act as a limb or agency of the Government to facilitate smooth
creation of Regular Council under the JAAC Act. Section 23(6) of the Act provides that duration of
the Interim Council was to be for a period of six months (subsequently extended to 18 months),

subject to the Constitution of the regular Council under Section 3, whichever is earlier. This limited
life span of the interim Council stands to reason when we consider the composition, the manner of
appointment and the job entrusted to the Interim Council. The State Government not only had the
exclusive jurisdiction to appoint (nominate) the Chairman of Interim JAA Council but also power to
remove him since under Section 23(7) of the JAAC Act, the Chairman and Vice-Chairman of the
Interim JAA Council, as well as members of the Interim Executive Council, "shall hold their office
during the pleasure of the State Government". On the other hand, the Chairman and members of
Regular Council are governed inter alia by Sections 3, 6, 11, 12 and 17 of the Act in the matter of
appointment and removal. The State Government has no role to play either in the appointment of
Chairman of the Regular Council or in his removal. We are unable to persuade ourselves to agree
with Mr. Rao that the distinction gets almost obliterated by Sections 36 or 42 of the Act.
Section 36 of the Act deals with the powers and functions of Interim JAA Council and Interim
Executive Council and commences with the expression "unless the context otherwise requires or is
not relevant or specifically otherwise provided", the provisions relating to Regular Council and the
Regular Executive Council shall be "deemed" to apply to the Interim Council or the Executive
Council. This provision cannot affect the potency of Section 23(3) and (7) of the Act which
specifically provides for the manner of appointment of the Chairman etc. of Interim Council as well
as with continuation in office of the Chairman and members of Interim Council "at the pleasure of
the State Government" only. Again, Section 17 of the Act which deals with "vacancy, resignation and
removal" of the Chairman of Regular Council, has no application to the nominated Chairman of
Interim Council, who holds office at the pleasure of the State Government under the specific
provision of Section 23(7) of the Act. These provisions indicate that the legislature while enacting
JAAC Act did not consider Chairman of Interim JAA Council to be 'at par' with the Chairman of
regular Council. Moreover directions which can be given to the regular Council by the State
Government have a limited scope within the meaning of Section 42 of the Act, but the same is not
true of directions which can be given to the Interim JAA Council.
The appellant was nominated (appointed) as Chairman of the Interim Council by the State
Government by virtue of powers vested in it under Section 23 of the Act. He was to hold the office of
the Chairman of Interim Council "at the pleasure of the State Government" vide Section 23(7) of the
Act. Thus, not only was the appellant appointed (nominated) by the State Government, it was the
State Government which had the right to remove or dismiss the holder of that office besides
controlling the manner of functioning of the Interim Council and providing funds for the interim
JAA Council out of which honorarium of Rs.1,750/- per month was paid to the appellant. It follows
that various tests laid down by this Court to determine whether the appellant was holding an office
'under the State Government' including the decisive test of the power of Government to appoint the
person in office as well as revoke his appointment at its discretion and be responsible for the
expenses, are fully satisfied in the case of the appellant [see Shivamurthy Swami Inamdar's case
(1971) as also Guru Gobind Basu vs. Shankar Prasad Ghosal, AIR 1964 SC 254, with advantage] and,
therefore, we hold that the appellant was holding his office under the State Government.
Since, we have already found that the honorarium of Rs.1,750/- paid to the appellant as Chairman of
Interim Council, besides other daily allowances and perquisites of rent free accommodation and car

with a driver, could not be said to be in the nature of 'compensatory allowances' and was in the
nature of remuneration or salary, inherently implying an element of "profit" and of giving 'pecuniary
gain' to the appellant, it follows that the appellant was holding an office of profit under the State
Government.
We must at this stage point out that the facts situation in Surya Kant Roy's case (supra) as well as
the fact situation in Maulana Abdul Shakur's case (supra) were entirely different. Indeed the
concerned person in those cases held office in a statutory body, but it was found on facts of those
cases that neither he was appointed by the Government nor was he removable by the Government
and also that he did not perform any function "for the Government" and that he was not receiving
any remuneration from the Government either. In Shivamurthy Swami's case (supra) also the
essential tests as to whether the Government paid the remuneration and whether the concerned
person performed his functions for the Government as also the right of the Government to appoint
and remove him were found missing. In the instant case the position is entirely different. Till a
regular Council was set up, the funds were provided for by the Government. As already noticed, task
assigned to the interim Council was a task which it was performing for the Government to facilitate
the setting up of the regular Council. The Government, and not any statutory body, had the right to
nominate (appoint) the interim JAA Council and its Chairman; members of the interim JAA
Council, including the Chairman held their offices "at the pleasure of the Government" which also
controlled the functions of the interim Council. Those judgments, therefore, are clearly
distinguishable and cannot come to the aid of the appellant to hold that in the established facts and
circumstances of this case, he did not hold an office of profit under the State Government.
Apparently, faced with this fact situation, the appellant took the plea, in his additional written
statement, and it was canvassed before us as also in the High Court, that even if the office held by
him as Chairman of the Interim Council was to be construed as an "office of profit under the State
Government", the disqualification provided for under Article 102(1)(a) stood removed by Parliament
(Prevention of Disqualification) Act, 1959, since as Chairman of Interim Council, he enjoyed the
'status' of a Minister. The argument was rightly repelled by the High Court observing that nowhere
in the JAAC Act is it provided that the Chairman of the Interim JAA Council would enjoy the status
of a Minister.
We have no quarrel with the proposition that holding an office of profit under the Government of
India or under the Government of any State would be a disqualification only if that office is not
declared by the Parliament by law not to disqualify its holder. In exercise of this power, the
Parliament under Article 102 of the Constitution has exempted some offices from operation of the
disqualification and similarly under Article 191, State Legislatures have passed several enactments
exempting some offices from operation of this disqualification. Therefore, before holding a person
disqualified, it will have to be seen whether that office is not exempted by the competent Legislature
from operation of the disqualification clause. Articles 102 and 191 both, by explanation, have
clarified that a person shall not be deemed to hold an office of profit under Government of India or
the Government of any State specified in the First Schedule by reason only that he is a Minister-
either for the Union or any State. Thus, the disqualification, in the case of the appellant, could only
be removed by the Parliament, since the membership of Rajya Sabha was in issue, within the
meaning of Article 102(1)(a). No such disqualification was removed by the Parliament as the JAAC

Act has not been included in the Schedule to the 1959 Act. The State Legislature is not competent to
remove any disqualification in respect of a member of Parliament. Even if it be assumed, though
there is no basis or material to so assume, that the State Legislature or Government had, by
implication removed the disqualification by granting "deemed" status of a Minister to the appellant,
it had no jurisdiction to remove the disqualification from which the appellant was suffering, because
it is Membership of the Rajya Sabha and not of State Legislature which was in issue. The judgment
of the Constitution Bench in Kanta Kathuria's case (supra) cannot come to the aid of the appellant
because what was upheld in that case was the jurisdiction of the State Legislature to remove
disqualification in respect of a member of the State Legislature and not in respect of a member of
the Parliament. The office of Chairman of Interim JAA Council, as already noticed, has not been
exempted under the Parliament (Prevention of Disqualification) Act, 1959 and as such the
disqualification contained in Article 102(1)(a) is squarely attracted to the facts of the present case.
The appellant was, thus, rightly held to have been holding 'an office of profit under the State
Government' at the relevant time and, thus, was disqualified to be a member of Rajya Sabha. The
High Court was justified in setting aside his election and we are not persuaded to take a contrary
view either.
The learned designated Judge of the High Court after setting aside election of the appellant,
declared respondent No.1, Shri Dayanand Sahay to be duly elected to Rajya Sabha relying upon the
law laid down in Vishwanath Reddy vs. Konappa Rudrappa Nadouda, AIR 1969 SC 604. The
correctness of that view of the High Court was not disputed before us. We, accordingly, also uphold
the declaration made by the High Court in favour of respondent No.1.
Thus, this appeal fails and is hereby dismissed. The parties shall however, bear their own costs
insofar as this appeal is concerned.
.......................................CJI.
..........................................J.
( R.C. LAHOTI ) ..........................................J.
( SHIVARAJ V. PATIL ) New Delhi;
July 19, 2001.

Rajbala & Ors vs State Of Haryana & Ors on 10 December, 2015

Author: Chelameswar
Bench: J. Chelameswar, Abhay Manohar Sapre
Reportable
WRIT PETITION (CIVIL) NO. 671 OF 2015
Rajbala & Others Petitioners
Versus
State of Haryana & Others Respondents
J U D G M E N T
Chelameswar, J.
1. The challenge is to the constitutionality of the Haryana Panchayati Raj (Amendment) Act, 2015
(Act 8 of 2015), hereinafter referred to as the IMPUGNED ACT.
2. Even prior to advent of the Constitution of India under the Government of India Act, 1935 certain
local bodies with elected representatives were functioning. Such local bodies did not, however, have
constitutional status. They owed their existence, constitution and functioning to statutes and had
been subject to the overall control of provincial governments.
3. Article 40 of the Constitution mandates-
40. Organisation of village panchayats - The State shall take steps to organize village panchayats and
endow them with such powers and authority as may be necessary to enable them to function as units
of self government. To effectuate such obligation of the State, Constitution authorised (even prior to
the 73rd Amendment) State Legislatures under Article 246(3) read with Entry 5 of List II to make
laws with respect to;
5. Local government, that is to say, the constitution and powers of municipal corporations,
improvement trusts, districts boards, mining settlement authorities and other local authorities for
the purpose of local self-government or village administration. Laws have been made from time to
time by State Legislatures establishing a three-tier Panchayat system by 1980s. It was felt desirable
that local bodies be given constitutional status and the basic norms regarding the establishment and
administration of a three-tier Panchayati Raj institutions be provided under the Constitution.
Hence, the 73rd Amendment of the Constitution by which Part IX was inserted with effect from

24.4.1993.
4. Under Article 243B[1], it is stipulated that there shall be constituted in every State, Panchayats at
the village, intermediate and district levels (hereinafter collectively referred to as PANCHAYATS) in
accordance with provisions of Part IX. PANCHAYAT is defined under Article 243(d)[2].
5. The composition of Panchayats is to be determined by the legislature of the concerned State by

law subject of course to various stipulations contained in Part IX of the Constitution; such as
reservations of seats in favour of scheduled castes and scheduled tribes etc. The duration of the
Panchayat is fixed under Article 243E for a maximum of five years subject to dissolution in
accordance with law dealing with the subject. There is a further stipulation under Article 243E that
election to constitute a Panchayat be completed before the expiry of its tenure[3].
6. The broad contours of the powers and functions of Panchayats are also spelt out in Article 243G
and 243H. Such powers and responsibilities are to be structured by legislation of the State. The
establishment of an autonomous constitutional body to superintend the election process to the
PANCHAYATS is stipulated under Article 243K.
7. The Haryana Panchayati Raj Act, 1994 (hereinafter referred to as THE ACT) was enacted to bring
the then existing law governing PANCHAYATS in the State in tune with the Constitution as
amended by the 73rd amendment. As required under Article 243B[4], a three tier Panchayat system
at the Village, Samiti and District level is established under THE ACT with bodies known as Gram
Panchayat, Panchayat Samiti and Zila Parishad. Part V Chapter XX of THE ACT deals with
provisions relating to elections to the PANCHAYATS.
8. Section 162 of THE ACT stipulates that PANCHAYAT areas shall be divided into wards[5].
9. Section 165[6] declares that every person entitled to be registered as voter in the relevant part of
the electoral rolls of the Assembly is entitled to be registered as a voter for the purpose of
PANCHAYATS elections.
10. Section 175 mandates that persons suffering from any one of the disqualifications mentioned in
Section 175 are neither eligible to contest the election to any one of the offices under the Act nor can
they continue in office if they incur any one of the disqualifications, after having been elected. The
categories so specified runs into a long list, such as, convicts of certain categories of offences,
adjudicated insolvent, people of unsound mind, people who hold any office of profit under any one
of the three categories of Panchayats etc.
11. By the IMPUGNED ACT[7], five more categories of persons are rendered incapable of contesting
elections for any one of the elected offices under THE ACT. These categories are: (i) persons against
whom charges are framed in criminal cases for offences punishable with imprisonment for not less
than ten years, (ii) persons who fail to pay arrears, if any, owed by them to either a Primary
Agricultural Cooperative Society or District Central Cooperative Bank or District Primary
Agricultural Rural Development Bank, (iii) persons who have arrears of electricity bills, (iv) persons

who do not possess the specified educational qualification and lastly (v) persons not having a
functional toilet at their place of residence.
12. On 8.9.2015, the second respondent (State Election Commission) issued a notification specifying
the election schedule for the PANCHAYATS of Haryana.
13. The three petitioners herein claim to be political activists interested in contesting the local body
elections, but would now be disabled to contest as none of them possess the requisite educational
qualification.
14. The petitioners challenge the IMPUGNED ACT principally on the ground that the enactment is
violative of Article 14 of the Constitution. It is argued on behalf of the petitioners that (i) the
impugned provisions are wholly unreasonable and arbitrary and therefore violative of Article 14 of
the Constitution. They create unreasonable restrictions on the constitutional right of voters to
contest elections under the ACT[8]; (ii) they create an artificial classification among voters (by
demanding the existence of certain criteria which have no reasonable nexus to the object sought to
be achieved by the ACT), an otherwise homogenous group of people who are entitled to participate
in the democratic process under the Constitution at the grass-roots level; and (iii) the classification
sought to be made has no legitimate purpose which can be achieved[9].
15. Though not very specifically pleaded in the writ petition, elaborate submissions are made on the
questions (i) whether the stipulations contained in the impugned amendment are in the nature of
prescription of qualifications or disqualifications for contesting the elections under THE ACT; (ii) if
the impugned stipulations are in the nature of a prescription of qualifications whether the State
legislature is competent to make such stipulations consistent with the scheme of the Constitution, as
can be culled out from the language of Article 243F and other related provisions of the Constitution.
16. On the other hand, the learned Attorney General appearing for the respondents submitted that
nobody has a fundamental right to contest an election under our Constitution and it is really not
necessary in the present case to decide whether the right to contest an election to the PANCHAYATS
is a constitutional right. He argued that even assuming for the sake of argument that there is a
constitutional right to contest an election to the PANCHAYATS, such right is expressly made subject
to qualifications/disqualifications contemplated under Article 243F which authorises the State
legislature to prescribe disqualifications for contesting election to any PANCHAYAT. Prescription of
qualifications to contest an election based on criteria such as minimal educational accomplishment
etc. cannot be said to be either arbitrary or irrelevant having regard to the nature of duties required
to be discharged by persons elected to any one of the offices under THE ACT.
17. The learned Attorney General also submitted that the legislature best comprehends the needs of
the society[10]. The decision to prescribe such a qualification is in the realm of wisdom of the
legislature[11] and the Courts do not sit in review of such wisdom on the ground that the legislative
decision is arbitrary[12].

18. Answers to questions raised by the petitioners in this writ petition, in our opinion, inevitably
depend upon answer to the question whether right to vote or the right to contest an election to any
of the constitutional bodies is a constitutional or a statutory right, since the extent to which
curtailment or regulation of such right is permissible depends upon the nature of the right.
19. Prior to the 73rd Amendment of the Constitution, the Constitution contemplated elections to the
office of the President, Vice-President, the two Houses of the Parliament known as Rajya Sabha and
Lok Sabha and the State Legislatures. The Legislatures in certain States are bicameral. They are
known as Legislative Assembly and Legislative Council while other States are unicameral (only the
legislative Assembly). After the 73rd and 74th Amendments of the Constitution, PANCHAYATS and
Municipal bodies specified under Parts IX & IXA of the Constitution respectively were added to the
above-mentioned.
20. The nature of the right to vote at or the right to contest to any one of the abovementioned
elections has been a vexed question.
21. A bench of three judges (M.B. Shah, P. Venkatarama Reddi and D.M. Dharamadhikari, JJ.) of
this Court in Peoples Union for Civil Liberties (PUCL) & Another v. Union of India & Another,
(2003) 4 SCC 399 considered the validity of the Representation of the People (Third Amendment)
Act, 2002 (4 of 2002). By the said amendment, a candidate contesting an election (to which the
Representation of the People Act, 1951 applies) is required to furnish certain information at the time
of filing of nomination. In that context, Justice P.V. Reddi examined in some detail the nature of the
right to vote in the background of the observations made in two earlier decisions of this Court, in
N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, Namakkal, Salem, AIR 1952 SC 64
and Jyoti Basu & Others v. Debi Ghosal & Others, (1982) 1 SCC 691 and recorded the categoric
conclusion that the right to vote if not a fundamental right is certainly a constitutional right and it is
not very accurate to describe it as a statutory right, pure and simple. The learned Judge recorded
nine of his conclusions in para 123. The 2nd conclusion reads as follows: (2) The right to vote at the
elections to the House of the 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. A conclusion with which Justice
Dharamadhikari expressly agreed[13]. The third learned judge Justice M.B. Shah recorded no
disagreement.
22. Following the PUCL case, one of us held in Desiya Murpokku Dravida Kazhagam (DMDK) &
Another v. Election Commission of India, (2012) 7 SCC 340: every citizen of this country has a
constitutional right both to elect and also be elected to any one of the legislative bodies created by
the Constitution ..[14] No doubt, it was a part of the dissenting opinion. It was a case dealing with
allotment of election symbols and the right of a political party to secure . an election symbol on a
permanent basis irrespective of its participation and performance judged by the vote share it
commanded at any election.[15] Though, the majority held that a political party cannot claim an
election symbol on a permanent basis unless it satisfied norms stipulated under the symbols order
issued by the Election Commission of India. Their Lordships did not record any disagreement

regarding the conclusion that the right to participate in electoral process, either as a voter or as a
candidate is a constitutional right.
23. Therefore, in our opinion, the question whether the right to vote at an election for either the Lok
Sabha or the Legislative Assembly is a statutory right or a constitutional right is no more res integra
and stands concluded by the abovementioned judgments, in PUCL and DMDK cases (supra).
24. However, the learned Attorney General brought to our notice certain observations in some of the
judgments to the effect that rights to vote and contest elections are purely statutory. The context and
the precedentiary value of those judgments need examination.
25. In Shyamdeo Prasad Singh v. Nawal Kishore Yadav, (2000) 8 SCC 46, a Bench of three learned
Judges observed:
20. It has to be remembered that right to contest an election, a right to vote and a right to object to
an ineligible person exercising right to vote are all rights and obligations created by statute. It was a
case dealing with election to the Legislative Council of Bihar from the Patna Teachers Constituency.
The limited question before this Court was whether the High Court in an election petition could
examine the legality of the inclusion of certain names in the electoral roll? We are of the opinion that
the said judgment leaves open more questions than it answers. The correctness of the judgment
requires a more closer scrutiny in an appropriate case for more than one reason. One of them is that
the inquiry in the said judgment commenced with the examination of Article 326 which has no
application to elections to the Legislative Councils. The text of Article 326 is express that it only
deals with the adult suffrage with respect to Lok Sabha and Legislative Assemblies. In our opinion
the statement (extracted earlier from para 20 of the said judgment) is made without analysis of
relevant provisions of the Constitution apart from being unnecessary in the context of the
controversy before the Court and is further in conflict with the later judgment in PUCLs case.
26. In K. Krishna Murthy (Dr.) & Others v. Union of India & Another, (2010) 7 SCC 202 para 77,
speaking for a Constitution Bench of this Court, Balakrishnan, CJ. recorded that: it is a well-settled
principle in Indian Law, that the right to vote and contest elections does not have the status of
fundamental rights. Instead, they are in the nature of legal rights.. For recording such conclusion
reliance was placed on certain observations made in an earlier judgment (decided by a bench of two
judges) of this Court in Mohan Lal Tripathi v. District Magistrate, Rai Bareilly & Others, (1992) 4
SCC 80.
27. The challenge before this Court in K Krishna Murthy case was regarding the legality of Article
243D(6) and Article 243T(6) which enabled reservation of seats in favour of backward classes
etc.[16] The challenge to the abovementioned provisions is that they are violative of principles such
as equality, democracy and fraternity, which are part of the basic structure doctrine.[17]
28. The decision in PUCL case was unfortunately not noticed by this Court while deciding K.
Krishna Murthy case. Further a specific request to reconsider the precedents wherein the rights of
political participation have been characterized as statutory rights was not given any

consideration[18]. Their Lordships also failed to notice that the observations made in Mohan Lal
case, prior to the 74th Amendment of the Constitution regarding the nature of the electoral rights
with regard to the elections to the Municipal bodies are wholly inapplicable and without examining
provisions of the Constitution as amended by the 74th Amendment.
29. They relied upon observation[19] from Mohan Lal case, in our opinion, are too sweeping and
made without any appropriate analysis of law. The limited issue before this Court in Mohan Lal case
was the legality of a no confidence motion moved against the President of Rai Bareilly Municipal
Board who was elected directly by voters of the municipality. The U.P. Municipalities Act provided
for removal of the President so elected through the process of a no confidence motion moved by the
Councilors who themselves, in turn, are elected representatives of the territorial divisions of the
municipality. The question whether the right to vote in or contest an election is a constitutional or
statutory right was not in issue. Mohan Lal case was dealing with provisions of the U.P.
Municipalities Act, 1916 as amended by Act 19 of 1990, i.e. prior to 74th Amendment of the
Constitution[20]. Therefore, the right to vote and contest at an election for a municipality was
certainly a statutory right by the date of the judgment[21] in Mohan Lal case.
30. Again in Krishnamoorthy v. Sivakumar & Others, (2015) 3 SCC 467, this court observed that the
right to contest an election is a plain and simple statutory right[22].
31. We are of the opinion that observations referred to above are in conflict with the decisions of this
Court in PUCL case and DMDK case, which were rendered after an elaborate discussion of the
scheme of the Constitution. We are of the clear opinion that the Constitution recognises the
distinction between the Right to Vote at various elections contemplated under the Constitution and
the Right to Contest at such elections. There are various other electoral rights recognised or created
by the statutes and the Representation of the People Act, 1951 recognises the same[23].
Right to Vote
32. Prior to the 73rd and 74th amendments, the Constitution contemplated elections to be held to
offices of the President and the Vice President under Articles 54 and 66 respectively. It also
contemplated elections to the two chambers of Parliament i.e. Rajya Sabha and Lok Sabha. A small
fraction of the Members of the Rajya Sabha are nominated by the President while other Members
are elected[24]. In the case of the Lok Sabha, subject to stipulations contained in Article 331
providing for nomination of not more than two Members belonging to the Anglo Indian Community
all other Members are required to be elected. In the case of the Legislative Council, in States where
they exist, a fraction of the Members of the Council are required to be nominated by the Governor
under Article 171(2)(e) and the rest of the Members are to be elected from various constituencies
specified under Article 171 (3)(a), (b), (c), (d). Legislative Assemblies shall consist of only elected
members subject to provisions for nomination contained in Article 333 in favour of the Anglo Indian
Community.
33. The right to vote of every citizen at an election either to the Lok Sabha or to the Legislative
Assembly is recognised under Articles 325 and 326 subject to limitations (qualifications and

disqualifications) prescribed by or under the Constitution. On the other hand the right to vote at an
election either to the Rajya Sabha or to the Legislative Council of a State is confined only to
Members of the Electoral Colleges specified under Article 80(4) & (5) and Article 171 (3)(a), (b), (c),
(d)[25] respectively. In the case of election to the Rajya Sabha, the Electoral College is confined to
elected members of Legislative Assemblies of various States and representatives of Union
Territories[26]. In the case of the Legislative Council, the Electoral College is divided into four parts
consisting of; (i) Members of various local bodies specified under Article 171 (3)(a); (ii) certain
qualified graduates specified under Article 171 (3)(b); (iii) persons engaged in the occupation of
teaching in certain qualified institutions described under Article 171 (3)(c); and (iv) Members of the
Legislative Assembly of the concerned State. Interestingly, persons to be elected by the electors
falling under any of the abovementioned categories need not belong to that category, in other
words, need not be a voter in that category[27].
34. The Electoral College for election to the Office of the President consists of elected members of
both Houses of Parliament and elected members of the Legislative Assemblies of the State while the
Electoral College with respect to the Vice President is confined to Members of both Houses of
Parliament.
Right to Contest
35. The Constitution prescribes certain basic minimum qualifications and disqualifications to
contest an election to any of the above mentioned offices or bodies. Insofar as election to the Office
of the President and Vice President are concerned, they are contained under Articles 58 and 66
respectively. Insofar as Parliament and the State Legislatures are concerned, such qualifications are
stipulated under Articles 84 and 173, and disqualifications under Articles 102 and 191 respectively.
The Constitution also authorises Parliament to make laws prescribing both further qualifications
and disqualifications.
36. Interestingly, insofar as elections to Office of the President and Vice President are concerned,
the Constitution does not expressly authorise either Parliament or Legislative Assemblies of the
State to prescribe any further qualifications or disqualifications to contest an election to either of
these Offices. It stipulates only two conditions which qualify a person to contest those Offices, they
are - citizenship of the country and the minimum age of 35 years. Under Articles 58(1)(c) and
66(3)(c), it is further stipulated that a person who was otherwise eligible to contest for either of the
above mentioned two Offices shall not be eligible unless he is qualified for election as a Member of
the Lok Sabha or the Rajya Sabha respectively.
37. An examination of the scheme of these various Articles indicates that every person who is
entitled to be a voter by virtue of the declaration contained under Article 326 is not automatically
entitled to contest in any of the elections referred to above. Certain further restrictions are imposed
on a voters right to contest elections to each of the above mentioned bodies. These various
provisions, by implication create a constitutional right to contest elections to these various
constitutional offices and bodies. Such a conclusion is irresistible since there would be no
requirement to prescribe constitutional limitations on a non existent constitutional right.

38. Articles 84 and 173 purport to stipulate qualifications for membership of Parliament and
Legislatures of the State respectively. Articles 102 and 191 purport to deal with disqualifications for
membership of the above mentioned two bodies respectively. All the four Articles authorise the
Parliament to prescribe further qualifications and disqualifications, as the case may be, with
reference to the membership of Parliament and Legislatures of the State as the case may be.
39. The distinction between the expressions qualification and disqualification in the context of these
four Articles is little intriguing. There is no clear indication in any one of these four Articles or in any
other part of the Constitution as to what is the legal distinction between those two expressions. In
common parlance, it is understood that a qualification or disqualification is the existence or absence
of a particular state of affairs, which renders the achievement of a particular object either possible or
impossible. Though there are two sets of Articles purporting to stipulate qualifications and
disqualifications, there is neither any logical pattern in these sets of Articles nor any other indication
which enables discernment of the legal difference between the two expressions. We reach such a
conclusion because citizenship of India is expressly made a condition precedent under Articles 84
and 173 for membership of both Parliament and State Legislatures. Lack of citizenship is also
expressly stipulated to be a disqualification for membership of either of the above mentioned bodies
under Articles 102 and 191. In view of the stipulation under Articles 84 and 173 - citizenship is one of
the requisite qualifications for contesting election to either Parliament or the State Legislature, we
do not see any reason nor is anything brought to our notice by learned counsel appearing on either
side to again stipulate under the Articles 102 and 191 that lack of citizenship renders a person
disqualified from contesting elections to those bodies. Learned counsel appearing on either side are
also unanimously of the same opinion. We are, therefore, of the opinion that the distinction between
qualifications and disqualifications is purely semantic[28].
40. We, therefore, proceed on the basis that, subject to restrictions mentioned above, every citizen
has a constitutional right to elect and to be elected to either Parliament or the State legislatures.
41. Insofar as the Rajya Sabha and the Legislative Councils are concerned, such rights are subject to
comparatively greater restrictions imposed by or under the Constitution. The right to vote at an
election to the Lok Sabha or the Legislative Assembly can only be subjected to restrictions specified
in Article 326. It must be remembered that under Article 326 the authority to restrict the right to
vote can be exercised by the appropriate legislature. The right to contest for a seat in either of the
two bodies is subject to certain constitutional restrictions and could be restricted further only by a
law made by the Parliament.
42. The next question is whether such constitutional rights exist in the context of elections to the
PANCHAYATS? Having regard to the scheme of Part IX of the Constitution, the purpose[29] for
which Part IX came to be introduced in the Constitution by way of an amendment, we do not see any
reason to take a different view.
43. On the other hand, this Court in Javed & Others v. State of Haryana & Others, (2003) 8 SCC
369, held that 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 .
44. We need to examine contours of the two rights, i.e. the right to vote (to elect) and the right to
contest (to get elected) in the context of elections to PANCHAYATS. Part IX of the Constitution does
not contain any express provision comparable to Article 326 nor does it contain any express
provisions comparable to Article 84 and Article 173. The text of Article 326 does not cover electoral
rights with respect to PANCHAYATS. Therefore, questions arise:
i) Whether a non-citizen can become a voter or can contest and get elected for PANCHAYATS?
ii) In the absence of any express provision, what is the minimum age limit by which a person
becomes entitled to a constitutional right either to become a voter or get elected to PANCHAYATS?
iii) Are there any constitutionally prescribed qualifications or disqualifications for the exercise of
such rights?
Questions No.(i) and (ii) do not arise on the facts of the present case. Therefore, we desist
examination of these questions.
45. In contradiction to Article 326, Constitution does not contain any provision which stipulates that
a person to be a voter at elections to PANCHAYAT is required to be either (i) a citizen of India or (ii)
of any minimum age. Similarly, in the context of right to contest an election to PANCHAYATS, Part
IX is silent regarding qualifications required of a candidate. All that the Constitution prescribes is
disqualification for membership of PANCHAYATS:
243F. Disqualifications for membership. - (1) A person shall be disqualified for being chosen as, and
for being, a member of a Panchayat if he is so disqualified by or under any law for the time being in
force for the purposes of elections to the Legislature of the State concerned: Provided that no person
shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the
age of twenty-one years;
if he is so disqualified by or under any law made by the Legislature of the State.
(2) If any question arises as to whether a member of a Panchayat has become subject to any of the
disqualifications mentioned in clause (1), the question shall be referred for the decision of such
authority and in such manner as the Legislature of a State may, by law, provide.
46. It appears from the above, that any person who is disqualified by or under any law for the time
being in force for the purposes of elections to the Legislatures of the State concerned is also
disqualified for being a member of PANCHAYAT. In other words qualifications and disqualifications
relevant for membership of the Legislature are equally made applicable by reference to the
membership of PANCHAYATS. Though such qualifications and disqualifications could be stipulated
only by Parliament with respect to the membership of the Legislature of a State, Article 243F

authorises the concerned State Legislature also to stipulate disqualifications for being a member of
PANCHAYAT.
47. The right to vote and right to contest at an election to a PANCHAYAT are constitutional rights
subsequent to the introduction of Part IX of the Constitution of India. Both the rights can be
regulated/curtailed by the appropriate Legislature directly. Parliament can indirectly curtail only the
right to contest by prescribing disqualifications for membership of the Legislature of a State.
48. It is a settled principle of law that curtailment of any right whether such a right emanates from
common law, customary law or the Constitution can only be done by law made by an appropriate
Legislative Body. Under the scheme of our Constitution, the appropriateness of the Legislative Body
is determined on the basis of the nature of the rights sought to be curtailed or relevant and the
competence of the Legislative Body to deal with the right having regard to the distribution of
legislative powers between Parliament and State Legislatures. It is also the settled principle of law
under our Constitution that every law made by any Legislative Body must be consistent with
provisions of the Constitution.
49. It is in the abovementioned background of the constitutional scheme that questions raised in
this writ petition are required to be examined.
50. Section 173(1)[30] of THE ACT stipulates that every person whose name is in the list of voters
shall be qualified to vote at the election of a member for the electoral division to which such list
pertains unless he is otherwise disqualified. Persons who are qualified to be registered as voters and
list of voters are dealt with under Sections 165 and 166, the details of which are not necessary for the
present purpose. Under Section 173(2)[31] every person whose name is in the list of voters subject to
a further condition that he has attained the age of 21 years is qualified to contest at an election to
any PANCHAYAT unless such a person suffers from a disqualification prescribed by law.
51. Section 175 of THE ACT stipulates that No person shall be a Sarpanch[32] or a Panch[33] of a
Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such, if he falls
within the ambit of any of the clauses of Section 175. Section 175 reads as follows: Section 175.
Disqualifications.(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
(a) has, whether before or after the commencement of this Act, been convicted
(i) of an offence under the Protection of Civil Rights Act, 1955 (Act 22 of 1955 ), unless a period of
five years, or such lesser period as the Government may allow in any particular case, has elapsed
since his conviction; or
(ii) of any other offence and been sentenced to imprisonment for not less than six months, unless a
period of five years, or such lesser period as the Government may allow in any particular case, has
elapsed since his release; or (aa) has not been convicted, but charges have been framed in a criminal
case for an offence, punishable with imprisonment for not less than ten years;

(b) has been adjudged by a competent court to be of unsound mind; or
(c) has been adjudicated an insolvent and has not obtained his discharge; or
(d) has been removed from any office held by him in a Gram Panchayat, Panchayat Samiti or Zila
Parishad under any provision of this Act or in a Gram Panchayat, Panchayat Samiti or Zila Parishad
before the commencement of this Act under the Punjab Gram Panchayat Act, 1952 and Punjab
Panchayat Samiti Act, 1961, and a period of five years has not elapsed from the date of such removal,
unless he has, by an order of the Government notified in the Official Gazette been relieved from the
disqualifications arising on account of such removal from office; or
(e) has been disqualified from holding office under any provision of this Act and the period for
which he was so disqualified has not elapsed; or
(f) holds any salaried office or office of profit in any Gram Panchayat, Panchayat Samiti, or Zila
Parishad; or
(g) has directly or indirectly, by himself or his partner any share or interest in any work done by
order of the Gram Panchayat, Panchayat Samiti or Zila Parishad;
(h) has directly or indirectly, by himself or, his partner share or interest in any transaction of money
advanced or borrowed from any officer or servant or any Gram Panchayat; or
(i) fails to pay any arrears of any kind due by him to the Gram Panchayat, Panchayat Samiti or Zila
Parishad or any Gram Panchayat, Panchayat Samiti or Zila Parishad subordinate thereto or any sum
recoverable from him in accordance with the Chapters and provisions of this Act, within three
months after a special notice in accordance with the rules made in this behalf has been served upon
him;
(j) is servant of Government or a servant of any Local Authority; or
(k) has voluntarily acquired the citizenship of a Foreign State or is under any acknowledgement of
allegiance or adherence to a Foreign state; or
(l) is disqualified under any other provision of this Act and the period for which he was so
disqualified has not elapsed; or
(m) is a tenant or lessee holding a lease under the Gram Panchayat, Panchayat Samiti or Zila
Parishad or is in arrears of rent of any lease or tenancy held under the Gram Panchayat, Panchayat
Samiti or Zila Parishad; or
(n) is or has been during the period of one year preceding the date of election, in unauthorised
possession of land or other immovable property belonging to the Gram Panchayat, Panchayat Samiti
or Zila Parishad; or

(o) being a Sarpanch or Panch or a member of Panchayat Samiti or a Zila Parishad has cash in hand
in excess of that permitted under the rules and does not deposit the same along with interest at the
rate of twenty-one percentum per year in pursuance of a general or special order of the prescribed
authority within the time specified by it; or
(p) being a Sarpanch or Panch or a Chairman, Vice-Chairman or Member, President or

Vice-President or Member of Panchayat Samiti or Zila Parishad has in his custody prescribed
records and registers and other property belonging to, or vested in, Gram Panchayat, Panchayat
Samiti or Zila Parishad and does not handover the same in pursuance of a general or special order of
the prescribed authority within the time specified in the order; or
(q) x x x
(r) admits the claim against Gram Panchayat without proper authorization in this regard;
(s) furnishes a false caste certificate at the time of filing nomination:
Provided that such disqualifications under clauses (r) and (s) shall be for a period of six years.
(t) fails to pay any arrears of any kind due to him to any Primary Agriculture Co-operative Society,
District Central co-operative Bank and District Primary co-operative Agriculture Rural Development
Bank; or (u) fails to pay arrears of electricity bills;
(v) has not passed matriculation examination or its equivalent examination from any recognized
institution/board:
Provided that in case of a woman candidate or a candidate belonging to Scheduled Caste, the
minimum qualification shall be middle pass:
Provided further that in case of a woman candidate belonging to Scheduled Caste contesting election
for the post of Panch, the minimum qualification shall be 5th pass; or (w) fails to submit self
declaration to the effect that he has a functional toilet at his place of residence.
Explanation 1. A person shall not be disqualified under clause (g) for membership of a Gram
Panchayat, Panchayat Samiti or Zila Parishad by reason only of such person,--
(a) having share in any joint stock company or a share or interest in any society registered under any
law for the time being in force which shall contract with or be employed by or on behalf of Gram
Panchayat, Panchayat Samiti or Zila Parishad; or
(b) having a share or interest in any newspaper in which any advertisement relating to the affairs of
a Gram Panchayat, Panchayat Samiti or Zila Parishad may be inserted; or

(c) holding a debenture or being otherwise concerned in any loan raised by or on behalf of any Gram
Panchayat, Panchayat Samiti or Zila Parishad; or
(d) being professionally engaged on behalf of any Gram Panchayat, Panchayat Samiti or Zila
Parishad as a Legal Practitioner; or
(e) having any share or interest in any lease of immovable property in which the amount of rent has
been approved by the Gram Panchayat, Panchayat Samiti or Zila Parishad in its own case or in any
sale or purchase of immovable property or in any agreement for such lease, sale or purchase ; or
(f) having a share or interest in the occasional sale to the Gram Panchayat, Panchayat Samiti or Zila
Parishad of any article in which he regularly trades or in the purchase from the Gram Panchayat of
any article, to a value in either case not exceeding in any year one thousand rupees.
Explanation 2. For the purpose of clause (1)-
A person shall not be deemed to be disqualified if he has paid the arrears or the sum referred to in
clause (i) of this sub-section, prior to the day prescribed for the nomination of candidates;
x x x.
52. By the IMPUGNED ACT five more contingencies specified in clauses (aa), (t), (u), (v) and (w)
have been added which render persons falling in the net of those contingencies disqualified from
contesting elections.
53. At the outset, we must make it clear that neither learned counsel for the petitioners nor other
learned counsel (who were permitted to make submissions though they are not parties, having
regard to the importance of the matter) made any specific submission regarding constitutionality of
sub- section (1)(aa) of Section 175 which prescribes that (1) No person shall be a .. or continue as
such who (aa) has not been convicted, but charges have been framed in a criminal case for an
offence, punishable with imprisonment for not less than ten years. The challenge is confined to
clauses (t), (u), (v) and (w) of Section 175(1).
54. We first deal with the submission of violation of Article 14 on the ground of arbitrariness.
55. The petitioners argued that the scheme of the Constitution is to establish a democratic,
republican form of Government as proclaimed in the Preamble to the Constitution and any law
which is inconsistent with such scheme is irrational and therefore arbitrary.
56. In support of the proposition that the Constitution seeks to establish a democratic republic and
they are the basic features of the Constitution, petitioners placed reliance upon His Holiness
Kesavananda Bharati Sripadagalvaru v. State of Kerala & Another, (1973) 4 SCC 225 para 1159 and
Indira Nehru Gandhi v. Raj Narain, (1975) Supp SCC 1, paras 563 and 578. There cannot be any
dispute about the proposition.

57. In support of the proposition that a statute can be declared unconstitutional on the ground that
it is arbitrary and therefore violative of Article 14, petitioners relied upon judgments of this Court
reported in Subramanian Swamy v. Director, Central Bureau of Investigation & Another, (2014) 8
SCC 682, Indian Council of Legal Aid v. Bar Council of India, (1995) 1 SCC 732, B. Prabhakar Rao &
Others v. State of Andhra Pradesh & Others, 1985 (Supp) SCC 432 and D.S. Nakara & Others v.
Union of India, (1983) 1 SCC 305 and certain observations made by Justice A.C. Gupta in his
dissenting judgment in R.K. Garg v. Union of India, (1981) 4 SCC 675.
58. In our opinion, none of the abovementioned cases is an authority for the proposition that an
enactment could be declared unconstitutional on the ground it is arbitrary.
59. In Subramanian Swamy case, the dispute revolved around the constitutionality of Section 6A of
the Delhi Special Police Establishment Act 1946, which was introduced by an amendment in the
year 2003. It stipulated that the Delhi Special Police Establishment shall not conduct any enquiry or
investigation into any offence falling under the Prevention of Corruption Act 1988, alleged to have
been committed by certain classes of employees of the Central Government etc. The said provision
was challenged on the ground it was arbitrary and unreasonable[34] and therefore violative of
Article 14. The submission was resisted by the respondent (Union of India) on the ground that such
a challenge is impermissible in view of the decision in State of Andhra Pradesh v. McDowell & Co.,
(1996) 3 SCC 709. But the Constitution Bench eventually declared the impugned provision
unconstitutional not on the ground of it being arbitrary but on the ground it makes an unreasonable
classification of an otherwise homogenous group of officers accused of committing an offence under
the Prevention of Corruption Act without there being reasonable nexus between the classification
and the object of the Act.[35]
60. Coming to the Indian Council of Legal Aid & Advice & Others v. Bar Council of India & Others,
(1995) 1 SCC 732, it was a case where the legality of a rule made by the Bar Council of India
prohibiting the enrolment of persons who completed the age of 45 years was in issue. The rule was
challenged on two grounds. Firstly, that the rule was beyond the competence of the Bar Council of
India as the Advocates Act 1961 did not authorise the Bar Council of India to prescribe an upper age
limit for enrolment. Secondly, that the rule is discriminatory and thirdly, the fixation of upper age
limit of 45 years is arbitrary.
61. On an examination of the scheme of the Advocates Act, this Court came to a conclusion that the
impugned rule was beyond the rule making power of the Bar Council of India and, therefore, ultra
vires the Act. This Court also held that the rule was unreasonable and arbitrary[36].
62. We are of the opinion that in view of the conclusion recorded by the Court that the rule is beyond
the competence of Bar Council of India, it was not really necessary to make any further scrutiny
whether the rule was unreasonable and arbitrary. Apart from that, in view of the conclusion
recorded that the rule was clearly discriminatory, the inquiry whether the choice of the upper age
limit of 45 years is arbitrary or not is once again not necessary for the determination of the case. At
any rate, the declaration made by this Court in the said case with regard to a piece of subordinate
legislation, in our view, cannot be an authority for the proposition that a statute could be declared

unconstitutional on the ground that in the opinion of the Court the Act is arbitrary.
63. Now we shall examine Prabhakar Rao case.
The facts of the case are that the age of superannuation of employees of the State of Andhra Pradesh
was 55 till the year 1979. In 1979, it was enhanced to 58 years. The Government of Andhra Pradesh
in February, 1983 decided to roll back the age of superannuation to 55 years and took appropriate
legal steps which eventually culminated in passing of Act 23 of 1984. The said Act came to be
amended by Ordinance 24 of 1984, again enhancing the age of superannuation to 58 years which
was followed up by Act 3 of 1985. While enhancing the age of superannuation to 58 for the second
time by the above-mentioned Ordinance 24 of 1984 and Act 3 of 1985, benefit of the enhanced age of
superannuation was given to certain employees who had retired in the interregnum between
20.2.1983 and 23.08.1984; while others were denied such benefit. Prabhakar Rao and others who
were denied the benefit challenged the legislation. This Court placing reliance on D.S. Nakara Case
concluded that the impugned Act insofar as it denied the benefit to some of the employees who
retired in the interregnum between two dates mentioned above was unsustainable and held as
follows:-
The principle of Nakara clearly applies. The division of Government employees into two classes,
those who had already attained the age of 55 on February 28, 1983 and those who attained the age of
55 between February 28, 1983 and August 23, 1984 on the one hand, and the rest on the other and
denying the benefit of the higher age of superannuation to the former class is as arbitrary as the
division of Government employees entitled to pension in the past and in the future into two classes,
that is, those that had retired prior to a specified date and those that retired or would retire after the
specified date and confining the benefits of the new pension rules to the latter class only. (Para 20)
The Bench also observed:-
Now if all affected employees hit by the reduction of the age of superannuation formed a class and
no sooner than the age of superannuation was reduced, it was realized that injustice had been done
and it was decided that steps should be taken to undo what had been done, there was no reason to
pick out a class of persons who deserved the same treatment and exclude from the benefits of the
beneficent treatment by classifying them as a separate group merely because of the delay in taking
the remedial action already decided upon. We do not doubt that the Judges friend and counselor,
the common man, if asked, will unhesitatingly respond that it would be plainly unfair to make any
such classification. The commonsense response that may be expected from the common man,
untrammeled by legal lore and learning, should always help the Judge in deciding questions of
fairness, arbitrariness etc. Viewed from whatever angle, to our minds, the action of the Government
and the provisions of the legislation were plainly arbitrary and discriminatory. (Para 20)
64. Petitioners placed reliance on the last sentence which said that the action of the Government
and the provisions of the legislation were plainly arbitrary and discriminatory in support of their
submission that an Act could be declared unconstitutional on the ground that it is arbitrary.

65. We are of the opinion that Prabhakar Rao case is not an authority on the proposition advanced
by the petitioners. The ratio of Prabhakar Rao case is that there was an unreasonable classification
between the employees of the State of Andhra Pradesh on the basis of the date of their attaining the
age of superannuation.
66. Observations by Justice Gupta in R.K. Garg Case[37] no doubt indicate that the doctrine
propounded by this Court in E.P. Royappa v. State of Tamil Nadu & Another[38] and Maneka
Gandhi v. Union of India & Another[39] that arbitrariness is antithetical to the concept of equality is
also relevant while examining the constitutionality of a statute but such observations are a part of
the dissenting judgment and not the ratio decidendi of the judgment.
67. Learned Attorney General heavily relied upon para 43 of the State of Andhra Pradesh & Others v.
McDowell & Co., (1996) 3 SCC 709 which dealt with the question of declaring a statute
unconstitutional on the ground it is arbitrary.
43. Sri Rohinton Nariman submitted that inasmuch as a large number of persons falling within the
exempted categories are allowed to consume intoxicating liquors in the State of Andhra Pradesh, the
total prohibition of manufacture and production of these liquors is "arbitrary" and the amending Act
is liable to be struck down on this ground alone. Support for this proposition is sought from a
judgment of this Court in State of Tamil Nadu & Ors. v. Ananthi Ammal & Others [(1995) 1 SCC
519]. Before, however, we refer to the holding in the said decision, it would be appropriate to remind
ourselves of certain basic propositions in this behalf. In the United Kingdom, Parliament is
supreme. There are no limitations upon the power of Parliament. No Court in the United Kingdom
can strike down an Act made by Parliament on any ground. As against this, the United States of
America has a Federal Constitution where the power of the Congress and the State Legislatures to
make laws is limited in two ways, viz., the division of legislative powers between the States and the
federal government and the fundamental rights (Bill of Rights) incorporated in the Constitution. In
India, the position is similar to the United States of America. The power of the Parliament or for that
matter, the State Legislatures is restricted in two ways. A law made by the Parliament or the
Legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of
legislative competence and (2) violation of any of the fundamental rights guaranteed in Part-III of
the Constitution or of any other constitutional provision. There is no third ground. We do not wish
to enter into a discussion of the concepts of procedural unreasonableness and substantive
unreasonableness - concepts inspired by the decisions of United States Supreme Court. Even in
U.S.A., these concepts and in particular the concept of substantive due process have proved to be of
unending controversy, the latest thinking tending towards a severe curtailment of this ground
(substantive due process). The main criticism against the ground of substantive due process being
that it seeks to set up the courts as arbiters of the wisdom of the Legislature in enacting the
particular piece of legislation. It is enough for us to say that by whatever name it is characterized,
the ground of invalidation must fall within the four corners of the two grounds mentioned above. In
other words, say, if an enactment challenged as violative of Article 14, it can be struck down only if it
is found that it is violative of the equality clause/equal protection clause enshrined therein.
Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by
clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the

clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is
arbitrary[40]* or unreasonable. Some or other constitutional infirmity has to be found before
invalidating an Act. An enactment cannot be struck down on the ground that Court thinks it
unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the
people, are supposed to know and be aware of the needs of the people and what is good and bad for
them. The Court cannot sit in judgment over their wisdom. In this connection, it should be
remembered that even in the case of administrative action, the scope of judicial review is limited to
three grounds, viz., (i) unreasonableness, which can more appropriately be called irrationality, (ii)
illegality and (iii) procedural impropriety [See Council of Civil Services Union v. Minister for Civil
Services (1985 A.C.374) which decision has been accepted by this Court as well]. The applicability of
doctrine of proportionality even in administrative law sphere is yet a debatable issue. [See the
opinions of Lords Lowry and Ackner in R. v. Secretary of State for Home Department ex p Brind,
[1991 AC 696 at 766-67 and 762]. It would be rather odd if an enactment were to be struck down by
applying the said principle when its applicability even in administrative law sphere is not fully and
finally settled. It is one thing to say that a restriction imposed upon a fundamental right can be
struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that
the Court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted. Now,
coming to the decision in Ananthi Ammal, we are of the opinion that it does not lay down a different
proposition. It was an appeal from the decision of the Madras High Court striking down the Tamil
Nadu Acquisition of Land for Harijan Welfare Schemes Acts 1978 as violative of Articles 14, 19 and
300A of the Constitution. On a review of the provisions of the Act, this Court found that it provided
a procedure which was substantially unfair to the owners of the land as compared to the procedure
prescribed by the Land Acquisition Act, insofar as Section 11 of the Act provided for payment of
compensation in instalments if it exceeded Rupees two thousand. After noticing the several features
of the Act including the one mentioned above, this Court observed:
"7. When a statute is impugned under Article 14 what the court has to decide is whether the statute
is so arbitrary or unreasonable that it must be struck down. At best, a statute upon a similar subject
which derives its authority from another source can be referred to, if its provisions have been held to
be reasonable or have stood the test of time, only for the purpose of indicating what may be said to
be reasonable in the context. We proceed to examine the provisions of the said Act upon this basis.
44. It is this paragraph which is strongly relied upon by Shri Nariman. We are, however, of the
opinion that the observations in the said paragraph must be understood in the totality of the
decision. The use of the word arbitrary in para 7 was used in the sense of being discriminatory, as
the reading of the very paragraph in its entirety discloses. The provisions of the Tamil Nadu Act
were contrasted with the provisions of the Land Acquisition Act and ultimately it was found that
Section 11 insofar as it provided for payment of compensation in instalments was invalid. The
ground of invalidation is clearly one of discrimination. It must be remembered that an Act which is
discriminatory is liable to be labeled as arbitrary. It is in this sense that the expression arbitrary was
used in para 7.
68. From the above extract it is clear that courts in this country do not undertake the task of
declaring a piece of legislation unconstitutional on the ground that the legislation is arbitrary since

such an exercise implies a value judgment and courts do not examine the wisdom of legislative
choices unless the legislation is otherwise violative of some specific provision of the Constitution. To
undertake such an examination would amount to virtually importing the doctrine of substantive due
process employed by the American Supreme Court at an earlier point of time while examining the
constitutionality of Indian legislation. As pointed out in the above extract, even in United States the
doctrine is currently of doubtful legitimacy. This court long back in A.S. Krishna & Others v. State of
Madras, AIR 1957 SC 297 declared that the doctrine of due process has no application under the
Indian Constitution[41]. As pointed out by Frankfurter, J., arbitrariness became a mantra.
69. For the above reasons, we are of the opinion that it is not permissible for this Court to declare a
statute unconstitutional on the ground that it is arbitrary.
70. We shall examine the next facet of the challenge i.e. each of the four impugned clauses have
created a class of persons who were eligible to contest the elections to Panchayats subject to their
satisfying the requirements of law as it existed prior to the IMPUGNED ACT but are rendered now
ineligible because they fail to satisfy one of the other conditions prescribed under clauses (t), (u), (v)
and (w) of Section 175(1) of the Act. The case of the petitioners is that such a classification created by
each of the impugned clauses amount to an unreasonable classification among people who form one
class but for the IMPUGNED ACT, without any intelligible difference between the two classes and
such classification has no nexus with the object sought to be achieved.
71. Learned Attorney General submitted that the object sought to be achieved is to have model
representatives for local self government for better administrative efficiency which is the sole object
of the 73rd constitutional amendment.
72. In the light of the above submissions, we shall now deal with the challenge to each of the
abovementioned four clauses.
73. Clause (v) prescribes a minimum educational qualification of matriculation[42] for anybody
seeking to contest an election to any one of the offices mentioned in the opening clause of Section
175(1). However, the minimum educational qualification is lowered insofar as candidates belonging
to scheduled castes and women are concerned to that of middle pass whereas a further relaxation is
granted in favour of the scheduled caste woman insofar as they seek to contest for the office of
Panch.
74. It is argued that stipulation of minimum educational qualification would have the effect of
disqualifying more than 50% of persons who would have otherwise been qualified to contest
elections to PANCHAYATS under the law prior to the IMPUGNED ACT. It is further submitted that
poorer sections of the society, women and scheduled castes would be worst hit by the impugned
stipulation as a majority of them are the most unlikely to possess the minimum educational
qualification prescribed in the IMPUGNED ACT.
75. On the other hand, it is stated in the affidavit filed on behalf of respondent as follows:

10. That as per the National Population Register 2011, total rural population in the State is 1.65 cr
out of which 96 lac are above 20 years of age. Further 57% of such population, who are over 20 years
of age, is eligible to contest even after the introduction of impugned disqualification in respect of
having minimum education qualification.
76. According to the Annexure-5 (to the said affidavit of the respondents) the details of the
educational qualification of the persons above 20 years of age (under Section 173(2)[43] of THE
ACT the minimum qualifying age for contesting any PANCHAYAT election is 21 years) are as
follows:
NATIONAL POPULATION REGISTER 2011 Number of persons above 20 years of

age vis-à-vis their educational qualification | |Total Population |SC Population |
|Total | |Males | |Females | |Total | |Males | |Females | | |Illiterate |3660892 |38%
|1211555 |24% |2449337 |53% |980908 |48% |367755 |34% |613153 |63% |
|Unspecified Literate & below primary |494348 |5% |291058 |6% |203290 |4%
|125442 |6% |77233 |7% |48209 |5% | |Primary/Middle/Matric & above |5458464
|57% |3489821 |70% |1968643 |43% |949306 |46% |631180 |59% |318126 |32% |
|Total Population above 20 years of age |9613704 | |4992434 | |4621270 | |2055656
| |1076168 | |979488 | | |Total Rural Population |16509359 | |8774006 | |7735353 |
|3720109 | |1973294 | |1746815 | | |77.
It can be seen from the above extract that the total rural population[44] of the State of Haryana is
1.65 crores approximately. (All figures to be mentioned hereinafter are approximate)
78. Of the 1.65 crore rural population, 96 lakhs are in the age group of 20 years and above. In other
words, dehors the IMPUGNED ACT, 96 lakhs would be eligible to contest elections to various
PANCHAYATS subject of course to other qualifications and disqualifications prescribed by law. Of
the 96 lakhs, 36 lakhs are illiterate and about 5 lakhs are literate but below primary level of
education. The remaining 54.5 lakhs are educated, though the chart does not clearly indicate the
exact break-up of the above 54.5 lakhs and their respective educational qualifications i.e. whether
they are educated up to primary or middle or matriculation level and above. The said 54.5 lakhs
constitute 57% of the rural population who are otherwise eligible to contest PANCHAYATS election
by virtue of their being in the age group of 20 years and above. Of the 96 lakhs of rural population,
50 lakhs are men and 46 lakhs are women. Of them, 35 lakhs men, 20 lakhs women are literate
above primary level, though exact break-up of educational qualification is not available. Even if we
assume all the 20 lakhs women are matriculate and, therefore, eligible to contest any election under
THE ACT, they would contribute less than 50% of the otherwise eligible women.
79. The abovementioned figures include all classes of the population including scheduled caste.
80. Coming to the statistics regarding scheduled caste population, the total scheduled caste
population of Haryana, it appears, is 21 lakhs of which 11 lakhs are men and 10 lakhs are women of
which only 6.3 lakhs men and 3.1 lakhs women constituting 59% and 32% respectively are educated.
In other words, 68% of the scheduled caste women and 41% of the scheduled caste men would be

ineligible to contest PANCHAYAT elections.
81. An analysis of the data in the above table indicates that a large number of women (more than
50% of the otherwise eligible women) in general and scheduled caste women in particular would be
disqualified to contest PANCHAYAT elections by virtue of the IMPUGNED ACT. Even with regard
to men, the data is not very clear as to how many of the literate men would be qualified to contest
the elections for PANCHAYATS at various levels. Because for men belonging to general category (39
lakhs), a uniform requirement of matriculation is prescribed in respect of posts for which they seek
to contest. Coming to men candidates belonging to the scheduled caste, a uniform academic
qualification of middle pass is prescribed. How many men under these categories would be qualified
to contest is not clear, as the exact data regarding their respective educational qualifications is not
available on the record.
82. Coming to scheduled caste women and the proviso to clause (v) of Section 175(1), though
educational qualification required is 5th (primary) pass, such a qualification only entitles them to
contest an election for the post of PANCH of a village but to no other post. Therefore, if a scheduled
caste woman desires to contest either to the post of SARPANCH or any other post at Samiti or
District level, she must be middle pass. The exact number of scheduled caste women who possess
that qualification is not available on record. Even assuming for the sake of argument that all
educated scheduled caste women indicated in the Annexure-5 are middle pass, they only constitute
32% of the scheduled caste women. The remaining 68% of the women would be disqualified for
contesting any election under the IMPUGNED ACT.
83. The question is - whether the impugned provision which disqualifies a large number of voter
population and denies their right to contest for various offices under THE ACT is discriminatory and
therefore constitutionally invalid for being violative of Article 14.
84. The learned Attorney General referred to Section 21 of THE ACT which catalogues the functions
and duties of Gram Panchayat falling under 30 broad heads. To demonstrate the range of those
heads, he pointed out some of the duties of a Gram Panchayat[45] and submitted that in the light of
such responsibilities to be discharged by members elected to the Gram Panchayat, the legislature in
its wisdom thought it fit to prescribe a minimum educational qualification and such a prescription
cannot be said to be making an unreasonable classification among the voters attracting the wrath of
Article 14. Several judgments of this Court are referred to emphasise the importance of
education[46].
85. The impugned provision creates two classes of voters - those who are qualified by virtue of their
educational accomplishment to contest the elections to the PANCHAYATS and those who are not.
The proclaimed object of such classification is to ensure that those who seek election to
PANCHAYATS have some basic education which enables them to more effectively discharge various
duties which befall the elected representatives of the PANCHAYATS. The object sought to be
achieved cannot be said to be irrational or illegal or unconnected with the scheme and purpose of
THE ACT or provisions of Part IX of the Constitution. It is only education which gives a human
being the power to discriminate between right and wrong, good and bad. Therefore, prescription of

an educational qualification is not irrelevant for better administration of the PANCHAYATS. The
classification in our view cannot be said either based on no intelligible differentia unreasonable or
without a reasonable nexus with the object sought to be achieved.
86. The only question that remains is whether such a provision which disqualifies a large number of
persons who would otherwise be eligible to contest the elections is unconstitutional. We have
already examined the scheme of the Constitution and recorded that every person who is entitled to
vote is not automatically entitled to contest for every office under the Constitution. Constitution
itself imposes limitations on the right to contest depending upon the office. It also authorises the
prescription of further disqualifications/qualification with respect to the right to contest. No doubt
such prescriptions render one or the other or some class or the other of otherwise eligible voters,
ineligible to contest. When the Constitution stipulates[47] undischarged insolvents or persons of
unsound mind as ineligible to contest to Parliament and Legislatures of the States, it certainly
disqualifies some citizens to contest the said elections. May be, such persons are small in number.
Question is not their number but a constitutional assessment about suitability of persons belonging
to those classes to hold constitutional offices.
87. If it is constitutionally permissible to debar certain classes of people from seeking to occupy the
constitutional offices, numerical dimension of such classes, in our opinion should make no
difference for determining whether prescription of such disqualification is constitutionally
permissible unless the prescription is of such nature as would frustrate the constitutional scheme by
resulting in a situation where holding of elections to these various bodies becomes completely
impossible. We, therefore, reject the challenge to clause (v) to Section 175(1).
88. We shall now deal with the challenge to clauses (t) and (v) of Section 175(1) of THE ACT. These
two clauses disqualify persons who are in arrears of amounts to cooperative bodies specified in
clause (t) and the electricity bills. These provisions are challenged on the ground that they impose
unreasonable burden on voters who are otherwise eligible to contest the election and therefore
create an artificial and unreasonable classification which has no nexus to the objects sought to be
achieved by the ACT.
89. Constitution makers recognised indebtedness as a factor which is incompatible in certain

circumstances with the right to hold an elected office under the Constitution. Article 102(1)(c)[48]
and Article 191(1)(c)[49] declare that an undischarged insolvent is disqualified from becoming a
Member of Parliament or the State Legislature respectively. By virtue of the operation of Article
58(1)(c) and 66(1)(c), the same disqualification extends even to the seekers of the offices of the
President and the Vice-President.
90. The expression insolvency is not defined under the Constitution. In the absence of a definition,
the said expression must be understood to mean a person who is considered insolvent by or under
any law made by the competent legislature. Sections 6[50] of the Provincial Insolvency Act, 1920
and Section 9[51] of the Presidency Towns Insolvency Act, 1909 declare various activities which
constitute acts of insolvency. It is an aspect of indebtedness - a specified category of indebtedness. If
the Constitution makers considered that people who are insolvent are not eligible to seek various

elected public offices, we do not understand what could be the constitutional infirmity if the
legislature declares people who are indebted to cooperative bodies or in arrears of electricity bills to
be ineligible to become elected representatives of the people in PANCHAYATS. It must be
remembered that insolvency is a field over which both the Parliament as well as the legislatures of
the State have a legislative competence concurrently to make laws as it is one of the topics indicated
under Entry 9[52], List III of the Seventh Schedule to the Constitution.
91. The submission is that rural India is heavily indebted and particularly agriculturists who
constitute a majority of our rural population are deeply indebted and reportedly a large number of
agriculturists have been committing suicides as they are not able to bear the burden of
indebtedness. Therefore, prescriptions under clauses (t) and
(v) of Section 175(1) of the Act is an arbitrary prescription creating a class of persons who would
become ineligible to contest Panchayat elections and such classification has no rational nexus to the
object of the Panchayati Raj Act whose constitutional goal is to empower the rural population by
enabling them to play a role in the decision making process of the units of local self government, is
the contention.
92. No doubt that rural India, particularly people in the agricultural sector suffer the problem of
indebtedness. The reasons are many and it is beyond the scope of this judgment to enquire into the
reasons. It is also a fact that there have been cases in various parts of the country where people
reportedly commit suicides unable to escape the debt trap. But, it is the submission of the
respondents that such incidents are very negligible in the State of Haryana as the agricultural sector
of Haryana is relatively more prosperous compared to certain other parts of the country. We do not
wish to examine the statistical data in this regard nor much of it is available on record. In our view,
such an enquiry is irrelevant for deciding the constitutionality of the impugned provision. We are
also not very sure as to how many of such people who are so deeply indebted would be genuinely
interested in contesting elections whether at PANCHAYAT level or otherwise. We can certainly take
judicial notice of the fact that elections at any level in this country are expensive affairs. For that
matter, not only in this country, in any other country as well they are expensive affairs. In such a
case the possibility of a deeply indebted person seeking to contest elections should normally be rare
as it would be beyond the economic capacity of such persons. In our opinion, the challenge is more
theoretical than real. Assuming for the sake of argument that somebody who is so indebted falling
within the prescription of clauses
(t) and (v) of Section 175(1) of the Act is still interested in contesting the PANCHAYAT elections,
nothing in law stops such an aspirant from making an appropriate arrangement for clearance of the
arrears and contest elections. At this stage, an incidental submission is required to be examined. It
is submitted that there could be a genuine dispute regarding the liability falling under the clauses (t)
and (v) and therefore it would be unjust to exclude such persons from the electoral process even
before an appropriate adjudication. Justness of such a situation is once again in the realm of the
wisdom of the legislation. We do not sit in the judgment over the same. But we must make it clear
nothing in law prevents an aspirant to contest an election to the PANCHAYAT to make payments
under protest of the amounts claimed to be due from him and seek adjudication of the legality of the

dues by an appropriate forum. We do not see any substance in the challenge to clauses (t) and (v) of
Section 175(1) of the Act.
93. Clause (w) disqualifies a person from contesting an election to the Panchayat if such a person
has no functional toilet at his place of residence. Once again the submission on behalf of the
petitioners is that a large number of rural population simply cannot afford to have a toilet at their
residence as it is beyond their economic means. To render them disqualified for contesting elections
to the PANCHAYATS would be to make an unreasonable classification of otherwise eligible persons
to contest elections to PANCHAYAT and, therefore, discriminatory.
94. It is submitted on behalf of respondents that the submission of the petitioner is without any
factual basis. According to statistical data available with the State, there are approximately 8.5 lakhs
house holders classified as families falling below poverty line (BPL) in the State of Haryana. It is
further submitted that right from the year 1985 there have been schemes in vogue to provide
financial assistance to families desirous of constructing a toilet at their residence[53]. In the initial
days of such a scheme Rs.650/- was given by the State and from time to time the amount was
revised and at present Rs.12000/- is provided by the State to any person desirous of constructing a
toilet. As per the data available with the State, of the abovementioned 8.5 lakhs households,
classified to be below the poverty line, approximately 7.2 lakhs households had availed the benefit of
the above scheme. Therefore, according to the respondents if any person in the State of Haryana is
not having a functioning toilet at his residence it is not because that he cannot afford to have a toilet
but because he has no intention of having such facility at his residence. It is very forcefully
submitted by the learned Attorney General that a salutary provision designed as a step for
eliminating the unhealthy practice of rural India of defecating in public, ought not to be invalidated.
95. It is a notorious fact that the Indian[54] population for a long time had this unhealthy practice of
defecating in public. The Father of the Nation wrote copiously on this aspect on various occasions.
He took up with a missionary zeal the cause to eradicate this unhealthy practice. At some point of
time, he even declared that the priority of this country should be to get rid of such unhealthy
practice than to fight for independence. It is unfortunate that almost a hundred years after Gandhiji
started such a movement, India is still not completely rid of such practice. The reasons are many.
Poverty is one of them. However, this unhealthy practice is not exclusive to poorer sections of rural
India. In a bid to discourage this unhealthy practice, the State has evolved schemes to provide
financial assistance to those who are economically not in a position to construct a toilet. As rightly
pointed by the respondents, if people still do not have a toilet it is not because of their poverty but
because of their lacking the requisite will. One of the primary duties of any civic body is to maintain
sanitation within its jurisdiction. Those who aspire to get elected to those civic bodies and
administer them must set an example for others. To the said end if the legislature stipulates that
those who are not following basic norms of hygiene are ineligible to become administrators of the
civic body and disqualifies them as a class from seeking election to the civic body, such a policy, in
our view, can neither be said to create a class based on unintelligible criteria nor can such
classification be said to be unconnected with the object sought to be achieved by the Act.

96. For the above-mentioned reasons, we see no merit in this writ petition, and the same is
dismissed.
..J.
(J. Chelameswar) ..J.
(Abhay Manohar Sapre) New Delhi;
December 10, 2015 REPORTABLE [ IN THE SUPREME COURT OF INDIA CIVIL APPELLATE
JURISDICTION WRIT PETITION No.671 OF 2015 Rajbala & Ors. ...Petitioner(s) VERSUS State of
Haryana & Others Respondent(s) J U D G M E N T Abhay Manohar Sapre, J.
1. I have had the advantage of going through the elaborate, well considered and scholarly draft
judgement proposed by my esteemed brother Jasti Chelmeswar J. I entirely agree with the
reasoning and the conclusion, which my erudite brother has drawn, which are based on remarkably
articulate process of reasoning. However, having regard to the issues involved which were ably
argued by learned counsel appearing in the case, I wish to add few lines of concurrence.
2. While examining the question of constitutionality of the impugned amendment made under
Section 175 (1) of the Haryana Panchayati Raj Act (for short the Act), which are under attack in this
writ petition, the question arose regarding the true nature of the two rights of the citizen - "Right to
Vote" and "Right to Contest" viz- whether they are statutory right or constitutional right?
3. A three Judge Bench in PUCL vs. Union of India [(2003) 4 SCC 399] examined the question
regarding nature of "Right to Vote". The learned Judge P.V. Reddi, in his separate opinion, which
was concurred by Justice D.M. Dharmadhikari, examined this question in great detail and in express
terms, answered it holding that the "Right to Vote" is a constitutional right but not merely a
statutory right. We are bound by this view taken by a three Judge Bench while deciding this question
in this writ petition.
4. Similarly, another three Judge Bench in Javed vs. State of Haryana [(2003) 8 SCC 369] examined
the question regarding the nature of "Right to Contest" while examining the constitutional validity
of certain provisions of The Act. The learned Judge R.C. Lahoti (as his Lordship then was) speaking
for the Bench held that right to contest an election is neither a Fundamental Right nor a common
right. It is a right conferred by statute. His Lordship went on to hold that "at the most, in view of
Part IX having been added in the Constitution, a right to contest the election for an office in
Panchayat may be said to be a constitutional right. We are bound by this view taken by a three Judge
Bench while deciding this question in this writ petition.
5. In the light of aforementioned two authoritative pronouncements, we are of the considered

opinion that both the rights namely "Right to Vote" and "Right to Contest" are constitutional rights
of the citizen.

6. Indeed, my learned brother rightly took note of the few decisions, which had while deciding the
main questions involved in those cases also incidentally made some observations on these two
issues, which we feel were not in conformity with the law, laid down in the aforementioned two
decisions.
7. Coming now to the question of constitutional validity of Section 175 (1)(v) of the Act which
provides that candidate must possess certain minimum educational qualification if he/she wants to
contest an election. In my opinion, introduction of such provision prescribing certain minimum
educational qualification criteria as one of the qualifications for a candidate to contest the election
has a reasonable nexus with the object sought to be achieved.
8. In fact, keeping in view the powers, authority and the responsibilities of Panchayats as specified
in Article 243-G so also the powers given to Panchayats to impose taxes and utilization of funds of
the Panchayats as specified in Article 243-H, it is necessary that the elected representative must
have some educational background to enable him/her to effectively carry out the functions assigned
to Panchyats in Part IX. It is the legislative wisdom to decide as to what should be the minimum
qualifications, which should be provided in the Act.
9. No one can dispute that education is must for both men and women as both together make a
healthy and educated society. It is an essential tool for a bright future and plays an important role in
the development and progress of the country.
10. In my view, therefore, Section 175 (v) of the Act is intra vires the Constitution and is thus
constitutionally valid.
11. Now coming to the question regarding constitutionality of Section 175(w) of the Act, which
provides that if a person has no functional toilet at his place of residence, he/she is disqualified to
contest the election. In my view, this provision too has reasonable nexus and does not offend any
provision of the Constitution.
12. Indeed, there are no grounds much less sustainable grounds available to the petitioners to
question the validity of this provision. This provision in my view is enacted essentially in the larger
public interest and is indeed the need of the hour to ensure its application all over the country and
not confining it to a particular State. Moreover, the State having provided adequate financial
assistance to those who do not have toilet facility for construction of toilet, there arise no ground to
challenge this provision as being unreasonable in any manner. Since this issue has already been
elaborately dealt with by my learned brother, therefore, I do not wish to add anything more to it.
13. In the light of the foregoing discussion agreeing with my learned brother, I also hold that Section
175 (v) is intra vires the Constitution and is thus constitutionally valid.
14. In my view, therefore, the writ petition deserves to be dismissed and is accordingly dismissed. As
a consequence, interim order stands vacated.

....................................J.
[ABHAY MANOHAR SAPRE] New Delhi;

December 10, 2015.
-----------------------
[1] Article 243B. Constitution of Panchayats
(1) There shall be constituted in every State, Panchayats at the village, intermediate and district
levels in accordance with the provisions of this Part (2) Notwithstanding anything in clause ( 1 ),
Panchayats at the intermediate level may not be constituted in a State having a population not
exceeding twenty lakhs [2] Article 243(d). Panchayat means an institution (by whatever name
called) of self- government constituted under article 243B, for the rural areas;
[3] Article 243E. Duration of Panchayats, etc - (1) Every Panchayat, unless sooner dissolved under
any law for the time being in force, shall continue for five years from the date appointed for its first
meeting and no longer.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution
of a Panchayat at any level, which is functioning immediately before such amendment, till the
expiration of its duration specified in clause ( 1 ).
(3) An election to constitute a Panchayat shall be completed-
(a) before the expiry of its duration specified in clause (1);
(b) before the expiration of a period of six months from the date of its dissolution:
Provided that where the remainder of the period for which the dissolved Panchayat would have
continued is less than six months, it shall not be necessary to hold any election under this clause for
constituting the Panchayat for such period.
(4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration
shall continue only for the remainder of the period for which the dissolved Panchayat would have
continued under clause (1) had it not been so dissolved.
[4] See Footnote 1 [5] Section 162. Electoral division: Every sabha area, block and district shall be
divided into wards as referred in sections 8(3), 58(2) and 119(b) of this Act.
[6] Section 165. Persons qualified to be registered as voters.- Every person who is entitled to be
registered as voter in the relevant part of the electoral rolls of the Assembly under the
Representation of People Act, 1950, shall be entitled to be registered as a voter in the list of voters
for the electoral division to be prepared under section 164. [7] Initially, an ordinance known as
Haryana Panchayat Raj (Amendment) Ordinance, 2015 was promulgated on 14.8.2015 now replaced
by the Impugned Act which was passed by the Haryana Legislature on 7.9.2015 and subsequently
notified.

[8] That the Respondents have passed the impugned Act and Notification without any
consideration, regard or appreciation for the empirical data pertaining to the number of people that
would be prevented from contesting Panchayati Raj elections by its actions. That the Respondents
actions have the effect of disqualifying 56.80% of the population who would need to be
matriculation pass (69,86,197) and 79.76% of the population who would need to be middle-pass
(10,83,052), in order to contest elections. That by its actions, the Respondents have prevented an
overwhelming majority of the population from contesting elections, in contravention of Article 14,
without any regard for Constitutional principles. [See: Ground G of the Petition] [9] no reasonable
nexus between the impugned classifications set out in the impugned Act, and the object of the Act.
That the imposition of disqualifications on the grounds laid down by the impugned Act are entirely
irrelevant to, and have no bearing whatsoever on the ability of potential candidates to effectively
discharge their duties and perform their functions as members/heads of Panchayati Raj institutions.
[See: Ground A of the Petition] [10] Maru Ram v. Union of India & Others, (1981) 1 SCC 107 [11] In
Re: The Kerala Education Bill, 1957, (1959) SCR 995 [12] State of A.P. & Others v. Mcdowell & Co. &
Others, (1996) 3 SCC 709 [See para 43] [13] Para 131. With these words, I agree with Conclusions
(A) to (E) in the opinion of Brother Shah, J. and Conclusions (1), (2), (4), (5), (6), (7) and (9) in the
opinion of Brother P.V. Reddi, J.
[14] Para 101. In my opinion, therefore, subject to the fulfillment of the various conditions stipulated
in the Constitution or by an appropriate law made in that behalf, every citizen of this country has a
constitutional right both to elect and also be elected to any one of the legislative bodies created by
the Constitutionthe straight conclusion of Mohinder Singh Gill v. Chief Election Commissioner,
(1978) 1 SCC 405, that every Indian has a right to elect and be electedsubject to statutory regulation,
which rights can be curtailed only by a law made by the appropriate legislation, that too on grounds
specified under Article 326 only.
For complete discussion - see paras 86 to 104.
[15] [16] Para 57. All these petitions filed either under Article 32 or under Article 136 raise certain
common and substantial questions of law as to the interpretation of the Constitution. The lis,
essentially, is between the Election Commission of India, a creature of the Constitution under
Article 324, on the one hand and various bodies claiming to be political parties and some of their
functionaries, on the other hand. The essence of the dispute is whether a political party is entitled
for the allotment of an election symbol on a permanent basis irrespective of its participation and
performance judged by the vote share it commanded at any election.
[17] Para 12. However, the petitioners raised strong objections against the other aspects of the
reservation policy contemplated under Articles 243- D and 243-T. Initially, they had assailed the
reservation of seats in favour of women, which has been enabled by Articles 243-D(2) and (3) with
respect to rural local bodies, and by Articles 243-T(2) and (3) with respect to urban local bodies.
However, this challenge was given up during the course of the arguments before this Court and the
thrust of the petitioners arguments was directed towards the following two aspects:

Firstly, objections were raised against Article 243-D(6) and Article 243-T(6) since they enable
reservations of seats and chairperson posts in favour of backward classes, without any guidance on
how to identify these beneficiaries and the quantum of reservation.
Secondly, it was argued that the reservation of chairperson posts in the manner contemplated under
Articles 243-D(4) and 243-T(4) is unconstitutional, irrespective of whether these reservations are
implemented on a rotational basis and irrespective of whether the beneficiaries are SCs, STs and
women. The objection was directed against the very principle of reserving chairperson posts in
elected local bodies.
[18] See Para 13 of K. Krishna Murthy case [19] Para 79. The petitioners have asked us to reconsider
the precedents wherein the rights of political participation have been characterised as statutory
rights. It has been argued that in view of the standard of reasonableness, fairness and
non-discrimination required of governmental action under Article 21 of the Constitution, there is a
case for invalidating the restrictions that have been placed on these rights as a consequence of
reservations in local self-government. We do not agree with this contention.
Para 80. In this case, we are dealing with an affirmative action measure and hence the test of
proportionality is a far more appropriate standard for exercising judicial review. It cannot be denied
that the reservation of chairperson posts in favour of candidates belonging to the Scheduled Castes,
Scheduled Tribes and women does restrict the rights of political participation of persons from the
unreserved categories to a certain extent. However, we feel that the test of reasonable classification
is met in view of the legitimate governmental objective of safeguarding the interests of weaker
sections by ensuring their adequate representation as well as empowerment in local self-government
institutions. The position has been eloquently explained in the respondents submissions, wherein it
has been stated that the asymmetries of power require that the chairperson should belong to the
disadvantaged community so that the agenda of such panchayats is not hijacked for majoritarian
reasons. (Cited from the submissions on behalf of the State of Bihar, p. 49.) [20] Para 2. Democracy
is a concept, a political philosophy, an ideal practised by many nations culturally advanced and
politically mature by resorting to governance by representatives of the people elected directly or
indirectly. But electing representatives to govern is neither a fundamental right nor a common law
right but a special right created by the statutes, or a political right or privilege and not a natural,
absolute or vested right. Concepts familiar to common law and equity must remain strangers to
election law unless statutorily embodied. Right to remove an elected representative, too, must stem
out of the statute as in the absence of a constitutional restriction it is within the power of a
legislature to enact a law for the recall of officers. Its existence or validity can be decided on the
provision of the Act and not, as a matter of policy.
[21] Introduced Part IX-A of the Constitution dealing with Municipalities w.e.f. 1.6.1993 [22] The
judgment of Allahabad High Court is dated 19.2.1991 and the appeal in this Court is decided on
15.5.1992.
[23] Para 60. The purpose of referring to the same is to remind one that the right to contest in an
election is a plain and simple statutory right [24] Section 123(2). Undue influence, that is to say, any

direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of
any other person with the consent of the candidate or his election agent, with the free exercise of any
electoral right:
[25] Article 80. Composition of the Council of States.- (1) The Council of States shall consist of
(a) twelve members to be nominated by the President in accordance with the provisions of clause
(3); and (b) not more than two hundred and thirty eight representatives of the States and of the
Union territories.
(2) The allocation of seats in the Council of States to be filled by representatives of the States and of
the Union territories shall be in accordance with the provisions in that behalf contained in the fourth
Schedule.
(3) The members to be nominated by the President under sub clause (a) of clause (1) shall consist of
persons having special knowledge or practical experience in respect of such matters as the following,
namely:
Literature, science, art and social service.
(4) 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.
(5) The representatives of the Union Territories in the council of States shall be chosen in such
manner as Parliament may by law prescribe. [26] Article 171(3) Of the total number of members of
the Legislative council of a State:
(a) as nearly as may be, one third shall be elected by electorates consisting of members of
municipalities, district boards and such other local authorities in the State as Parliament may by law
specify;
(b) as nearly as may be, one twelfth shall be elected by electorates consisting of persons residing in
the State who have been for at least three years graduates of any university in the territory of India
or have been for at least three years in possession of qualifications prescribed by or under any law
made by Parliament as equivalent to that of a graduate of any such university;
(c) as nearly as may be, one twelfth shall be elected by electorates consisting of persons who have
been for at least three years engaged in teaching in such educational institutions within the State,
not lower in standard than that of a secondary school, as may be prescribed by or under any law
made by Parliament;
(d) as nearly as may be, one third shall be elected by the members of the Legislative Assembly of the
State from amongst persons who are not members of the Assembly;

(e) the remainder shall be nominated by the Governor in accordance with the provisions of clause
(5) [27] Article 80(4). 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.
[28] G. Narayanaswami v. G. Pannerselvam & Others [(1972) 3 SCC 717] Para 14. Whatever may
have been the opinions of Constitution- makers or of their advisers, whose views are cited in the
judgment under appeal, it is not possible to say, on a perusal of Article 171 of the Constitution, that
the Second Chambers set up in nine States in India were meant to incorporate the principle of what
is known as functional or vocational representation which has been advocated by Guild-Socialist
and Syndicalist Schools of Political Thought. Some of the observations quoted above, in the
judgment under appeal itself, militate with the conclusions reached there. All that we can infer from
our constitutional provisions is that additional representation or weightage was given to persons
possessing special types of knowledge and experience by enabling them to elect their special
representatives also for Legislative Councils. The concept of such representation does not carry with
it, as a necessary consequence, the further notion that the representative must also possess the very
qualifications of those he represents.
[29] Manoj Narula v. Union of India, (2014) 9 SCC 1 Para 110. 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 is a citizen of India, and makes and subscribes before some 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;
is, in the case of a seat in the Council of States, not less than thirty years of age, in the case of a seat
in the House of the People, not less than twenty-five years of age; and possesses such other
qualifications as may be prescribed in that behalf by or under any law made by Parliament. [30]
Bhanumati & Others v. State of U.P., (2010) 12 SCC 1 Para 33. The Panchayati Raj institutions
structured under the said amendment are meant to initiate changes so that the rural feudal
oligarchy lose their ascendancy in village affairs and the voiceless masses, who have been rather
amorphous, may realise their growing strength. Unfortunately, effect of these changes by way of
constitutional amendment has not been fully realised in the semi-feudal set-up of Indian politics in
which still voice of reason is drowned in an uneven conflict with the mythology of individual
infallibility and omniscience. Despite high ideals of constitutional philosophy, rationality in our
polity is still subordinated to political exhibitionism, intellectual timidity and petty manipulation.
The Seventy-third Amendment of the Constitution is addressed to remedy these evils.
[31] Section 173. Persons qualified to vote and be elected. (1) Every person whose name is in the list
of voters shall, unless disqualified under this Act or any other law for the time being in force, be
qualified to vote at the election of a Member for the electoral division to which such list pertains.

[32] Section 173(2). Every person who has attained the age of twenty- one years and whose name is
in the list of voters shall, unless disqualified under this Act or under any other law for the time being
in force, be disqualified to be elected from any electoral division. [33] Section 2 (lvi) Sarpanch
means a Sarpanch of Gram Panchayat elected under this Act.
[34] Section 2 (xli) "Panch" means a member of a Gram Panchayat elected under this Act.
[35] Para 3(3). .. The Learned Senior Counsel contends that it is wholly irrational and arbitrary to
protect highly-placed public servants from inquiry or investigation in the light of the conditions
prevailing in the country and the corruption at high places as reflected in several judgments of this
Court including that of Vineet Narain. Section 6-A of the Act is wholly arbitrary and unreasonable
and is liable to be struck down being violative of Article 14 of the Constitution is the submission of
learned amicus curiae.
(4). In support of the challenge to the constitutional validity of the impugned provision, besides
observations made in the three-Judge Bench decision in Vineet Narain case reliance has also been
placed on various decisions including S.G. Jaisinghani v. Union of India [(1967) 2 SCR 703],
Shrilekha Vidyarthi v. State of U.P. [(1991) 1 SCC 212], Ajay Hasia v. Khalid Mujib Sehravardi
[(1981) 1 SCC 722] and Mardia Chemicals Ltd. v. Union of India [(2004) 4 SCC 311] to emphasize
that the absence of arbitrary power is the first essential of the rule of law upon which our whole
constitutional system is based. In Mardia Chemicals case a three- Judge Bench held Section 17(2) of
the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002 to be unreasonable and arbitrary and violative of Article 14 of the Constitution. Section 17(2)
provides for condition of deposit of 75% of the amount before an appeal could be entertained. The
condition has been held to be illusory and oppressive. Malpe Vishwanath Acharya v. State of
Maharashtra [(1998) 2 SCC 1], again a decision of a threeJudge Bench, setting aside the decision of
the High Court which upheld the provisions of Sections 5(10)(b), 11(1) and 12(3) of the Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947 pertaining to standard rent in petitions
where the constitutional validity of those provisions was challenged on the ground of the same being
arbitrary, unreasonable and consequently ultra vires Article 14 of the Constitution, has come to the
conclusion that the said provisions are arbitrary and unreasonable. [36] Para 64. . We are also
clearly of the view that no distinction can be made for certain class of officers specified in Section
6-A who are described as decision making officers for the purpose of inquiry/investigation into an
offence under the PC Act, 1988. There is no rational basis to classify the two sets of public servants
differently on the ground that one set of officers is decision making officers and not the other set of
officers. If there is an accusation of bribery, graft, illegal gratification or criminal misconduct against
a public servant, then we fail to understand as to how the status of offender is of any relevance.
Where there are allegations against a public servant which amount to an offence under the PC Act,
1988, no factor pertaining to expertise of decision making is involved. Yet, Section 6-A makes a
distinction. It is this vice which renders Section 6-A violative of Article 14. Moreover, the result of
the impugned legislation is that the very group of persons, namely, high ranking bureaucrats whose
misdeeds and illegalities may have to be inquired into, would decide whether the CBI should even
start an inquiry or investigation against them or not. There will be no confidentiality and insulation
of the investigating agency from political and bureaucratic control and influence because the

approval is to be taken from the Central Government which would involve leaks and disclosures at
every stage.
Para 99. In view of our foregoing discussion, we hold that Section 6-A(1), which requires approval of
the Central Government to conduct any inquiry or investigation into any offence alleged to have
been committed under the PC Act, 1988 where such allegation relates to (a) the employees of the
Central Government of the level of Joint Secretary and above and (b) such officers as are appointed
by the Central Government in corporations established by or under any Central Act, government
companies, societies and local authorities owned or controlled by the Government, is invalid and
violative of Article 14 of the Constitution. As a necessary corollary, the provision contained in
Section 26 (c) of the Act 45 of 2003 to that extent is also declared invalid. [37] Para 13. The next
question, is the rule reasonable or arbitrary and unreasonable? The rationale for the rule, as stated
earlier, is to maintain the dignity and purity of the profession by keeping out those who retire from
various government, quasi-government and other institutions since they on being enrolled as
advocates use their past contacts to canvass for cases and thereby bring the profession into
disrepute and also pollute the minds of young fresh entrants to the profession. Thus the object of the
rule is clearly to shut the doors of profession for those who seek entry in to the profession after
completing the age of 45 years. In the first place, there is no reliable statistical or other material
placed on record in support of the inference that ex-government or quasi- government servants or
the like indulge in undesirable activity of the type mentioned after entering the profession. Secondly,
the rule does not debar only such persons from entry in to the profession but those who have
completed 45 years of age on the date of seeking enrolment. Thirdly, those who were enrolled as
advocates while they were young and had later taken up some job in any government or
quasi-government or similar institution and had kept the sanad in abeyance are not debarred from
reviving their sanads even after they have completed 45 years of age. There may be a large number
of persons who initially entered the profession but later took up jobs or entered any other gainful
occupation who revert to practise at a later date even after they have crossed the age of 45 years and
under the impugned rule they are not debarred from practising. Therefore, in the first place there is
no dependable material in support of the rationale on which the rule is founded and secondly the
rule is discriminatory as it debars one group of persons who have crossed the age of 45 years from
enrolment while allowing another group to revive and continue practice even after crossing the age
of 45 years. The rule, in our view, therefore, is clearly discriminatory. Thirdly, it is unreasonable and
arbitrary as the choice of the age of 45 years is made keeping only a certain group in mind ignoring
the vast majority of other persons who were in the service of government or quasi-government or
similar institutions at any point of time. Thus, in our view the impugned rule violates the principle
of equality enshrined in Article 14 of the Constitution.
[38] (1981) 4 SCC 675 [39] (1974) 4 SCC 3 [40] (1978) 1 SCC 248 [41] An expression used widely and
rather indiscriminately - an expression of inherently imprecise import. The extensive use of this
expression, in India reminds one of what Frankfurter,J. said in Hattie Mae Tiller v. Atlantic Coast
Line Railroad Co., 87 L.Ed. 610. "The phrase begins life as a literary expression; its felicity leads to
its lazy repetition and repetition soon establishes it as a legal formula, undiscriminatingly used to
express different and sometimes contradictory ideas", said the learned Judge.

[42] In Municipal Committee Amritsar v. State of Punjab, (1969) 1 SCC 475, at para 7, this Court
clearly ruled out the application of the doctrine of due process employed by the Court adjudicating
the constitutionality of the legislation.
But the rule enunciated by the American Courts has no application under our Constitutional set up.
The rule is regarded as an essential of the "due process clauses" incorporated in the American
Constitution by the 5th & the 14th Amendments. The Courts in India have no authority to declare a
statute invalid on the ground that it violates the "due process of law". Under our Constitution, the
test of due process of law cannot be applied to statutes enacted by the Parliament or the State
legislatures. This Court has definitely ruled that the doctrine of "due process of law" has no place in
our Constitutional system: A. K. Gopalan v. State of Madras, 1950 SCR.
88. Kania, C.J., observed (at p. 120):-
"There is considerable authority for the statement that the Courts are not at liberty to declare an Act
void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not
expressed in words. . . . . it is only in express constitutional provisions limiting legislative power and
controlling the temporary will of a majority by a permanent and paramount law settled by the
deliberate wisdom of the nation that one can join a safe and solid ground for the authority of Courts
of Justice to declare void any legislative enactment."
[43] (v) has not passed matriculation examination or its equivalent examination from any
recognized institution/board:
Provided that in case of a woman candidate or a candidate belonging to Scheduled Caste, the
minimum qualification shall be middle pass:
Provided further that in case of a woman candidate belonging to Scheduled Caste contesting election
for the post of Panch, the minimum qualification shall be 5th pass; [44] Section 173 (2). Every
person who has attained the age of twenty- one years and whose name is in the list of voters shall,
unless disqualified under this Act or under any other law for the time being in force, be qualified to
be elected from any electoral division.
[45] The expression rural population is used by the respondents in their counter affidavit to mean
people living in areas falling within the territorial limits of some PANCHAYAT.
[46] Section 21. Functions and duties of Gram Panchayat.Subject to such rules as may be made, it
shall be the duty of the Gram Panchayat within the limits of the funds at its disposal, to make
arrangements for carrying out the requirements of sabha area in respect of the following matters
including all subsidiary works and buildings connected therewith:--
XI. Non-conventional Energy Sources-
(1) Promotion and Development of non-conventional energy schemes.

(2) Maintenance of community non-conventional energy devices, including bio-gas plants and
windmills.
(3) Propagation of improved chulhas and other efficient devices.
XXI. Social Welfare including Welfare of the Handicapped and Mentally Retarded-
(1) Participation in the implementation of the social welfare programmes including welfare of the
handicapped, mentally retarded and destitute.
(2) Monitoring of the old age and widows pension scheme. [47] We are of the opinion that it is not
really necessary to examine the various observations made by this Court regarding the importance
of education for two reasons, firstly, nobody is disputing the general proposition that education
plays a great role in the evolution of the personality of a human being. Secondly, none of the cases
referred to by the AG dealt with the relevance of education in the context of the right to contest any
election contemplated by the Constitution. [See: Bhartiya Seva Samaj Trust v. Yogeshbhai Ambalal
Patel, (2012) 9 SCC 310; Avinash Mehrotra v. Union of India, (2009) 6 SCC 398; P.A. Inamdar v.
State of Maharashtra, (2005) 6 SCC 537; T.R. Kothandaramam v. T.N. Water Supply & Drainage
Board; (1994) 6 SCC 282; Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645;
Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi, (1991) 2
SCC 716; and State of J&K v. Triloki Nath Khosa, (1974) 1 SCC 19].
[48] Articles 102(1)(c) and 191(1)(c).
[49] Article 102. Disqualifications for membership.(1) A person shall be disqualified for being
chosen as, and for being, a member of either House of Parliament **** **** **** **** **** ****
(c) if he is an undischarged insolvent;
[50] Article 191. Disqualifications for membership.(1) A person shall be disqualified for being chosen
as, and for being, a member of the Legislative Assembly or Legislative Council of a State **** ****
**** **** **** ****
(c) if he is an undischarged insolvent.
[51] Section 6. Acts of insolvency.(1) A debtor commits an act of insolvency in each of the following
cases, namely:-
(a) if, in India or elsewhere, he makes a transfer of all or substantially all his property to a third
person for the benefit of his creditors generally;
(b) if, in India or elsewhere, he makes a transfer of his property or of any part thereof with intent to
defeat or delay his creditors;

(c) if in India or elsewhere, he makes any transfer of his property, or of any part thereof, which
would, under this or any other enactment for the time being in force, be void as fraudulent
preference if he were adjudged an insolvent;
(d) if with intent to defeat or delay his creditors,-
he departs or remains out of the territories to which this Act extends;
he departs from his dwelling-house or usual place of business or otherwise absents himself;
he secludes himself so as to deprive his creditors of the means of communicating with him;
(e) if any of his property has been sold in execution of the decree of any Court for the payment of
money;
(f) if he petitions to be adjudged an insolvent under the provisions of this Act;
(g) if he gives notice to any of his creditors that he has suspended, or that he is about to suspend,
payment of his debts; or
(h) if he is imprisoned in execution of the decree of any Court for the payment of money.
(2) Without prejudice to the provisions of sub-section (1), a debtor commits an act of insolvency if a
creditor, who has obtained a decree or order against him for the payment of money (being a decree
or order which has become final and the execution whereof has not been stayed), has served on him
a notice (hereafter in this section referred to as the insolvency notice) as provided in sub-section (3)
and the debtor does not comply with that notice within the period specified therein:
Provided that where a debtor makes an application under sub-section (5) for setting aside an
insolvency notice-
in a case where such application is allowed by the District Court, he shall not be deemed to have
committed an act of insolvency under this sub- section; and in a case where such application is
rejected by the District Court, he shall be deemed to have committed an act of insolvency under this
sub- section on the date of rejection of the application or the expiry of the period specified in the
insolvency notice for its compliance, whichever is later:
[52] Section 9. Acts of insolvency.- (1) A debtor commits an act of insolvency in each of the following
cases, namely;-
if, in the States or elsewhere, he makes a transfer of all or substantially all his property to a third
person for the benefit of his creditors generally;

if, in the States or elsewhere, he makes a transfer of his property or of any part thereof with intent to
defeat or delay his creditors;
if, in the States or elsewhere, he makes any transfer of his property or of any part thereof, which
would, under this or any other enactment for the time being in force, be void as fraudulent
preference if he were adjudged an insolvent;
if, with intent to defeat or delay his creditors,--
he departs or remains out of the States, he departs from his dwelling-house or usual place of
business or otherwise absents himself, he secludes himself so as to deprive his creditors of the
means of communicating with him;
if any of his property has been sold or attached for a period of not less than twenty-one days in
execution of the decree of any Court for the payment of money;
if he petitions to be adjudged an insolvent;
if he gives notice to any of his creditors that he has suspended, or that he is about to suspend,
payment of his debts;
if he is imprisoned in execution of the decree of any Court for the payment of money.
(2) Without prejudice to the provisions of sub- section (1), a debtor commits an act of insolvency if a
creditor, who has obtained a decree or order against him for the payment of money (being a decree
or order which has become final and the execution whereof has not been stayed), has served on him
a notice (hereafter in this section referred to as the insolvency notice) as provided in sub- section (3)
and the debtor does not comply with that notice within the period specified therein:
Provided that where a debtor makes an application under sub- section (5) for setting aside an
insolvency notice--
in a case where such application is allowed by the Court, he shall not be deemed to have committed
an act of insolvency under this sub- section; and in a case where such application is rejected by the
Court, he shall be deemed to have committed an act of insolvency under this sub- section on the date
of rejection of the application or the expiry of the period specified in the insolvency notice for its
compliance, whichever is later:
Provided further that no insolvency notice shall be served on a debtor residing, whether
permanently or temporarily, outside India, unless the creditor obtains the leave of the Court
therefor.

[53] 9. Bankruptcy and Insolvency.
[54] Paras 4 & 5 of the Addl. Affidavit of Respondents 1 to 3 That the main objective of the
programme is to ensure access of toilets to all rural families so as to achieve Open Defecation Free
(ODF) status. For this purpose, both the Center and State of Haryana have also been providing
financial incentive to the people below poverty line (BPL) in the rural areas of State of Haryana.
Besides few other Above Poverty Line (APL) household categories namely, all SCs, small farmers,
marginal farmers, landless labourers with homestead, physically handicapped and women headed
households were also identified for the purpose of granting financial incentive since 01.04.2012
under the said scheme.
That the financial incentive is also being provided to Below Poverty Line (BPL) households for the
construction and usage of individual household latrines (IHHL) in recognition of their
achievements. In Haryana total rural BPL households are 8,56,359 and against it, 7,21,038
households have been provided incentive for the construction of IHHL. Similarly, Above Poverty
Line (APL) households restricted to SCs/STs, small and marginal farmers, landless labourers with
homestead, physically handicapped and women headed households have also been provided
financial assistance w.e.f. 04.04.2012. Presently, w.e.f. 02.10.2014 the financial incentive is being
given to above category of households @ Rs.12000 (Rs.9000 from Centre and Rs.3000 from State
Government). Out of 30,67,907 rural households 25,84,810 i.e. 84% have IHHLs. Out of which
23,60,318 IHHLs have been build under Rural Sanitation Programmes since 1999, of which
8,82,012 have been given incentive money at various rates prevailing at different times. [55] In
England this habit existed till 15th Century at least, poor sanitation made London a death-trap.
Without any kind of sewage system, the streets stank to high heaven, whereas human excrement
was systematically collected in Chinese cities and used as fertilizer in outlying paddy fields. In the
days when Dick Whittington was lord mayor four times between 1397 and his death in 1423 the
streets of London were paved with something altogether less appealing than gold., [Niall Ferguson,
Civilization : The West and the Rest , (First Edition, Penguin Press, 2011)] page 23
-----------------------

Public Interest Foundation vs Union Of India on 25 September, 2018

Author: D Misra
1
REPORTABLE
Public Interest Foundation & Ors. Petitioner(s
Versus
Union of India & Anr. Respondent(s
WITH
CRIMINAL APPEAL NOS. 1714-1715 OF 2007
WRIT PETITION (CRIMINAL) NO. 208 OF 2011
AND
JUDGMENT
Dipak Misra, CJI In Yogendra Kumar Jaiswal and others v. State of Bihar and others1, the Court
opined:-
Signature Not Verified Digitally signed by CHETAN KUMAR Date: 2018.09.25 11:31:18 IST Reason:
1 (2016) 3 SCC 183 "Corruption, a 'noun' when assumes all the characteristics of a
Verb', becomes self-infective and also develops resistance to antibiotics. In such a
situation the disguised protagonist never puts a Hamletian question-"to be or not to
be"-but marches ahead with perverted proclivity-sans concern, sans care for
collective interest, and irrefragably without conscience. In a way, corruption becomes
a national economic terror."
2. The constitutional functionaries, who have taken the pledge to uphold the constitutional
principles, are charged with the responsibility to ensure that the existing political framework does
not get tainted with the evil of corruption. However, despite this heavy mandate prescribed by our
Constitution, our Indian democracy, which is the world's largest democracy, has seen a steady

increase in the level of criminalization that has been creeping into the Indian polity. This
unsettlingly increasing trend of criminalization of politics, to which our country has been a witness,
tends to disrupt the constitutional ethos and strikes at the very root of our democratic form of
government by making our citizenry suffer at the hands of those who are nothing but a liability to
our country.
3. The issue that emerges for consideration before this Bench is whether disqualification for
membership can be laid down by the Court beyond Article 102(a) to (d) and the law made by the
Parliament under Article 102(e). A three-Judge Bench hearing the matter was of the view that this
question is required to be addressed by the Constitution Bench under Article 145(3) of the
Constitution. Be it stated, a submission was advanced before the three-Judge Bench that the
controversy was covered by the decision in Manoj Narula v. Union of India2. The said submission
was not accepted because of the view expressed by Madan B. Lokur, J. in his separate judgment.
4. In the course of hearing, the contour of the question was expanded with enormous concern to
curb criminalization of politics in a democratic body polity. The learned counsel for the petitioners
submitted that having regard to the rise of persons with criminal antecedents, the fundamental
concept of decriminalization of politics should be viewed from a wider spectrum and this Court,
taking into consideration the facet of interpretation, should assume the role of judicial
statesmanship. Mr. K.K. Venugopal, learned Attorney General (2014) 9 SCC 1 for India and other
learned counsel, per contra, would submit that there can be no denial that this Court is the final
arbiter of the Constitution and the Constitution empowers this wing of the State to lay down the
norms of interpretation and show judicial statesmanship but the said judicial statesmanship should
not ignore the fundamental law relating to separation of powers, primary responsibility conferred
on the authorities under the respective powers and the fact that no authority should do anything for
which the power does not flow from the Constitution. In essence, the submission of Mr. Venugopal
is that the Court should not cross the Lakshman Rekha. Resting on the fulcrum of constitutional
foundation and on the fundamental principle that if the Court comes to hold that it cannot legislate
but only recommend for bringing in a legislation, as envisaged under Article 102(1)(e) of the
Constitution, it would not be appropriate to take recourse to any other method for the simon pure
reason that what cannot be done directly, should not be done indirectly. We shall advert to the said
submission at a later stage.
5. Article 102 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;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a

foreign State, or is under any acknowledgment 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.
6. In this context, we may also refer to Article 191 of the Constitution that deals with
disqualifications for membership. It is as follows: -
191. Disqualifications for membership(1) A person shall be disqualified for being

chosen as, and for being, a member of the Legislative Assembly or Legislative Council
of a State
(a) if he holds any office of profit under the Government of India or the Government
of any State specified in the First Schedule, other than an office declared by the
Legislature of the State by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(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
specified in the First Schedule 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 the Legislative Assembly or
Legislative Council of a State if he is so disqualified under the Tenth Schedule.

7. On a perusal of both the Articles, it is clear as crystal that as regards disqualification for being
chosen as a member of either House of Parliament and similarly disqualification for being chosen or
for being a member of the Legislative Assembly or Legislative Council of a State, the law has to be
made by the Parliament. In Lily Thomas v. Union of India and others3, it has been held:-
26. Articles 102(1)(e) and 191(1)(e) of the Constitution, on the other hand, have
conferred specific powers on Parliament to make law providing disqualifications for
membership of either House of Parliament or Legislative Assembly or Legislative
Council of the State other than those specified in sub-
clauses (a), (b), (c) and (d) of clause (1) of Articles 102 and 191 of the Constitution. We may note that
no power is vested in the State Legislature to make law laying down disqualifications of membership
of the Legislative Assembly or Legislative Council of the State and power is vested in Parliament to
make law laying down disqualifications also in respect of Members of the Legislative Assembly or
Legislative Council of the State. For these reasons, we are of the considered opinion that the
legislative power of Parliament to enact any law relating to disqualification for membership of either
House of Parliament or Legislative Assembly or Legislative Council of the State can be located only
in Articles 102(1)(e) and 191(1)(e) of the Constitution and not in Article 246(1) read with Schedule
VII List I Entry 97 and Article 248 of the Constitution. We do not, therefore, accept the contention
of Mr. Luthra that the power to enact sub-section (4) of Section 8 of the Act is vested in Parliament
under Article 246(1) read with Schedule VII List I Entry 97 and Article 248 of the (2013) 7 SCC 653
Constitution, if not in Articles 102(1)(e) and 191(1)(e) of the Constitution. We have no hesitation in
saying that the view expressed above in Lily Thomas (supra) is correct, for the Parliament has the
exclusive legislative power to lay down disqualification for membership.
8. In Manoj Narula (supra), the question centered around the interpretation of Article 75 of the
Constitution. The core issue pertained to the legality of persons with criminal background and/or
charged with offences involving moral turpitude to be appointed as ministers in the Central and the
State Governments. The majority referred to the constitutional provisions, namely, Articles 74, 75,
163 and 164, adverted to the doctrine of implied limitation and, in that context, opined thus:-
64. 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.

9. There has been advertence to the principle of constitutional silence or abeyance and, in that
context, it has been ruled that it is not possible to accept 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. Thereafter, the majority addressed the concepts
of constitutional morality, constitutional governance and constitutional trust and analysed the term
advice employed under Article 75(1) and stated that formation of an opinion by the Prime Minister
in the context 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 and the said advice, to put it differently, is a
constitutional advice. Reference was made to the debate in the Constituent Assembly which had left
it to the wisdom of the Prime Minister because of the intrinsic faith in him. Discussing further, it has
been stated: -
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 criminalisation 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
executive governance. And again: -
That the Prime Minister would be giving apposite advice to the President is a
legitimate constitutional expectation, for it is a paramount constitutional concern. In
a controlled Constitution like ours, the Prime Minister is expected 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.
10. Lokur, J. opined: -
132. While it may be necessary, due to the criminalisation 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. Proceeding further,
the learned Judge stated: -
137. 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. He had also, in his
opinion, reproduced the words of Dr. B.R.
Ambedkar in the Constituent Assembly on 25.11.1949 and the sentiments echoed by Dr. Rajendra
Prasad on 26.11.1949. Dr. Ambedkar had said:-
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 Executive 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 parties will behave? Will they uphold constitutional
methods of achieving 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 judgment upon the Constitution without reference to the part which
the people and their parties are likely to play.
11. The learned Judge reproduced the words of Dr. Rajendra Prasad, which ring till today, are:-
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 provisions 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.
12. Kurian Joseph, J., concurring with the opinion, has stated:-

152. 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 exercise
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.
13. The thrust of the matter is whether any disqualification can be read as regards disqualification
for membership into the constitutional provisions. Article 102(1) specifies certain grounds and
further provides that any disqualification can be added by or under any law made by the Parliament.
Article 191 has the same character.
14. Chapter III of the Representation of the People Act, 1951 (for brevity, the Act) deals with
disqualification for membership of the Parliament and the State Legislatures. Section 7 deals with
Definitions. It is as follows:-
7. Definitions.In this Chapter,
(a) appropriate Government means in relation to any disqualification for being

chosen as or for being a member of either House of Parliament, the Central
Government, and in relation to any disqualification for being chosen as or for being a
member of the Legislative Assembly or Legislative Council of a State, the State
Government;
(b) disqualified means disqualified for being chosen as, and for being, a member of
either House of Parliament or of the Legislative Assembly or Legislative Council of a
State. under the provisions of this Chapter, and on no other ground. [Emphasis is
ours]
15. The word disqualified clearly states that a person be disqualified from being a member under the
provisions of the said Chapter and/or on no other ground. The words no other ground are of
immense significance. Apart from the grounds mentioned under Article 102(1)(a) to 102(1)(d) and
Article 191(1)(a) to 191(1)(d), the other grounds are provided by the Parliament and the Parliament
has provided under Sections 8, 8A, 9, 9A, 10 and 10A which read thus:
8. Disqualification on conviction for certain offences.(1) A person convicted of an

offence punishable under

(a) section 153A (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 17IE (offence of bribery) or section 17IF (offence
of undue influence or personation at an election) or sub-section (1) or sub-section (2)
of section 376 or section 376A or section 376B or section 376C or section 376D
(offences relating to rape) or section 498A (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 connect ion with the election) or
section 135 (offence of removal of ballot papers from polling stations) or section 135A (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 or 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 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) and 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 brought 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).
8A. Disqualification on ground of corrupt practices.(1) The case of every person found guilty of a
corrupt practice by an order under section 99 shall be submitted, as soon as may be within a period
of three months from the date such order takes effect, by such authority as the Central Government
may specify in this behalf, to the President for determination of the question as to whether such
person shall be disqualified and if so, for what period:
Provided that the period for which any person may be disqualified under this sub-section shall in no
case exceed six years from the date on which the order made in relation to him under section 99
takes effect.
(2) Any person who stands disqualified under section 8A of this Act as it stood immediately before
the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), may, if the period of
such disqualification has not expired, submit a petition to the President for the removal of such
disqualification for the unexpired portion of the said period.
(3) Before giving his decision on any question mentioned in sub-section (1) or on any petition
submitted under sub-section (2), the President shall obtain the opinion of the Election Commission
on such question or petition and shall act according to such opinion.
9. Disqualification for dismissal for corruption or disloyalty.(1) A person who having held an office
under the Government of India or under the Government of any State has been dismissed for
corruption or for disloyalty to the State shall be disqualified for a period of five years from the date
of such dismissal.
(2) For the purposes of sub-section (1), a certificate issued by the Election Commission to the effect
that a person having held office under the Government of India or under the Government of a State,
has or has not been dismissed for corruption or for disloyalty to the State shall be conclusive proof
of that fact:
Provided that no certificate to the effect that a person has been dismissed for corruption or for
disloyalty to the State shall be issued unless an opportunity of being heard has been given to the said
person.

9A. Disqualification for Government contracts, etc.A person shall be disqualified if, and for so long
as, there subsists a contract entered into by him in the course of his trade or business with the
appropriate Government for the supply of goods to, or for the execution of any works undertaken by,
that Government.
Explanation.For the purposes of this section, where a contract has been fully performed by the
person by whom it has been entered into with the appropriate Government, the contract shall be
deemed not to subsist by reason only of the fact that the Government has not performed its part of
the contract either wholly or in part.
10. Disqualification for office under Government company.A person shall be disqualified if, and for
so long as, he is a managing agent, manager or secretary of any company or corporation (other than
a co-operative society) in the capital of which the appropriate Government has not less than
twenty-five per cent share.
10A. Disqualification for failure to lodge account of election expenses.If the Election Commission is
satisfied that a person
(a) has failed to lodge an account of election expenses, within the time and in the manner required
by or under this Act; and
(b) has no good reason or justification for the failure, the Election Commission shall, by order
published in the Official Gazette, declare him to be disqualified and any such person shall be
disqualified for a period of three years from the date of the order.
16. From the aforesaid, it is decipherable that Section 8 deals with disqualification on conviction for
certain offences. Section 8A provides for disqualification on ground of corrupt practices. Section 9
provides for the disqualification for dismissal for corruption or disloyalty. Section 9A deals with the
situation where there is subsisting contract between the person and the appropriate Government.
Section 10 lays down disqualification for office under Government company and Section 10A deals
with disqualification for failure to lodge account of election expenses. Apart from these
disqualifications, there are no other disqualifications and, as is noticeable, there can be no other
ground. Thus, disqualifications are provided on certain and specific grounds by the legislature. In
such a state, the legislature is absolutely specific.
17. The submission of the learned counsel appearing for the petitioners is that the law breakers
should not become law makers and there cannot be a paradise for people with criminal antecedents
in the Parliament or the State Legislatures. Reference has been made to the recommendations of the
Law Commission which has seriously commented on the prevalent political atmosphere being
dominated by people with criminal records.
18. It has also been highlighted by the petitioners that criminalization in politics is on the rise and
the same is a documented fact and recorded by various committee reports. The petitioners also
highlight that the doctrine of fiduciary relationship has been extended to several constitutional posts

and that if members of Public Service Commission, Chief Vigilance Commissioner and the Chief
Secretary can undergo the test of integrity check and if "framing of charge" has been recognized as a
disqualification for such posts, then there is no reason to not extend the said test of "framing of
charge" to the posts of Members of Parliament and State Legislatures as well. To further accentuate
this stand, the petitioners point out that such persons hold the posts in constitutional trust and can
be made subject to rigours and fetters as the right to contest elections is not a fundamental right but
a statutory right or a right which must confirm to the constitutional ethos and principles.
19. The petitioners are attuned to the principle of presumption of innocence under our criminal law.
But they are of the opinion that the said principle is confined to criminal law and that any
proceeding prior to conviction, such as framing of charge for instance, can become the basis to entail
civil liability of penalty. The petitioners, therefore, take the stand that debarring a person facing
charges of serious nature from contesting an election does not lead to creation of an offence and it is
merely a restriction which is distinctively civil in nature.
20. The intervenor organization has also made submissions on a similar note as that of the
petitioners to the effect that persons charged for an offence punishable with imprisonment for five
years or more are liable to be declared as disqualified for being elected or for being a Member of the
Parliament as a person chargesheeted in a crime involving moral turpitude is undesirable for a job
under the government and it is rather incongruous that such a person can become a law maker who
then control civil servants and other government machinery and, thus, treating legislators on a
different footing amounts to a violation of Article 14 of the Constitution.
21. Mr. Venugopal, learned Attorney General for India, refuting the aforesaid submission, would
urge that the Parliament may make law on the basis of the recommendations of the Law
Commission but this Court, as a settled principle of law, should not issue a mandamus to the
Parliament to pass a legislation and can only recommend. That apart, submits Mr. Venugopal, that
when there are specific constitutional provisions and the statutory law, the Court should leave it to
the Parliament.
22. It is well settled in law that the Court cannot legislate. Emphasis is laid on the issuance of
guidelines and directions for rigorous implementation. With immense anxiety, it is canvassed that
when a perilous condition emerges, the treatment has to be aggressive. The petitioners have
suggested another path. But, as far as adding a disqualification is concerned, the constitutional
provision states the disqualification, confers the power on the legislature, which has, in turn,
legislated in the imperative.
23. Thus, the prescription as regards disqualification is complete is in view of the language
employed in Section 7(b) read with Sections 8 to 10A of the Act. It is clear as noon day and there is
no ambiguity. The legislature has very clearly enumerated the grounds for disqualification and the
language of the said provision leaves no room for any new ground to be added or introduced.
Criminalization of politics

24. Though we have analyzed the aforesaid aspect, yet we cannot close the issue, for the learned
counsel for the petitioners and some of the intervenors have argued with immense anguish that
there is a need for rectification of the system failing which there will be progressive malady in
constitutional governance and gradually, the governance would be controlled by criminals. The
submission has been advanced with sanguine sincerity and genuine agony. There have been
suggestions as well as arguments with the purpose of saving the sanctity of democracy and to
advance its enduring continuance. To appreciate the same, we will focus on the criminalization of
politics.
25. In the beginning of the era of constitutional democracy, serious concerns were expressed with
regard to the people who are going to be elected. Dr Rajendra Prasad on the Floor of the Constituent
Assembly, before putting the motion for passing of the Constitution, had observed:-
"...It requires men of strong character, men of vision, men who will not sacrifice the
interests of the country at large for the sake of smaller groups and areas...We can only
hope that the country will throw up such men in abundance."4
26. An essential component of a constitutional democracy is its ability to give and secure for its
citizenry a representative form of government, elected freely and fairly, and comprising of a polity
whose members are men and women of high integrity and morality. This could be said to be the
hallmark of any free and fair democracy.
27. The Goswami Committee on Electoral Reforms (1990) had addressed the need to curb the
growing criminal forces in politics in 4 th Dr Rajendra Prasad, President, Constituent Assembly of
India, 26 November, 1949 order to protect the democratic foundation of our country. The
Committee stated that:-
"The role of money and muscle powers at elections deflecting seriously the well
accepted democratic values and ethos and corrupting the process; rapid
criminalisation of politics greatly encouraging evils of booth capturing, rigging,
violence etc.; misuse of official machinery, i.e. official media and ministerial;
increasing menace of participation of non-serious candidates; form the core of our
electoral problems. Urgent corrective measures are the need of the hour lest the
system itself should collapse."
28. Criminalization of politics was never an unknown phenomenon in the Indian political system,
but its presence was seemingly felt in its strongest form during the 1993 Mumbai bomb blasts which
was the result of a collaboration of a diffused network of criminal gangs, police and customs officials
and their political patrons. The tremors of the said attacks shook the entire Nation and as a result of
the outcry, a Commission was constituted to study the problem of criminalization of politics and the
nexus among criminals, politicians and bureaucrats in India. The report of the Committee, Vohra
(Committee) Report, submitted by Union Home Secretary, N.N. Vohra, in October 1993, referred to
several observations made by official agencies, including the CBI, IB, R&AW, who unanimously
expressed their opinion on the criminal network which was virtually running a parallel government.

The Committee also took note of the criminal gangs who carried out their activities under the aegis
of various political parties and government functionaries. The Committee further expressed great
concern regarding the fact that over the past few years, several criminals had been elected to local
bodies, State Assemblies and the Parliament. The Report observed:-
"In the bigger cities, the main source of income relates to real estate - forcibly
occupying lands/buildings, procuring such properties at cheap rates by forcing out
the existing occupants/tenants etc. Over time, the money power thus acquired is used
for building up contacts with bureaucrats and politicians and expansion of activities
with impunity. The money power is used to develop a network of muscle-power
which is also used by the politicians during elections."
And again:-
"The nexus between the criminal gangs, police, bureaucracy and politicians has come
out clearly in various parts of the country. The existing criminal justice system, which
was essentially designed to deal with the individual offences /crimes, is unable to
deal with the activities of the Mafia; the provisions of law in regard economic offences
are weak"
29. The Election Commission has also remained alive to the issue of criminalization of politics since
1998. While proposing reforms to tackle the menace of criminalization of politics, the Former Chief
Election Commissioner, Mr. T.S. Krishna Murthy, highlighted the said issue by writing thus:-
"There have been several instances of persons charged with serious and heinous
crimes like murder, rape, dacoity, etc. contesting election, pending their trial, and
even getting elected in a large number of cases. This leads to a very undesirable and
embarrassing situation of lawbreakers becoming lawmakers and moving around
under police protection. The Commission had proposed that the law should be
amended to provide that any person for five years or more should be disqualified
from contesting election even when trial is pending, provided charges have been
framed against him by the competent court. Such a step would go a long way in
cleansing the political establishment from the influence of criminal elements and
protecting the sanctity of the Legislative Houses"5
30. In the case of Dinesh Trivedi, M.P. and others v. Union of India and others6 the court lamented
the faults and imperfections which have impeded the country in reaching the expectations which 5
https://eci.nicJn/eci_main/PROPOSED_ELECTORAL_REFORMS.pdf (1997) 4 SCC 306 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 and deeply disturbing trends that are prevalent in our
present society. The Court also 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.
31. In Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India and others7, 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 (1997) 6 SCC 1 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.
32. In K. Prabhakaran v. P. Jayarajan8, in the context of enacting disqualification under Section

8(3) of the Act, the Court observed that persons with criminal background pollute the process of
election as they have no inhibition in indulging in criminality to gain success in an election. Further,
the Court observed:-
"Those who break the law should not make the law. Generally speaking the purpose
sought to be achieved by enacting disqualification on conviction for certain offences
is to prevent persons with criminal background from entering into politics and the
house - a powerful wing of governance. Persons with criminal background do pollute
the process of election as they do not have many a holds barred (sic) and have no
reservation from indulging into criminality to win success at an election."
AIR 2005 SC 688
33. The Court in Manoj Narula (supra), while observing that criminalization of politics is an
anathema to the sacredness of democracy, stated thus:-
"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.
And again: -
"...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."
34. 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) acknowledged the existence of criminal elements in the Indian polity
which hit the roots of democracy. The Committee observed thus:-
"...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."
35. The Chairman of the Law Commission, in the covering letter of the 244th Law Commission
Report titled "Electoral Disqualifications", wrote to the then Minister of Law and Justice stating
thus:-
1. "While the Law Commission was working towards suggesting its recommendations
to the Government on Electoral Reforms, an Order was passed by the Hon'ble
Supreme Court dated 16.12.2013 in Public Interest Foundation and Ors. Vs. Union of
India and Anr., vide D.O. No. 4604/2011/SC/PIL(W] dated 21st December, 2013.
2. In the aforesaid Order, the Hon'ble Supreme Court noted that Law Commission
may take some time for submitting a comprehensive report on all aspects of electoral
reforms. However, the Hon'ble Court further mentioned that "the issues with regard
to decriminalization of politics and disqualification for filing false affidavits deserve
priority and immediate consideration" and accordingly requested the Law
Commission to "expedite consideration for giving a report by the end of February,
2014, on the two issues, namely:
1. Whether disqualification should be triggered upon conviction as it exists today or

upon framing of charges by the court or upon the presentation of the report by the
Investigating Officer under Section 173 of the Code of Criminal procedure? [Issue No.
3.1 (ii) of the Consultation Paper], and
2. Whether filing of false affidavits under Section 125A of the Representation of the
People Act, 1951 should be a ground for disqualification? And if yes, what mode of
mechanism needs to be provided for adjudication on the veracity of the affidavit?

[Issue No.3.5 of the Consultation Paper]"
36. Thereafter, the 244th Law Commission, while accentuating the need for electoral reforms,
observed that a representative government, sourcing its legitimacy from the People, who were the
ultimate sovereign, was the kernel of the democratic system envisaged by the Constitution. Over the
time, this has been held to be a part of the basic structure of the Constitution, immune to
amendment, with the Supreme Court of India declaring that it is beyond the pale of reasonable
controversy that if there be any unamendable features of the Constitution on the score that they
form a part of the basic structure of the Constitution, it is that India is a Sovereign Democratic
Republic.
37. The Commission laid stress on the model of representative government based on popular
sovereignty which gives rise to its commitment to hold regular free and fair elections. The
importance of free and fair elections stems from two factors instrumentally, its central role in
selecting persons who will govern the people, and intrinsically, as being a legitimate expression of
popular will. Emphasizing on the importance of free and fair elections in a democratic polity,
reference was made to the decision in Mohinder Singh Gill v. Chief Election Commissioner9 wherein
the Court had ruled:-
AIR 1978 SC 851 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 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.
38. The Commission addressed the issue pertaining to the extent of criminalization in politics and
took note of the observations made by Mr. C. Rajagopalachari who, as back as in 1922, had
anticipated the present state of affairs twenty-five years before Independence, when he wrote in his
prison diary:-
Elections and their corruption, injustice and tyranny of wealth, and inefficiency of
administration, will make a hell of life as soon as freedom is given to us...
39. The Commission also observed that the nature of nexus changed in the 1970s and instead of
politicians having suspected links to criminal networks, as was the case earlier, it was persons with
extensive criminal backgrounds who began entering politics and this fact was confirmed in the
Vohra Committee Report in 1993 and again in 2002 in the report of the National Commission to
Review the Working of the Constitution (NCRWC). The Commission referred to the judgment of this
Court in Union of India v. Association for Democratic Reforms10 which had made an analysis of the

criminal records of candidates possible by requiring such records to be disclosed by way of affidavit
and this, as per the Commission, had given a chance to the public to quantitatively assess the
validity of such observations made in the previous report.
40. As per the extent of criminalization that has pervaded Indian Politics, the Commission observed
that in the ten years since 2004, 18% of the candidates contesting either National or State elections
have criminal cases pending against them (11,063 out of 62,847). In 5,253 or almost half of these
cases (8.4% of the total candidates analysed), the charges are of serious criminal offences that
include murder, attempt to murder, rape, crimes against women, cases under the Prevention of
Corruption Act, 1988 or under the Maharashtra Control of Organised Crime Act, 1999 which, on
conviction, would (2002) 5 SCC 294 result in five years or more of jail, etc. 152 candidates had 10 or
more serious cases pending, 14 candidates had 40 or more such cases and 5 candidates had 50 or
more cases against them. Further, the Commission observed that the 5,253 candidates with serious
cases together had 13,984 serious charges against them and of these charges, 31% were cases of
murder and other murder related offences, 4% were cases of rape and offences against women, 7%
related to kidnapping and abduction, 7% related to robbery and dacoity, 14% related to forgery and
counterfeiting including of government seals and 5% related to breaking the law during elections.
The Commission was of the further view that criminal backgrounds are not limited to contesting
candidates, but are found among winners as well, for, of the 5,253 candidates with serious criminal
charges against them, 1,187 went on to winning the elections they contested, i.e., 13.5% of the 8,882
winners analysed from 2004 to 2013 and overall, including both serious and non-serious charges,
2,497 (28.4% of the winners) had 9,993 pending criminal cases against them.
41. Elaborating further, the Commission took note of the fact that 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 and further, the prevalence of MPs with criminal cases pending has increased over
time as statistics reveal that in 2004, 24% of Lok Sabha MPs had criminal cases pending which
increased to 30% in the 2009 elections and this 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. Not only
this, the Commission also observed that some States have a much higher percentage of MLAs with
criminal records: in Uttar Pradesh, 47% of MLAs have criminal cases pending and a number of these
MPs and MLAs have been accused of multiple counts of criminal charges, for example, in a
constituency of Uttar Pradesh, the MLA has 36 criminal cases pending including 14 cases relating to
murder. As per the Commission, it is clear from this data that about one-third of the elected
candidates at the Parliament and State Assembly levels in India have some form of criminal taint
and also that the 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.
What the Commission found to be more disturbing was the fact that the percentage of winners with
criminal cases pending is higher than the percentage of candidates without such backgrounds, as the
data reveals that while only 12% of candidates with a clean record win on an average, 23% of
candidates with some kind of criminal record win which implies that candidates charged with a
crime actually fare better in elections than clean candidates. This, as per the Commission, has
resulted in the tendency for candidates with criminal cases to be given tickets a second time and not
only do political parties select candidates with criminal backgrounds, but there is also evidence to

suggest that untainted representatives later become involved in criminal activities and, thus, the
incidence of criminalisation of politics is pervasive thereby making its remediation an urgent need.
42. The pervasive contact, in many a way, disturbed the political parties and this compelled the Law
Commission to describe the role of political parties. It said:-
Political parties are a central institution of our democracy; the life blood of the entire
constitutional scheme. Political parties act as a conduit through which interests and
issues of the people get represented in Parliament. Since political parties play a
central role in the interface between private citizens and public life, they have also
been chiefly responsible for the growing criminalisation of politics.
43. Thereafter, reference was made to the observations of the 170th report which was also quoted in
Subhash Chandra Agarwal v. Indian National Congress and others11 by the Central Information
Commission (CIC). The said observations are very pertinent to describe the position of political
parties in our 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.
x x x Though the RPA disqualifies a sitting legislator or a candidate on certain

grounds, there is nothing regulating the appointments to offices within the
organisation of the party. Political parties play a central (2013) CIC 8047 role in
Indian democracy. Therefore, a politician may be disqualified from being a legislator,
but may continue to hold high positions within his party, thus also continuing to play
an important public role which he has been deemed unfit for by the law. Convicted
politicians may continue to influence law -making by controlling the party and
fielding proxy candidates in legislature. In a democracy essentially based on parties
being controlled by a high-command, the process of breaking crime-politics nexus
extends much beyond purity of legislators and encompasses purity of political parties
as well.
.It is suggested that political parties should refrain from appointing or allowing a
person to continue holding any office within the party organisation if the person has
been deemed to lack the qualities necessary to be a public official. Therefore, the legal
disqualifications that prevent a person from holding office outside a party should
operate within the party as well.
44. Commenting on the existing legal framework, it opined that legally, the prevention of entry of
criminals into politics is accomplished by prescribing certain disqualifications that will prevent a

person from contesting elections or occupying a seat in the Parliament or an Assembly and
presently, the qualifications of Members of Parliament are listed in Article 84 of the Constitution,
while the disqualifications can be found under Article 102. The corresponding provisions for
Members of the State Legislative Assemblies are found in Articles 173 and 191.
45. The Law Commission noted the decisions in Association for Democratic Reforms (supra), Lily
Thomas (supra) and Peoples Union for Civil Liberties v. Union of India12 and, after referring to the
previous Reports recommending reforms, recommended:-
To tackle the menace of wilful concealment of information or furnishing of false

information and to protect the right to information of the electors, the Commission
recommended that the punishment under Section 125A of RPA must be made more
stringent by providing for imprisonment of a minimum term of two years and by
doing away with the alternative clause for fine. Additionally, conviction under Section
125A RPA should be made a part of Section 8(1)(i) of the Representation of People
Act, 1950.
46. Further, the Commission took note of the observations made by the Justice J.S. Verma
Committee Report on Amendments to Criminal Law (2013) which proposed insertion of Schedule I
to the Representation of the People Act, 1951 enumerating offences under IPC befitting the category
of 'heinous' offences and it was also recommended in the said report that Section 8(1) of the RP Act
be (2003) 4 SCC 399 amended to cover, inter alia, the offences listed in the proposed Schedule 1,
and this, in turn, would provide 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 Cr.PC. 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. The Commission also referred to the proposal made in
the said Report which was to the effect 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.
47. The rationale given by the Commission for introducing a disqualification at the stage of framing
of charges was to the following effect:-
At the outset, the question that needs to be considered is whether disqualification

should continue to be triggered only at the stage of conviction as is currently the case
under Section 8 of the RPA. As detailed below, the current law suffers from three
main problems: the rate of convictions among sitting MPs and MLAs is extremely
low, trials of such persons are subject to long delays, and the law does not provide
adequate deterrence to political parties granting tickets to persons of criminal
backgrounds. This has resulted in a massive increase in the presence of criminal
elements in politics, which affects our democracy in very evident ways.

48. Thereafter, the Commission went on to observe in its Reform Proposal as to why the stage of
framing of charge sheet would not be an appropriate stage for disqualification. The Commission
observed thus:-
When filing a charge-sheet, the Police is simply forwarding the material collected
during investigation to a competent Court of law for the Court to consider what
provisions the accused should be charged under. At this stage, there is not even a
remote or prima facie determination of guilt of the accused by a Court of law. At the
stage of filing or forwarding the charge-sheet to the Court, the material which is made
a part of the charge- sheet has not even tested by a competent Court of law and the
Judge has clearly not applied his mind to the said material. Courts have repeatedly
held that a charge-sheet does not constitute a substantive piece of evidence as it not
yet tested on the anvil of cross-examination.No rights of hearing are granted to the
accused at this stage. At the stage of filing of charge-sheet, before summons are
issued, the accused does not even have a copy of the charge-sheet or any connected
material. Disqualifying a person therefore, simply on the basis of something which he
has had no opportunity to look into, or no knowledge of, would be against the
principles of natural justice.
Disqualifying a person at this stage would mean that a person is penalized without
proceedings being initiated against him. This would be tantamount to granting the
judicial determination of the question of disqualification to the police, who are a
prosecuting authority. At the National Consultation it was agreed by consensus that
this was an inappropriate stage for disqualification of candidates for elected office.
49. The Commission then felt that it was worthwhile to discuss why the stage of taking of cognizance
would be an inappropriate stage for disqualification and in this regard, the Commission observed
that the taking of cognizance simply means taking judicial notice of an offence with a view to initiate
proceedings in respect of such offence alleged to have been committed by someone and that it is an
entirely different matter from initiation of proceedings against someone; rather, it is a precondition
to the initiation of proceedings. The Commission took the view that while taking cognizance, the
Court has to consider only the material put forward in the charge-sheet and it is not open for the
Court at this stage to sift or appreciate the evidence and come to a conclusion that no prima facie
case is made out for proceeding further in the matter. Further, at the stage of taking cognizance, the
accused has no right to present any evidence or make any submissions and even though the accused
may provide exculpatory evidence to the police, the latter is under no obligation to include such
evidence as part of the charge-sheet. The Commission went on to conclude that the stages of filing of
charge sheet or taking cognizance would be inappropriate and observed thus:-
Due to the absence of an opportunity to the accused to be heard at the stage of filing
of charge-sheet or taking of cognizance, and due to the lack of application of judicial
mind at this stage, it is not an appropriate stage to introduce electoral
disqualifications. Further, in a case supposed to be tried by the Sessions Court, it is
still the Magistrate who takes cognizance. Introduction of disqualifications at this

stage would mean that a Magistrate who has been deemed not competent to try the
case still determines whether a person should be disqualified due to the charges filed.
Because of these reasons, it is our view that the filing of the police report under
Section 173 CrPC or taking of cognizance is not an appropriate stage to introduce
electoral disqualifications...
50. Thereafter, the Commission proceeded to examine why the framing of charges is an appropriate
stage for disqualification. It went on to make the following observations on this aspect:-
The Supreme Court, in Debendra Nath Padhi, overruling Satish Mehra, held that the
accused cannot lead any evidence at charging stage. Thus, the decision of the judge
has to be based solely on the record of the case, i.e. the investigation report and
documents submitted by the prosecution. Though the determination of framing of
charges is based on the record of the case, the Supreme Court jurisprudence on
Section 227 also imposes certain burdens to be discharged by the prosecution:
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 cross-examination 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.
51. The Commission was of the view that additionally, the burden on the prosecution
at the stage of framing of charges also involves proving a prima facie case and as per
the decision in State of Maharashtra v. Som Nath Thapa13 , a prima facie case is said
to be in existence if there is ground for presuming that the accused has committed
the offence. Further, the Commission observed that in order to establish a prime facie
case, the evidence on record should raise not merely some suspicion with regard to
the possibility of conviction, but a grave suspicion and to corroborate its view, the
(1996) 4 SCC 659 Commission referred to the observations in Union of India v.
Prafulla Kumar Samal14 which were to the following effect:-
If two views are possible and the Judge is satisfied that the evidence produced before
him while giving rise to some suspicion but not grave suspicion against the accused,
he will be fully within his right to discharge the accused.
52. After so analysing, the Commission concluded that since the stage of framing of charges is based
on substantial level of judicial scrutiny, a totally frivolous charge will not stand such scrutiny and
therefore, given the concern of criminalisation of politics in India, disqualification at the stage of
framing of charges is justified having substantial attendant legal safeguards to prevent misuse. The
Commission buttressed the said view on the following grounds:-

As explained above, the Supreme Court has made it clear that the framing of charges
under Section 228 of the CrPC requires an application of judicial mind to determine
whether there are sufficient grounds for proceeding against the accused. Further, the
burden of proof at this stage is on the prosecution who must establish a prima facie
case where the evidence on record raises grave suspicion. Together, these tests offer
protection against false charges being imposed.
In addition to the safeguards built in at the stage of framing of charges, an additional

option is available in the (1979) 3 SCC 4 shape of Section 311 of the Code of Criminal
Procedure. Section 311 grants power to the Court to summon or examine any person
at any stage of the trial if his evidence appears essential to the just decision of the
case. Although this section is not very widely used, and the Supreme Court has
cautioned against the arbitrary exercise of this power, it grants wide discretion to the
court which may even be exercised suomotu. This section may be used by the Court
to examine additional evidence before framing charges where the consequence of
such framing may disqualify the candidate. The framing of charges is therefore not an
automatic step in the trial process, but one that requires a preliminary level of
judicial scrutiny. The provisions in the CrPC require adequate consideration of the
merits of a criminal charge before charges are framed by the Court. The level of
scrutiny required before charges are framed is sufficient to prevent misuse of any
provision resulting in disqualification from contesting elections. Moreover enlarging
the scope of disqualifications to include the stage of framing of charges in certain
offences does not infringe upon any Fundamental or Constitutional right of the
candidate. RPA creates and regulates the right to contest and be elected as a Member
of Parliament or a State Legislature. From the early years of our democracy, it has
been repeatedly stressed by the Supreme Court that the right to be elected is neither a
fundamental nor a common law right. It is a special right created by the statute and
can only be exercised on the conditions laid down by the statute. Therefore, it is not
subject to the Fundamental Rights chapter of the constitution.
53. While addressing the three concerns, namely, misuse, lack of remedy for the accused and the
sanctity of criminal jurisprudence, the Commission stated that none of these concerns possess
sufficient argumentative weight to displace the arguments in the previous section as although
misuse is certainly a possibility, yet the same does not render a proposal to reform the law flawed in
limine. Further, the Supreme Court has repeatedly pointed out in the context of statutory power
vested in an authority that the possibility of misuse of power is not a reason to not confer the power
or to strike down such provision. It observed:-
Similarly a potential fear of misuse cannot provide justification for not reforming the
law per se. It does point to the requirement of instituting certain safeguards,
circumscribing the conditions under which such disqualification will operateThough
there is a view that the accused has limited rights at the stage of framing of charge,
the legal options available to him are fairly substantial. As the previous section
shows, the stage of framing of charges involves considerable application of judicial

mind, gives the accused an opportunity to be heard, places the burden of proof on the
prosecution to demonstrate a prima facie case and will lead to discharge unless the
grounds pleaded are sufficient for the matter to proceed to trial. Thus it is not as if
the accused has no remedy till charges are framedon the contrary, he has several legal
options available to him prior to this stage. Finally, though criminal jurisprudence
presumes a man innocent till proven otherwise, disqualifying a person from
contesting elections at the stage of framing of charges does not fall foul of this
proposition. Such a provision has no bearing on whether indeed the person
concerned is guilty of the alleged offence or not. On the contrary, it represents a
distinct legal determination of the types of persons who are suitable for holding
representative public office in India. Given the proliferation of criminal elements in
Parliament and State Assemblies, it is indicative of a public resolve to correct this
situation. Further, the existing provisions which disqualify persons on conviction
alone have been unable to achieve this task. Thus it is now strongly felt that it is
essential to disqualify those persons who have had criminal charges framed against
them by a court of competent jurisdiction, subject to certain safeguards, from
contesting in elections. Such a determination of suitability for representative office
has no bearing on his guilt or innocence which can, and will, only be judged at the
criminal trial. To conflate the two and thereby argue that the suggested reform is
jurisprudentially flawed would be to make a category mistake.
54. However, the Commission proposed certain safeguards in the form of limiting the
disqualification to operate only in certain cases, defining cut-off period and period of applicability.
The reasons for ensuring such safeguards as laid out in the report as are follows:
.Limiting the offences to which this disqualification applies has two clear reasons, i.e.
those offences which are of such nature that those charged with them are deemed
unsuitable to be peoples representatives in Parliament or State Legislatures are
included and the list is circumscribed optimally to prevent misuse to the maximum
extent possible All offences which have a maximum punishment of five years or more
ought to be included within the remit of this provision. Three justifications support
this proposal: first, all offences widely recognised as serious are covered by this
provision. This includes provisions for murder, rape, kidnapping, dacoity, corruption
under the Prevention of Corruption Act and other crimes of a nature that justify those
charged with them being disqualified from holding public office. Second, the data
extracted above demonstrates that a large portion of offences for which MPs, MLAs
and contesting candidates face criminal prosecutions relate to such provisions. Thus
the reformed provision will ensure that such candidates are disqualified thereby
creating a significant systemic impact. Third, it has the benefit of simplicityby
prescribing a standard five-year period, the provision is uniform and not contingent
on specific offences which may run the risk of arbitrariness. The uniform five-year
period thus makes a reasonable classification between serious and non- serious
offences and has a rational nexus with its objectpreventing the entry of significantly
criminal elements into Parliament and State Legislature.

55. With regard to laying down the safeguard of defining a cut-off period, the Commission observed
thus:-
An apprehension was raised that introducing such a disqualification will lead to a

spate of false cases in which charges might be framed immediately prior to an
election with the sole intention of disqualifying a candidate. This is sought to be offset
by a cut-off period before the date of scrutiny of nomination for an election, charges
filed during which period, will not attract disqualification. The basis for this
distinction is clear to prevent false cases being filed against political candidates.
x x x .The cut-off period should be one year from the date of scrutiny of the
nomination, i.e. charges filed during the one year period will not lead to
disqualification. We feel that one year is an appropriate time-frame. It is long enough
so that false charges which may be filed specifically to disqualify candidates will not
lead to such disqualification; at the same time it is not excessively long which would
have made such disqualification redundant. It thus allows every contesting candidate
at minimum a one year period to get discharged. It thus strikes an appropriate
balance between enlarging the scope of disqualification while at the same time seeks
to disincentivise the filing of false cases solely with the view to engineer
disqualification.
56. Another safeguard in the form of period of applicability was also proposed by the Commission
which prescribes a time period or duration for which the said disqualification applies. It provides as
follows:-
For convictions under Section 8(1) a person is disqualified for six years from
conviction in case he is punished only with a fine or for the duration of the
imprisonment in addition to six years starting from his date of release. For
convictions under Section 8(2) and 8(3) he is disqualified simply for the duration of
his imprisonment and six years starting from the date of release. Given that
disqualifications on conviction have a time period specified, it would be anomalous if
disqualification on the framing of charges omitted to do so and applied indefinitely. It
is thus essential that a time period be specified.
57. The rationale provided for fixing the time period as above was given in the following terms:-
170th Law Commission under the Chairmanship of Justice B P Jeevan Reddy. In this
report the specified period of disqualification was suggested to be five years from the
date of framing of charge, or acquittal, whichever is earlier.
...We find great merit in this proposal. However it must be noted that the report did
not recommend a cut-off period before the election, a charge framed during which
would not lead to disqualification. Thus the rationale behind the five-year period was
that the charged person would at least be disqualified from contesting in one election.

This however will not be the case if a one-year cut off period is created. This is
because if a person has a charged framed against him six months before an election,
then he will not disqualified from this election because it is within the protected
window. At the same time, assuming that the next election is five years later (which is
a standard assumption) then he will not be disqualified from the second election as
well because five years from the date of framing of charge will have lapsed by then. To
take into account the effect of this cut-off period, it is thus recommended that the
period of disqualification is increased to six years from the date of framing of charge
or acquittal whichever is earlier. The rationale for this recommendation is clear: if a
person is acquitted, needless to say the disqualification is lifted from that date. If he
is not, and the trial is continuing, then the six-year period is appropriate for two
reasons first, it is long enough to ensure that the enlarged scope of disqualification
has enough deterrent effect. A six-year period would at least ensure that a person will
be disqualified from one election cycle thereby serving as a real safeguard against
criminals entering politics. At the same time it is the same as the period prescribed
when a person is disqualified on conviction for certain offences, which such provision
is comparable to. It thus has the added merit of uniformity. For these reasons, it is
recommended that in the event of a charge being framed in respect of the
enumerated offences against a person, he will be disqualified from contesting in
elections for a period of six years from the date of framing of charge or till acquittal
whichever is earlier, provided that the charge has not been framed within the
protected window before an election.
58. The eventual recommendations and proposed Sections by the Law Commission read as follows:-
1. x x x x x
2. The filing of the police report under Section 173 Cr.PC is not an appropriate stage to introduce
electoral disqualifications owing to the lack of sufficient application of judicial mind at this stage.
3. The stage of framing of charges is based on adequate levels of judicial scrutiny, and
disqualification at the stage of charging, if accompanied by substantial attendant legal safeguards to
prevent misuse, has significant potential in curbing the spread of criminalisation of politics.
4. The following safeguards must be incorporated into the disqualification for framing of charges
owing to potential for misuse, concern of lack of remedy for the accused and the sanctity of criminal
jurisprudence:
i. Only offences which have a maximum punishment of five years or above ought to
be included within the remit of this provision.
ii. Charges filed up to one year before the date of scrutiny of nominations for an
election will not lead to disqualification.

iii. The disqualification will operate till an acquittal by the trial court, or for a period of six years,
whichever is earlier.
iv. For charges framed against sitting MPs/ MLAs, the trials must be expedited so that they are
conducted on a day-to-day basis and concluded within a 1-year period. If trial not concluded within
a one year period then one of the following consequences ought to ensue:
- The MP/ MLA may be disqualified at the expiry of the one-year period; OR
- The MP/ MLAs right to vote in the House as a member, remuneration and other perquisites
attaching to their office shall be suspended at the expiry of the one-year period.
5. Disqualification in the above manner must apply retroactively as well. Persons with charges
pending (punishable by 5 years or more) on the date of the law coming into effect must be
disqualified from contesting future elections, unless such charges are framed less than one year
before the date of scrutiny of nomination papers for elections or the person is a sitting MP/MLA at
the time of enactment of the Act. Such disqualification must take place irrespective of when the
charge was framed.
xxx
1. There is large-scale violation of the laws on candidate affidavits owing to lack of sufficient legal
consequences. As a result, the following changes should be made to the RPA:
i. Introduce enhanced sentence of a minimum of two years under Section 125A of the
RPA Act on offence of filing false affidavits ii. Include conviction under Section 125A
as a ground of disqualification under Section 8(1) of the RPA.
iii. Include the offence of filing false affidavit as a corrupt practice under S. 123 of the
RPA.
2. Since conviction under Section 125A is necessary for disqualification under Section
8 to be triggered, the Supreme Court may be pleased to order that in all trials under
Section 125A, the relevant court conducts the trial on a day-to-day basis
3. A gap of one week should be introduced between the last date for filing nomination
papers and the date of scrutiny, to give adequate time for the filing of objections to
nomination papers.
59. The aforesaid recommendations for proposed amendment never saw the light of the day in the
form of a law enacted by a competent legislature but it vividly exhibits the concern of the society
about the progressing trend of criminalization in politics that has the proclivity and the propensity
to send shivers down the spine of a constitutional democracy.

60. Having stated about the relevant aspects of the Law Commission Report and the indifference
shown to it, the learned counsel for the petitioners and intervenors have submitted that certain
directions can be issued to the Election Commission so that the purity of democracy is strengthened.
It is urged by them that when the Election Commission has been conferred the power to supervise
elections, it can control party discipline of a political party by not encouraging candidates with
criminal antecedents. Role of Election Commission
61. Article 324 of the Constitution lays down the power of the Election Commission with respect to
superintendence, direction and control of elections and reads thus:-
"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
Legislature 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
Commissioners, if any, as the President may from time to time fix 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 consultation 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 except 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 except 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).
62. This Court in a catena of judgments has elucidated upon the role of the Election Commission
and the extent to which it can exercise its power under the constitutional framework.
63. In Election Commission of India and another. v. Dr. Subramaniam Swamy and another15, this
Court ruled that the opinion of the Election Commission is a sine qua non for the Governor or the
President, as the case may be, to give a decision on the question whether or not the concerned
member of the House of the Legislature of the State or either House of Parliament has incurred a
disqualification. The Court observed:-
"Then we turn to Clause (2) of Article 192 which reads as under:
192(2) - Before giving any decision on any such question, the Governor shall obtain
the opinion of the Election Commission and shall act according to such opinion.
It is clear from the use of the words 'shall obtain' the opinion of the Election
Commission, that it is obligatory to obtain the opinion of the Election Commission
and the further stipulation that the Governor "shall act" according to such opinion
leaves no room for doubt that the Governor is bound to act according to that opinion.
The position in law is well settled by this Court's decision in Brundaban v. Election
Commission, [1965] 3 SCR 53 wherein this Court held that it is the obligation of the
Governor to take a decision in accordance with the opinion of the (1996) 4 SCC 104
Election Commission. It is thus clear on a conjoint reading of the two clauses of
Article 192 that once a question of the type mentioned in the first clause is referred to
the Governor, meaning thereby is raised before the Governor, the Governor and the
Governor alone must decide it but this decision must be taken after obtaining the
opinion of the Election Commission and the decision which is made final is that
decision which the Governor has taken in accordance with the opinion of the Election
Commission. In effect and substance the decision of the Governor must depend on
the opinion of the Election Commission and none else, not even the Council of
Ministers. Thus the opinion of the Election Commission is decisive since the final
order would be based solely on that opinion.
8. The same view came to be expressed in the case of Election Commission of India v.
N.G. Ranga, [1979] 1 SCR2 10, while interpreting Article 103(2) of the Constitution,
the language thereof is verbatim except that instead of the Governor in Article 192(2),
here the decision has to be made by the President. So also the language of Articles
192(1) and 103(1) is identical except for the same change. The Constitution Bench of
this Court reiterated that the President was bound to seek and obtain the opinion of
the Election Commission and only thereafter decide the issue in accordance

therewith. It other words, it is the Election Commission's opinion which is decisive."
64. In Mohinder Singh Gill (supra), Krishna Iyer J. opined:-
"12. The scheme is this. The President of India (Under Section 14) ignites the general
elections across the nation by calling upon the People, divided into several
constituencies and registered in the electoral rolls, to choose their representatives to
the Lok Sabha. The constitutionally appointed authority, the Election Commission,
takes over the whole conduct and supervision of the mammoth enterprise involving a
plethora of details and variety of activities, and starts off with the notification of the
time table for the several stages of the election (Section 30).' The assembly line
operations then begin. An administrative machinery and technology to execute these
enormous and diverse jobs is fabricated by the Act, creating officers, powers and
duties, delegation of functions and location of polling stations. The precise exercise
following upon the calendar for the poll, commencing from presentation of
nomination papers, polling drill and telling of votes, culminating in the declaration
and report of results are covered by specific prescriptions in the Act and the rules.
The secrecy of the ballot, the authenticity of the voting paper and its' later
identifiability with reference to particular polling stations, have been thoughtfully
provided for. Myriad other matters necessary for smooth elections have been taken
care of by several provisions of the Act."
65. Further, the Court observed in Mohinder Singh Gill (supra) that a re-poll for a whole
constituency under compulsion of circumstances may be directed for the conduct of elections and
can be saved by Article 324 provided it is bona fide and necessary for the vindication of the free
verdict of the electorate and the abandonment of the previous poll was because it failed to achieve
that goal. The Court ruled that even Article 324 does not exalt the Commission into a law unto itself.
Broad authority does not bar scrutiny into specific validity of a particular order. Having said that,
the Court passed the following directions:-
"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 exercise 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 in so far 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 wrong-doer 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 repoll although not in full panoply but inflexible
practicability. Whether it has been complied with is left open for the Tribunal
adjudication."
66. In the concurring judgment in Mohinder Gill (supra), Goswami, J., with regard to Article 324,
observed thus in para 113:-
...Since the conduct of all elections to the various legislative bodies and to the offices
of the President and the Vice-President is vested under Article 324(1) in the Election
Commission, the framers of the Constitution took care to leaving scope for exercise of
residuary power by the Commission, in its own right, as a creature of the
Constitution, in the infinite variety of situations that may emerge from time to time
in such a large democracy as ours. Every contingency could not be foreseen, or
anticipated with precision. That is why there is no hedging in Article 324. The
Commission may be required to cope with some situation which may not be provided
for in the enacted laws and the rules...
67. In A.C. Jose v. Sivan Pillai and others16, this Court held that:-
"It is true that Article 324 does authorise the Commission to exercise powers of
superintendence, direction and control of preparation of electoral rolls and the
conduct of elections to Parliament and State legislatures but then the Article has to be
read harmoniously with the Articles that follow and the powers that are given to the
Legislatures under entry No. 72 in the Union List and entry No. 37 of the State List of
the Seventh Schedule to the Constitution. The Commission in the garb of passing
orders for regulating the conduct of elections cannot take upon itself a purely
legislative activity which has been reserved under the scheme of the Constitution only
to AIR 1984 SC 921 Parliament and the State legislatures. By no standards can it be
said that the Commission is a third Chamber in the legislative be process within the
scheme of the Constitution. merely being a creature of the Constitution will not give it
plenary and absolute power to legislate as it likes without reference to the law
enacted by the legislatures. [Emphasis added]
68. In Association for Democratic Reforms (supra), the Court opined:-
"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 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."
69. In Kuldip Nayar v. Union of India and others17, this Court has observed:-

"181. 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.
(2006) 7 SCC 1 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 exercise 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."
70. The aforesaid decisions are to be appositely appreciated. There is no denial of the fact that the
Election Commission has the plenary power and its view has to be given weightage. That apart, it
has power to supervise the conduct of free and fair election. However, the said power has its
limitations. The Election Commission has to act in conformity with the law made by the Parliament
and it cannot transgress the same.
71. It is submitted by Mr. Krishnan Venugopal, learned senior counsel appearing for the petitioner
in Writ Petition (Civil) No. 800 of 2015 that traditionally, the Court would not breach the principle
of separation of powers, however, this cannot prevent this Court from passing necessary directions
to address the systemic growth of the problem of criminalization of politics and the political system
without breaching the principle of separation of powers and this Court, in order to discharge its
constitutional function, can give directions to the Election Commission to exercise its powers under
Article 324 of the Constitution to redress violation of the fundamental rights and to protect the
purity of the electoral process. Mr. Venugopal contends that in the past too, this Court, on several
instances, had given directions to the Election Commission. He has also pointed out that the reason
behind the urgent need for this Court to intervene to tackle the growing menace of criminalization of
politics is that several law commission reports and other papers have unanimously concluded that
there is widespread criminalization of politics and this Court has also taken cognizance of this fact in
several of its judgments, but despite the said reports and the efforts of this Court, neither the
Parliament nor the Government of India has taken serious actions to tackle the problem.
72. Further, Mr. Venugopal has drawn the attention of this Court to the findings in the Report titled
'Milan Vaishnav, When crime pays: Money and Muscle in Indian Politics18 to highlight that there is
an alarming increase in the number of candidates with criminal antecedents and their chances of
winning have actually increased steadily over the years and there is ample evidence in the form of
statistical data which reinstates this fact.

73. On that basis, it is contended that the empirical evidence supports the view that the current
legislative framework permits criminals to enter the electoral arena and become legislators which
interferes with the purity and integrity of the electoral process, violates the right to choose freely the
candidate of the voter's choice thereby violating the freedom of expression of a voter and amounts to
a subversion of democracy which is a part of the basic structure and is, thus, antithetical to the Rule
of Law.
74. Mr. Venugopals submission has been supported by Mr. Dinesh Dwivedi, learned senior counsel
appearing for the petitioners in Writ Milan Vaishnav, When crime pays: Money and Muscle in
Indian Politics, Yale Press University, New Haven (2017) Petition (Civil) No. 536 of 2011 and Mr.
Sidharth Luthra, learned Amicus Curiae, to the effect that if the Court does not intend to incorporate
a prior stage in criminal trial, it can definitely direct the Election Commission to save democracy by
including some conditions in the Election Symbols (Reservation and Allotment) Order, 1968
(hereinafter referred to as the Symbols Order). The submission is that a candidate against whom
criminal charges have been framed in respect of heinous and grievous offences should not be
allowed to contest with the symbol of the party. It is urged that the direction would not amount to
adding a disqualification beyond what has been provided by the legislature but would only deprive a
candidate from contesting with the symbol of the political party.
75. The aforesaid submission is seriously opposed by the learned Attorney General. It is the case of
the first respondent that Section 29A of the Act does not permit the Election Commission of India to
deregister a political party. To advance this view, the Union of India has relied upon the decision of
this Court in Indian National Congress (I) v. Institute of Social Welfare and others19.
76. It is also the asseveration of the first respondent that the power of this Court to issue directions
to the Election Commission of India have been elaborately dealt with in Association for Democratic
Reforms (supra) wherein this Court held that Article 32 of the Constitution of India only operates in
areas left unoccupied by legislation and in the case at hand, the Constitution of India and the
Representation of the People Act, 1951 already contain provisions for disqualification of Members of
Parliament. Therefore, directing the Election Commission to (a) deregister a political party, (b)
refuse renewal of a political party or (c) to not register a political party if they associate themselves
with persons who are merely charged with offences would amount to adopting a colourable route,
that is, doing indirectly what is clearly prohibited under the Constitution of India and the
Representation of the People Act.
77. It is also contended on behalf of the Union of India that adding a condition to the recognition of
a political party under the Symbols (2002) 5 SCC 685 Order would also result in doing indirectly
what is clearly prohibited. To buttress this stand, the Union of India has cited the decisions in Jagir
Singh v. Ranbir Singh and another20 and M.C. Mehta v. Kamal Nath and others21.
78. Further, it has been submitted by the first respondent that Section 29A(5) of the Act is a
complete, comprehensive and unambiguous provision of law and any direction to the Election
Commission of India to deregister or refuse registration to political parties who associate themselves
with persons merely charged with offences would result in violation of the doctrine of separation of

powers as that would tantamount to making addition to a statute which is clear and unambiguous.
79. As per the first respondent, 'pure law' in the nature of constitutional provisions and the
provisions of the Act cannot be substituted or replaced by judge made law. To advance the said
stand, the first respondent has cited the judgments of this Court in State of Himachal Pradesh and
others v. Satpal Saini22 and (1979) 1 SCC 560 (2000) 6 SCC 213 (2017) 11 SCC 42 Kesavananda
Bharati v. State of Kerala and another23 wherein the doctrine of separation of powers was
concretised by this Court. It is the contention of the first respondent that answering the present
reference in the affirmative would result in violation of the doctrine of separation of powers.
80. The first respondent has also contended that the presumption of innocence until proven guilty is
one of the hallmarks of Indian democracy and the said presumption attaches to every person who
has been charged of any offence and it continues until the person has been convicted after a
full-fledged trial where evidence is led. Penal consequences cannot ensue merely on the basis of
charge.
81. Drawing support from the judgment of this Court in Amit Kapoor v. Ramesh Chander and
another24, it is averred by the first respondent that the standard of charging a person is always less
than a prima facie case, i.e., a person can be charged if the facts emerging from the record disclose
the existence of all the ingredients constituting the alleged offence and, therefore, the consequences
of (1973) 4 SCC 225 (2012) 9 SCC 460 holding that a person who is merely charged is not entitled to
membership of a political party would be grave as it would have the effect of taking away a very
valuable advantage of the symbol of the political party.
82. It has been further contended by the first respondent that every citizen has a right under Article
19(l)(c) to form associations which includes the right to be associated with persons who are
otherwise qualified to be Members of Parliament under the Constitution of India and under the law
made by the Parliament. Further, this right can only be restricted by law made by the Parliament
and any direction issued by the Election Commission of India under Article 324 is not law for the
purpose of Article 19(l)(c).
83. The first respondent also submits that the Act already contains detailed provisions for disclosure
of information by a candidate in the form of Section 33A which requires every candidate to disclose
information pertaining to offences that he or she is accused of. This information is put on the
website of the Election Commission of India and requiring every member of a political party to
disclose such information irrespective of whether he/she is contesting election will have serious
impact on the privacy of the said member.
84. Relying upon the decisions in Union of India and another v. Deoki Nandan Aggarwal25 and
Supreme Court Bar Association v. Union of India and another26, the first respondent has submitted
that Article 142 of the Constitution of India does not empower this Court to add words to a statute or
read words into it which are not there and Article 142 does not confer the power upon this Court to
make law.

85. As regards the issue that there is a vacuum which necessitates interference of this Court, the first
respondent has contended that this argument is untenable as the provisions of the Constitution and
the Act are clear and unambiguous and, therefore, answering the question referred to in the
affirmative would be in the teeth of the doctrine of separation of powers and would be contrary to
the provisions of the Constitution and to the law enacted by the Parliament.
(1992) Supp (1) 323 (1998) 4 SCC 409 Analysis of the Election Symbols Order
86. In the adverting situation and keeping in view the submissions on the behalf of the petitioners, it
is pertinent to scan and analyse the relevant provisions of the Symbols Order which deals with
allotment, classification, choice of symbols by candidates and restriction on the allotment of
symbols. Clause (4) of the Symbols Order reads:-
4. Allotment of symbols In every contested election a symbol shall be allotted to a

contesting candidate in accordance with the provisions of this Order and different
symbols shall be allotted to different contesting candidates at an election in the same
constituency.
87. Clause (4) of the Symbols Order makes it clear that in each and every contested election, a
symbol, to each and every contesting candidate, shall be allotted in accordance with the provisions
of this Symbols Order and in case of an election in the same constituency, different symbols shall be
allotted to different contesting candidates. Now, we must also dissect clause (5) of the Symbols
Order which reads:-
5. Classification of symbols (1) For the purpose of this Order symbols are either
reserved or free. (2) Save as otherwise provided in this Order, a reserved symbol is a
symbol which is reserved for a recognised political party for exclusive allotment to
contesting candidates set up by that party. (3) A free symbol is a symbol other than a
reserved symbol.
88. Sub-clause (1) of clause (5) of the Symbols Order, a priori, segregates the symbols for the
purposes of this Symbols Order into two simon pure categories, i.e., 'Reserved' or 'Free'. Therefore, a
symbol under the Symbols Order can either be reserved or it can be free. Before decoding sub-clause
(2) of clause (5), we may first decipher sub-clause (3) which gives a negative definition to a free
symbol. As per sub-clause (3) of clause (5), a symbol is free if is not reserved under the Symbols
Order. Sub-clause (2) of clause (5) which defines a reserved symbol stipulates that except as
otherwise provided in the Symbols Order, a reserved symbol is one which is reserved for a
recognised political party for exclusive allotment to the contesting candidates set up by such
political party.
89. Thereafter, clause (6) classifies political parties into state parties and national parties. Clauses
(6A) and (6B) stipulate the conditions for recognition of state and national parties, respectively.
Under clause (17) of the Symbols Order the Election Commission publishes, by notification in the
Official Gazette of India, the national parties, State parties and the symbols reserved for them.

Clause (17) reads as under:-
17. Notification containing lists of political parties and symbols (1) The Commission
shall by one or more notifications in the Gazette of India publish lists specifying-
(a) the National Parties and the symbols respectively reserved for them;
(b) the State Parties, the State or States in which they are State Parties and the
symbols respectively reserved for them in such State or States;
xxx
90. Another important provision in the matter of choice of symbols by candidates

and restriction on the allotment thereof is clause (8) of the Symbols Order which
reads thus:-
8. Choice of symbols by candidates of National and State Parties and allotment

thereof (1) A candidate set up by a National Party at any election in any constituency
in India shall choose, and shall be allotted, the symbol reserved for that party and no
other symbol.
(2) A candidate set up by a State Party at an election in any constituency in a State in

which such party is a State Party, shall choose, and shall be allotted the symbol
reserved for that Party in that State and no other symbol.
(3) A reserved symbol shall not be chosen by, or allotted to, any candidate in any
constituency other than a candidate set up by a National Party for whom such symbol
has been reserved or a candidate set up by a State Party for whom such symbol has
been reserved in the State in which it is a State Party even if no candidate has been
set up by such National or State Party in that constituency.
91. For exegesis of clause (8) of the Symbols Order, it is apt that we refer to clause
(13) which provides as to when a candidate is deemed to be set up by a political party.
Clause (13) reads as under:-
13. When a candidate shall be deemed to be set up by a political party.For the

purposes of an election from any parliamentary or assembly constituency to which
this Order applies, a candidate shall be deemed to be set up by a political party in any
such parliamentary or assembly constituency, if, and only if,-
(a) the candidate has made the prescribed declaration to this effect in his nomination
paper; (aa) the candidate is a member of that political party and his name is borne on
the rolls of members of the party;

(b) a notice by the political party in writing, in Form B, to that effect has, not later
than 3 p.m. on the last date for making nominations, been delivered to the Returning
Officer of the constituency;
(c) the said notice in Form B is signed by the President, the Secretary or any other
office bearer of the party, and the President, Secretary or such other office bearer
sending the notice has been authorised by the party to send such notice;
(d) the name and specimen signature of such authorised person are communicated
by the party, in Form A, to the Returning Officer of the constituency and to the Chief
Electoral Officer of the State or Union Territory concerned, not later than 3 p.m. on
the last date for making nominations; and
(e) Forms A and B are signed, in ink only, by the said office bearer or person
authorised by the party: Provided that no facsimile signature or signature by means
of rubber stamp, etc., of any such office bearer or authorised person shall be accepted
and no form transmitted by fax shall be accepted.
92. Clause (13) lays down an elaborate procedure in order for a candidate to be set up
by a political party in both the elections to the Parliament as well as the Assembly
constituencies.
93. Coming back to clause (8) of the Symbols Order, as per sub- clause (1) of clause (8), a candidate
set up by a national party in terms of clause (13) in any constituency in India shall choose the
symbol reserved for such national party and no other symbol. By using the word 'shall, sub-clause
(1) of clause (8) makes it mandatory for a candidate set up by a national party to choose the symbol
reserved for such national party. Further, sub-clause (1), again on a second instance, by using the
word 'shall' in the context of the Election Commission, makes it obligatory for the Election
Commission to allot to a candidate set up by a national party the symbol reserved for such national
party. Therefore, sub-clause (1) by casting this duty on the Election Commission, as a natural
corollary, gives birth to a right to the candidate set up by a national party to contest elections under
the symbol reserved for such national party.
94. That apart, the first part of sub-clause (3) of clause (8) stipulates that a symbol reserved, in
terms of clause (5) read with clause (17) of the Symbols Order, shall neither be chosen by nor
allotted by the Election Commission to any candidate in any constituency other than a candidate set
up by a national party.
95. Sub-clause (2) of clause (8) and the latter part of clause (3) are corresponding provisions for
choice of symbol by candidates of State parties which, for the sake of brevity, we need not delve into.
Coming to the last clause of the Symbols Order, clause (18) reads thus:-
18. Power of Commission to issue instructions and directions:The Commission may

issue instructions and directions-

x x x
x x x
(c) in relation to any matter with respect to the reservation and allotment of symbols
and recognition of political parties, for which this Order makes no provision or makes
insufficient provision, and provision is in the opinion of the Commission necessary
for the smooth and orderly conduct of elections.
96. In terms of sub-clause (c) of clause 18, the power to issue instructions and directions, in matters
relating to reservation and allotment of symbols, has been reserved by the Election Commission
itself.
97. What comes to the fore is that when a candidate has been set up in an election by a particular
political party, then such a candidate has a right under sub-clause (3) of clause (8) to choose the
symbol reserved for the respective political party by which he/she has been set up. An analogous
duty has also been placed upon the Election Commission to allot to such a candidate the symbol
reserved for the political party by which he/she has been set up and to no other candidate.
98. Assuming a hypothetical situation, where a particular symbol is reserved for a particular
political party and such a political party sets up a candidate in elections against whom charges have
been framed for heinous and/or grievous offences and if we were to accept the alternative proposal
put forth by the petitioners to direct the Election Commission that such a candidate cannot be
allowed to contest with the reserved symbol for the political party, it would tantamount to adding a
new ground for disqualification which is beyond the pale of the judicial arm of the State. Any
attempt to the contrary will be a colourable exercise of judicial power for it is axiomatic that what
cannot be done directly ought not to be done indirectly which is a well-accepted principle in the
Indian judiciary.
99. Here we may profit to refer to some authorities wherein the said principle has been discussed
elaborately.
100. In Allied Motors Limited v. Bharat Petroleum Corporation Limited27, reference was made to
the celebrated judgment of the Privy Council in Nazir Ahmad v. King Emperor28 wherein the
principle has been enunciated that where a power is given to do a certain thing in a certain way, the
thing must be done in that way, or not at all. Other methods of performance are necessarily
forbidden. This principle has been reiterated and expanded by the Supreme Court in several
decisions.
101. In D.R. Venkatachalam and others v. Dy. Transport Commissioner and others29, it was
observed:-
In ultimate analysis, the rule of construction relied upon by Mr. Chitaley to make the
last-mentioned submission is: "Expression unius est exclusio alterius."

This maxim, which has been described as "a valuable servant but a dangerous master" (per Lopes J.,
in Court of Appeal in Colquhoun v. Brooks, (1888) 21 QBD 52 finds expression also in a rule
formulated in Taylor v. Taylor (1875) 1 Ch D 426 applied by the Privy Council in Nazir Ahmad v.
King Emperor which has been repeatedly adopted by this Court. That rule says that an expressly laid
down mode of doing something (2012) 2 SCC 1 AIR 1936 PC 253 AIR 1977 SC 842 necessarily
implies a prohibition of doing it in any other way.
102. Similarly, in State through. P.S. Lodhi Colony New Delhi v. Sanjeev Nanda30, this Court
observed thus:-
It is a settled principle of law that if something is required to be done in a particular

manner, then that has to be done only in that way or not, at all. In AIR 1936 PC 253
(2) Nazir Ahmad v. King Emperor, it has been held as follows:
.... The rule which applies is a different and not less well recognized rule, namely, that
where a power is given to do a certain thing in a certain way the thing must be done
in that way or not at all....
103. Another judgment where this principle has been reiterated is Rashmi Rekha Thatoi and
another v. State of Orissa and others31 wherein it was observed thus:-
In this regard it is to be borne in mind that a court of law has to act within the
statutory command and not deviate from it. It is a well-settled proposition of law
what cannot be done directly, cannot be done indirectly. While exercising a statutory
power a court is bound to act within the four corners thereof. The statutory exercise
of power stands on a different footing than exercise of power of judicial review. AIR
2012 SC 3104 (2012) 5 SCC 690
104. That apart, any direction to the Election Commission in the nature as sought by the petitioners
may lead to an anomalous situation and has the effect potentiality to do something indirectly which
is not permissible to do directly. A candidate bereft of party symbol is, in a way, disqualified from
contesting under the banner of a political party. It is contended that the person concerned can
contest the election as an independent candidate but, as we perceive, the impact would be the same.
That apart, without a legislation, it may be difficult to proscribe the same. Additionally, democracy
that is based on multi-party system is likely to be dented. In Shailesh Manubhai Parmar v. Election
Commission of India32, while dealing with the issue of introduction of NOTA to the election process
for electing members of the Council of States, this Court observed thus:-
...introduction of NOTA to the election process for electing members of the Council of
States will be an anathema to the fundamental criterion of democracy which is a basic
feature of the Constitution. It can be 2018 (10) SCALE 52 stated without any fear of
contradiction that the provisions for introduction of NOTA as conceived by the
Election Commission, the first respondent herein, on the basis of the PUCL judgment
is absolutely erroneous, for the said judgment does not say so. We are disposed to

think that the decision could not have also said so having regard to the constitutional
provisions contained in Article 80 and the stipulations provided under the Tenth
Schedule to the Constitution. The introduction of NOTA in such an election will not
only run counter to the discipline that is expected from an elector under the Tenth
Schedule to the Constitution but also be counterproductive to the basic grammar of
the law of disqualification of a member on the ground of defection. It is a well settled
principle that what cannot be done directly, cannot be done indirectly. To elaborate,
if NOTA is allowed in the election of the members to the Council of States, the
prohibited aspect of defection would indirectly usher in with immense vigour.
(Emphasis is ours)
105. Here it is apt to note that this Court refused to allow the introduction of NOTA for election of
members of the Council of States, for the Court was of the view that if the availibilty of NOTA option
in elections for Rajya Sabha would be allowed, the same would amount to colourable exercise of
power by attempting to introduce or modify a disqualification for being or becoming a member,
which power falls completely within the domain of the legislature. Ruling so, the Court further
observed:-
The introduction of NOTA in indirect elections may on a first glance tempt the
intellect but on a keen scrutiny, it falls to the ground, for it completely ignores the
role of an elector in such an election and fully destroys the democratic value. It may
be stated with profit that the idea may look attractive but its practical application
defeats the fairness ingrained in an indirect election. More so where the electors vote
has value and the value of the vote is transferrable. It is an abstraction which does not
withstand the scrutiny of, to borrow an expression from Krishna Iyer, J., the cosmos
of concreteness. We may immediately add that the option of NOTA may serve as an
elixir in direct elections but in respect of the election to the Council of States which is
a different one as discussed above, it would not only undermine the purity of
democracy but also serve the Satan of defection and corruption.
106. Thus analyzed, the directions to the Election Commission as sought by the petitioners runs
counter to what has been stated hereinabove. Though criminalization in politics is a bitter manifest
truth, which is a termite to the citadel of democracy, be that as it may, the Court cannot make the
law.
107. Directions to the Election Commission, of the nature as sought in the case at hand, may in an
idealist world seem to be, at a cursory glance, an antidote to the malignancy of criminalization in
politics but such directions, on a closer scrutiny, clearly reveal that it is not constitutionally
permissible. The judicial arm of the State being laden with the duty of being the final arbiter of the
Constitution and protector of constitutional ethos cannot usurp the power which it does not have.
108. In a multi-party democracy, where members are elected on party lines and are subject to party
discipline, we recommend to the Parliament to bring out a strong law whereby it is mandatory for

the political parties to revoke membership of persons against whom charges are framed in heinous
and grievous offences and not to set up such persons in elections, both for the Parliament and the
State Assemblies. This, in our attentive and plausible view, would go a long way in achieving
decriminalisation of politics and usher in an era of immaculate, spotless, unsullied and virtuous
constitutional democracy.
109. In spite of what we have stated above, we do not intend to remain oblivious to the issue of
criminalization of politics. This Court has focused on various aspects of the said criminalization and
given directions from time to time which are meant to make the voters aware about the antecedents
of the candidates who contest in the election. In Association for Democratic Reforms (supra), this
Court held:-
38. If right to telecast and right to view sport games and the right to impart such
information is considered to be part and parcel of Article 19(1)(a), we fail to
understand why the right of a citizen/voter a little man to know about the
antecedents of his candidate cannot be held to be a fundamental right under Article
19(1)(a). In our view, democracy cannot survive without free and fair election,
without free and fairly informed voters. Votes cast by uninformed voters in favour of
X or Y candidate would be meaningless. As stated in the aforesaid passage, one-sided
information, disinformation, misinformation and non-information, all equally create
an uninformed citizenry which makes democracy a farce. Therefore, casting of a vote
by a misinformed and non-informed voter or a voter having one-sided information
only is bound to affect the democracy seriously. Freedom of speech and expression
includes right to impart and receive information which includes freedom to hold
opinions. Entertainment is implied in freedom of speech and expression and there is
no reason to hold that freedom of speech and expression would not cover right to get
material information with regard to a candidate who is contesting election for a post
which is of utmost importance in the democracy.
110. After the said judgment was delivered, the Representation of the People (Amendment)
Ordinance, 2002 (4 of 2002) was promulgated and the validity of the same was called in question
under Article 32 of the Constitution of India. The three Judge Bench in Peoples Union for Civil
Liberties (PUCL) (supra) held that Section 33-B which provided the candidate to furnish
information only under the Act and the rules is unconstitutional. The said provision read as
follows:-
33-B. Candidate to furnish information only under the Act and the
rules.Notwithstanding anything contained in any judgment, decree or order of any
court or any direction, order or any other instruction issued by the Election
Commission, no candidate shall be liable to disclose or furnish any such information,
in respect of his election, which is not required to be disclosed or furnished under this
Act or the rules made thereunder.
111. P. Venkata Reddy, J. expressed his view as follows:-

(1) Securing information on the basic details concerning the candidates contesting for
elections to Parliament or the 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.
* * * (3) The directives given by this Court in Union of India v. Assn. for Democratic
Reforms 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.
* * * (5) Section 33-B inserted by the Representation of the People (Third

Amendment) Act, 2002 does not pass the test of constitutionality, firstly, for the
reason that it imposes a 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 Parliament under Section
33-A 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 the Court from the ambit of disclosure.
112. Dharmadhikari, J., in his supplementing opinion, held thus:-
127. The reports of the advisory commissions set up one after the other by the
Government to which a reference has been made by Brother Shah, J., highlight the
present political scenario where money power and muscle power have substantially
polluted and perverted the democratic processes in India. To control the ill- effects of
money power and muscle power the commissions recommend that election system
should be overhauled and drastically changed lest democracy would become a teasing
illusion to common citizens of this country. Not only a half-hearted attempt in the
direction of reform of the election system is to be taken, as has been done by the
present legislation by amending some provisions of the Act here and there, but a
much improved election system is required to be evolved to make the election process
both transparent and accountable so that influence of tainted money and physical
force of criminals do not make democracy a farce the citizens fundamental right to
information should be recognised and fully effectuated. This freedom of a citizen to
participate and choose a candidate at an election is distinct from exercise of his right

as a voter which is to be regulated by statutory law on the election like the RP Act.
113. In Resurgence India v. Election Commission of India33, referring to the precedents, this Court
ruled thus:-
20. Thus, this Court held that a voter has the elementary right to know full
particulars of a candidate who is to represent him in Parliament and such right to get
information is universally recognised natural right flowing from the concept of
democracy and is an integral part of Article 19(1)(a) of the Constitution. It was
further held that the voters 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. Thus, in
unequivocal terms, it is recognised that the citizens right to know of the candidate
who represents him in Parliament will constitute an integral part of Article 19(1)(a) of
the Constitution of India and any act, which is derogative of the fundamental rights is
at the very outset ultra vires. And again:-
(2014) 14 SCC 189 27. If we accept the contention raised by the Union of India viz.
the candidate who has filed an affidavit with false information as well as the
candidate who has filed an affidavit with particulars left blank should be treated on a
par, it will result in breach of fundamental right guaranteed under Article 19(1)(a) of
the Constitution viz. right to know, which is inclusive of freedom of speech and
expression as interpreted in Assn. for Democratic Reforms.
114. The Court summarized the directions as under:-
29.1. The voter has the elementary right to know full particulars of a candidate who is
to represent him in Parliament/Assemblies and such right to get information is
universally recognised. Thus, it is held that right to know about the candidate is a
natural right flowing from the concept of democracy and is an integral part of Article
19(1)(a) of the Constitution. 29.2. The ultimate purpose of filing of affidavit along
with the nomination paper is to effectuate the fundamental right of the citizens under
Article 19(1)(a) of the Constitution of India. The citizens are supposed to have the
necessary information at the time of filing of nomination paper and for that purpose,
the Returning Officer can very well compel a candidate to furnish the relevant
information.
29.3. Filing of affidavit with blank particulars will render the affidavit nugatory.
29.4. It is the duty of the Returning Officer to check whether the information
required is fully furnished at the time of filing of affidavit with the nomination paper
since such information is very vital for giving effect to the right to know of the
citizens. If a candidate fails to fill the blanks even after the reminder by the Returning
Officer, the nomination paper is fit to be rejected. We do comprehend that the power

of Returning Officer to reject the nomination paper must be exercised very sparingly
but the bar should not be laid so high that justice itself is prejudiced.
29.5. We clarify to the extent that para 73 of Peoples Union for Civil Liberties case
will not come in the way of the Returning Officer to reject the nomination paper
when affidavit is filed with blank particulars. 29.6. The candidate must take the
minimum effort to explicitly remark as NIL or Not Applicable or Not known in the
columns and not to leave the particulars blank.
29.7. Filing of affidavit with blanks will be directly hit by Section 125-A(i) of the RP
Act. However, as the nomination paper itself is rejected by the Returning Officer, we
find no reason why the candidate must be again penalised for the same act by
prosecuting him/her.
115. In Peoples Union for Civil Liberties v. Union of India34, the Court held that the
universal adult suffrage conferred on the citizens of India by the Constitution has
made it possible for these millions of individual voters to go to the polls and thereby
participate in the governance of our country. It has been further ruled that for
democracy to survive, it is essential that the best available men should be chosen as
the peoples representatives for the proper governance of the country. The best
available people, as is expected by the democratic system, should not have criminal
antecedents and (2013) 10 SCC 1 the voters have a right to know about their
antecedents, assets and other aspects. We are inclined to say so, for in a
constitutional democracy, criminalization of politics is an extremely disastrous and
lamentable situation. The citizens in a democracy cannot be compelled to stand as
silent, deaf and mute spectators to corruption by projecting themselves as helpless.
The voters cannot be allowed to resign to their fate. The information given by a
candidate must express everything that is warranted by the Election Commission as
per law. Disclosure of antecedents makes the election a fair one and the exercise of
the right of voting by the electorate also gets sanctified. It has to be remembered that
such a right is paramount for a democracy. A voter is entitled to have an informed
choice. If his right to get proper information is scuttled, in the ultimate eventuate, it
may lead to destruction of democracy because he will not be an informed voter
having been kept in the dark about the candidates who are accused of heinous
offences. In the present scenario, the information given by the candidates is not
widely known in the constituency and the multitude of voters really do not come to
know about the antecedents. Their right to have information suffers.
116. Keeping the aforesaid in view, we think it appropriate to issue the following directions which
are in accord with the decisions of this Court :-
(i) Each contesting candidate shall fill up the form as provided by the Election
Commission and the form must contain all the particulars as required therein.

(ii) It shall state, in bold letters, with regard to the criminal cases pending against the
candidate.
(iii) If a candidate is contesting an election on the ticket of a particular party, he/she

is required to inform the party about the criminal cases pending against him/her.
(iv) The concerned political party shall be obligated to put up on its website the
aforesaid information pertaining to candidates having criminal antecedents.
(v) The candidate as well as the concerned political party shall issue a declaration in
the widely circulated newspapers in the locality about the antecedents of the
candidate and also give wide publicity in the electronic media. When we say wide
publicity, we mean that the same shall be done at least thrice after filing of the
nomination papers.
117. These directions ought to be implemented in true spirit and right earnestness in a bid to
strengthen the democratic set-up. There may be certain gaps or lacunae in a law or legislative
enactment which can definitely be addressed by the legislature if it is backed by the proper intent,
strong resolve and determined will of right-thinking minds to ameliorate the situation. It must also
be borne in mind that the law cannot always be found fault with for the lack of its stringent
implementation by the concerned authorities. Therefore, it is the solemn responsibility of all
concerned to enforce the law as well as the directions laid down by this Court from time to time in
order to infuse the culture of purity in politics and in democracy and foster and nurture an informed
citizenry, for ultimately it is the citizenry which decides the fate and course of politics in a nation
and thereby ensures that we shall be governed no better than we deserve, and thus, complete
information about the criminal antecedents of the candidates forms the bedrock of wise
decision-making and informed choice by the citizenry. Be it clearly stated that informed choice is the
cornerstone to have a pure and strong democracy.
118. We have issued the aforesaid directions with immense anguish, for the Election Commission
cannot deny a candidate to contest on the symbol of a party. A time has come that the Parliament
must make law to ensure that persons facing serious criminal cases do not enter into the political
stream. It is one thing to take cover under the presumption of innocence of the accused but it is
equally imperative that persons who enter public life and participate in law making should be above
any kind of serious criminal allegation. It is true that false cases are foisted on prospective
candidates, but the same can be addressed by the Parliament through appropriate legislation. The
nation eagerly waits for such legislation, for the society has a legitimate expectation to be governed
by proper constitutional governance. The voters cry for systematic sustenance of constitutionalism.
The country feels agonized when money and muscle power become the supreme power. Substantial
efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with
criminal antecedents so that they do not even conceive of the idea of entering into politics. They
should be kept at bay.

119. We are sure, the law making wing of the democracy of this country will take it upon itself to cure
the malignancy. We say so as such a malignancy is not incurable. It only depends upon the time and
stage when one starts treating it; the sooner the better, before it becomes fatal to democracy. Thus,
we part.
120. The writ petitions and the criminal appeals are disposed of accordingly.
.CJI.
(Dipak Misra) .J.
(Rohinton Fali Nariman) .J.
(A.M. Khanwilkar) ......J.
(Dr. D.Y. Chandrachud) ......J.
New Delhi; (Indu Malhotra)

September 25, 2018

P.N. Krishna Lal And Ors. Etc. Etc vs Govt. Of Kerala And Anr. Etc. Etc on 17 November, 1994

Bench: K. Ramaswamy, N. Venkatachala
CASE NO.:
Appeal (civil) 565 of 1994
PETITIONER:
P.N. KRISHNA LAL AND ORS. ETC. ETC.
RESPONDENT:
GOVT. OF KERALA AND ANR. ETC. ETC.
BENCH:
K. RAMASWAMY & N. VENKATACHALA
JUDGMENT:
JUDGMENT 1994 SUPPL. (5) SCR 526 The Judgment of the Court was delivered by K.
RAMASWAMY, J. Leave granted in S.L. Ps. No. 10248, 9079, 13769/94 and S.L.P. No..................
(CC No. 25558/94).
A Division Bench of the Kerala High Court, by its common judgment dated December 10, 1993 in
O.P. No. 4637/89 and batch since upheld the constitutionality of ss. 57A and 57B inserted by the
Abkari (Amendment) Act 21 of 1984 in the Amendment Act into the Abkari Act 1 of 1077 (for short
'the Act'), the correctness of that judgment is questioned in this appeal.
The facts lie in a short compass:-
The appellants are licencees of arrack or Indian made foreign liquor retail shops or their employees.
They have been charged for offences punishable under one or other sub-ss. (1) to (3) of s. 57A for
having mixed or permitted mixing of noxious substance with liquor or for having failed to take
reasonable precautions to prevent such mixing or for being in possession of liquor in which such a
noxious substance has been mixed with the knowledge that arrack or Indian made foreign liquors
were mixed with methanol (methyl alcohol), a substance which, on consumption, is likely to
endanger human lite or causes grievous hurt to human beings or causes death. Therefore, when the
appellants were charged for all or any of the offences in one or the other case, before competent
criminal courts, the constitutionality of the said two provisions of the Amendment Act was assailed.
It is the case of the appellants that though they are dealers in arrack or Indian made foreign liquors
either selling in retail shops or under their management, such arrack or Indian made foreign liquor
was being supplied by the appropriate agencies controlled by the State or regulated under the Act
They secured the supply only from those recognised sources in sealed bottles or containers. They did
not mix noxious substance nor permitted mixing of any noxious substance with arrack or Indian
made foreign liquor. As such, there was no occasion for them to take any reasonable precaution to
prevent such mixing or for being in possession of such arrack or liquor mixed with noxious

substance with such knowledge and that, therefore, they had not committed all or any of the
offences. However, before being proceeded with the trial of the offences they filed writ petitions
under Art. 226 challenging the constitutionality of the aforesaid two provisions, which as said
earlier, were upheld by the High Court.
Section 3 (10) of the Act defines 'liquor' as including spirits of wine, methylated spirits, spirits, wine,
toddy, beer, and all liquids consisting of or containing alcohol. Section 3 (14) defines 'intoxicating
drugs' means
(i) the leaves, small stalks and flowering or fruiting tops of the Indian hemp plant (Conhabis Sativa
L), including all forms known as bhang, siddhi or ganja; (ii) Chants, that is, the resin obtained from
the Indian hemp plant, which has not been submitted to any manipulations other than those
necessary for packing and transport; (iii) any mixture, with or without natural materials, of any of
the above forms of intoxicating drug, or any drink prepared therefrom; and (iv) and other narcotic
substance which the (Government) may, by notification, declare to be an intoxicating drug, such
substance not being opium, coca leaf, or a manufactured drug, as defined in s. 2 of the Dangerous
Drugs Act, 1930. Sections 6 to 11 in Part III regulate import, export and transport of liquor or
intoxicating drug by a permit issued in that behalf. Part IV deals with manufacture, possession and
sale of liquor or intoxicating drug in accordance with the provisions of the Act. (Vide Sections 12A
and 12B). Sub-s (2) of s. 12B expressly postulates that "no person shall possess any preparation
containing liquor or intoxicating drug, other man a medicinal preparation for the bona fide
treatment, mitigation or prevention of disease in human beings or animals, in excess of the quantity
specified by the Commissioner." Section 13 prohibits possession of liquor or intoxicating drug in
excess of the prescribed quantity. Section 13 A is a facet thereof. Section 15 prohibits sale without
licence of liquor or intoxicating drug. Section 18A gives power to the Government to grant exclusive
privilege or other privileges to manufacture or supply by wholesale or of selling by retail or of
manufacturing or supplying by wholesale and selling by retail any liquor or intoxicating drugs
within the specified local area, the amount of rental in that behalf fixed from time to time and the
collection thereof, in addition to the duty or tax leviable under ss. 17 and 18. Chapter VI and VII
prescribe the forms and conditions of licenses, etc. Chapter VIII deals with the powers and duties of
officers including searches and seizures of the offending contra-band and the follow-up actions in
furtherance thereof. It is thus clear that manufacture, possession, trade and business of liquor and
intoxicated drug is the privilege of the State and no one has a right de hors the Act, for manufacture,
possession or sale of them except on a licence granted in that behalf by the competent officer in
accordance with the provisions of the Act and the rules made thereunder and according to the
conditions of licence. In other words, it is a regulated trade or business.
Chapter IX deals with penalties. Sections 55 to 57 deal with offences committed under the Act.
Section 57, in particular, prohibits adulteration, etc., by licensed vendor or manufacturer of the
liquor or intoxicating drug. Clause (a) excludes from its operation of the offence, namely, mixing or
permitting mixing of any liquor or intoxicating drug, sold or manufactured by the licensed vendor or
manufacturer with any other noxious drug or any foreign ingredients likely to add to its actual or
apparent intoxicating quality or strength, or any article prohibited under the Act from its purview,
Abkari Ordinance 37 of 1983 was issued by the Governor on November 1, 1982 bringing on statute

ss. 57A and 57B and the Ordinance was replaced by the Amendment Act with retrospective effect
from the said date. Sections 57A and 57B read thus:
"5 7-A. For adulteration of liquor or intoxicating drug with noxious substances, etc. (i) whoever
mixes or permits to be mixed any noxious substance or any substance which is likely to endanger
human life or to cause grievous hurt to human life or to cause grievous hurt to human beings, with
any liquor or intoxicating drug shall, on conviction, be punishable.
(i) If, as a result of such act, grievous hurt is caused to any person, with imprisonment for a term
which shall not be less than two years but which may extend to imprisonment for life, and with fine
which may extend to fifty thousand rupees;
(ii) if, as a result of such act, death is caused to any person, with death or imprisonment for a term
which shall not be less than three years but which may extend to imprisonment for life, and with
fine which may extend to fifty thousand rupees;
(iii) in any other case, with imprisonment for a term which shall not be less than one year, but which
may extend to ten years, and with fine which may extend to twenty-five thousand rupees;
Explanation- For the purposes of this Section and Section 578, the expression "grievous hurt" shall
have the same meaning as in Section 320 of the Indian Penal Code, 1869 (Central Act 45 of 1960).
(2) Whoever omits to take reasonable precautions to prevent the mixing of any noxious substance or
any substance which is likely to endanger human life or to cause grievous hurt to human beings,
with any liquor or intoxicating drug shall, on conviction, be punishable.
(i) If as a result of such omission, grievous hurt is caused to any person, with imprisonment for a
term which shall not be less than two years but which may extend to imprisonment for life, and with
(ii) if as a result of such omission, death is caused to any person, with imprisonment for a term
which shall not be less than three years but which may extend to imprisonment for life, and with
(iii) in any other case, with imprisonment for a term which shall not be less than one year but which
may extend to ten years, and with fine which may extend to twenty five thousand rupees;
(3) Whoever possesses, any liquor or intoxicating drug in which any substance referred to in
sub-section (i) is mixed, knowing that such substance is mixed with such liquor or intoxicating drug
shall, on conviction, be punishable with imprisonment for a term which shall not be less than one
year but which may extend to ten years, and with fine which may extend to twenty-five thousand
rupees;

(4) notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of
1974), no person accused or convicted of an offence under sub-section (1) or sub-section (3) shall, if
in custody be released on bail or on his own bond, unless-
(a) the prosecution has been given an opportunity to oppose the application for such release, and
(b) where the prosecution opposes the application, the Court is satisfied that there are reasonable
grounds for believing that he is not guilty of such offence.
(5) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) - (a) where a
person is prosecuted for an offence under sub-section (i) or sub-section (2), the burden of proving
that he has not mixed or permitted to be mixed or, as the case may be, omitted to take reasonable
precautions to prevent the mixing of, any substance referred to in that sub-section with any liquor or
intoxicating drug shall be on him;
(b) where a person is prosecuted for an offence under subsection (3) for being in possession of any
liquor or intoxicating drug in which any substance referred to in subsection (I) is mixed, the burden
of proving that he did not know that such substance was mixed with such liquor or intoxicating drug
shall be on him. (emphasis supplied).
57-B. Order to pay compensation.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of
1974), the Court when passing judgment in a case calling under section 57-A may, if it is satisfied
that death or grievous hurt has been caused to any person or persons by consumption of liquor or
intoxicating drug sold in any place licensed under this Act, order the licensee of that place, whether
or not he is convicted of an offence under the said section, to pay, by way of compensation, such
amount as it appears to be just, to the legal representatives of the deceased or to the person or
persons to whom grievous hurt has been caused.
(2) Any person aggrieved by an order under sub-section (1) may, within ninety days from the date of
the order, prefer an appeal to the High Court;
Provided that no such appeal shall lie unless the amount ordered to be paid under sub-section (1) is
deposited in the Court which passed such order;
Provided further that the High Court may entertain the appeal after the expiry of the said period of
ninety days if it is satisfied that the appellant was prevented by sufficient cause from preferring the
appeal in time."
In the Statement of Objects and Reasons annexed to the Amendment Act, it was stated that the
gruesome liquor tragedy in Vaipeenkara Island in Ernakulam District of the State during the Onam
Festival of 1982 took a heavy toll of life and left many with loss of eye-sight and physical incapacity.
A Committee was constituted to suggest ways and means. It, therefore, became imperative to enact

the Amendment Act to provide severe penalty for adulteration of liquor or intoxicating drug so as to
prevent recurrence of such tragic incidents.
The first question is whether the State Legislature was competent to enact the Amendment Act.
Entry 8 of List II - State List of the Seventh Schedule to the Constitution read with Article 246(3) of
the Constitution, empowers the State Legislature to enact law relating to intoxicating liquors, that is
to say, the production, manufacture, possession, transport, purchase or sale of intoxicating liquor.
Entry 64 deal with offences against law with respect to any of the matter in List II. Entry 65 deals
with jurisdiction and powers of all Courts except the Supreme Court with respect to any of the
matters in List II. It is true that Sections 272 to 276 of the Indian Penal Code deal with punishment
for adulteration of articles of food, while the Prevention of Food Adulteration Act, 1954 also deals
with the same topic. As a procedural facet, Chapter 18 of the Code of Criminal Procedure, 1973 (for
short 'the Code') and the relevant provisions in the Evidence Act 1872 deal with adduction of
evidence and consideration thereof by the Court, in proof of the guilt or its non proof. It is not
necessary to burden the judgment with copious citation of diverse decisions on the scope of the
consideration of an entry in the 7th Schedule. In Shri Jilubhai Nan Bhai Khachar Etc, Etc. v. State of
Gujarat and Anr. Etc. Etc,, JT (1994) 4 SC 473, this Court extensively considered the scope of an
entry in the 7th Schedule and held that such entry is not a power given to the Legislature but is a
field of its legislation. The Legislature derives its power under Article 246 and other related Articles
in the Constitution, The language of an entry should be given the widest meaning fairly capable to
meet the need of the government, envisaged by the Constitution. Each general word should extend
to all ancillary or subsidiary matters which can fairly and reasonably be comprehended within it.
When the vires of an enactment is impugned, there is an initial presumption of its constitutionality.
If there exists any difficulty in ascertaining the limits of the legislative power, it must be resolved, as
far as possible, in favour of the legislature, putting the most liberal construction on the legislative
entry so that it is infra vires. Narrow interpretation should be avoided and construction to be
adopted, must be beneficial and cover the amplitude of the power. The broad liberal spirit should
inspire those whose duty it is to interpret the Constitution to find out whether the impugned Act is
relatable to one or the other entry in the relevant List. The allocation of the subjects of the entries in
the respective lists is not done by way of a scientific or logical definitions but it is a mere
enumeration of broad and comprehensive categqries. The power to legislate on a particular topic
includes the power to legislate on subjects which are ancillary to or incidental thereto or for
purposes necessary to give full effect of the power conferred by the Entry.
In determining whether the impugned Act is a law with respect to a given power, the court has to
consider whether the Act, in its pith and substance, is a law on the subject in question. If the statute
relates in pith and substance to a topic assigned to a particular legislature, the Act will not be
invalidated even if it incidentally trenches on topics coming within another legislative list The fact of
incidental encroachment does not effect the vires of the law even as regards the area of
encroachment. The court has to ascertain the true nature and character of the subject of the Act or
its pith and substance to find whether impugned Act falls within the competence of the particular
legislature. Blind adherence to strict interpretation which would lead to invalidation of statutes as
being legislated in the forbidden sphere should be avoided, lest all beneficial legislations would be
stifled at birth and many a subject entrusted to the State legislature rendered ineffectual divesting

the State legislature of its power to deal with particular subject of entry or topic.
In A.S. Krishna v. State of Madras, [1957] SCR 399, a Constitutional Bench of this Court held mat
"when the law is impugned on the ground that it is ultra vires the power of the legislature which
enacted it, what has to be ascertained is the true character of the legislation. To do that, one must
have regard to the enactment as a whole, to its objects and to the scope and effect of its provisions. If
on such examination it is found mat the legislation in substance is one on a matter assigned to the
legislature, then it must be held to be valid in its entirety, even though it might incidentally trench
on matters which are beyond its competence. It would be quite an erroneous approach to the
question to view such a statute not as an organic whole, but a mere collection of sections, then
disintegrate in into parts, examine under what heads of legislation those parts would severally fall,
and by that process determine what portions thereof are intra vires, and what are not" In that case
like the facts of this case, it was argued that sections 4 (2) and 28 and 32 of Madras Prohibition Act,
1937, were void under section 107 (1) of the Government of India Act, 1935 on the contention that
they were repugnant to the provisions of the Indian Evidence Act and the Code of Criminal
Procedure, 1898 and to Article 14 of the Constitution. This Court rejected the argument and held
that the Madras Prohibition Act would fall under Entry 31 of List II of 7th, Schedule of the
Government of India Act, 1935 and the Provincial Legislature had exclusive competence to make the
Act and it was not repugnant to section 107 (1), of 1935 Act.
A more serious contention raised on behalf of the appellants was that the High Court found, as a
fact, that the State Government, in spite of giving repeated opportunities, had not produced the file
before the Court to show that the assent of the President was expressly obtained with reference to
any of the provisions of the Evidence Act, the IPC and the Code and, therefore, the Act is void. In
that regard they placed strong reliance on Gram Panchayat of Village, Jamalpur v, Malwinder Singh,
[1985] 2 Supp. SCR 28, Minoo Framroze Balsara v. Union of India, AIR (1992) Bombay 375 and S.
Kanagaraj v. Government of Tamil Nadu, AIR (1991) Madras 182. We find no force in the
contention.
The scheme of the Act and the Amendment Act is a consistent whole regulating production,
manufacture, possession, transport, purchase or sale of intoxicating liquors. The Amendment Act
was enacted to prohibit mixing or permitting to mix methynol in arrack or intoxicated drug or
failure to take reasonable precautions to prevent acts or omissions, of mixing methynol in arrack or
intoxicated drug or to be in possession thereof with knowledge of its adulteration or to prevent
deleterious effect on the health of the consumers to prevenc grievous hurt to human beings or their
death. As a part of it, the burden of proof of the ingredients of the offence being within the special
knowledge of the accused has also been laid on the accused person. Therefore, though incidentally it
trenches into some of the provisions of the Evidence Act. the Indian Penal Code and the Code, in its
pith and substance, it is an integral scheme of the Act, which falls within Entry 8 read with Entry 64
and 65 of Schedule II of the 7th Schedule of the Constitution. Under Article 246(3), the State
Legislature was competent to enact the Amendment Act. Therefore, the assent of the President is
not necessary. Even assuming that some of the provisions incidentally trespass into the field of
operation of the central provisions falling in the Concurrent List, which empower both the
Parliament and the State Legislature to enact the law, the assent given by the President made

Sections 57A and 57B valid. The gazette notification of the Amendment Act has been placed before
us which shows that the President has given his assent to the Amendment Act on December 1, 1984.
Therefore, by operation of proviso to clause (2) of Article 254, the Amendment Act prevails over the
relevant provisions in the Indian Evidence Act, IPC and the Code in relation to the State of Kerala.
It is not the requirement of law under Article 254 that the State Government should seek assent of
the President in respect of each and every specified provisions of the Central Act or Acts in respect of
which there would be inconsistency or repugnancy in the operation of the Central provisions and the
State enactment. It is enough that once the assent of the President is sought and given to the State
amendment, though to some extent inconsistency or repugnancy exists between any provision, part
or parts of any Act or Acts of any Central Statutes, the repugnancy or inconsistency ceases to operate
in relation to the State in which the assented State Government operates.
In Jamalpur Gram Panchayat case, the facts were that specific assent of the President was sought,
namely, Article 31 and Article 31-A of the Constitution vis-a-vis Entry 18 of List II of the 7th
Schedule of the Constitution. The President had given specific assent. The Shamlat-deh lands in
Punjab were owned by the proprietors of the village, in proportion to their share in the property of
the lands held by them. After the partition, the proprietary interests in the lands of the migrants and
proportionate to share of their lands vest in the Union of India. The question arose whether the
Punjab Village Common Lands (Regulation) Act, 1953 prevails over Evacuee Property Act 1950. It
was contended that in view of the assent given by the President, the State Act prevails over the
Central Act. This. Court in that context considered the scope of the limited assent. Chandrachud, CJ,
speaking for majority, held that the Central Act, 1950 prevails over the Punjab Act, 1953 and the
assent of the President which was obtained for a specific purpose cannot be utilised for according
precedence to the Punjab Act, At page 42, placitum 'B' to 'E', this Court held that "the assent of the
President under Article 254 (2) of the Constitution is not a matter of idle formality. The President
has, at least, to be apprised of the reason why his assent is sought if, there is any special reason for
doing so. If the assent is sought and given in general terms so as to be effective for all purposes,
different considerations may legitimately arise." Thus it is clear that this Court did not intend to
hold that it is necessary that in every case the assent of the President in specific terms had to be
sought and given for special reasons in respect of each enactment or provision or provisions. On the
other hand, the observation clearly indicates that if the assent is sought and given in general terms it
would be effective for all purposes. In other words, this Court observed that the assent sought for
and given by the President in general terms could be effective for all purposes unless specific assent
is sought and given in which event it would be operative only to that limited extent.
In Minoo Framroze Balsara v. Union of India, AIR (1992) Bombay 375, it was contended that the
Public Premises Unauthorised Occupants (Eviction) Act, 1971 prevails over the Bombay Rent Act
following the ratio in Jamalpur Gram Panchayat's case but the division bench held that since special
assent of the President was sought and given in relation to the Transfer of Property Act, and Small
Causes Court Act over the Bombay Rent Act, the omission to obtain assent in relation to Eviction
Act, 1971 was eloquent and that, therefore, the Public Premises Unauthorised Occupants (Eviction)
Act, 1971 will not prevail over the Bombay Act. The ratio therein is not a general proposition of law
as contended but is confined to the factual background.

In S. Kanagaraj's case, a learned Single Judge of Madras High Court held that the scheme in Part
IV-A of the Motor Vehicles Act, 1939, was amended by Tamil Nadu Bill and sought the assent of the
President Before the assent was given, the Motor Vehicles Act, 59 of 1988 had come into force
repealing 1939 Act. The subsequent assent given by the President would not prevail over the Motor
Vehicles Act, 1988. In that context, the learned Judge held that the general assent does not save the
State enactment unless specific assent is sought for and given. The broad proposition of law therein
is not good law. Accordingly, we hold that the assent of the President in general terms is sufficient
compliance with the proviso to clause (2) of Article 254 of the Constitution.
The crucial questions canvassed with vehemence in chorus by alt the counsel for the appellants are
the validity of section 57-A and 57-B on the anvil of Articles 20 (3), 14 and 21 of the Constitution,
Before adverting to their contentions, it is necessary to keep in forefront the need for the
amendments, the ingredients of the offences and the scope of their operation. It is common
knowledge that due to consumption of adulterated arrack or toddy with mythenol resulted in large
scale loss of valuable lives and permanent incapacity of many a place in Andhra Pradesh, Orissa,
Delhi and Rajasthan etc. The quest for deterence is to quench the greed for unjust profits and to save
precious lives of innocent consumers of arrack etc. The Amendment Act was enacted to meet the
menace, as section 57 was not effectual. Section 57-A with the marginal note, "For adulteration of
liquor or intoxicating drug with noxious substances etc. etc.' says :
(1) Whoever mixes or permits to be mixed any noxious substance or any substance which is likely to
endanger human life or to cause grievous hurt to human life or to cause grievous hurt to human
beings, with any liquor or intoxicating drug, shall, on conviction be punishable....." The ingredients
of the offence are: of mixing or permitting to mix noxious substance or any other substance with
liquor or intoxicating drug, which is likely to endanger human life or cause grievous hurt to human
life or cause grievous hurt to human beings or death when the adulterated liquor or intoxicating
drug is consumed by an individual, (i) If as a result of such act, grievous hurt is caused to any
person, then the accused on conviction, be punishable with imprisonment for a term which shall not
be less then two years bat which may extend to imprisonment for life and with fine which may
extend to Rs. 50,000. (ii) If as a result of such act, death is caused to any person, in other words, on
account of consumption of adulterated liquor or intoxicating drug mixed with noxious substance or
any other substance, the accused, on conviction, be punishable with death or imprisonment for a
term which shall not be less than three years but which may extend to imprisonment for life and
with fine which may extend to Rs, 50,000. (iih In any other case, on conviction, be punishable with
imprisonment for a term which shall not be less than one year but which may extend to ten years
and with fine which may extend to Rs. 25,000. The expression 'grievous hurt' by operation of the
Explanation to Sub-section (1) of section 57-A for the purpose of sections 57-A and 57-B, shall have
the same meaning as envisaged in section 320 of IPC. Sub-section (2) prescribes 'omission' also as
an offence postulating that whoever omits to take reasonable precaution to prevent the mixing of
any noxious substance or any other substance which is likely to endanger human life or to cause
grievous hurt to the human beings with any liquor or intoxicating drug, shall be liable for conviction.
In other words, there should be proof of the liquor or intoxicating drug mixed with noxious
substance and the person responsible for omission to take reasonable precaution to prevent mixing
of noxious substance or any substance, the consequence of which act of mixing or omission to take

reasonable precaution in that behalf to prevent the mixing of noxious substance or any other
substance which is likely to endanger human life or to cause grievous hurt to human beings or
death. On proof thereof, the accused, on conviction, shall be, (a) as a result of such omission,
grievous hurt is caused to any person, in other words, to the consumer, punishable for a term which
shall not be less than two years but which may extend to imprisonment for life and with fine which
may extend to Rs. 50,000; (b) if as a result of such omission, death is caused to any person, in other
words, to the consumer, shall be punishable for not less than three years but which may extend to
imprisonment for life and with fine which may extend to Rs. 50,000; (c) in any other case, with
imprisonment for a term which shall not be less than one year but which may extend to ten years
and with fine which may extend to Rs. 25,000, Sub-section (3) makes a person in possession of any
liquor or intoxicating drug with the knowledge that liquor or intoxicated drug was mixed with any
noxious or any oilier substance. On proof thereof, the accused found in possession of the adulterated
liquor or intoxicating drug mixed with noxious substance or any other substance, shall be liable to
conviction. On recording conviction, he would be punishable with imprisonment for a term which
shall not be less than one year but which may extend to ten years and with fine which may extend to
Rs. 25,000. In all these cases the prosecution has to prove that the arrack or intoxicated drug
contained noxious substance or any other substance. Due to consumption of adulterated liquor, it
endangered human life or caused grievous hurt or death or other disability to the consumer. On
proof thereof the operation of sub-section (5) comes into play.
Sub-section (4) deals with grant of bail. In view of the constitution bench decision of this Court
upholding the constitutional validity of similar provision of TADA in Kartar Singh v. Union of India,
[1994] 3 SCC 569, the validity of sub-section (4) is no longer res Integra and that, therefore, its
validity no longer remains assailable. The need to elaborately discuss its validity is obviated.
Therefore, it is accordingly held valid and so upheld.
Sub-section (5), because of non-obstanate clause, makes inapplicable the relevant provisions in the
Indian Evidence Act as to fact proved, disproved or not proved under section 3; may presume, shall
presume and conclusive proof in section 4 and burden of proof in Chapter 7 in Part III of the
Evidence Act. The special rules of evidence envisaged under sub-section (5) of section 57-A get
attracted. Clause (a) provides that where a person is prosecuted for an offence under sub-section (1)
or (2), the burden of proof that he has not mixed or permitted to mix noxious substance or any other
substance with the liquor or the intoxicated drug or as the case may be, omitted to take reasonable
precaution to prevent the mixing of any noxious substance or any other substance falling
sub-sections (1) and (2) of section 57-A with any liquor or intoxicating drug, shall be on him. In
other words, notwithstanding the burden of proof of a fact or disproof or non-proof of the fact
envisaged in the Evidence Act, the onus of proof thereof though normally is on the prosecution, by
operation of sub-section (5) special rule of proof and its burden has been placed on the person
prosecuted for the offences mentioned in sub-sections (1) and (2) as the facts are within his
knowledge. So he has to prove that he has not mixed or has not permitted to mix or as the case may
be, had not omitted to take reasonable precaution to prevent the mixing of any noxious substance or
any other substance, referred to in sub-sections (1) and (2) of section 57-A with any liquor or
intoxicating drug. We would advert to the mode of proof and the extent of the burden of proof which
lie on the accused at a later stage.

(2) When a person is prosecuted for an offence under sub-section (3), in other words, the person
found in possession of liquor or intoxicating drug mixed with noxious substance or any other
substance, it places the burden on him to prove that he did not have knowledge that such noxious
substance or any other substance was mixed with such liquor and intoxicating drug found in his
possession. The burden of such want of knowledge shall be on him. The primary facts that the
accused was in possession of adulterated arrack or intoxicated drug and that it was an adulterated
one with noxious or other substance is on the prosecution.
Section 57-B is a concomitant culmination to the act of mixing or permitting to be mixed or failure
to take reasonable precaution in mixing or being in possession of adulterated liquor or intoxicating
drug with knowledge mat liquor or intoxicating drug was adulterated with noxious or any other
substance envisaged in section 57-A. On the Court finding that the prosecution has proved its case,
the Judge having satisfied that death or grievous hurt has been caused to the consumer or
endangered human life and finding that the death or grievous hurt has been caused or endangered
human life, by sale of the adulterated liquor or intoxicating drug in any licence placed under the Act,
the licensee becomes liable for payment of compensation. Power has been conferred upon the court
to order the licensee of that place whether or riot he is convicted of an offence under section 57-A, to
pay by way of compensation as liquidated damages such amount, as appears to be just, to be paid to
the legal representatives of the deceased or to the person or persons to whom grievous hurt has been
caused. By operation of sub-section (2), the person aggrieved by an order made under sub-section
(I), has been given right of appeal to the High Court within prescribed period of limitation. The
proviso imposes as a condition precedent that the appeal shall not lie unless the amount ordered
under sub-section (1) was deposited in the court of first instance. In other words, exercise of the
right of appeal under sub-section (2) is conditional one for pre-compliance with the order of the
court made in sub-section (1) and gives to the High Court the jurisdiction to entertain the appeal
only on proof of the deposit of the amount ordered to be made by the trial court. Since it is made a
condition precedent, the second proviso gives power and discretion to the High Court to entertain
the appeal, after the expiry of the prescribed period of limitation on the appellants' satisfying the
court that he was prevented by sufficient cause to file the appeal within time.
The contentions of the counsel for the appellants are that the universal declaration of human rights,
the civil and political rights, Convention to which India is a Member, guarantee fundamental
freedom and liberty to an accused. The procedure prescribed for trial must also stand the test of the
rights guaranteed by those fundamental human rights. In criminal jurisprudence, the settled law is
that the prosecution must prove all the ingredients of the offences for which the accused has been
charged with. The proof of guilt of the accused should be on the prosecution and be beyond
reasonable doubt. At no stage of trial, the accused is under an obligation to disprove his innocence.
Unlike in a trial of civil action, the burden of proof of a case always rests on the prosecution and it
never gets shifted. Sub-section (5) relieves the prosecution of its duty to prove its case beyond
reasonable doubt which is incumbent under the Code and the Evidence Act and makes the accused
to disprove the prosecution case. Thereby, the substantive provisions and the burden of proof not
only violate the fundamental human rights as well as fundamental right under Articles 20(3) and 14.
To place the entire burden on the accused by section 57-A (5) to prove his innocence, therefore, is
arbitrary, unjust and unfair infringing upon his right to life and unfair and unjust procedure

violating the guarantee under Article 21.
Mere possession of the arrack or intoxicated drug without proof by the prosecution that it was mixed
with noxious substance is per se arbitrary, unfair and an unconscionable procedure violating
Articles 14 and 21. A mere appearance of rash on human body due to consumption of arrack or
intoxicated drug mixed with noxious or other innocuous substance entails the offender with
minimum sentence. Intention to commit crime is sine quo non for the prosecution of an offender.
Conviction for offences under section 57-A without proof of the intention of the offender is contrary
to the settled principles of criminal jurisprudence. Sections 299 and 300 of IPC make a distinction
between culpable homicide and murder but the Amendment Act has done away with this salutary
distinction and mere death of a person by consumption of adulterated arrack, makes the offender
liable for conviction and imprisonment for life or penalty of death. Mere negligence in taking
reasonable precaution to prevent mixing noxious substance or any other substance with arrack or
Indian made foreign liquor or intoxicated drugs is made punishable with minimum sentence is
harsh, unjust and excessive punishment offending Articles 14 and 21. Exclusion of proof of any
mitigating circumstances, want of intention or non-serious or trivial consequences ensued by
consumption of adulterated arrack etc. are totally excluded from consideration by me court in
awarding sentence which would violate Fundamental Rules of fair procedure guaranteed under
Articles 21 and 14. Even the culpability of the negligence proved under section 304- A while giving
discretion to criminal court to impose lesser sentence, is taken away in the garb of mandatory
deterrent sentence prescribed in section 57-A, compensatory justice envisaged in section 57-B is
obnoxious to fair trial. The consequential omission or failure to deposit the compensation awarded
as a condition to exercise right of appeal is also Unfair, unjust and illusory offending Articles 14 and
21, The presumptions envisaged in sub-section (5) of section 57-A per se violate the fundamental
rights and universal declaration. Mere possession of adulterated liquor without any intent to sell, to
become a presumptive evidence to impose punishment without the prosecution proving that the
person in possession was not a bona fide consumer or had its possession without animus to sell for
consumption and place the burden on the accused to prove his innocence is procedure, which is
unjust and oppressive violating the cardinal principles of proof of crime beyond reasonable doubt.
Absence of proportionality in imposition of the sentences consistent with the proved guilt under
section 57-A is also arbitrary and unfair. The extreme penalty of death by section 57-A (I) (ii)
without proof of intention or knowledge to cause the death which is an essential pre- requisite
ingredient both for culpable homicide or murder defined in sections 299 and 300 of IPC, violates
the rights guaranteed under Articles 14 and 21 of the Constitution and is grossly disproportionate to
the proved guilt of the accused. Any provision which imposes penalty by resorting to statutory
presumption is per-se unconstitutional. There should always be proof of culpable mandatory state of
mind on the part of the accused to impose maximum punishment of death which is rarest of the rare
cases for extremely cruel crime but the innocent man charged under section 57-A and B is made to
prove his innocence or else he would be liable to be sentenced to death or other minimal sentence.
Therefore, it would be a savage punishment anathema to civilised jurisprudence. The violation of
the constitutional mandate that no person shall be deprived of the life or personal liberty without
complying with the mandatory provisions of Articles 21 and 14, is writ large.

Compelling the accused to prove the facts constituting offence under section 57-A by operation of its
sub-section (5) is opposed to the mandate of Article 20(3), amounts to and compels him to be a
witness to prove his innocence, A reading of the provisions in section 57-A and 57-B do establish
that there is no rational relation or nexus with the object sought to be achieved by the Amendment
Act. The provisions of Prevention of Adulteration Act provide an elaborate procedure to take
samples of the articles of food for getting tested its adulteration and the absence of such procedure
either in the Amendment Act or in the Act and no rules having been made in that behalf, the
procedure is arbitrary, unjust and unfair offending Articles 14 and 21 of the Constitution. Mere
mixing or permitted to mix noxious or other substance with liquor or intoxicated drug itself was
made an offence without the same being exposed for sale or intended for sale or consumed and
consumption by the person is contrary to the notions of fair criminal jurisprudence. Absence of
burden on prosecution to prove these essential ingredients, makes the Amendment Act totally
arbitrary and per se unjust violating Articles 14, 19 and 21. The presumption by section 57-A(5) read
with section 57-A(3) that a person in possession of adulterated liquor is presumed to know mat the
same is mixed with noxious substance is harsh and cruel since as a bona fide purchaser of liquor for
consumption would also be a person in possession of the liquor or intoxicated drug without any
knowledge that it was mixed with or permitted to be mixed with noxious or any other substance and
it does not satisfy the test of rational connection. We have given our anxious and deep consideration
to the diverse aspects projected forcefully by all the learned counsel and we find that they are
unacceptable and if given credence, they would frustrate the very object of the Amendment Act.
Article 20 (3) of the Constitution protects that "no person accused of any offence shall be compelled
to be a witness against himself." Article 21 envisages that "no person shall be deprived of his life or
personal liberty except according to the procedure established by law." Article 14 provides equality
and equal protection of the laws to a person. R.C. Cooper v. Union of India, [1970] 3 SCR 530,
accentuated the efficacy of meaningful right to life guaranteed by Article 21 to full blossom and the
fairness of the procedure for its deprivation have been woven with civilised jurisprudence treating
all the relevant Articles in Part III as an integral stream of rights to make the dignity of the person
meaningful with unimpeaded flow of fair justice to every person and to make each right in its
conjoint operation an effective tool in that process. Equally the founding fathers of the Constitution
structured the scheme in the Constitution in such a way that not only the liberty, equality and
fraternity, i.e. trinity would always blossom and enliven the flower of human dignity in harmony
with social good. In Kartar Singh v. State of Punjab, [1994] 3 SCC 569 at 715, it was held that
freedom cannot last long unless it is coupled with order, freedom can never exist without order,
freedom and order may coexist. It is essential that freedom should be exercised under authority and
order should be enforced by authority which is vested solely in the executive. Liberty of individual
should be subject to social control otherwise it would become anti-social and would undermine the
security of the State. The individual has to grow within the social confines preventing his unsocial or
unbridled growth which could be done by reconciling individual liberty with social control. Liberty
must be controlled in the interest of the society but the social interest must never be overbearing to
justify total deprivation of individual liberty. Liberty cannot stand alone but must be paired with a
companion virtue; liberty and morality; liberty and law; liberty and justice; liberty and common
good; liberty and responsibility which are concomitants for orderly progress and social stability.
Man being a rational individual has to live in harmony with equal rights of others and more

differently for the attainment of antithetic desires. This intertwined network is difficult to delienate
within defined spheres of conduct within which freedom of action may be confined. Therefore,
liberty would not always be an absolute licence but must arm itself within the confines of law, In
other words, there can be no liberty without social restraint Liberty, therefore, as a social conception
is a right to be assured to all members of a society, the liberty of some must not involve the
oppression of others. If liberty be regarded a social order, the problem of establishing liberty must
be a problem of organising restraint which society has over the individual. Therefore, liberty of each
citizen is borne of and must be subordinated to the liberty of the greatest number, in other words,
common happiness is an end of the society, lest lawlessness and anarchy will tamper social weal and
harmony and powerful courses or forces would be at work to undermine social welfare and order.
Thus the essence of civil liberty is to keep alive the freedom of the individual subject to the
limitation of social control which could be adjusted according to the needs of the dynamic social
evolution. The concept of individual liberty in harmony with social order is in consonance with
universal declaration of human rights and international covenant to civil and political rights and
other allied covenants.
The reisen di-etre of the State being the welfare of the members of the society, the whole purpose of
the creation of the State would be to maintain order, health and morality by suitable legislation and
proper administration. The State has the power to prohibit trade or business which are illegal,
immoral or injurious to the health and welfare of the people. No one has the right to carry on any
trade or occupation or business which is inherently vicious and pernicious and is condemned by all
civilised societies. Equally no one could claim entitlement to carry on any trade or business or any
activities which are criminal and immoral or in any articles of goods which are obnoxious and
injurious to the safety and health of general public. There is no inherent right in crime. Prohibition
of trade or business of noxious or dangerous substance or goods, by law is in the interest of social
welfare.
Article 11 (1) of the universal declaration of Human Rights provides that everyone charged with
penal offences has a right to be presumed innocent until proved guilty according to law in a public
trial at which he has had all the guarantees necessary for his defence. Article 14(2) states that
everyone charged with a criminal offence shall have the right to be presumed innocent until proved
guilty according to law. Article 6(1) of Convention on Civil and Political Rights states that every
human being has the inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life. Article 9(1) says that everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his
liberty except on such grounds and in accordance with such procedure as is established by law.
Article 14(2) envisages that everyone charged with a criminal offence shall have the right to be
presumed innocent until proved guilty according to law and shall be entitled to minimum
guarantees detailed therein. Clause (e) thereof posits thus - "to examine, or have examined, the
witnesses against him and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him" and (g) "provides not to be compelled to testify
against himself or to confess guilt." This Court in Bachhan Singh v. Slate of Punjab, [1980] 2 SCC
684, while upholding the constitutionality of death sentence under section 302, IPC, when
contended that it violates Article 6 (1) of the Convention and the Universal Declaration of Human

Right held that both rights are substantially the same as the guarantees or prohibition contained
under Articles 20 and 21 of our Constitution. "India's commitment, therefore, does not go beyond
what is prohibited in the Constitution and the Indian Penal Code and the Criminal Procedure Code."
However, the spirit of the international convention has to be kept in view in considering the validity
of the impugned provisions and their applications.
It is true and indisputable, as contended by Sri A. Raghuvir, the learned senior counsel that the
golden rule that runs through the web of all the civilised criminal jurisprudence is that the accused is
presumed to be innocent unless he is found guilty of the charged offence. The burden to prove all the
facts constituting the ingredients of the offence against the accused beyond reasonable doubt rests
on the prosecution. If there is any reasonable doubt the accused gets the benefit of acquittal. But the
rule gets modulated with the march of time. Whether the legislature could step in and provide
exceptions, create offences and also place part of the burden of proof on the accused, where the facts
are within his special knowledge or intention is locked up in the mind of the accused to prove the
said facts is unconstitutional and violates fundamental human rights.
Under the Act, the State has absolute right to regulate production, transport, storage, possession
and sale of liquor or intoxicant drug. No person has any absolute right to sell liquor or intoxicated
drug except in accordance with law which aimed at preservation of public health as well as to raise
revenue. Dealing in liquor or intoxicant drug is, therefore, not an absolute right to business or trade
but is a regulated right in accordance with law. The Act prohibits mixing of noxious substance with
liquor or possession thereof. The State, therefore, possesses the right of complete control on all
kinds of intoxicants, namely, manufacture, collection, sale and consumption thereof. Regulation of
sale of potable liquor prevents reckless propensity for adulterating liquor to make easy gain at the
cost of health and precious life of consumer. Equally none has freedom or fundamental right to do
business in adulterated articles of food. Cognizant to the contemporaneous large scale deaths or
grievous hurt to the consumers of adulterated liquor mixed with noxious substance, the Amendment
Act aims to prevent their recurrence and accordingly it came to be made.
No civilised society, therefore, would countenance that a citizen has a fundamental right to trade or
business in activities which are criminal in its propensity, immoral, obnoxious and injurious to
health, safety and welfare of the general public. It is, therefore; a question of public expedience and
public morality that the State is fully competent to regulate the business in liquor or intoxicated
drug to mitigate its evil or to suppress it in its entirety. There is no inherent right in a citizen to
conduct business or trade in adulterated intoxicated liquor by retail or wholesale. It is, therefore,
obvious that dealing in liquor inherently pernicious or dangerous goods which endangers the
community or subversive of morale, is within the legislative competence under the Act. The State
has thereby the power to prohibit trade or business which is injurious to the health and welfare of
the public and the elimination and exclusion from the business is inherent in the nature of liquor
business. The power of the legislature to evolve the policy and its competence to raise presumptive
evidence should be considered from this scenario.
In Salabiaku v. Grance, [1988] 13 EHRR 379 at 388, the European Court of Human Rights while
dealing with the scope of Article 11 of Universal Declaration of Human Rights, the scope of the

burden of proof on the prosecution and also its placement on the accused, held that presumption of
fact or of law operate in every legal system. Clearly, the Convention of civil and political rights does
not prohibit such presumption in principle. It does, however, require the contracting states to
remain within certain limits in this respect as regards criminal law. If, as the Commission would
appear to consider paragraph 2 of Article 6 merely laid down a guarantee to be respected by the
courts in the conduct of legal proceedings, its requirements would in practice overlap with the duty
of impartiality imposed in paragraph I, Above all, the national legislature would be free to strip the
trial court of any genuine power of assessment and deprive the presumption of innocence of its
substance, if the words 'according to law' were construed exclusively with reference to domestic law.
Such a situation could not be reconciled with the object and purpose of Article 6, which, by
protecting the right to a fair trial and in particular the right to be presumed innocent, is intended to
enshrine the fundamental principle of the rule of law. Article 6(2) does not therefore regard
presumptions of fact or of law provided for in the criminal law with indifference. It requires states to
confine them within reasonable limits which take into account the importance of that is at stake and
maintain the rights of the defence. It was therefore held that providing exceptions or to place partial
burden on the accused was not violative of universal declaration of human rights or even convention
on civil or political rights.
Let us trench into the contours of comparable jurisdiction in U.K., Hong Kong, Malaysia, U.S.A.,
Australia and Canada to find the permissive limits of the burden of proof on the accused. The
celebrated judgment of the House of Lords is of Lord Sankey L.C. is Woolmington v. Director of
Public Prosecutions, (1935) A.C. 432. It was laid down at pp. 481-482 that throughout the web of the
English criminal law the golden thread is always to be seen that it is the duty of the prosecution to
prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject
also to any statutory exception.....No matter what the charge or where the trial, the principle that the
prosecution must prove the guilt of the prisoner is part of the common law of England and no
attempt to whittle it down can be entertained. This ratio was further explained in the speech of
Viscount Simon L.C. in Mancini v. Director of Public Prosecutions, (1942) A.C. 1 at 11,
Woolmington's case was explained and reinforced that the prosecution must prove the charge
beyond reasonable doubt, and, consequently, that if, on the material before the jury, there is a
reasonable doubt, the prisoner Should have the benefit of it. The rule is of general application in all
charges under the criminal law. The only exception which arises, as explained in Woolmington's,
case, is in the defence of insanity and in offences where onus of proof is specially dealt with by
statute. In Jayesena v. The Queen, (1970) A.C. 618, Lord Devlin speaking for the Privy Council,
commenting upon Woolmington's case at p. 623 stated that the House laid it down that, save in the
case of insanity or of a statutory defence, there was no burden laid on die prisoner to prove his
innocence and that it was sufficient for him to raise a doubt as to his guilt In Reg. v. Edwards [1975]
Q.B. 27, considering the Licence Act of 1964 and section 160 (1) (a), the Court of Appeal held that
when the accused was convicted of selling intoxicating liquor without the licence contrary to law and
the prosecution had not adduced any evidence to show that he did not have the licence, the Court of
Appeal held that the burden was on the defendant (accused) to prove that he held a licence and that
as he had not done so he was rightly convicted. This case followed number of precedents on the
statutory exceptions and ultimately upheld that it is no part of the duty of die prosecution to prove a
negative fact that the accused had a licence.

In Ong Ah Chuan v. Public Prosecutor, (1981) A.C. 648, a case arising from Singapore Court of
Appeal, Lord Diplock speaking for the Board considered trafficking in prohibited drug (heroin) and
the statutory presumption of trafficking under the Drugs Act, 1973 vis-a-vis, the Bill of Rights. The
accused had in his possession 15 grams of heroin in violation of section 3 of the Misuse of Drugs Act,
1973. Under section 29, the death sentence was mandatory for such an offence. Respondent was
convicted and sentenced to death which was affirmed by the Court of Appeal. Lord Diplock speaking
for the Board held that proof of the purpose for which an act is done, where such purpose is a
necessary ingredient of the offence with which an accused is charged, presents a problem with which
criminal courts are very familiar. Generally, in the absence of an express admission by the accused,
the purpose with which he did an act is a matter of inference from what he did. Thus in the case of
an accused caught in the act of conveying from one place to another the controlled drugs in a
quantity much larger than is likely to be needed for the purpose of trafficking in them, would, in the
absence of any plausible alternative explanation by him, be irresistible - even if there was no
statutory presumption such as is contained in section 15 of the Drugs Act. As a matter of common
sense die larger the quantity of drugs involved, the greater the inference that they were not intended
for the personal consumption of the person carrying them, and the more convincing evidence
needed to rebut it. Whether the quantities involved be large or small, however, the inference is
always rebuttable. The presumption, therefore, works that when an accused is proved to have had
controlled drugs in his possession and to have been moving them from one place to another, the
mere act of moving them does not of itself amount to trafficking under the Act. But if the purpose of
which they were being moved was to transfer possession from the mover to some other person at
their intended destination, the mover is guilty of the offence of trafficking under section 3. If the
quantity of controlled drugs being moved was in excess of the minimum specified for that drug in
section 15, that section creates a returnable presumption that such was the purpose for which they
were being moved, and the onus lies upon the mover to satisfy the court, upon the balance of
probabilities, that he had not Intended to part with possession of the drugs to anyone else, but to
retain them solely for his own consumption, (emphasis supplied). The constitutional validity of
presumption under section 15 was upheld holding that a generous interpretation avoiding what has
been called 'the austerity of tabulated legalism, suitable to give to individuals the full measure of the
fundamental liberties is necessary and most liberal approach to the construction of the written
constitution which is sui generis, is necessary. It was held that one of the fundamental rules of
natural justice, in the field of criminal law, is that a person should not be punished for an offence
unless it has been established to the satisfaction of an independent and unbiased tribunal that he
committed it...........What fundamental rules of natural justice do require, is that there should be
material before the court, that is, logically probative of facts sufficient to constitute the offence with
which the accused is charged. Upon the prosecution's proving that certain ads consistent with that
purpose and in themselves unlawful were done by the accused, the court shall infer that they were in
fact done for that purpose unless there is evidence adduced which on the balance of probabilities
suffices to displace the inference. The purpose with which he did an act is peculiarly within the
knowledge of the accused. There is nothing unfair in requiring him to satisfy the court that he did
the acts for some less heinous purpose if such be the fact. Presumption of this kind are a common
feature of modern legislation concerning the possession and use of things that present danger to
society like addictive drugs, explosives, arms and ammunition. Section 15, therefore, was not
inconsistent with the Constitution, at any rate so far as it relates to proved possession, with which

alone the instant cases are concerned, (emphasis supplied). Accordingly, the sentence of death
imposed by the trial and was confirmed on appeal, was affirmed. In Regina v. Hunt (Richard),
(1987) A.C. 352, when the Police Officer found in the appellant's house a paper fold containing 154
milligrams of a white powder which, when analysed, was found to be morphine mixed with caffeine
and atropin, the appellant was charged under section 5(2) of the Misuse of Drugs Act, 1971 and
section 4 of the Misuse of Drugs Act, 1973, Lord Griffiths, speaking for the House per majority,
interpreting the presumption, during the course of the speech, the learned Law Lord, held at p. 376
that whenever burden of proof is placed upon a defendant by statute the burden should, be an
evidential burden and not a persuasive burden. In order to establish the guilt the prosecution must,
therefore, prove that the prohibited substance is in the possession of the defendant. At p. 380
construing the dictum of Lord Sankey and Lord Viscount Simon L.C., it was stated that "I take the
word 'specially' to mean no more than that the onus of proof is made the subject of a statutory
provision, be this express or implied, Lord Simon was not purporting to narrow the exception
identified by Lord Sankey, but merely to repeat it. If he had intended to narrow it to express
statutory exceptions, this would have been so stated but the resultant anomaly would then have
required justification. Since, ex hypothesis, Parliament had, by necessary implication from the
words used in the statute, made known its intention, by what authority could that intention be
ignored? It is a constitutional platitude to state that where Parliament makes its intention known,
either expressly or by necessary implication, the courts must give effect to what Parliament has
provided.....Whenever it is the intention of Parliament to place a burden of proof upon the accused,
so to provide in express terms, the proposition advanced by the appellant cannot be sustained. In
Mok Wei Tak and Am. v. The Queen, (1990) 2 A.C. 333, a case arising from Hong Kong Prevention
of Bribery Ordinance (Laws of Hong Kong, 1980 rev., c.201). Sections 10 (I)
(a), the accused husband and his wife were maintaining a standard of living above that
commensurate with his official emoluments during the relevant period and on the charge of
abatement of the crime by the wife; they were convicted of the offences and the Court of Appeal
dismissed the appeal. On further appeal, the judicial committee speaking through Lord Roskill held
per majority that section 10(1) creates an offence different from the other offences enacted by Part II
of the Ordinance, It concerns with maintaining an excessive standard of living following an earlier
event, namely, corrupt acquisition of assets which has enabled those later events to take place.
Therefore, the proof of abeting or aiding the abatement was to be inferred unless proper explanation
was given. It was held that the wife failed to give that explanation, The conviction was upheld. In
Attorney General of Hong Kong v. Lee Kwong-Kut, [1993] W.L.R. 329, a case arising from Hong
Kong Court of Appeal and the High Court, the Privy Council considered Drug Trafficking (Recovery
of Proceeds) Ordinance, section 25 and Hong Kong Bill of Rights Ordinance 1991, sections 3, 8 and
11. The accused were charged under section 30 of the Summary Offences Ordinance for being in
possession of cash reasonably suspected of having been stolen or unlawfully obtained. The second
was charged for assisting another to retain the benefit of drug trafficking, contrary to section 25 of
the Drug Trafficking (Recovery of Proceeds) Ordinance. Both the accused were convicted and their
convictions were upheld. In both the cases the High Court quashed the indictment on the ground
that they were violative of Article 11 of the Bill of Rights. On appeal by the Attorney General, the
Privy Council upheld the judgment in the first case but set aside the conviction in the second case
and held that section 2 (j) is not in violation of Article 11 of Bill of Rights. The Board held that Article

11 of Bill of Rights was intended that the accused will have fair trial and that justice will be done.
Article 11(1) is always subject to implied limitation. It is not the letter of the language of the statute
-which is important but its substance and effect is material. If the prosecution retains responsibility
to prove the essential ingredient the less likely it is that an exception will be regarded as
unacceptable. In deciding- what are the essential ingredients, the language of the relevant statutory
provision will be important. (Emphasis supplied).
Analysing the ratio in the judgment of Canadian Supreme Court and Australian Reports and Article
11(1), section 30 and section 25 of the Act, it was held that the substantive effect of the statutory
provision in respect of the first accused was to place onus on him to establish that he can give an
explanation as to his innocent possession of the property which is a most significant element of the
offence. It reduces the burden on the prosecution to prove possession by the defendant and facts
from which a reasonable suspicion can be inferred that the property has been stolen or obtained
unlawfully, matters which are likely to be a formality in the majority of cases. Therefore, it was held
that it contravened Article II (1) of the Hong Kong Bill of Rights. But with regard to section 25 it was
held that under sub-section (1) of section 25, the onus is on the prosecution. Unless the prosecution
can prove that the defendant has been involved in a transaction involving the relevant person's
proceeds of drug trafficking within the wide terms of section 25(2) as set out in section 25(1) and
that at that time he had the necessary knowledge or had reasonable grounds to believe the specified
facts the defendant is entitled to be acquitted. However, once the defendant knows or has
reasonable grounds to believe that the relevant person is a person who carries on or has .carried out
drug trafficking or has benefited from drug trafficking, then the defendant knows that he is at risk of
committing an offence and that he can only safely deal with that person if he is in a position to
satisfy section 25(3) or (4). If the defendant chooses not to take the precautionary action under
section 25(3) then he knows he can only safely proceed by relying on section 25(4). To be able to
achieve this the defendant will have to take all steps necessary to ensure that he does not have the
knowledge or suspicion referred to. If the defendant has done this then he will be aware of the
relevant facts and it is reasonable that he should be required to establish them. It would be
extremely difficult, if not virtually impossible, for the prosecution to fulfill the burden of proving
that the defendant had not taken those steps. In the context of the war against drug trafficking, for a
defendant to bear that onus under section 25(4) is manifestly reasonable and clearly does not offend
Article If (I), Indeed section 30 and section 25 can be regarded as examples of situations close to the
opposite ends of the spectrum of what does and does not contravene Article 11(1). (Emphasis
supplied). Accordingly it was held that the burden of proof could not conceivably contravene Article
11(1).
In Queen v. Oakes, 26 D.L.R, (4th) 200, the Supreme Court of Canada considered the
constitutionality of the presumption engrafted in section 8 of the Narcotic Control Act, 1970 on the
anvil of section 11(d) of the Canadian Charter of Rights and Freedoms and held that the 'reverse
onus' laid down in section 8 of the Act violated the presumption of innocence guaranteed by section
ll(d) of the Charter. Since section 8 established a mandatory presumption of law and, in using the
word 'establish' imposed a legal burden of proof on the accused, and not merely an evidentiary
burden, by requiring the accused to prove on the balance of probabilities that he was not in
possession of the narcotic drug for the purpose of trafficking, it compelled him to prove that he was

not guilty of the offence of trafficking. The presumption of innocence is hallowed principle lying at
the very heart of criminal law which protects the fundamental liberty and human dignity of any and
every person accused by the State of criminal conduct. This is essential in a society committed to
fairness and social justice. It was held that the Section failed to rationalise the connection between
the basic fact of possession and the presumed fact of possession for the purpose of trafficking of
persons guilty of possession only of narcotic drugs. In Louis Beaver v. The Queen, [1957] SCR 531,
the same court held that for an offence of being in possession of Narcotic substance, the element of
knowledge formed part of the ingredient of possession when mere possession of the substance
amounted to an offence and it would be within the province of the Parliament to create an offence.
As seen, the Privy Council had-explained the rationale to strike a balance between individual liberty
and social order and court is to see whether strict construction would subserve the legislative
purpose and the Court was not inclined to adopt that strict construction. The decision of the Hong
Kong High Court in the Queen v. Sin Yau-ming, [1992] 1 Hong Kong Criminal Law Reports p. 127,
must be understood in the light of the latter decision of the Privy Council referred to hereinbefore.
In Ed Tumedy v. State of Ohio, (71) L.Ed. 510, the question arose whether certain statutes of Ohio in
providing for the trial by the Mayor for Violation of the Prohibition Act of the State, deprive the
accused of due process of law violating the 14th Amendment to the Federal Constitution. Tapt, C.J.
speaking for the unanimous Supreme Court of the United States of America held that a statute
seeking to stimulate small municipalities to organise and maintain courts to try persons accused of
violation of the prohibition law without a jury to try offenders with no review of decisions except on
matters of law and flagrant disregard of the evidence was held constitutional. There is nothing in the
Federal Constitution to prevent a State from providing such a system of courts as it chooses. There is
nothing in the 14th Amendment to the Federal Constitution that requires jury trial for every
offender. In Morrison v. California, 78 Law. Ed. (1933), the question arose whether placing the
burden of proof on a co- accused of a charge of conspiracy so as to violate the Alien Land Law of
California was violative of due process under 14th Amendment. Cardozo, J, speaking for the
unanimous court held that within the limits of reason and fairness, the burden of proof may be lifted
from the state in criminal prosecutions and cast on a defendant. The limits are in substance these,
that the State shall have proved enough to make it just for the defendant to be required to repel what
has been proved with excuse or explanation, or at least that upon a balancing of convenience or of
the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser
without subjecting the accused to hardship or oppression. Special reasons are at hand to make the
change permissible. The legislature may go a good way in raising a presumption or in changing the
burden of proof, but there are limits. What is proved must be so related to what is inferred in the
case of a true presumption as to be at least a warning signal according to the teachings of
experience. It is not within the province of a legislature to declare an individual guilty or
presumptively guilty of a crime. Presumption that are not evidence in a proper sense but simply
regulations of the burden of proof. Accordingly it was held that placing the burden on the accused to
prove lack of guilty knowledge was held to be not violative of due process of 14th Amendment In
United States v. Gainey, 13, Law. Ed. 2nd. p. 659 (1965), in a prosecution to carry on an illegal
distilling businesses, the court instructed the jury that the unexplained presence of the accused at
the sight of illegal distilling business is sufficient evidence to authorise conviction of the offences
unless the accused explains his presence to the satisfaction of the jury, whether unconstitutional and

section 26 USC 5601 (b) (2), violates due process of 14th Amendment Steward, J. expressing the
opinion for majority by seven Members of the Court held that the statutory inference is
constitutional. The purpose of section 26 USC 5601 (b) (1) and (2) is to provide that the unexplained
presence of an accused at the sight where an unregistered distilling apparatus is set up or an illegal
distilling business is carried out shall be sufficient evidence to authorise conviction, is to meet the
practical impossibility of proving actual participation in such an illegal activity except by inference
drawn from the accused's presence when the illegal acts were committed. The constitutionality of
legislation authorising an inference from the certain facts depends on the rationality of the
connection between facts proved and the ultimate fact presumed. Significant weight should be
accorded to the capacity of Congress to amass the stuff of actual experience and cull conclusions
from it in matters not within specialised judicial competence or completely common place. An
unexplained presence of an accused at a place where an illegal distilling business is carried on shall
be deemed to be sufficient evidence to authorise conviction for illegal carrying on the business of
distilling permits. A judge is to submit a case to the jury on the basis of the accused's presence alone
but where presence is the only evidence it does not require a judge to submit the case to the jury nor
preclude the grant of a judgment, notwithstanding the verdict. And the Appellate Court may review
the trial judge's denial of motions for a directed verdict or for a judgment. The presumption was
held to be not unconstitutional violating due process of law. James Turner v, United States, 396 US
398 (1970) 24 L.Ed. 2nd, 610, the defendant was tried before a jury on a charge with (1) knowingly
receiving, concealing, and transporting heroin and cocaine which he knew that it had been illegally
imported, and (2) knowingly purchasing, disposing, and distributing heroin and cocaine which were
not in or from the original stamped package. The evidence indicated that the defendant had been in
possession of a 14.68 gram package containing a cocaine with sugar mixture and a 48.25 gram
package containing 275 bags of heroin, and that no federal tax stamps were affixed to the packages.
No evidence was presented as to the origin of the cocaine or heroin, and the defendant did not
testify. Relying upon the presumption the trial judge instructed the jury that the defendant's
unexplained possession of the heroin and cocaine would support an inference that he knew that they
had been illegally imported and the defendant's possession of heroin and cocaine which were not in
a stamped package constituted prima facie evidence that he knowingly purchased, dispensed or
distributed such heroin and cocaine. On finding guilty on all the counts by the jury on conviction
and affirmation by the Court of Appeal, on eertiorari, White J. speaking for the majority affirmed
the conviction involving heroin and held that all heroin consumed in the United States is illegally
imported and the jury would properly infer, as authorised by statute, that the heroin in the
defendant's possession had been illegally imported and the defendant had knowledge of its illegal
importation. The evidence of the defendant's possession of 275 bags of heroin was sufficient to
support his conviction for distributing such heroin because it was extremely unlikely that a package
containing heroin would be legally stamped and because most persons in possession of heroin could
be presumed to have obtained it by purchase, the defendant was properly convicted for purchasing
heroin which was not in or from the original stamped package. But since cocaine was being also
cultivated in the United States, it was held that from mere possession the statutory presumption of
unlawfully procured or to infer that cocaine in the defendant's possession had been illegally
imported and that he had knowledge of its illegal importation cannot be sustained unless there is
some evidence adduced by the prosecution. The ratio in Lawry's case was followed. In Barnes v.
United States, 412 US 837 (1973), 37 Law. Ed. 2nd, 381, in a prosecution on a charge of being in

possession of US Treasury checks from the mails knowing them to be stolen, the trial court
instructed the Jury that ordinarily it would be justified in inferring, from the defendant's
unexplained possession of the recently stolen property, that he possesses the mails with knowledge
that it was stolen. On finding guilty by the jury and on conviction and affirmation by the Dist. Court
and the US Court of Appeal on the federal side, on certiorari, Powell, J. speaking for the majority,
held that a statutory inference submitted to the jury has sufficient to support Conviction accords
with due process if it satisfies the reasonable doubt standard that the evidence necessary to invoke
the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt as
well as the more-likely-than-not standard that is, it can be said with substantial assurance that the
presumed fact is more likely than not to flow from the proved fact on which it is made to depend.
Although the introduction of any evidence, direct or circumstantial tending to implicate the accused
in the alleged crime increases the pressure on him to testify, the mere massing of evidence against
an accused cannot be regarded as a violation of his privilege against self- incrimination. The
inference from the accused's unexplained possession of recently stolen property, though he knew
that it was stolen, does not infringe his privilege against self-incrimination and it may not be fairly
understood as a comment on his failure to testify. Where there is rational connection between the
facts proved and the facts presumed or inferred, it is permissible to shift the burden of going
forward to the defendant where an inference satisfies the reasonable doubt standard. In County
Court of Ulster, New York v. Samuel Allen, 442 US 140 (1979), 60 Law. Ed. 2nd, 777, three adult
males and a 16 year old girl were jointly tried on charges that they illegally possessed two loaded
hand-guns which had been found in a car in which they were riding by a police officer who had
stopped the auto for speeding, the handguns having been positioned crosswise in the girl's open
handbag on either the front seat or floor of the car where the girl had been sitting, the trial judge
instructed the jury that subject to certain exceptions, that the presence of a firearm in an auto is
presumptive of its illegal possession by all persons then occupying the vehicle and that it was
entitled to infer the defendants' possession of the handguns from their presence in the car, tending
to support or contradict such inference, and that it was to decide the matter for itself without regard
to how much evidence the defendants introduced. On finding guilty by the jury and conviction
followed and affirmed by Court of Appeal, in a certiorari Stevens, J., joined by Burger Ch. J., and
White Blackmun, and Rehnquist, JJ., it was held that defendants' claim that it was unconstitutional
for fee State to rely on the presumption because the evidence was otherwise insufficient for
conviction had not been rejected by the State courts on the basis of an independent and adequate
State procedural safeguards. It was held that the most common evidentiary device is the entirely
permissible inference or presumption which allows, but does not require, the trier of fact to infer the
elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind
on the defendant. The basic fact may constitute prima facie evidence of the elemental fact, A state
statutory presumption, providing that the presence of a firearm in an automobile is generally
presumptive evidence of its illegal possession by all persons occupying the vehicle, is not violative of
the due process under the United States Constitution.
For the purposes of the constitutionality, in terms of due process, a statutory presumption regarding
a criminal matter, a presumption need not be accurate in every imaginable case. For the purpose of
due process, the validity of inferences and presumptions varies from case to case, depending on the
strength of the connection between the particular basic and elemental facts involved and on the

degree to which the device curtails the feet finder's freedom to assess the evidence independently. In
criminal cases, the ultimate test of any device's constitutional validity in a given case is that the
device must not undermine the defendant's responsibility at trial, based on evidence adduced by the
state, to find the ultimate facts beyond a reasonable doubt. An inference or presumption involved in
a case is permissive or mandatory for the purpose of analysing its validity in terms of due process
was held not violative of due process. Same view was reiterated in Herman Solem v. Jerry Buckley
Helm, 463 US 277 (1983) 77 Law. Ed. 2nd. 637. In Timothy F. Leary v, U.S., 395 US 6, 23 Law. Ed.
2nd. 57, the petitioner and his daughter were found in their automobile when stopped at the
American customs inspection area upon driving back across the International Bridge between the
United States and Mexico. He was found to be in possession of marijuana. When he was charged for
having knowingly transported and facilitated the transportation and concealment of marijuana
which had been illegally imported or brought into the United States, ail in violation of 21 USC I76a
and sub-section (2) upon conviction finding by the jury to be knowingly transported, concealed etc.
and confirmation by the Court of Appeal, on certiorari, Harlan, J. per majority of 7 Judges, held that
but there was no connection between the fact proved is to infer that the defendant's possession of
marijuana that he knew of the illegal importation or bringing into United States. However, it was
well settled in the United States that to import a narcotic drug contrary to law or to receive or
conceal or to facilitate any of the acts with knowledge that drug has been imported unlawfully and
also provided that the production of a narcotic drug should be deemed to authorise conviction under
the statute unless the defendant explained such satisfaction of the jury under 21 USC 174 and it was
held that it does not violate the 5th Amendment by compelling him to a witness against him. It has
to be remembered that in the Federal Constitution of USA, except the writ of certiorari, there is no
power like our Article 136 to review the legality, conviction or trial of an offender on merits. So the
Supreme Court of USA adopted due process technique and reasonable doubt standard to synthesise
the procedure and principles suitable to its judicial review.
Section 5 of the Evidence Act envisages that evidence may be given in any suit or proceeding of the
existence or non-existence of every fact in issue and such other facts as are hereinafter declared to
be relevant and no others. Illustration (a) provides that 'A' is tried for the murder of 'B' by beating
him with a club with the intention of causing his death. At A's dial, the following facts are in issue :-
A's beating B with the club;
A's causing B's death by such beating;
A's intention to cause B's death.
Section 6 provides that facts which though not in issue, are so connected with a feet in issue to form
part of the same transaction, are relevant, whether they occurred at the same time and place or at
different times and places.
Section 101 places general burden of proof postulating that whoever desires any court to give
judgment as to any legal right or liability dependent on the existence of facts which he asserts, must
prove that those facts exist Section 102 says that the burden of proof in a suit or proceeding lies on

that person who would fail if no evidence at all were given on either side. Section 105 says that if a
person is accused of any offence, the burden of proving the existence of circumstances bringing the
case within any of the General Exceptions in the Indian Penal Code or within any special exception
or proviso contained in any other part of the same Code, or in any law defining the offence, is upon
him, and the Court shall presume the absence of such circumstances. Section 6 makes another
exception, providing that any fact if to be established within the knowledge of any person, the
burden of proof is upon him. The definition of the word 'proved' says that a fact is said to be proved
when, after considering matters before it the Court either believes it to exist, or considers its
existence so probable that a prudent man ought, under the circumstances of the particular case, to
act upon the supposition that it exists. A fact is said to be not proved when it is neither proved nor
disproved. A fact is said to be disproved when, after considering the matters before it, the Court
either believes that it does not exist, or considers its non-existence so probable that a prudent man
ought, under the circumstances of the particular case, to act upon the supposition that it does not
exist It is the cardinal rule of our criminal jurisprudence that the burden in the web of proof of an
offence would always lie upon the prosecution to prove all the facts constituting the ingredients
beyond reasonable doubt. If there is any reasonable doubt, the accused is entitled to the benefit of
the reasonable doubt. At no stage of the prosecution case, the burden to disprove the fact would rest
on the defence. However, exceptions have been provided in sections 105 and 106 of the Evidence
Act, as stated hereinbefore. Section 113-A of the Evidence Act raises a presumption as to abatement
of suicide by a married woman by her husband or his relatives. Similarly section 114-A raises
presumption of absence of consent in a rape case. Several statutes also provided evidential burden
on the accused. On the general question of the burden of proof of facts within special knowledge of
the accused, this Court, in Shambu Nath Mehra v. State of Ajmer, [1956] SCR 199, laid the rule thus
:-
"Section 106 of the Evidence Act does not abrogate the well-established rule of criminal law that
except in very exceptional classes of cases the burden that lies on the prosecution to prove its case
never shifts and section 106 is not intended to relieve the prosecution of that burden. On the
contrary, it seeks to meet certain exceptional cases where it is impossible, or a proportionately
difficult, for the prosecution to establish facts which are especially within the knowledge of the
accused and which can be proved by him without difficulty or inconvenience."
In C.S.D. Swamy v. The State, [1960] 1 SCR 461, on a charge for offence under section 5(1) (a) and
5(1) (b) read with section 5(3) of the Prevention of Corruption Act, 1947, on the question of burden
of proof, this Court noticing the language in section 5(3) which reads as under :-
"In any trial of an offence punishable under sub-section (2) the fact that the accused person or any
other person on his behalf is in possession, for which the accused person cannot satisfactorily
account, of pecuniary resources or property disproportionate to his known sources of income may
be proved, and on such proof the court shall presume, unless the contrary is proved, that the
accused person is guilty of criminal misconduct in the discharge of his official duty and his
conviction therefore shall not be invalid by reason only that it is based solely on such presumption."

It was held that it does not create a new offence but only lays down a rule of evidence enabling the
court to raise a presumption of guilt in certain circumstances - a rule which is a complete departure
from the established principles of criminal jurisprudence that the burden is always on the
prosecution to prove all the ingredients of the charge and the burden never shifts to the accused to
disprove the charge framed against him. The Legislature using the expression "satisfactorily
account" in section 5(3) cast the burden on the accused not only to offer a plausible explanation as
to how he came by the large wealth disproportionate to his known sources of income, but also to
satisfy the court that his explanation was worthy of credence. The general law where it has been held
that the accused could be exculpated if he offered a plausible explanation, could have no application.
In Sajjan Singh v. State of Punjab, [1964] 4 SCR 630, the Constitution Bench considering section
5(3) held that this sub-section provides an additional mode of proving an offence punishable under
sub-section (2) for which an accused is being tried. This additional mode is by proving the extent of
the pecuniary resources or property in the possession of the accused or any other person on his
behalf and thereafter showing that this is hot disproportionate to his known sources of income, if
the accused person cannot satisfactorily account for such possession. Sub-section (3) made a
deliberate departure from the ordinary principle of criminal jurisprudence, under which the burden
of proving the guilt of the accused in criminal proceedings lies all the way on the prosecution. It
merely prescribes a rule of evidence for the purpose of proving the offence of criminal misconduct
defined in section 5(1) for which an accused person is already under trial. Sub-section (3) places in
the hands of the prosecution a new mode of proving an offence with which an accused has already
been charged.
In Harbhajan Singh v. State of Punjab, [1965] 3 SCR 235, in a prosecution under section 499 read
with exception of section 9 of IPC when the accused pleads an exception, its scope was considered
and held that under section 105 of the Evidence Act, if an accused person claims the benefit of
Exceptions, the burden of proving his plea that his case falls under the Exceptions is on the accused
but the nature and extent of the onus of proof on the accused is not the same as the nature and
extent of the onus placed on the prosecution in a criminal case. He is not required to discharge that
burden by leading evidence to prove his case beyond reasonable doubt. The test of proof beyond
reasonable doubt does not apply to the accused and if he proves by preponderance of probabilities,
the burden shifts to the prosecution which has still to discharge its original burden. Considering the
Woolmington's ratio this Court held that the principle of common law criminal law jurisprudence
would be a part of the criminal law in our country.
In Dhanvantrai Balwantrai Desai v. State of Maharasthtra, AIR (1964) SC 575, it was held that in
order to raise the presumption under sub-section (1) of section 4 of Prevention of Corruption Act,
1947, what the prosecution has to prove is that the accused has received "gratification other than
legal remuneration" and when it is shown that he has received a certain sum of money which was
not a legal remuneration, then the condition prescribed by this Section is satisfied and the
presumption there under must be raised. In C.I. Emden v. State of Uttar Pradesh, AIR (1960) SC
548, this court further held that it cannot be suggested that the relevant clause in section 4 (1) which
deals with the acceptance of any valuable thing should be interpreted to impose upon the
prosecution an obligation to prove not only that the valuable thing has been received by the accused

but that it has been received by him without consideration or for a consideration which he knows to
be inadequate. The plain meaning of this clause undoubtedly requires the presumption to be raised
whenever it is shown that the valuable thing has been received by the accused without anything
more. In V.D. Jhangcn v. State of Uttar Pradesh, [1966] 3 SCR 736, this court held that as soon as
the prosecution proves acceptance of illegal gratification, it must be held that the requirement of
section 4(1) has been fulfilled and the presumption thereunder must be raised. On the nature of the
burden of proof on the accused, this Court reiterated the test of proof on a preponderance of
probability in favour of the case of the accused and he need not prove his case beyond reasonable
doubt. The onus of proof lying on the accused person is to prove his case by preponderance of
probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still
has to discharge its original onus that never shifts.
In S.L Goswami, v. State of Madhya Pradesh, [1972] 2 SCR 948, on the general principles of burden
of proof, a bench of four Judges held at page 954 that even in cases where the defence of the accused
does not appear to be credible or is palpably false that burden does not become any the less. It is
only when the burden is discharged that it will be for the accused to explain or controvert the
essential elements in the prosecution case which would negative it. It is not however for the accused
even at the initial stage to prove something which has to be eliminated by the prosecution to
establish the ingredients of the offence with which he is charged, and even if the onus shifts upon
the accused and the accused has to establish his plea, the standard of proof is not the same as that
which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his
behalf probabilities the plea he will be entitled to the benefit of reasonable doubt. The same view
was reiterated in Kali Ram v. State of Himachal Pradesh, [1974] 1 SCR 722, by a bench of three
Judges.
In State of Mahrasthra v. Wasudeo Ramachandra Kaidalwar, [1981] 3 SCR 675, considering the
question as to the nature and extent of burden of proof under section 5 (1) (e), this court held that
the expression "burden of proof has two distinct meanings; (1) the legal burden, that is, the burden
of establishing the guilt and (2) the evidential burden, that is, the burden of leading evidence.
Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution, in
the case certain offence, the burden of proving a particular fact in issue may be laid by law upon the
accused. This burden is not so onerous as that which lies on the prosecution and is discharged by
proof of a balance of probabilities. As soon as the ingredients of offence under sections 5(1) and 5 (2)
to the extent of the pecuniary resources or property in his possession or his known sources of
income known to the prosecution are established and its proof that the property was
disproportionate to his known source of income, the offence of criminal misconduct would be
complete. The burden that shifts to the accused to satisfactorily account for possession by him of
assets disproportionate to his income. The extended nature of the burden resting on the public
servant cannot be higher than establishing case on preponderance of probability.
It is thus settled law even under general criminal jurisprudence that sections 105 and 106 of the
Evidence Act place a part of the burden of proof on the accused to prove facts which are within his
knowledge when the prosecution establishes the ingredients of the offence charged, the burden
shifts on to the accused to prove certain facts within his knowledge or exceptions to which he is

entitled to. Based upon the language in the statute the burden of proof varies. However, the test of
proof of preponderance of probabilities is the extended criminal jurisprudence and the burden of
proof is not as heavy as on the prosecution. Once the accused succeeds in showing, by
preponderance of probabilities that there is reasonable doubt in his favour, the burden shifts again
on to the prosecution to prove the case against the accused beyond reasonable doubt, if the accused
has to be convicted. From this conceptual criminal jurisprudence, question emerges whether
sub-section (5) placing the burden on the accused of the facts stated therein would offend Articles
20(3), 21 and 14 of the Constitution.
Section 315 of Code of Criminal Procedure, 1973 corresponding to section 342-A of 1898 Code,
makes an accused person to be a competent witness. He would be a competent witness and may give
evidence on oath in disproof of the charges made against him or any person charged together with
him at the same trial, provided that (a) he shall not be called as a witness except on his own request
in writing; (b) his failure to give evidence shall not be made the subject of any comment by any of
the parties or the Court or give rise to any presumption against himself or any person charged
together with him at the same trial. He, therefore, could waive his right under Article 20(3) and
tender himself as a witness, if he so chooses.
In A.S. Krishna's case, the Constitution Bench considering constitutional validity of the presumption
under section 4 (2) of the Madras Prohibition Act, 1947, held that the presumptions do not offend
the requirement as the equality before law or the equal protection of law under Article 14 as they
have to be raised against all persons against when the facts mentioned therein are established. After
Bank Nationalisation's case and Menaka Gandhi v. Union of India, [1978] 1 SCR 568, the procedure
prescribed must also stand the test of Article 21. It is settled law that the procedural as well as
substantive law must satisfy the requirements of Articles 14, 20 and 21.
In K. Veeraswamy v. Union of India, [1991] 3 SCC 655, when the constitutionality of section 5 (1) (e)
and section 5 (3) of the Prevention of Corruption Act was challenged, the Constitution Bench held
that a statute placing the burden on the accused cannot be regarded as unreasonable, unjust or
unfair nor can it be regarded as contrary to Article 21 of the Constitution as contended for the
appellant In Sanjay Dutt v. The State through C.B.I [1994] 5 SCC 410, a Constitution Bench held that
on proof of possession of firearm or ammunition and of conscious possession by the prosecution,
the unauthorised possession in notified area raises statutory presumption that it was meant for
terrorist or disruption act. Burden is on the accused to rebut the presumption. The accused has a
duty to prove non-existence of a fact essential to constitute an ingredient of an offence under section
5 of TADA. Section 5 of TADA was held to be constitutional.
In Jagmohan Singh v. State of U.P., [1973] 2 SCR 541, Constitution Bench was to consider the
validity of section 302 of IPC imposing death sentence. This court held that the decision of the court
as regards punishment is dependent upon consideration of all the facts and circumstances and that,
therefore, the crime widely differ from facts and facts and it hardly be challenged on any ground
under Article 14. In Bachan Singh's case considering the validity of the same question under Article
19(1), 14 and 21, this court held that the provisions of death penalty as an alternative punishment for
the murder under section 302 IPC is not unreasonable and it is in the public interest. It was also

held that whether an act of that penalty serves any penological purpose is a difficult, complex and
intractable issue. For the purpose of testing the constitutionality of the impugned provision on the
ground of reasonableness in the light of the Articles 19 and 21 of the Constitution, it is not necessary
to express any categorical opinion one way or the other as to which of the two antithetical views held
by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons
of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a
ground among others, for rejecting the petitioners' argument that retention of death penalty in the
impugned provision is totally devoid of reason and purpose. The provision of imposition of the
death penalty as an alternative punishment for murder, therefore, cannot be said unreasonable and
it is in the public interest. It, therefore, neither violates Article 21 or ethos of Article 19. It is also not
in violation of Article 6 of the International Covenant on Civil and Political Rights.
In Mithu, Etc. v. State of Punjab Etc. Etc., [1983] 2 SCR 690, this court held that equity and good
conscience are the hall-mark of justice. A provision of law which deprives the court of the use of its
wise and beneficent discretion in a matter of life and death, without regard to the circumstances in
which the offence was committed and therefore, without regard to the gravity of the offence, cannot
but be regarded as harsh, unjust and unfair. The legislature cannot make relevant circumstances
irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to
impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating
circumstances and inflict upon them the dubious and unconscionable duty of imposing a
pre-ordained sentence of death. It was, therefore, held that section 303 IPC imposing compulsory
death sentence on a person undergoing life imprisonment was held to be unconstitutional. This ratio
also reiterates that savage sentence is anathema to civilised jurisprudence of Article 21 and that,
therefore, court has wide discretion in imposing punishment in accordance with the magnitude of
the crime. It is for the court to decide whether the procedure prescribed by law for depriving a
person of his liberty or life is fair, just and reasonable. In Polavarapu Satyanarayana alias Narayana
v. Polavarapu Soundaryavalli and Ors., 1987 (I) Andhra Law Times 762, the Andhra Pradesh High
Court was to consider whether section 113-A of the Evidence Act was constitutionally valid under
Articles 14, 21 and 20(3) of the Constitution. The High Court held that the presumptive evidence
under section 113-A of the Evidence Act has been drawn keeping in view the paramount social
interest. They are against the interest of the specified class of offenders, husband or his relatives.
Section 113-A does not offend Article 20(3) or 21 or 14 of the Constitution. It was held that when
offences are committed within the confines of a society of marital home of woman, it becomes
intractable for the prosecution to place the entire material in that regard. It is for the Court from the
totality of the circumstances to find and hold whether the prosecution has proved its case beyond
reasonable doubt. Section 113-A does not create an offence but it is an evidential part placed on the
accused to adduce evidence in proof of a crime occurred within their confines to meet peculiar
circumstances in intractable areas. So it is neither unfair nor unjust nor unreasonable attracting
either Article 14 or Article 21 of the Constitution nor offend right to life. Article 20(3) though
accords immunity from testimonial compulsion or self-incrimination, the immunity has its own
limitation. It is open to the accused to waive the privilege. There is no prohibition to make a
voluntary confession or admission. Equally, if he volunteers to give evidence, he waives his privilege
and gives testimony on the point concerned and he has to speak the whole truth. If he enters into the
box and gives evidence, he will be subject to cross-examination upon his evidence in chief with the

same latitude as would be exercised in the case of an ordinary witness. Though the element of
compulsion is implicit in section 113-A, it is for the accused to exercise his privilege engrafted under
Article 20(3). It is optional. Production of evidence does not necessarily require the accused to
examine himself. It is enough to raise reasonable doubt on preponderance of probabilities. The
presumptive evidence under section 113-A has been drawn keeping in view of the paramount social
interest than the interest of offenders. Accordingly, its validity was upheld.
The doctrine of reading down sub-section (5) of section 57-A is not applicable to the situation
arising under the Amendment Act. Therefore, it is not necessary to deal with the decisions on
Menaka Gandhi, Kehar Singh v. Union of India, [1988] Supp 2 SCR 24, D.T.C, v. Union of India,
[1990] Supp 1 SCR 142 and Sunil Batra v. Delhi Administration, [1979] 1 SCR 392 etc. The question
of intention and the distinction between murder and culpable homicide under section 300 and 299
IPC and the doctrine of negligence and culpability under section 304-A IPC and the decisions
arising thereunder are not relevant. The question of intention bears no relevance to an offence
under section 57-A and equally of culpability or negligence. It is seen that mixing or permitting to
mix noxious substance or any other substance with liquor or intoxicated drug or omission to take
reasonable precaution or being in possession without knowledge of its adulteration for the purpose
of unjust enrichment would be without any regard for loss of precious human lives or grievous hurt.
The legislature has noted the inadequacy and deficiency in the existing law to meet the menace of
adulteration of liquor etc. and provided for new offences and directed with mandatory language
protection of the health and precious lives of innocent consumers. While interpreting the law, the
court must be cognizant to the purpose of the law and respect the legislative animation and
effectuate the law for social welfare. The legislature enacted deterrent social provisions to combat
the degradation of human conduct. These special provisions are to some extent harsh and are a
departure from normal criminal jurisprudence. But it is not uncommon in criminal statutes. It is a
special mode to tackle new situations created by human proclivity to amass wealth at the alter of
human lives. So it is not right to read down the law.
It is seen that the trial judge has been given wide discretion to impose the sentence based on fact
situation and circumstances in each case subject to minimum sentence prescribed under the Act.
The object of the Amendment Act is to put down the menace of adulteration of arrack etc. by
prescribing deterrent sentences. Individual cases like the victim suffering from rashes by
consumption of adulterated arrack etc. may be an individual hypothetical case. The statute cannot
be struck down on hypothesised individual case. Under the Code, the accused has the opportunity
before imposing sentence to adduce evidence even on sentence and has an opportunity to plead any
mitigating circumstance in his favour and it would be for the trial judge to consider on the facts
situation in each case the sentence to be imposed. All the accused are treated as a class and there is
reasonable nexus between the offence created and the case to be dealt with the procedure,
presumption and burden of proof placed on the accused, are not unjust, unfair or unreasonable
offending Articles 21 and 14. It also does hot violate Article 20(3). Section 57-A and 57-B are,
therefore, valid. The possession itself being an offence under sub-section (3) of section 57-A, in a
given case whether the accused was in possession for self, consumption for exterminating his life
would be an hypothetical case and the offence created cannot be declared to be ultra vires on its
basis. The non obstanate clause takes out the rigour, as stated earlier, from the applicability of the

provisions of the Evidence Act and that of the Code. Compensation under section 57-B is in the
nature of liquidated damages under tort to mitigate and relieve from the hardship of the victim or
next of kin. The legislature thought it expedient to provide the minimum, of course, subject to law of
damages by the aggrieved person or next of kin at the civil action. Therefore, prescription of the
damages does not violate either Article 14 or 19. It is a reasonable classification to subserve the
social good. The accused charged for the offence stand as a class and that, therefore, there is no
invidious discrimination on the proof of the charge for the punishment envisaged under the relevant
provisions of section 57-A or 57-B. Therefore, these provisions are not violative of Articles 14, 20(3)
and 21 of the Constitution. The appeals are accordingly dismissed with costs quantified as Rs.
20,000 in each appeal.

Narendra Singh & Anr vs State Of M.P on 12 April, 2004

Author: S.B. Sinha
Bench: Y.K. Sabharwal, S.B. Sinha.
CASE NO.:
Appeal (crl.) 298 of 1997
PETITIONER:
Narendra Singh & Anr.
RESPONDENT:
State of M.P.
BENCH:
Y.K. Sabharwal & S.B. Sinha.
JUDGMENT:
J U D G M E N T S.B. SINHA, J :
The Appellant No. 1 herein by reason of the impugned judgment reversing a judgment of acquittal
passed by learned Sessions Judge, Dhar on 6.1.1984 was found guilty of commission of an offence
under Section 302 of the Indian Penal Code for having committed murder of Bimlabai by throttling
on 6.5.1983 at about 5.30 p.m. at Dhanmandi, Dhar at house No. 16, Dhanmandi, Dhar as also
under Section 201 of Indian Penal Code for causing disappearance of evidence by setting her on fire
after causing her death; whereas the appellant No. 2 was found guilty of commission of an offence
under Section 201 of the Indian Penal Code The relationship between the appellants herein are son
and mother. Along with them, the husband of appellant No. 2 Hari Singh and their daughter Kusum
were chargesheeted for commission of murder of the aforementioned Bimlabai. The deceased
Bimlabai was married to the appellant No. 1 herein on or about 21.4.1982 in relation whereto the
betrothal ceremony was held in December, 1980. The appellant No. 1 after the said betrothal
ceremony was appointed as a bus conductor by the Madhya Pradesh State Road Transport
Corporation. About 4 and = months thereafter, he was suspended questioning which he filed a civil
suit.
At the relevant time, the family members of the appellants were living as tenants in a portion in the
upper storey of the house of Bansidhar, P.W.1. Daulatram, another tenant, used to reside in the
front portion in the first storey in the same house. One Moi Babu was a tenant on the front portion
in the ground floor whereas Omprakash Shukla was tenant in the rear portion thereof.
Allegedly a demand was made by the accused persons for a wrist watch and a chain of gold at the
time of marriage to which Ramsingh, PW5 (brother of the deceased) expressed his inability.
Sometimes later, the said demand was reiterated. The appellant No. 1 was eventually dismissed from
services whereafter financial assistance was allegedly given to him by Ram Singh. The marriage of
younger brother of Ramsingh, Rajendra was settled in December, 1982. His Tika ceremony was to

take place on 24.4.1983 at Indore. Ramsingh came to the house of the accused persons to invite
them and take Bimla with him to his house. For the purpose of fighting out a suit as regard the
termination of his service, Narendra allegedly asked for a sum of Rs. 2000/- from Ramsingh
wherefor he expressed his inability saying as his brother is going to be married after one month he
was not in a position to spare the amount. Allegedly, thereupon Narendrasingh and Harisingh
threatened stating "You will have to give us an amount of Rs. 2000/- otherwise we will not send
Bimla to attend the marriage ceremony of her brother Raju at Indore."
The incident in question took place on 6.5.1983. It is alleged that on 6.5.1983 at about 5 p.m. Asha,
PW7 (daughter of Daulatram) saw signs of fire coming out from the house occupied by the accused
persons. PW2 Ramkunwar Bai also noticed the fire. They gave a call to the appellants but none
replied. PW-10 Kusha Bhau and others also went to the house to extinguish fire. Thereafter the fire
brigade as also the police reached at the place of occurrence. The dead body of Bimlabai was found
lying in the kitchen of the house in burnt condition. A jerry can, its cover and a match box were also
found near the dead body in the kitchen. The autopsy on the dead body of Bimlabai was conducted
at about 8.15 p.m. on 7.5.1983.
Ram Singh, the informant came to learn about the said incident on the next day. In relation to the
said incident a First Information Report was lodged by Ram Singh PW-5 at 6.30 p.m. on 7.5.1983 in
the Police Station Dhar. The appellants herein with Harisingh and Kusum were chargesheeted
under Sections 302 and 201 read with Section 34 of the Indian Penal Code. The case thereafter was
committed to the Court of Sessions. Before the learned Sessions Judge, 17 witnesses were examined
on behalf of the prosecution; whereas 6 persons were examined as court witnesses. A plea of alibi
was put forth by the appellants herein in the trial stating that the appellant No. 1 was attending a
marriage ceremony in the house of Illias Khan, CW-3. The appellant No. 2 also raised a plea of alibi.
PW-1 Banshidhar is the owner of the house. PW-2 Ramkunwar Bai is an adjacent neighbour of the
appellants. PW-3 Harak Chand Mittal is an advocate, who lives at some distance from the house of
accused persons, had informed the police about fire on phone. PW-4 Om Prakash is also a
neighbour. He was a witness to the inquest report, site plan and seizure memo. PW-5 Ramsingh is
the first informant. PW-6 and CW-1 are the doctors who conducted the post mortem examination
over the dead body of Bimlabai. PW-7 Asha, PW-10 Kusha Bhau, PW-13 Yashoda Bai, PW-14 Gulab
Singh are the other witnesses. PW-12 Bhagwanti Bai is the sister of the deceased. The court
witnesses were not examined by the prosecution and all of them for some reason or the other were
examined as court witnesses. CW2 to CW6 sought to prove the plea of alibi of the appellants.
The Learned Sessions Judge disbelieved the prosecution case and recorded a judgment of acquittal
inter alia on the ground that as admittedly the door of the kitchen had to be broken open; and as the
death of Bimlabai presumably took place in between 4.15 p.m. and 5.30 p.m., it was impossible for
the assassin to jump from the window in the lane. Furthermore, as no person has seen the assassin,
possibly it was a case of suicide. Assuming that it was a case of murder, the learned Sessions Judge
wondered, keeping in view the place of occurrence vis-`-vis the points of possible entries thereto, as
to how the assassin of Bimla made his exodus from that room.

The learned Sessions Judge did not fully rely upon the post mortem report having regard to certain
cuttings and over-writings therein. The learned Sessions Judge opined that although no mala fide
intention could be attributed to the doctors, there existed a possibility that they committed some
mistakes in recording their opinion as regard the cause of death. It was further held that the plea of
alibi of the accused persons could neither be ignored nor said to be unreliable.
The learned Sessions Judge also disbelieved the evidence of PW-1 Bansidhar holding that from his
evidence the presence of the appellants at the place of occurrence at the relevant time had not been
proved.
The State preferred an appeal thereagainst. The said appeal was heard by a Division Bench of the
High Court comprising Justice A.B. Qureshi and Justice V.D. Gyani. Whereas Qureshi, J. despite
holding that the death was homicidal in nature, was of the opinion that the guilt of the accused
persons was not brought home; whereas Gyani, J. allowed the State appeal holding the appellants
guilty under Sections 302/34 and Section 201 of the Indian Penal Code and sentenced them to
undergo life imprisonment. In view of the difference of opinion the matter was assigned to Chitre, J.
by the Chief Justice of the High Court. By reason of the impugned judgment dated 20th September,
1996 aggreeing with the judgment of Gyani, J. the learned Judge held the appellant No. 1 to be guilty
for commission of an offence under Section 302 read with 201 of the Indian Penal Code and the
appellant No. 2 to be guilty for commission of an offence under Section 201 of the Indian Penal Code
and sentenced her to undergo three years of rigorous imprisonment. A judgment of acquittal was
recorded in favour of Harisingh whereas Kusum was although convicted for commission of an
offence under Section 201 of the Indian Penal Code but was sentenced to the period already
undergone.
It was held:
"72. Now, therefore, what comes out in the case is that:
(i) there was a demand of dowry which was not fulfilled.
Narendrasingh was annoyed.
Thus, there was motive for murder.
(ii) Vimlabai met homicidal death by throttling and thereafter was set to fire. The setting of fire must
have been with intent to cause disappearance of evidence for screening the offender;
(iii) At least three persons, i.e., Narendrasingh, Gulbadanbai and Kusum were present in the house
in the after noon and till the body was found inside the kitchen room. Had the murderer been
anybody else Vimlabai must have raised alarm. Persons in the family including these accused
persons could have also raised alarm and caused resistance to such murder;

(iv) As no alarm was raised by Vimlabai, this goes to show that the person (murderer) must have
been close relation of her and in all probability the husband.
A Hindu wife while assaulted by her husband would not cause resistance. Sometimes even alarms
are not raised unless the injuries caused are very painful and serious."
Mr. Sushil Kumar Jain, learned counsel appearing on behalf of the appellants inter alia would
submit that the preponderance of evidence not only show that the post mortem report should not
have been relied upon by the High Court having regard to the fact that the burns have been held to
be ante mortem in nature although the cause of death was said to be asphyxia. It was pointed out
that the findings of the High Court to the effect that the death was a homicidal one by asphyxia was
based on two factors:
(i) no carbon particles were found in the respiratory tract or the trachea, and
(ii) 200 CC blood was found in front of pharynx and in the part of tracheal and sub-surrounding
subcutaneous tissues.
The learned counsel would urge that the carbon particles cannot be seen with open eyes particularly
when there was blood and as such it was necessary to remove the blood by opening the skull or
through legs.
The learned counsel would further submit that presence of accused at the time of death cannot be
said to have been proved by the prosecution as the court witnesses categorically stated about their
presence at the relevant time at the house of Illias Khan. It was urged that the evidences of PW-1
Banshidhar, PW-2 Ramkunwar Bai and PW-7 Asha should not have been relied upon by the High
Court as regard presence of the appellant No. 1 having regard to the improvement/omission/
contradiction contained in their statements. The learned counsel would submit that PW-1 has been
contradicted in material particulars by Inder Dhobi CW- 5 whose presence had not been disputed by
the prosecution witness. It was pointed out that the statements of the witnesses examined on behalf
of the prosecution were recorded on the 2nd or 3rd day of the occurrence and thus the same could
not have been relied upon. Our attention had also been drawn to the fact that according to PW-1
himself he had reached his house about 5.15 p.m. whereafter he went to latrine and only after his
coming out therefrom, he noticed the fire, washed his hands, climbed on the top of shed when
Nadkar and Inder Dhobi were also present; and in that view of the matter he cannot be a witness as
regard the first part of the incident as by that time, even the doors of the kitchen had also been
broken open and people had already arrived in large number. It was further contended that it was
admitted by PW-1 that he came to know about the death of Bimlabai from Shri Mittal, which fact
also makes his statement doubtful.
As regard the finding of the High Court that Bimlabai died in between 3.00 p.m. to 5.30 p.m., Mr.
Jain would point out that the evidence of PW-1 Banshidhar, PW-2 Ramkunwar Bai and PW-7 Asha
would categorically show that the incident must have taken place after 5.00 p.m. The learned
counsel laid emphasis on the fact that admittedly water in the tap comes at 5.00 p.m. whereafter

only the fire was noticed by the witnesses examined by the prosecution.
The finding of the High Court to the effect that the appellant No. 1 after commission of the offence
locked the room inside and slipped out of the window, Mr. Jain would urge, is untenable keeping in
view the height of the window, the size of the room being 5'x 6' as also the fact that some people had
already gathered near the water tap and, thus, it would be impossible for anyone to jump from the
open space without being noticed and that too remaining unhurt.
A judgment of acquittal without any cogent and sufficient reasons should not be reversed, Mr. Jain
would argue.
The learned counsel would further submit that the prosecution has not been able to prove any
motive for commission of the offence as the prosecution witnesses accepted that the relationship
between the husband and wife was cordial and only because a sum of Rs. 2000/- was asked for the
same by itself could not be the motive on the part of the accused persons, for commission of the
offence.
Ms. Vibha Datta Makhija, learned counsel appearing on behalf of the State, on the other hand,
would support the judgment of the High Court inter alia contending that; whereas the judgment of
the learned Sessions Judge was based on surmises and conjectures, the High Court assigned
sufficient and cogent reasons for arriving at its findings. It was pointed out that in a case like the
present one, the Court should consider the matter having regard to three scenarios in mind, viz.:
(i) Suicide committed by Bimlabai;
(ii) Murder by intruder; and
(iii) Murder by the accused;
and arriving at a finding upon excluding the one or the other possibility.
The learned counsel would contend that the deceased was a young girl and in view of the fact that
she must have been having the same state of mind for more than a year and, thus, she was unlikely
to commit suicide only because she was not sent by her in-laws to attend the marriage of her
brother. In any event, having regard to the presence of ligature mark on her neck, commission of
suicide by self strangulation and thereafter setting herself on fire must be ruled out.
The learned counsel would contend that commission of murder of Bimlabai by an intruder is wholly
improbable. It was pointed out that PW-2, PW-7, CW-2 and CW-6 categorically stated that the
appellant No. 1 was at home at about 3.00-3.30 p.m. The learned counsel would contend that if the
appellants and Kusum were present in the house and if the story that immediately prior to the
occurrence the family was visited by PW-13, it is impossible for an intruder to come and commit the
offence without being noticed. The learned counsel would aruge that such an offence is not possible
to be committed without drawing the attention of others, without any noise and without any shriek

by the victim which are clear pointers to the fact that throttling of the deceased must have been
committed by somebody who was known to her and had access, and, in that view of the matter the
offender cannot be any other person but the appellant No. 1.
Ms. Makhija would contend that demand of dowry, an unhappy marriage, the threat by the
appellant No. 1 and his father and PW'5's refusal to give to the accused person the sum of Rs.
2000/- on demanded by them, establish sufficient motive for the accused persons to commit the
murder of Bimlabai and then to make the same look like a case of suicide. The burn injuries suffered
by the appellant No. 2 in hand is also a pointer to the fact, Ms. Makhija would contend, that she had
also taken part in setting fire on the deceased.
It was urged that as the plea of alibi of the appellants have not been proved and keeping in view the
proximity of time and the place of occurrence and time of murder, it can safely be presumed that the
entire occurrence took place within 10-15 minutes and it was possible for the appellant No. 1 to
come back from the House of Illias Khan and upon commission of the crime go back to his house to
show his absence. Furthermore, the burden of proof when a plea of alibi has been found to be false
lies upon the accused persons, Ms. Makhija would argue.
It is a case which, in our considered opinion, requires a broad based consideration.
We will proceed on the basis that the death of Bimlabai was a homicidal one. We will also assume
that the contents of the post mortem report is correct and, thus, the death of Bimlabai was caused
due to asphyxia. We may further assume that the appellants herein have failed to prove their plea of
alibi. What, however, is baffling to us on the manner in which the offence is alleged to have been
committed. The High Court arrived at its findings relying upon the spot map prepared by learned
trial Judge which indicates that there existed a window in the kitchen without any grill; the height
whereof from the road is said to be 11 ft. holding :
"71. From the map proved by the prosecution, the site map and the note prepared on the direction of
the Judge go to show that there were two places wherefrom a person in the kitchen and the side
room of kitchen could slip away; (i) by window which is nearly 10 to 11 feet in height from the
ground.
(It is note worthy that it is not a construction with plain wall upto 11 feet but with residential
quarters in the ground floor and therefore, it was not impossible to slip away from that window after
commission of murder), and
(ii) the other possibility that the person who committed murder came out from the gap between the
wall containing door No. 10 and 12 and the roof which was probably closed subsequently and,
therefore, marks of new constructions of the wall above the door upto roof."
The High Court, therefore, considered the escape of the assassin of Bimlabai through one of the two
gaps as possible but did not assign any reason as to how the same can be said to have been
established. Furthermore, it does not appear that such a case was made out by the prosecution.

Investigation in this behalf does not appear to have been carried out to show as to whether it was
possible for a person to climb the wall before slipping out of one of the two places mentioned by the
High Court nor any material in support thereof was brought on record. The witnesses did not say
that they had seen any foot mark of any person on the wall nor any other evidence suggests that one
of the two open places would otherwise be used by the offender as possible escape routes. If the time
of incident is taken to be nearer 5 p.m. than 3.30 p.m., it would be well nigh possible for the
appellant No. 1 to climb the wall, sneak through the open places and jump from the window to the
lane without being noticed. It also does not appear that the attention of the appellants had been
drawn by the Sessions Judge to any piece of evidence seeking their explanation thereabout in their
examination under Section 313 of the Code of Criminal Procedure. Had it been the prosecution case
that the appellant No. 1 after throttling the deceased and setting her on fire escaped through one of
the two open places mentioned by the High Court, it was obligatory on the part of the Court to give
an opportunity to the appellants to explain thereabout. Such a circumstance, had it been put to the
appellant no.1, could have been explained away by him. The appellants were, therefore, prejudiced
by not being given a chance to explain the said purported material against him. It is not a case where
no prejudice can be said to have been caused to the appellants.
The findings of the learned Sessions Judge to the effect that had any person slipped or gone away
from that window, pedestrians through the lanes must have seen such person cannot, in our
opinion, be said to be irrational warranting interference by the High Court. If the observations of the
High Court to the effect that persons going through the road do not keep a vigil on such movements,
is correct, the same by would itself give rise to some surmises keeping in view the fact that there
existed a greater possibility of the appellant no.1 being seen as his jumping from the window would
have been abnormal which would attract the attention of the persons who had assembled to take
water from the tap. We also fail to see any force in the finding of the High Court to the effect that
only because the appellant no.1 was the husband of the deceased he had a chance to throttle her all
of a sudden without any resistance. The finding of the High Court to the effect that Gulbadanbai
having sustained burn injuries in her hand, the probability of her presence at this time of setting of
fire cannot be ruled out is contradictory to its ultimate finding that she was guilty of offence only
under Section 201 of the Indian Penal Code and not under Section 302/34 thereof.
It is now well-settled that benefit of doubt belonged to the accused. It is further trite that suspicion,
however, grave may be cannot take place of a proof. It is equally well-settled that there is a long
distance between 'may be' and 'must be'.
It is also well-known that even in a case where a plea of alibi is raised, the burden of proof remains
on prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a
judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle
for reversing the judgment of acquittal by a higher Court. (See Dhanna Vs. State of M.P. (1996) 10
SCC 79, Mahabir Singh Vs. State of Haryana, (2001) 7 SCC 148 and Shailendra Pratap & Anr. Vs.
State of U.P. (2003) 1 SCC
761), which had not been adhered to by the High Court.

The entire case is based on circumstantial evidence. Pieces of circumstances, however, strong may
be, it is well- known that all links in the chain must be proved. In this case a vital link in the chain,
viz., possibility of the appellant No. 1 committing the offence, closing the door and then sneaking out
of the room from one of the two places had not been proved by the prosecution.
We, thus, having regard to the post mortem report, are of the opinion that the cause of death of
Bimlabai although is shrouded in mystery but benefit thereof must go to the appellants as in the
event of there being two possible views, the one supporting the accused should be upheld.
For the reasons aforementioned, we are of the opinion that the impugned judgment cannot be
sustained which is set aside. Accordingly, the appeal is allowed. The appellants are on bail. They are
discharged from the bail bonds.

Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors on 2 December, 2010

Author: D Bhandari
Bench: Dalveer Bhandari, K.S. Panicker Radhakrishnan
REPORTABLE
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2271 2010.

(Arising out of SLP (Crl.) No.7615 of 2009)
Siddharam Satlingappa Mhetre .....Appellant
Versus
State of Maharashtra and Others .....Respondents
JUDGMENT
Dalveer Bhandari, J.
1. Leave granted.
2. This appeal involves issues of great public importance pertaining to the importance of individual's
personal liberty and the society's interest.
3. The society has a vital interest in grant or refusal of bail because every criminal offence is the
offence against the State. The order granting or refusing bail must reflect perfect balance between
the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law
of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding
the society from the hazards of those committing crimes and potentiality of repeating the same
crime while on bail and on the other hand absolute adherence of the fundamental principle of
criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty
and the sanctity of individual liberty.
4. Brief facts which are necessary to dispose of this appeal are recapitulated as under:
The appellant, who belongs to the Indian National Congress party (for short `Congress party') is the
alleged accused in this case. The case of the prosecution, as disclosed in the First Information
Report (for short `FIR'), is that Sidramappa Patil was contesting election of the State assembly on
behalf of the Bhartiya Janata Party (for short `BJP'). In the FIR, it is incorporated that Baburao
Patil, Prakash Patil, Mahadev Patil, Mallikarjun Patil, Apparao Patil, Yeshwant Patil were supporters

of the Congress and so also the supporters of the appellant Siddharam Mhetre and opposed to the
BJP candidate.
5. On 26.9.2009, around 6.00 p.m. in the evening, Sidramappa Patil of BJP came to the village to
meet his party workers. At that juncture, Shrimant Ishwarappa Kore, Bhimashankar Ishwarappa
Kore, Kallapa Gaddi, Sangappa Gaddi, Gafur Patil, Layappa Gaddi, Mahadev Kore, Suresh Gaddi,
Suresh Zhalaki, Ankalgi, Sarpanch of village Shivmurti Vijapure met Sidramappa Patil and
thereafter went to worship and pray at Layavva Devi's temple. After worshipping the Goddess when
they came out to the assembly hall of the temple, these aforementioned political opponents namely,
Baburao Patil, Prakash Patil, Gurunath Patil, Shrishail Patil, Mahadev Patil, Mallikarjun Patil,
Annarao @ Pintu Patil, Hanumant Patil, Tammarao Bassappa Patil, Apparao Patil, Mallaya Swami,
Sidhappa Patil, Shankar Mhetre, Usman Sheikh, Jagdev Patil, Omsiddha Pujari, Panchappa Patil,
Mahesh Hattargi, Siddhappa Birajdar, Santosh Arwat, Sangayya Swami, Anandappa Birajdar,
Sharanappa Birajdar, Shailesh Chougule, Ravi Patil, Amrutling Koshti, Ramesh Patil and
Chandrakant Hattargi suddenly came rushing in their direction and loudly shouted, "why have you
come to our village? Have you come here to oppose our Mhetre Saheb? They asked them to go away
and shouted Mhetre Saheb Ki Jai."
6. Baburao Patil and Prakash Patil from the aforementioned group fired from their pistols in order
to kill Sidramappa Patil and the other workers of the BJP. Bhima Shankar Kore was hit by the bullet
on his head and died on the spot. Sangappa Gaddi, Shivmurti Vjapure, Jagdev Patil, Layappa Patil,
Tammaro Patil were also assaulted. It is further mentioned in the FIR that about eight days ago, the
appellant Siddharam Mhetre and his brother Shankar Mhetre had gone to the village and talked to
the abovementioned party workers and told them that, "if anybody says anything to you, then you
tell me. I will send my men within five minutes. You beat anybody. Do whatever."
7. According to the prosecution, the appellant along with his brother instigated their party workers
which led to killing of Bhima Shanker Kora. It may be relevant to mention that the alleged incident
took place after eight days of the alleged incident of instigation.
8. The law relating to bail is contained in sections 436 to 450 of chapter XXXIII of the Code of
Criminal Procedure, 1973. Section 436 deals with situation, in what kind of cases bail should be
granted. Section 436 deals with the situation when bail may be granted in case of a bailable offence.
Section 439 deals with the special powers of the High Court or the Court of Sessions regarding grant
of bail. Under sections 437 and 439 bail is granted when the accused or the detenu is in jail or under
detention.
9. The provision of anticipatory bail was introduced for the first time in the Code of Criminal
Procedure in 1973.
10. Section 438 of the Code of Criminal Procedure, 1973 reads as under:
"438. Direction for grant of bail to person apprehending arrest.- (1) Where any
person has reason to believe that he may be arrested on accusation of having

committed a non-bailable offence, he may apply to the High Court or the Court of
Session for a direction under this section that in the event of such arrest he shall be
released on bail; and that Court may, after taking into consideration, inter alia, the
following factors, namely:-
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a Court in respect of any cognizable
offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating
the applicant by having him so arrested, either reject the application forthwith or
issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has
not passed any interim order under this sub-section or has rejected the application
for grant of anticipatory bail, it shall be open to an officer in-charge of a police station
to arrest, without warrant, the applicant on the basis of the accusation apprehended
in such application.
(1-A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice
being not less than seven days notice, together with a copy of such order to be served on the Public
Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable
opportunity of being heard when the application shall be finally heard by the Court.
(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final
hearing of the application and passing of final order by the Court, if on an application made to it by
the Public Prosecutor, the Court considers such presence necessary in the interest of justice.
(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may
include such conditions in such directions in the light of the facts of the particular case, as it may
thinks fit, including -
(i) a condition that the person shall make himself available for interrogation by a
police officer as and when required;
(ii) a condition that the person shall not,

directly or indirectly,- make any
inducement, threat or promise to any

person acquainted with the facts of the case so as to dissuade him from disclosing
such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission
of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as
if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a

police station on such accusation, and is prepared either at the time of arrest or at
any time while in the custody of such officer to give bail, he shall be released on bail,
and if a Magistrate taking cognizance of such offence decides that a warrant should
issue in the first instance against that person, he shall issue a bailable warrant in
conformity with the direction of the Court under sub-section (1)."
Why was the provision of anticipatory bail introduced? - Historical perspective
11. The Code of Criminal Procedure, 1898 did not contain any specific provision of anticipatory bail.
Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the
question as to whether the courts had an inherent power to pass an order of bail in anticipation of
arrest, the preponderance of view being that it did not have such power.
12. The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the
necessity of introducing a provision in the Code of Criminal Procedure enabling the High Court and
the Court of Sessions to grant "anticipatory bail". It observed in para 39.9 of its report (Volume I)
and the same is set out as under:
"The suggestion for directing the release of a person on bail prior to his arrest
(commonly known as "anticipatory bail") was carefully considered by us. Though
there is a conflict of judicial opinion about the power of a court to grant anticipatory
bail, the majority view is that there is no such power under the existing provisions of
the Code. The necessity for granting anticipatory bail arises mainly because
sometimes influential persons try to implicate their rivals in false cases for the
purpose of disgracing them or for other purposes by getting them detained in jail for
some days. In recent times, with the accentuation of political rivalry, this tendency is
showing signs of steady increase. Apart from false cases, where there are reasonable
grounds for holding that a person accused of an offence is not likely to abscond, or
otherwise misuse his liberty while on bail, there seems no justification to require him
first to submit to custody, remain in prison for some days and then apply for bail."
The Law commission recommended acceptance of the suggestion.

13. The Law Commission in para 31 of its 48th Report (July, 1972) made the following comments on
the aforesaid clause:
"The Bill introduces a provision for the grant of anticipatory bail. This is substantially
in accordance with the recommendation made by the previous Commission. We
agree that this would be a useful addition, though we must add that it is in very
exceptional cases that such a power should be exercised.
We are further of the view that in order to ensure that the provision is not put to
abuse at the instance of unscrupulous petitioners, the final order should be made
only after notice to the Public Prosecutor. The initial order should only be an interim
one. Further, the relevant section should make it clear that the direction can be
issued only for reasons to be recorded, and if the court is satisfied that such a
direction is necessary in the interests of justice.
It will also be convenient to provide that notice of the interim order as well as of the
final orders will be given to the Superintendent of Police forthwith."
14. Police custody is an inevitable concomitant of arrest for non-bailable offences. The concept of
anticipatory bail is that a person who apprehends his arrest in a non-bailable case can apply for
grant of bail to the Court of Sessions or to the High Court before the arrest.
Scope and ambit of Section 438 Cr.P.C.
15. It is apparent from the Statement of Objects and Reasons for introducing section 438 in the Code
of Criminal Procedure, 1973 that it was felt imperative to evolve a device by which an alleged
accused is not compelled to face ignominy and disgrace at the instance of influential people who try
to implicate their rivals in false cases.
16. The Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to
the present section 438 Cr.P.C. The only two clear provisions of law by which bail could be granted
were sections 437 and 439 of the Code. Section 438 was incorporated in the Code of Criminal
Procedure, 1973 for the first time.
17. It is clear from the Statement of Objects and Reasons that the purpose of incorporating Section
438 in the Cr.P.C. was to recognize the importance of personal liberty and freedom in a free and
democratic country. When we carefully analyze this section, the wisdom of the legislature becomes
quite evident and clear that the legislature was keen to ensure respect for the personal liberty and
also pressed in service the age-old principle that an individual is presumed to be innocent till he is
found guilty by the court.
18. The High Court in the impugned judgment has declined to grant anticipatory bail to the
appellant and aggrieved by the said order, the appellant has approached this Court by filing this
appeal.

19. Mr. Shanti Bhushan, learned senior counsel appearing for the appellant submitted that the High
Court has gravely erred in declining the anticipatory bail to the appellant. He submitted that section
438 Cr.P.C. was incorporated because sometime influential people try to implicate their rivals in
false cases for the purpose of disgracing them or for other purposes by getting them detained in jail
for some days. He pointed out that in recent times, with the accentuation of political rivalry, this
tendency is showing signs of steady increase.
20. Mr. Bhushan submitted that the appellant has been implicated in a false case and apart from
that he has already joined the investigation and he is not likely to abscond, or otherwise misuse the
liberty while on bail, therefore, there was no justification to decline anticipatory bail to the
appellant.
21. Mr. Bhushan also submitted that the FIR in this case refers to an incident which had taken place
on the instigation of the appellant about eight days ago. According to him, proper analysis of the
averments in the FIR leads to irresistible conclusion that the entire prosecution story seems to be a
cock and bull story and no reliance can be placed on such a concocted version.
22. Mr. Bhushan contended that the personal liberty is the most important fundamental right
guaranteed by the Constitution. He also submitted that it is the fundamental principle of criminal
jurisprudence that every individual is presumed to be innocent till he or she is found guilty. He
further submitted that on proper analysis of section 438 Cr.P.C. the legislative wisdom becomes
quite evident that the legislature wanted to preserve and protect personal liberty and give impetus to
the age-old principle that every person is presumed to be innocent till he is found guilty by the court.
23. Mr. Bhushan also submitted that an order of anticipatory bail does not in any way, directly or
indirectly, take away from the police their power and right to fully investigate into charges made
against the appellant. He further submitted that when the case is under investigation, the usual
anxiety of the investigating agency is to ensure that the alleged accused should fully cooperate with
them and should be available as and when they require him. In the instant case, when the appellant
has already joined the investigation and is fully cooperating with the investigating agency then it is
difficult to comprehend why the respondent is insistent for custodial interrogation of the appellant?
According to the appellant, in the instant case, the investigating agency should not have a slightest
doubt that the appellant would not be available to the investigating agency for further investigation
particularly when he has already joined investigation and is fully cooperating with the investigating
agency.
24. Mr. Bhushan also submitted that according to the General Clauses Act, 1897 the court which
grants the bail also has the power to cancel it. The grant of bail is an interim order. The court can
always review its decision according to the subsequent facts, circumstances and new material. Mr.
Bhushan also submitted that the exercise of grant, refusal and cancellation of bail can be undertaken
by the court either at the instance of the accused or a public prosecutor or a complainant on finding
fresh material and new circumstances at any point of time. Even the appellant's reluctance in not
fully cooperating with the investigation could be a ground for cancellation of bail.

25. Mr. Bhushan submitted that a plain reading of the section 438 Cr.P.C. clearly reveals that the
legislature has not placed any fetters on the court. In other words, the legislature has not
circumscribed court's discretion in any manner while granting anticipatory bail, therefore, the court
should not limit the order only for a specified period till the charge-sheet is filed and thereafter
compel the accused to surrender and ask for regular bail under section 439 Cr.P.C., meaning thereby
the legislature has not envisaged that the life of the anticipatory bail would only last till the
charge-sheet is filed. Mr. Bhushan submitted that when no embargo has been placed by the
legislature then this court in some of its orders was not justified in placing this embargo.
26. Mr. Bhushan submitted that the discretion which has been granted by the legislature cannot and
should not be curtailed by interpreting the provisions contrary to the legislative intention. The
courts' discretion in grant or refusal of the anticipatory bail cannot be diluted by interpreting the
provisions against the legislative intention. He submitted that the life is never static and every
situation has to be assessed and evaluated in the context of emerging concerns as and when it arises.
It is difficult to visualize or anticipate all kinds of problems and situations which may arise in future.
Law has been settled by an authoritative pronouncement of the Supreme Court
27. The Constitution Bench of this Court in Gurbaksh Singh Sibbia and Others v. State of Punjab
(1980) 2 SCC 565 had an occasion to comprehensively deal with the scope and ambit of the concept
of anticipatory bail. Section 438 Cr.P.C. is an extraordinary provision where the accused who
apprehends his/her arrest on accusation of having committed a non-bailable offence can be granted
bail in anticipation of arrest. The Constitution Bench's relevant observations are set out as under:
"........A wise exercise of judicial power inevitably takes care of the evil consequences
which are likely to flow out of its intemperate use. Every kind of judicial discretion,
whatever may be the nature of the matter in regard to which it is required to be
exercised, has to be used with due care and caution. In fact, an awareness of the
context in which the discretion is required to be exercised and of the reasonably
foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial
discretion. One ought not to make a bugbear of the power to grant anticipatory bail".
28. Mr. Bhushan referred to a Constitution Bench judgment in Sibbia's case (supra) to strengthen
his argument that no such embargo has been placed by the said judgment of the Constitution Bench.
He placed heavy reliance on para 15 of Sibbia's case (supra), which reads as under:
"15. Judges have to decide cases as they come before them, mindful of the need to
keep passions and prejudices out of their decisions. And it will be strange if, by
employing judicial artifices and techniques, we cut down the discretion so wisely
conferred upon the courts, by devising a formula which will confine the power to
grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a
matter like granting anticipatory bail, as the High Court has done, it is apt to be
overlooked that even judges can have but an imperfect awareness of the needs of new
situations. Life is never static and every situation has to be assessed in the context of

emerging concerns as and when it arises. Therefore, even if we were to frame a `Code
for the grant of anticipatory bail', which really is the business of the legislature, it can
at best furnish broad guide-lines and cannot compel blind adherence. In which case
to grant bail and in which to refuse it is, in the very nature of things, a matter of
discretion. But apart from the fact that the question is inherently of a kind which calls
for the use of discretion from case to case, the legislature has, in terms express,
relegated the decision of that question to the discretion of the court, by providing that
it may grant bail "if it thinks fit". The concern of the courts generally is to preserve
their discretion without meaning to abuse it. It will be strange if we exhibit concern to
stultify the discretion conferred upon the courts by law."
29. Mr. Bhushan submitted that the Constitution Bench in Sibbia's case (supra) also mentioned that
"we see no valid reason for rewriting Section 438 with a view, not to expanding the scope and ambit
of the discretion conferred on the High Court and the Court of Session but, for the purpose of
limiting it. Accordingly, we are unable to endorse the view of the High Court that anticipatory bail
cannot be granted in respect of offences like criminal breach of trust for the mere reason that the
punishment provided therefor is imprisonment for life. Circumstances may broadly justify the grant
of bail in such cases too, though of course, the court is free to refuse anticipatory bail in any case if
there is material before it justifying such refusal".
30. Mr. Bhushan submitted that the court's orders in some cases that anticipatory bail is granted till
the charge-sheet is filed and thereafter the accused has to surrender and seek bail application under
section 439 Cr.P.C. is neither envisaged by the provisions of the Act nor is in consonance with the
law declared by a Constitution Bench in Sibbia's case (supra) nor it is in conformity with the
fundamental principles of criminal jurisprudence that accused is considered to be innocent till he is
found guilty nor in consonance with the provisions of the Constitution where individual's liberty in a
democratic society is considered sacrosanct.
31. Mr. Mahesh Jethmalani, learned senior counsel appearing for respondent no. 2, submitted that
looking to the facts and circumstances of this case, the High Court was justified in declining the
anticipatory bail to the appellant. He submitted that the anticipatory bail ought to be granted in
rarest of rare cases where the nature of offence is not very serious. He placed reliance on the case of
Pokar Ram v. State of Rajasthan and Others (1985) 2 SCC 597 and submitted that in murder cases
custodial interrogation is of paramount importance particularly when no eye witness account is
available.
32. Mr. Jethmalani fairly submitted that the practice of passing orders of anticipatory bail operative
for a few days and directing the accused to surrender before the Magistrate and apply for regular
bail are contrary to the law laid down in Sibbia's case (supra). The decisions of this Court in
Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667, K. L. Verma v. State and
Another (1998) 9 SCC 348, Adri Dharan Das v. State of West Bengal (2005) 4 SCC 303 and Sunita
Devi v. State of Bihar and Another (2005) 1 SCC 608 are in conflict with the above decision of the
Constitution Bench in Sibbia's case (supra). He submitted that all these orders which are contrary to
the clear legislative intention of law laid down in Sibbia's case (supra) are per incuriam. He also

submitted that in case the conflict between the two views is irreconcilable, the court is bound to
follow the judgment of the Constitution Bench over the subsequent decisions of Benches of lesser
strength.
33. He placed reliance on N. Meera Rani v. Government of Tamil Nadu and Another (1989) 4 SCC
418 wherein it was perceived that there was a clear conflict between the judgment of the
Constitution Bench and subsequent decisions of Benches of lesser strength. The Court ruled that the
dictum in the judgment of the Constitution Bench has to be preferred over the subsequent decisions
of the Bench of lesser strength. The Court observed thus:
".......All subsequent decisions which are cited have to be read in the light of the
Constitution Bench decision since they are decisions by Benches comprising of lesser
number of judges. It is obvious that none of these subsequent decisions could have
intended taking a view contrary to that of the Constitution bench in Rameshwar
Shaw's case (1964) 4 SCR 921"
34. He placed reliance on another judgment of this Court in Vijayalaxmi Cashew Company and
Others v. Dy. Commercial Tax Officer and Another (1996) 1 SCC 468. This Court held as under:
"........It is not possible to uphold the contention that perception of the Supreme
Court, as will appear from the later judgments, has changed in this regard. A
judgment of a Five Judge Bench, which has not been doubted by any later judgment
of the Supreme Court cannot be treated as overruled by implication."
35. He also placed reliance on Union of India and Others v. K. S. Subramanian (1976) 3 SCC 677 and
State of U.P. v. Ram Chandra Trivedi (1976) 4 SCC 52 and submitted that in case of conflict, the
High Court has to prefer the decision of a larger Bench to that of a smaller Bench.
36. Mr. Jethmalani submitted that not only the decision in Sibbia's case (supra) must be followed on
account of the larger strength of the Bench that delivered it but the subsequent decisions must be
held to be per incuriam and hence not binding since they have not taken into account the ratio of the
judgment of the Constitution Bench.
37. He further submitted that as per the doctrine of `per incuriam', any judgment which has been
passed in ignorance of or without considering a statutory provision or a binding precedent is not
good law and the same ought to be ignored. A perusal of the judgments in Salauddin Abdulsamad
Shaikh v. State of Maharashtra, K. L. Verma v. State and Another, Adri Dharan Das v. State of West
Bengal and Sunita Devi v. State of Bihar and Another (supra) indicates that none of these judgments
have considered para 42 of Sibbia's case (supra) in proper perspective. According to Mr. Jethmalani,
all subsequent decisions which have been cited above have to be read in the light of the Constitution
Bench's decision in Sibbia's case (supra) since they are decisions of Benches comprised of lesser
number of judges. According to him, none of these subsequent decisions could be intended taking a
view contrary to that of the Constitution Bench in Sibbia's case (supra).

38. Thus, the law laid down in para 42 by the Constitution Bench that the normal rule is not to limit
operation of the order of anticipatory bail, was not taken into account by the courts passing the
subsequent judgments. The observations made by the courts in the subsequent judgments have
been made in ignorance of and without considering the law laid down in para 42 which was binding
on them. In these circumstances, the observations made in the subsequent judgments to the effect
that anticipatory bail should be for a limited period of time, must be construed to be per incuriam
and the decision of the Constitution Bench preferred.
39. He further submitted that the said issue came up for consideration before the Madras High
Court reported in Palanikumar and Another v. State 2007 (4) CTC 1 wherein after discussing all the
judgments of this court on the issue, the court held that the subsequent judgments were in conflict
with the decision of the Constitution Bench in Sibbia's case (supra) and in accordance with the law
of precedents, the judgment of the Constitution Bench is biding on all courts and the ratio of that
judgment has to be applicable for all judgments decided by the Benches of same or smaller
combinations. In the said judgment of Sibbia's case (supra) it was directed that the anticipatory bail
should not be limited in period of time.
40. We have heard the learned counsel for the parties at great length and perused the written
submissions filed by the learned counsel for the parties.
Relevance and importance of personal liberty
41. All human beings are born with some unalienable rights like life, liberty and pursuit of
happiness. The importance of these natural rights can be found in the fact that these are
fundamental for their proper existence and no other right can be enjoyed without the presence of
right to life and liberty.
42. Life bereft of liberty would be without honour and dignity and it would lose all significance and
meaning and the life itself would not be worth living. That is why "liberty" is called the very
quintessence of a civilized existence.
43. Origin of "liberty"' can be traced in the ancient Greek civilization. The Greeks distinguished
between the liberty of the group and the liberty of the individual. In 431 B.C., an Athenian statesman
described that the concept of liberty was the outcome of two notions, firstly, protection of group
from attack and secondly, the ambition of the group to realize itself as fully as possible through the
self-realization of the individual by way of human reason. Greeks assigned the duty of protecting
their liberties to the State. According to Aristotle, as the state was a means to fulfil certain
fundamental needs of human nature and was a means for development of individuals' personality in
association of fellow citizens so it was natural and necessary to man. Plato found his "republic" as
the best source for the achievement of the self-realization of the people.
44. Chambers' Twentieth Century Dictionary defines "liberty" as "Freedom to do as one pleases, the
unrestrained employment of natural rights, power of free chance, privileges, exemption, relaxation
of restraint, the bounds within which certain privileges are enjoyed, freedom of speech and action

beyond ordinary civility".
45. It is very difficult to define the "liberty". It has many facets and meanings. The philosophers and
moralists have praised freedom and liberty but this term is difficult to define because it does not
resist any interpretation. The term "liberty" may be defined as the affirmation by an individual or
group of his or its own essence. It needs the presence of three factors, firstly, harmonious balance of
personality, secondly, the absence of restraint upon the exercise of that affirmation and thirdly,
organization of opportunities for the exercise of a continuous initiative.
46. "Liberty" may be defined as a power of acting according to the determinations of the will.
According to Harold Laski, liberty was essentially an absence of restraints and John Stuard Mill
viewed that "all restraint", qua restraint is an evil". In the words of Jonathon Edwards, the meaning
of "liberty" and freedom is:
"Power, opportunity or advantage that any one has to do as he pleases, or, in other
words, his being free from hindrance or impediment in the way of doing, or
conducting in any respect, as he wills."
47. It can be found that "liberty" generally means the prevention of restraints and providing such
opportunities, the denial of which would result in frustration and ultimately disorder. Restraints on
man's liberty are laid down by power used through absolute discretion, which when used in this
manner brings an end to "liberty" and freedom is lost. At the same time "liberty" without restraints
would mean liberty won by one and lost by another. So "liberty" means doing of anything one
desires but subject to the desire of others.
48. As John E.E.D. in his monograph Action on "Essays on Freedom and Power" wrote that Liberty
is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a
mature civilization.
49. A distinguished former Attorney General for India, M.C. Setalvad in his treatise "War and Civil
Liberties" observed that the French Convention stipulates common happiness as the end of the
society, whereas Bentham postulates the greatest happiness of the greatest number as the end of
law. Article 19 of the Indian Constitution averts to freedom and it enumerates certain rights
regarding individual freedom. These rights are vital and most important freedoms which lie at the
very root of liberty.
50. He further observed that the concept of civil liberty is essentially rooted in the philosophy of
individualism. According to this doctrine, the highest development of the individual and the
enrichment of his personality are the true function and end of the state. It is only when the
individual has reached the highest state of perfection and evolved what is best in him that society
and the state can reach their goal of perfection. In brief, according to this doctrine, the state exists
mainly, if not solely, for the purpose of affording the individual freedom and assistance for the
attainment of his growth and perfection. The state exists for the benefit of the individual.

51. Mr. Setalvad in the same treatise further observed that it is also true that the individual cannot
attain the highest in him unless he is in possession of certain essential liberties which leave him free
as it were to breathe and expand. According to Justice Holmes, these liberties are the indispensable
conditions of a free society. The justification of the existence of such a state can only be the
advancement of the interests of the individuals who compose it and who are its members. Therefore,
in a properly constituted democratic state, there cannot be a conflict between the interests of the
citizens and those of the state. The harmony, if not the identity, of the interests of the state and the
individual, is the fundamental basis of the modern Democratic National State. And, yet the existence
of the state and all government and even all law must mean in a measure the curtailment of the
liberty of the individual. But such a surrender and curtailment of his liberty is essential in the
interests of the citizens of the State. The individuals composing the state must, in their own interests
and in order that they may be assured the existence of conditions in which they can, with a
reasonable amount of freedom, carry on their other activities, endow those in authority over them to
make laws and regulations and adopt measures which impose certain restrictions on the activities of
the individuals.
52. Harold J. Laski in his monumental work in "Liberty in the Modern State" observed that liberty
always demands a limitation on political authority. Power as such when uncontrolled is always the
natural enemy of freedom.
53. Roscoe Pound, an eminent and one of the greatest American Law Professors aptly observed in
his book "The Development of Constitutional Guarantee of Liberty" that whatever, `liberty' may
mean today, the liberty is guaranteed by our bills of rights, "is a reservation to the individual of
certain fundamental reasonable expectations involved in life in civilized society and a freedom from
arbitrary and unreasonable exercise of the power and authority of those who are designated or
chosen in a politically organized society to adjust that society to individuals."
54. Blackstone in "Commentaries on the Laws of England", Vol.I, p.134 aptly observed that
"Personal liberty consists in the power of locomotion, of changing situation or moving one's person
to whatsoever place one's own inclination may direct, without imprisonment or restraint unless by
due process of law".
55. According to Dicey, a distinguished English author of the Constitutional Law in his treatise on
Constitutional Law observed that, "Personal liberty, as understood in England, means in substance a
person's right not to be subjected to imprisonment, arrest, or other physical coercion in any manner
that does not admit of legal justification." [Dicey on Constitutional Law, 9th Edn., pp.207-08].
According to him, it is the negative right of not being subjected to any form of physical restraint or
coercion that constitutes the essence of personal liberty and not mere freedom to move to any part
of the Indian territory. In ordinary language personal liberty means liberty relating to or concerning
the person or body of the individual, and personal liberty in this sense is the antithesis of physical
restraint or coercion.
56. Eminent English Judge Lord Alfred Denning observed:

"By personal freedom I mean freedom of every law abiding citizen to think what he
will, to say what he will, and to go where he will on his lawful occasion without
hindrance from any person.... It must be matched, of course, with social security by
which I mean the peace and good order of the community in which we live."
57. Eminent former Judge of this Court, Justice H.R. Khanna in a speech as published in 2 IJIL,
Vol.18 (1978), p.133 observed that "liberty postulates the creation of a climate wherein there is no
suppression of the human spirits, wherein, there is no denial of the opportunity for the full growth
of human personality, wherein head is held high and there is no servility of the human mind or
enslavement of the human body".
Right to life and personal liberty under the Constitution
58. We deem it appropriate to deal with the concept of personal liberty under the Indian and other
Constitutions.
59. The Fundamental Rights represent the basic values enriched by the people of this country. The
aim behind having elementary right of the individual such as the Right to Life and Liberty is not
fulfilled as desired by the framers of the Constitution. It is to preserve and protect certain basic
human rights against interference by the state. The inclusion of a Chapter in Constitution is in
accordance with the trends of modern democratic thought. The object is to ensure the inviolability
of certain essential rights against political vicissitudes.
60. The framers of the Indian Constitution followed the American model in adopting and
incorporating the Fundamental Rights for the people of India. American Constitution provides that
no person shall be deprived of his life, liberty, or property without due process of law. The due
process clause not only protects the property but also life and liberty, similarly Article 21 of the
Indian Constitution asserts the importance of life and liberty. The said Article reads as under:-
"no person shall be deprived for his life or personal liberty except according to
procedure established by law"
the right secured by Article 21 is available to every citizen or non-citizen, according to this article,
two rights are secured.
1. Right to life
2 Right to personal liberty.
61. Life and personal liberty are the most prized possessions of an individual. The inner urge for
freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not
merely a norm or a policy of the State but an essential requirement of any civilized society.

62. This court defined the term "personal liberty" immediately after the Constitution came in force
in India in the case of A. K. Gopalan v. The State of Madras, AIR 1950 SC 27. The expression
`personal liberty' has wider as well narrow meaning. In the wider sense it includes not only
immunity from arrest and detention but also freedom of speech, association etc. In the narrow
sense, it means immunity from arrest and detention. The juristic conception of `personal liberty',
when used the latter sense, is that it consists freedom of movement and locomotion.
63. Mukherjea, J. in the said judgment observed that `Personal Liberty' means liberty relating to or
concerning the person or body of the individual and it is, in this sense, antithesis of physical
restraint or coercion. `Personal Liberty' means a personal right not to be subjected to
imprisonment, arrest or other physical coercion in any manner that does not admit of legal
justification. This negative right constitutes the essence of personal liberty. Patanjali Shastri, J.
however, said that whatever may be the generally accepted connotation of the expression `personal
liberty', it was used in Article 21 in a sense which excludes the freedom dealt with in Article 19. Thus,
the Court gave a narrow interpretation to `personal liberty'. This court excluded certain varieties of
rights, as separately mentioned in Article 19, from the purview of `personal liberty' guaranteed by
Art. 21.
64. In Kharak Singh v. State of U.P. and Others AIR 1963 SC 1295, Subba Rao, J. defined `personal
liberty, as a right of an individual to be free from restrictions or encroachment on his person
whether these are directly imposed or indirectly brought about by calculated measure. The court
held that `personal liberty' in Article 21 includes all varieties of freedoms except those included in
Article 19.
65. In Maneka Gandhi v. Union of India and Another (1978) 1 SCC 248, this court expanded the
scope of the expression `personal liberty' as used in Article 21 of the Constitution of India. The court
rejected the argument that the expression `personal liberty' must be so interpreted as to avoid
overlapping between Article 21 and Article 19(1). It was observed: "The expression `personal liberty'
in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the
personal liberty of a man and some of them have been raised to the status of distinct fundamental
rights and given additional protection under Article 19." So, the phrase `personal liberty' is very
wide and includes all possible rights which go to constitute personal liberty, including those which
are mentioned in Article
19.
66. Right to life is one of the basic human right and not even the State has the authority to violate
that right. [State of A.P. v. Challa Ramakrishna Reddy and Others (2000) 5 SCC 712].
67. Article 21 is a declaration of deep faith and belief in human rights. In this pattern of guarantee
woven in Chapter III of this Constitution, personal liberty of man is at root of Article 21 and each
expression used in this Article enhances human dignity and values. It lays foundation for a society
where rule of law has primary and not arbitrary or capricious exercise of power. [Kartar Singh v.
State of Punjab and Others (1994) 3 SCC 569].

68. While examining the ambit, scope and content of the expression "personal liberty" in the said
case, it was held that the term is used in this Article as a compendious term to include within itself
all varieties of rights which goes to make up the "personal liberties" or man other than those dealt
within several clauses of Article 19(1). While Article 19(1) deals with particular species or attributes
of that freedom, "personal liberty" in Article 21 takes on and comprises the residue.
69. The early approach to Article 21 which guarantees right to life and personal liberty was
circumscribed by literal interpretation in A.K. Gopalan (supra). But in course of time, the scope of
this application of the Article against arbitrary encroachment by the executives has been expanded
by liberal interpretation of the components of the Article in tune with the relevant international
understanding. Thus protection against arbitrary privation of "life" no longer means mere
protection of death, or physical injury, but also an invasion of the right to "live" with human dignity
and would include all these aspects of life which would go to make a man's life meaningful and
worth living, such as his tradition, culture and heritage. [Francis Coralie Mullin v. Administrator,
Union Territory of Delhi and Others (1981) 1 SCC 608]
70. Article 21 has received very liberal interpretation by this court. It was held: "The right to live
with human dignity and same does not connote continued drudging. It takes within its fold some
process of civilization which makes life worth living and expanded concept of life would mean the
tradition, culture, and heritage of the person concerned." [P.
Rathinam/Nagbhusan Patnaik v. Union of India and Another (1994) 3 SCC 394.]
71. The object of Article 21 is to prevent encroachment upon personal liberty in any manner. Article
21 is repository of all human rights essentially for a person or a citizen. A fruitful and meaningful life
presupposes full of dignity, honour, health and welfare. In the modern "Welfare Philosophy", it is for
the State to ensure these essentials of life to all its citizens, and if possible to non-citizens. While
invoking the provisions of Article 21, and by referring to the oft-quoted statement of Joseph
Addision, "Better to die ten thousand deaths than wound my honour", the Apex court in Khedat
Mazdoor Chetana Sangath v. State of M.P. and Others (1994) 6 SCC 260 posed to itself a question "If
dignity or honour vanishes what remains of life"? This is the significance of the Right to Life and
Personal Liberty guaranteed under the Constitution of India in its third part.
72. This court in Central Inland Water Transport Corporation Ltd. and Another v. Brojo Nath
Ganguly and Another (1986) 3 SCC 156 observed that the law must respond and be responsive to the
felt and discernible compulsions of circumstances that would be equitable, fair and justice, and
unless there is anything to the contrary in the statute, Court must take cognizance of that fact and
act accordingly.
73. This court remarked that an undertrial prisoner should not be put in fetters while he is being
taken from prison to Court or back to prison from Court. Steps other than putting him in fetters will
have to be taken to prevent his escape.

74. In Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526, this court has made
"....... The Punjab Police Manual, in so far as it puts the ordinary Indian beneath the
better class breed (para 26.21A and 26.22 of Chapter XXVI) is untenable and
arbitrary. Indian humans shall not be dichotomised and the common run
discriminated against regarding handcuffs. The provisions in para 26.22 that every
under-trial who is accused of a non-bailable offence punishable with more than 3
years prison term shall be routinely handcuffed is violative of Articles 14, 19 and 21.
The nature of the accusation is not the criterion. The clear and present danger of
escape breaking out of the police control is the determinant. And for this there must
be clear material, not glib assumption, record of reasons and judicial oversight and
summary hearing and direction by the court where the victim is produced. ...
Handcuffs are not summary punishment vicariously imposed at police level, at once
obnoxious and irreversible. Armed escorts, worth the salt, can overpower any
unarmed under-
trial and extra guards can make up exceptional needs. In very special situations, the application of
irons is not ruled out. The same reasoning applies to (e) and (f). Why torture the prisoner because
others will demonstrate or attempt his rescue? The plain law of under-trial custody is thus contrary
to the unedifying escort practice. (Para 31) Even in cases where, in extreme circumstances,
handcuffs have to be put on the prisoner, the escorting authority must record contemporaneously
the reason for doing so. Otherwise, under Article 21 the procedure will be unfair and bad in law. The
minions of the police establishment must make good their security recipes by getting judicial
approval. And, once the court directs that handcuffs shall be off, no escorting authority can overrule
judicial direction. This is implicit in Article 21 which insists upon fairness, reasonableness and
justice in the very procedure which authorities stringent deprivation of life and liberty. (Para 30) It
is implicit in Articles 14 and 19 that when there is no compulsive need to fetter a person's limbs, it is
sadistic, capricious, despotic and demoralizing to humble a man by manacling him. Such arbitrary
conduct surely slaps Article 14 on the face. The minimal freedom of movement which even a
detainee is entitled to under Article 19 cannot be cut down cruelly by application of handcuffs or
other hoops. It will be unreasonable so to do unless the State is able to make out that no other
practical way of forbidding escape is available, the prisoner being so dangerous and desperate and
the circumstances so hostile to safekeeping. (Para 23) Whether handcuffs or other restraint should
be imposed on a prisoner is a matter for the decision of the authority responsible for his custody.
But there is room for imposing supervisory regime over the exercise of that power. One sector of
supervisory jurisdiction could appropriately lie with the court trying the accused, and it would be
desirable for the custodial authority to inform that court of the circumstances in which, and the
justification for, imposing a restraint on the body of the accused. It should be for the court
concerned to work out the modalities of the procedure requisite for the purpose of enforcing such
control."
75. After dealing with the concept of life and liberty under the Indian Constitution, we would like to
have the brief survey of other countries to ascertain how life and liberty has been protected in other

countries.
UNITED KINGDOM
76. Life and personal liberty has been given prime importance in the United Kingdom. It was in 1215
that the people of England revolted against King John and enforced their rights, first time the King
had acknowledged that there were certain rights of the subject could be called Magna Carta 1215. In
1628 the petition of rights was presented to King Charles-I which was the 1st step in the transfer of
Sovereignty from the King to Parliament. It was passed as the Bill of Rights 1689.
77. In the Magna Carta, it is stated "no free man shall be taken, or imprisoned or disseised or
outlawed or banished or any ways destroyed, nor will the King pass upon him or commit him to
prison, unless by the judgment of his peers or the law of the land".
78. Right to life is the most fundamental of all human rights and any decision affecting human right
or which may put an individual's life at risk must call for the most anxious scrutiny. See: Bugdaycay
v. Secretary of State for the Home Department (1987) 1 All ER 940. The sanctity of human life is
probably the most fundamental of the human social values. It is recognized in all civilized societies
and their legal system and by the internationally recognized statements of human rights. See: R on
the application of Pretty v. Director of Public Prosecutions (2002) 1 All ER 1.
U.S.A.
79. The importance of personal liberty is reflected in the Fifth Amendment to the Constitution of
U.S.A. (1791) which declares as under :-
"No person shall be.....deprived of his life, liberty or property, without due process of
law." (The `due process' clause was adopted in s.1(a) of the Canadian Bill of Rights
Act, 1960. In the Canada Act, 1982, this expression has been substituted by `the
principles of fundamental justice' [s.7].
80. The Fourteenth Amendment imposes similar limitation on the State authorities. These two
provisions are conveniently referred to as the `due process clauses'. Under the above clauses the
American Judiciary claims to declare a law as bad, if it is not in accordance with `due process', even
though the legislation may be within the competence of the Legislature concerned. Due process is
conveniently understood means procedural regularity and fairness. (Constitutional Interpretation
by Craig R. Ducat, 8 th Edn. 2002 p.475.).
WEST GERMANY
81. Article 2(2) of the West German Constitution (1948) declares:
"Everyone shall have the right to life and physical inviolability. The freedom of the
individual shall be inviolable. These rights may be interfered with only on the basis of

the legal order."
Though the freedom of life and liberty guaranteed by the above Article may be restricted, such
restriction will be valid only if it is in conformity with the `legal order' (or `pursuant to a law,
according to official translation). Being a basic right, the freedom guaranteed by Article 2(2) is
binding on the legislative, administrative and judicial organs of the State [Article 1(3)]. This gives
the individual the rights to challenge the validity of a law or an executive act violative the freedom of
the person by a constitutional complaint to the Federal Constitutional Court, under Article 93.
Procedural guarantee is given by Articles 103(1) and 104. Article 104(1)-2(2) provides:
"(1) The freedom of the individual may be restricted only on the basis of a formal law
and only with due regard to the forms prescribed therein..........
(2) Only the Judge shall decide on the admissibility and continued deprivation of
liberty."
82. These provisions correspond to Article 21 of our Constitution and the court is empowered to set
a man to liberty if it appears that he has been imprisoned without the authority of a formal law or in
contravention of the procedure prescribed there.
JAPAN
83. Article XXXI of the Japanese Constitution of 1946 says :
"No person shall be deprived of life or liberty nor shall any other criminal penalty be
imposed, except according to procedure established by law."
This article is similar to Article 21 of our Constitution save that it includes other criminal penalties,
such as fine or forfeiture within its ambit.
CANADA
84. S. 1(1) of the Canadian Bill of Rights Act, 1960, adopted the `Due Process' Clause from the
American Constitution. But the difference in the Canadian set-up was due to the fact that this Act
was not a constitutional instrument to impose a direct limitation on the Legislature but only a
statute for interpretation of Canadian status, which, again, could be excluded from the purview of
the Act of 1960, in particular cases, by an express declaration made by the Canadian Parliament
itself (s.2). The result was obvious : The Canadian Supreme Court in R. v. Curr (1972) S.C.R. 889
held that the Canadian Court would not import `substantive reasonableness' into s.1(a), because of
the unsalutary experience of substantive due process in the U.S.A.; and that as to `procedural
reasonableness', s.1(a) of the Bill of Rights Act only referred to `the legal processes recognized by
Parliament and the Courts in Canada'. The result was that in Canada, the `due process clause' lost
its utility as an instrument of judicial review of legislation and it came to mean practically the same
thing as whatever the Legislature prescribes, - much the same as `procedure established by law' in

Article 21 of the Constitution of India, as interpreted in A.K. Gopalan (supra). BANGADESH
85. Article 32 of the Constitution of Bangladesh, 1972 [3 SCW 385] reads as under:
"No person shall be deprived of life or personal liberty save in accordance with law."
This provision is similar to Article 21 of the Indian Constitution. Consequently, unless controlled by
some other provision, it should be interpreted as in India.
PAKISTAN
86. Article 9 Right to life and Liberty. - "Security of Person : No person shall be deprived of life and
liberty save in accordance with law."
NEPAL
87. In the 1962 - Constitution of Nepal, there is Article 11(1) which deals with right to life and liberty
which is identical with Article 21 of the Indian Constitution.
INTERNATIONAL CHARTERS
88. Universal Declaration, 1948. - Article 3 of the Universal Declaration says:
"Everyone has the right to life, liberty and security of person."
Article 9 provides:
"No one shall be subjected to arbitrary arrest, detention or exile."
Cl.10 says:
"Everyone is entitled in full equality to a fair and public hearing by an independent

and impartial tribunal, in the determination of his rights and obligations and of any
criminal charge against him." [As to its legal effect, see M. v. Organisation Belge,
(1972) 45 Inter, LR 446 (447, 451, et. Sq.)]
89. Covenant on Civil and Political Rights - Article 9(1) of the U.N. 1966, 1966 says:
"Everyone has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on such
grounds and in accordance with such procedure as are established by law."
90. European Convention on Human Rights, 1950. - This Convention contains a most elaborate and
detailed codification of the rights and safeguards for the protection of life and personal liberty

against arbitrary invasion.
91. In every civilized democratic country, liberty is considered to be the most precious human right
of every person. The Law Commission of India in its 177th Report under the heading Ìntroduction
to the doctrine of "arrest" has described as follows:
"Liberty is the most precious of all the human rights". It has been the founding faith
of the human race for more than 200 years. Both the American Declaration of
Independence, 1776 and the French Declaration of the Rights of Man and the Citizen,
1789, spoke of liberty being one of the natural and inalienable rights of man. The
universal declaration of human rights adopted by the general assembly on United
Nations on December 10, 1948 contains several articles designed to protect and
promote the liberty of individual. So does the international covenant on civil and
political rights, 1996. Above all, Article 21 of the Constitution of India proclaims that
no one shall be deprived of his right to personal liberty except in accordance with the
procedure prescribed by law. Even Article 20(1) & (2) and Article 22 are born out of a
concern for human liberty. As it is often said, "one realizes the value of liberty only
when he is deprived of it." Liberty, along with equality is the most fundamental of
human rights and the fundamental freedoms guaranteed by the Constitution. Of
equal importance is the maintenance of peace, law and order in the society. Unless,
there is peace, no real progress is possible. Societal peace lends stability and security
to the polity. It provides the necessary conditions for growth, whether it is in the
economic sphere or in the scientific and technological spheres."
92. Just as the Liberty is precious to an individual, so is the society's interest in maintenance of
peace, law and order. Both are equally important.
93. It is a matter of common knowledge that a large number of undertrials are languishing in jail for
a long time even for allegedly committing very minor offences. This is because section 438 Cr.P.C.
has not been allowed its full play. The Constitution Bench in Sibbia's case (supra) clearly mentioned
that section 438 Cr.P.C. is extraordinary because it was incorporated in the Code of Criminal
Procedure, 1973 and before that other provisions for grant of bail were sections 437 and 439 Cr.P.C.
It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some
courts of smaller strength have erroneously observed that section 438 Cr.P.C. should be invoked
only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of
the Constitution Bench in Sibbia's case (supra). According to the report of the National Police
Commission, the power of arrest is grossly abused and clearly violates the personal liberty of the
people, as enshrined under Article 21 of the Constitution, then the courts need to take serious notice
of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting
the accused. The courts considering the bail application should try to maintain fine balance between
the societal interest vis-`-vis personal liberty while adhering to the fundamental principle of
criminal jurisprudence that the accused that the accused is presumed to be innocent till he is found
guilty by the competent court.

94. The complaint filed against the accused needs to be thoroughly examined including the aspect
whether the complainant has filed false or frivolous complaint on earlier occasion. The court should
also examine the fact whether there is any family dispute between the accused and the complainant
and the complainant must be clearly told that if the complaint is found to be false or frivolous, then
strict action will be taken against him in accordance with law. If the connivance between the
complainant and the investigating officer is established then action be taken against the
investigating officer in accordance with law.
95. The gravity of charge and exact role of the accused must be properly comprehended. Before
arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused
in the case diary. In exceptional cases the reasons could be recorded immediately after the arrest, so
that while dealing with the bail application, the remarks and observations of the arresting officer can
also be properly evaluated by the court.
96. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the
case. The discretion must be exercised on the basis of the available material and the facts of the
particular case. In cases where the court is of the considered view that the accused has joined
investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in
that event, custodial interrogation should be avoided.
97. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many
serious consequences not only for the accused but for the entire family and at times for the entire
community. Most people do not make any distinction between arrest at a pre-conviction stage or
post-conviction stage. Whether the powers under section 438 Cr.P.C. are subject to limitation of
section 437 Cr.P.C.?
98. The question which arises for consideration is whether the powers under section 438 Cr.P.C. are
unguided or uncanalised or are subject to all the limitations of section 437 Cr.P.C.? The Constitution
Bench in Sibbia's case (supra) has clearly observed that there is no justification for reading into
section 438 Cr.P.C. and the limitations mentioned in section 437 Cr.P.C. The Court further observed
that the plentitude of the section must be given its full play. The Constitution Bench has also
observed that the High Court is not right in observing that the accused must make out a "special
case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary
power conferred by section 438 Cr.P.C. to a dead letter. The Court observed that "We do not see why
the provisions of Section 438 Cr.P.C. should be suspected as containing something volatile or
incendiary, which needs to be handled with the greatest care and caution imaginable."
99. As aptly observed in Sibbia's case (supra) that a wise exercise of judicial power inevitably takes
care of the evil consequences which are likely to flow out of its intemperate use. Every kind of
judicial discretion, whatever may be the nature of the matter in regard to which it is required to be
exercised, has to be used with due care and caution. In fact, an awareness of the context in which the
discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is
the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the
power to grant anticipatory bail.

100. The Constitution Bench in the same judgment also observed that a person seeking anticipatory
bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints
and conditions on his freedom, by the acceptance of conditions which the court may deem fit to
impose, in consideration of the assurance that if arrested, he shall enlarged on bail.
101. The proper course of action ought to be that after evaluating the averments and accusation
available on the record if the court is inclined to grant anticipatory bail then an interim bail be
granted and notice be issued to the public prosecutor. After hearing the public prosecutor the court
may either reject the bail application or confirm the initial order of granting bail. The court would
certainly be entitled to impose conditions for the grant of bail. The public prosecutor or complainant
would be at liberty to move the same court for cancellation or modifying the conditions of bail any
time if liberty granted by the court is misused. The bail granted by the court should ordinarily be
continued till the trial of the case.
102. The order granting anticipatory bail for a limited duration and thereafter directing the accused
to surrender and apply before a regular bail is contrary to the legislative intention and the judgment
of the Constitution Bench in Sibbia's case (supra).
103. It is a settled legal position that the court which grants the bail also has the power to cancel it.
The discretion of grant or cancellation of bail can be exercised either at the instance of the accused,
the public prosecutor or the complainant on finding new material or circumstances at any point of
time.
104. The intention of the legislature is quite clear that the power of grant or refusal of bail is entirely
discretionary. The Constitution Bench in Sibbia's case (supra) has clearly stated that grant and
refusal is discretionary and it should depend on the facts and circumstances of each case. The
Constitution Bench in the said case has aptly observed that we must respect the wisdom of the
Legislature entrusting this power to the superior courts namely, the High Court and the Court of
Session. The Constitution Bench observed as under:
"We would, therefore, prefer to leave the High Court and the Court of Session to
exercise their jurisdiction under Section 438 by a wise and careful use of their
discretion which, by their long training and experience, they are ideally suited to do.
The ends of justice will be better served by trusting these courts to act objectively and
in consonance with principles governing the grant of bail which are recognized over
the years, than by divesting them of their discretion which the legislature has
conferred upon them, by laying down inflexible rules of general application. It is
customary, almost chronic, to take a statute as one finds it on the grounds that, after
all "the legislature in, its wisdom" has thought it fit to use a particular expression. A
convention may usefully grow whereby the High Court and the Court of Session may
be trusted to exercise their discretionary powers in their wisdom, especially when the
discretion is entrusted to their care by the legislature in its wisdom. If they err, they
are liable to be corrected."

GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY TO THE LEGISLATIVE INTENTION

AND LAW DECLARED BY THE CONSTITUTION BENCH:
105. The court which grants the bail has the right to cancel the bail according to the provisions of the
General Clauses Act but ordinarily after hearing the public prosecutor when the bail order is
confirmed then the benefit of the grant of the bail should continue till the end of the trial of that
case.
106. The judgment in Salauddin Abdulsamad Shaikh (supra) is contrary to legislative intent and the
spirit of the very provisions of the anticipatory bail itself and has resulted in an artificial and
unreasonable restriction on the scope of enactment contrary to the legislative intention.
107. The restriction on the provision of anticipatory bail under section 438 Cr.P.C. limits the
personal liberty of the accused granted under Article 21 of the constitution. The added observation is
nowhere found in the enactment and bringing in restrictions which are not found in the enactment
is again an unreasonable restriction. It would not stand the test of fairness and reasonableness
which is implicit in Article 21 of the Constitution after the decision in Maneka Gandhi's case (supra)
in which the court observed that in order to meet the challenge of Article 21 of the Constitution the
procedure established by law for depriving a person of his liberty must be fair, just and reasonable.
108. Section 438 Cr.P.C. does not mention anything about the duration to which a direction for
release on bail in the event of arrest can be granted. The order granting anticipatory bail is a
direction specifically to release the accused on bail in the event of his arrest. Once such a direction of
anticipatory bail is executed by the accused and he is released on bail, the concerned court would be
fully justified in imposing conditions including direction of joining investigation.
109. The court does not use the expression ànticipatory bail' but it provides for issuance of
direction for the release on bail by the High Court or the Court of Sessions in the event of arrest.
According to the aforesaid judgment of Salauddin's case, the accused has to surrender before the
trial court and only thereafter he/she can make prayer for grant of bail by the trial court. The trial
court would release the accused only after he has surrendered.
110. In pursuance to the order of the Court of Sessions or the High Court, once the accused is
released on bail by the trial court, then it would be unreasonable to compel the accused to surrender
before the trial court and again apply for regular bail.
111. The court must bear in mind that at times the applicant would approach the court for grant of
anticipatory bail on mere apprehension of being arrested on accusation of having committed a
non-bailable offence. In fact, the investigating or concerned agency may not otherwise arrest that
applicant who has applied for anticipatory bail but just because he makes an application before the
court and gets the relief from the court for a limited period and thereafter he has to surrender before
the trial court and only thereafter his bail application can be considered and life of anticipatory bail
comes to an end. This may lead to disastrous and unfortunate consequences. The applicant who may
not have otherwise lost his liberty loses it because he chose to file application of anticipatory bail on

mere apprehension of being arrested on accusation of having committed a non-bailable offence. No

arrest should be made because it is lawful for the police officer to do so. The existence of power to
arrest is one thing and the justification for the exercise of it is quite another. The police officer must
be able to justify the arrest apart from his power to do so. This finding of the said judgment (supra)
is contrary to the legislative intention and law which has been declared by a Constitution Bench of
this court in Sibbia's case (supra).
112. The validity of the restrictions imposed by the Apex Court, namely, that the accused released on
anticipatory bail must submit himself to custody and only thereafter can apply for regular bail. This
is contrary to the basic intention and spirit of section 438 Cr.P.C. It is also contrary to Article 21 of
the Constitution. The test of fairness and reasonableness is implicit under Article 21 of the
Constitution of India. Directing the accused to surrender to custody after the limited period
amounts to deprivation of his personal liberty.
113. It is a settled legal position crystallized by the Constitution Bench of this court in Sibbia's case
(supra) that the courts should not impose restrictions on the ambit and scope of section 438 Cr.P.C.
which are not envisaged by the Legislature. The court cannot rewrite the provision of the statute in
the garb of interpreting it.
114. It is unreasonable to lay down strict, inflexible and rigid rules for exercise of such discretion by
limiting the period of which an order under this section could be granted. We deem it appropriate to
reproduce some observations of the judgment of the Constitution Bench of this court in the Sibbia's
case (supra).
"The validity of that section must accordingly be examined by the test of fairness and
reasonableness which is implicit in Article 21. If the legislature itself were to impose
an unreasonable restriction on the grant of anticipatory bail, such a restriction could
have been struck down as being violative of Article 21.
Therefore, while determining the scope of Section 438, the court should not impose any unfair or
unreasonable limitation on the individual's right to obtain an order of anticipatory bail. Imposition
of an unfair or unreasonable limitation, according to the learned Counsel, would be violative of
Article 21, irrespective of whether it is imposed by legislation or by judicial decision.
xxx xxx xxx Clause (1) of Section 438 is couched in terms, broad and unqualified. By any known
canon of construction, words of width and amplitude ought not generally to be cut down so as to
read into the language of the statute restraints and conditions which the legislature itself did not
think it proper or necessary to impose. This is especially true when the statutory provision which
falls for consideration is designed to secure a valuable right like the right to personal freedom and
involves the application of a presumption as salutary and deep grained in our criminal
jurisprudence as the presumption of innocence."
xxx xxx xxx "I desire in the first instance to point out that the discretion given by the section is very
wide. . . Now it seems to me that when the Act is so expressed to provide a wide discretion, ... it is

not advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the rules
enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in
general they reflect the point of view from which judges would regard an application for relief. But I
think it ought to be distinctly understood that there may be cases in which any or all of them may be
disregarded. If it were otherwise, the free discretion given by the statute would be fettered by
limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of
the language contained in an Act of Parliament. It is quite a different thing to place conditions upon
a free discretion entrusted by statute to the court where the conditions are not based upon statutory
enactment at all. It is not safe, I think, to say that the court must and will always insist upon certain
things when the Act does not require them, and the facts of some unforeseen case may make the
court wish it had kept a free hand."
xxx xxx xxx "The concern of the courts generally is to preserve their discretion without meaning to
abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the courts
by law."
115. The Apex Court in Salauddin's case (supra) held that anticipatory bail should be granted only
for a limited period and on the expiry of that duration it should be left to the regular court to deal
with the matter is not the correct view. The reasons quoted in the said judgment is that anticipatory
bail is granted at a stage when an investigation is incomplete and the court is not informed about the
nature of evidence against the alleged offender.
116. The said reason would not be right as the restriction is not seen in the enactment and bail
orders by the High Court and Sessions Court are granted under sections 437 and 439 also at such
stages and they are granted till the trial.
117. The view expressed by this Court in all the above referred judgments have to be reviewed and
once the anticipatory bail is granted then the protection should ordinarily be available till the end of
the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the
anticipatory bail granted by the court is cancelled by the court on finding fresh material or
circumstances or on the ground of abuse of the indulgence by the accused.
SCOPE AND AMBIT OF ANTICIPATORY BAIL:
118. A good deal of misunderstanding with regard to the ambit and scope of section 438 Cr.P.C.
could have been avoided in case the Constitution Bench decision of this court in Sibbia's case
(supra) was correctly understood, appreciated and applied.
119. This Court in the Sibbia's case (supra) laid down the following principles with regard to
anticipatory bail:
a) Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India.
b) Filing of FIR is not a condition precedent to exercise of power under section 438.

c) Order under section 438 would not affect the right of police to conduct
investigation.
d) Conditions mentioned in section 437 cannot be read into section 438.
e) Although the power to release on anticipatory bail can be described as of an

"extraordinary" character this would "not justify the conclusion that the power must
be exercised in exceptional cases only." Powers are discretionary to be exercised in
light of the circumstances of each case.
f) Initial order can be passed without notice to the Public Prosecutor. Thereafter,
notice must be issued forthwith and question ought to be re- examined after hearing.
Such ad interim order must conform to requirements of the section and suitable
conditions should be imposed on the applicant.
120. The Law Commission in July 2002 has severely criticized the police of our country for the
arbitrary use of power of arrest which, the Commission said, is the result of the vast discretionary
powers conferred upon them by this Code. The Commission expressed concern that there is no
internal mechanism within the police department to prevent misuse of law in this manner and the
stark reality that complaint lodged in this regard does not bring any result. The Commission intends
to suggest amendments in the Criminal Procedure Code and has invited suggestions from various
quarters. Reference is made in this Article to the 41st Report of the Law Commission wherein the
Commission saw `no justification' to require a person to submit to custody, remain in prison for
some days and then apply for bail even when there are reasonable grounds for holding that the
person accused of an offence is not likely to abscond or otherwise misuse his liberty. Discretionary
power to order anticipatory bail is required to be exercised keeping in mind these sentiments and
spirit of the judgments of this court in Sibbia's case (supra) and Joginder Kumar v. State of U.P. and
Others (1994) 4 SCC 260.
Relevant consideration for exercise of the power
121. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of
anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and
inflexible guidelines in this respect because all circumstances and situations of future cannot be
clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative
intention the grant or refusal of anticipatory bail should necessarily depend on facts and
circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case
(supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438
Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they
are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect
and honour.
122. The following factors and parameters can be taken into consideration while dealing with the
anticipatory bail:

i. The nature and gravity of the accusation and the exact role of the accused must be
properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously
undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood
to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the
applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large
number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The
court must also clearly comprehend the exact role of the accused in the case. The cases in which
accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should
consider with even greater care and caution because over implication in the cases is a matter of
common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between
two factors namely, no prejudice should be caused to the free, fair and full investigation and there
should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of
threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness
that shall have to be considered in the matter of grant of bail and in the event of there being some
doubt as to the genuineness of the prosecution, in the normal course of events, the accused is
entitled to an order of bail.
123. The arrest should be the last option and it should be restricted to those exceptional cases where
arresting the accused is imperative in the facts and circumstances of that case.
124. The court must carefully examine the entire available record and particularly the allegations
which have been directly attributed to the accused and these allegations are corroborated by other
material and circumstances on record.
125. These are some of the factors which should be taken into consideration while deciding the
anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative
in nature because it is difficult to clearly visualize all situations and circumstances in which a person
may pray for anticipatory bail. If a wise discretion is exercised by the concerned judge, after

consideration of entire material on record then most of the grievances in favour of grant of or refusal
of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this
jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we
should accept the fact that the discretion would be properly exercised. In any event, the option of
approaching the superior court against the court of Sessions or the High Court is always available.
126. Irrational and Indiscriminate arrest are gross violation of human rights. In Joginder Kumar's
case (supra), a three Judge Bench of this Court has referred to the 3rd report of the National Police
Commission, in which it is mentioned that the quality of arrests by the Police in India mentioned
power of arrest as one of the chief sources of corruption in the police. The report suggested that, by
and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified
police action accounted for 43.2% of the expenditure of the jails.
127. Personal liberty is a very precious fundamental right and it should be curtailed only when it
becomes imperative according to the peculiar facts and circumstances of the case. 128 In case, the
State consider the following suggestions in proper perspective then perhaps it may not be necessary
to curtail the personal liberty of the accused in a routine manner. These suggestions are only
illustrative and not exhaustive.
1) Direct the accused to join investigation and only when the accused does not cooperate with the
investigating agency, then only the accused be arrested.
2) Seize either the passport or such other related documents, such as, the title deeds of properties or
the Fixed Deposit Receipts/Share Certificates of the accused.
3) Direct the accused to execute bonds;
4) The accused may be directed to furnish sureties
of number of persons which according to the prosecution are necessary in view of the facts of the
particular case.
5) The accused be directed to furnish undertaking that he would not visit the place where the
witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course
of justice can be avoided.
6) Bank accounts be frozen for small duration during investigation.
129) In case the arrest is imperative, according to the facts of the case, in that event, the arresting
officer must clearly record the reasons for the arrest of the accused before the arrest in the case
diary, but in exceptional cases where it becomes imperative to arrest the accused immediately, the
reasons be recorded in the case diary immediately after the arrest is made without loss of any time
so that the court has an opportunity to properly consider the case for grant or refusal of bail in the
light of reasons recorded by the arresting officer.

130. Exercise of jurisdiction under section 438 of Cr.P.C. is extremely important judicial function of
a judge and must be entrusted to judicial officers with some experience and good track record. Both
individual and society have vital interest in orders passed by the courts in anticipatory bail
applications.
131. It is imperative for the High Courts through its judicial academies to periodically organize
workshops, symposiums, seminars and lectures by the experts to sensitize judicial officers, police
officers and investigating officers so that they can properly comprehend the importance of personal
liberty vis-`-vis social interests. They must learn to maintain fine balance between the personal
liberty and the social interests.
132. The performance of the judicial officers must be periodically evaluated on the basis of the cases
decided by them. In case, they have not been able to maintain balance between personal liberty and
societal interests, the lacunae must be pointed out to them and they may be asked to take corrective
measures in future. Ultimately, the entire discretion of grant or refusal of bail has to be left to the
judicial officers and all concerned must ensure that grant or refusal of bail is considered basically on
the facts and circumstances of each case.
133. In our considered view, the Constitution Bench in Sibbia's case (supra) has comprehensively
dealt with almost all aspects of the concept of anticipatory bail under section 438 Cr.P.C. A number
of judgments have been referred to by the learned counsel for the parties consisting of Benches of
smaller strength where the courts have observed that the anticipatory bail should be of limited
duration only and ordinarily on expiry of that duration or standard duration, the court granting the
anticipatory bail should leave it to the regular court to deal with the matter. This view is clearly
contrary to the view taken by the Constitution Bench in Sibbia's case (supra). In the preceding
paragraphs, it is clearly spelt out that no limitation has been envisaged by the Legislature under
section 438 Cr.P.C. The Constitution Bench has aptly observed that "we see no valid reason for
rewriting section 438 with a view, not to expanding the scope and ambit of the discretion conferred
on the High Court or the Court of Session but, for the purpose of limiting it".
134. In view of the clear declaration of law laid down by the Constitution Bench in Sibbia's case
(supra), it would not be proper to limit the life of anticipatory bail. When the court observed that the
anticipatory bail is for limited duration and thereafter the accused should apply to the regular court
for bail, that means the life of section 438 Cr.P.C. would come to an end after that limited duration.
This limitation has not been envisaged by the legislature. The Constitution Bench in Sibbia's case
(supra) clearly observed that it is not necessary to re-write section 438 Cr.P.C. Therefore, in view of
the clear declaration of the law by the Constitution Bench, the life of the order under section 438
Cr.P.C. granting bail cannot be curtailed.
135. The ratio of the judgment of the Constitution Bench in Sibbia's case (supra) perhaps was not
brought to the notice of their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh
v. State of Maharashtra, K. L. Verma v. State and Another, Adri Dharan Das v. State of West Bengal
and Sunita Devi v. State of Bihar and Another (supra).

136. In Naresh Kumar Yadav v. Ravindra Kumar (2008) 1 SCC 632, a two-Judge Bench of this Court
observed "the power exercisable under section 438 Cr.P.C. is somewhat extraordinary in character
and it should be exercised only in exceptional cases. This approach is contrary to the legislative
intention and the Constitution Bench's decision in Sibbia's case (supra).
137. We deem it appropriate to reiterate and assert that discretion vested in the court in all matters
should be exercised with care and circumspection depending upon the facts and circumstances
justifying its exercise. Similarly, the discretion vested with the court under section 438 Cr.P.C.
should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject
to the wide power and discretion conferred by the legislature to a rigorous code of self-imposed
limitations.
138. The judgments and orders mentioned in paras 135 and 136 are clearly contrary to the law
declared by the Constitution Bench of this Court in Sibbia's case (supra). These judgments and
orders are also contrary to the legislative intention. The Court would not be justified in re-writing
section 438 Cr.P.C.
139. Now we deem it imperative to examine the issue of per incuriam raised by the learned counsel
for the parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House of
Lords observed that Ìncuria' literally means `carelessness'. In practice per incuriam appears to
mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare
decisis. The `quotable in law' is avoided and ignored if it is rendered, ìn ignoratium of a statute or
other binding authority. The same has been accepted, approved and adopted by this court while
interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of
law.
"......... In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders:
Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been
elucidated as under:
"A decision is given per incuriam when the court has acted in ignorance of a previous
decision of its own or of a court of coordinate jurisdiction which covered the case
before it, in which case it must decide which case to follow (Young v. Bristol
Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300.
In Huddersfield Police Authority v. Watson, 1947 KB 842 : (1947) 2 All ER
193.); or when it has acted in ignorance of a House of Lords decision, in which case it
must follow that decision; or when the decision is given in ignorance of the terms of a
statute or rule having statutory force."
140. Lord Godard, C.J. in Huddersfield Police Authority v.

Watson (1947) 2 All ER 193 observed that where a case or statute had not been brought to the
court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the
case or statute, it would be a decision rendered in per incuriam.
141. This court in Government of A.P. and Another v. B. Satyanarayana Rao (dead) by LRs. and
Others (2000) 4 SCC 262 observed as under:
"The rule of per incuriam can be applied where a court omits to consider a binding
precedent of the same court or the superior court rendered on the same issue or
where a court omits to consider any statute while deciding that issue."
142. In a Constitution Bench judgment of this Court in Union of India v. Raghubir Singh (1989) 2
SCC 754, Chief Justice Pathak observed as under:
"The doctrine of binding precedent has the merit of promoting a certainty and
consistency in judicial decisions, and enables an organic development of the law,
besides providing assurance to the individual as to the consequence of transactions
forming part of his daily affairs. And, therefore, the need for a clear and consistent
enunciation of legal principle in the decisions of a court."
143. In Thota Sesharathamma and another v. Thota Manikyamma (Dead) by LRs. and others (1991)
4 SCC 312 a two Judge Bench of this Court held that the three Judge Bench decision in the case of
Mst. Karmi v. Amru (1972) 4 SCC 86 was per incuriam and observed as under:
"...It is a short judgment without adverting to any provisions of Section 14 (1) or 14(2)
of the Act. The judgment neither makes any mention of any argument raised in this
regard nor there is any mention of the earlier decision in Badri Pershad v. Smt. Kanso
Devi. The decision in Mst. Karmi cannot be considered as an authority on the ambit
and scope of Section 14(1) and (2) of the Act."
144. In R. Thiruvirkolam v. Presiding Officer and Another (1997) 1 SCC 9 a two Judge Bench of this
Court observed that the question is whether it was bound to accept the decision rendered in Gujarat
Steel Tubes Ltd. v. Mazdoor Sabha (1980) 2 SCC 593, which was not in conformity with the decision
of a Constitution Bench in P.H. Kalyani v. Air France (1964) 2 SCR 104. J.S. Verma, J. speaking for
the court observed as under:
"With great respect, we must say that the above-quoted observations in Gujarat Steel
at P. 215 are not in line with the decision in Kalyani which was binding or with D.C.
Roy to which the learned Judge, Krishna Iyer, J. was a party. It also does not match
with the underlying juristic principle discussed in Wade. For the reasons, we are
bound to follow the Constitution Bench decision in Kalyani, which is the binding
authority on the point."

145. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and others (2001) 4 SCC 448
a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a
Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it,
regardless of their doubts about its correctness.
146. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of
Maharashtra (2005) 2 SCC 673 has observed that the law laid down by this Court in a decision
delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal
strength.
147. A three-Judge Bench of this court in Official Liquidator v. Dayanand and Others (2008) 10 SCC
1 again reiterated the clear position of law that by virtue of Article 141 of the Constitution, the
judgment of the Constitution Bench in State of Karnataka and Others v. Umadevi (3) and Others
(2006) 4 SCC 1 is binding on all courts including this court till the same is overruled by a larger
Bench. The ratio of the Constitution Bench has to be followed by Benches of lesser strength. In para
90, the court observed as under:-
"We are distressed to note that despite several pronouncements on the subject, there
is substantial increase in the number of cases involving violation of the basics of
judicial discipline. The learned Single Judges and Benches of the High Courts refuse
to follow and accept the verdict and law laid down by coordinate and even larger
Benches by citing minor difference in the facts as the ground for doing so. Therefore,
it has become necessary to reiterate that disrespect to the constitutional ethos and
breach of discipline have grave impact on the credibility of judicial institution and
encourages chance litigation. It must be remembered that predictability and certainty
is an important hallmark of judicial jurisprudence developed in this country in the
last six decades and increase in the frequency of conflicting judgments of the superior
judiciary will do incalculable harm to the system inasmuch as the courts at the grass
roots will not be able to decide as to which of the judgments lay down the correct law
and which one should be followed."
148. In Subhash Chandra and Another v. Delhi Subordinate Services Selection Board and Others
(2009) 15 SCC 458, this court again reiterated the settled legal position that Benches of lesser
strength are bound by the judgments of the Constitution Bench and any Bench of smaller strength
taking contrary view is per incuriam. The court in para 110 observed as under:-
"Should we consider S. Pushpa v.
Sivachanmugavelu (2005) 3 SCC 1 to be an obiter following the said decision is the question which
arises herein. We think we should. The decisions referred to hereinbefore clearly suggest that we are
bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions,
namely, Marri Chandra Shekhar Rao v. Seth G.S. Medical College (1990) 3 SCC 139 and E.V.
Chinnaiah v. State of A.P. (2005) 1 SCC 394.

Marri Chandra Shekhar Rao (supra) had been followed by this Court in a large number of decisions
including the three-Judge Bench decisions. S. Pushpa (supra) therefore, could not have ignored
either Marri Chandra Shekhar Rao (supra) or other decisions following the same only on the basis of
an administrative circular issued or otherwise and more so when the constitutional scheme as
contained in clause (1) of Articles 341 and 342 of the Constitution of India putting the State and
Union Territory in the same bracket. Following Official Liquidator v. Dayanand and Others (2008)
10 SCC 1 therefore, we are of the opinion that the dicta in S. Pushpa (supra) is an obiter and does not
lay down any binding ratio."
149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only
the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a
co-equal strength is also binding on a Bench of judges of co-equal strength. In the instant case,
judgments mentioned in paragraphs 135 and 136 are by two or three judges of this court. These
judgments have clearly ignored a Constitution Bench judgment of this court in Sibbia's case (supra)
which has comprehensively dealt with all the facets of anticipatory bail enumerated under section
438 of Cr.P.C.. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are
per incuriam.
150. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if
the court doubts the correctness of the judgments by two or three judges, then the proper course
would be to request Hon'ble the Chief Justice to refer the matter to a larger Bench of appropriate
strength.
151. In the instant case there is a direct judgment of the Constitution Bench of this court in Sibbia's
case (supra) dealing with exactly the same issue regarding ambit, scope and object of the concept of
anticipatory bail enumerated under section 438 Cr.P.C. The controversy is no longer res integra. We
are clearly bound to follow the said judgment of the Constitution Bench. The judicial discipline
obliges us to follow the said judgment in letter and spirit.
152. In our considered view the impugned judgment and order of the High Court declining
anticipatory bail to the appellant cannot be sustained and is consequently set aside.
153. We direct the appellant to join the investigation and fully cooperate with the investigating
agency. In the event of arrest the appellant shall be released on bail on his furnishing a personal
bond in the sum of Rs.50,000/- with two sureties in the like amount to the satisfaction of the
arresting officer.
154. Consequently, this appeal is allowed and disposed of in terms of the aforementioned
observations.
...............................................J. (Dalveer Bhandari) ..............................................J. (K.S. Panicker

Radhakrishnan) New Delhi;
December 2, 2010

B.R. Kapoor vs State Of Tamil Nadu And Anr on 21 September, 2001

Author: Pattanaik
Bench: G.B. Pattanaik, S.P. Bharucha, Brijesh Kumar, Y.K. Sabharwal, Ruma Pal
CASE NO.:
Writ Petition (civil) 242 of 2001
PETITIONER:
B.R. KAPOOR
Vs.
RESPONDENT:
STATE OF TAMIL NADU AND ANR.
BENCH:
G.B. Pattanaik, S.P. Bharucha , Brijesh Kumar , Y.K. Sabharwal & Ruma Pal
JUDGMENT:
With W.P.(C) No. 245 of 2001, W.P.(C) No. 246 of 2001, W.P.(C) No. 261 of 2001, , T.C. (C) No. 26
of 2001 @ T.P.(C) No. 382 of 2001. & C.A. No. 6589 of 2001 @ S.L.P. (C) No. 11763 of 2001
JUDGMENT PATTANAIK, J.
Leave granted.
I have my respectful concurrence with the conclusions and directions in the judgment of Brother
Bharucha, J. I am conscious of the fact that plurality of judgments should ordinarily be avoided. But,
having regard to the importance of the question involved, and the enormity of the consequences, if
the contentions of Respondent No. 2 are accepted, I consider it appropriate to express my thoughts
on some aspects. It is not necessary to reiterate the facts which have been lucidly narrated in the
judgment of Brother Bharucha,J. The question that arises for consideration is whether a non elected
member, whose nomination for contesting the election to the Legislative Assembly stood rejected,
and that order of rejection became final, not being assailed, could still be appointed as the Chief
Minister or the Minister under Article 164 of the Constitution, merely because the largest number of
elected members to the Legislative Assembly elects such person to be their leader. Be it be stated,
that the nomination of such person had been rejected, on the ground of disqualification incurred by
such person under Section 8(3) of the Representation of People Act, 1951, the said person having
been convicted under the provisions of the Prevention of Corruption Act, and having been sentenced
to imprisonment for 3 years. The main basis of the arguments advanced by Mr. Venugopal, the
learned senior counsel, appearing for respondent no. 2, and Mr. PP Rao, learned senior counsel

appearing for the State of Tamil Nadu, is that Article 164 of the Constitution conferring power on
the Governor to appoint a person as Chief Minister, and then appoint Ministers on the advice of
such Chief Minister, does not prescribe any qualification for being appointed as Minister or Chief
Minister, and on the other hand, Sub-Article (4) of Article 164 enables such a Minister to continue
as a Minister for a period of six months and said Minister ceases to be a Minister unless within that
period of six months gets himself elected as a member of the Legislaure of the State. As such, it
would not be appropriate to import the qualifications enumerated for the members of the State
Legislature under Article 173, or the disqualifications enumerated in respect of a person for being
chosen as or for being a member of the Legislative Assembly under Article 191 of the Constitution.
According to the learned senior counsel, the Governor, while exercising power under Article 164, is
duty bound to follow the well settled Parliamentary convention and invites a person to be the Chief
Minister, which person commands the confidence of the majority of the House. In other words, if a
political party gets elected to the majority of seats in a Legislative Assembly and such elected
legislatures elected a person to be their leader, and that fact is intimated to the Governor then the
Governor is duty bound to call that person to be the Chief Minister, irrespective of the fact whether
that person does not possess the qualifications for being a member of the Legislative Assembly,
enumerated under Article 173, or is otherwise disqualified for being chosen, or being a member of
the Legislative Assembly on account of any of the disqualifications enumerated under Article 191.
The aforesaid contention is based upon two reasonings. (1) The lack of prescription of qualification
or dis-qualifications for a Chief Minister or Minister under Article 164, and (2) that in a
Parliamentary democracy the Will of the people must prevail. Necessarily, therefore, the provisions
of Article 164 of the Constitution requires an indepth examination, and further the theory that in a
Parliamentary democracy, the Will of the people must prevail under any circumstance, as
propounded by Mr. Venugopal and Mr. Rao, requires a deeper consideration. I would, therefore,
focus my attention on the aforesaid two issues.
It is no doubt true, that Articles 164(1) and 164(4) do not provide any qualification or
disqualification, for being appointed as a Chief Minister or a Minister, whereas, Article 173
prescribes the qualification for a person to be chosen to fill a seat in the Legislature of a State. Article
191 provides the disqualification for a person for being chosen as or being a member of the
Legislative Assembly or Legislative Council of a State. In the case in hand, the respondent no. 2 was
disqualified under Article 191(1)(e) read with Section 8(3) of the Representation of the People Act,
1951, in as much as the said respondent no. 2 has been convicted under Section 13 of the Prevention
of Corruption Act, and has been sentenced to imprisonment for a period of 3 years, though the
execution of that sentence has been suspended by the Appellate Court while the appeal against the
conviction and sentence is pending before the High Court of Madras.
According to Mr. Venugopal, under the Constitution of India, when no qualification or

disqualification exists under Article 164(1) or 164(4), it necessarily postulates that in the area of
constitutional governance for the limited period of six months, any person could be appointed as a
Chief Minister or Minister and it would not be open to the Court to import qualifications and
disqualifications, prescribed under the Constitution for being chosen as a member of the Legislative
Assembly. According to the learned counsel, the reasonable conclusion to be drawn from the
aforesaid constitutional provision is that the constitution does not contemplate the scrutiny of the

credentials of a non-member Prime Minister or Chief Minister or Minister, as in constitutional

theory it is the House, consisting of the majority thereof which proposes him for this transient,
temporary and limited period of six months. It is also contended by Mr. Venugopal that people who
are the ultimate sovereign, express their will through their elected representatives for selecting a
non-elected person as their leader and could be appointed as Chief Minister and Article 164(4)
unequivocally provides a period of six months as locus poenitentia which operates as an exception in
deference to the voice of the majority of the elected members, which in fact is the basis of a
Parliamentary Democracy. Mr. Venugopal also urged that a disqualification being in the nature of a
penalty unless expressly found to be engrafted in the constitution or in other words, in Article 164, it
would not be appropriate for the Court to incorporate that disqualification, which is provided for
being chosen as a member of the legislative assembly into Article 164 and pronounce the validity of
the appointment of respondent No. 2, which has purely been made on the strength of the voice of
the majority of the elected members. I am unable to accept these contentions of the learned counsel,
as in my considered opinion, the contentions are based on a wrong premise. In a Parliamentary
system of government, when political parties fight elections to the legislative assembly or to the
Parliament for being chosen as a member after results are declared, it would be the duty of the
President in case of Parliament and the Governor in case of Legislative Assembly of the State, to
appoint the Prime Minister or the Chief Minister, as the case may be. When the President appoints
the Prime Minister under Article 75 or the Governor appoints a Chief Minister under Article 164, the
question that weighs with the President or the Governor is, who will be able to provide a stable
government.
Necessarily, therefore, it is the will of the majority party that should ordinarily prevail and it is
assumed that the elected members belonging to a majority political party would elect one amongst
them to be their leader. Constitution, however does not prevent the elected members belonging to a
political party commanding the majority of seats in the legislative assembly or the Parliament to
elect a person who never contested for being chosen as a member or a person who though contested,
got defeated in the election for one reason or the other and it is in such a situation that person on
being elected as a leader of the political party commanding the majority in the House, could be
appointed as the Prime Minister or the Chief minister. But the constitution certainly does not
postulate such elected representatives of the people belonging to a political party commanding a
majority in the Parliament or the Assembly to elect a person as their leader so as to be called by the
President or the Governor to head the government, who does not possess the qualification for being
chosen, to fill a seat in the Parliament or in the legislative Assembly, as contained in Articles 84 and
173 respectively of the Constitution or who is disqualified for being chosen as or for being a member
of the House of Parliament or the legislative Assembly, as stipulated under Articles 102 and 191 of
the Constitution respectively. At any rate, even if a person is elected as the leader by the elected
members of the legislative Assembly, commanding a majority of seats in the Assembly and such
person either does not possess the qualification enumerated under Article 173 or incurs
disqualification for being chosen as, or for being a member of the legislative Assembly, enumerated
under Article 191, then the Governor would not be bound to respect that will of the elected members
of the political party, commanding the majority in the House, so as to appoint that person as the
Chief Minister under Article 164(1) of the Constitution. When Article 164(1) itself confers the
discretion on the Governor to appoint a Chief Minister at his pleasure and when the Governor has

taken oath under Article 159 of the Constitution to preserve, protect and defend the Constitution
and the law and shall devote himself to the service and for the well-being of the people, it would be
against such oath, if such a person who does not possess the qualification of being chosen as a
member or has incurred disqualification for being chosen as a member is appointed as a Chief
Minister, merely because Article 164 does not provide any qualification or disqualification for being
appointed as a Chief Minister or Minister. It is indeed axiomatic that the necessary qualification in
Article 173 and the disqualification in Article 191 proprio vigore applies to a person for being
appointed as the Chief Minister or a Minister inasmuch as in a Parliamentary system of government,
a person is required to be chosen as a member of the Legislative Assembly by the electorate of a
constituency and then would be entitled to be appointed as the Chief Minister or a Minister on the
advice of the Chief Minister. Non-prescribing any qualification or disqualification under Article 164
for being chosen as the Chief Minister or Minister would only enable the Governor to appoint a
person as the Chief Minister or Minister for a limited period of six months, as contained in Article
164(4) of the Constitution, only if such person possesses the qualification for being chosen as a
member of the legislative Assembly, as required under Article 173 and is not otherwise disqualified
on account of any of the disqualifications mentioned in Article 191. Any other interpretation by way
of conferring an unfettered discretion on the Governor or conferring an unfettered right on the
elected members of a political party commanding a majority in the legislative Assembly to elect a
person who does not possess the qualifications, enumerated under Article 173 or who incurs the
disqualifications enumerated in Article 191 would be subversive of the constitution and would be
repugnant to the theory of good governance and would be contrary to the constitution itself, which
constitution has been adopted, enacted and given to the people of India by the people of India.
In this connection it would be appropriate to notice that even under the Government of India Act,
1935 where Sections 51(1) and 51(2) were somewhat similar to Article 164 of the Constitution, even
the Joint Committee Report on Indian Constitutional Reforms would indicate that a disqualified
person could not have been appointed as a Minister, as is apparent from the following sentence:
It was, therefore, suggested to us that the Governor ought not to be thus restricted in his choice, and
that he ought to be in a position, if the need should arise, to select a Minister or Ministers from
persons otherwise qualified for appointment but to whom the doubtful pleasures of electioneering
might make no appeal.
Even in the Constituent Assembly Debates when Mohd. Tahir, an M.P. suggested an amendment to
Article 144(3) of the Draft Constitution, which corresponds with Article 164(4) of the Constitution to
the effect:
That a member shall, at the time of his being chosen as such be a member of the Legislative
Assembly or the Legislative council of the State, as the case may be.
and urged that it is wholly against the spirit of democracy that a person who was not being chosen
by the people of the country, should be appointed as a Minister, Dr. Ambedkar did not accept the
amendment on the ground that tenure of a minister must be subject to the condition of purity of
administration and confidence of the House. He further stated:

It is perfectly possible to imagine that a person who is otherwise competent to hold the post of a
Minister has been defeated in a constituency for some reason which, although it may be perfectly
good, might have annoyed the constituency and he might have incurred the displeasure of that
particular constituency.
If purity of administration and otherwise competence to hold the post of Minister were the factors
which weighed with the founding fathers to allow a competent person to be appointed as Chief
Minister or a Minister for a limited period of six months, who might have been defeated, it is
difficult to conceive that a person who is not an elected member, does not possess even the
minimum qualification for being chosen as a member or has incurred the disqualification for being
chosen as a member could be appointed as a Chief Minister or Minister, on the simple ground that
Article 164 is quite silent on the same and the Court cannot import anything into the said Article.
Thus on a pure construction of provisions of Article 164 of the Constitution, the discussions made in
the Constituent Assembly, referred to earlier, the pre-existing pari materia provision in the
Government of India Act, 1935 as well as the discussion of the Joint Committee on Indian
Constitutional Reforms referred to earlier, make it explicitly clear that notwithstanding the fact that
no qualification or disqualification is prescribed in Article 164(1) or Article 164(4) but such
qualification or disqualification provided in Articles 173 and 191 of the Constitution for being chosen
as a member will have to be read into Article 164 and so read, respondent No. 2, who had incurred
the disqualification under Article 191(1)(e) read with Section 8(3) of the Representation of the
People Act, could not have been appointed as the Chief Minister, whatever may be the majority of
her party members being elected to the legislative assembly and they elected her as the leader of the
party to form the Government.
One ancillary argument raised by Mr. Venugopal, in this connection requires some consideration.
According to the learned counsel, no adjudicatory machinery having been provided for in Article
164, in the event the qualifications and disqualifications prescribed for being chosen as a member of
the legislative assembly under Articles 173 and 191 are imported into Article 164, then it will be an
impossible burden for the Governor at that stage to decide the question if the opponent raises the
question of any disqualification and no Governor can adjudicate on each one of the disqualifications,
enumerated in Article 191 read with Sections 8 to 11 of the Representation of the People Act.
According to the learned counsel, the constitution has avowedly not prescribed any qualification or
disqualification with regard to a non-member minister or Chief minister and the only limitation is
that such minister or Chief minister must get elected within six months or else would cease to
become a minister. In my considered opinion, the appointment of a non-member as the Chief
Minister or Minister on the advice of a Chief Minister is made under Article 164 on the Governors
satisfaction. If any of the disqualifications mentioned in Article 191(1)(e) are brought to the notice of
the Governor which can be accepted without any requirement of adjudication or if the Governor is
satisfied that the person concerned does not possess the minimum qualification for being chosen as
a member, as contained in Article 173, then in such a case, there is no question of an impossible
burden on the Governor at that stage and on the other hand, it would be an act on the part of the
Governor in accordance with the constitutional mandate not to appoint such person as the Chief
Minister or Minister notwithstanding the support of the majority of the elected members of the
legislative assembly. In a given case, if the alleged disqualification is dependant upon the disputed

questions of fact and evidence, the Governor may choose not to get into those disputed questions of
fact and, therefore, could appoint such person as the Chief Minister or Minister. In such a case,
Governor exercises his discretion under Article 164 in the matter of appointment of the Chief
Minister or a Minister. But in a case where the disqualification is one which is apparent as in the
case in hand namely the person concerned has been convicted and has been sentenced to
imprisonment for more than two years and operation of the conviction has not been stayed and the
appeal is pending, thereby the disqualification under Article 191(1)(e) read with Section 8(3) of the
Representation of the People Act staring at the face, the Governor would be acting beyond his
jurisdiction and against the constitutional inhibitions and norms in appointing such a disqualified
person as the Chief Minister on the sole reasoning that the majority of the elected members to the
legislative council have elected the person concerned to be their leader. The constitution does not
permit brute force to impede the constitution. The people of India and so also the elected members
to the legislative assembly are bound by the constitutional provisions and it would be the solemn
duty of the peoples representatives who have been elected to the legislative assembly to uphold the
constitution. Therefore, any act on their part, contrary to the constitution, ought not to have
weighed with the Governor in the matter of appointment of the Chief Minister to form the
Government. In my considered opinion, therefore, the arguments of Mr. Venugopal, on this score
cannot be sustained.
One of the arguments advanced on behalf of the respondents was the immunity of the Governor
under Article 361 of the constitution. The genesis of the said arguments is that the Governor of a
State not being answerable to any Court in exercise of performance of the powers and duty of his
office or for any act done or purported to be done by him in the exercise and performance of those
powers and duties and respondent No. 2 having been appointed as Chief Minister in exercise of
powers of the Governor under Article 164, the said appointment as well as the exercise of discretion
by the Governor is immune from being challenged and is not open to judicial review. The arguments
of the counsel for the respondents is also based on the ground that any consideration by the Court to
the legality of such an appointment is not permissible as it is a political thicket. The decision of this
Court in R.K. Jain vs. Union of India, 1993(4) SCC 119 has been relied upon. At the outset, it may be
stated that the immunity provided to the Governor under Article 361 is certainly not extended to an
appointee by the Governor. In the present proceedings, what has been prayed for is to issue a writ of
quo warranto on the averments that respondent No. 2 was constitutionally disqualified to usurp the
public office of the Chief Minister, who has been usurping the said post unauthorisedly on being
appointed by the Governor. In fact the Governor has not been arrayed as a party respondent to the
proceedings. In the very case of R.K. Jain, it has been held by this Court in paragraph 73 that
judicial review is concerned with whether the incumbent possessed of qualification for appointment
and the manner in which the appointment came to be made or the procedure adopted whether fair,
just and reasonable. It has been further stated in paragraph 70 of the said judgment that in a
democracy governed by rule of law surely the only acceptable repository of absolute discretion
should be the courts. Judicial review is the basic and essential feature of the Indian constitutional
scheme entrusted to the judiciary. It is the essence of the rule of law that the exercise of the power by
the State whether it be the legislature or the executive or any other authority, should be within the
constitutional limitation and if any practice is adopted by the executive, which is in violation of its
constitutional limitations, then the same could be examined by the Courts. In S.R. Bommai vs.

Union of India, 1994(3) SCC Page 1, this Court held that a proclamation issued by the President on
the advice of the council of ministers headed by the Prime Minister is amenable to judicial review.
Even Justice Ahmadi, as he then was, though was of the opinion that the decision making of the
President under Article 356 would not be justiciable but was firmly of the view that a proclamation
issued by the President is amenable to judicial review. Justice Verma and Justice Yogeshwar Dayal
held that there is no dispute that the proclamation issued under Article 356 is subject to judicial
review. So also was the view of Justice Sawant and Justice Kuldip Singh and Justice Pandian, where
Their Lordships have stated that the exercise of power by the President under Article 356(1) to issue
Proclamation is subject to the Judicial review at least to the extent of examining whether the
conditions precedent to the issuance of the Proclamation have been satisfied or not. According to
Justice Ramaswamy, the action of the President under Article 356 is a constitutional function and
the same is subject to judicial review and according to the learned Judge, the question relating to the
extent, scope and power of the President under Article 356 though wrapped up with political thicket,
per se it does not get immunity from judicial review. According to Justice Jeevan Reddy and
Agarwal, JJ, the power under Article 356(1) is a conditional power and in exercise of the power of
judicial review, the court is entitled to examine whether the condition has been satisfied or not. But
in the case in hand, when an application for issuance of a writ of quo warranto is being examined, it
is not the Governor who is being made amenable to answer the Court. But it is the appointee
respondent No. 2, who is duty bound to satisfy that there has been no illegal usurpation of public
office. Quo warranto protects public from illegal usurpation of public office by an individual and the
necessary ingredients to be satisfied by the Court before issuing a writ is that the office in question
must be public created by the constitution and a person not legally qualified to hold the office, in
clear infringement of the provisions of the constitution and the law viz. Representation of the People
Act has been usurping the same. If this Court ultimately comes to the conclusion that the
respondent No. 2 is disqualified under the constitution to hold public office of the Chief Minister, as
has already been held, then the immunity of Governor under Article 361 cannot stand as a bar from
issuing a writ of quo warranto. In the present case, it is the State Government who has taken the
positive stand that there has been no violation of the constitutional provisions or the violation of law
in the appointment of respondent No. 2, as Chief Minister, the correctness of that stand is the
subject matter of scrutiny.
I am tempted to quote some observations of the United States Supreme Court in the case of Lucas
vs. Colorado General Assembly 377 US 713, 12 L ed 2d 632, 84 S Ct 1472. It has been held in the
aforesaid case: Manifestly, the fact that an apportionment plan is adopted in a popular referendum
is insufficient to sustain its constitutionality or to induce a Court of equity to refuse to act. It has
been further held : The protection of constitutional rights is not to be approached either
pragmatically or expediently, and though the fact of enactment of a constitutional provision by
heavy vote of the electorate produces pause and generates restrain we can not, true to our oath,
uphold such legislation in the face of palpable infringement of rights. It is too clear for argument
that constitutional law is not a matter of majority vote. Indeed the entire philosophy of the
Fourteenth Amendment teaches that it is personal rights which are to be protected against the will
of the majority. What has been stated therein should more appropriately be applicable to a case
where the constitution is the supreme document which should bind people of India as well as all
other constitutional authorities, including the Governor, and, therefore if respondent No. 2 is found

to have been appointed as the Chief Minister, contrary to the constitutional prohibition and
prohibition under the relevant law of the Representation of the People Act, there should be no
inhibition on the Court to issue a writ of quo warranto and the so-called immunity of the Governor
will not stand as a bar.
According to Mr. P.P. Rao, learned senior counsel appearing for the State of Tamil Nadu,
Parliamentary Democracy is admittedly a basic feature of the Constitution. It would be the duty of
every functionary under the Constitution, including the Governor, and the judiciary to give effect to
the will of the people as reflected in the election to the Legislative Assembly of a State. Once the
electorate has given its mandate to a political party and its leader to run the Government of the State
for a term of five years, in the absence of any express provision in the Constitution to the contrary,
the Governor is bound to call upon the leader of that Legislature Party, so elected by the elected
members, to form the Government. According to Mr. Rao, there is no express, unambiguous
provision in the Constitution or in the provisions of Representation of People Act, declaring that a
person convicted of an offence and sentenced to imprisonment for a period not less than 2 years by
the Trial Court shall not be appointed as Chief Minister during the pendency of the first appeal. In
such a situation, the Governor is not expected to take a position of confrontation with the people of
the State who voted the ruling party to power and plunge the State into a turmoil. In support of this
contention, observation of this Court in the case of Shamsher Singh vs. State of Punjab (1974 (2)
SCC
831), The head of the State should avoid getting involved in politics, was pressed into service. I am
unable to persuade myself to agree with the aforesaid submission of Mr. Rao, inasmuch as, in my
considered opinion, the people of this country as well as their voice reflected through their elected
representatives in the Legislative Assembly, electing a disqualified person for being chosen as a
member of the Legislative Assembly, to be their leader are as much subservient to the Constitution
of India as the Governor himself. In a democracy, constitutional law reflects the value that people
attach to orderly human relations, to individual freedom under the law and to institutions such as
Parliament, political parties, free elections and a free press. Constitution is a document having a
special legal sanctity which sets out the frame-work and the principal functions of the organs of
government within the State and declares the principles by which those organs must operate.
Constitution refers to the whole system of the governance of a country and the collection of rules
which establish and regulate or govern the government. In our country, we have a written
constitution, which has been given by the people of India to themselves. The said Constitution
occupies the primary place. Notwithstanding the fact, we have a written Constitution, in course of
time, a wide variety of rules and practices have evolved which adjust operation of the Constitution to
changing conditions. No written constitution would contain all the detailed rules upon which the
government depends. The rules for electing the legislature are usually found not in the written
Constitution but in the statutes enacted by the legislature within limits laid down by the
Constitution. A Constitution is a thing antecedent to a government, and a government or a good
governance is a creature of the Constitution. A documentary Constitution reflects the beliefs and
political aspirations of those who had framed it. One of the principle of constitutionalism is what it
had developed in the democratic traditions. A primary function that is assigned to the written
Constitution is that of controlling the organs of the Government. Constitutional law pre-supposes

the existence of a State and includes those laws which regulate the structure and function of the
principal organs of government and their relationship to each other and to the citizens. Where there
is a written Constitution, emphasis is placed on the rules which it contains and on the way in which
they have been interpreted by the highest court with constitutional jurisdiction. Where there is a
written Constitution the legal structure of Government may assume a wide variety of forms. Within
a federal constitution, the tasks of government are divided into two classes, those entrusted to the
federal organs of government, and those entrusted to the various states, regions or provinces which
make up the federation. But the constitutional limits bind both the federal and state organs of
government, which limits are enforceable as a matter of law. Many important rules of constitutional
behaviour, which are observed by the Prime Minister and Ministers, Members of the Legislature,
Judges and Civil servants are contained neither in Acts nor in judicial decisions. But such rules have
been nomenclatured by the Constitutional Writers to be the rule of the positive morality of the
constitution and some times the authors provide the name to be the unwirtten maxims of the
constitution. Rules of constitutional behaviour, which are considered to be binding by and upon
those who operate the Constitution but which are not enforced by the law courts nor by the
presiding officers in the House of Parliament. Sir Ivor Jennings, in his book, Law and the
Constitution had stated that constitutional conventions are observed because of the political
difficulties which arise if they are not. These rules regulate the conduct of those holding public office
and yet possibly the most acute political difficulty can arise for such a person is to be forced out of
office. The Supreme Court of Canada stated that the main purpose of conventions is to ensure that
legal frame work of the constitution is operated in accordance with the prevailing constitutional
values of the period. (see (1982) 125 DLR(3d) 1, 84). But where the country has a written
constitution which ranks as fundamental law, legislative or executive acts which conflicts with the
constitution must be held to be unconstitutional and thus illegal. The primary system of
Government cannot be explained solely in terms of legal and conventional rules. It depends
essentially upon the political base which underlies it, in particular on the party system around which
political life is organised. Given the present political parties and the electoral system, it is accepted
that following a general election, the party with a majority of seats in the State legislature or the
Parliament will form the Government. This is what the Constitution postulates and permits. But in
the matter of formation of Government if the said majority political party elects a person as their
leader, whom the Constitution and the laws of the country disqualifies for being chosen as a member
of the Legislative Assembly, then such an action of the majority elected member would be a betrayal
to the electorates and to the Constitution to which they owe their existence. In such a case, the so
called will of the people must be held to be unconstitutional and, as such, could not be and would
not be tolerated upon. When one speaks of legislative supermacy and the will of the people, the
doctrine essentially consists of a rule which governs the legal relationship between the legislature
and the court, but what is stated to be the legislative supermacy in the United Kingdom has no
application in our country with a written Constitution limiting the extent of such supermacy of the
Legislature or Parliament. In other words, the people of the country, the organs of the Government,
legislature, executive and judiciary are all bound by the Constitution which Hon. Justice Bhagwati,
J. describes in Minerva Mills case (1980 (3) Supreme Court Cases, 625) to be suprema lex or the
paramount law of the land and nobody is above or beyond the Constitution. When Court has been
ascribed the duty of interpreting the Constitution and when Court finds that manifestly there is an
unauthorised exercise of power under the Constitution, it would be the solemn duty of the Court to

intervene. The doctrine of legislative supermacy distinguishes the United Kingdom from those
countries in which they have a written constitution, like India, which imposes limits upon the
legislature and entrust the ordinary courts or a constitutional court with the function of deciding
whether the acts of the legislature are in accordance with the Constitution. This being the position,
the action of the majority of the elected members of a political party in choosing their leader to head
the Government, if found to be contrary to the Constitution and the laws of the land then the
Constitution and the laws must prevail over such unconstitutional decision, and the argument of Mr.
Rao, that the will of the people would prevail must give way. In a democratic society there are
important reasons for obeying the law, which do not exist in other forms of government. Our
political system still is not perfect and there are always the scope for many legislative reforms to be
made. But the maintenance of life in modern society requires a willingness from most citizens for
most of the time to observe laws, even when individually they may not agree with them.
In the aforesaid premises, and in view of the conclusions already arrived at, with regard to the dis-
qualifications the respondent no. 2 had incurred, which prevents her for not being chosen as a
member of the Legislative Assembly, it would be a blatant violation of Constitutional laws to allow
her to be continued as the Chief Minister of a State, howsoever short the period may be, on the
theory that the majority of the elected members of the Legislative Assembly have elected her as the
leader and that is the expression of the will of the people.
One other thing which I would like to notice, is the consciousness of the people who brought such
Public Interest Litigation to the Court. Mr. Diwan in course of his arguments, had raised some
submissions on the subject - Criminalisation of Politics and participation of criminals in the
electoral process as candidates and in that connection, he had brought to our notice the order of the
Election Commission of India dated 28th of August, 1997. But for answering the essential issue
before us, it was not necessary to delve into that matter and, therefore, we have not made an
in-depth inquiry into the subject. In one of the speeches by the Prime Minister of India on the
subject- Whither Accountability, published in the Pioneer, Shri Atal Bihari Vajpayee had called for a
national debate on all the possible alternatives for systematic changes to cleanse our democratic
governing system of its present mess. He has expressed his dissatisfaction that neither Parliament
nor the State Vidhan Sabhas are doing with any degree of competence or commitment what they are
primarily meant to do: Legislative function. According to him, barring exceptions, those who get
elected to these democratic institutions are neither trained, formally or informally, in law-making
nor do they seem to have an inclination to develop the necessary knowledge and competence in their
profession. He has further indicated that those individuals in society who are generally interested in
serving the electorate and performing legislative functions are finding it increasingly difficult to
succeed in todays electoral system and the electoral system has been almost totally subverted by
money power, muscle power, and vote bank considerations of castes and communities. Shri
Vajpayee also had indicated that the corruption in the governing structures has, therefore, corroded
the very core of elective democracy. According to him, the certainty of scope of corruption in the
governing structure has hightened opportunism and unscrupulousness among political parties,
causing them to marry and divorce one another at will, seek opportunistic alliances and coalitions
often without the popular mandate. Yet they capture and survive in power due to inherent
systematic flaws. He further stated casteism, corruption and politicisation have eroded the integrity

and efficacy of our civil service structure also. The manifestoes, policies, programmes of the political
parties have lost meaning in the present system of governance due to lack of accountability. Lot of
arguments had been advanced both by Mr. Venugopal and Mr. Rao, on the ground that so far as the
offences under Section 8(3) of the Representation of the People Act are concerned, mere conviction
itself will not incur the disqualification, but conviction and sentence for not less than two years
would disqualify a person and, therefore, in such a case, a person even being convicted of an offence
under the Prevention of Corruption Act, will not be disqualified, if the trying Judge imposes the
punishment of imprisonment for a term of one year, which is the minimum under Section 13(2) of
the prevention of Corruption Act and thus less than two years, which is the minimum sentence
required under Section 8(3) of the Representation of the People Act, to disqualify a person for being
chosen as a member or continuing as a member. As has been discussed in the Judgment of Brother
Bharucha, J, the validity of providing different punishments under different sub-sections of Section
8, has already been upheld by this Court in the case of Raghbir Singh vs. Surjit Singh, 1994 Supp.(3)
S.C.C. 162. But having regard to the mass scale corruption which has corroded the core of elective
democracy, it is high time for the Parliament to consider the question of bringing the conviction
under the Prevention of Corruption Act, as a disqualification under Section 8(1) of the
Representation of the People Act, 1951, so that a person on being convicted of an offence, punishable
under the provisions of Prevention of Corruption Act, could be disqualified for being chosen, as a
member or being continuing as a member of the Legislative Assembly or the Parliament. I hope and
trust, our representatives in the Parliament will bestow due thought over this issue.
These Writ Petitions, Special Leave Petition/Civil Appeal and Transferred case stand disposed of in
terms of the directions contained in the judgment of Brother Bharucha,J.
....................................J. (G.B. Pattanaik) September 21, 2001 Bharucha, J.
Leave granted.
A question of great constitutional importance arises in these matters, namely, 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.
The second respondent, Ms. J. Jayalalitha, was Chief Minister of the State of Tamil Nadu between
1991 and 1996. In respect of that tenure in office she was (in CC 4 of 1997 and CC 13 of 1997)
convicted for offences punishable under Section 120B of the Indian Penal Code read with Sections
13(1)(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and for the offence under
Section 409 of the Indian Penal Code. She w as sentenced to undergo 3 years rigorous imprisonment
and pay a fine of Rs.10,000 in the first case and to undergo 2 years rigorous imprisonment and pay
a fine of Rs.5000 in the second case.
The fine that was imposed in both cases was paid.
The second respondent preferred appeals against her conviction before the High Court at Madras.
The appeals are pending. On applications filed by her in the two appeals, the High Court, by an

order dated 3rd November, 2000, suspended the sentences of imprisonment under Section 389(3)
of the Code of Criminal Procedure and directed the release of respondent No.2 on bail on the terms
and conditions specified in that order. Thereafter, she filed petitions in the two appeals seeking the
stay of the operation of the judgments in the two criminal cases. On 14th April, 2001 a learned
Single Judge of the High Court at Madras, Mr.Justice Malai Subramanium, dismissed these
petitions since the convictions were, inter alia, for offences under Section 13(1)(c) and 13(1)(d) of the
Prevention of Corruption Act, 1988. These orders were not challenged.
In April, 2001 the second respondent filed nomination papers for four constituencies in respect of
the general election to be held to the Tamil Nadu Assembly. On 24th April, 2001 three nomination
papers were rejected on account of her disqualification under Section 8(3) of the Representation of
the People Act, 1951, by reason of her conviction and sentence in the two criminal cases. The fourth
nomination paper was rejected for the reason that she had filed her nomination for more than two
seats. The correctness of the orders of rejection was not called in question.
On 13th May, 2001 the results of the election to the Tamil Nadu Assembly were announced and the
AIADMK party, which had projected the second respondent as its Chief Ministerial nominee, won by
a large majority. On 14th May, 2001, consequent upon the result of the election, the AIADMK
elected the second respondent as its leader.
On 14th May, 2001 the second respondent was sworn in as Chief Minister of the State of Tamil
Nadu.
These writ petitions and appeal contend that the second respondent could not in law have been
sworn in as Chief Minister and cannot continue to function as such. They seek directions in the
nature of quo warranto against her.
The provisions of the Prevention of Corruption Act, 1988, that are relevant to the second
respondents conviction and sentence read thus :
13. Criminal misconduct by a public servant (1) A public servant is said to commit the offence of
criminal misconduct, -
(a) ..
(b) ..
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any
property entrusted to him or under his control as a public servant or allows any other person to do
so; or
(d) if he, -

i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or
pecuniary advantage; or
ii) by abusing his position as a public servant, obtains for himself or for any other person any
valuable thing or pecuniary advantage; or
iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary
advantage without any public interest; or
(e) ..
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment
for a term which shall be not less than one year but which may extend to seven years and shall also
be liable to fine.
Section 409 of the Indian Penal Code, also relevant to the conviction and sentence, reads thus :
409. Criminal breach of trust by public servant, or by banker, merchant or agent Whoever, being in
any manner entrusted with property, or with any dominion over property in his capacity of a public
servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent,
commits criminal breach of trust in respect of that property, shall be punished with [imprisonment
for life], or with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.
For the purposes of answering the question formulated earlier, the following provisions of the
Constitution of India are most relevant: 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.
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 State of Bihar, Madhya Pradesh and Orissa, 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.
(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
and of secrecy according to the forms set out for the purpose in the Third Schedule.

(4) A minister who for any period of six consecutive months is not a member of the Legislature of
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.
173. Qualification for membership of the State Legislature A person shall not be qualified to be
chosen to fill a seat in the Legislature of a State unless he
a) is a citizen of India, and makes and subscribes before some 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;
b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and in
the case of a seat in the Legislative Council, not less than thirty years of age; and
c) possesses such other qualifications as may be prescribed in that behalf by or under any law made
by Parliament.
177. Rights of Ministers and Advocate-General as respects the Houses Every Minister and the
Advocate-General for a State shall have the right to speak in, and otherwise to take part in the
proceedings of, the Legislative Assembly of the State or, in the case of a State having a Legislative
Council, both Houses, and to speak in, and otherwise to take part in the proceedings of, any
committee of the Legislature of which he may be named a member, but shall not, by virtue of this
article, be entitled to vote.
191. Disqualifications for membership (1) A person shall be disqualified for being chosen as, and for
being, a member of the Legislative Assembly or Legislative Council of a State -
a) if he holds any office of profit under the Government of India or the Government of any State
specified in the First Schedule, other than an office declared by the Legislature of the State 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 specified in the First Schedule 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 the Legislative Assembly or Legislative
Council of a State if he is so disqualified under the Tenth Schedule.
Provisions of a similar nature with regard to Parliament are to be found in Articles 74, 75, 84, 88
and 102.
The Representation of the People Act, 1951 was enacted to provide for the conduct of elections to the
Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications
and disqualifications for membership of those Houses, the corrupt practices and other offences at or
in connection with such elections and the decision of doubts and disputes arising out of or in
connection with such elections. The relevant provisions of that Act for our purposes are Sections 8,
8A, 9, 9A, 10 and 10A. They read thus:
8. Disqualification on conviction for certain offences (1) A person convicted of an offence punishable
under -
(a) section 153A (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 171E (offence of bribery) or section 171F (offence of undue influence or personation at an
election) or sub-section (1) or sub-section (2) of section 376 or section 376A or section 376B or
section 376C or section 376D (offences relating to rape) or section 498A (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) or 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) or 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 section 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 135A (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 or 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);] shall be disqualified for a period of six years from the date of such conviction.
(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); or
(d) any provisions of the Commission of Sati (Prevention) Act, 1987 (3 of 1988), 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 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) and 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 brought 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).
Central to the controversy herein is Article 164, with special reference to sub-Article (4) thereof. This
Court has considered its import in a number of decisions. In Har Sharan Verma Vs. Shri Tribhuvan
Narain Singh, Chief Minister, U.P. and Another [1971 (1) SCC 616], a Constitution Bench rendered
the decision in connection with the appointment of the first respondent therein as Chief Minister of
Uttar Pradesh at a time when he was not a member of either House of the Legislature of that State.
The Court said :
3. It seems to us that clause (4) of Article 164 must be interpreted in the context of Articles 163 and
164 of the Constitution. Article 163(1) provides that 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. Under clause (1) of Article 164, the Chief Minister has to be appointed by the Governor
and the other Ministers have to be appointed by him on the advice of the Chief Minister. They all
hold office during the pleasure of the Governor. Clause (1) does not provide any qualification for the
person to be selected by the Governor as the Chief Minister or Minister, but clause (2) makes it
essential that the Council of Ministers shall be collectively responsible to the Legislative Assembly of
the State. This is the only condition that the Constitution prescribes in this behalf.
6. It seems to us that in the context of the other provisions of the Constitution referred to above
there is no reason why the plain words of clause (4) of Article 164 should be cut down in any manner
and confined to a case where a Minister loses for some reason his seat in the Legislature of the State.
We are assured that the meaning we have given to clause (4) of Article 164 is the correct one from
the proceedings of the Constituent Assembly and the position as it obtains is England, Australia and
South Africa.
The Court set out the position as it obtained in England, Australia and South Africa and observed
that this showed that Article 164(4) had an ancient lineage.

In Har Sharan Verma Vs. State of U.P. and Another [ 1985 (2) SCC 48], a two Judge Bench of this
Court considered a writ petition for the issuance of a writ in the nature of quo warranto to one K.P.
Tewari, who had been appointed as a Minister of the Government of Uttar Pradesh even though he
was not a member of either House of the State Legislature. Reliance was placed upon the earlier
judgment in the case of Tribhuvan Narain Singh and it was held that no material change had been
brought about by reason of the amendment of Article 173(a) in the legal position that a person who
was not a member of the State Legislature might be appointed a Minister, subject to Article 164(4)
which said that a Minister who for any period of six consecutive months was not a member of the
State Legislature would at the expiration of that period cease to be a Minister.
Another two Judge Bench of this Court in Harsharan Verma Vs. Union of India and Another [1987
(Supp.) SCC 310] considered the question in the context of membership of Parliament and Article
75(5), which is similar in terms to Article 164(4). The Court said that a person who was not a
member of the either House of Parliament could be a Minister for not more than six months; though
he would not have any right to vote, he would be entitled, by virtue of Article 88, to participate in the
proceedings of Parliament.
In S.P. Anand, Indore Vs. H.D. Deve Gowda and Others [1996 (6) SCC 734], the first respondent,
who was not a member of Parliament, was sworn in as Prime Minister. This was challenged in a writ
petition under Article 32. Reference was made to the earlier judgments. It was held, on a parity of
reasoning if a person who is not a member of the State Legislature can be appointed a Chief Minister
of a State under Article 164(4) for six months, a person who is not a member of either House of
Parliament can be appointed Prime Minister for the same period.
In S.R. Chaudhuri Vs. State of Punjab & Ors. [2001 (5) SCALE 269], one Tej Parkash Singh was
appointed a Minister of the State of Punjab on the advice of the Chief Minister, Sardar Harcharan
Singh Barar. At the time of his appointment as a Minister Tej Parkash Singh was not a member of
the Punjab Legislative Assembly. He was not elected as a member of that Assembly within a period
of six months and he submitted his resignation. During the same legislative term Sardar Harcharan
Singh Barar was replaced as Chief Minister by Smt. Rajinder Kaur Bhattal. On her advice, Tej
Parkash Singh was appointed a Minister yet again. The appointment was challenged by a writ
petition in the High Court seeking a writ of quo warranto. The writ petition was dismissed in limine
and an appeal was filed by the writ petitioner in this Court. The judgments aforementioned were
referred to by this Court and it was said :
17. The absence of the expression from amongst members of the legislature in Article 164 (1) is
indicative of the position that whereas under that provision a non-legislator can be appointed as a
Chief Minister or a Minister but that appointment would be governed by Article 164(4), which places
a restriction on such a non-member to continue as a Minister or the Chief Minister, as the case may
be, unless he can get himself elected to the Legislature within the period of six consecutive months
from the date of his appointment. Article 164(4) is, therefore, not a source of power or an enabling
provision for appointment of a non- legislator as a Minister even for a short duration. It is actually
in the nature of a disqualification or restriction for a non-member who has been appointed as a
Chief Minister or a Minister, as the case may be, to continue in office without getting himself elected

within a period of six consecutive months.
The Court said that in England the position was this : In the Westminster system, it is an established
convention that Parliament maintains its position as controller of the executive. By a well settled
convention, it is the person who can rely on support of a majority in the House of Commons, who
forms a government and is appointed as the Prime Minister. Generally speaking he and his
Ministers must invariably all be Members of Parliament (House of Lords or House of Commons)
and they are answerable to it for their actions and policies. Appointment of a non- member as a
Minister is a rare exception and if it happens it is for a short duration. Either the individual
concerned gets elected or is conferred life peerage.
The Court noted the constitutional scheme that provided for a democratic parliamentary form of
Government, which envisaged the representation of the people, responsible Government and the
accountability of the Council of Ministers to the legislature. Thus was drawn a direct line of
authority from the people through the legislature to the executive. The position in England,
Australia and Canada showed that the essentials of a system of representative Government, like the
one in India, were that, invariably, all Ministers were chosen out of the members of the legislature
and only in rare cases was a non- member appointed a Minister and he had to get himself returned
to the legislature by direct or indirect election within a short period. The framers of the Constitution
had not visualised that a non-legislator could be repeatedly appointed a Minister, for a term of six
months each, without getting elected because such a course struck at the very root of parliamentary
democracy. It was accordingly held that the appointment of Tej Parkash Singh as a Minister for a
second time was invalid and unconstitutional.
Mr. K.K. Venugopal, learned counsel for the second respondent, was right when he submitted that
the question that arises before us has not, heretofore, arisen before the courts. This is for the reason
that, heretofore, so far as is known, no one who was ineligible to become a member of the legislature
has been made a Minister. Certainly, no one who has earned a conviction and sentence covered by
Section 8 of the Prevention of Corruption Act would appear to have been appointed Chief Minister.
To answer the question before us, three sub-Articles of Article 164 need, in our view, to be read
together, namely, sub-Articles (1),(2) and (4). By reason of sub-Article (1), the Governor is
empowered to appoint the Chief Minister; the Governor is also empowered to appoint the other
Ministers, but, in this regard, he must act on the advice of the Chief Minister. Sub-Article (2)
provides, as is imperative in a representative democracy, that the Council of Ministers shall be
collectively responsible to the Legislative Assembly of the State. The political executive, namely, the
Council of Ministers, is thus, through the Legislative Assembly, made representative of and
accountable to the people of the State who have elected the Legislative Assembly. 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. It is
sub-Article (4) which makes the appointment of a person other than a member of the Legislature of
the State as a Minister permissible, but it stipulates that a Minister who for any period of six
consecutive months is not a member of the Legislature of the State shall at the expiration of that
period cease to be a Minister. Necessarily implicit in sub-Article (4) read with sub- Articles (1) and

(2) is the requirement that a Minister who is not a member of the legislature must seek election to
the legislature and, in the event of his failing to secure a seat in the legislature within six months, he
must cease to be a Minister. The requirement of sub- Article (4) being such, it follows as the night
the day that a person who is appointed a Minister though he is not a member of the legislature shall
be one who can stand for election to the legislature and satisfy the requirement of sub-Article (4). In
other words, he must be one who satisfies the qualifications for membership of the legislature
contained in the Constitution (Article 173) and is not disqualified from seeking that membership by
reason of any of the provisions therein (Article 191) on the date of his appointment.
The provision of sub-Article (4) of Article 164 is meant to provide for a situation where, due to
political exigencies or to avail of the services of an expert in some field, it is requisite to induct into
the Council of Ministers a person who is not then in the legislature. That he is not in the legislature
is not made an impassable barrier. To that extent we agree with Mr. Venugopal, but we cannot
accept his submission that sub-Article (4) must be so read as to permit the induction into the
Council of Ministers of short term Ministers whose term would not extend beyond six months and
who, therefore, were not required to have the qualifications and be free of the disqualifications
contained in Articles 173 and 191 respectively. What sub-Article (4) does is to give a non-legislator
appointed Minister six months to become a member of the legislature. Necessarily, therefore, that
non-legislator must be one who, when he is appointed, is not debarred from obtaining membership
of the legislature : he must be one who is qualified to stand for the legislature and is not disqualified
to do so. Sub-Article (4) is not intended for the induction into the Council of Ministers of someone
for six months or less so that it is of no consequence that he is ineligible to stand for the legislature.
It would be unreasonable and anomalous to conclude that a Minister who is a member of the
legislature is required to meet the constitutional standards of qualification and disqualification but
that a Minister who is not a member of the legislature need not. Logically, the standards expected of
a Minister who is not a member should be the same as, if not greater than, those required of a
member.
The Constituent Assembly Debates (Volume VII) note that when the corresponding Article relating
to Members of Parliament was being discussed by the Constituent Assembly, Dr. B.R. Ambedkar
said:
.. The first amendment is by Mr. Mohd.
Tahir. His suggestion is that no person should be appointed a minister unless at the time of his
appointment he is an elected member of the House. He does not admit the possibility of the cases
covered in the proviso, namely, that although a person is not at the time of his appointment a
member of the House, he may nonetheless be appointed as a minister in the cabinet subject to the
condition that within six months he shall get himself elected to the House. The second qualification
is by Prof. K.T. Shah. He said that a minister should belong to a majority party and his third
qualification is that he must have a certain educational status. Now, with regard to the first point,
namely, that no person shall be entitled to be appointed a Minister unless he is at the time of his
appointment an elected member of the House. I think it forgets to take into consideration certain

important matters which cannot be overlooked. First is this, - it is perfectly possible to imagine that
a person who is otherwise competent to hold the post of a Minister has been defeated in a
constituency for some reason which, although it may be perfectly good, might have annoyed the
constituency and he might have incurred the displeasure of that particular constituency. It is not a
reason why a member of the Cabinet on the assumption that he shall be able to get himself elected
either from the same constituency or from another constituency. After all the privilege that is
permitted is a privilege that extends only for six months. It does not confer a right to that individual
to sit in the House without being elected at all..
(Emphasis supplied) What was said by Dr. B.R. Ambedkar is self-explanatory. It shows clearly that
the Constituent Assembly envisaged that non- legislator Ministers would have to be elected to the
legislature within six months and it proceeded on the basis that the Article as it read required this.
The manner in which we have interpreted Article 164 is, thus, borne out.
It was submitted on behalf of the respondents that it was not open to the Court to read into Article
164 the requirement that a non- legislator Minister must be elected to the legislature within six
months. No qualifications or disqualifications could, it was submitted, be read into a constitutional
provision. Reliance was placed upon passages from the some of the judgments in His Holiness
Kesavananda Bharati Sripadagalavaru v. State of Kerala, [1973 (Supp.) S.C.R. 1].
What we have done is to interpret Article 164 on its own language and to read sub-Article (4) thereof
in the context of sub- Articles (1) and (2). In any event, it is permissible to read into sub- Article (4)
limitations based on the language of sub-Articles (1) and (2).
A Constitution Bench in Minerva Mills Ltd. & Ors. Vs. Union of India & Ors. [1981 (1) SCR 206],
considered in some detail the judgment in Kesavananda Bharati. It was considering the validity of
the clauses introduced into Article 368 by the Constitution (Forty- second Amendment) Act. They
provided :
(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to
have been made under this article (whether before on after the commencement of section 55 of the
Constitution (Forty-second Amendment) Act, 1976) shall be called in question in any court on any
ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the
constituent power of Parliament to amend by way of addition, variation or repeal the provisions of
this Constitution under this article.
Chandrachud, C.J. noted in his judgment that the avowed purpose thereof was the removal of
doubts. He observed that after the decision in Kesavananda Bharti, there could be no doubt as
regards the existence of limitations on Parliaments power to amend the Constitution. In the context
of the constitutional history of Article 368, the true object of the declaration contained in clause (5)
was the removal of those limitations. Clause (5) conferred upon Parliament a vast and undefined
power to amend the Constitution, even so as to distort it out of recognition. The theme song of the

Court in the majority decision in Kesavananda Bharti had been, 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. The majority judgment in Kesavananda Bharti conceded to Parliament the right to make
alterations in the Constitution so long as they were within the basic framework. The Preamble
assured the people of India of a polity whose basic structure was described therein as a Sovereign
Democratic Republic; Parliament could make any amendments to the Constitution as it deemed
expedient so long as they did not damage or destroy Indias sovereignty and its democratic,
republican character. Democracy was a meaningful concept whose essential attributes were recited
in the Preamble itself : Justice, social, economic and political : Liberty of thought, expression, belief,
faith and worship; and Equality of status and opportunity. Its aim, again as set out in the Preamble,
was to promote among the people an abiding sense of Fraternity assuring the dignity of the
individual and the unity of the Nation. The newly introduced clause (5) demolished the very pillars
on which the Preamble rested by empowering Parliament to exercise its constituent power without
any limitation whatever. No constituent power could conceivably go higher than the power
conferred by clause (5) for it empowered Parliament even to repeal the provisions of this
Constitution, that is to say, to abrogate democracy and substitute for it a totally antithetical form of
government. That could most effectively be achieved, without calling democracy by any other name,
by denial of social, economic and political justice to the people, by emasculating liberty of thought,
expression, belief, faith and worship and by abjuring commitment to the magnificient ideal of a
society of equals. The power to destroy was not a power to amendment. Since the Constitution had
conferred a limited amending power on Parliament, Parliament could not under 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, expand 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 exercise of that power convert the
limited power into an unlimited one.
All this was said in relation to the Article 368(1) and (5). Sub- Article (1) read thus :
368. Power of Parliament to amend the Constitution and procedure therefor (1) Notwithstanding
anything in this Constitution, Parliament may in exercise of its constituent power amend by way of
addition, variation or repeal any provision of this Constitution in accordance with the procedure laid
down in this article.
Nothing can better demonstrate that is permissible for the Court to read limitations into the
Constitution based on its language and scheme and its basic structure.
We hold, therefore, that a non-legislator can be made 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.

The next question is : Was the second respondent qualified for membership of the legislature and
not disqualified therefor when she was appointed Chief Minister on 14th May, 2001.
It was submitted by learned counsel for the respondents that the suspension of the sentences passed
against the second respondent by the High Court at Madras was tantamount to the suspension of
the convictions against her. Our attention was then drawn to Section 8(3) of the Representation of
the People Act, which says that a person convicted of any offence and sentenced to imprisonment for
not less than two years shall be disqualified.. In learned counsels submission, for the purposes of
Section 8(3), it was the sentence alone which was relevant and if there were a suspension of the
sentence, there was a suspension of the disqualification. The sentences awarded to the second
respondent having been suspended, the disqualification under Section 8(3), in so far as it applied to
her, was also suspended.
Section 389 of the Code of Criminal Procedure on the basis of which the second respondent was
released on bail by the Madras High Court reads, so far as is relevant, as follows :
389. Suspension of sentence pending the appeal; release of appellant on bail (1) Pending any appeal
by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order
that the execution of the sentence or order appealed against be suspended and, also, if he is in
confinement, that he be released on bail, or on his own bond.
(Emphasis supplied) It is true that the order of the High Court at Madras on the application of the
second respondent states, Pending criminal appeals the sentence of imprisonment alone is
suspended and the petitioners shall be released on bail.., but this has to be read in the context of
Section 389 under which the power was exercised. Under Section 389 an appellate court may order
that the execution of the sentence or order appealed against be suspended... It is not within the
power of the appellate court to suspend the sentence; it can only suspend the execution of the
sentence pending the disposal of appeal. The suspension of the execution of the sentence does not
alter or affect the fact that the offender has been convicted of a grave offence and has attracted the
sentence of imprisonment of not less than two years. The suspension of the execution of the
sentences, therefore, does not remove the disqualification against the second respondent. The
suspension of the sentence, as the Madras High Court erroneously called it, was in fact only the
suspension of the execution of the sentences pending the disposal of the appeals filed by the second
respondent. The fact that she secured the suspension of the execution of the sentences against her
did not alter or affect the convictions and the sentences imposed on her and she remained
disqualified from seeking legislative office under Section 8(3).
In the same connection, learned counsel for the respondents drew our attention to the judgment of a
learned single Judge of the High Court at Madras, Mr. Justice Malai Subramanium, on the
application of the second respondent for stay of the execution of the orders of conviction against her.
The learned Judge analysed Section 8 of the Representation of the People Act and came to this
conclusion:

In this case, sentence of imprisonment has already been suspended. Under such circumstances, in
my view, there may not be any disqualification for the petitioner to contest in the election.
Learned counsel submitted that it was because of this conclusion that the learned Judge had not
stayed the execution of the orders, and his conclusion bound the Governor. In the first place, the
interpretation of the provision by the learned Judge is, as shown above, erroneous. Secondly, the
reason why he refused to stay the execution of the orders was because the second respondent had
been found guilty of offences under the Prevention of Corruption Act. Thirdly, the learned Judge
was required by the application to consider whether or not the execution of the orders against the
second respondent should be stayed; the consideration of and conclusion upon the provisions of
Section 8 of the Representation of the People Act was wholly extraneous to that issue. Fourthly, the
conclusion was tentative, as indicated by the use of the word may in the passage quoted from his
judgment above. Lastly, as will be shown, we are not here concerned with what the Governor did or
did not do; we are concerned with whether the second respondent can show that she was, when she
was appointed Chief Minister, qualified to be a legislator under Article 173 and not disqualified
under Article 191.
In relation to the difference in the periods of disqualification in sub-sections (1), (2) and (3) of
Section 8 of the Representation of the People Act an argument similar to that which was raised and
rejected in Raghbir Singh Vs. Surjit Singh [1994 Supp (3) SCC 162] was advanced. This Court there
said :
5. Section 8 prescribes disqualification on conviction for certain offences. Sub-section (1) provides
the disqualification for a period of six years from the date of conviction for the offences specified in
clauses (a) to (i) thereof. In sub- section (1), the only reference is to conviction for the specified
offences irrespective of the sentence awarded on such conviction. Sub-section (2) then prescribes
that on conviction for the offences specified therein and sentence to imprisonment for not less than
six months, that person 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. Thus, in case of conviction for the
offences specified in sub- section (2), the disqualification is attracted only if the sentence is of
imprisonment for not less than six months and in that event the disqualification is for a period of
not merely six years from the date of such conviction but commencing from the date of such
conviction it shall continue for a further period of six years since his release. Sub-section (3) then
prescribes a similar longer period of disqualification from the date of such conviction to continue for
a further period of six years since his release where a person is 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). The classification is clear. This classification is made with
reference to the offences and the sentences awarded on conviction. In sub-section (1) are specified
the offences which are considered to be of one category and the period of six years disqualification
from the date of conviction is provided for them irrespective of one sentence awarded on such
conviction. In sub-section (2) are specified some other offences, the conviction for which is
considered significant for disqualification only if the sentence is of imprisonment for not less than
six months and in that case a longer period of disqualification has been considered appropriate.
Then comes sub-section (3) which is the residuary provision of this kind wherein the

disqualification is prescribed only with reference to the period of sentence of imprisonment of not
less than two years for which the longer period of disqualification is considered appropriate. The
legislature itself has classified the offences on the basis of their nature and in the residuary provision
contained in sub-section (3), the classification is made only with reference to the period of sentence
being not less than two years.
6. In sub-section (3) of Section 8, all persons 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)] are classified together and the period of disqualification prescribed for all of them is
the same. All persons convicted of offences other than any offence referred to in sub-section (1) or
sub-section (3) and sentenced to imprisonment of not less than two years constitute one class and
are governed by sub-section (3) prescribing the same period of disqualification for all of them. The
category of persons covered by sub-sections (1), (2) and (3) being different and distinct, the question
of comparison inter se between any two of these three distinct classes does not arise. Without such a
comparison between persons governed by these different sub- sections being permissible, the very
basis of attack on the ground of discrimination is not available. Prescription of period of
disqualification for different classes of persons convicted of different offences is within the domain
of legislative discretion and wisdom, which is not open to judicial scrutiny.
It was pointed out by learned counsel for the respondents that under Section 8(3) of the
Representation of the People Act the disqualification was attracted on the date on which a person
was convicted of any offence and sentenced to imprisonment for not less than two years. It was
pointed out, rightly, that the law contemplated that the conviction and the sentence could be on
different dates. It was submitted that it was unworkable that the disqualification should operate
from the date of conviction which could precede the date of sentence; therefore, the conviction
referred to in Section 8(3) should be taken to be that confirmed by the appellate court because it was
only in the appellate court that conviction and sentence would be on the same day. We find the
argument unacceptable. In those cases where the sentence is imposed on a day later that the date of
conviction (which, incidentally, is not the case here) the disqualification would be attracted on the
date on which the sentence was imposed because only then would a person be both convicted of the
offence and sentenced to imprisonment for less not that two years which is cumulatively requisite to
attract the disqualification under Section 8(3).
The focus was then turned upon Section 8(4) of the Representation of the People Act and it was
submitted that all the disqualifications set down in Section 8 would not apply until a final court had
affirmed the conviction and sentence. This was for the reason that the principle underlying Section
8(4) had to be extended to a non legislator as, otherwise, Article 14 would stand violated for the
presumption of innocence would apply to a sitting member till the conviction was finally affirmed
but in the case of a non-legislator the disqualification would operate on conviction by the court of
first instance. It was submitted that Section 8(4) had to be read down so that its provisions were not
restricted to sitting members and in all cases the disqualification applied only when the conviction
and sentence was finally upheld.

Section 8(4) opens with the words Notwithstanding anything in sub-section (1), sub-section (2) and
sub-section (3), and it applies only to sitting members of legislatures. There is no challenge to it on
the basis that it violates Article 14. If there were, it might be tenable to contend that legislators stand
in a class apart from non legislators, but we need to express no final opinion. In any case, if it were
found to be violative of Article 14, it would be struck down in its entirety. There would be, and is no
question of so reading it that its provisions apply to all, legislators and non-legislators, and that,
therefore, in all cases the disqualification must await affirmation of the conviction and sentence by a
final court. That would be reading up the provision, not reading down, and that is not known to the
law.
In much the same vein, it was submitted that the presumption of innocence continued until the final
judgment affirming the conviction and sentence was passed and, therefore, no disqualification
operated as of now against the second respondent. Before we advert to the four judgments relied
upon in support of this submission, let us clear the air. When a lower court convicts an accused and
sentences him, the presumption that the accused is innocent comes to an end. The conviction
operates and the accused has to undergo the sentence. The execution of the sentence can be stayed
by an appellate court and the accused released on bail. In many cases, the accused is released on bail
so that the appeal is not rendered infructuous, at least in part, because the accused has already
undergone imprisonment. If the appeal of the accused succeeds the conviction is wiped out as
cleanly as if it had never existed and the sentence is set aside. A successful appeal means that the
stigma of the offence is altogether erased. But that it is not to say that the presumption of innocence
continues after the conviction by the trial court. That conviction and the sentence it carries operate
against the accused in all their rigour until set aside in appeal, and a disqualification that attaches to
the conviction and sentence applies as well.
Learned counsel cited from the judgment of this Court in Padam Singh Vs. State of U.P. [2000 (1)
SCC 621] the passage which reads : It is the duty of an appellate court to look into the evidence
adduced in the case and arrive at an independent conclusion as to whether the said evidence can be
relied upon or not and even if it can be relied upon, then whether the prosecution can be said to
have been proved beyond reasonable doubt on the said evidence.
(Page 625 C) The passage is relevant to the duty of an appeal court. It is the duty of an appeal court
to look at the evidence afresh to see if the case against the accused has been established by the
prosecution beyond reasonable doubt, uninfluenced by the decision of the trial court; in other
words, to look at it as if the presumption of the innocence of the accused still applied. The passage
does not support the proposition canvassed.
In Maru Ram Vs. Union of India and Ors. [1981 (1) SCC 107] it was stated :
When a person is convicted in appeal, it follows that the appellate Court has exercised its power in
the place of the original court and the guilt, conviction and sentence must be substituted for and
shall have retroactive effect from the date of judgment of the trial Court. The appellate conviction
must relate back to the date of the trial Courts verdict and substitute it.

There is no question of the correctness of what is set out above but it has no application to the issue
before us. What we are concerned with is whether, on the date on which the second respondent was
sworn in as Chief Minister, she suffered from a disqualification by reason of the convictions and
sentences against her.
In Dilip Kumar Sharma and Others Vs. State of Madhya Pradesh [1976 (1) SCC 560], this Court was
concerned with Section 303 of the Indian Penal Code, which provided : Whoever being under
sentence of imprisonment for life, commits murder shall be punished with death. Sarkaria, J., in his
concurring judgment, held, on an interpretation of the section, that once it was established that, at
the time of committing the murder, the prisoner was under a sentence of life imprisonment, the
court had no discretion but to award the sentence of death, notwithstanding mitigating
circumstances. The provision was, therefore, Draconion in its severity. It was in these circumstances
that he held that the phrase being under sentence of imprisonment for life had to be restricted to a
sentence which was final, conclusive and ultimate so far as judicial remedies were concerned for the
other alternative would lead to unreasonable and unjust results. The observations of the learned
Judge are relevant to the case before him; they do not have wider implications and do not mean that
all convictions by a trial court do not operate until affirmed by the highest Court.
Lastly, in this connection, our attention was drawn to the case of Vidya Charan Shukla Vs.
Purshottam Lal Kaushik [ 1981 (2) SCC 84]. The Court held that if a successful candidate was
disqualified for being chosen, at the date of his election or at any earlier stage of any step in the
election process, on account of his conviction and sentence exceeding two years imprisonment, but
his conviction and sentence was set aside and he was acquitted on appeal before the pronouncement
of the judgment in the election petition pending against him, his disqualification was retrospectively
annulled and the challenge to his election on the ground that he was so disqualified was no longer
sustainable. This case dealt with an election petition and it must be understood in that light. What it
laid down does not have a bearing on the question before us: the construction of Article 164 was not
in issue. There can be no doubt that in a criminal case acquittal in appeal takes effect retrospectively
and wipes out the sentence awarded by the lower court. This implies that the stigma attached to the
conviction and the rigour of the sentence are completely obliterated, but that does not mean that the
fact of the conviction and sentence by the lower court is obliterated until the conviction and
sentence are set aside by an appellate court. The conviction and sentence stand pending the decision
in the appeal and for the purposes of a provision such as Section 8 of the Representation of the
People Act are determinative of the disqualifications provided for therein.
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.
It was submitted by learned counsel for the respondents that, even so, the court could do nothing
about it. It was submitted that in the case of a Chief Minister or Minister appointed under Article
164(1) read with (4) the people, who were the ultimate sovereign, had expressed their will through
their elected representatives. For the period of six months the locus penitentiae operated as an

exception, as a result of which, for that period, the peoples will prevailed in a true parliamentary
democracy, especially as no provision was made for adjudicating alleged disqualifications, like the
holding of an office of profit or a subsisting contract for the supply of goods or execution of works.
In this area of constitutional governance, for the limited period of six months, it was not open to the
court to import qualifications and disqualifications for a minister qua minister when none existed in
Article 164(4). The Governor, not being armed with the machinery for adjudicating qualifications or
disqualifications, for example, on the existence of subsisting contracts or the holding of offices of
profit, and having no power to summon witnesses or to administer an oath or to summon
documents or to deliver a reasoned judgment, the appointment made by him on the basis of the
conventions of the Constitution could not be challenged in quo warranto proceedings so that an
appointment that had been made under Article 164 could not be rendered one without the authority
of law. If it did so, the court would be entering the political thicket. When qualifications and
disqualifications were prescribed for a candidate or a member of the legislature and a machinery
was provided for the adjudication thereof, the absence of the prescription of any qualification for a
Minister or Chief Minister appointed under Article 164(1) read with (4) and for adjudication thereof
meant that the Governor had to accept the will of the people in selecting the Chief Minister or
Minister, the only consideration being whether the political party and its leader commanded a
majority in the legislature and could provide a stable government. Once the electorate had given its
mandate to a political party and its leader to run the government of a State for a term of five years,
in the absence of any express provision in the Constitution to the contrary, the Governor was bound
to call the leader of that legislature party to form the government. There was no express,
unambiguous provision in the Constitution or in the Representation of the People Act or any
decision of this Court or a High Court declaring that a person convicted of an offence and sentenced
to imprisonment for a period of not less than two years by the trial court shall not be appointed
Chief Minister during the pendency of his first appeal. In such a situation, the Governor could not be
expected to take a position of confrontation with the people of the State who had voted the ruling
party to power and plunge the State into turmoil. In the present case, the Governor was entitled to
proceed on the basis that the appeals of the second respondent having been directed, in October,
2000, to be heard within two months, it would be open to the second respondent to have the appeals
disposed of within the time limit of six months and, in case of an acquittal, no question of
ineligibility to contest an election within the period of six months would arise. If the Governor
invited the leader of the party which had a majority in the legislature to form a government, it
would, if the leader was a non legislator, thereafter not to be open to the court in quo warranto
proceedings to decide that the Chief Minister was disqualified. Otherwise, this would mean that
when the Governor had invited, in accordance with conventions, the leader to be Chief Minister, in
the next second the leader would have to vacate his office by reason of the quo warranto. The court
would then be placing itself in a position of prominence among the three organs of the State, as a
result of which, instead of the House deciding whether or not to remove such a person through a
motion of no confidence, the court would take over the function, contrary to the will of the
legislature which would mean the will of the people represented by the majority in the legislature. In
then deciding that the Chief Minister should demit office, the court would be entering the political
thicket, arrogating to itself a power never intended by the Constitution, the exercise of which would
result in instability in the governance of the State.

We are, as we have said, not concerned here with the correctness or otherwise of the action of the
Governor in swearing the second respondent in as Chief Minister in the exercise of the Governors
discretion.
But submissions were made by learned counsel for the respondents in respect of the Governors
powers under Article 164 which call for comment. The submissions were that the Governor,
exercising powers under Article 164(1) read with (4), was obliged to appoint as Chief Minister
whosoever the majority party in the legislature nominated, regardless of whether or not the person
nominated was qualified to be a member of the legislature under Article 173 or was disqualified in
that behalf under Article 191, and the only manner in which a Chief Minister who was not qualified
or who was disqualified could be removed was by a vote of no- confidence in the legislature or by the
electorate at the next elections. To a specific query, learned counsel for the respondents submitted
that the Governor was so obliged even when the person recommended was, to the Governors
knowledge, a non-citizen, under-age, a lunatic or an undischarged insolvent, and the only way in
which a non-citizen or under-age or lunatic or insolvent Chief Minister could be removed was by a
vote of no-confidence in the legislature or at the next election.
The nomination to appoint a person who is a non-citizen or under-age or a lunatic or an insolvent as

Chief Minister having been made by the majority party in the legislature, it is hardly realistic to
expect the legislature to pass a no-confidence motion against the Chief Minister; and the election
would ordinarily come after the Chief Minister had finished his term.
To accept learned counsels submission is to invite disaster. As an example, the majority party in the
legislature could recommend the appointment of a citizen of a foreign country, who would not be a
member of the legislature and who would not be qualified to be a member thereof under Article 173,
as Chief Minister under Article 164(1) read with (4) to the Governor; and the Governor would be
obliged to comply; the legislature would be unable to pass a no- confidence motion against the
foreigner Chief Minister because the majority party would oppose it; and the foreigner Chief
Minister would be ensconced in office until the next election. Such a dangerous such an absurd
interpretation of Article 164 has to be rejected out of hand. The Constitution prevails over the will of
the people as expressed through the majority party. The will of the people as expressed through the
majority party prevails only if it is in accord with the Constitution. The Governor is a functionary
under the Constitution and is sworn to preserve, protect and defend the Constitution and the laws
(Article 159). The Governor cannot, in the exercise of his discretion or otherwise, do anything that is
contrary to the Constitution and the laws. It is another thing that by reason of the protection the
Governor enjoys under Article 361, the exercise of the Governors discretion cannot be questioned.
We are in no doubt at all that if the Governor is asked by the majority party in the legislature to
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 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.
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.
The judgment of this Court in Shri Kumar Padma Prasad Vs. Union of India and Others [1992(2)
SCC 428] is a case on point. One K.N. Srivastava was appointed a Judge of the Gauhati High Court
by a warrant of appointment signed by the President of India. Before the oath of his office could be
administered to him, quo warranto proceedings were taken against him in that High Court. An
interim order was passed directing that the warrant of appointment should not be given effect to
until further orders. A transfer petition was then filed in this Court and was allowed. This Court, on
examination of the record and the material that it allowed to be placed before it, held that Srivastava
was not qualified to be appointed a High Court Judge and his appointment was quashed. This case
goes to show that even when the President, or the Governor, has appointed a person to a
constitutional office, the qualification of that person to hold that office can be examined in quo
warranto proceedings and the appointment can be quashed.
It was submitted that we should not enter a political thicket by answering the question before us.
The question before us relates to the interpretation of the Constitution. It is the duty of this Court to
interpret the Constitution. It must perform that duty regardless of the fact that the answer to the
question would have a political effect. In State of Rajasthan and Others Vs. Union of India and
Others [1977(3) SCC 592], it was said by Bhagwati, J. , But merely because a question has a political
complexion, that by itself is no ground why the Court should shrink from performing its duty under
the Constitution, if it raises an issue of constitutional determination. Every constitutional question
concerns the allocation and exercise of governmental power and no constitutional question can,
therefore, fail to be political . So long as a question arises whether an authority under the
Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the
Court. Indeed it would be its constitutional obligation to do so. It is necessary to assert the clearest
possible terms, particularly in the context of recent history, that the Constitution is suprema lex, the
paramount law of the land and there is no department or branch of Government above or beyond it.
We are satisfied that in the appointment of the second respondent as Chief Minister there has been a
clear infringement of a constitutional provision and that a writ of quo warranto must issue.
We are not impressed by the submissions that the writ petitions for quo warranto filed in this Court
are outside our jurisdiction because no breach of fundamental rights has been pleaded therein; that
the appeal against the decision of the Madras High Court in the writ petition for similar relief filed
before it was correctly rejected because the same issue was pending here; and that the transferred
writ petition for similar relief should, in the light of the dismissal of the writ petitions filed in this
Court, be sent back to the High Court for being heard. Breach of Article 14 is averred in at least the
lead writ petition filed in this Court (W.P.(C) No.242 of 2001). The writ petition which was
dismissed by the High Court and against which order an appeal is pending in this Court was filed
under Article 226, as was the transferred writ petition. This Court, therefore, has jurisdiction to

issue a writ of quo warranto. We propose to pass the order in the lead writ petition, and dispose of
the other writ petitions, the appeal and the transferred writ petition in the light thereof.
We are not impressed by the submission that we should not exercise our discretion to issue a writ of
quo warranto because the period of six months allowed by Article 164(4) to the second respondent
would expire in about two months from now and it was possible that the second respondent might
succeed in the criminal appeals which she has filed. We take the view that the appointment of a
person to the office of Chief Minister who is not qualified to hold it should be struck down at the
earliest.
We are aware that the finding that the second respondent could not have been sworn in as Chief
Minister and cannot continue to function as such will have serious consequences. Not only will it
mean that the State has had no validly appointed Chief Minister since 14th May, 2001, when the
second respondent was sworn in, but also that it has had no validly appointed Council of Ministers,
for the Council of Ministers was appointed on the recommendation of the second respondent. It
would also mean that all acts of the Government of Tamil Nadu since 14th May, 2001 would become
questionable. To alleviate these consequences and in the interest of the administration of the State
and its people, who would have acted on the premise that the appointments were legal and valid, we
propose to invoke the de facto doctrine and declare that all acts, otherwise legal and valid,
performed between 14th May, 2001 and today by the second respondent as Chief Minister, by the
members of the Council of Ministers and by the Government of the State shall not be adversely
affected by reason only of the order that we now propose to pass.
We are of the view that a person who is convicted for a criminal offence and sentenced to
imprisonment for a period of not less than two years cannot be appointed the Chief Minister of a
State under Article 164(1) read with (4) and cannot continue to function as such.
We, accordingly, order and declare that the appointment of the second respondent as Chief Minister
of the State of Tamil Nadu on 14th May, 2001 was not legal and valid and that she cannot continue
to function as such. The appointment of the second respondent as Chief Minister of the State of
Tamil Nadu is quashed and set aside.
All acts, otherwise legal and valid, performed between 14th May, 2001 and today by the second
respondent acting as Chief Minister of the State of Tamil Nadu, by the members of the Council of
Ministers of that State and by the Government of that State shall not be adversely effected by reason
only of this order.
Writ Petition (C) No.242 of 2001 is made absolute in the aforesaid terms.
In the light of this order, the other writ petitions, the appeal and the transferred writ petition stand
disposed of.
No order as to costs.

..J.
(S.P. Bharucha) ..J.
(Y.K. Sabharwal) ..J.
(Ruma Pal) September 21, 2001 Brijesh Kumar, J.
Leave granted in SLP © 11763/2001.
I have the advantage of going through the judgment prepared by Brother Bharucha, J. I am in
respectful agreement with the same. While doing so, I propose to record my views in addition, on a
few points only, in brief, since such points had been argued at some length and with all vehemence.
The points are also no doubt important.
Amongst other points, the learned counsel for the respondents submitted that the appointment of
respondent No.2 as Chief Minister by the Governor, could not be challenged, in view of the
provisions under Article 361 of the Constitution, providing that the Governor shall not be
answerable to any Court for the exercise and performance of the powers and duties of his office. It
was also submitted that in appointing the Chief Minister, the Governor exercised his discretionary
powers, therefore, his action is not justiciable. Yet another submission is that the Governor had only
implemented the decision of the majority party, in appointing the respondent No.2 as a Chief
Minister i.e. he had only given effect to the will of the people.
In so far it relates to Article 361 of the Constitution, that the Governor shall not be answerable to any
Court for performance of duties of his office as Governor, it may, at the very outset, be indicated that
we are considering the prayer for issue of writ of Quo Warranto against the respondent No.2, who
according to the petitioner suffers from disqualification to hold the public office of the Chief
Minister of a State. A writ of Quo Warranto is a writ which lies against the person, who according to
the relator is not entitled to hold an office of public nature and is only an usurper of the office. It is
the person, against whom the writ of quo warranto is directed, who is required to show, by what
authority that person is entitled to hold the office. The challenge can be made on various grounds,
including on the grounds that the possessor of the office does not fulfill the required qualifications
or suffers from any disqualification, which debars the person to hold such office. So as to have an
idea about the nature of action in a proceedings for writ of quo warranto and its original form, as it
used to be, it would be beneficial to quote from Words and Phrases Permanent Edition, Volume 35A
page 648. It reads as follows:-
The original common-law writ of quo warranto was a civil writ at the suit of the crown, and not a
criminal prosecution. It was in the nature of a writ of right by the King against one who usurped or
claimed franchises or liabilities, to inquire by what right he claimed them. This writ, however, fell
into disuse in England centuries ago, and its place was supplied by an information in the nature of a
quo warranto, which in its origin was a criminal method of prosecution, as well to punish the
usurper by a fine for the usurpation of the franchise, as to oust him or seize it for the crown. Long

before our Revolution, however, it lost its character as a criminal proceeding in everything except
form, and was applied to the mere purposes of trying the civil right, seizing the franchise, or ousting
the wrongful possessor, the fine being nominal only; and such, without any special legislation to that
effect, has always been its character in many of the states of the Union, and it is therefore a civil
remedy only. Ames v. State of Kansas, 4 S.Ct.437, 442,111 U.S. 449,28 L.Ed.482; People v.
Dashaway Assn, 24 P.277,278,84 Cal.114.
In the same Volume of Words and Phrases Permanent Edition at page 647 we find as follows:-
The writ of quo warranto is not a substitute for mandamus or injunction nor for an appeal or writ of
error, and is not to be used to prevent an improper exercise of power lawfully possessed, and its
purpose is solely to prevent an officer or corporation or persons purporting to act as such from
usurping a power which they do not have. State ex inf.McKittrick v. Murphy,
148.S.W.2d 527,529,530,347 Mo.484. (emphasis supplied) Information in nature of quo warranto

does not command performance of official functions by any officer to whom it may run, since it is
not directed to officer as such, but to person holding office or exercising franchise, and not for
purpose of dictating or prescribing official duties, but only to ascertain whether he is rightfully
entitled to exercise functions claimed. State ex inf. Walsh v. Thatcher, 102 S.W.2d 937,938,340
Mo.865. (emphasis supplied) In Halsburys Laws of England Fourth Edition Reissue Volume-I Para
265, Page 368 it is found as follows:-
266. In general. An information in the nature of a quo warranto took the place of the absolete writ of
quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to
inquire by what authority he supported his claim, in order what the right to the office or franchise
might be determined. (Emphasis supplied) Besides the above, many High Courts as well as this
Court have, taken the view that a writ of quo warranto lies against a person, who is called upon to
establish his legal entitlement to hold the office in question. Reference:
AIR 1952 Trav. Cochin 66, (1944) 48 Cal.
W.N. 766, AIR 1977 Noc. 246, AIR 1952 Nag.
330, AIR 1945 Cal.249 and AIR 1965 S.C. 491.
In view of the legal position as indicated above it would not be necessary to implead the appointing
authority as respondent in the proceedings. In the case in hand, the Governor need not be made
answerable to Court. Article 361 of the Constitution however does not extend any protection or
immunity, vicariously, to holder of an office, which under the law, he is not entitled to hold. On
being called upon to establish valid authority to hold a public office, if the person fails to do so, a
writ of quo warranto shall be directed against such person. It shall be no defence to say that the
appointment was made by the competent authority, who under the law is not answerable to any
Court for anything done in performance of duties of his office. The question of fulfilling the legal
requirements and qualifications necessary to hold a public office would be considered in the

proceedings, independent of the fact as to who made the appointment and the manner in which
appointment was made. Therefore, Article 361 of the Constitution would be no impediment in
examining the question of entitlement of a person, appointed by the Governor to hold a public
office, who according to the petitioner/relator is usurper to the office.
The other point which was pressed, with no less vehemence was that in making the appointment of
the Chief Minister, the Governor acts in exercise of his discretionary powers. In this connection,
learned counsel for the respondents referred to Article 163 of the Constitution to indicate that there
shall be a Council of Ministers headed by the Chief Minister to aid and advise the Governor in
exercise of his functions except where, under the Constitution the Governor has to discharge his
functions in his discretion. Thereafter, Article 164 of the Constitution has been referred to indicate
that Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed
by the Governor on the advise of the Chief Minister. It is submitted that the Governor appoints the
Chief Minister at a time, when there is no Council of Ministers to aid or advise him. The Governor
makes the appointment in his own discretion. Learned counsel for the respondent No.2 submitted
that the party in majority by means of a resolution had chosen respondent No.2 as their leader.
Accordingly, the respondent No.2 was appointed as the Chief Minister. It has been very categorically
submitted, without any ambiguity, that the Governor is bound to appoint any person whosoever is
chosen by majority party, as the Chief Minister. This argument cuts against his own submission
made earlier that the Governor appoints the Chief Minister in exercise of his discretionary powers. If
it is right, that the Governor is bound by the decision of the majority party, the element of discretion
of Governor, in the matter, disappears. In the scheme of Constitutional provisions the Governor is to
act with the aid and advise of the Council of Ministers headed by the Chief Minister. He is bound to
act accordingly. The other functions which the Governor performs in which aid and advice of the
Council of Ministers is not necessary, he acts in his own discretion. He is not bound by
decision/advice of any other agency. It is no doubt true that even in the written Constitution it is not
possible to provide each and every detail. Practices and conventions do develop for certain matters.
This is how democracy becomes workable. It is also true that the choice of the majority party
regarding its leader for appointment as Chief Minister is normally accepted, and rightly. But the
contention that in all eventualities whatsoever the Governor is bound by the decision of the majority
party is not a correct proposition. The Governor cannot be totally deprived of element of discretion
in performance of duties of his office, if ever any such exigency may so demand its exercise. The
argument about implementing the will of the people in the context indicated above is misconceived
and misplaced.
----------------------J.
(Brijesh Kumar) September 21 , 2001

Vivek Kumar vs State Of U.P. on 4 January, 2000

Vivek Kumar vs State Of U.P. on 4 January, 2000
Equivalent citations: AIR 2000 SC 3406 B, 2001 (1) ALD Cri 100, 2000 CriLJ 2774, JT 2000 (1) SC
552, (2000) 9 SCC 443
Bench: K Thomas, M Shah
JUDGMENT
1. Leave granted.
2. We are told that the appellant is in jail from 4-4-98 in connection with offences under Sections
307 and 395 read with Section 149 of the Indian Penal Code. It is quite a long period that he has
been in custody without commencing the trial. There is no need to detain him further in custody and
therefore we are inclined to release him on bail, notwithstanding the suppression of certain factual
position when the bail application was filed. It would not have been done by the appellant. We feel
that lapses on the part of the counsel should not in this case be allowed to prejudice the appellant
who is languishing in jail.
3. For the aforesaid reasons we order that the appellant be released on bail on execution of a bond
with two solvent sureties to the satisfaction of Chief Judicial Magistrate, Pratapgarh.
4. The Appeal is disposed of.

The State Of West Bengal vs Anwar All Sarkarhabib ... on 11 January, 1952

Equivalent citations: 1952 AIR 75, 1952 SCR 284
Author: M P Sastri
Bench: Sastri, M. Patanjali (Cj), Fazal Ali, Saiyid, Mahajan, Mehr Chand, Mukherjea, B.K., Das, S.R.
& Aiyar, N.C. & Bose, Vivian
PETITIONER:
THE STATE OF WEST BENGAL
Vs.
RESPONDENT:
ANWAR ALl SARKARHABIB MOHAMED,THE STATE OF HYDERABAD, and I
DATE OF JUDGMENT:
11/01/1952
BENCH:
SASTRI, M. PATANJALI (CJ)
BENCH:
SASTRI, M. PATANJALI (CJ)
FAZAL ALI, SAIYID
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
BOSE, VIVIAN
CITATION:
1952 AIR 75 1952 SCR 284
CITATOR INFO :
D 1952 SC 123 (1,2,6)
R 1952 SC 235 (4,5,6)
F 1952 SC 324 (15)
R 1953 SC 10 (22)
D 1953 SC 156 (15)
D 1953 SC 404 (11)
R 1954 SC 362 (3)
R 1955 SC 191 (5)
RF 1955 SC 424 (11,19)
F 1956 SC 479 (14,17,18)
RF 1957 SC 397 (16,18,24,26,31,32)
F 1957 SC 503 (16,18)
R 1957 SC 877 (16)
D 1957 SC 927 (9)
F 1958 SC 232 (14)
R 1958 SC 538 (11,12)
RF 1958 SC 578 (211)
R 1959 SC 459 (49)
F 1960 SC 457 (3,14)
R 1961 SC1602 (12)
D 1962 SC1764 (7)

R 1963 SC 222 (51)

R 1963 SC 864 (13)
RF 1964 SC 370 (6)
R 1967 SC1581 (11)
RF 1967 SC1643 (14)
R 1968 SC 1 (7,11)
RF 1970 SC 494 (8)
RF 1973 SC 564 (78)
RF 1973 SC1461 (313,616)
R 1974 SC 894 (11)
RF 1974 SC1389 (251,266,271)
R 1974 SC2009 (4,7,8,9,11,13,15,26,28,29,29,
F 1974 SC2044 (3)
R 1975 SC 583 (39)
R 1975 SC2299 (344,485,681)
D 1977 SC1772 (15)
R 1978 SC 215 (68)
R 1978 SC 597 (55)
F 1978 SC 771 (42,45)
E 1979 SC 478 (64,65,66,67,69,70)
R 1980 SC 161 (10)
RF 1980 SC1382 (114,116,121)
RF 1980 SC1789 (36)
R 1981 SC1001 (8)
RF 1981 SC1829 (84,114)
RF 1981 SC2138 (24,26)
RF 1987 SC1140 (3)
D 1988 SC1531 (163)
F 1989 SC1335 (53)
R 1990 SC 40 (8)
ACT:
West Bengal Special Courts Act (X of 1950), ss. 3, 5
Constitution of India, Art. 14--Act constituting special
courts and empowering State Government to refer "cases" or
"offences" or "classes of cases" or "classes of offences" to
such Court--Constitutional validity--Fundamental right to
equality before the law and equal protection of the
laws--Construction of Act--Reference to preamble--Act not
classifying cases or laying down standard for classifica-
tion--Intention of legislature how far material--Validity of
notification under Act--Test of equality before law--Essen-
tials of reasonable classification--Necessity for speedier
trial, whether reasonable ground for discrimination.
HEADNOTE:
The West Bengal Special Courts Act (X of 1950) was
entitled "An Act to provide for the speedier trial of cer-
tain offences," and the object of the Act. as declared in
the preamble, was "to provide for the speedier trial of

certain offences". Section 3 of the Act empowered the State

Government by notification in the official gazette to con-
stitute Special Courts, and sec. 5 provided that "A Special
Court shall try such offences or classes of offences or
cases or classes of cases, as the State Government may by
general or special order in writing, direct." The Act laid
down a procedure for trial before Special Courts which was
different in several respects from that laid down by the
Criminal Procedure Code for trial of offences generally.
The respondent, who was convicted by a Special Court which
tried his case under a notification issued by the Government
under sec. 5, contended that the said section was unconsti-
tutional and void inasmuch as it contravened Art. 14 of the
Constitution, which provides that "the State shall not deny
to any person equality before the law or the equal protec-
tion of the laws within the territory of India".
285
Held, per FAZL ALl, MAHAJAN, MUKHERJEA, CHANDRASEKHARA
AIYAR and BOsE JJ. (PATANJALI SASTRI C.J.,
dissenting)--Section 5 (1) of the West Bengal Special Courts
Act, 1950, contravenes Art. 14 of the Constitution and is
void inasmuch as (per FAZL ALl, MAHAJAN, MUKHERJEA, and
CHANDRASEKHARA AIYAR JJ.) the procedure laid down by the Act
for the trial by the Special Courts varied substantially
from that laid down for the trial of offences generally by
the Code of Criminal Procedure and the Act did not classify,
or lay down any basis for classification, of the cases which
may be directed to be tried by the Special Court, but left
it to the uncontrolled discretion of the State Government to
direct any case which it liked to be tried by the Special
Court. DAs J.--Section 5 Il) of the Act, in so far as it
empowered the State Government to direct "offences" or
"classes of offences" or "classes of cases" to be tried by a
Special Court, does not confer an uncontrolled and unguided
power on the State Government but by necessary implication
contemplates a proper classification and is not void. That
part of the section which empowered the Government to direct
"cases" as distinct from "classes of cases" to be tried by a
Special Court is void. PATANJALI SASTRI C.J.--Section 5 (1)
of the Act is not void or unconstitutional wholly or even in
part.
Per FAZL ALl, MAHAJAN, MUKHERJEA and CHANDRASEKHARA
AIYAR JJ.--A rule of procedure laid down by law comes as
much within the purview of Art. 14 of the Constitution as
any rule of substantive law and it is necessary that all
litigants, who are similarly situated, are able to avail
themselves of the same procedural rights for rebel and for
defence with like protection and without discrimination.
(ii) If it is established that the person complaining
has been discriminated against as a result of legislation
and denied equal privileges with others occupying the same
position, it is not incumbent upon him before he can claim
relief on the basis of fundamental rights to assert and

prove that, in making the law, the legislature was actuated

by a hostile or inimical intention against a particular
person or class ; nor would the operation of Art. 14 be
excluded merely because it is proved that the legislature
had no intention to discriminate, though discrimination was
the necessary consequence of the Act. The question of
intention may arise in ascertaining whether an officer acted
mala fide or not; but it cannot arise when discrimination
follows or arises on the express terms of the law itself.
(iii) The language of sec. 5 (1) clearly and unambigu-
ously vests the State Government with unrestricted discre-
tion to direct any cases or class of cases to be tried by
the Special Court, not a discretion to refer cases only when
it is of opinion that a speedier trial is necessary
286
(iv) Assuming that the preamble throws any light on the
section, the necessity of speedier trial is too vague,
uncertain and elusive a criterion to form a rational basis
for discrimination.
(v) It cannot be said that an Act does not contravene
the equality rule laid down by Art. 14 simply because it
confers unregulated discretion on officers or administrative
bodies. The true position is that if the statute itself is
not discriminatory the charge of Violation of the article
may be only against the official who administers it, but if
the statute itself makes a discrimination without any proper
or reasonable basis, it would be void for being in conflict
with Art. 14.
(vi) The notification issued under the Act in the
present case would also come within the definition of
law and could be impeached apart from the Act if it violates
Art. 14.
DAS J.--(1) Article 14 does not insist that every piece
of legislation must have universal application and it does
not take away from the State the power to classify persons
for the purposes of legislation, but the classification must
be rational, and in order to satisfy this test (i) the
classification must be founded on an intelligible differen-
tia which distinguished those that are grouped together from
others, and (ii) that differentia must have a rational
relation to the object sought to be achieved by the Act. 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. But the mere
fact that the inequality has not been made with the special
intention of prejudicing a particular person or persons but
in the general interest of administration will not validate
a law if in fact it results in inequality of treatment. Nor
can the constitutionality of a statute depend on the degree
of the inequality brought about by the law.
(2) Although the preamble to an Act cannot override the
plain meaning of its operative parts, it may nevertheless
assist in ascertaining what the true meaning or implication

of a particular section is; and the part of sec. 5 ( 1 ) of

the Act which relates to "offences' ', "Classes of offences"
and "classes of cases", construed in the light of the pream-
ble, does not confer an uncontrolled and unguided power on
the State Government, but by necessary implication and
intendment empowers the State to classify the offences or
classes of offences or classes of cases, that is to say, to
make a proper classification having a relation to the object
of the Act as recited in the preamble; and this part of sec.
5 (1) foes not therefore contravene Art. 14.
(3) That part of sec. 5(1) which empowers the State
Government to direct "cases" as distinct from "classes of
cases" to be cried by the Special Court lies beyond the
ambit of the object aid down by the preamble and contem-
plates and involves a purely arbitrary selection based on
nothing more substantial
287
than the whim and pleasure of the State Government without
any appreciable relation to the necessity for a speedier
trial and therefore offends against the provisions of Art.
14 and is void.
Bose J.--The test under Art. 14 is neither classifica-
tion nor whether there is absolute equality in any academi-
cal sense of the term but whether the collective conscience
of a sovereign democratic republic as reflected in the views
of fair-minded, reasonable, unbiassed men, who are not
swayed by emotion or prejudice, can consider the impugned
laws as reasonable, just and fair and regard them as that
equal treatment and protection in the defence of liberties
which is expected of a sovereign democratic republic in the
conditions which obtain in India to-day.
PATANJALI SASTRI C.J. (dissenting).--Section 5 (1) of
the impugned Act is not void or unconstitutional wholly or
even in part because: (1)The words in the enacting part of a
statute must be confined to that which is the plain object
and general intention of the legislature in passing the Act
and the preamble affords a good clue to discover what that
object was. The title and the preamble of the Act in the
present case show unmistakably that the whole object and
purpose of the Act was to devise machinery for the speedier
trial of certain offences. The discretion intended to be
exercised by the State Government must be exercised bona
fide on a consideration of the special features or circum-
stances which call for comparatively prompt disposal of a
case or cases proposed to be referred and sec. 5 (11 must be
read as empowering the Government to direct the Special
Court to try such offences or classes of offences or cases
or classes of cases as in its judgment, require speedier
trial. (2) Article 14 of the Constitution does not mean
that all laws must be general in character and universal in
application. The State must possess the power of distin-
guishing and classifying persons or things to be subjected
to particular laws and in making a classification the legis-

lature must be allowed a wide latitude of discretion and

judgment. The classification is justified if it is not
palpably arbitrary but is founded on a reasonable basis
having regard to the object to be attained. (3). The powers
of the legislature must include the power of entrusting an
administrative body With a plenary but not arbitrary discre-
tion to be exercised so as to carry out the purpose of the
Act and the mere fact that the discretion might be exercised
arbitrarily by the administrative body cannot make the law
itself unconstitutional. (4)The impugned Act does not in
terms or by implication discriminate between persons or
classes of persons nor does it purport to deny to any one
equality before the law or the equal protection of the laws.
(5) Even from the point of view of reasonable classification
the expediency of speedier trial is not too vague or indefi-
nite to be the basis of classification. (6) The notifica-
tion of the Government in the present case referring the
case to the Special Court did not contravene Art. 14 and is
not void inasmuch as there is nothing
288
to show that the Government was influenced by any discrimi-
natory motive or design or acted arbitrarily, but on the
other hand there are obviously special features which mark
off the group of cases referred as requiring speedier dis-
posal.
Judgment of the Calcutta High Court affirmed.
Romesh Tappar v. The Stale of Madras ([1950] S.C.R.
594), Chintaman Rao v. State of Madhya Pradesh ([1950]
S.C.R. 759), Dr. Khare's Case ([1950] S.C.R. 519), Chiranjit
Lal v. Union of India and Others ([1950] S.C R. 869) and
Slate of Bombay v.F.N. Balsara ([1951] S.C.R. 682), ex-
plained.
Truax v. Corrigan (257 U.S. 312), Yick Wo v. Hopkins
(118 U.S. 356) and other American cases on the right to
equal protection of the laws considered.
JUDGMENT:
APPELLATE CIVIL JURISDICTION: Cases Nos. 297 and 298 of 1951.
Appeals under Art. 132 (1) of the Constitution from the judgment and order dated 28th August,
1951, of the High Court of Judicature at Calcutta (Harries C.J., Chakravarthi, Das, Banerjee and S.R.
Das Gupta JJ.) in Civil Revision Cases Nos. 942 and 1113 of 1951. The facts of the case and the
argument of Counsel appear fully in the judgment. M.C. Setalvad, Attorney-General for India (B.
Sen, with him) for the appellant in Case No. 297.
Jitendra Nath Ghose (R. P. Bagchi, with him) for the respondent in Case No. 297.
A.A. Peerbhoy and J.B. Dadachanji for Habib Mohammad (Intervener).

V. Rajaram Iyer, Advocate-General of Hyderabad (R. Ganapathy Iyer, with him) for the State of
Hyderabad. A.R. Sornanatha Iyer, Advocate-General of Mysore (K. Ramaseshayya Choudhry, with
him) for the State of Mysore. B. Sen, for the appellant in Case No. 298.
N.C. Chatterjee (S. K. Kapur, with him) for the respondent in Case No. 298.
1952. January 11. The following judgments were delivered.
PATANJALI SASTRI C.J.--This is an appeal by the State of West Bengal from a judgment of a Full
Bench of the High Court of Judicature at Calcutta quashing the conviction of the respondent by the
Special Court established under section 3 of the West Bengal Special Courts Ordinance, 1949,
(Ordinance No. 3 of 1949) which was replaced in March, 1950, by the West Bengal Special Courts
Act, 1950, (West Bengal Act X of 1950) (hereinafter referred to as "the Act"). The respondent and 49
other persons were charged with various offences alleged to have been committed by them in the
course of their raid as an armed gang on a certain factory known as the Jessop Factory at Dum Dum,
and they were convicted and sentenced to varying terms of imprisonment by the Special Court to
which the case was sent for trial by the Governor of West Bengal by a notification dated 26th
January, 1950, in exercise of the powers conferred by section 5 (1) of the Act. Thereupon the
respondent applied to the High Court under article 226 of the Constitution for the issue of a writ of
certiorari quashing the conviction and sentence on the ground that the Special Court had no
jurisdiction to try the case inasmuch as section 5 (1), under which it was sent to that Court for trial,
was unconstitutional and void under article 13 (2)as it denied to the respondent the equal
protection of the laws enjoined by article 14. The High Court by a Full Bench consisting of the Chief
Justice and four other Judges quashed the conviction and directed the trial of the respondent and
the other accused persons according to law. Hence the appeal. The Act is intituled "An Act to
provide for the speedier trial of certain offences ", and the preamble declares that "it is expedient to
provide for the speedier trial of certain offences ". Section 3 empowers the State Government by
notification in the official gazette to constitute Special Courts, and section 4 provides for the
appointment of special judges to preside over such courts. Section 5, whose constitutionality is
impugned, runs thus:
"5(1) A Special Court shall try such offences or classes of cases, as the classes of offences or cases
State Government may by general or special order in writing, direct.
(2) No.direction shall be made under sub-section (1) for the trial of an offence for which an accused
person was being tried at the commencement of this Act before any court but, save as aforesaid,
such direction may be made in respect of an offence, whether such' offence was committed before
or after the commencement of this Act." Sections 6 to 15 prescribe the special procedure which the
court has to follow in the trial of the cases referred to it. The main features of such procedure which
mark a departure from the established procedure for criminal trials under the Code of Criminal
Procedure are the elimination of the committal procedure in sessions cases and the substitution of
the procedure laid down in the Code for trial of warrant cases by the Magistrate, trial without jury or
assessors, restriction of the court's power in granting adjournments, special powers to deal with
refractory accused and dispensation of de novo trial on transfer of a case from one special court to

another. While some of these departures from the normal procedure might, in practice, operate in
some respects to the disadvantage of persons tried before the Special Court, it cannot be said that
they derogate from the essential requirements of a fair and impartial trial, so as to give rise, from
their very nature, to an inference of a discriminatory design. In other words, it cannot be said that
the special procedure provided in the Act is, on its face, calculated to prejudice the fair trial of
persons subjected to it. The departure in each case is plainly calculated to shorten the trial and thus
to attain the declared objective of the statute.
Harries C.J. who delivered the leading judgment, which Das and Banerjee JJ. concurred, applied the
test of what may be called "reasonable classification" and held that, although the need for a speedier
trial than what is possible under the procedure prescribed by the Code of Criminal Procedure might
form the basis of a reasonable classification and section 5 (1) could not be regarded as
discriminatory in so far as it authorises the State Government to direct that certain offences or
classes of offences or classes of cases should be tried by a special court, the provision was
discriminatory and violative of article 14 of the Constitution in so far as it purported to vest in the
State Government an absolute and arbitrary power to refer to a special court for trial "any cases ",
which must include an individual case, "whether the duration of such a case is likely to be long or
not ". The learned Chief Justice rejected the argument that the word "cases" in the sub-section
should, in view of the title and preamble of the Act. be construed as meaning cases requiring
speedier trial." He found it" impossible to cut down the plain meaning of the word 'cases' as used in
the section". He realised that "the powers under the sub-section could be so exercised as not to
involve discrimination, but they also could, in my view, be exercised in a manner involving dis-
crimination. When an Act gives power which may and can offend against a provision or provisions
of the Constitution such an Act is ultra vires though it could be administered so as not to offend
against the Constitution", and he relied in support of this view on certain observations in the
judgment of the majority in the Crossroads case(1). Chakravartti and Das JJ. delivered separate
judgments agreeing with the conclusion of the Chief Justice, Das Gupta J,, however, going further
and holding that section 5 (1) was unconstitutional in its entirety inasmuch as "the classification
sought to be made on the expediency of speedier trial is not a well-defined classification. It is too
indefinite and there can hardly be any definite objective test to determine it."
Before considering whether section 5(1) infringes, to any and what extent, the constitutional
prohibition under article 14, it is necessary to ascertain the true scope and intendment of the
impugned provision. It (1) [1950] S C.R. 594. 603.
purports to provide for the matters to be tried by a special court and does not, in form, seek to define
the kind or class of offences or cases which the State Government is empowered under the Act to
assign to such a court for trial. In other words, the purpose of section 5 (1) is to define the
jurisdiction of a special court appointed under the Act and not the scope of the power conferred on
the State Gov- ernment to refer cases to such court. As the very object of the Act was to provide for
speedier trials by instituting a system of special courts with a simplified and shortened procedure, it
is reasonable to conclude that, so far as the legislature was concerned, its intention was that courts
constituted under the Act and applying such procedure should deal only with cases requiring
speedier trial and that, accordingly, the State Government should refer to such courts only cases of

that description. The principle of construction applicable here is perhaps nowhere better stated than
by Lord Tenterden C.J. in Halton v. Cove(1): "It is very true, as was argued for the plaintiff, that the
enacting words of an Act of Parliament are not always to be limited by the words of the preamble,
but must in many cases go beyond it. Yet, on a sound construction of every Act of Parliament, I take
it the words of the enacting part must be confined to that which is the plain object and general
intention of the legislature in passing the Act, and that the preamble affords a good clue to discover
what that object was". The same view was expressed by Holmes J. in an American case, Carroll v.
Greenwich Insc. Co. (2). "The object of the law, we assume, until the lower Court shall decide
otherwise, is single-to keep up competition--and the general language is to be restricted by the
specific provisions and to the particular end." The title and the preamble as well as the other
specific provisions of the Act here in question show unmistakably that the whole object and purpose
of the legislation was to devise machinery for "speedier trial of certain offences", (which must mean
trial of cases involving the commission of certain (1) (1830) I B. & Ad. 538, 558. (2) 199 U.S. 401.
offences as there can, of course, be no trial of offences in the abstract) and the general expressions
used in providing for the power to set that machinery in operation must be restricted to that end in
accordance with the intention of the legislature; for, a literal construction of the general language
would impute to the legislature an intention to confer an arbitrary power of reference which would
be inconsistent not only with the declared object of the statute but also with the constitutional
prohibition against discrimination, which the legislature must be taken to have been aware of
when it deliberately re-enacted the provisions of the old Ordinance. The discretion vested in the
State Government in selecting cases for reference to a special court may not be subject to judicial
review and may, in that sense, be absolute, but that is very different from saying that it was
intended to be arbitrary. Its exercise must involve bona fide consideration of special features or
circumstances which call for a comparatively prompt disposal of the case or cases proposed to be
referred. In other words, section 5 (1) must, in my opinion, be read as empowering the State
Government to direct a special court to try such offences or classes of offences or cases or classes of
cases as, in its judgment, require speedier trial.
The question next arises as to whether the provision, thus understood, violates the prohibition
under article 14 of the Constitution. The first part of the article, which appears to have been adopted
from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the
territories of India and thus enshrines what American Judges regard as the "basic principle of
republicanism" [cf. Ward v. Flood (1)]. The second part which is a corollary of the first and is based
on the last clause of the first section of the Fourteenth Amendment of the Ameri- can Constitution,
enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights
and liberties without discrimination or favouritism, or as an American Judge put it "it is a (1) 17 Am.
Rep.405.
pledge of the protection of equal laws" [Yick Wo v. Hopkins (1)], that is, Jaws that operate alike on
all persons under like circumstances. And as the prohibition under the article is directed against the
State, which is defined in article 12 as including not only the legislatures but also the Governments
in the country, article 14 secures all persons within the territories of India against arbitrary laws as
well as arbitrary application of laws. This is further made clear by defining "law" in article 13 (which

renders void any law which takes away or abridges the rights conferred by Part III) as including,
among other things, any "order" or "notification", so that even executive orders or notifications
must not infringe article 14. This trilogy of articles thus ensures non-discrimination in State action
both in the legislative and the administrative spheres in the democratic republic of India. This,
however, cannot mean that all laws must be general in character and universal in application. As
pointed out in Chiranjit Lal's case(2) and in numerous American decisions dealing with the equal
protection clause of the 14th Amendment, the State in the exercise of its governmental power must
of necessity make laws operating differently on different groups or classes of persons within its
territory to attain particular ends in giving effect to its policies, and it must possess for that purpose
large powers of distinguishing and classifying persons or things to be subjected to such laws. But
classification necessarily implies discrimination between persons classified and those who are not
members of that class. "It is the essence of a classification" said Mr. Justice Brewer in Atchison,
Topeka & Santa Fe R. Co. v. Matthews (3), "that upon the class are cast duties and burdens different
from those resting upon the general public. Indeed the very idea of classification is that of
inequality, so that it goes without saying that the mere fact of inequality in no manner determines
this matter of constitutionality". Commenting on this observation in his dissenting opinion in
Connoly v. Union Sewer Pipe Co. (4) (which later prevailed in Tigner v. (1).118 U.S. 356, 369. (3) 174
U.S. 96, 106.
(2) [1950] S.C.R. 869. (4) 184 U.S. 540. 566, 567,
568. Texas(1)) Mr. Justice McKenna posed a problem and proceeded to answer it. "It seems like a
contradiction to say that a law having equality of operation may yet give equality of protection.
Viewed rightly, however, the contradiction disappears...... Government is not a simple thing. It
encounters and must deal with the problems which come from persons in an infinite variety of
relations. Classification is the recognition of those relations, and, in making it, a legislature must be
allowed a wide latitude of discretion and judgment...... Classification based on those relations need
not be constituted by an exact or scientific exclusion or inclusion of persons or things. Therefore it
has been repeatedly declared that classification is justified if it is not palpably arbitrary". (italics
mine.) Thus, the general language of article 14, as of its American counterpart, has been greatly
qualified by the recognition of the State's regulative power to make laws operating differently on
different classes of persons in the governance of its subjects, with the result that the principle of
equality of civil rights and of equal protection of the laws is only given effect to as a safeguard
against arbitrary State action. It follows that in adjudging a given law as discriminatory and
unconstitutional two aspects have to be considered. First, it has to be seen whether it observes
equality between all the persons on whom it is to operate. An affirmative finding on the point may
not, however, be decisive of the issue. If the impugned legislation is a special law applicable only to
a certain class of persons, the court must further enquire whether the classification is founded on a
reasonable basis having regard to the object to be attained, or is arbitrary. Thus, the rea-
sonableness of classification comes into question only in those cases where special legislation
affecting a class of persons is challenged as discriminatory. But there are other types of legislation
such as, for instance, the Land Acquisition Act, which do not rest on classification, and no question
of reasonable classification could fairly arise in respect of such (1) 310 U.S. 141, enactments. Nor,
obviously, could it arise when executive orders or notifications directed against individual citizens

are assailed as discriminatory.
It is interesting to find that the trend of recent decisions in America has been to lean strongly toward
sus- taining State action both in the legislative and in the administrative spheres against attacks
based on hostile discrimination. Classifications condemned as discriminatory have been
subsequently upheld as being within the powers of the legislature. In Tigner v. Texas (1), the
majority view in Connolly's case(2) holding that an Illinois anti-trust law, which made certain
forbidden acts criminal if done by merchants and manufacturers but declared them to be civil
wrongs if done by farmers and stockmen, was "manifestly a denial of the equal protection of the laws
") was considered to be no-longer "controlling ". While in Gulf, Colorado & Santa Fe R. Co. v. Ellis
(3) a Texas statute imposing an attorney's fee in addition to costs upon railway corporations which
unsuccessfully defended actions for damages for stock killed or injured by their train was struck
down as discriminatory because such corporations could not recover any such fee if their defence
was successful, a similar provision in a Kansas statute in respect of an action against railroad
companies for damages by fire caused by operating the rail-road was upheld as not discriminatory in
Atchison, Topeka & Santa Fe R. Co v. Matthews (4), the earlier case being distinguished on some
ground which Harlon J. in his dissenting opinion confessed he was not "astute enough to perceive".
And the latest decision in Kotch v. Pilot Comm'rs(5) marks, perhaps, the farthest swing of the
pendulum. A Louisiana pilotage law authorised the appointment of State pilots only upon
certification by a State Board of river pilot commissioners who were themselves State Pilots. Among
the prescribed qualifications was apprenticeship under a State pilot for a certain period. By
admitting only their relatives and friends (1) 310 U.S. 141. (4) 174 U.S. 96.
(2) 184 U.S. 540. (5) 330 U.S. 552, (3) 165 U.S. 666.
to apprenticeship, the members of the board made it impossible, with occasional exceptions, for
others to be appointed as State pilots. Upholding the constitutionality of the law as well as the
manner in which it was administered, the Court said: "The constitutional command for a State to
afford equal protection of the laws sets a goal not attain- able by the invention and application of a
precise formula. This Court has never attempted that impossible task. A law which affects the
activities of some groups differently from the way in which it affects the activities of other groups is
not necessarily banned by the 14th Amendment. Otherwise, effective regulation in the public
interest could not be provided, however essential that regulation might be."
These decisions seem, to my mind, to reveal a change of approach marked by an increasing respect
for the State's regulatory power in dealing with equal protection claims and underline the futility of
wordy formulation of so called "tests" in solving problems presented by concrete cases. Great
reliance was placed on behalf of the respondent upon the decision in Truax v. Corrigan(1) and Yick
Wo v. Hopkins(2). In the former case it was held by a majority of 5:4 that a law which denied the
remedy of injunction in a dispute between employer and his ex-employees was a denial of the equal
protection of laws, aS such a remedy was allowed in all other cases. But it is to be noted that the
minority, which included Holmes and Brandeis JJ., expressed the opinion that it was within the
power of the State to make such differentiation and the law was perfectly constitutional. The
legislation was obviously applicable to a class of persons and the decision was an instance where the

classification was held to be arbitrary and is not of much assistance to the respondent. In the other
case a San Francisco Ordinance, which prohibited the carrying on of a laundry business within the
limits of the City without having first obtained the consent of (1) 257 U.S. 312. (2) 118 U.S. 356.
the Board of Supervisors unless it was located in a building constructed of brick or stone, was held
discriminatory and unconstitutional. The undisputed facts disclosed in the record were that out of
320 laundries in San Francisco about 310 were constructed of wood, and about 240 of the 320 were
owned and conducted by subjects of China. The petitioner, a chairman, and about 200 of his
countrymen applied to the Board of Supervisors to continue their clotheswashing business in
wooden buildings which they had been occupying for many years, but in all cases licence was
refused, whereas not a single one of the petitions presented by 80 persons who were not subjects of
China had been refused. Dealing with these facts the court observed: "Though the law itself be fair
on its face and impartial in appearance, yet if it is applied and administered by public authority with
an evil eye and an unequal hand so as to practically make unjust and illegal discrimination between
persons in similar circumstances, material to their rights, the denial of equal justice is still within
the prohibition of the Constitution." (Italics mine). It is to be noted that the law was "administered",
i.e., not merely applied in a few stray cases, but regularly and systematically applied, making a
hostile discrimination against a particular class of persons on grounds of race and colour. Such
systematic discriminatory administration in practice of the ordinance though impartial on its face,
was, evidently, taken to give rise to the inference that it was designed to be so administered. That is
how the decision has been explained in later cases. For instance, in Atchison Topeka & Santa Fe R.
Co. v. Matthews"(1) it was said "In that case (Yick Wo's case (2)) a municipal ordinance of San
Francisco designed to prevent the Chinese from carrying on the laundry business was adjudged
void. This Court looked beyond the mere letter of the ordinance to the condition of things as they
existed in San Francisco and saw under the guise of regulation an arbitrary classification was
intended and accomplished" (Italics raine).
(1) 174 U.S. 96, 105. (2) 118 U.S. 356.
That is to say, the ordinance was what the Privy Council called a "colourable legislative expedient"
which, under the "guise or pretence" of doing what is constitutionally permissible, "in substance
and purpose seeks to effect discrimination": Morgan Proprietary Ltd. v. Deputy Commissioner of
Taxation for New South Wales (1). Thus explained, the Yick Wo case is no authority for the view that
the vesting in a public authority of a discretion which is liable to abuse by arbitrary exercise contrary
to its intendment is a sufficient ground for condemning a statute as discriminatory and
unconstitutional.
On the other hand, there is ample authority in the American decisions for the view that the
necessarily large powers vested in a legislature must include the power of entrusting to an
administrative body a plenary but not arbitrary discretion to be exercised so as to carry out the
purpose of an enactment. In Engel v. O' Malley (2) a New York statute prohibiting individuals or
partnerships to engage in the business of receiving deposits of money without a licence from the
controller "who may approve or disap- prove the application for a licence in his discretion" was
sustained as constitutional. In answer to the argument that the controller might refuse a licence on

his arbitrary whim, Holmes J. said: "We should suppose that in each case the controller was
expected to act for cause. But the nature and extent of the remedy, if any, for a breach of duty on his
part, we think it unnecessary to consider; for the power of the state to make the pursuit of a calling
dependent upon obtaining a licence is well established where safety seems to require it."
In New York ex rel. Lieberman v. Van De Carr(3) a provision in the Sanitary Code of the City of
New York vested discretion in Local Health Boards to grant or withhold licences for carrying on milk
business in the City. Uphold- ing the constitutionality of the (1) [1940] A.C. 838, 858. (3) 199 U.S.
552.
(2) 219 U.S. 128.
provision, Day J. observed after referring to certain prior decisions :--
"These cases leave in no doubt the proposition that the conferring of discretionary power upon
administrative boards to grant or withhold permission to carry on a trade or business which is the
proper subject of regulation within the police power of the state is not violative of rights secured by
the 14th Amendment. There is no presumption that the power will be arbitrarily exercised, and
when it is shown to be thus exercised against the individual, under sanction of state authority, this
court has not hesitated to interfere for his protection, when the case has come before it in such
manner as to authorise the interference of a Federal Court."
And Holmes J. added that, although it did not appear from the statute that the action of the Board of
Health was intended to be subject to judicial revision as to its reasonableness, he agreed that it was
not hit at by the 14th Amendment.
In the light of the foregoing discussion, it seems to me difficult to hold that section 5 (1) in whole or
in part is discriminatory. It does not, either in terms or by necessary implication, discriminate as
between persons or classes of persons; nor does it purport to deny to any one equality before the law
or the equal protection of the laws. Indeed, it does not by its own force make the special procedure
provided in the Act applicable to the trial of any offence or classes of offences or classes of cases; for,
it is the State Government's notification under the section that attracts the application of the
procedure. Nor is that procedure, as I have endeavoured to show, calculated to impair the chances of
a fair trial of the cases to which it may be made applicable, and no discriminatory intent or design is
discernible on its face, unless every departure from the normal procedure is to be regarded as
involving a hostile discrimination. I have already held, as a matter of construction, that section 5
(1)vests a discretion in the State Government to refer to a special court for trial such offences or
classes of offences or cases or classes of cases as may, in its opinion, require a speedier trial. Such
discretion the State Government is expected to exercise honestly and reasonably, and the mere fact
that it is not made subject to judicial review cannot mean that it was intended to be exercised in an
arbitrary manner without reference to the declared object of the Act or, as Harries C.J. put it,
"whether the duration of a case is likely to be long or not." In the face of all these considerations, it
seems to me difficult to condemn section 5 (1) as violative of article 14. If the discretion given to the
State Government should be exercised improperly or arbitrarily, the administrative action may be

challenged as discriminatory, but it cannot affect the constitutionality of the law. Whether a law
conferring discretionary powers on an administrative authority is constitutionally valid or not
should not be determined on the assumption that such authority will act in an arbitrary manner in
exercising the discretion committed to it. As observed by Kania C.J. in Dr. Khare's case(1), "It is
improper to start with such an assumption and decide the legality of an Act on that basis. Abuse of
power given by law sometimes occurs; but the validity of the law cannot be contested because of
such an apprehension." On the contrary, it is to be presumed that a public authority will act
honestly and reasonably in the exercise of its statutory-powers, and that the State Govern- ment in
the present case will, before directing a case to be tried by a Special Court, consider whether there
are special features and circumstances which might unduly protract its trial under the ordinary
procedure and mark it off for speedier trial-under the Act.
But it was said that the possibility of the Act being applied in an unauthorised and arbitrary manner
was sufficient to make it unconstitutional according to the decisions of this Court in Romesh
Thapar v. The State of Madras(2) and Chintaman Rao v. The State of Madhya Pradesh (3). It will be
recalled that this was the main (1) [1950] S.C.R. 519, 526. (3) [1950] S.C.R. 759. (2) [1950] S.C.R.
594.
ground on which the learned Judges in the High Court rested their decision. With respect, those
decisions have, I think, no application here. In Romesh Thapar's case the constitutionality of a
provincial enactment purporting to authorise the Provincial Government to regulate the circulation
of a news-sheet in the Province of Madras for the purpose of "securing the public safety or the
maintenance of public order" was challenged as being inconsistent with the petitioner's
fundamental right to freedom of speech and expression conferred by article 19(1)(a) of the
Constitution. But the only relevant constitutional limitation on freedom of speech was that the State
could make a law directed against the undermining of the security of the State or the overthrow of
it, and as the impugned enactment covered a wider ground by authorising curtailment of that
freedom for the purpose of securing the public safety or the maintenance of public order, this Court
held it to be wholly unconstitutional and void, observing :-
"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 action affecting such right, it is not possible to uphold it even so far 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 must 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."
This passage, which was relied on by the learned Chief Justice, lends no support to the view that the
mere possibility of an Act being used in a manner not contemplated by the legislature, though such
use may not be subject to judicial review on that ground, or, in other words, the mere possibility of
its abuse in practice would justify its condemnation as unconstitutional. The important distinction

is that in Romesh Thapar's case, the impugned enactment, having been passed before the
commencement of the Constitution, did contemplate the use to which it was actually put, but such
use was outside the permissible constitutional restrictions on the freedom of speech, that is to say,
the Act was not condemned on the ground of the possibility of its being abused but on the ground
that even the contemplated and authorised use was outside the limits of constitutionally permissible
restrictions. The same remarks apply to the other decision relied on. The observations of Kania
C.J. quoted above indicate the correct approach.
Even from the point of view of reasonable classification, I can see no reason why the validity of the
Act should not be sustained. As already pointed out, wide latitude must be allowed to a legislature in
classifying persons and things to be brought under the operation of a special law, and such
classification need not be based on an exact or scientific exclusion or inclusion. I cannot share the
view of Das Gupta J. that the expediency of speedier trial is "too vague and indefinite" to be the basis
of a "well defined" classification. Legislative judgment in such matters should not be canvassed by
courts applying doctrinaire "definite objective tests". The Court should not insist in such cases on
what Holmes J. called "delusive exactness" (Truax v. Corrigan, supra). All that the court is expected
to see, in dealing with equal protection claims, is whether the law impugned is "palpably
discriminatory", and, in considering such a question great weight ought to be attached to the fact
that a majority of the elected representatives of the people who made the law did not think so,
though that is not, of course, conclusive. They alone know the local conditions and circumstances
which demanded the enactment of such a law and it must be remembered that "legislatures are
ultimate guardians of the liberties and welfare of the people in quite as great a degree as the Courts"
(per Holmes J. in Missouri K. & T.R. Co. v. Mary(1) ). After all, what the Legislature of West Bengal
has sought to do by passing this Act is to regulate criminal trials within its territories by instituting a
system of special courts with a shortened and simplified procedure, without impairing the
requirements of a fair and impartial trial, which is to be made applicable to such cases or classes of
cases as, in the opinion of the executive government, require speedier disposal. I do not think that
article 14 denies to the State Legislature such regulative power. (of. Missouri v. Lewis (1)). To sustain
a law as not being discriminatory is not, however, to leave the party affected by a discriminatory
application of the law without a remedy, for, as we have seen, state action on the administrative
side can also be challenged as a denial of equal protection and unconstitutional.
That brings us to the consideration of the validity of the notification issued in the present case. In
Snowden v. Hughes (2) it was laid down that' 'the unlawful administration by State officers of a
State statute fair on its face resulting in its unequal application to those who were entitled to be
treated alike is not a denial of equal protection unless there is shown to be present in it an element
of intentional or purposeful discrimination. This may appear on the face of the action taken with
respect to a particular class or person or it may only be shown by extrinsic evidence showing a
discriminatory design to favour one individual or a class over another not to be inferred from the
action itself. But a discriminatory purpose is not presumed; there must be a showing of clear and
intentional discrimination''. No attempt has been made in the present case to prove that the State
Government was influenced by any discriminatory motive or design. On the other hand, the facts
appearing on the record would seem to justify the reference of the case to the special court for trial.
As pointed out by Chakravartti J.

(1) 101 U.S. 22. (2) 321 U.S. I.
"The notification by which the case of Anwar Ali Sirkar (the respondent herein) was directed to be
tried by the special court did not relate merely to that case but covered five more cases in each of
which the accused were several in number. In Anwar Ali's case itself, there were 49 other accused.
All these cases related to the armed raid on the premises of Jessop & Co. in the course of which
crimes of the utmost brutality were committed on a large scale and to incidents following the raid.
There can be no question at all that the cases were of a very exceptional character and although the
offences committed were technically offences defined in the Indian Penal Code, the Indian Arms Act
and the High Explosives Act, it would be futile to contend that the offenders in these cases were of
the same class as ordinary criminals, committing the same offences or that the acts which
constituted the offences were of the ordinary types..... All these cases again have arisen out of
serious disturbances which, according to the prosecution, partook of the nature of an organised
revolt."
In view of these facts it seems to me impossible to say the State Government has acted arbitrarily or
with a discriminatory intention in referring these cases to the Spe- cial Court, for there are
obviously special features which mark of this group of cases as requiring speedier disposal than
would be possible under the ordinary procedure, and the charge of discriminatory treatment must
fail. I would allow this appeal as also Appeal No. 298 of 1951 (The State of West Bengal v. Gajen
Mali) which raises the same questions.
FAZL ALl J.--I have come to the conclusion that these appeals should be dismissed, and since that is
also the conclusion which has been arrived at by several of my colleagues and they have written
very full and elaborate judgments in support of it, I shall only supplement what they have said by
stating briefly how I view some of the crucial points arising in the case.
There is no doubt that the West Bengal Special Courts Ordinance, 1949, which was later replaced by
the impugned Act (West Bengal Special Courts Act X of 1950, to be hereinafter referred to as "the
Act"), was a valid Ordinance when it was promulgated on the 17th August, 1949. The Act, which
came into effect on the 15th March, 1950, is a verbatim reproduction of the earlier Ordinance, and
what we have to decide is whether it is invalid because it offends against article 14 of the
Constitution. In dealing with this question, the following facts have to be borne in mind:--
(1) The framers of the Act have merely copied the provisions of the Ordinance of 1949 which was
promulgated when there was no provision similar to article 14 of the present Constitution.
(2) The provision of the American Constitution which corresponds to article 14 has, ever since that
Constitution has been in force, greatly exercised the minds of the Ameri- can Judges, who,
notwithstanding their efforts to restrict its application within reasonable limits, have had to de-
clare a number of laws and executive acts to be unconstitutional. One is also amazed at the volume
of case-law which has grown round this provision, which shows the extent to which its wide
language can be stretched and the large variety of situations in which it has been invoked. (3) Article
14 is as widely worded as, if not more widely worded than, its counterpart in the American Consti-

tution, and is bound to lead to some inconvenient results and seriously affect some pre-Constitution
laws. (4) The meaning and scope of article 14 have been elaborately explained in two earlier
decisions of this Court, viz., Chiranjit Lal Chowdhury v. The Union of India and Others (1) and The
State of Bombay and Another v.F.N. Balsara C), and the principles laid down in those decisions have
to be kept in view in deciding the present case. One of these principles is that article 14 is designed
to protect all persons placed in similar circumstances against legislative discrimination, and if the
legislature takes care to (1) [1950] S.C.R. 869. (2) [1951] S.C.R. 682.
reasonably classify persons for legislative purposes and if it deals equally with all persons belonging
to a well-defined class, it is not open to the charge of denial of equal protection on the ground that
the law does not apply to other persons.
(5) There is nothing sacred or sacrosanct about the test of reasonable classification, but it has
undoubtedly proved to be a useful basis for meeting attacks on laws and official acts on the ground
of infringement of the equality principle.
(6) It follows from the two foregoing paragraphs that one of the ways in which the impugned Act can
be saved is to show that it is based on a reasonable classification of the persons to whom or the
offences in respect of which the procedure laid down in it is to apply, and hence it is necessary to
ascertain whether it is actually based on such a classification.
With these introductory remarks, I will proceed to deal with some of the more important aspects of
the case. The first thing to be noticed is that the preamble of the Act mentions speedier trial of
certain offences as its object. Now the framers of the Criminal Procedure Code (which is hereinafter
referred to as "the Code") also were alive to the desirability of having a speedy trial in certain
classes of cases, and with this end in view they made four different sets of provisions for the trial of
four classes of cases, these being provisions relating to summary trials, trial of summons cases, trial
of warrant cases and trial of cases triable by a court of session. Broadly speaking, their
classification of the offences for the purpose of applying these different sets of provisions was
according to the gravity of the offences, though in classifying the offences fit for summary trial the
experience and power of the trying Magistrate was also taken into consideration. The net result of
these provisions is that offences which are summarily triable can be more speedily tried than
summons cases, summons cases can be more speedily tried than warrant cases, and warrant cases
can be more speedily tried than sessions cases. The framers of the Code appear to have been
generally of the view that the graver the offence the more elaborate should be the procedure for its
trial, which was undoubtedly an understandable point of view, and no one has suggested that their
classification of offences for the four different modes of trial to which reference has been made is
unreasonable in any sense.
The impugned Act has completely ignored the principle of classification followed in the Code and it
proceeds to lay down a new procedure without making any attempt to particularize or classify the
offences or cases to which it is to apply. Indeed section 5 of the Act, which is the most vital section,
baldly states that the "Special Court shall try such offences or classes of offences or cases or classes
of cases, as the State Government may,by general or special order in writing direct". I agree with my

learned brothers that to say that the reference to speedier trial in the preamble of the Act is the basis
of classification is to read into the Act something which it does not contain and to ascribe to its
authors what they never intended. As I have already stated, the Act is a verbatim copy of the earlier
Ordinance which was framed before the present Constitution came into force, and article 14 could
not have been before the minds of those who framed it because that Article was not then in
existence.
The second point to be noted is that in consequence of the Act, two procedures, one laid down in the
Code and the other laid down in the Act, exist side by side in the area to which the Act applies, and
hence the provisions of the Act are apt to give rise to certain anomalous results; some of which may
be stated as follows :--
(1) A grave offence may be tried according to the procedure laid down in the Act, while a less grave
offence may be tried according to the procedure laid down in the Code.
(2) An accused person charged with a particular offence may be tried under the Act while another
accused person charged with the same offence may be tried under the Code.
(3) Certain offences belonging to a particular group or category of offences may be tried under the
Act whereas other offences belonging to the same group or category may be tried under the Code.
Some of my learned colleagues have examined the provisions of the Act and shown that of the two
procedures one laid down in the Act and the other in the Code--the latter affords greater facilities to
the accused for the purpose of defending himself than the former; and once it is established that
one procedure is less advantageous to the accused than the other, any person tried by a Special
Court constituted under the Act, who but for the Act would have been entitled to be tried according
to the more elaborate procedure of the Code, may legitimately enquire:--Why is this discrimination
being made against me and why should I be tried according to a procedure which has not the same
advantages as the normal procedure and which even carries with it the possibility of one's being
prejudiced in one's defence ?
It was suggested that the reply to this query is that the Act itself being general and applicable to all
persons and to all offences, cannot be said to discriminate in favour of or against any particular case
or classes of persons or cases, and if any charge of discrimination can be levelled at all, it can be
levelled only against the act of the executive authority if the Act is misused. This kind of argument
however does not appear to me to solve the difficulty. The result of accepting it would be that even
where discrimination is quite evident one cannot challenge the Act simply because it is couched in
general terms; and one cannot also challenge the act of the executive authority whose duty it is to
administer the Act, because that authority will say :--I am not to blame as I am acting under the
Act. 'It is clear that if the argument were to be accepted, article 14 could be easily defeated. I think
the fallacy of the argument lies in overlooking the fact that the "insid- ious discrimination
complained of is incorporated in the Act itself", it being so drafted that whenever any discrimination
is made such discrimination would be ultimately traceable to it. The Act itself lays down a proce-
dure which is less advantageous to the accused than the ordinary procedure, and this fact must in all

cases be the root-cause of the discrimination which may result by the application of the Act.
In the course of the arguments, it was suggested that the Act is open to criticism on two different
and distinct grounds, these being--, (1) that it involves excessive delegation of legislative authority
amounting to its abdication in so far as it gives unfettered discretion to the executive, without laying
down any standards or rules of guidance, to make use of the procedure laid down by it; and (2) that
it infringes article 14 of the Constitution. The first criticism which is by no means an unsubstantial
one, may possibly be met by relying on the decision of this Court in Special Reference No. 1 of 1951,
In re Delhi Laws Act, 1912, etc.(1), but the second criticism cannot be so easily met, since an Act
which gives uncontrolled authority to discriminate cannot but be hit by article 14 and it will be no
answer simply to say that the legislature having more or less the unlimited power to delegate has
merely exercised that power. Curiously enough, what I regard as the weakest point of the Act (viz.,
its being drafted in such general terms) is said to be its main strength and merit, but I really cannot
see how the generality of language which gives unlimited authority to discriminate can save the Act.
In some American cases, there is a reference to "purposeful or intentional discrimination", and it
was argued that unless we can discover an evil intention or a deliberate design to mete out unequal
treatment behind the Act, it cannot be impugned. It should be noted however that the words which I
have put in inverted commas, have been used in a few American cases with reference only to
executive action, where certain Acts were found to be innocuous but they were (1) [1951] S.C.R.
747.
administered by public authority with "an evil eye and an unequal hand." I suggest most respectfully
that it will be extremely unsafe to lay down that unless there was evidence that discrimination was
"purposeful or intentional" the equality clause would not be infringed. In my opinion, the true
position is as follows :--As a general rule, if the Act is fair and good, the public authority who has to
administer it will be protected. To this general rule, however, there is an exception, which comes
into play when there is evidence of mala fides in the application of the Act. The basic question
however still remains whether the Act itself is fair and good, which must be decided mainly with
reference to the specific provisions of the Act. It should be noted that there is no reference to
intention in article 14 and the gravamen of that Article is equality of treatment. In my opinion, it will
be dangerous to introduce a subjective test when the Article itself lays down a clear and objective
test.
I must confess that I have been trying hard to think how the Act can be saved, and the best
argument that came to my mind in support of it was this :--The Act should be held to be a good one,
because it embodies all the essentials of a fair and proper trial, namely, (1) notice of the charge, (2)
right to be heard and the right to test and rebut the prosecution evidence, (3) access to legal aid,
and (4)trial by an impartial and experienced court. If these are the requisites, so I argued with
myself, to which all accused persons are equally entitled, why should a particular procedure which
ensures all those requisites not be substituted for another procedure, if such substitution is neces-
sitated by administrative exigencies or is in public interest, even though the new procedure may be
different from and less elaborate than the normal procedure. This seemed to me to be the best
argument in favour of the Act but the more I thought of it the more it appeared to me that it was not
a complete answer to the problem before us. In the first place, it brings in the "due process" idea of

the American Constitution, which our Constitution has not chosen to adopt. Secondly, the Act itself
does not state that public interest and administrative exigencies will provide the occasion for its
application. Lastly, the discrimination involved in the application of the Act is too evident to be
explained away.
The framers of the Constitution have referred to equality in the Preamble, and have devoted as
many as five articles, namely, articles 14, 15, 16.17, and 18 in the Chapter on Fundamental Rights,
to ensure equality in all its aspects. Some of these Articles are confined to citizens only and some
can be availed of by non-citizens also; but on reading these provisions as a whole, one can see the
great importance attached to the principle of equality in the Constitution. That being so, it will be
wrong to whittle down the meaning of article 14, and however well-intentioned the impugned Act
may be and however reluctant one may feel to hold it invalid, it seems to me that section 5 of the
Act, or at least that part of it with which alone we are concerned in this appeal, does offend against
article 14 of the Constitution and is therefore unconstitutional and void. The Act is really modelled
upon a pre-Constitution pattern and will have to be suitably redrafted in order to conform to the
requirements of the Constitution.
MAHAJAN J.--I had the advantage of reading the judgment prepared by my brother Mukherjea and
I am in respectful agreement with his opinion.
Section 5 of the West Bengal Special Courts Act is hit by article 14 of the Constitution inasmuch as it
mentions no basis for the differential treatment prescribed in the Act for trial of criminals in certain
cases and for certain offences. The learned AttorneyGeneral argued that the Act had grouped cases
requiring speedier trial as forming a class in themselves, differentiating that class from cases not
needing expedition and that it was on this basis that the special procedure prescribed in the Act was
applicable. In order to appreciate this contention, it is necessary to state shortly the scope of article
14 of the Constitution. It is designed to prevent any person or class of persons for being singled out
as a special subject for discriminatory and hostile legislation. Democracy implies respect for the
elementary rights of man, however suspect or unworthy. Equality of right is a principle of
republicanism and article 14 enunciates this equality principle in the administration of justice. In
its application to legal proceedings the article assures to everyone the same rules of evidence and
modes of procedure. In other words, the same rule must exist for all in similar circumstances. This
principle, however, does not mean that every law must have universal application for all persons
who are not by nature, attainment or circumstance, in the same position.
By the process of classification the State has the power of determining who should be regarded as a
class for purposes of legislation and in relation to a law enacted on a particular subject. This power,
no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of
a number of well-defined classes, it is not open to the charge of denial of equal protection on the
ground that it has no application to other persons. The classification permissible, however, must be
based on some real and substantial distinction bearing a just and reasonable relation to the objects
sought to be attained and cannot be made arbitrarily and without any substantial basis.
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. Thus the legislature may fix the age at which
persons shall be deemed competent to contract between themselves, but no one will claim that
competency to contract can be made to depend upon the stature or colour of the hair. "Such a
classification for such a purpose would be arbitrary and a piece of legislative despotism"(1):
(1) Vide Gulf Colorado & Santa Fe Railway Co. v. W.H. Ellis, 166 U.S. 150.
Speedier trial of offences may be the reason and motive for the legislation but it does not amount
either to a classification of offences or of cases. As pointed out by Chakravarti J. the necessity of a
speedy trial is too vague and uncertain a criterion to form the basis of a valid and reasonable
classification. In the words of Das Gupta J. it is too indefinite as there can hardly be any definite
objective test to determine it. In my opinion, it is no classification at all in the real sense of the
term as it is not based on any characteristics which are peculiar to persons or to cases which are to
be subject to the special procedure prescribed by the Act. The mere fact of classification is not
sufficient to relieve a statute from the reach of the equality clause of article 14. To get out of its reach
it must appear that not only a classification has been made but also that it is one based upon a
reasonable ground on some difference which bears a just and proper relation to the attempted
classification and is not a mere arbitrary selection. Persons concerned in offences or cases needing
so- called speedier trial are entitled to inquire "Why are they being made the subject of a law which
has short-circuited the normal procedure of trial; why has it grouped them in that category and why
has the law deprived them of the protection and safeguards which are allowed in the case of accused
tried under the procedure mentioned in the Criminal Procedure Code; what makes the legislature or
the executive to think that their cases need speedier trial than those of others like them?" The only
answer, that so far as I am able to see, the Act gives to these inquiries is that they are being made the
subject of this special treatment because they need it in the opinion of the provincial government; in
other words, because such is the choice of their prosecutor. This answer neither sounds rational
nor reasonable. The only answer for withholding from such persons the protection of article 14 that
could reasonably be given to these inquiries would be that "Of all other accused persons they are a
class by themselves and there is a reasonable difference between them and those other persons who
may have committed similar offences." They could be told that the law regards persons guilty of
offences against the security of the State as a class in themselves. The Code of Criminal Procedure
has by the process of classification prescribed different modes of procedure for trial of different of-
fences. Minor offences can be summarily tried, while for grave and heinous offences an elaborate
mode of procedure has been laid down. The present statute suggests no. reasonable basis or
classification, either in respect of offences or in respect of cases. It has laid down no yardstick or
measure for the grouping either of persons or of cases or of offences by which measure these groups
could be distinguished from those who are outside the purview of the Special Act. The Act has left
this matter entirely to the unregulated discretion of the provincial government. It has the power to
pick out a case of a person similarly situate and hand it over to the special tribunal and leave the
case of the other person in the same circumstance to be tried by the procedure laid down in the
Criminal Procedure Code. The State government is authorized, if it so chooses, to hand over an
ordinary case of simple hurt to the special tribunal, leaving the case of dacoity with murder to be
tried in the ordinary way. It is open under this Act for the provincial grovernment to direct that a
case of dacoity with firearms and accompanied by murder, where the persons killed are Europeans,

be tried by the Special Court, while exactly similar cases where the persons killed are Indians may be
tried under the procedure of the Code.
That the Special Act lays down substantially different rules for trial of offences and cases than laid
down in the general law of the land, i.e., the Code of Criminal Proce- dure, cannot be seriously
denied. It short-circuits that procedure in material particulars. It imposes heavier liabilities on the
alleged culprits than are ordained by the Code. It deprives them of certain privileges which the Code
affords them for their protection. Those singled out for treatment under the procedure of the Special
Act are to a considerable extent prejudiced by the deprivation of the trial by the procedure
prescribed under the Criminal Procedure Code. Not only does the special law deprive them of the
safeguard of the committal procedure and of the trial with the help of jury or assessors, but it also
deprives them of the right of a de novo trial in case of transfer and makes them liable for conviction
and punishment for major offences other than those for which they may have been charged or tried.
The right of the accused to call witnesses in defence has been curtailed and made dependent on the
discretion of the special judge. To a certain extent the remedies to which an accused person is
entitled for redress in the higher courts have been cut down. Even if it be said that the statute on the
face of it is not discriminatory, it is so in its effect and operation inasmuch as it vests in the executive
government unregulated official discretion and therefore has to be adjudged unconstitutional.
It was suggested that good faith and knowledge of existing conditions on the part of a legislature
has to be presumed. That is so; yet to carry that presumption to the extent of always holding that
there must be some undisclosed intention or reason for subjecting certain individuals to a hostile
and discriminatory legislation is to make the protection clause of article 14, in the words of an
American decision, a mere rope of sand, in no manner restraining State action. The protection
afforded by the article is not a mere eyewash but it is a real one and unless a just cause for
discrimination on the basis of a reasonable classification is put forth as a defence, the statute has to
be declared unconstitutional. No just cause has been shown in the present instance. The result is
that the appeals fail and are dismissed.
MUKHERJEA J.--These two appeals are directed against the judgment of a Special Bench of the
Calcutta High Court dated the 28th of August, 1951, and they arise out of two petitions presented,
respectively, by the respondent in the two appeals under article 226 of the Constitution praying for
writs of certiorari to quash two criminal proceedings, one of which has ended in the trial court,
resulting in conviction of the accused, while the other is still pending hearing. The questions
requiring consideration in both the appeals are the same and the whole controversy centres round
the point as to whether the provision of section 5(1) of the West Bengal Special Courts Act, 1950, as
well as certain notifications issued under it are ultra vires the Constitution by reason of their being
in conflict with article 14 of the Constitution. The material facts, which are not controverted, may be
shortly stated as follows. On August 17, 1949, an Ordinance, known as the West Bengal Special
Courts Ordinance, was promulgated by the Governor of West Bengal under section 88 of the
Government of India Act, 1935. On 15th March, 1950, this Ordinance was superseded and replaced
by the West Bengal Special Courts Act which contained provisions almost identical with those of the
Ordinance. Section 3 of the Act empowers the State Government to constitute, by notification,
Special Courts of criminal jurisdiction for such areas and to sit at such places as may be notified in

the notification. Section 4 provides for appointment of a Special Judge to preside over a Special
Court and it mentions the qualifications which a Special Judge should possess. Section 5 (1) then
lays down that a Special Court shall try such offences or classes of offences or cases or classes of
cases as the State Gov- ernment may, by general or special order, in writing direct. Sections 6 to 15
set out in details the procedure which the Special Court has to follow in the trial of cases referred to
it. Briefly stated, the trial is to be without any jury or assessors, and the court has to follow the
procedure that is laid down for trial of warrant cases by the Magistrate under the Criminal
Procedure Code. The procedure for committal in the sessions cases is omitted altogether; the court's
powers of granting adjournment are restricted and special provisions are made to deal with
refractory accused and also for cases which are transferred from one Special Court to another. The
Court is expressly empowered to convict a person of an offence with which he was not charged if it
transpires from the evidence adduced at the time of trial that such offence was committed by him,
and it is immaterial that the offence is not a minor offence. The right of revision to the High Court
has been taken away entirely, though appeals have been allowed in all cases both at the instance of
the accused as well as of the State and they lie both on questions of fact and law.
On October 28, 1949, when the Ordinance was still in force, the West Bengal Government appointed
Shri S.N. Guha Roy, who was then the Sessions Judge of Alipore, a Special Judge, with powers to try
cases under the Ordinance. Anwar Ali Sarkar, who is the respondent in Appeal No. 297, along with
49 other persons, were the accused in what is known as Dum Dum Factory Raid case, where crimes
of the utmost brutality were committed by an armed gang of men on the factory of Messrs. Jessop
and Company at Dum Dum. The raid took place on February 26, 1949. The accused or most of them
were arrested some time after the Ordinance was promulgated. On 25th of January, 1950, the State
Government by a notification directed that the case of Anwar Ali and his 49 co- accused should be
tried by Mr. S.N. Guha Roy in accordance with the provisions" of the Ordinance. A formal complaint
was lodged before the Special Judge in respect of these 50 persons on April 2, 1950, that is to say,
after the Special Courts Act was passed, superseding the Ordinance. The trial lasted for several
months and by his judgment dated the 31st of March, 1951, the Special Judge convicted the accused
under various sections of the Indian Penal Code, some of them being sentenced to transportation for
life, while others were sentenced to undergo various terms of imprisonment according to the
gravity of their offence. The State Government applied for enhancement of sentence with regard to
some of the accused and a rule was actually issued by the High Court upon them tO show cause why
they should not be sentenced to death. On May 1, 1951, Anwar Ali, the respondent in Appeal No.
297, presented an application before Mr. Justice Bose of the Calcutta High Court under article 226
of the Constitution and a rule was issued by the learned Judge upon that petition calling upon the
State of West Bengal to show cause why the proceedings, conviction and sentence, passed by the
Special Court on the petitioner and his co-accused should not be quashed. On 21st of May following,
a similar application for quashing a pending criminal trial was filed by Gajen Mali, the respondent in
the other appeal, who along with 5 other persons is being tried for offences of murder and
conspiracy to murder before Mr. M. Bhattacharya, another Special Judge, appointed under the West
Bengal Special Courts Act. A rule was issued on this application also. Both the rules came up for
hearing before Mr. Justice Bose, and as the learned Judge was of opinion that they involved
questions of general constitutional importance, he referred them to the Chief Justice for decision by
a larger Bench. Accordingly a Special Bench was constituted, consisting of the Chief Justice and four

other Judges who heard both these cases. It was conceded during the hearing of these rules by the
State Government that although in the case of Anwar Ali the notification was issued a day before
the coming into force of the Constitution, the provisions of the Constitution of India, which came
into force on the 26th of January, 1950, applied to his case also. On the 28th of August, 1951. the
Special Bench made the rules absolute and held that section 5 (1) of the West Bengal Special Courts
Act was void to the extent that it empowers the State to direct any case to be tried by the Special
Court. The notifications issued under that sub- section were also held to be invalid for the same
reason. It is against this decision that these two appeals have been taken to this court by the State of
West Bengal. In order to appreciate the points that have been canvassed before us, it would be
convenient first of all to refer to the provision of article 14 of the Constitution with a view to
determine the nature and scope of the guarantee that is implied in it. The article lays down 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." It is, in substance, modelled upon the equal protection clause,
occurring in the Fourteenth Amendment of the American Constitution with a further addition of the
rule of "equality before the law", which is an established maxim of the English Constitution. A
number of American decisions have been cited before us on behalf of both parties in course of the
arguments; and while a too rigid adherence to the views expressed by the Judges of the Su- preme
Court of America while dealing with the equal protection clause in their own Constitution may not
be necessary or desirable for the purpose of determining the true meaning and scope of article 14 of
the Indian Constitution, it cannot be denied that the general principles enunciated in many of these
cases do afford considerable help and guidance in the matter.
It can be taken to be well settled that the principle underlying the guarantee in article 14 is not that
the same rules of law should be applicable to all persons within the Indian territory or that the same
remedies should be made available to them irrespective of differences of circumstances(1). It only
means that all persons similarly circumstanced shall be treated alike both in privileges conferred
and liabilities imposed(2). Equal laws would have to be applied to all in the same situation, and
there should be no discrimination between one person and another if as regards the subjectmatter
of the legislation their position is substantially the same. This brings in the question of clas-
sification. As there is no infringement of the equal protection rule, if the law deals alike with all of a
certain class, the legislature has the undoubted right of classifying (1) Chiranjit Lal Chowdhuri v.
The Union of India [1950] S.C.R. 869.
(2)Old Dearborn Distributing Co. v. Seagram Distillers Corporation 299 U.S. 183.
persons and placing those whose conditions are 'substantially similar under the same rule of law,
while applying different rules to persons differently situated. It is said that the entire problem
under the equal protection clause is one of classification or of drawing lines(1). In making the
classification the legislature cannot certainly be expected to provide "abstract symmetry." It can
make and set apart the classes according to the needs and exigencies of the society and as suggested
by experience. It can recognise even "degrees of evil "(2), but the classification should never be
arbitrary, artificial or evasive. It must rest always upon real and substantial distinction bearing a
reasonable and just relation to the thing in respect to which the classification is made; and
classification made without any reasonable basis should be regarded as invalid(3). These

propositions have not been controverted before us and it is not disputed also on behalf of the
respondents that the presumption is always in favour of the constitutionality of an enactment and
the burden is upon him who attacks it, to show that there has been transgression of constitutional
principles.
The learned Attorney- General, appearing in support of the appeal, has put forward his contentions
under two different heads. His first line of argument is that quite apart from the question of
classification there has been no infringement of article 14 of the Constitution in the present case. It
is said that the State has full control over procedure in courts, both in civil and criminal cases, it can
effect such changes as it likes for securing due and efficient administration of justice and a
legislation of the character which we have got here and which merely regulates the mode of trial in
certain cases cannot come within the description of discriminatory or hostile legislation. It is further
argued that the differences that have been made in the procedure for criminal trial under the West
Bengal (1) Vide Dowling: Cases on Constitutional Law, 4th edn. 1139.
(2) Vide Skinner v. Oklahoma (316 U.S. 535 at 540). (3) Southern Railway Co. v. Greene (216 U.S,
400 at 412).
Special Courts Act, 1950, are of a minor character and there are no substantial grounds upon which
discrimination could be alleged or founded. The second head of arguments advanced by the
Attorney-General is that there is a classification and a justifiable classification on the basis of
which differences in the procedure have been made by the West Bengal Act; and even if any
unguided power has been conferred on the executive, the Act itself cannot be said to have violated
the equality clause, though questions relating to proper exercise of such power or the limits of
permissible delegation of authority might arise.
As regards the first point, it cannot be disputed that a competent legislature is entitled to alter the
procedure in criminal trials in such way as it considers proper. Article 21 of the Constitution only
guarantees that "no person shall be deprived of his life or personal liberty except in accordance with
the procedure established by law." The word "law" in the Article means a State made law(1), but it
must be a valid and binding law having regard not merely to the competency of the legislature and
the subject it relates to, but it must not also infringe any of the fundamental rights guaranteed
under Part III of the Constitu- tion. A rule of procedure laid down by law comes as much within the
purview of article 14 as any rule of substantive law and it is necessary that all litigants, who are
similarly situated, are able to avail themselves of the same procedural rights for relief and for
defence with like protection and without discrimination(2). The two cases referred to by the learned
Attorney-General in this connection do not really support his contention. In Hayes v. Missouri(a)
the subject-matter of complaint was a provision of the revised statutes of Missouri which allowed
the State, in capital cases, fifteen peremptory challenges in cities having a population of 100,000
inhabitants in place of eight in other parts of the State. This was held to be a valid exercise of
legislative discretion not (1) Vide A.K. Gopalan v. The State of Madras [1950] S.C.R. 88.
(2) Weaver: Constitutional Law, page 407.

(3) 120 U.S. 68; 30 L. Ed. 578.
contravening the equality clause in the Fourteenth Amend- ment. It was said that the power of the
Legislature to prescribe the number of challenges was limited by the necessity of having impartial
jury. With a view to secure that end, the legislature could take into consideration the conditions of
different communities and the strength of population in a particular city; and if all the persons
within particular territorial limits are given equal rights in like cases, there could not be any
question of discrimination. The other case relied upon by the learned Attorney- General is the case
of Brown v. The State of New Jersey(1). In this case the question was whether the provision of the
State Constitution relating to struck jury in murder cases was in conflict with the equal protection
clause. The grievance made was that the procedure of struck jury denies the defendant the same
number of peremptory challenges as he would have had in a trial before an ordinary jury. It was held
by the Supreme Court that the equal protection clause was not violated by this provision. "It is true",
thus observes Mr. Justice Brewer, "that here there is no territorial distribution but in all cases in
which a struck jury is ordered the same number of challenges is permitted and similarly in all cases
in which the trial is by an ordinary jury either party, State or defendant, may apply for a struck jury
and the matter is one which is determined by the court in the exercise of a sound discretion...... That
in a given case the discretion of the court in awarding a trial by a struck jury was improperly
exercised may perhaps present a matter for consideration in appeal but it amounts to nothing
more". Thus it was held that the procedure of struck jury did not involve any discrimination between
one person and another. Each party was at liberty to apply for a struck jury if he so chose and the
application could be granted by the court if it thought proper having regard to the circumstances of
each individual case. The procedure would be identical in respect of all persons when it was allowed
and (1) 175 U.S. 171: 44 L. Ed. 119.
all parties would have equal opportunities of availing themselves of this procedure if they so liked.
That a judicial discretion has to be exercised on the basis of the facts of each case in the matter of
granting the application for a struck jury does not really involve discrimination. These decisions, in
my opinion, have no bearing on the present case.
I am not at all impressed by the argument of the learned Attorney-General that to enable the
respondents to invoke the protection of article 14 of the Constitution it has got to be shown that the
legislation complained of is a piece of "hostile" legislation. The expressions "discriminatory" and
"hostile" are found to be used by American Judges often simultaneously and almost as synonymous
expressions in connection with discussions on the equal protection clause. If a legislation is
discriminatory and discrimi- nates one person or class of persons against others similarly situated
and denies to the former the privileges that are enjoyed by the latter, it cannot but be regarded as
"hostile" in the sense that it affects injuriously the interests of that person or class. Of course, if
one's interests are not at all affected by a particular piece of legislation, he may have no right to
complain. But if it is established that the person complaining has been discriminated against as a
result of legislation and denied equal privileges with others occupying the same position, I do not
think that it is incumbent upon him, before he can claim relief on the basis of his fundamental
rights, to assert and prove that in making the law, the legislature was actuated by a hostile or
inimical intention against a particular person or class. For the same reason I cannot agree with the

learned Attorney- General that in cases like these, we should enquire as to what was the dominant
intention of the legislature in enacting the law and that the operation of article 14 would be
excluded if it is proved that the legislature had no intention to discriminate, though discrimination
was the necessary consequence of the Act. When. discrimination is alleged against officials in
carrying out the law, a question of intention may be material in ascertaining whether the officer
acted mala fide or not(1); but no question of intention can arise when discrimination follows or
arises on the express terms of the law itself. I agree with the Attorney-General that if the dif-
ferences are not material, there may not be any discrimination in the proper sense of the word and
minor deviations from the general standard might not amount to denial of equal rights. I find it
difficult however, to hold that the difference in the procedure that has been introduced by the West
Bengal Special Courts Act is of a minor or unsubstantial character which has not prejudiced the
interests of the accused.
The first difference is that made in section 6 of the Act which lays down that the Special Court may
take cognizance of an offence without the accused being committed to it for trial, and that in trying
the accused it has to follow the procedure for trial of warrant cases by Magis- trates. It is urged by
the Attorney-General that the elimination of the committal proceedings is a matter of no impor-
tance and that the warrant procedure, which the Special Court has got to follow, affords a scope for a
preliminary examination of the evidence against the accused before a charge is framed.' It cannot be
denied that there is a difference between the two proceedings. In a warrant case the entire
proceeding is before the same Magistrate and the same officer who frames the charge hears the case
finally. In a sessions case, on the other hand, the trial is actually before another Judge, who was not
connected with the earlier proceeding. It is also clear that after the committal and before the
sessions judge actually hears the case, there is generally a large interval of time which gives the
accused ample opportunity of preparing his defence, he being acquainted beforehand with the
entire evidence that the prosecution wants to adduce against him. He cannot have the same
advantage in a warrant case even ii an adjournment is granted by the Magistrate after the charge is
(1) sunday Lake Iron Company v. wakefield (247 U.S. 350.) framed. Be that as it may, this is not the
only matter upon which the normal procedure has been departed from in the Special Courts Act.
One of the most important departures is that the trial by the Special Court is without the aid of jury
or assessors. The trial by jury is undoubtedly one of the most valuable rights which the accused can
have. It is true that the trial by jury is not guaranteed by the Constitution and section 269(1) of the
Criminal Procedure Code empowers the State Government to direct that the trial of all offences or
any particular class of offences before any sessions court shall be by jury in any district; and it may
revoke or alter such orders. There is nothing wrong therefore if the State discontinues trial by jury in
any district with regard to all or any particular class of offences; but as has been pointed out by Mr.
Justice Chakra- varti of the Calcutta High Court, it cannot revoke jury trial in respect of a particular
case or a particular accused while in respect of other cases involving the same offences the order
still remains. Amongst other important changes, reference may be made to the provision of section
13 of the Act which empowers the Special Court to convict an accused of any offence if the
commission of such offence is proved during trial, although he was not charged with the same or
could be charged with it in the manner contemplated by section 236 of the Criminal Procedure
Code, nor was it a minor offence within the meaning of section 238 of the Code. Under section a50
of the Criminal Procedure Code, when a case after being heard in part goes for disposal before

another Magistrate, the accused has the right to demand, before the second Magistrate commences
the proceedings, that the witnesses already examined should be re-examined and re-heard. This
right has been taken away from the accused in cases where a case is transferred from one Special
Court to another under the provision of section 7 of the Special Courts Act. Further the right of
revision to the High Court does not exist at all under the new procedure, although the rights under
the Constitution of India are retained.
It has been pointed out and quite correctly by one of the learned Counsel for respondents that an
application for bail cannot be made before the High Court on behalf of an accused after the Special
Court has refused bail. These and other provisions of the Act make it clear that the rights of the
accused have been curtailed in a substantial manner by the impugned legislation; and if the rights
are curtailed only in certain cases and not in others, even though the circumstances in the latter
cases are the same, a question of discrimination may certainly arise. The first line of argument
adopted by the learned Attorney-General cannot, therefore, be accepted.
I now come to the other head of arguments put forward by him and the principal point for our
consideration is whether the apparent discriminations that have been made in the Act can be
justified on the basis of a reasonable classification. Section 5(1) of the West Bengal Special Courts
Act lays down that "A Special Court shall try such offences or classes offences or cases or classes of
cases as the State Govern- ment may, by general or special order in writing direct."
The learned Attorney-General urges that the principle of classification upon which the differences
have been made between cases and offences triable by the Special Court and those by ordinary
courts is indicated in the preamble to the Act which runs as follows:
"Whereas it is expedient to provide for the speedier trial of certain offences".
What is said is, that the preamble is to be read as a part of section 5(1) and the proper interpretation
to be put upon the sub-section is that those cases and offences which in the opinion of the State
Government would require speedier trial could be assigned by it to the Special Court. In my
opinion, this contention cannot be accepted for more reasons than one. In the first place, I agree
with the learned Chief Justice of the Calcutta High Court that the express provision of an enactment,
if it is clear and unambiguous, cannot be curtailed or extended with the aid of the preamble to the
Act. It is only when the object or meaning of the enactment is not clear that recourse can be had to
the preamble to explain it (1). In the case before us the language of section 5(1) is perfectly clear and
free from any ambiguity. It vests an unrestricted discretion in the State Government to direct any
cases or classes of cases to be tried by the Special Court in accordance with the procedure laid down
in the Act. It is not stated that it is only when speedier trial is necessary that the discretion should be
exercised. In the second place, assuming that the preamble throws any light upon the interpretation
of the section, I am definitely of opinion that the necessity of a speedier trial is too vague, uncertain
and elusive a criterion to form a rational basis for the discriminations made. The necessity for
speedier trial may be the object which the legislature had in view or it may be the occasion for
making the enactment. In a sense quick disposal is a thing which is desirable in all legal
proceedings. The word used here is "speedier" which is a comparative term and as there may be

degrees of speediness, the word undoubtedly introduces an uncertain and variable element. But the
question is: how is this necessity of speedier trial to be determined ? Not by reference to the nature
of the offences or the circumstances under which or the area in which they are committed, nor even
by reference to any peculiarities or antecedents of the offenders themselves, but the selection is left
to the absolute and unfettered discretion of the executive government with nothing in the law to
guide or control its action. This is not a reasonable classification at all but an arbitrary selection. A
line is drawn artificially between two classes of cases. On one side of the line are grouped those cases
which the State Government chooses to assign to the Special Court; on the other side stand the rest
which the State Government does not think fit and proper to touch. It has been observed in many
cases by the Supreme Court of America that the fact that some (1) See Craies on Statute Law, 4th
edn., 184.
sort of classification has been attempted at will not relieve a statute from the reach of the equality
clause. "It must appear not only that a classification has been made but also that it is based upon
some reasonable ground--some difference which bears a just and proper relation to the attempted
classification"(1). The question in each case would be whether the characteristics of the class are
such as to provide a rational justification for the differences introduced ? Judged by this test, the
answer in the present case should be in the negative; for the difference in the treatment rests here
solely on arbitrary selection by the State Government. It is true that the presumption should always
be that the legislature understands and correctly appreciates the needs of its own people and that
its discriminations are based on adequate grounds (2); but as was said by Mr. Justice Brewer in Gulf
Colorado etc. Company v. Ellis (3), "to carry the presumption to the extent of holding that there
must be some undisclosed and unknown reason for subjecting certain individuals or corporations to
hostile and discriminatory legislation is to make the protection clauses of the Fourteenth
Amendment a mere rope of sand."
A point was made by the Attorney-General in course of his arguments that the equality rule is not
violated simply because a statute confers unregulated discretion on officers or on administrative
agencies. In such cases it may be possible to attack the legislation on the ground of improper
delegation of authority or the acts of the officers may be challenged on the ground of wrongful or
mala fide exercise of powers; but no question of infringement of article 14 of the Constitution could
possibly arise. We were referred to a number of authorities on this point but I do not think that the
authorities really support the proposition of law in the way it is formulated. In the well known case
of Yick Wo v. Hopkins (4), the question was, whether the provision of a certain ordinance of the City
and County of San (1) Gulf Colorado etc. Go. v. Ellis (165 U.S. 150). (2) Middleton v. Texas Power &
Light Co. (249 U.S. 152). (3) 165 U.S. 150. (4) 118 U.S. 356.
Francisco was invalid by reason of its being in conflict with the equal protection clause. The order in
question laid down that it would be unlawful for any person to engage in laundry business within
the corporate limits "without having first obtained the consent of the Board of Supervi- sors except
the same to be located in a building constructed either of brick or stone." The question was
answered in the affirmative. It was pointed out by Matthews, J., who delivered the opinion of the
court, that the ordinance in question did not merely prescribe a rule and condition for the
regulation of the laundry business. It allowed without restriction the use for such purposes of

building of brick or stone, but as to wooden buildings constituting nearly all those in previous use, it
divided the owners or occupiers into two classes, not having respect to their personal character and
qualifications of the business, nor the situation and nature and adaptation of the buildings
themselves, but merely by an arbitrary line, on one side of which were those who were permitted to
pursue their industry by the mere will and consent of the supervisors and on the other those from
whom that consent was withheld at their will and pleasure. This sort of committing to the
unrestrained will of a public officer the power to deprive a citizen of his right to carry on lawful
business was' held to constitute an invasion of the Fourteenth Amendment. The learned Judge
pointed out in course of his judgment that there are cases where discretion is lodged by law in public
officers or bodies to grant or withhold licences to keep taverns or places for sale of spirituous liquor
and the like. But all these cases stood on a different footing altogether. The same view was reiterated
in Crowley v. Christensen(1) which related to an ordinance regulating the issue of licences to sell
liquors. It appears to be an accepted doctrine of American courts that the purpose of the equal
protection clause is to secure every person within the States against arbitrary discrimination,
whether occasioned by the express terms of the statute or by their (1) 137 U.S. 86.
improper application through duly constituted agents. This was clearly laid down in Sunday Lake
Iron Cornparty v. Wakefield (1). In this case the complaint was against a. taxing officer, who was
alleged to have assessed the plaintiff's properties at their full value, while all other persons in the
county were assessed at not more than one- third of the worth of their properties. It was held that
the equal protection clause could be availed of against the taxing officer; but if he was found to have
acted bona fide and the discrimination was the result of a mere error of judgment on his part, the
action would fail. The position, therefore, is that when the statute is not itself discriminatory and
the charge of violation of equal protection is only against the official, who is entrusted with the duty
of carrying it into operation, the equal protection clause could be availed of in such cases; but the
officer would have a good defence if he could prove bona fides. But when the statute itself makes a
discrimination without any proper or reasonable basis, the statute would be invalidated for being in
conflict with the equal protection clause, and the question as to how it is actually worked out may
not necessarily be a material fact for consideration. As I have said already, in the present case the
discrimination arises on the terms of the Act itself. The fact that it gives unrestrained power to the
State Government to select in any way it likes the particular cases or offences which should go to a
Special Tribunal and withdraw in such cases the protection which the accused normally enjoy
under the criminal law of the country, is on the face of it discriminatory. It may be noted in this
connection that in the present case the High Court has' held the provision of section 5 (1) of the
West Bengal Special Courts Act to be ultra vires the Constitution only so far as it allows the State
Government to direct any case to be tried by the Special Court. In the opinion of the learned Chief
Justice, if the State Govern- ment had directed certain offences or classes of offences committed
within the (1) 247 U.S. 350.
territory of West Bengal to be tried by the Special Court, the law or order could not have been
impeached as discriminatory. It is to be noted that the Act itself does not mention in what classes
of cases or offences such direction could be given; nor does it purport to lay down the criterion or
the basis upon which the classification is to be made. It is not strictly correct to say that if certain
specified offences throughout the State were directed to be tried by the Special Court, there could

not be any infringement of the equality rule. It may be that in making the selection the authorities
would exclude from the list of offences other offences of a cognate character in respect to which no
difference in treatment is justifiable. In such circumstances also the law or order would be offending
against the equality provision in the Constitution. This is illustrated by the case of Skinner v.
Oklahorna(1). There a statute of Oklahoma provided for the sterilization of certain habitual
criminals, who were convicted two or more times in any State, of felonies involving moral
turpitudell. The statute applied to persons guilty of larceny, which was regarded as a felony but not
to embezzlement. It was held that the statute violated the equal protection clause. It is said that in
cases where the law does not lay down a standard or form in accordance with which the
classification is to be made, it would be the duty of the officers entrusted with the execution of the
law, to make the classification in the way consonant with the principles of the Constitution (2). If
that be the position, then an action might lie for annulling the acts of the officers if they are found
not to be in conformity with the equality clause. Moreover, in the present case the notification by the
State Government could come within the definition of law as given in article 13(3) of the
Constitution and can be impeached apart from the Act if it violates article 14 of the Constitution. I
do not consider it necessary to pursue this matter any further, as in my opinion even on the (1) 316
U.S. 555.
(2) Vide Willis on Constitutional Law, Page 587.
limited ground upon which the High Court bases its decision, these appeals are bound to fail.
DAS J.--I concur in dismissing these appeals but I am not persuaded that the whole of section 5(1)
of the West Bengal Special Courts Act is invalid. As I find myself in substantial agreement with the
interpretation put upon that section by the majority of the Full Bench of the Calcutta High Court
and most of the reasons adopted by Harries, C.J. in support thereof, I do not feel called upon to
express myself in very great detail. I propose only to note the points urged before us and shortly
state my conclusions thereon.
There is no dispute that the question of the validity of section 5 of the West Bengal Special Courts
Act, 1950, has to be determined in the light of the provisions of the Constitution of India which came
into force on January 26, 1950. The contention of the respondents, who were petitioners before the
High Court, has been and is that the whole of section 5 of the Act or, at any rate, that part of it which
authorises the State government to direct particular "cases" to be tried by the Special Court offends
against the guarantee of equality before the law secured by article 14. If the provision of section 5 of
the Act is invalid even to the limited extent mentioned above. then also the whole proceedings
before the Special Court which was directed by the State government to try these particular "cases"
must necessarily have been without jurisdiction as has been held by the High Court Full Bench and
these appeals would have to be dismissed.
Article 14 of our Constitution, it is well known, corresponds to the last portion of section 1 of the
Fourteenth Amendment to the American Constitution except that our article 14 has also adopted the
English doctrine of rule of law by the addition of the words "equality before the law." It has not,
however, been urged before us that the addition of these extra words has made any substantial

difference in its practical application. The meaning, scope and effect of article 14 of our Constitution
have been discussed and laid down by this Court in the case of Chiranjit Lal Chowdhury v. The
Union of India and Others (1). Although Sastri J., as he then was, and myself differed from the
actual decision of the majority of the Court, there was no disagreement between us and the
majority as to the principles underlying the provisions of article 14. The difference of opinion in that
case was not so much on the principles to be applied as to the effect of the application of such
principles. Those principles were again considered and summarised by this Court in The State of
Bombay v.F.N. Balsara (2). It is now well established that while article 14 is designed to prevent a
person or class of persons from being singled out from others similarly situated for the purpose of
being specially subjected to discriminating and hostile legislation, it does not insist on an "abstract
symmetry" in the sense that every piece of legislation must have universal application. All persons
are not, by nature, attainment or circumstances, equal and the varying needs of different classes of
persons often require separate treatment and, therefore, the protecting clause has been construed as
a guarantee against discrimination amongst equals only and not as taking away from the State the
power to classify persons for the purpose of legislation. This classification may be on different bases.
It may be geographical or according to objects or occupations or the like. Mere classification,
however, is not enough to get over the inhibition of the Article. 'The classification must not be
arbitrary but must be rational, that is to say, it must not only be based on some qualities or
characteristics which are to be found in all the persons grouped together and not in others who are
left out but those qualities or characteristics must have a reasonable relation to the object of the
legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the
classification must be founded on an intelligible differentia which distinguishes those that are
grouped together from others (1) [1950] S.C.R. 869. (2) [1951] S.C.R. 682.
and (2) that that differentia must have a rational relation to the object sought to be achieved by the
Act. 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. In short, while the Article
forbids class legislation in the sense of making improper discrimination by conferring privileges or
imposing liabilities upon persons arbitrarily selected out of a large number of other persons
similarly situated in relation to the privileges sought to be conferred or the liability proposed to be
imposed, it does not forbid classification for the purpose of legislation, provided such classification
is not arbitrary in the sense I have just explained. The doctrine, as expounded by this Court in the
two cases I have mentioned, leaves a considerable latitude to the Court in the matter of the
application of article 14 and consequently has the merit of flexibility.
The learned Attorney-General, appearing in support of these appeals, however, contends that while
a reasonable classification of the kind mentioned above may be a test of the validity of a particular
piece of legislation, it may not be the only test which will cover all cases and that there may be other
tests also. In answer to the query of the Court he formulates an alternative test in the following
words: If there is in fact inequality of treatment and such inequality is not made with a special
intention of prejudicing any. particular person or persons but is made in the general interest of
administration, there is no infringement of article 14. It is at once obvious that, according to the test
thus formulated, the validity of State action, legislative or executive, is made entirely dependent on
the state of mind of the authority. This test will permit even flagrantly discriminatory State action

on the specious plea of good faith and of the subjective view of the executive authority as to the
existence of a supposed general interest of administration. This test, if accepted, will amount to
adding at the end of article 14 the words "except in good faith and in the general interest of
administration." This is clearly not permissible for the Court to do. Further, it is obvious that the
addition of these words will, in the language of Brewer, J., in Gulf, Colorado and Santa Fe Railway
Co. v. W.H. Ellis(1), make the protecting clause a mere rope of sand, in no manner restraining State
action. I am not, therefore, prepared to accept the proposition propounded by the learned
Attorney-General, unsupported as it is by any judicial decision, as a sound test for determining the
validity of State action.
The learned Attorney-General next contends, on the authority of a passage in Cooley's

Constitutional Limita- tions, 8th Edition, Vol. 2, p. 816, that inequalities of minor importance do not
render a law invalid and that the constitutional limitations must be treated as flexible enough to
permit of practical application. The passage purports to be founded on the decision in Jeffrey
Manufac- turing Co. v. Blagg (2). A careful perusal of this decision will make it quite clear that the
Court upheld the validity of the statute impugned in that case, not on the ground that the inequality
was of minor importance but, on the ground that the classification of establishments according to
the number of workmen employed therein was based on an intelligible distinction having a
rational relation to the subject-matter of the legislation in question. That decision, therefore, does
not support the proposition so widely stated in the passage apparently added by the editor to the
original text of Judge Cooley. The difference brought about by a statute may be of such a trivial,
unsubstantial and illusory nature that that circumstance alone may be regarded as cogent ground
for holding that the statute has not discriminated at all and that no inequality has in fact been
created. This aspect of the matter apart, if a statute brings about inequality in fact and in substance,
it will be illogical and highly undesirable to make the constitutionality of such a statute depend on
the degree of the inequality so (1) 165 U.S. 150. (2) 235 U.S. 571; 59 L. Ed. 364.
brought about. The adoption of such a principle will run counter to the plain language of article 14.
At one stage of his arguments the learned AttorneyGener- al just put forward an argument, which he
did not press very strongly, that the Article is a protection against the inequality of substantive law
only and not against that of a procedural law. I am quite definitely not prepared to countenance that
argument. There is no logical basis for this distinction. A procedural law may easily inflict very great
hardship on persons subjected to it, as, indeed, this very Act under consideration will presently be
seen to have obviously done.
That the Act has prescribed a procedure of trial which is materially different from that laid down in
the Code of Criminal Procedure cannot be disputed. The different sections of the Act have been
analysed and the important differences have been clearly indicated by the learned Chief Justice of
West Bengal and need not be repeated in detail. The elimination of the committal proceedings and
of trial by jury (sec. 6), the taking away of the right to a de novo trial on transfer (sec. 7), the vesting
of discretion in the Special Court to refuse to summon a defence witness if it be satisfied that his
evidence will not be material (sec. 8), the liability to be convicted of an offence higher than that for
which the accused was sent up for trial under the Act (sec. 13), the exclusion of interference of other
Courts by way of revision or transfer or under section 491 of the Code (sec. 16) are some of the

glaring instances of inequality brought about by the impugned Act. The learned Attorney- General
has drawn our attention to various sections of the Code of Criminal Procedure in an endeavour to
establish that provisions somewhat similar to those enacted in this Act are also contained in the
Code. A comparison between the language of those sections of the Code and that of the several
sections of this Act mentioned above will clearly show that the Act has gone much beyond the
proViSions of the Code and the Act cannot by any means be said to be an innocuous substitute for
the procedure prescribed by the Code. The far-reaching effect of the elimination of the committal
proceedings cannot possibly be ignored merely by stating that the warrant procedure under the
Code in a way also involves a committal by the trial Magistrate, namely to himself, for the warrant
procedure minimises the chances of the prosecution being thrown out at the preliminary stage. as
may be done by the committing Magistrate, and deprives the accused person of the opportunity of
knowing, well in advance of the actual trial before the Sessions Court, the case sought to be made
against him and the evidence in support of it and, what is of the utmost importance, of the benefit of
a trial before and the decision of a different and independent mind. The liability to be convicted of
a higher offence has no parallel in the Code. It is true that the State can, under section 269 (1) of the
Code, do away with trial by jury but that section, as pointed out by Chakravartti J. does not clearly
contemplate elimination of that procedure only in particular cases which is precisely what the Act
authorises the Government to do. On a fair reading of the Act there can be no escape from the fact
that it quite definitely brings about a substantial inequality of treatment, in the matter of trial,
between persons subjected to it and others who are left to be governed by the ordinary procedure
laid down. in the Code. The question is whether section 5 (1) which really imposes this substantial
inequality on particular persons can be saved from the operation of article 14 on the principle of
rational classification of the kind permissible in law. Section 5 (1) of the Act runs as follows":--
" A Special Court shall try such offences or classes of offences or cases or classes of cases, as the
State Government may, by general or special order in writing, direct".
It will be noticed that the sub-section refers to four distinct categories, namely, "offences",' 'classes
of offences", "cases" and "classes of cases" and empowers the State government to direct any one or
more of these categories to be tried by the Special Court constituted under the Act. I shall first deal
with the section in so far as it authorises the State government to direct "offences", "classes of
offences" and "classes of cases" to be tried by a Special Court. These expressions clearly indicate,
and obviously imply, a process of classification of offences or cases. Prima facie those words do not
contemplate any particular offender or any particular accused in any particular case. The emphasis
is on "offences", ' 'classes of offences" or "classes of cases". The classification of ' 'offences" by itself
is not calculated to touch any individual as such, although it may, after the classification is made,
affect all individuals who may commit the particular offence. In short, the classification implied in
this part of the sub-section has no reference to, and is not directed towards the singling out of any
particular person as an object of hostile State action but is concerned only with the grouping of
"offences", "classes of offences" and "classes of cases" for the purpose of being tried by a Special
Court. Such being the meaning and implication of this part of section 5 (1), the question arises
whether the process of classification thus contemplated by the Act conforms to the requirements of
reasonable classification which does not offend against the Constitution. Learned Attorney-General
claims that the impugned Act satisfies even this test of rational classification. His contention is that

offences may be grouped into two classes, namely, those that require speedier trial, that is speedier
than what is provided for in the Code and those that do not require a speedier trial. The Act,
according to him, purports to deal only with offences of the first class. He first draws our attention
to the fact that the Act is intituled "An Act to provide for the speedier trial of certain offences" and
then points out that the purpose of the Act, as stated in its preamble, also is "to provide for the
speedier trial of certain offences". He next refers us to the different sections of the Act and urges that
all the procedural changes introduced by the Act are designed to accomplish the object of securing
speedier trial. The Act accordingly empowers the State government to direct the offences, which, in
its view, require speedier trial, to be tried by a Special Court according to the special procedure
provided by it for the speedier trial of those offences. This construction of the section, he main-
tains, is consonant with the object of the Act as recited in the preamble and does not offend against
the inhibition of article 14 of our Constitution. Learned counsel for the respondents, on the other
hand, urge that there is no ambiguity whatever in the language used in the sub-section, that there
is no indication in the sub-section itself of any restriction or qualification on the power of
classification conferred by it on the State government and that the power thus given to the State
government cannot be controlled and cut down by calling in aid the preamble of the Act, for the
preamble cannot abridge or enlarge the meaning of the plain language of the sub-section. This
argument was accepted by the High Court in its application to the other part of the section dealing
with selection of "cases" but in judging whether this argument applies, with equal force, to that part
of the section I am now considering, it must be borne in mind that, although the preamble of an Act
cannot override the plain meaning of the language of its operative parts, it may, nevertheless,
assist in ascertaining what the true meaning or implication of a particular section is, for the
preamble is, as it were a key to the understanding of the Act. I therefore, proceed to examine this
part of section 5(1) in the light of the preamble so as to ascertain the true meaning of it.
I have already stated that this part of the sub- section contemplates a process of classification of "of-
fences", "classes of offences" and "classes of cases". This classification must, in order that it may not
infringe the constitutional prohibition, fulfil the two conditions I have mentioned. The preamble of
the Act under consideration recites the expediency of providing for the speedier trial of certain
offences. The provision for the speedier trial of certain offences is, therefore, the object of the Act. To
achieve this object, offences or cases have to be classified upon the basis of some differentia which
will distinguish those offences or cases from others and which will have a reasonable relation to the
recited object of the Act. The differentia and the object being, as I have said, different elements, it
follows that the object by itself cannot be the basis of the classification of offences or the cases, for,
in the absence of any special circumstances which may distinguish one offence or one class of
offences or one class of cases from another offence, or class of offences or class of cases, speedier
trial is desirable in the disposal of all offences or classes of offences or classes of cases. Offences or
cases cannot be classified in two categories on the basis of the preamble alone as suggested by the
learned Attorney-General.
Learned counsel for the respondents then contended that as the object of the Act as recited in the
preamble cannot be the basis of classification, then this part of sub-section 5 (1) gives an
uncontrolled and unguided power of classification which may well be exercised by the State
government capriciously or "with an evil eye and an unequal band" so as to deliberately bring about

invidious discrimination between man and man, although both of them are situated in exactly the
same or similar circumstances. By way of illustration it is pointed out that in the Indian Penal Code
there are different chapters dealing with offences relating tO different matters, e.g., Chapter XVII
which deals with offences against property, that under this generic head are set forth different
species of offences against property, e.g., theft (section 378), theft in a dwelling house (section
380), theft by a servant (section 381), to take only a few examples, and that according to the
language of section 5(1) of the impugned Act it will be open to the State government to direct all
offences of theft in a dwelling house under section 380 to be tried by the Special Court according to
the special procedure laid down in the Act leaving all offences of theft by a servant under section 381
to be dealt with in the ordinary Court in the usual way. In other words, if a stranger is charged with
theft in a dwelling house, he may be sent up for trial before the Special Court under section 380
whereas if a servant is accused of theft in a dwelling house he may be left to be tried under the Code
for an offence under section 381. The argument is that although there is no apparent reason why an
offence of theft in a dwelling house by a stranger should require speedier trial any more than an
offence of theft in a dwelling house by a servant should do, the State government may nevertheless
select the former offence for special and discriminatory treatment in the matter of its trial by
bringing it under the Act. A little reflection will show that this argument is not sound. The part of
sub-section 5(1) which I am now examining confers a power on the State government to make a
classification of offences, classes of offences or classes of cases, which, as said by Chakravartti J.,
"means a proper classification." In order to be a proper classification so as not to offend against the
Constitution it must be based on some intelligible differentia which should have a reasonable
relation to the object of the Act as recited in the preamble. In the illustration taken above the two
offences are only two species of the same genus, the only difference being that in the first the alleged
offender is a stranger and in the latter he is a servant of the owner whose property has been stolen.
Even if this difference in the circumstances of the two alleged offenders can be made the basis of a
classification, there is no nexus between this difference and the object of the Act, for, in the
absence of any special circumstances, there is no apparent reason why the offence of theft in a
dwelling house by a stranger should require a speedier trial any more than the offence of theft by a
servant should do. Such classification will be wholly arbitrary and will be liable to be hit by the
principles on which the Supreme Court of the United States in Jack Skinner v. Oklahoma(1) struck
down the Oklahoma Habitual Criminal Sterilisation Act which (1) 216 US. 535; 86 L. Ed. 1655.
imposed sterilisation on a person convicted more than twice of larceny but not on one who was
convicted of embezzlement on numerous occasions. That sort of classification will, therefore, not
clearly be a proper classification such as the Act must be deemed to contemplate.
On the other hand, it is easy to visualise a situation when certain offences, e.g., theft in a dwelling
house, by reason of the frequency of their perpetration or other attending circumstances, may
legitimately call for a speedier trial and swift retribution by way of punishment to check the
commission of such offences. Are we not familiar with gruesome crimes of murder, arson, loot and
rape committed on a large scale during communal riots in particular localities and are they not
really different from a case of a stray murder, arson, loot or rape in another district which may not
be affected by any communal upheaval ? Do not the existence of the communal riot and the
concomitant crimes committed on a large scale call for prompt and speedier trial in the very interest

and safety of the community ? May not political murders or crimes against the State or a class of the
community, e.g., women, assume such proportions as would be sufficient to constitute them into a
special class of offences requiring special treatment ? Do not these special circumstances add a
peculiar quality to these offences or classes of offences or classes of cases which distinguish them
from stray cases of similar crimes and is it not reasonable and even necessary to arm the State with
power to classify them into a separate group and deal with them promptly ? I have no doubt in my
mind that the surrounding circumstances and the special features I have mentioned above will
furnish a very cogent and reasonable basis of classification, for it is obvious that they do clearly
distinguish these offences from similar or even same species of offences committed elsewhere and
under ordinary circumstances. This differentia quite clearly has a reasonable relation to the object
sought to be achieved by the Act, namely, the speedier trial of certain offences. Such a classification
will not be repugnant to the equal protection clause of our Constitution for there will be no
discrimination, for whoever may commit the specified offence in the specified area in the specified
circumstances will be treated alike and sent up before a Special Court for trial under the special
procedure. Persons thus sent up for trial by a Special Court cannot point their fingers to the other
persons who may be charged before an ordinary Court with similar or even same species of offences
in a different place and in different circumstances and complain of unequal treatment, for those
other persons are of a different category and are not their equals. Section 5(1), in so far as it
empowers the State government to direct "offences" or "classes of offences" or "classes of cases" to
be tried by a Special Court, also, by necessary implication and intendment, empowers the State
government to classify the "offences" or "classes of offences" or "classes of cases ", that is to say, to
make a proper classification in the sense I have explained. In my judgment, this part of the section,
properly construed and understood, does not confer an uncontrolled and unguided power on the
State government. On the contrary, this power is controlled by the necessity for making a proper
classification which is guided by the preamble in the sense that the classification must have a
rational relation to the object of the Act as recited in the preamble. It is, therefore, not an arbitary
power. I, therefore, agree with Harries, C.J. that this part of section 5(1) is valid. if the State gov-
ernment classifies offences arbitrarily and not on any reasonable basis having a relation to the object
of the Act, its action will be either an abuse of its power if it is purposeful or in excess of its powers
even if it is done in good faith and in either case the resulting discrimination will encounter the
challenge of the Constitution and the Court will strike down, not the law which is good, but the
abuse or misuse or the unconstitutional administration of the law creating or resulting in
unconstitutional discrimination.
In the present case, however, the State government has not purported to proceed under that part of
section 5(1) which I have been discussing so far. It has, on the other hand, acted under that part of
the section which authorises it to direct" cases" to be tried by the Special Court, for by the
notifications it has directed certain specific cases identified by their individual numbers in the
records of the particular than as to be tried by the Special Court. There is ostensibly no attempt at,
or pretence of, any classification on any basis whatever. The notifications simply direct certain
"cases" to be tried by the Special Court and are obviously issued under that part of section 5(1)
which authorises the State government to direct "cases" to be tried by the Special Court. The word
"cases" has been used to signify a category distinct from "classes of cases". The idea of classification
is, therefore, excluded. This 'means that this part of the sub-section empowers the State Govern-

ment to pick out or select particular cases against particular persons for being sent up to the
Special Court for trial. It is urged by the learned AttorneyGeneral that this selection of cases must
also be made in the light of the object of the Act as expressed in its preamble, that is to say, the State
government can only select those cases which, in their view, require speedier trial. Turning to the
preamble, I find that the object of the Act is "to provide for the speedier trial of certain offences"
and not of a particular case or cases. In other words, this part of section 5 (1) lies beyond the ambit
of the object laid down in the preamble and, therefore, the preamble can have no manner of
application in the selection of "cases" as distinct from "offences", "classes of offences" or "classes of
cases". I agree with Harries C.J. that the preamble cannot control this part of the sub-section where
the language is plain and unambiguous. Further, as I have already explained, the object of the Act
cannot, by itself, be the basis of the selection which, I repeat, must be based on some differentia
distinguishing the ' 'case" from other ' 'cases" and having a relation to the object of the Act. It is
difficult, if not impossible, to conceive of an individual "case", as distinct from a "class of cases", as a
class by itself within the rule of permissible and legitimate classification. An individual case of a
crime committed with gruesome atrocity or committed upon an eminent person may shock our
moral sense to a greater extent but, on ultimate analysis and in the absence of special circumstances
such as I have mentioned, it is not basically different from another individual case of a similar
crime although committed with less vehemence or on a less eminent person. In any case, there is no
particular bond connecting the circumstances of the first mentioned case with the necessity for a
speedier trial. In the absence of special circumstances of the kind I have described above, one
individual case, say of murder, cannot require speedier trial any more than another individual case
of murder may do. It is, therefore, clear, for the foregoing reasons, that the power to direct "cases" as
distinct from "classes of cases" to be tried by a Special Court contemplates and involves a purely
arbitrary selection based on nothing more substantial than the whim and pleasure of State
Government and without any appreciable relation to the necessity for a speedier trial. Here the law
lays an unequal hand on those who have committed intrinsically the same quality of offence. ]his
power must inevitably result in discrimination and this discrimination is, in terms incorporated in
this part of the section itself and, therefore, this part of the section itself must incur our
condemnation. It is not a question of an unconstitutional administration of a statute otherwise valid
on its face but here the unconstitutionality is writ large on the face of the statute itself. I, therefore,
agree with the High Court that section 5(1) of the Act in so far as it empowers the State Govern-
ment to direct "cases" to be tried by a Special Court offends against the provisions of article 14 and
therefore the Special Court had no jurisdiction to try these "cases" of the respondents. In ray
judgment, the High Court was right in quashing the conviction of the respondents in the one case
and in prohibiting further proceedings in the other case and these appeals should be dismissed.
CHANDRASEKHARA AIYAR J.--The short question that arises for consideration in these cases is
whether the whole, or any portion of the West Bengal Special Courts Act, X of 1950, is invalid as
being opposed to equality before the law and the equal protection of the laws guaranteed under
article 14 of the Constitution of India. The facts which have led up to the cases have been stated in
the judgments of the High Court at Calcutta and their recapitu- lation is unnecessary. I agree in the
conclusion reached by my learned brothers that the appeals should be dismissed and I propose to
indicate my views as shortly as possible on a few only of the points raised and discussed. The
preamble to the Constitution mentions one of the objects to be to secure to all its citizens equality of

status and opportunity. Article 14 provides:
"The State shall not deny to any person equality before the law or the equal protection of the laws
within the territory of India."
Then follow articles 15 and 16, the former prohibiting discrimination on grounds of religion, race,
caste, sex, place of birth, or any of them and the latter providing for equality of opportunity in
matters of public employment. Leaving aside articles 17 to 19 as irrelevant for present purposes, we
proceed to articles 20, 21 and 22, which deal with prosecutions and convictions for offences and
cases of preventive detention and prescribe, in rough and general outline, certain matters of
procedure. Article 21 is, so to say, the key of this group or bunch and it is in these terms :-
"No person shall be deprived of his life or personal liberty except according to procedure established
by law".
There can be no doubt that as regards the cases to be sent before the Special Court or Courts, the Act
under scrutiny has deviated in many matters of importance from the procedure prescribed by the
Criminal Procedure Code for the trial of offences and that this departure has been definitely adverse
to the accused. Preliminary inquiry before committal to the sessions, trial by jury or with the aid of
assessors, the right of a de novo trial on transfer of a case from one Court to another, have been
taken away from the accused who are to be tried by a Special Court; even graver is section 13, which
provides that a person may be convicted of an offence disclosed by the evidence as having been
committed by him, even though he was not charged with it and it happens to be a more serious
offence. This power of the Special Court is much wider than the powers of ordinary courts. The
points of prejudice against the accused which appear in the challenged Act have been pointed out
in detail in the judgment of Trevor Harries C.J. They cannot all be brushed aside as variations of
minor and unsubstantial importance.
The argument that changes in procedural law are not material and cannot be said to deny equality
before the law or the equal protection of the laws so long as the substantive law remains
unchanged or that only the fundamental rights referred to in articles 20 to 22 should be safeguard-
ed is, on the face of it, unsound. The right to equality postulated by article 14 is as much a
fundamental right as any other fundamental right dealt with in Part III of the Constitution.
Procedural law may and does confer very valuable rights on a person, and their protection must be
as much the object of a court's solicitude as those conferred under substantive law.
The learned Attorney-General contended that if the object of the legislation was a laudable one and
had a public purpose in view, as in this case, which provided for the speedier trial of certain
offences, the fact that discrimination resulted as a bye-product would not offend the provisions of
article 14. His point was that if the inequality of treatment was not specifically intended to
prejudice any particular person or group persons but was in the general interests of administra-
tion, it could not be urged that there is a denial of equality before the law. To accept this position
would be to neutralize, if not to abrogate altogether, article 14. Almost every piece of legislation has
got a public purpose in view and is generally intended, or said to be intended, to promote the

general progress of the country and the better administration of Government.' The intention behind
the legislation may be unexceptionable and the object sought to be achieved may be praiseworthy
but the question which falls to be considered under article 14 is whether the legislation is
discriminatory in its nature, and this has to be determined not so much by its purpose or objects but
by its effects. There is scarcely any authority for the position taken up by the Attorney-General.
It is well settled that equality before the law or the equal protection of laws does not mean identity
or abstract symmetry of treatment. Distinctions have to be made for different classes and groups of
persons and a rational or reasonable classification is permitted, as otherwise it would be almost
impossible to carry on the work of Govern- ment of any State or country. To use the felicitous
language of Mr. Justice Holmes in Bain Peanut Co. v. Pinson(1) "We must remember that the
machinery of government could not work if it were not allowed a little play in its joints." The law on
the subject has been well stated in a passage from Willis on Constitutional Law (1936 Edition, at
page
579) and an extract from the pronouncement this Court in what is known as the Prohibition Case,
The State of. Bombay and Another v.F.N. Balsara(2), where my learned brother Fazl Ali J. has
distilled in the form of seven principles most of the useful observations of this Court in the Sholapur
Mills case, ChiranLal Chowdhury v. The Union of India and Others(3) Willis says :--
"The guaranty of the equal protection of the laws means the protection of equal laws. It forbids (1)
282 U.S. 499 at p. 501. (3) [1950] S.C.R. 869. (2) [1951] S.C.R. 682.
class legislation, but does not forbid classification which rests upon reasonable grounds of
distinction. It does not prohibit legislation, which is limited either in the objects to which it is
directed or by the territory within which it is to operate. "It merely requires that all persons subject
to such legislation shall be treated alike under like circumstances and conditions both in the
privileges conferred and in the liabilities imposed." "The inhibition of the amendment was designed
to prevent any person or class of persons from being singled out as a special subject for
discriminating and hostile legislation." It does not take from the states the power to classify either in
the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of
a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis.
Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is
enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of
that state of facts must be assumed. One who assails a classification must carry the burden of
showing that it does not rest upon any reasonable basis."
The seven principles formulated by Fazl Ali J. are as follows :--
"1. The presumption is always in favour of the constitutionality of an enactment, since it must be
assumed that the legislature understands and correctly appreciates the needs of its own people, that
its laws are directed to problems made manifest by experience and its discriminations are based on
adequate grounds.

2. The presumption may be rebutted in certain cases by showing that on the face of the statute, there
is no classification at all and no difference peculiar to any individual or class and not applicable to
any other individual or class, and yet the law hits only a particular individual or class.
3. The principle of equality does not mean that every law must have universal application for all
persons who are not by nature, attainment or circumstances in the same position, and the varying
needs of different classes of persons often require separate treatment.
4. The principle does not take away from the State the power of classifying persons for legitimate
purposes.
5. Every classification is in some degree likely to produce some inequality, and mere production of
inequality is not enough.
6. If a law deals equally with members of a welldefined class, it is not obnoxious and it is not open to
the charge of denial of equal protection on the ground that it has no application to other persons.
7. While reasonable classification is permissible, such classification must be based upon some real
and substantial distinction bearing a reasonable and just relation to the object sought to be attained,
and the classification cannot be made arbitrarily and without any substantial basis."
After these citations, it is really unnecessary to refer to or discuss in detail most of the American
decisions cited at the Bar. Their number is legion and it is possible to alight on decisions in support
of propositions, apparently even conflicting, if we divorce them from the context of the particular
facts and circumstances and ignore the setting or the background in which they were delivered. With
great respect, I fail to see why we should allow ourselves to be unduly weighted-down or
over-encumbered in this manner. To say this is not to shut out illumining light from any quarter; it
is merely to utter a note of caution that we need not stray far into distant fields and try to clutch at
something which may not after all be very helpful. What we have to find out is whether the statute
now m question before us offends to any extent the equal protection of the laws guaranteed by our
written Constitution. Whether the classification, ii any, is reasonable or arbitrary, or is substantial or
unreal, has to be adjudicated upon by the courts and the decision must turn more on one's common-
sense than on over-refined legal distinctions or subtleties. The Attorney-General argued that if the
principle of classification has to be applied as a necessary test, there is a classification in the
impugned Act as it says that it is intended to provide for the speedier trial of certain offences; and in
the opinion of the legislature certain offences may require more expeditious trial than other offences
and this was a good enough classification. But as speedy administration of justice, especially in the
field of the law of crimes, is a necessary characteristic of every civilised Government, there is not
much point in stating that there is a class of offences that require such speedy trial. Of course, there
may be certain offences whose trial requires priority over the rest and quick progress, owing to their
frequent occurrence, grave danger to public peace or tranquillity, and any other special features that
may be prevalent at a particular time in a specified area. And when it is intended to provide that
they should be tried more speedily than other offences, requiring in certain respects a departure
from the procedure prescribed for the general class of offences, it is but reasonable to expect the

legislature to indicate the basis for any such classification. If the Act does not state what exactly are
the offences which in its opinion need a speedier trial and why it is so considered, a mere statement
in general words of the object sought to be achieved, as we find in this case, is of no avail because the
classification, if any, is illusive or evasive. The policy or idea behind the classification should at least
be adumbrated, if not stated, so that the court which has to decide on the constitutionality might be
seized of something on which it could base its view about the propriety of the enactment from the
standpoint of discrimination or equal protection. Any arbitrary division or ridge will render the
equal protection clause moribund or lifeless.
Apart from the absence of any reasonable or rational classification we have in this case the
additional feature of a carte blanche being given to the State Government to send any offences or
cases for trial by a Special Court. Section 5, sub-clause (1), of the impugned Act is in these terms :--
" A Special Court shall try such offences or classes of offences or cases or classes of cases, as the
State Govern- ment may, by general or special order in writing, direct."
If the scope or the' meaning of the Act is doubtful, the preamble can be referred to for ascertaining
its extent and purpose. But where the operative parts of the Act are clear and there is no ambiguity,
the preamble cannot be allowed to control the express provisions. On the terms of section 5, it would
be perfectly open to the State Government to send before the Special Court any case, whatever its
nature, whether it has arisen out of a particular incident or relates to a crime of normal occurrence,
whether the offence involved is grave or simple, whether it needs more expeditious trial or not.
Thus, we have before us an enactment which does not make any reasonable classification and which
confers on the executive an uncontrolled and unguided power of discrimination.
The question whether there is any proper classification where no standard is set up by the
enactment to control executive action has arisen for consideration before the American courts and
has been differently answered. Willis says at page 586 :-
"Is it proper classification to put in one class those who get the consent of a board or of an official
and into another class those who do not, where no standard is set up to control the action of the
board or official ? Some cases answer. this question in the affirmative, while other cases answer it in
the negative. Perhaps the best view on this subject is that due process and equality are not violated
by the mere conference of unguided power, but only by its arbitrary exercise by those upon whom it
is conferred."
The case cited in support of this view, Plymouth Coal Co. v. Pennsylvania(1), is really on authority
for (1) 232 U.S. 532.
any such position. In that case, the statute provided that it was "obligatory on the owners of
adjoining coal properties to leave, or cause to be left, a pillar of coal in each seam or vein of coal
worked by them, along the line of adjoining property, of such width that, taken in connection with
the pillar to be left by the adjoining property owner, will be a sufficient barrier for the safety of the
employees of either mine in case the other should be abandoned and allowed to fill with water; such

width of pillar to be determined by the engineers of the adjoining property owners together with the
inspector of the district in which the mine is situated." When the Inspector of Mines wrote to the
plaintiff company, Plymouth Coal Co., asking their engineer to meet him so that they can meet the
engineer of the neighbouring coal company to decide about the thickness of the barrier pillar to be
left unmined between the two adjoining coal properties, the plaintiff company declined to co-oper-
ate. Thereupon the Inspector filed a bill of complaint against the plaintiff company for a preliminary
and a perpetual injunction from working its mines--without leaving a barrier pillar of the
dimensions he thought necessary. The plaintiff company urged that the Act upon which the bill was
based "was confiscatory, unconstitutional, and void". The bill of complaint succeeded but it was
provided in the final order that it was without prejudice to the Plymouth Coal Co.'s right to get
dissolution or modification of the injunction. The matter came up on appeal to the Supreme Court.
The legislative Act was challenged by the Plymouth Coal Co. on the grounds that the method of
fixing the width of the barrier pillar indicated in the Act was crude, uncertain and unjust, that there
was uncertainty and want of uniformity in the membership of the statutory tribunal, that there was
no provision of notice to the parties interested, that the procedure to be followed was not prescribed,
and that there was noright of appeal. All these objections were negatived. The Court observed on the
main contention that "it was competent for the legislature to lay down a general rule, and then
establish an administrative tribunal with authority to fix the precise width or thickness of pillar
that will suit the necessities of the particular situation, and constitute a compliance with the
general rule." This case is no authority for the position that the mere conferment of naked or
uncontrolled power is no violation of the due process or c equality clauses. it is true that the power
to deal with a particular situation within the general rule prescribed by the enactment may be con-
ferred on an administrative body or even on a single individual but this entrustment or delegation
is subject to the condition that the statute must itself be a valid one, as not being opposed to the 5th
or 14th Amendment of the Ameri- can Constitution, corresponding to articles 14 and 22 of our
Constitution.
Discrimination may not appear in the statute itself but may be evident in the administration of the
law. If an uncontrolled or unguided power is conferred without any reasonable and proper
standards or limits being laid down in the enactment, the statute itself may be challenged and not
merely the particular administrative act. Citing the case of Sunday Lake Iron Co. v. Wakefield,
Rogers v. Alabama and Concordia Fire Ins. Co. v. Illinois, Prof. Weaver says at page 404 of his
compendious book on Constitutional Law under the heading of ' DISCRIMINATION IN THE
ADMiNiSTRATION OF THE LAWS':--
"Discrimination may exist in the administration of the laws and it is the purpose of the equal
protection clause to secure all the inhabitants of the state from intentional and arbitrary
discrimination arising in their improper or prejudiced execution, as well as by the express terms of
the law itself. The validity or invalidity of a statute often depends on how it is construed and applied.
It may be valid when given a particular application and invalid when given another."
A difficulty was suggested and discussed in the course of the arguments in case article 14 was to
receive a very wide interpretation. Under article 12 of the Constitution, even a local authority comes
within the definition of "the State" and section 13 provides in sub-clause (3) that "'law' includes any

ordinance, order, bye-law, rule, regulation, notification............ " Therefore any ordinance or
notification issued by a local authority acting under the powers conferred on it by a statute might be
challenged as discriminatory and if this is permitted, the work of administration might be paralysed
altogether. This, no doubt, is a possible result but the difficulty envisaged is by no means
insurmountable. If the statute or the enactment makes a reasonable or rational classification and if
the power conferred by the statute on a local authority is exercised to the prejudice of a person visa
vis other persons similarly situated, two answers would be possible. One is that there was no
discrimination at all in the exercise of the power. The second is that the power was exercised in good
faith within the limitations imposed by the Act and for the achievement of the objects the enactment
had in view and that the person who alleges that he has been discriminated against will have to
establish mala fides in the sense that the step was taken intentionally for the purpose of injuring
him; in other words, it was a hostile act directed against him. If the legislation itself is open to attack
on the ground of discrimination, the question of any act done by a local or other authority under the
power or powers vested in it will not arise. If the Act itself is invalid on the ground that it is ultra
vires, the notification, ordinance, or rule falls to the ground with it, but if the Act remains, the
validity of the notification or order etc., when impugned, may have to be considered
independently. There may be cases where individual acts of state officials are questioned and not
the legislation itself. As regards such cases, Willoughby states at page 1932 of his Volume III on the
Constitution of the United States :--
"It is, however, to be observed in this connection, that the prohibitions apply to the acts of State
officials even when they are done in pursuance of some State legislative direction, for, while no
constitutional objection may be made to any law of the State, it has been held that its officials may
exercise their public authority in such a discriminatory or arbitrary manner as to bring them within
the scope of the prohibitions of the Fourteenth Amendment. This, it will be remembered, was one of
the grounds upon which, in Yick Wo v. Hopkins (118 U.S. 356) it was held that due process of law
had been denied. In Tarrance v. Florida (188 U.S. 519) the administration of a State law and not the
law itself was challenged and the court said: 'Such an actual discrimination is as potential in creating
a denial of equality of rights as a discrimination made by law.'"
There is only one other point that I would like to deal with. Trevor Harries C.J. has taken the view
that section 5 of the Act would have been unexceptionable had it only provided for the trial by a
Special Court of certain offences or classes of offences or certain classes of cases and that in his
opinion the discrimination arose by the provision for the trial of cases, as distinguished from classes
of cases. It is rather difficult, however, to appreciate this distinction. If the statute makes no classi-
fication at all, or if the classification purported to be made is not reasonable or rational but is
arbitrary and illusory, as in this case, Section 5 would be void as contravening article. 14. It is no
doubt true that totally different considerations might arise if specified offences or groups of offences
in a particular area or arising out of a particular event or incident were to be,tried by a Special Court
but this is not the case here. I am unable to see how if the Act merely provided that certain "classes
of cases" as distinguished from "cases" should be tried by a Special Court, the attack against
discrimination could be avoided, as even then the test of rationality or reasonableness would still
remain to be satisfied. If the Act does not enunciate any principle on the basis of which the State
Government could select offences or classes of offences or cases or classes of cases and the State

Government is left free to make any arbitrary selection according to their will and pleasure then the
Act is void. On this point, I would invite special attention to the view taken by Mr. Justice Das Gupta
in the following passage of his Judgment:--
"The Act lays down no principle on which selection of "classes of offences" or "classes of cases"
should be made by the State Government. The State Government may even arbitrarily determine the
classes of cases to be tried by the Special Court and if it does so its action will be well within its
powers conferred by the Act. The Act indicates no basis whatsoever on which such classification
should be made. I am of opinion that the whole Act is ultra vires the Constitution and deletion of the
word "cases" from section 5 would not save the rest of the Act from being invalid."
Bose J.--We are concerned here with article 14 of the Constitution and in particular with the words
"equality before the law" and "equal protection of the law." Now I yield to none in my insistence that
plain unambiguous words in a statute, or in the Constitution, must having regard to the context, be
interpreted according to their ordinary meaning and be given full effect. But that predicates a
position where the words are plain and unambiguous. I am clear that that is not the case here.
Take first the words "equality before the law". It is to be observed that equality in the abstract is not
guaranteed but only equality before the law. That at once leads to the question, what is the law, and
whether "the law" does not draw distinctions between man and man and make for inequalities in the
sense of differentiation? One has only to look to the differing personal laws which are applied daily
to see that it does; to trusts and foundations from which only one particular race or community may
benefit, to places of worship from which all but members of particular faith are excluded, to
cemeteries and towers of silence which none but the faithful may use, to the laws of property,
marriage and divorce. All that is part and parcel of the law of the land and equality before it in any
literal sense is impossible unless these laws are swept away, but that is not what the Constitution
says, for these very laws are preserved and along with equality before the law is also guaranteed the
right to the practice of one's faith.
Then, again, what does "equality" mean? All men are not alike. Some are rich and some are poor.
Some by the mere accident of birth inherit riches, others are born to poverty. There are differences
in social standing and economic status. High sounding phrases cannot alter such fundamental facts.
It is therefore impossible to apply rules of abstract equality to conditions which predicate in equality
from the start; and yet the words have meaning though in my judgment their true content is not to
be gathered by simply taking the words in one hand and a dictionary in the other, for the provisions
of the Constitution are not mathematical formula which have their essence in mere form. They
constitute a frame-work of government written for men of fundamentally differing opinions and
written as much for the future as the present. They are not just pages from a text book but form the
means of ordering the life of a progressive people. There is consequently grave danger in
endeavouring to confine them in watertight compartments made up of ready- made generalisations
like classification. I have no doubt those tests serve as a rough and ready guide in some cases but
they are not the only tests, nor are they the true tests on a final analysis.

What, after all, is classification? It is merely a systematic arrangement of things into groups or
classes, usually in accordance with some definite scheme. But the scheme can be anything and the
laws which are laid down to govern the grouping must necessarily be arbitrarily selected; also
granted the right to select, the classification can be as broadbased as one pleases, or it can be broken
down and down until finally just one solitary unit is divided off from the rest. Even those who
propound this theory are driven to making qualifications. Thus, it is not enough merely to classify
but the classification must not be 'discriminatory', it must not amount to 'hostile action', there must
be 'reasonable grounds for distinction', it must be 'rational' and there must be no 'substantial
discrimination'. But what then becomes of the classification? and who are to be the judges of the
reasonableness and the substantiality or otherwise of the discrimination? And, much more
important, whose standards of reasonableness are to be applied? --the judges'?--the
government's?--or that of the mythical ordinary reasonable man of law which is no single man but
a composite of many men whose reasonableness can be measured and gauged even though he can
neither be seen nor heard nor felt? With the utmost respect I cannot see how these vague
generalisations serve to clarify the position. To my mind they do not carry us one whit beyond the
original words and are no more satisfactory than saying that all men are equal before the law and
that all shall be equally treated and be given equal protection. The problem is not solved by sub-
stituting one generalisation for another. To say that the law shall not be discriminatory carries us
nowhere for unless the law is discriminatory the question cannot arise. The whole problem is to pick
out from among the laws which make for differentiation the ones which do not offend article 14 and
separate them from those which do. It is true the word can also be used in the sense of showing
favouritism, but in so far as it means that, it suffers from the same defect as the 'hostile action' test.
We are then compelled to import into the question the element of motive and delve into the minds
of those who make the differentiation or pass the discriminatory law and thus at once substitute a
subjective test for an objective analysis. I would always be slow to impute want of good faith in these
cases. I have no doubt that the motive, except in rare cases, is beyond reproach and were it not for
the fact that the Constitution demands equality of treatment these laws would, in my opinion, be
valid. But that apart. What material have we for delving into the mind of a legislature? It is useless
to say that a man shall be judged by his acts, for acts of this kind can spring from good motives as
well as bad, and in the absence of other material the presumption must be overwhelmingly in favour
of the former.
I can conceive of cases where there is the utmost good faith and where the classification is scientific
and rational and yet which would offend this law. Let us take an imaginary case in which a State
legislature considers that all accused persons whose skull measurements are below a certain
standard, or who cannot pass a given series of intelligence tests, shall be tried summarily whatever
the offence on the ground that the less complicated the trial the fairer it is to their sub-standard of
intelligence. Here is classification. It is scientific and systematic. The intention and motive are
good. There is no question of favouritism, and yet I can hardly believe that such a law would be
allowed to stand. But what would be the true basis of the decision? Surely simply this that the judges
would not consider that fair and proper. However much the real ground of decision may be hidden
behind a screen of words like 'reasonable', 'substantial', 'rational' and 'arbitrary' the fact would
remain that judges are substituting their own judgment of what is right and proper and reasonable
and just for that of the legislature; and up to a point that, I think, is inevitable when a judge is called

upon to crystallise a vague generality like article 14 into a concrete concept. Even in England, where
Parliament is supreme, that is inevitable, for, as Dicey tells us in his Law of the Constitution,
"Parliament is the supreme legislator, but from the moment Parliament has uttered its will as
lawgiver, that will becomes subject to the interpretation put upon it by the judges of the land, and
the judges, who are influenced by the feelings of magistrates no less than by the general spirit of the
common law, are disposed to construe statutory exceptions to common law principles in a mode
which would not commend itself either to a body of officials, or to the Houses of Parliament, if the
Houses were called upon to interpret their own enactments."
This, however, does not mean that judges are to determine what is for the good of the people and
substitute their individual and personal opinions for that of the government of the day, or that they
may usurp the functions of the legislature. That is not their province and though there must always
be a a narrow margin within which judges, who are human, will always be influenced by subjective
factors, their training and their tradition makes the main body of their decisions speak with the
same voice and reach impersonal results whatever their personal predilections or their individual
backgrounds. It is the function of the legislature alone, headed by the government of the day, to
determine what is, and what is not, good and proper for the people of the land; and they must be
given the widest latitude to exercise their functions within the ambit of their powers, else all
progress is barred. But, because of the Constitution, there are limits beyond which they cannot go
and even though it fails to the lot of judges to determine where those limits lie, the basis of their
decision cannot be whether the Court thinks the law is for the benefit of the people or not. Cases of
this type must be decided solely on the basis whether the Constitution forbids it. I realise that this is
a function which is incapable of exact definition but I do not view that with dismay. The common
law of England grew up in that way. It was gradually added to as each concrete case arose and a
decision was given ad hoc on the facts of that particular case. It is true the judges who thus
contributed to its growth were not importing personal predilections into the result and merely
stated what was the law applicable to that particular ease. But though they did not purport to make
the law and merely applied what according to them, had always been the law handed down by
custom and tradition, they nevertheless had to draw for their material on a nebulous mass of
undefined rules which, though they existed in fact and left a vague awareness in man's minds,
nevertheless were neither clearly definable, nor even necessarily identifiable, until crystallised into
concrete existence by a judicial decision; nor indeed is it necessary to travel as far afield. Much of
the existing Hindu law has grown up in that way from instance to instance, the threads being
gathered now from the rishis, now from custom, now from tradition. In the same way, the laws of
liberty, of freedom and of protection under the Constitu- tion will also slowly assume recognisable
shape as decision is added to decision. They cannot, in my judgment, be enunciated in static form by
hidebound rules and arbitrarily applied standards or tests.
I find it impossible to read these portions of the Con- stitution without regard to the background out
of which they arose. I cannot blot out their history and omit from consideration the brooding spirit
of the times. They are not just dull, lifeless words static and hide-boundas in some mummified
manuscript, but, living flames intended to give life to a great nation and order its being, tongues of
dynamic fire, potent to mould the future as well as guide t, he present. The Constitution must, in my
judgment, be left elastic enough to meet from time to time the altering conditions of a changing

world with its shifting emphasis and differing needs. I feel therefore that in each case judges must
look straight into the heart of things and regard the facts of each case concretely much as a jury
would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of
fact: Do these "laws" which have been called in question offend a still greater law before which even
they must bow?
Doing that, what is the history of these provisions ? They arose out of the fight for freedom in this
land and are but the endeavour to compress into a few pregnant phrases some of the main attributes
of a sovereign democratic republic as seen through Indian eyes. There was present to the collective
mind of the Constituent Assembly, reflecting the mood of the peoples of India, the memory of grim
trials by hastily constituted tribunals with novel forms of procedure set forth in Ordinances
promulgated in haste because of what was then felt to be the urgent necessities of the moment.
Without casting the slightest reflection on the Judges and the Courts so constituted, the fact
remains that when these tribunals were declared invalid and the same persons were retried in the
ordinary Courts, many were acquitted, many who had been sentenced to death were absolved. That
was not the fault of the judges but of the imperfect tools with which they were compelled to work.
The whole proceedings were repugnant to the peoples of this land and, to my mind, article 14 is but
a reflex of this mood.
What I am concerned to see is not whether there is absolute equality in any academical sense of the
term but whether the collective conscience of a sovereign democratic republic can regard the
impugned law, contrasted with the ordinary law of the land, as the sort of substantially equal
treatment which men of resolute minds and unbiassed views can regard as right and proper in a
democracy of the kind we have proclaimed ourselves to be. Such views must take into consideration
the practical necessities of government, the right to alter the laws and many other facts, but in the
forefront must remain the freedom of the individual from unjust and unequal treatment, unequal in
the broad sense in which a democracy would view it. In my opinion, 'law' as used in article 14 does
not mean the "legal precepts which are actually recognised and applied in the tribunals of a given
time and place" but "the more general body of doctrine and tradition from which those precepts are
chiefly drawn, and by which we criticise, them." (Dean Pound in 34 Harvard Law Review 449 at
452). I grant that this means that the same things will be viewed differently at different times. What
is considered right and proper in a given set of circumstances will be considered improper in
another age and vice versa. But that will not be because the law has changed but because the times
have altered and it is no longer necessary for government to wield the powers which were essential
in an earlier and more troubled world. That is what I mean by flexibility of interpretation.
This is no new or startling doctrine. It is just what happened in the cases of blasphemy and sedition
in England. Lord Sumner has explained this in Bowman's case(1) and the Federal Court in
Niharendu Dutt Majumdar's case(2) and so did Puranik J. and I in the Nagpur High Court in
Bhagwati Charan Shukla's case(3).
Coming now to the concrete cases with which we have to deal here. I am far from suggesting that the
departures made from the procedure prescribed by the Criminal Procedure Code are bad or
undesirable in themselves. Some may be good in the sense that they will better promote the ends of

justice and would thus form welcome additions to the law of the land. But I am not here to consider
that. That is no part of a Judge's province. What I have to determine is whether the differentiation
made offends what I may call the social conscience of a sovereign democratic republic. That is not a
question which can be answered in the abstract. but, viewed in the background of our history. I am
of opinion that it does. It is not that these laws are necessarily bad in themselves. It is the
differentiation which matters; the singling out of cases or groups of cases, or even of offences or
classes of offences, of a kind fraught with the most serious consequences to the individuals
concerned, for special, and what some would regard as peculiar, treatment.
It may be that justice would be fully done by following the new procedure. It may even be that it
would be more truly done. But it would not be satisfactorily done, satisfactory that is to say, not
from (1) [1917] A.C. 406 at 454, 466 and 467.
(2) [1942] F.C.R. 32 at 42. (3) I.L.R. 1946 Nag. 865 at 878 and 879.
the point of view of the governments who prosecute, but satisfactory in the view of the ordinary
reasonable man, the man in the street. It is not enough that justice should be done. Justice must also
be seen to be done and a sense of satisfaction and confidence in it engendered. That cannot be when
Ramchandra is tried by one procedure and Sakharam, similarly placed, facing equally serious
charges, also answering for his life and liberty, 'by another which differs radically from the first. The
law of the Constitution is not only for those who govern or for the theorist, but also for the bulk of
the people, for the common man for whose benefit and pride and safeguard the Constitution has
also been written. Unless and until these fundamental provisions are altered by the constituent
processes of Parliament they must be interpreted in a sense which the common man, not versed in
the niceties of grammar and dialectical logic, can understand and appreciate so that he may have
faith and confidence and unshaken trust in that which has been enacted for his benefit and
protection.
Tested in the light of these considerations, I am of opinion that the whole of the West Bengal Special
Courts Act of 1950 offends the provisions of article 14 and is therefore bad. When the froth and the
foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the
human element which to my mind is the most important of all. We find men accused of heinous
crimes called upon to answer for their lives and liberties. We find them picked out from their
fellows, and however much the new procedure may give them a few crumbs of advantage, in the
bulk they are deprived of substantial and valuable privileges of defence which others, similarly
charged, are able to claim. It matters not to me, nor indeed to them and their families and their
friends, whether this be done in good faith, whether it be done for the convenience of government,
whether the process can be scientifically classified and labelled, or whether it is an experiment in
speedier trials made for the good of society at large. It matters not how lofty and laudable the
motives are. The question with which I charge myself is, can fair-minded, reasonable unbiassed and
resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it
reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties
which is expected of a sovereign democratic republic in the conditions which obtain in India today
? I have but one answer to that. On that short and simple ground I would decide this case and hold

the Act bad.
Appeals dismissed.
Agent for the appellant in Case No. 297: P.K. Bose. Agent for the respondent in Case No. 297:
Sukumar Ghose. Agent for Habib Mohammad (Intervener): Rajinder Narain. Agent for the State of
Hyderabad and for the State of Mysore (Interveners):P. A. Mehta.
Agent for the appellant in Case No. 298: P.K. Bose Agent for the respondent in Case No. 298:
Sukumar Ghose.

Charan Lal Sahu Etc. Etc vs Union Of India And Ors on 22 December, 1989

Equivalent citations: 1990 AIR 1480, 1989 SCR Supl. (2) 597
Author: S Mukharji
Bench: Mukharji, Sabyasachi (Cj), Singh, K.N. (J), Rangnathan, S., Ahmadi, A.M. (J), Saikia, K.N.
(J)
PETITIONER:
CHARAN LAL SAHU ETC. ETC.
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
BENCH:
MUKHARJI, SABYASACHI (CJ)
BENCH:
MUKHARJI, SABYASACHI (CJ)
SINGH, K.N. (J)
RANGNATHAN, S.
AHMADI, A.M. (J)
SAIKIA, K.N. (J)
CITATION:
1990 AIR 1480 1989 SCR Supl. (2) 597
1990 SCC (1) 613 JT 1989 (4) 582
CITATOR INFO :
E 1991 SC 101 (30,278)
E 1992 SC 248 (31,33,35,36,44,70,71,79,80,81
ACT:
Constitution of India, 1950: Articles 14, 19 and
21--Bhopal Gas Leak Disaster (Processing of claims) Act,
1985--Whether constitutionally valid.
Preamble and Articles 38, 39 and 39A--Doctrine of
'parens patriae'--Applicability of Exercise of sovereign
power--Limitations. Articles 21, 48A and 51(g)--Human
rights--State's obligation to protect--Need for enacting law
protecting the constitutional rights of citizens--Evolving
standards highlighted by clauses 9 and 13 of U.N. Code of
Conduct on transnational corporations.
Bhopal Gas Leak Disaster (Processing of claims) Act,
1985: Sections 3, 4, 5, 9 and 11--Constitutional validity
of. Central Govt. representing victims in suit against
multinational company--Govt. holding share in company--Govt.
alleged to be joint tort feasor--Whether competent to repre-
sent victims--Whether principles of natural justice violat-
ed.
Settlement of claims before court--Pre-decisional and

post decisional notice--Need for----Effect of non-issue of

notice.
Power conferred on Central Govt. to represent victims in
suit-Divesting individual rights to legal remedy--Procedure
followed-Whether consistent with the Code of Civil Procedure
1908.
Interim Compensation--Payment of. Precautionary meas-
ures-Need for--Guidelines for the future--Immediate relief
to victims-Setting up of a Tribunal--Creation of Industrial
Disaster Fund-Mooted.
Code of Civil Procedure, 1908: Order I Rule 8 and Order
23 Rule 3B--Procedure followed under the Bhopal Gas Leak
Disaster (Processing of claims) Act, 1985--Central Govt.
representing victims in suit-Divesting individual rights to
legal remedy--Whether procedure
598
standard and fair--Whether violative of principles of natu-
ral justice.
Administrative Law--Principles of Natural Justice.' Act
of Parliament within legislative competence--applicability
of the principles.
Pre-decisional notice not given--Effect of. Central
Government representing victims in a suit against a multina-
tional company--Govt. having shares in company--Alleged
tort-feasor--Whether competent to represent victims--Doc-
trine that no man shall be judge of his own cause--Doctrine
of necessity----Doctrine of 'defacto validity'--Doctrine of
bona fide representation--Applicability of.
Statutory construction: Constructive intuition ap-
proach--statute to be read purposefully and
meaningfully--Regard to be had to the spirit of the statute
and the mischief intended to be cured by it.
Law of Torts: Bhopal Gas Leak Disaster (Processing of
claims) Act, 1985--Grant of interim relief to the
victims--Whether inherent in the Act and the Scheme framed
thereunder--Liability of tort-feasor-Whether limited to
civil liability to compensation-whether includes criminal
liability to punitive damages also.
HEADNOTE:
Union Carbide (India) Ltd. (UCIL) is a subsidiary of
Union Carbide Corporation (UCC), a New York Corporation.
UCIL was incorporated in India in 1954. 50.99% of its share
holding was with UCC and 22% of the shares were held by Life
Insurance Corporation of India and Unit Trust of India. UCIL
owned a chemical plant in Bhopal for the manufacture of
pesticides using Methyl Isocyanate (MIC) a highly toxic gas.
On the night between 2nd and 3rd December, 1984, there
was a massive escape of lethal gas from the MIC Storage tank
at the Bhopal plant resulting in the tragic death of about
3,000 people. Thousands of people suffered injuries. The

environment also got polluted, badly affecting the flora and

the fauna.
On behalf of the victims, many suits were filed in
various District Courts in the United States of America. All
such suits were consolidated by the Judicial Panel on
Multi-District Litigation and were assigned to the U.S.
District Court, Southern District of New York and Judge
Keenan was the Presiding Judge throughout. Later, the legal
battle shifted to Indian Courts, as it could not proceed in
the U.S. Courts, on the ground of forum non conveniens.
599
Meanwhile, the Bhopal Gas Leak Disaster (Processing of
claims) 1985 was passed by the Government of India with a
view to secure that the claims arising out of or connected
with the Bhopal gas leak disaster were dealt with speedily,
effectively and equitably.
Union of India filed a suit for damages in the District
Court of Bhopal on 5.9.86. However, there were negotiations
for a settlement; hut ultimately the settlement talks had
failed.
On 17.12.1987, the District Judge ordered interim relief
of Rs.350 crores. On appeal, the High Court, on 4.4.88
modified the order of the District Judge and ordered an
interim relief of Rs.250 crores.
Aggrieved, the UCC as also the Union of India filed
petitions for special leave before this Court. Leave was
granted. By its orders dated 14.2.89 and 15.2.89, this
Court, on the basis of a settlement arrived at between the
parties, directed UCC to pay a sum of 470 million U.S.
Dollars to the Union of India in full settlement of all
claims, rights and liabilities related to and arising out of
the Bhopal gas disaster.
The said orders were passed keeping in view the Bhopal
Gas Disaster (Processing of claims) Act, 1985.
The present Writ Petitions challenge the constitutional
validity of the said Act inter alia on the grounds that the
Act is violative of the fundamental rights guaranteed under
Articles 14, 19 and 21 of the Constitution: that the Act is
violative of the Principles of Natural Justice mainly on the
ground that Union of India, being a joint tort-feasor, in
that it has permitted establishment of such factories with-
out necessary safeguards, has no locus standi to compromise
on behalf of the victims; that the victims and their legal
heirs were not given the opportunity of being heard, before
the Act was passed; that in the guise of giving aid, the
State could not destroy the rights inherent in its citizens;
nor could it demand the citizens to surrender their rights
to the State; that vesting of the rights in Central Govern-
ment was bad and unreasonable because there was conflict of
interest between the Central Government and the victims.
since the Central Government owned 22% share in UCIL, and
that would make the Central Government a Judge in its own
cause.

Disposing of the Writ Petitions, this Court,

600
HELD: Sabyasachi Mukharji, CJ and K.N. Saikia, J.--Per C J:
1.1 The Act is constitutionally valid. It proceeds on
the hypothesis that until the claims of the victims are
realised or obtained from the delinquents, namely, UCC and
UCIL by settlement or by adjudication and until the proceed-
ings in respect thereof continue, the Central Government
must pay interim compensation or maintenance for the vic-
tims. In entering upon the settlement in view of s. 4 of the
Act, regard must be had to the views of the victims and for
the purpose of giving regard to these, appropriate notices
before arriving at any settlement, was necessary. In some
cases, however, post-decisional notice might be sufficient
but in the facts and the circumstances of the present case,
no useful purpose would be served by giving a post-decision-
al hearing having regard to the circumstances mentioned in
the order of this Court dated 4th May, 1989 and having
regard to the fact that there are no further additional data
and facts available with the victims which can be profitably
and meaningfully presented to controvert the basis of the
settlement and further having regard to the fact that the
victims had their say, or on their behalf their views had
been agitated in these proceedings, and will have further
opportunity in the pending review proceedings. [703E-H;
704A]
1.2 Though settlement without notice is not quite prop-
er, on the materials so far available, it is seen that
Justice has been done to the victims but justice has not
appeared to have been done. In view of the magnitude of the
misery involved and the problems in this case, the setting
aside of the settlement on this ground in view of the facts
and the circumstances of this case keeping the settlement in
abeyance and giving notice to the victims for a post-deci-
sional hearing would not be in the ultimate interest of
justice. It is true that not giving notice was not proper
because principles of natural justice are fundamental in the
constitutional set up of this country. No man or no man's
right should be affected without an opportunity to ventilate
his views. Justice is a psychological yearning, in which men
seek acceptance of their view point by having an opportunity
of vindication before the forum or the authority enjoined or
obliged to take a decision affecting their right. Yet in the
particular situations, one has to bear in mind how an in-
fraction of that should be sought to be removed in accord-
ance with justice. "To do a great right" after all. it is
permissible sometimes "to do a little wrong". In the facts
and circumstances of the case, this is one of those rare
occasions. [701G-H; 702A-C]
2.1 The constitutional validity of the statute would
have to be determined on the basis of its provisions and on
the ambit of its operation as reasonably construed. It has
to be borne in mind that if so

601
judged it passed the test of reasonableness, then the possi-
bility of the power conferred being improperly used is no
ground for pronouncing the law itself invalid. [659E-G]
2.2 Conceptually and from the jurisprudential point of
view, especially in the background of the Preamble to the
Constitution of India and the mandate of the Directive
Principles, it was possible to authorise the Central Govern-
ment to take over the claims of the Victims to fight against
the multinational corporation in respect of the claims.
Because of the situation the victims were under disability
in pursuing their claims in the circumstances of the situa-
tion fully and properly. But there is no prohibition or
inhibition, for Indian State taking over the claims of the
victims or for the State acting for the victims as the Act
has sought to provide. [640E-H]
2.3 The Act does provide a special procedure in respect
of rights of the victims and to that extent the Central
Govt. takes upon itself the rights of the victims. It is a
special Act providing a special procedure for a kind of
special class of victims. In view of the enormity of the
disaster the victims of the Bhopal gas leak disaster, as
they were placed against the multi-national and a big Indian
Corporation and in view of the presence of foreign contin-
gency lawyers to whom the victims were exposed, the claim-
ants and victims can legitimately be described as a class by
themselves different and distinct, sufficiently separate and
identifiable to be entitled to special treatment for effec-
tive, speedy, equitable and best advantageous settlement of
their claims. There indubitably is differentiation. But this
differentiation is based on a principle which has rational
nexus with the aim intended to be achieved by this differen-
tiation. The disaster being unique in its character and in
the recorded history of industrial disaster, situated as the
victims were against a mighty multinational with the
presence of foreign contingency lawyers looming on the
scene, there were sufficient grounds for such differentia-
tion and different treatment. In treating the victims of the
gas leak disaster differently and providing them a proce-
dure, which was just, fair, reasonable and which was not
unwarranted or unauthorised by the Constitution, Article 14
is not breached. [683E-H; 684A-B]
Collector of Customs, Madras v. Nathella Sampathu Chet-
ty, [1962] 3 SCR 786; P.J. Irani v. State of Madras, [1962]
1 SCR 169; D.K. Trivedi v. State of Gujarat, [1986] Suppl.
SCC 20, relied on.
Ballast Corporation v. O.D. Commission, [1960] AC 490,
referred to-
602
3.1 The present case is one where the Govt. of India
only represented the victims as a party' and did not adjudi-
cate between the victims and the UCC. It is the court which
would adjudicate the rights of the victims. The representa-

tion of the victims by the Government of India cannot be

held to be bad, and there is and there was no scope of
violation of any principle of natural justice. [670B]
3.2 The connotation of the term "parens patria" differs
from country to country, for instance, in England it is the
King, in America it is the people, etc. According to Indian
concept parens patria doctrine recognised King as the pro-
tector of all citizens as parent. The Government is within
its duty to protect and to control persons under disability.
Conceptually, the parens patriae theory is the obligation of
the State to protect and take into custody the rights and
privileges of its citizens for discharging its obligations.
Our Constitution makes it imperative for the State to secure
to all its citizens the rights guaranteed by the Constitu-
tion and where the citizens are not in a position to assert
and secure their rights, the State must come into picture
and protect and fight for the right of the citizens. The
Preamble to the Constitution, read with the Directive Prin-
ciples contained in Articles 38, 39 and 39A enjoins the
State to take up these responsibilities. It is the protec-
tive measure to which the social welfare state is committed.
It is necessary for the State to ensure the fundamental
rights in conjunction with the Directive Principles of State
Policy to effectively discharge its obligation and for this
purpose, if necessary, to deprive some rights and privileges
of the individual victims or their heirs to protect their
rights better and secure these further. [638E-H; 639A]
3.3 The UCC had to be sued before the American courts.
The tragedy was treated as a national calamity and the Govt.
of India had the right, and indeed the duty, to take care of
its citizens, in the exercise of its parens patriae juris-
diction or on principles analogous thereto. After having
statutorily armed itself in recognition of such parens
patriae right or on principles analogous thereto, it went to
the American Courts. No other person was properly designed
for representing the victims, as a foreign court had to
recognise a right of representation. The Govt. of India was
permitted to represent was permitted to represent the vic-
tims before the American courts. Private plaintiffs were
also represented by their attorneys. The order of Judge
Keenan permitted the Govt. of India to represent the vic-
tims. If there was any remote conflict of interests between
the Union of India and the victims from the theoretical
point of view the doctrine of necessity would override the
possible violation of the principles of natural
justice--that no man should be Judge in his own case.
[669C-F]
603
3.4 The Act in question has been passed in recognition
of the right of the sovereign to act as parens patriae. The
Government of India in order to effectively safeguard the
rights of the victims in the matter of the conduct of the
case was entitled to act as parens patriae, which position

was reinforced by the statutory provisions, namely the Act.

It has to be borne in mind that conceptually and jurispru-
dentially, the doctrine of parens patriae is not limited to
representation of some of the victims outside the territo-
ries of the country. It is true that the doctrine has been
so utilised in America so far. Where citizens of a country
are victims of a tragedy because of the negligence of any
multinational in peculiar situation arises which calls for
suitable effective machinery to articulate and effectuate
the grievance and demands of the victims, for which the
conventional adversary system would be totally inadequate.
The State in discharge of its sovereign obligation must come
forward. The Indian State because of its constitutional
commitment is obliged to take upon itself the claim of the
victims and to protect them in their hour of need. [658B-F]
3.5 There is no bar on the State to assume responsibili-
ties analogous to parens patriae to discharge the State's
obligations under the Constitution. What the Central Govern-
ment has done in the instant case seems to be an expression
of its sovereign power. This power is plenary and inherent
in every sovereign state to do all things which promote the
health, peace, moral, education and good order of the people
and tend to increase the wealth and prosperity of the State.
Sovereignty is difficult to define. By the nature of things,
the State Sovereignty in these matters cannot be limited. It
has to be adjusted to the conditions touching the common
welfare when covered by legislative enactments. This power
is to the public what the law of necessity is to the indi-
vidual. It is comprehended in the maxim salus populi suprema
lex--regard for public welfare is the highest law. It is not
a rule, it is an evolution. This power has always been as
broad as public welfare and as strong as the arm of the
state, this can only be measured by the legislative will of
the people, subject to the fundamental rights and constitu-
tional limitations. This is an emanation of sovereignty and
it is the obligation of the State to assume such responsi-
bilities and protect its citizens. [658G-H; 659A-C]
3.6 In the instant case, the victims cannot be consid-
ered to be any match to the multinational companies or the
Government with whom in the conditions that the victims or
their representatives were after the disaster physically,
mentally, financially, economically and also because of the
position of litigation would have to contend. In such a
situation of
604
predicament the victims can legitimately be considered to be
disabled. They were in no position by themselves to look
after their own interest effectively or purposefully. In
that background, they are people who needed the State's
protection and should come within the umbrella of State's
sovereignty to assert, establish and maintain their rights
against the wrong doers in this mass disaster. In that
perspective, it is jurisprudentially possible to apply the

principle of parens patriae doctrine to the victims. But

quite apart from that, it has to be borne in mind that in
this case the State is acting on the basis of the Statute
itself. For the authority of the Central Government to sue
for and on behalf of or instead in place of the victims, no
other theory, concept, or any jurisprudential principle is
required than the Act itself. The Act empowers and substi-
tutes the Central Government. The victims have been divested
of their rights to sue and such claims and such rights have
been vested in the Central Government. The victims have been
divested because the victims were disabled. The disablement
of the victims vis-a-vis their adversaries in this matter is
a self evident factor. Even if the strict application of the
'parens patriae' doctrine is not in order, as a concept it
is a guide. The jurisdiction of the State's power cannot be
circumscribed by the limitations of the traditional concept
of parens patriae. Jurisprudentially it could be utilised to
suit or alter or adapt itself to the changed circumstances.
In the situation in which the victims were, the State had to
assume the role of a parent protecting the rights of the
victims who must come within the protective umbrella of the
State and the common sovereignty of the Indian people. The
act is an exercise of the sovereign power of the State. It
is an appropriate evolution of the expression of sovereignty
in the situation that had arisen. It has to be accepted as
such. [685C-H]
3.7 The concept of parens patriae can be varied to
enable the Government to represent the victims effectively
in domestic forum if the situation so warrants. There is no
reason to confine the 'parens patriae' doctrine to only
quasi-sovereign right of the State independent of and behind
the title of the citizen. [692B-C]
3.8 The power to compromise and to conduct the proceed-
ings are not uncanalised or arbitrary. These were clearly
exercisable only in the ultimate interests of the victims.
The possibility of abuse of a statute does not impart to it
any element of invalidity. [659C-D]
E.P. Royappa v. State of Tamil Nadu, [1974] 2 SCR 348;
Menaka Gandhi v. Union of India, [1978] 2 SCR 621; R.D.
Shetty v. International Airport Authority of India, [1979] 3
SCR 1014 followed.
605
Ram Saroop v. S.P. Sahi, [1969] 2 Suppl. SCR 583 relied on.
Budhkaran Chankhani v. Thakur Prasad Shah, AIR 1942 Col
311; Banku Behari Mondal v. Banku Behari Hazra, AIR 1943 Cal
203; Medai Dalavoi T. Kumaraswamy Mudaliar v. Medai Dalavoi
Rajammal, AIR 1957 Mad. 563 approved.
State of U.P. v. Poosu, [1978] 3 SCR 1005; K.M. Nanavati
v. State of Bombay, [1961] 1 SCR 497; Ram Gopal Sarubai v.
Smt. Sarubhai & Ors., [1981] 4 SCC 505; India Mica & Mican-
ite Industries Ltd. v. State of Bihar & Ors. [1982] 3 SCC
182; Alfred L Snapp & SonInc. v. Puerto Rico, 458 US 592 73,
Ed. 2d 995, 102 s. ct. 3260; State of Georgia v. Tennessee

Copper Co., 206 US 230, 51 L.Ed. 1038 27 s. et. 618, re-

ferred to.
B.K. Mukherjea on Hindu Religious and Charitable Trusts,
Tagore Law Lectures, 5th Edn. p. 404; Words & Phrases,
permanent Edn.
vol. 33 p. 99; Black's Law Dictionary, 5th Edn. 1979, p.
1003; Weaver's Constitutional Law, p. 490; American Consti-
tutional Law by Lawrence H. Tribe 1978 Edn. para 3.24,
referred to.
4.1 Section 3 provides for the substitution of the
Central Government with the right to represent and act in
place of (whether within or outside India) every person who
has made or is entitled to make, a claim in respect of the
disaster. The State has taken over the rights and claims of
the victims in the exercise of sovereignty in order to
discharge the constitutional obligations as the parent and
guardian of the victims who in the situation as placed
needed the umbrella of protection. Thus, the State has the
power and jurisdiction and for this purpose unless the Act
is otherwise unreasonable or violative of the constitutional
provisions no question of giving a hearing to the parties
for taking over these rights by the State arises. For legis-
lation by the Parliament, no principle of natural justice is
attracted provided such legislation is within the competence
of the legislature. Indeed the present Act is within the
competence of the Parliament. Section 3 makes the Central
Government the dominoes litis and it has the carriage of the
proceedings, but that does not solve the problem of by what
procedure the proceedings should be carried. [692A-D]
4.2 Section 4 means and entails that before entering
into any settlement affecting the rights and claims of the
victims some kind of notice or information should be given
to the victims. [699D]
606
4.3 Sections 3 and 4 are categorical and clear. When the
expression is explicit, the expression is conclusive, alike
in what it says and in what it does not say. These give the
Central Government an exclusive right to act in place of the
persons who are entitled to make claim or have already made
claim. The expression 'exclusive' is explicit and signifi-
cant. The exclusively cannot be wittled down or watered
down. The said expression must be given its full meaning and
extent. This is corroborated by the use of the expression
'claim' for all purposes. If such duality of rights are
given to. the Central Government alongwith the victims in
instituting or proceeding for the realisation or the en-
forcement of the claims arising out of Bhopal gas leak
disaster, then that would be so cumbersome that it would not
be speedy, effective or equitable and would not be the best
or more advantageous procedure for securing the claims
arising out of the leakage. [683A-C]
4.4 Sections 3 and 4 of the Act should be read together
alongwith other provisions of the Act and in particular

sections 9 and 11 of the Act. These should be appreciated in

the context of the object sought to be achieved by the Act
as indicated in the Statement of objects and Reasons and the
Preamble to the act. The Act was so designed that the vic-
tims of the disaster are fully protected and the claims of
compensation or damages for loss of life or personal in-
juries or in respect of other matters arising out of or
connected with the disaster are processed speedily, effec-
tively, equitably and to the best advantage of the claim-
ants. Section 3 of the Act is subject to other provisions of
the Act which includes Sections 4 and 11. Section 4 of the
Act opens with non-obstante clause, vis-a-vis, section 3
and, therefore overrides section 3. [659G-H; 660A-B]
4.5 In the instant case, the Government of India is only
capable to represent the victims as a party. The adjudica-
tion of the claims would be done by the Court. The doctrine
of 'Bona fide Representation' as also 'defacto validity' are
not applicable to the present case. [690F]
Basheshar v. Income Tax Commissioner, AIR 1959 SC 149; In re
Special Courts Bill, [1979] 2 SCR 476; A.R. Antulay v. R.S.
Nayak & Anr., [1988] 2 SCC 602; Ram Krishna Dalmia v. Ten-
dulkar, [1955] SCR 279; Ambika Prasad Mishra v. State of
U.P. & Ors. etc. [1980] 3 SCR 1159; Bodhan Chowdhary v.
State of Bihar, [1955] 1 SCR 1045; Lakshmi Kant Pandey v.
Union of India, [1984] 2 SCR 795; M/s Mackinnon Mackenzie &
Co. Ltd. v. Audrey D' Costa and Anr., [1987] 2 SCC 469;
Sheela Barse v. Secretary, Children Aid Society & Ors.,
[1987] 1 SCR 870; Gokaraju Rangaraju v. State of A.P.,
[1981] 3 SCR 474; Pushpadevi M. Jatia v. M.L. Wadhwan.
[1987] 3 SCC 367;
607
M/s Beopar Sahayak (P) Ltd. & Ors. v. Vishwanath & Ors.,
[1987] 3 SCC 693; Dharampal Singh v. Director of Small
Industries Services & Ors., AIR 1980 SC 1888; N.K. Mohammed
Sulaiman v. N.C. Mohammed lsmail & Ors., [1966] 1 SCR 937;
Malkariun Bin Shidrammappa Pasare v. Narhari Bin Shivappa &
Anr., 271 A 216, referred to.
Black's Law Dictionary 5th Edn. p. 437, referred to.
5. The restrictions or limitations on the substantive
and procedural rights in the Act will have to be judged from
the point of view of the particular Statute in question. No
abstract rule or standard of reasonableness can be applied.
That question has to be judged having regard to the nature
of the rights alleged to have been infringed in this case,
the extent and urgency of the evil sought to be remedied,
disproportionate imposition, prevailing conditions at the
time, all these facts will have to be taken into considera-
tion. Having considered the background, the plight of the
impoverished, the urgency of the victims' need, the presence
of the foreign contingency lawyers, the procedure of settle-
ment in USA in mass action, the strength of the foreign
multinationals, the nature of injuries and damages, and the
limited but significant right of participation of the vic-

tims as contemplated by s. 4 of the Act, the Act cannot be

condemned as unreasonable. [684C-E]
State of Madras v. V.G. Row, [1952] SCR 597, referred to.
6.1 In view of the principles settled by this Court and
accepted all over the world in a case of this magnitude and
nature, when the victims have been given some say by Section
4 of the Act, in order to make that opportunity contemplated
by section 4 of the Act, meaningful and effective, it should
be so read that the victims have to be given an opportunity
of making their representation before the court comes to any
conclusion in respect of any settlement. How that opportuni-
ty should be given, would depend upon the particular situa-
tion. Fair procedure should be followed in a representative
mass tort action. [696E-F]
6.2 One assumption under which the Act is justified is
that the victims were disabled to defend themselves in an
action of this type. If that is so, then the Court cannot
presume that the victims were a lot, capable and informed to
be able to have comprehended or contemplated the settlement.
In the aforesaid view of the matter notice was necessary.
The victims at large did not have the notice. The Central
Government as the representative of the victims must have
the views of the victims and place such view before the
court in such manner it considers neces-
608
sary before a settlement is entered into. If the victims
want to advert to certain aspect of the matter during the
proceedings under the Act and settlement indeed is an impor-
tant stage in the proceedings, opportunities must be given
to the victims. Individual notices may not be necessary. The
Court can, and should in such situation formulate modalities
of giving notice and public notice can also be given invit-
ing views of the victims by tile help of mass media. Howev-
er, it is not necessary that such views would require the
consent of all the victims. [698B-C; 698G-H; 699A]
6.3 One of the important requirements of justice is that
people affected by an action or inaction should have oppor-
tunity to have their say. That opportunity the victims have
got when these applications were heard and they were heard
after utmost publicity and they would have further opportu-
nity when review application against the settlement would be
heard. 1700G-H; 701A]
7.1 The Act does not expressly exclude the application
of the Code of Civil Procedure. Section 11 of the Act pro-
vides the overriding effect indicating that anything incon-
sistent with the provisions of the Act or in other laws
including the Civil Procedure Code should be ignored and the
Act should prevail. Strictly speaking, Order 1 Rule 8 will
not apply to a suit or a proceeding under the Act. It is not
a case of one having common interest with others. Here the
plaintiff, the Central Government has replaced and divested
the victims. 1696H; 697A-B]
7.2 In the instant case, there is no question of aban-

donment as such of the suit or part of the suit, the provi-

sions of order XXIII Rule 1 would also not strictly apply.
However, Order XXIH Rule 3B of the Code is an important and
significant pointer and the principles behind the said
provision would apply to this case. The said rule 3B pro-
vides that no agreement of compromise in a representative
suit shall be entered into without the leave of the Court
expressly recorded in the proceedings; and sub-rule (2) of
rule 3B enjoins that before granting such leave the court
shall give notice in such manner as it may think fit in a
representative action. Representative suit has been defined
under Explanation to the said rule vide clause (d) as any
other suit in which the decree passed may, by virtue of the
provisions this Code or of any other law for the time being
in force, bind any person who is not named as party to the
suit. Indubitably the victims would be bound by the Settle-
ment though not named in the suit. 11his is a position
conceded by all. If that is so, it would be a representative
suit in terms of and for the purpose of Rule 315 of Order
XXIII of the Code. If the principles of this rule are the
principles of natural justice then we are of the opinion
that
609
the principles behind it would be applicable; and also that
section 4 of the Act should be so construed in spite of the
difficulties of the process of notice and other difficulties
of making "informed decision making process cumbersome".
[697C-G]
7.3 In as much as section 4 of the Act had given a
qualified right of participation to the victims, there
cannot be any question of violation of the principles of
natural justice. The scope of the application of the princi-
ples of natural justice cannot be judged by any strait
jacket formula. [662G-H]
R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, [1963] 3
SCR 22; M. Narayanan Nambiar v. State of Kerala , [1963]
Supp. (2) 724; Chintaharan Ghose & Ors. v. Gujaraddi Sheik &
Ors., AIR 1951 Cal. 456; Ram 'Sarup v. Nanak Ram, AIR 1952
All. 275; referred to.
8. The Act has to be understood that it is in respect of
the person responsible, being the person in-charge-of the
UCIL and the parent company UCC. This interpretation of the
Act is further strengthened by the fact that a 'claimant"
has been defined in clause (c) of Section 2 as a person who
is entitled to make a claim and the expression "person" in
Section 2(e) includes the Government. Therefore, the Act
proceeded on the assumption that the Government could be a
claimant being a person as such. [690A-B]
9.1 The fact that the provisions of the principles of
natural justice have to be complied with, is undisputed.
This is well-settled by the various decisions of the Court.
The Indian Constitution mandates that clearly, otherwise the
Act and the actions would be violative of Article 14 of the

Constitution and would also be destructive of Article

19(1)(g) and negate Article 21 of the Constitution by deny-
ing a procedure which is just, fair and reasonable. [693D-E]
9.2 Rules of natural justice are not embodied rules.
Hence, it was not possible to make an exhaustive catalogue
of such rules. Audi alteram partem is a highly effective
rule devised by the Courts to ensure that a statutory au-
thority arrives at a just decision and it is calculated to
act as a healthy check on the abuse or misuse of power. The
rules of natural justice can operate only in areas not
covered by any law validly made. The general principle as
distinguished from an absolute rule of uniform application
is that where a statute does not in terms exclude the rule
of prior hearing but contemplates a post-decisional hearing
610
amounting to a full review of the original order on merits
then such a statute would be construed as excluding the audi
alteram partem rule at the pre-decisional stage. If the
statute conferring the power is silent with regard to the
giving of a pre-decisional hearing to the person affected
the administrative decision after post-decisional hearing
was good. [694A-D]
9.3 In the instant case, no question of violation of the
principle of natural justice arises, and there is no scope
for the application of the principle that no man should be a
Judge in his own cause. The Central Government was not
judging any claim, but was fighting and advancing the claims
of the victims. The adjudication would be done by the
courts, and therefore, there is no scope of the violation of
any principle of natural justice. [688G-H; 689A-B]
Menaka Gandhi v. Union of India, [1978] 2 SCR 621; Olga
Tellis v. Bombay Municipal Corporation, [1985] Supp. 2 SCR
51; Union of India v. Tulsi Ram Patel, [1985] Supp. 2 SCR
131; Swadeshi Cotton Mills v. Union of India, [1981] 2 SCR
533, relied on.
Ganga Bai v. Vijay Kumar, [1974] 3 SCR 882; S.L. Kapoor
v. Jagmohan, [1981] 1 SCR 745; Sangram v. Election Commis-
sion, [1955] 2 SCR 1, referred to.
10. Though not expressly stated, the Act proceeds on
'the major inarticulate premise'. It is on this promise or
premise that the State would be justified in taking upon
itself the right and obligation to proceed and prosecute the
claim and deny access to the courts of law to the victims on
their own. If it is only so read, it can only be held to be
constitutionally valid. It has to be borne in mind that the
language of the Act does not militate against this construc-
tion but on the Contrary. Sections 9, 10 and the scheme of
the Act suggest that the Act contains such an obligation. If
it is so read, then only meat can be put into the skeleton
of the Act making it meaningful and purposeful. The Act
must, therefore, be so read. This approach to the interpre-
tation of the Act can legitimately be called the 'construc-
tive intuition' which is a permissible mode of viewing the

Acts of Parliament. The freedom to search for 'the spirit of

the Act' or the quantity of the mischief at which it is
aimed (both synonymous for the intention of the parliament)
opens up the possibility of liberal interpretation "that
delicate and important branch of judicial power, the conces-
sion of which is dangerous, the denial ruinous". Given this
freedom it is a rare opportunity though never to be misused
and challenge for the Judges to adopt and give meaning to
611
the act, articulate and inarticulate and thus translate the
intention of the Parliament and fulfil the object of the
Act. After all, the Act was passed to give relief to the
victims, who, it was thought, were unable to establish their
own rights and fight for themselves. [687E-H; 688A]
11.1 The circumstances that financial institutions held
shares in the UCIL would not disqualify the Government of
India from acting as parens patriae and in discharging its
statutory duties under the Act. The suit was filed only
against the UCC and not against UCIL. On the basis of the
claim made by the Government of India, UCIL was not a neces-
sary party. It was suing only the multinational based on
several legal grounds of liability of the UCC, inter alia,
on the basis of enterprise liability. If the Government of
India had instituted a suit against UCIL to a certain extent
it would have weakened its case against UCC in view of the
judgment of this Court in M.C. Mehta's case. [668H; 669A-B]
M.C. Mehta v. Union of India, [1987] 1 SCR 819, referred to.
11.2 Even if there was any remote conflict of interests
between the Union of India and the victims on account of the
sharesholding, doctrine of necessity would override the
possible violation of the principles of natural justice.
[669F]
Kasturilal Ralia Ram Jain v. State of UP , [1965] 1 SCR
375; State of Rajasthan v. Vidyawati, [1962] 2 Supp. SCR
989; J. Mohapatra & Co. & Anr. v. State of Orissa & Anr.,
[1984] 4 SCC 103, referred to.
Halsbury's Laws of England, Vol. 1, 4th Edn. para 73
Smith's Judicial Review of Administrative Action, 4th Edn.
pp. 276-277; Natural Justice by G.A. Flick, [1979] Edn. pp.
138-141, referred to.
12. The Act does not create new causes of action or
create special courts. The jurisdiction of the civil court
to entertain suit would still arise out of section 9 of the
CPC and the substantive cause of action and the nature of
the reliefs available would also continue to remain un-
changed. The only difference produced by the provisions of
the Act would be that instead of the suit being filed by the
victims themselves the suit would be filed by the Central
Government on their behalf. [655F]
13. Normally, in measuring civil liability, the law has
attached more importance to the principle of compensation
than that of punishment. Penal redress, however, involves
both compensation to the

612
person injured and punishment as deterrence. The Act, as
such does not abridge or curtail damage or liability whatev-
er that might be. So the challenge to the Act on the ground
that there has been curtailment or deprivation of the rights
of the victims which is unreasonable in the situation is
unwarranted and cannot be sustained. [680G-H; 681A-F]
Roshanlal Kuthiala & Ors. v. R.B. Mohan Singh, Oberoi
(1975) 2 SCR 491; Nandram Heeralal v. Union of India & Anr.,
AIR 1978 M.P. 209; Ryland v. Flatcher, (1868) Vol 3 LR E& I
Appeal Cases 330; Rookes v. Barnard, [1964] AC 1129, re-
ferred to.
Salmond's Law of Torts, 15th Edn. p. 30, referred to.
14. The Act in question does not purport to deal with
the criminal liability, if any, of the parties or persons
concerned nor it deals with any of the consequences flowing
from those. This position is clear from the provisions and
the preamble to the Act. [636F]
15. The major inarticulate premise apparent from the Act
and the scheme and the spirit of the Act is that so long as
the rights of the victims are prosecuted the state must
protect the victims. Otherwise the object of the Act would
be defeated its purpose frustrated. Therefore, continuance
of the payments of the interim maintenance for the continued
sustenance of the victims is an obligation arising out of
State's assumption of the power and temporary deprivation of
the rights of the victims and divestiture of the right of
the victims to fight for their own rights. This is the only
reasonable interpretation which is just, fair and proper.
[686B-C]
16. The promises made to the victims and hopes raised in
their hearts and minds can only be redeemed in some measure
if attempts are made vigorously to distribute the amount
realised to the victims in accordance with the scheme. That
would be redemption to a certain extent. The law relating to
damages and payment of interim damages or compensation to
the victims of this nature should be seriously and scientif-
ically examined by the appropriate agencies. [704F-H; 705A]
17. The Bhopal Gas Leak disaster and its aftermath
emphasise the need for laying down certain norms and stand-
ards that the Government may follow before granting permis-
sion or licences for the running of industries dealing with
materials which are of dangerous potentialities. The Govern-
ment, should, therefore, examine or have the problem exam-
ined by an expert committee as to what should be the condi-
tions on
613
which future licences and/or permission for running indus-
tries on Indian soil would be granted and for ensuring
enforcement of those conditions, sufficient safety measures
should be formulated and scheme of enforcement indicated.
The Government should insist as a condition precedent to the
grant of such licences or permission, creation of a fund in

anticipation by the industries to be available for payment

of damages out of the said fund in case of leakages or
damages in case of accident or disaster flowing from negli-
gent working of such industrial operations or failure to
ensure measures preventing such occurrence. The Government
should also ensure that the parties must agree to abide to
pay such damages out of the said Fund by procedure separate-
ly evolved for computation and payment of damages without
exposing the victims or sufferers of the negligent act to
the long and delayed procedure. Special procedure must be
provided for and the industries must agree as a condition
for the grant of licence to abide by such procedure or to
abide by statutory arbitration. The basis for damages in
case of leakages and accident should also be statutorily
fixed taking into consideration the nature of damages in-
flicted, the consequences thereof and the ability and capac-
ity of the parties to pay. Such should also provide for
deterrant or punitive damages, the basis for which should be
formulated by a proper expert committee or by the Govern-
ment. For this purpose, the Government should have the
matter examined by such body as it considers necessary and
proper like the Law Commission or other competent bodies.
This is vital for the future. [705B-F]
18. That people are born free, the dignity of the per-
sons must be recognised, and competent tribunal is one of
the surest methods of effective remedy. If, therefore, as a
result of this tragedy new consciousness and awareness on
the part of the people of this country to be more vigilant
about measures and the necessity of ensuring more strict
vigilance for permitting the operations of such dangerous
and poisonous gases dawn, then perhaps the tragic experience
of Bhopal would not go in vain. [682D-E]
Per Singh, J. (concurring):
1.1 In India, the need for industrial development has
led to the establishment of a number of plants and factories
by the domestic companies and under-takings as well as by
Transnational Corporations. Many of these industries are
engaged in hazardous or inherently dangerous activities
which pose potential threat to life, health and safety of
persons working in the factory, or residing in the surround-
ing areas. Though working of such factories and plants is
regulated by a
614
number of laws of our country, there is no special legisla-
tion providing for compensation and damages to outsiders who
may suffer on account of any industrial accident. As the law
stands today, affected persons have to approach civil courts
for obtaining compensation and damages. In civil courts, the
determination of amount of compensation or damages as well
the liability of the enterprise has been bound by the shack-
les of conservative principles. [707D-G]
1.2 The principles laid down in Ryland v. Fletcher made
it difficult to obtain adequate damages from the enterprise

and that too only after the negligence of enterprise was

proved. [707G-H]
1.3 The law laid down in Oleum Gas Leak case made a
land-mark departure from the conservative principles with
regard to the liability of an enterprise carrying on hazard-
ous or inherently dangerous activities. [709C]
1.4 In the instant case, there is no scope for any doubt
regarding the liability of the UCC for the damage caused to
the human beings and nature in and around Bhopal. [709E]
Ryland v. Fletcher, [1868] LR 3 HL 330; M.C. Mehta v.
Union of India, [1987] 1 SCR 819, referred to.
2. In the context of our national dimensions of human
rights, right to life, liberty, pollution free air and water
is guaranteed by the Constitution under Articles 21, 48A and
51(g), it is the duty of the State to take effective steps
to protect the constitutional rights guaranteed. These
rights must be integrated and illumined by evolving interna-
tional dimensions and standards, having regard to our sover-
eignty as highlighted by Clauses 9 and 13 of U.N. Code of
Conduct on Transnational Corporations. Such a law may pro-
vide for conditions for granting licence to Transnational
Corporations, prescribing norms and standards for running
industries on Indian soil ensuring the above said constitu-
tional rights of our people. A Transnational Corporation
should be made liable and subservient to laws of our country
and the liability should not be restricted to affiliate
company only but the parent corporations should also be made
liable for any damage caused to the human beings or ecology.
The law must require transnational Corporations to agree to
pay such damages as may be determined by the statutory
agencies and forum constituted under it without exposing the
victims to long drawn litigation. In order to meet the
situation, to avoid delay and to ensure immediate relief to
the victims, the law should
615
provide for constitution of tribunals regulated by special
procedure for determining compensation to victims of indus-
trial disaster or accident, appeal against which may lie to
this Court on the limited ground of questions of law only
after depositing the amount determined by the Tribunal. The
law should also provide for interim relief to victims during
the pendency of proceedings. These steps would minimise the
misery and agony of victims of hazardous enterprises. [710H;
711A-F]
3. Industrial development in our country and the hazards
involved therein, pose a mandatory need to constitute a
statutory "Industrial Disaster Fund", contributions to which
may be made by the Government, the industries whether they
are transnational corporations or domestic undertakings,
public or private. The extent of contribution may be worked
out having regard to the extent of hazardous nature of the
enterprise and other allied matters. The fund should be
permanent in nature. so that money is readily available for

providing immediate effective relief to the victims. [711 G

-H; 712A]
Ranganathan and Ahmadi, J J----Per Ranganathan, J. (Concur-
ring).'
1. The provisions of the Act, read by themselves, guar-
antee a complete and full protection to the rights of the
claimants in every respect. Save only that they cannot file
a suit themselves, their right to acquire redress has not
really been abridged by the provisions of the Act. Sections
3 and 4 of the Act completely vindicate the objects and
reasons which compelled Parliament to enact this piece of
legislation. Far from abridging the rights of the claimants
in any manner, these provisions are so worded as to enable
the Government to prosecute the litigation with the maximum
amount of resources, efficiency and competence at its com-
mand. as well as with all the assistance and help that can
be extended to it by such of those litigants and claimants
as are capable of playing more than a mere passive role in
the litigation. [720G-H; 721A-B]
2. Even if the provisions of s. 3 had been scrupulously
observed and the names of all parties, other than the Cen-
tral Government, had been got deleted from the array of
parties in the suits and proceedings pending in this coun-
try, the result would not have been fatal to the interests
of the litigants. On the contrary, it enabled the litigants
to obtain the benefit of all legal expertise at the command
of the Government of India in exercising their rights
against the Union Carbide Corporation. Such representation
can well be justified by resort to a principle analogous to,
if not precisely the same, as that of, "parens
616
patriae". A victim of the tragedy is compelled to part with
a valuable right of his in order that it might be more
efficiently and satisfactorily exploited for his benefit
than he himself is capable of. It is of course possible that
there may be an affluent claimant or lawyer engaged by him,
who may be capable of fighting the litigation better. It is
possible that the Government of India as a litigant may or
may not be able to pursue the litigation with as much deter-
mination or capability as such a litigant. But in a case of
the present type one should not be confounded by such a
possibility. There are more indigent litigants than affluent
ones. There are more illiterates than enlightened ones.
There are very few of the claimants, capable of finding the
financial wherewithal required for fighting the litigation.
Very few of them are capable or prosecuting such a litiga-
tion in this country not to speak of the necessity to run to
a foreign country. The financial position of UCIL was negli-
gible compared to the magnitude of the claim that could
arise and, though eventually the battle had to be pitched on
our own soil, an initial as well as final recourse to legal
proceedings in the United States was very much on the cards,
indeed inevitable. In this situation, the legislature was

perfectly justified in coming to the aid of the victims with

this piece of legislation and in asking the Central Govern-
ment to shoulder the responsibility by substituting itself
in place of the victims for all purposes connected with the
claims. [716C-H; 717A]
3. Section 4 adequately safeguards the interest of
individual victims. It enables each one of them to bring to
the notice of the Union any special features or circum-
stances which he would like to urge in respect of any matter
and if any such features are brought to its notice the Union
is obliged to take it into account. The individual claimants
are also at liberty to engage their own counsel to associate
with the State counsel in conducting the proceedings. If the
suits in this case had proceeded, in the normal course,
either to the stage of a decree or even to one of settlement
the claimants could have kept themselves abreast of the
developments and the statutory provisions would have been
more than adequate to ensure that the points of view of all
the victims are presented to the court. Even a settlement or
compromise could not have been arrived at without the court
being apprised of the views of any of them who chose to do
so. The statute has provided that though the Union of India
will be the dominus litis in the suit, the interest of all
the victims and their claims should be safeguarded by giving
them a voice in the proceedings to the extent indicated
above. This provision of the statute is an adaptation of the
principle of Order 1 Rule 8 and of order XXIII Rule 38 of
the Code of Civil Procedure in its application to the suits
governed by it and, though the extent of participation al-
lowed to
617
the victims is somewhat differently enunciated in the legis-
lation, substantially speaking, it does incorporate the
principles of natural justice to the extent possible in the
circumstances. The statute cannot, therefore, be faulted on
the ground that it denies the victims an opportunity to
present their views or places them at any disadvantage in
the matter of having an effective voice in settling the suit
by way of compromise. [724G-H; 725A-D]
4. Sections 3 and 4 combine together the interest of the
weak, illiterate, helpless and poor victims as well as the
interest of those who could have managed for themselves,
even without the help of this enactment. The combination
thus envisaged enables the Government to fight the battle
with the foreign adversary with the full aid and assistance
of such of the victims or their legal advisers as are in a
position to offer any such assistance. Though section 3
denies the climants the benefit of being eo nominee parties
in such suits or proceedings, section 4 preserves to them
substantially all that they can achieve by proceeding on
their own. In other words, while seeming to deprive the
claimants of their right to take legal action on their own,
it has preserved those rights, to be exercised indirectly. A

conjoint reading of sections 3 and 4 would show that there

has been no real total deprivation of the right of the
claimants to enforce their claim for damage in appropriate
proceedings before any appropriate forum. There is only a
restriction of this right which, in the circumstances, is
totally reasonable and justified. [718D-G ]
5. It is not possible to bring the suits brought under
the Act within the categories of representative action
envisaged in the Code of Civil Procedure. The Act deals with
a class of action which is sui generis and for which a
special formula has been found and encapsuled in s. 4. The
Act divests the individual claimants of their right to sue
and vests it in the Union. In relation to the suit in India,
the Union is the sole Plaintiff. none of the others are
envisaged as plaintiffs or respondents. The victims of the
tragedy were so numerous that they were never defined at the
stage of filing the plaint nor do they need to be defined at
the stage of settlement. The litigation is carried on by the
State in its capacity not exactly the same as, but somewhat
analogous to that of "parens patriae". In the case of a
litigation by a Karta of a Hindu undivided family or by a
guardian on behalf of a ward, who is non-sui juris, the
junior members of the family or the wards, are not to be
consulted before entering into a settlement. In such cases,
court acts as guardian of such persons to scrutinise the
settlement and satisfy itself that it is in the best inter-
est of all concerned. If it is later discovered that there
has been any fraud or collusion, it may be open to the
junior members of the
618
family or the wards to call the Karta or guardian to account
but, barring such a contingency, the settlement would be
effective and binding. In the same way, the Union as "parens
patriae' would have been at liberty to enter into such
settlement as it considered best on its own and seek the
Court's approval therefore. [723G-H; 724A-D]
6. It is common knowledge that any authority given to
conduct a litigation cannot be effective unless it is accom-
panied by an authority to withdraw or settle the same if the
circumstances call for it. The vagaries of a litigation of
this magnitude and intricacy could not be fully anticipated.
There were possibilities that the litigation may have to be
fought out to the bitter finish. There were possibilities
that the UCC might be willing to adequately compensate the
victims either on their own or at the insistence of the
Government concerned. There was also the possibility, which
had already been in evidence before Judge Keenan, that the
proceedings might ultimately have to end in negotiated
settlement. In most of the mass disaster cases reported,
proceedings finally end in a compromise, if only to avoid an
indefinite prolongation of the agonies caused by such liti-
gation. The legislation, therefore, cannot be considered to
be unreasonable merely because in addition to the right to

institute a suit or other proceedings it also empowers the

Government to withdraw the proceedings or enter into a
compromise. [719B-E]
M.C. Mehta v. Union of India, [1987] 1 SCR 819, referred to.
7. The Act has provided an adequate opportunity to the
victims to speak out and if they or the counsel engaged by
some of them in the trial court had kept in touch with the
proceedings in this court, they could have most certainly
made themselves heard. If a feeling has gained ground that
their voice has not been fully heard, the fault was not with
the statute but was rather due to the development leading to
the finalisation of the settlement when the appeal against
the interim order was being heard in this Court. [726B-D]
8. In the field of torts, under the common law of Eng-
land, no action could be laid by the dependants or heirs of
a person whose death was brought about by the tortious act
of another on the maxim actio personalis maritur cum persona
although a person injured by a similar act could claim
damages for the wrong done to him. In England this situation
was remedied by the passing of Fatal Accidents Act, 1846,
popularly known as Lord Compbell's Act. Thereafter the
Indian Legislature enacted the Fatal Accidents Act, 1855.
This Act is fashioned on the
619
lines of the English Act of 1840. Even though the English
Act has undergone a substantial change, our law has remained
static and seems a trifle archaic. The magnitude of the gas
leak disaster in which hundreds lost their lives and thou-
sands were maimed, not to speak of the damage to livestock,
flora and fauna, business and property, is an eye opener.
The nation must learn a lesson from this traumatic experi-
ence and evolve safeguards atleast for the future. The time
is ripe to take a fresh look at the outdated century old
legislation which is out of tune with modern concepts.
[728F-H; 729A-B]
9. The Central Government will be well advised to insist
on certain safeguards before permitting a transnational
company to do business in the country. It is necessary to
insist on a right to be informed of the nature of the proc-
esses involved so as to take prompt action in the event of
an accident. The victims in this case have been considerably
handicapped on account of the fact that the immediate tort-
feasor was the subsidiary of a multi-national with its
Indian assets totally inadequate to satisfy the claims
arising out of the disaster. It is, therefore, necessary to
evolve, either by international consensus or by unilateral
legislation, steps to overcome these handicaps and to ensure
that foreign corporations seeking to establish an industry
here, agree to submit to the jurisdiction of the Courts in
India in respect of actions for tortious acts in this coun-
try; that the liability of such a corporation is not limited
to such of its assets (or the assets of its affiliates) as
may be found in this country, but that the victims are able

to reach out to the assets of such concerns anywhere in the

world; and that any decree obtained in Indian Courts in
compliance with due process of law is capable of being
executed against the foreign corporation, its affiliates and
their assets without further procedural hurdles. in those
other countries. [729G-H; 730A-E]
10. It is hoped that calamities like the one which this
country has suffered will serve as catalyst to expedite the
acceptance of an international code on such matters in the
near future. [730F-G]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 268 of 1989 etc. etc. (Under Article 32 of the
Constitution of India). K. Parasaran, Attorney General, R.K. Garg, Ms. Indira Jaising, L.N. Sinha,
Dr. V. Gauri Shankar, Vepa P. Sarathi, Shanti Bhushan, Rakesh Luthra, C.L. Sahu, Indeevar
Goodwill, N.S. Malik, N.S. Pundir, R.C, Kaushik, D.K. Garg, Rajeev Dhawan, Miss Kamini Jaiswal,
Anip Sachthey, R.C. Pathak, H.D. Pathak, Harish Uppal, S.K. Gambhir, Gopal Subramanium, D.S.
Shastri, Arun Sharma, Miss A. Subhashini, C.V.S. Rao, Satish K. Agnihotri, Ashok Kumar Singh,
R.K. Jain, Kailash Vasdev and Prashant Bhushan for the appearing parties.
The Judgments of the Court were delivered by SABYASACHI MUKHARJI, CJ. 1. Is the Bhopal Gas
Leak Disaster (Processing of Claims) Act, 1985 (hereinafter referred to as 'the Act') is
constitutionally valid? That is the question.
2. The Act was passed as a sequel to a grim tragedy. On the night of 2nd December, 1984 occurred
the most tragic industrial disaster in recorded human history in the city of Bhopal in the State of
Madhya Pradesh in India. On that night there was massive escape of lethal gas from the MIC storage
tank at Bhopal Plant of the Union Carbide (I) Ltd. (hereinafter referred to as 'UCIL') resulting in
large scale death and untold disaster. A chemical plant owned and operated by UCIL was situated
in the northern sector of the city of Bhopal. There were numerous hutments adjacent to it on its
southern side, which were occupied by impoverished squatters. UCIL manufactured the pesticides,
Sevin and Tamik, at the Bhopal plant, at the request of, it is stated by Judge John F. Keenan of the
United States District Court in his judgment, and indubitably with the approval of the Govt. of India.
UCIL was incorporated in 1984 under the appropriate Indian law: 50.99% of its shareholdings were
owned by the Union Carbide Corporation (UCC), a New York Corporation, L.I.C. and the Unit Trust
of India own 22% of the shares of U.C.I.L., a subsidiary of U.C.C.
3. Methyl Isocyanate (MIC), a highly toxic gas, is an ingredient in the production of both Sevin and
Temik. On the night of the tragedy MIC leaked from the plant in substantial quantities. the exact
reasons for and circumstances of such leakage have not yet been ascertained or clearly established.
The results of the disaster were horrendous. Though no one is yet certain as to how many actually
died as the immediate and direct result of the leakage, estimates attribute it to about 3,000. Some
suffered injuries the effects of which are described as Carcinogenic and ontogenic by Ms. Indira
Jaisingh, learned counsel; some suffered injuries serious and permanent and some mild and
temporary. Livestock was killed, damaged and infected. Businesses were interrupted. Environment
was polluted and the ecology affected, flora and fauna disturbed.
4. On 7th December, 1984, Chairman of UCC Mr. Warren Anderson came to Bhopal and was
arrested. He was later released on bail. Between December 1984 and January 1985 suits were filed
by several American lawyers in the courts in America on behalf of several victims. It has been stated
that within a week after the disaster, many American lawyers, described by some as 'ambulance
chasers', whose fees were stated to be based on a percentage of the contingency of obtaining
damages or not, flew over to Bhopal and obtained Powers of Attorney to bring actions against UCC
and UCIL. Some suits were also filed before the District Court of Bhopal by individual claimants
against UCC (the American Company) and the UCIL.
5. On or about 6th February, 1985, all the suits in various U.S. Distt. Courts were consolidated by the
Judicial Panel on Multi-District Litigation and assigned to U.S. Distt. Court, Southern Distt. of New
York. Judge Keenan was at all material times the Presiding Judge there.
6. On 29th March, 1985, the Act in question was passed. The Act was passed to secure that the
claims arising out of or connected with the Bhopal gas leak disaster were dealt with speedily,
effectively and equitably. On 8th April, 1985 by virtue of the Act the Union of India filed a complaint
before the U.S. Distt. Court, Southern Distt. of New York. On 16th April, 1985 at the first pre-trial
conference in the consolidated action transferred and assigned to the U.S. Distt. Court, Southern
Distt., New York, Judge Keenan gave the following directions:
(i) that a three member Executive Committee be formed to frame and develop issues
in the case and prepare expeditiously for trial or settlement negotiations. The
Committee was to comprise of one lawyer selected by the firm retained by the Union
of India and two other lawyers chosen by lawyers retained by the individual plaintiffs.
(ii) that as a matter of fundamental human decency, temporary relief was necessary
for the-victims and should be furnished in a systematic and coordinated fashion
without unnecessary delay regardless of the posture of the litigation then pending.
7. On 24th September, 1985 in exercise of powers con-
ferred by section 9 of the Act, the Govt. of India framed the Bhopal Gas Leak Disaster (Registration
and Processing of Claims) Scheme, 1985 (hereinafter called the Scheme).
8. On 12th May, 1986 an order was passed by Judge Keenan allowing the application of UCC on
forum non convenience as indicated hereinafter. On 21st May, 1986 there was a motion for fairness
hearing on behalf of the private plaintiffs. On 26th June, 1986 individual plaintiffs filed appeal
before the US Court of Appeal for the second circuit challenging the order of Judge Keenan. By an
order dated 28th May, 1986 Judge Keenan declined the motion for a fairness hearing. The request
for fairness hearing was rejected at the instance of Union of India in view of the meagerness of the
amount of proposed settlement. On 10th July, 1986 UCC filed an appeal before the US Court of

Appeal for the Second Circuit. It challenged Union of India being entitled to American mode of
discovery, but did not challenge the other two conditions imposed by Judge Keenan, it is stated. On
28th July, 1986 the Union of India filed cross-appeal before the US Court of Appeal praying that
none of the conditions imposed by Judge Keenan should be disturbed. In this connection it would be
pertinent to set out the conditions incorporated in the order of Judge Keenan, dated 12th May, 1986
whereby he had dismissed the case before him on the ground of forum non convenience, as
mentioned before. The conditions were following:
1. That UCC shall consent to the jurisdiction of the courts of India and shall continue
to waive defenses based on the statute of limitation,
2. That UCC shall agree to satisfy any judgment rendered by an Indian court against
it and if applicable, upheld on appeal, provided the judgment and-affirmance
"comport with minimal requirements of due process"; and
3. That UCC shah be subject to discovery under the Federal Rules of Civil Procedure
of the US after appropriate demand by the plaintiffs.
9. On 5th September, 1986 the Union of India filed a suit for damages in the Distt. Court of Bhopal,
being regular suit No. H 13/86. It is this suit, inter alia, and the orders passed therein which were
settled by the orders of this Court dated 14th & 15th February, 1989, which will be referred to later.
On 17th November, 1986 upon the application of the Union of India, the Distt. Court, Bhopal,
granted a temporary injunction restraining the UCC from selling assets, paying dividends or
buying back debts. On 27th November, 1986 the UCC gave an undertaking to preserve and maintain
unencumbered assets to the extent of 3 billion US dollars.
10. On 30th November, 1986 the Distt. Court, Bhopal lifted the injunction against the Carbide
selling assets on the strength of the written undertaking by UCC to maintain unencumbered assets
of 3 billion US dollars. On 16th Decem- ber, 1986 UCC filed a written statement contending that
they were not liable on the ground that they had nothing to do with the Indian Company; and that
they were a different legal entity; and that they never exercised any control and that they were not
liable in the suit. Thereafter, on 14th January, 1987 the Court of Appeal for the Second Circuit
affirmed the decision of Judge Keenan but deleted the condition regarding the discovery under the
American procedure granted in favour of the Union of India. It also suo motu set aside the condition
that on the judgment of the Indian court complying with due process and the decree issued should
be satisfied by UCC. 1t ruled that such a condition cannot be imposed as the situation was covered
by the provisions of the Recognition of Foreign Country Money Judgments Act.
11. On 2nd April, 1987, the court made a written proposal to all parties for considering
reconciliatory interim relief to the gas victims. In September, 1987, UCC and the Govt. of India
sought time from the Court of Distt. Judge, Bhopal, to explore avenues for settlement. It has been
asserted by the learned Attorney General that the possibility of settlement was there long before
the full and final settlement was effected. He sought to draw our attention to the assertion that the
persons concerned were aware that efforts were being made from time to time for settlement.

However, in November'87 both the Indian Govt. and the Union Carbide announced that settlement
talks had failed and Judge Deo extended the time.
12. The Distt. Judge of Bhopal on 17th December, 1987 ordered interim relief amounting to Rs.350
crores. Being aggrieved thereby the UCC filed a Civil Revision which was registered as Civil Revision
Petition No. 26/88 and the same was heard. On or about 4th February, 1988, the Chief Judi- cial
Magistrate of Bhopal ordered notice for warrant on Union Carbide, Hong Kong for the criminal case
filed by CBI against Union Carbide. The charge sheet there was under sections 304, 324, 326, 429 of
the Indian Penal Code read with section 35 IPC and the charge was against S/Shri Warren
Anderson, Keshub Mahindra. Vijay Gokhale, J. Mukund, Dr. R.B. Roy Chowdhay. S.P. Chowdhary,
K.V. Shetty, S.1. Qureshi and Union Carbide of U.S.A., Union Carbide of Hong Kong and Union
Carbide having Calcutta address. It charged the Union Carbide by saying that MIC gas was stored
and it was further stated that MIC had to be stored and handled in stainless steel which was not
done. The charge sheet, inter alia, stated that a Scientific Team headed by Dr. Varadarajan had
concluded that the factors which had led to the toxic gas leakage causing its heavy toll existed in the
unique properties of very high reactivity, volatility and inhalation toxicity of MIC. It was further
stated in the charge sheet that the needless storage of large quantities of the material in very large
size containers for inordi- nately long periods as well as insufficient caution in design, in choice of
materials of construction and in provision of measuring and alarm instruments, together with the
inadequate controls on systems of storage and on quality of stored materials as well as lack of
necessary facilities for quick effective disposal of material exhibiting instability, led to the accident.
It also charged that MIC was stored in a negligent manner and the local administration was not
informed, inter alia, of the dangerous effect of the exposure of MIC or the gases produced by its
reaction and the medical steps to be taken immediately. It was further stated that apart from the
design defects the UCC did not take any adequate remedial action to prevent back flow of solution
from VGS into RVVH and PVH lines. There were various other acts of criminal negligence alleged.
The High Court passed an order staying the operation of the order dated 17.12.87 directing the
defendant-applicant to deposit Rs.3,500 millions within two months from the date of the said
order. On 4th April, 1988 the judgment and order were passed by the High Court modifying the
order of the Distt. Judge, and granting interim relief of Rs.250 crores. The High Court held that
under the substantive law of torts, the Court has jurisdiction to grant interim relief under Section 9
of the CPC. On 30th June, 1988 Judge Deo passed an order restraining the Union Carbide from
settling with any individual gas leak plaintiffs. On 6th September, 1988 special leave was granted by
this Court in the petition filed by UCC against the grant of interim relief and Union of India was also
granted special leave in the petition challenging the reduction of quantum of compensation from
Rs.350 crores to Rs.250 crores. Thereafter, these matters were heard in November- December'88 by
the bench presided over by the learned Chief Justice Of India and hearing, continued also in
January Feb- ruary'89 and ultimately on 14-15th February, 1989 the order culminating in the
settlement was passed.
13. In judging the constitutional validity of the Act, the subsequent events, namely, how the Act has
worked itself out, have to be looked into. It is, therefore, necessary to refer to the two orders of this
Court. The proof of the cake is in its eating, it is said, and it is perhaps not possible to ignore the
terms of the settlement reached on 14th and 15th February, 1989 in considering the effect of the lan-

guage used in the Act. Is that valid' or proper--or has the Act been worked in any improper way?
These questions do arise.
14. On 14th February, 1989 an order was passed in C.A. Nos. 3187-88/88 with S.L.P. (C) No.
13080/88. The parties thereto were UCC and the Union of India as well as Jana Swasthya Kendra,
Bhopal, Zehraeli Gas Kand Sangharsh Morcha, Bhopal. MP. That order recited that having
considered all the facts and the circumstances of the case placed before the Court, the material
relating to the proceedings in the Courts in the United States of America, the offers and
counter-offers made between the parties at different stages during the various proceedings, as well
as the complex issues of law and fact raised and the submissions made thereon, and in particular the
enormity of human suffering occasioned by the Bhopal Gas disaster and the pressing urgency to
provide immediate and substantial relief to victims of the disaster, the 'Court found that the case
was preeminently fit for an overall settlement between the parties covering all litigations, claims,
rights and liabilities relating to and arising out of the disaster and it was found just, equitable and
reasonable to pass, inter alia, the following orders:
.lm "(1) The Union Carbide Corporation shall pay a sum of U.S. Dollars 470 million (Four hundred
and seventy millions) to the Union of India in full settlement of all claims, fights and liabilities
related to and arising out of Bhopal Gas disaster.
(2) The aforesaid sum shall be paid by the Union Carbide Corporation to the Union of India on or
before 31st March, 1989.
(3) To enable the effectuation of the settlement, all civil proceedings related to and arising out of the
Bhopal Gas disaster shall hereby stand transferred to this Court and shall stand concluded in terms
of the settlement, and all criminal proceedings related to and arising out of the disaster shall stand
quashed wherever these may be pending
15. A written memorandum was filed thereafter and the Court on 15th February, 1989 passed an
order after giving due consideration thereto. The terms of settlement were as follows:
"1. The parties acknowledge that the order dated February 14, 1989 disposes of in its
entirety all proceedings in Suit No. 1113 of 1986. This settlement shall finally dispose
of all past, present and future claims, causes of action and civil and criminal
proceedings (of any nature whatsoever wherever pending) by all Indian citizens and
all public and private entities with respect to all past, present or future deaths,
personal injuries, health effects, compensation, losses, damages and civil and
criminal complaints of any nature whatsoever against UCC, Union Carbide India
Limited, Union Carbide Eastern, and all of their subsidiaries and affiliates as well as
each of their present and former directors, officers, employees, agents,
representatives, attorneys, advocates and solicitors arising out of, relating to or
connected with the Bhopal gas leak disaster, including past, present and future
claims, causes of action and proceedings against each other. All such claims and
causes of action whether within or outside India of Indian citizens, public or private

entities are hereby extinguished, including without limitation each of the claims filed
or to be filed under the Bhopal Gas Leak Disaster (Registration and Processing of
Claims) Scheme 1985, and all such civil proceedings in India are hereby transferred
to this Court and are dismissed without prejudice, and all such criminal proceedings
including contempt proceedings stand quashed and accused deemed to be
acquitted.
2. Upon full payment in accordance with the Court's directions the undertaking given
by UCC pursuant to the order dated November 30, 1986 in the District Court, Bhopal
stands discharged, and all orders passed in Suit No. 1113 of 1986 and or in any
Revision therefrom, also stand discharged."
16. It appears from the statement of objects & reasons of the Act that the Parliament recognized that
the gas leak disaster involving the release, on 2nd and 3rd December, 1984 of highly noxious and
abnormally dangerous gas from a plant of UCIL, a subsidiary of UCC, was of an unprecedented
nature, which resulted in loss of life and damage to property on an extensive scale, as mentioned
before. It was stated that the victims who had managed to survive were still suffering from the
adverse effects and the further complications which might arise in their cases, of course, could not
be fully visualised. It was asserted by Ms. Indira Jaising that in case of some of the victims the
injuries were carcinogenic and ontogenic and these might lead to further genetic complications and
damages. The Central Govt. and the Govt. of Madhya Pradesh and various agencies had to incur
expenditure on a large scale for containing the disaster and mitigating or otherwise coping with the
effects thereto. Accordingly, the Bhopal Gas Leak Disaster (Processing of Claims) Ordinance, 1985
was promulgated, which provided for the appointment of a Commissioner for the welfare of the
victims of the disaster and for the formulation of the Scheme to provide for various matters
necessary for processing of the claims and for the utilisation by way of disbursal or otherwise of
amounts received in satisfaction of the claims.
17. Thereafter, the Act was passed which received the assent of the President on 29th March, 1985.
Section 2(b) of the Act defines 'claim'. It says that "claims" means--(i) a claim, arising out of, or
connected with, the disaster, for compensation or damages for any loss of life or personal injury
which has been, or is likely to be suffered; (ii) a claim, arising out of, or connected with, the disaster,
for any damage to property which has been, or is likely to be, sustained; (iii) a claim for expenses
incurred or required to be incurred for containing the disaster or mitigating or otherwise coping
with the effects of the disaster; (iv) any other claim (including any claim by way of loss of business or
employment) arising out of, or connected with, the disaster. A "claimant" is defined as a person
entitled to make a claim. It has been provided in the Explanation to Section 2 that for the purpose of
clauses (b) and (c), where the death of a person has taken place as a result of the disaster, the claim
for compensation or damages for the death of such person shall be for the benefit of the spouse,
children (including a child in the womb) and other heirs of the deceased and they shall be deemed to
be the claimants in respect thereof.
18. Section 3 is headed "Power of Central Govt. to represent claimants". It provides as follows:

"3(1) Subject to the other provisions of this Act, the Central Government shall, and
shall have the exclusive right to, represent, and act in place of (whether within or
outside India) every person who has made, or is entitled to make, a claim for all
purposes connected with such claim in the same manner and to the same effect as
such persons. (2) In particular and without prejudice to the generality of the
provisions of sub-section (1), the purposes referred to therein include--
(a) Institution of any suit or other proceeding in or before any court or other
authority (whether within or outside India) or withdrawal of any such suit or other
proceeding, and
(b) entering into a compromise.
(3) The provisions of sub-section (1) shall apply also in relation to claims in respect of
which suits or other proceedings have been instituted in or before any court or other
authority (whether within or outside India) before the commencement of this Act:
Provided that in the case of any such suit or other proceeding with respect to any
claim pending immediately before the commencement of this Act in or before any
court or other authority outside India, the Central Govt. shall represent, and act in
place of, or along with, such claimant, if such court or other authority so permits."
19. Section 4 of the Act is headed as "Claimant's right to be represented by a legal practitioner". It
provides as follows:
"Notwithstanding anything contained in section 3, in representing, and acting in

place of, any person in relation to any claim, the Central Government shall have due
regard to any matters which such person may require to be urged with respect to his
claim and shall, if such person so desires, permit at the expense of such person, a
legal practitioner of his choice to be associated in the conduct of any suit or other
proceeding relating to his claim."
20. Section 5 deals with the powers of the Central Govt.
and enjoins that for the purpose of discharging its functions under this Act, the Central Govt. shall
have the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908. Section 6
provides for the appointment of a Commissioner and other officers and employees. Section 7
deals with powers to delegate. Section 8 deals with limitation, while section 9 deals with the power
to frame Scheme. The Central Govt. was enjoined to frame a scheme which was to take into account,
inter alia, the processing of the claims for securing their enforcement, creation of a fund for meeting
expenses in connection with the administration of the Scheme and of the provisions of this Act and
the amounts which the Central Govt. might, after due appropriation made by the Parliament by law
in that behalf, credit to the fund referred to in clauses above and any other amounts which might be
credited to such fund. Such Scheme was enjoined, as soon as after it had been framed, to be laid
before each House of Parliament. Section 10 deals with removal of doubts. Section 11 deals with the

overriding effect and provides that the provisions of the Act and of any Scheme framed thereunder
shall have effect notwithstanding anything inconsistent therewith contained in any enactment other
than the Act or any instrument having effect by virtue of any enactment other than the Act.
21. A Scheme has been framed and was published on 24th September, 1985. Clause 3 of the said
Scheme provides that the Deputy Commissioners appointed under Section 6 of the Act shall be the
authorities for registration of Claims (including the receipt, scrutiny and proper categorisation of
such claims under paragraph 5 of the Scheme) arising within the areas of their respective
jurisdiction and they shall be assisted by such other officers as may be appointed by the Central
Govt. under Section 6 of the Act for scrutiny and verification of the claims and other related matters.
The Scheme also provides for the manner of filing claims. It enjoins that the Dy. Commissioner shall
provide the required forms for filing the applications. It also provides for categorisation and
registration of claims. Sub-clause (2) of Clause 5 enjoins that the claims received for registration
shall be placed under different heads.
22. Sub-clause (3) of clause 5 enjoins that on the consideration of claims made under paragraph 4 of
the Scheme, if the Dy. Commissioner is of the opinion that the claims fall in any category different
from the category mentioned by the claimant, he may decide the appropriate category after giving
an opportunity to the claimant to be heard and also after taking into consideration any facts made
available to him in this behalf. Sub-clause (6) of Clause 5 enjoins that if the claimant is not satisfied
with the order of the Dy. Commissioner, he may prefer an appeal against such order to the
Commissioner, who shall decide the same.
23. Clause 9 of the Scheme provides for processing of Claims Account Fund, which the Central Govt.
may, after due appropriation made by Parliament, credit to the said Fund. It provides that there
shall also be a Claims and Relief Fund, which will include the amounts received in satisfaction of the
claims and any other amounts made available to the Commissioner as donation or for relief
purposes. Subclause (3) of clause 10 provides that the amount in the said Fund shall be applied by
the Commissioner for, disbursal of amounts in settlement of claims, or as relief, or apportionment of
part of the Fund for disbursal of amounts in settlement of claims arising in future or for disbursal of
amounts to the Govt. of Madhya Pradesh for the social and economic rehabilitation of the persons
affected by the Bhopal gas leak disaster.
24. Clause 11 of the Scheme deals with the disbursal, apportionment of certain amounts, and
sub-clause (2) thereof enjoins that the Central Govt. may determine the total amount of
compensation to be apportioned for each category of claims and the quantum of compensation
payable, in general, in relation to each type of injury or loss. Sub-clause (5) thereto provides that in
case of a dispute as to disbursal of the amounts received in satisfaction of claims, an appeal shall lie
against the order of the Dy. Commissioner to the Additional Commissioner, who may decide the
matter and make such disbursal as he may, for reasons to be recorded in writing, think fit. The
other clauses are not relevant for our present purposes.
25. Counsel for different parties in all these matters have canvassed their submissions before us for
the gas victims. Mr. R.K. Garg, Ms. Indira Jaising, and Mr. Kailash Vasudev have made various

submissions challenging the validity of the Act on various grounds. They all have submitted that
the Act should be read in the way they suggested and as a whole. Mr. Shanti Bhushan, appearing for
interveners on behalf of Bhopal Gas Peedit Mahila Udyog Sangathan and following him Mr.
Prashant Bhushan have urged that the Act should be read in the manner canvassed by them and if
the same is not so read then the same would be violative of the fundamental rights of the victims,
and as such unconstitutional. The learned Attorney General assisted by Mr. Gopal Subramanium
has on the other hand urged that the Act is valid and constitutional and that the settlement arrived
at on 14th/15th February is proper and valid.
26. In order to appreciate the background Ms. Indira Jaising placed before us the proceedings of the
Lok Sabha wherein Mr. Veerendra Patil, the Hon'ble Minister, stated on March 27, 1985 that the
tragedy that had occurred in Bhopal on 2nd and 3rd December, 1984 was unique and
unprecedented in character and magnitude not only for our country but for the entire world. It was
stated that one of the options available was to settle the case in Indian courts. The second one was to
file the cases in American courts. Mr. Patil reiterated that the Govt. wanted to proceed against the
parent company and also to appoint a Com- mission of Inquiry.
27. Mr. Garg in support of the proposition that the Act was unconstitutional, submitted that the Act
must be examined on the touchstone of the fundamental rights on the basis of the test laid down by
this court in state of Madras v. V.G, Row, [1952] SCR 597, There at page 607 of the report this Court
has reiterated that in considering the reasonableness of the law imposing restrictions on the
fundamental rights, both the substantive and the procedural aspects of the impugned restrictive law
should be examined from the point of view of reasonableness. And the test of reasonableness,
wherever prescribed, should be applied to each individual Statute impugned, and no abstract
standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature
of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the
extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition,
the prevailing conditions at the time, should all enter into the judicial verdict. (The emphasis
supplied). Chief Justice Patanjali Sastri reiterated that in evaluating such elusive factors and
forming their own conception of what is reasonable, in the circumstances of a given case, it is
inevitable that the social philosophy and the scale of values of the judges participating in the
decision would play an important role.
28. Hence, whether by sections, 3, 4 & 11 the rights of the victims and the citizens to fight for their
own causes and to assert their own grievances have been taken away validly and properly, must be
judged in the light of the prevailing conditions at the time, the nature of the right of the citizen, the
purpose of the restrictions on their rights to sue for enforcement in the courts of law or for
punishment for offences against his person or property, the urgency and extent of the evils sought to
be remedied by the Act, and the proportion of the impairment of the rights of the citizen with
reference to the intended remedy prescribed. According to Mr. Garg, the present position called for
a comprehensive appreciation of the national and international background in which precious
rights to life and liberty were enshrined as fundamental rights and remedy for them was also
guaranteed under Article 32 of the Constitu- tion. He sought to urge that multinational corporations
have assumed powers or potencies to override the political and economic independence of the

sovereign nations which have been used to take away in the last four decades, much wealth out of
the Third World. Now these are plundered much more than what was done to the erstwhile colonies
by imperialist nations in the last three centuries of foreign rule. The role of courts in cases of conflict
between rights of citizens and the vast economic powers claimed by multinational corporations to
deny moral and legal liabilities for their corporate criminal activities should not be lost sight of. He,
in this background, urged that these considerations assume immense importance to shape human
fights jurisprudence under the Constitution, and for the Third World to regulate and control the
power and economic interests of multinational corporations and the power of exploitation and
domination by developed nations without submitting to due observance of the laws of the
developing countries. It therefore appears that the production of, or carrying on trade in dangerous
chemicals by multinational industries on the soil of Third World countries call for strictest en-
forcement of constitutional guarantees for enjoying human fights in free India, urged Mr. Garg. In
this connection, our attention was drawn to the Charter of Universal Declara- tion of Human Rights.
Article 1 of the Universal Declaration of Human Rights, 1948 reiterates that all human-beings are
born free and equal in dignity and rights. Article 3 states that everyone has right to life, liberty and
security of person. Article 6 of the Declaration states that everyone has the right to recognition
everywhere as a person before the law. Article 7 states that all are equal before the law and are
entitled without any discrimination to equal protection of the law. All are entitled to equal
protection against any discrimination in violation of the Declaration of Human Rights and against
any incitement to such discrimination. Article 8 states that everyone has the right to an effective
remedy by competent National Tribunal for acts violating fundamental rights guaranteed to him by
the Con- stitution or by the law. It is, therefore, necessary to bear in mind that Indian citizens have a
fight to live which cannot be taken away by the Union of India or the Govt. of a State, except by a
procedure which is just, fair and reasonable. The right to life includes the fight to protection of
limb against mutilation and physical injuries, and does not mean merely the fight to breathe but also
includes the fight to livelihood. It was urged that this right is available in all its dimension till the
last breath against all injuries to head, heart and mind or the lungs affecting the citizen or his next
generation or of genetic disorders. The enforcement of the right to life or limb calls for adequate
and appropriate reliefs enforceable in courts of law and of equity with sufficient power to offer
adequate deterrence in all cases of corporate criminal liability under strict liability, absolute liability,
punitive liability and criminal prosecution and punishment to the delinquents. The damages
awarded in civil jurisdiction must be commensurate to meet well-defined demands of evolved
human rights jurisprudence in modern world. It was, therefore, submitted that punishment in
criminal jurisdiction for serious offences is independent of the claims enforced in civil jurisdiction
and no immunity against it can be granted as part of settlement in any civil suit. If any Act
authorises or permits doing of the same, the same will be unwarranted by law and as such bad. The
Constitution of India does not permit the same.
29. Our attention was drawn to Article 21 of the Consti- tution and the principles of international
law. Right to equality is guaranteed to every person under Art. 14 in all matters like the laws of
procedure for enforcement of any legal or constitutional right in every jurisdiction, substantive law
defining the rights expressly or by necessary implications, denial of any of these rights to any class of
citizens in either field must have nexus with constitutionally permissible object and can never be
arbitrary. Arbi- trariness is, therefore, anti-thetical to the right of equality. In this connection,

reliance was placed on the observations of this Court in E.P. Royappa v. State of Tamil Nadu & Anr.,
[1974] 2 SCR 348 and Maneka Gandhi v. Union of India, [1978] 2 SCR 621 where it was held that
the view that Articles 19 & 21 constitute watertight compartments has been rightly overruled.
Articles dealing with different fundamental rights contained in Part III of the Constitution do not
represent entirely separate streams of rights which do not mingle at any point of time. They. are all
parts of an integrated scheme in the Constitution and must be preserved and cannot be destroyed
arbitrarily. Reliance was placed on the observations in R.D. Shetty v. The I.A.A. of India & Ors.,
[1979] 3 SCR 1014. Hence, the rights of the citizens to fight for remedies and enforce their rights
flowing from the breach of obligation in respect of crime cannot be obliterated. The Act and Sections
3, 4 & 11 of the Act in so far as these purport to do so and have so operated, are violative of Articles
14, 19(1)(g) and 21 of the Constitu- tion. The procedure envisaged by the said Sections deprives the
just and legitimate rights of the victims to assert and obtain their just dues. The rights cannot be so
destroyed. It was contended that under the law the victims had right to ventilate their rights.
30. It was further contended that Union of India was a joint tort-feasor along with UCC and UCIL. It
had negligent- ly permitted the establishment of such a factory without proper safeguards exposing
the victims and citizens to great danger. Such a person or authority cannot be entrusted to represent
the victims by denying the victims their rights to plead their own cases. It was submitted that the
object of the Act was to fully protect people against the disaster of highly obnoxious gas and disaster
of unprecedented nature. Such an object cannot be achieved without enforcement of the criminal
liability by criminal prosecution. Entering into settlement without reference to the victims was,
therefore, bad and unconstitutional, it was urged. If an Act, it was submitted, permits such a
settlement or deprivation of the rights of the victims, then the same is bad.
31. Before we deal with the various other contentions raised in this case, it is necessary to deal with
the application for intervention and submission made on behalf of the Coal India in Writ Petition
No. 268/89 wherein Mr. L.N. Sinha in his written submission had urged for the intervener that
Article 21 of the Constitution neither confers nor creates nor determines the dimensions nor the
permissible limits of restrictions which appropriate legislation might impose on the right to life or
liberty. He submitted that provisions for procedure are relevant in judicial or quasi judicial
proceedings for enforcement of rights or obligations. With regard to alteration of rights, procedure
is governed by the Constitution directly. He sought to intervene on behalf of Coal India and wanted
these submissions to be taken into consideration. However, when this contention was sought to be
urged before this Court on 25th April, 1989, after hearing all the parties, it appeared that there was
no dispute between the parties in the instant writ petitions between the victims and the Government
of India that the rights claimed in these cases are referrable to Article 21 of the Constitution.
Therefore, no dispute really arises with regard to the contention of Coal India and we need not
consider the submissions urged by Shri Sinha on behalf of the intervener in this case. It has been so
recorded.
32. By the order dated 3rd March, 1989, Writ Petitions Nos. 268/89 and 164/86 have been directed
to be disposed of by this Bench.' We have heard these two writ petitions along with the other writ
petitions and other matters as indicated hereinbefore. The contentions are common. These writ
petitions question the validity of the Act and the settlement entered into pursuant to the Act. Writ

Petition No. 164/86 is by one Shri Rakesh Shrouti who is an Indian citizen and claims to be a
practising advocate having his residence at Bhopal. He says that he and his family members were at
Bhopal on 2nd/3rd December, 1984 and suffered immensely as a result of the gas leak. He
challenges the validity of the Act on various grounds. He contends that the Union of India should
not have the exclusive right to represent the victims in suits against the Union Carbide and thereby
deprive the victims of their right to sue and deny access to justice. He further challenges the right of
the Union of India to represent the victims against Union Carbide because of conflict of interests.
The conduct of the Union of India was also deprecated and it was further stated that such conduct
did not inspire confidence. In the premises, the said petitioner sought a declaration under Article 32
of the Constitution that the Act is void, inoperative and unenforceable as violative of Articles 14, 19
& 21 of the Con- stitution- Similarly, the second writ petition, namely, writ petition No. 268/89
which is filed by Sh. Charan Lal Sahu, who is also a practising Advocate on behalf of the victims and
claims to have suffered damages as a result of the gas leak. challenges the Act. He further challenges
the settlement entered into under the Act. He says that the said settlement was violative of
principles of natural justice and the fundamental right of the said petitioner and other victims. It is
his case that in so far as the Act permits such a course to be adopted, such a course was not
permissible under the Constitution. He further asserts that the Union of India was negligent and a
joint tort-feasor. In the premises, according to him, the Act is bad, the settlement is bad and these
should be set aside.
33. In order to determine the question whether the Act in question is constitutionally valid or not in
the light of Articles 14, 19(l)(g) and 21 of the Constitution, it is necessary to find out what does the
Act actually mean and provide for. The Act in question, as the Preamble to the Act states, was passed
in order to confer powers on the Central Government to secure that the claims arising out of, or
connected with, the Bhopal gas leak disaster are dealt with speedily, effectively, equitably and to the
best advantage of the claimants and for matters incidental thereto. There- fore, securing the claims
arising out of or connected with the Bhopal gas leak disaster is the object and purpose of the Act. We
have noticed the proceedings of the Lok Sabha in connection with the enactment of the Act. Our
attention was also drawn by the learned Attorney General to the proceedings of the Rajya Sabha
wherein the Hon'ble Minister, Shri Virendra Patil explained that the bill enabled the Govern- ment
to assume exclusive right to represent and act, whether within or outside India in place of every
person who had made or was entitled to make claim in relation to the disaster and to institute any
suit or other proceedings or enter into any compromise as mentioned in the Act. The whole object of
the Bill was to make procedural changes to the existing Indian law which would enable the Central
Govern- ment to take up the responsibility of fighting litigation on behalf of these victims. The first
point was that it sought to create a locus standi in the Central Government to file suits on behalf of
the victims. The object of the Statute. it was highlighted, was that because of the dimension of the
tragedy covering thousands of people, large number of whom being poor, would not be able to go to
the courts, it was necessary to create the locus standi in the Central Government to start the
litigation for payment of compensation in the courts on their behalf. The second aspect of the Bill
was that by creating this locus standi in the Central Government, the Central Government became
competent to institute judicial proceedings for payment of compensation on behalf of the victims.
The next aspect of the Bill was to make a distinction between those on whose behalf suits had
already been filed and those on whose behalf proceedings had not yet then been instituted. One of

the Members emphasised that under Article 21 of the Constitu- tion, the personal liberty of every
citizen was guaranteed and it has been widely interpreted as to what was the meaning of the
expression 'personal liberty'. It was cmphasised that one could not take away the right of a person,
the liberty of a person, to institute proceedings for his own benefit and for his protection. It is from
this point of view that it was necessary, the member debated, to preserve the right of a claimant to
have his own lawyers to represent him along with the Central Government in the proceedings under
Section 4 of the Act, this made the Bill constitutionally valid.
34. Before we deal with the question of constitutionality, it has to be emphasised that the Act in
question deals with the Bhopal gas leak disaster and it deals with the claims meaning thereby claims
arising out of or connected with the disaster for compensation of damages for loss of life or any
personal injury which has been or is likely to be caused and also claims arising out of or connected
with the disaster for any damages to property or claims for expenses incurred or required to be
incurred for containing the disaster or making or otherwise coping with the impact of the disaster
and other incidental claims. The Act in question does not purport to deal with the criminal liability,
if any, of the parties or persons concerned nor it deals with any of the consequences flowing from
those. This position is clear from the provisions and the Preamble to the Act. Learned Attorney
General also says that the Act does not cover criminal liability. The power that has been given to the
Central Government is to represent the 'claims', meaning thereby the monetary claims. The
monetary claims, as was argued on behalf of the victims, are damages flowing from the gas disaster.
Such damages, Mr. Garg and Ms. Jais- ing submitted, are based on strict liability, absolute liability
and punitive liability. The Act does not, either expressly or impliedly, deal with the extent of the
damages or liability. Neither section 3 nor any other section deals with any consequences of criminal
liability. The expression "the Central Government shall, and shall have the exclusive right to,
represent, and act in place of (whether within or outside India) every person who has made, or is
entitled to make, a claim for all purposes connected with such claim in the same manner and to the
same effect as such person", read as it is, means that Central Government is substituted and vested
with the exclusive right to act in place of the victims, i.e., eliminating the victims, their heirs and
their legal representatives, in respect of all such claims arising out of or connected with the Bhopal
gas leak disaster. The right, therefore, embraces right to institute proceedings within or outside
India along with right to institute any suit or other proceedings or to enter into compromise.
Sub-section 1 of section 3 of the Act, therefore, substitutes the Central Government in place of the
victims. The victims, or their heirs and legal representatives, get their rights substituted in the
Central Govern- ment along with the concomitant right to institute such proceedings, withdraw such
proceedings or suit and also to enter into compromise.The victims or the heirs or the legal
representatives of the victims, are substituted and their rights are vested in the Central Government.
This happens by operation of section 3 which is the legislation in question. Sub-section (3) of section
3 makes it clear that the provisions of sub-section (1) of section 3 shall also apply in relation to
claims in respect of which suits or other proceedings have been instituted in or before any court or
other authority (whether within or outside India) before the commencement of this Act, but makes a
distinction in the case of any such suit or other proceeding with respect to any claim pending
immediately before the commencement of this Act in or before any court or other authority outside
India, and provides that the Central Government shall represent, and act in place of, or along with,
such claimant, if such court or other authority so permits. Therefore, in cases where such suits or

proceedings have been instituted before the commencement of the Act in any court or before any
authority outside India, the section by its own force will not come into force in substituting the
Central Govern- ment in place of the victims or the heirs or their legal representatives, but the
Central Government has been given the right to act in place of, or along with, such claimant,
provided such court or other authority so permits. It is to have adherence and conformity with the
procedure of the countries or places outside India, where suits or proceedings are to be instituted
or have been instituted. There- fore, the Central Government is authorised to act along with the
claimants in respect of proceedings instituted outside India subject to the orders of such courts or
the authorities. Is such a right valid and proper?
35. There is the concept known both in this country and abroad, called "parens patriae. Dr. D.K.
Mukherjea in his "Hindu Law of Religious and Charitable Trusts", Tagore Law Lectures, Fifth
Edition, at page 404, referring to the concept of parens patriae, has noted that in English Law, the
Crown as parens patriae is the constitutional protector of all property subject to charitable trusts,
such trusts being essentially matters of public concern. Thus the position is that according to
Indian concept parens patriae doctrine recognized King as the protector of all citizens and as parent.
In Budhakaran Chankhani v. Thakur Prasad Shah, AIR 1942 Cal. 311 the position was explained by
the Calcutta High Court at page 3 18 of the report. The same position was reiterated by the said
Court in Banku Behary Mondal v. Banku Behary Hazra & Anr., AIR 1943 Cal. 203 at page 205 of the
report. The position was further elaborated and explained by the Madras High Court in Medai
Dalavoi T. Kumaraswami Mudaliar v. Medai Dalavoi Rajammal, AIR 1957 Mad. 563 at page 567 of
the report. This Court also recognized the concept of parens patriae relying on the observations of
Dr. Mukherjea aforesaid in Ram Saroop v. S.P. Sahi, [1959] 2 Supp. SCR 583, at pages 598 and 599.
In the "Words and Phrases" Permanent edition, Vol. 35 at p. 99, it is stated that parens patriae is the
inherent power and authority of a Legislature to provide protection to the person and property of
persons non suijuris, such as minor, insane, and incompetent persons, but the words "parens
patriae" meaning thereby 'the father of the country', were applied originally to the King and are used
to designate the State referring to its sovereign power of guardianship over persons under disability,
(Emphasis supplied). Parens patriae jurisdiction, it has been explained, is the right of the sovereign
and imposes a duty on sovereign, in public interest, to protect persons under disability who have no
rightful protector. The connotation of the term "parens patriae" differs from country to country, for
instance, in England it is the King, in America it is the people, etc. The Government is within its duty
to protect and to control persons under disability. Conceptually, the parens patriae theory is the
obligation of the State to protect and take into custody the rights and the privileges of its citizens for
discharging its obligations. Our Constitution makes it imperative for the State to secure to all its
citizens the rights guaranteed by the Constitution and where the citizens are not in a position to
assert and secure their rights, the State must come into picture and protect and fight for the rights of
the citizens. The Preamble to the Constitution, read with the Directive Principles, Articles 38, 39 and
39A enjoins the State to take up these responsibilities. It is the protective measure to which the
social welfare state is committed. It is necessary for the State to ensure the funda-
mental rights in conjunction with the Directive Princi- ples of State Policy to effectively discharge its
obligation and for this purpose, if necessary, to deprive some rights and privileges of the individual
victims or their heirs to protect their rights better and secure these further. Reference may be made

to Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 US 592, 73 L. Ed. 2d 995, 1028. Ct, 3260 in this
connection. There it was held by the Supreme Court of the United States of America that
Commonwealth of Puerto have standing to sue as parens patriae to enjoin apple growers'
discrimination against Puerto Rico migrant farm workers. This case illustrates in some aspect the
scope of 'parens patriae'. The Commonwealth of Puerto Rico sued in the United States District Court
for the Western District of Virginia, as parens patriae for Puerto Rican migrant farm workers, and
against Virginia apple growers, to enjoin discrimination against Puerto Ricans in favour of Jamaican
workers in violation of the Wagner-Peyser Act, and the Immigration and Nationality Act. The
District Court dismissed the action on the ground that the Commonwealth lacked standing to sue,
but the Court of Appeal for the Fourth Circuit reversed it. On certiorari, the United States Supreme
Court affirmed. In the opinion by White, J. joined by Burger, Chief Justice and Brennan, Marshall,
Blackman, Rennquist, Stevens, and O'Connor, JJ., it was held that Puerto Rico had a claim to
represent its quasi sovereign interests in federal court at least which was as strong as that of any
State, and that it had parens patriae standing to sue to secure its residents from the harmful effects
of discrimination and to obtain full and equal participation in the federal employment service
scheme established pursuant to the Wagner-Peyser Act and the Immigration and Nation- ality Act
of 1952. Justice White referred to the meaning of the expression "parens patriae". According to
Black's Law Dictionary, 5th Edition 1979, page 1003, it means literally 'parent of the country' and
refers traditionally to the role of the State as a sovereign and guardian of persons under legal
disability. Justice White at page 1003 of the report emphasised that the parens patriae action had its
roots in the common-law concept of the "royal prerogative". The royal prerogative included the right
or responsibility to take care of persons who were legally unable, on account of mental incapacity,
whether it proceeds from nonage, idiocy, or lunacy to take proper care of themselves and their
property. This prerogative of parens patriae is inherent in the supreme power of every state, whether
that power is lodged in a royal person or m the legislature and is a most beneficent function. After
discussing several cases Justice White observed at page 1007 of the report that in order to maintain
an action, in parens patriae, the state must articulate an interest apart from the interests of
particular parties, i.e. the State must be more than a nominal party. The State must express a
quasi-sovereign interest. Again an instructive insight can be obtained from the observations of
Justice Holmes of the American Supreme Court in the case of Georgia v. Tennessee Copper Co., 206
US 230, 51 L.Ed. 1038, 27 S Ct 618, which was a case involving air pollution in Georgia caused by the
discharge of noxious gases from the defendant's plant in Tennessee. Justice Holmes at page 1044 of
the report described the State's interest as follows:
"This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that

capacity the State has an interest independent of and behind the titles of its citizens,
in all the earth and air within its domain. It has the last word as to whether its
mountains shall be stripped of their forests and its inhabitants shall breathe pure air.
It might have to pay individuals before it could utter that word, but with it remains
the final power ......
..... When the States by their union made the forcible abatement of outside nuisances
impossible to each, they did not thereby agree to submit to whatever might be done.
They did not renounce the possibility of making reasonable demands on the ground

of their still remaining quasi-sovereign interests"
36. Therefore, conceptually and from the jurisprudential point of view, especially in the background
of the Preamble to the Constitution of India and the mandate of the Direc- tive Principles, it was
possible to authorise the Central Government to take over the claims of the victims to tight against
the multinational Corporation in respect of the claims. Because of the situation the victims were
under disability in pursuing their claims in the circumstances of the situation fully and properly. On
its plain terms the State has taken over the exclusive right to represent and act in place of every
person who has made or is entitled to make a claim for all purposes connected with such claim in
the same manner and to the same effect as such person. Whether such provision is valid or not in
the background of the requirement of the Constitution and the Code of Civil Procedure, is another
debate. But there is no prohibition or inhibition, in our opinion, conceptually or jurisprudentially
for Indian State taking over the claims of the victims or for the State acting for the victims as the Act
has sought to provide. The actual meaning of what the Act has provided and the validity thereof,
however, will have to be examined in the light of the specific submissions advanced in this case.
37. Ms. Indira Jaising as mentioned hereinbefore on behalf of some other victims drew out attention
to the background of the passing of the Act in question. She drew our attention to the fact that the
Act was to meet a specific situation that had arisen after the tragic disaster and the advent of
American lawyers seeking to represent the victims in American courts. The Government's view,
according to her, as was manifest from the Statement of Objects and Reasons, debates of the
Parliament, etc. was that the interests of the victims would be best served if the Central
Government was given the right to represent the victims in the courts of United States as they would
otherwise be exploited by 'ambulance-chasers' working on contingency fees. The Government also
proceeded initially on the hypothesis that US was the most convenient forum in which to sue UCC.
The Government however feared that it might not have locus standi to represent the victims in the
courts of the United States of America unless a law was passed to enable it to sue on behalf of the
victims. The dominant object of the Act, therefore, according to her, was to give to the Government
of India locus Standi to sue on behalf of the victims in foreign jurisdiction, a standing which it other-
wise would not have had. According to her, the Act was never intended to give exclusive rights to the
Central Government to sue on behalf of the victims in India or abroad. She drew our attention to the
parliamentary debates as mentioned hereinbefore. She drew our attention to the expression 'parens
patriae' as appearing in the Words and Phrases, Volume 31 p. 99. She contends that the Act was
passed to provide locus standi only to represent in America. She drew our attention to the
"American Constitutional Law by Lau- rence B. Trioe, 1978 Edition at paragraph 3.24, where it was
stated that in its capacity as proprietor, a state may satisfy the requirement of injury to its own
interests by an assertion of harm to the state as such. It was further stated by the learned author
there that the State may sue under the federal anti-trust laws to redress wrongs suffered by it as the
owner of a railroad and as the owner and opera- tor of various public institutions. It was emphasised
that in its quasi-sovereign capacity, the state has an interest, independent of and behind the titles of
its citizens, in all the earth and air within its domain. It was sought to be suggested that in the
instant Act no such right was either asserted or mentioned. The State also in its quasi-sovereign
capacity is entitled to bring suit against a private individual to enjoin a corporation not to
discharge noxious gases from its out of state plant into the suing state's territory. Finally, it was

emphasised that as 'parens patriae' on behalf of the citizens, where a state's capacity as parens
patriae is not negated by the federal structure, the protection of the general health, comfort, and
welfare of the state's inhabitants has been held to give the state itself a sufficient interest. Ms.
Jaising sought to contend that to the extent that the Act was not confined to empowering the
Government to sue on behalf of those who were not sui generis but extended also to representing
those who are, this exercise of the power cannot be referrable to the doctrine of 'parens patriae'. To
the extent, it is not confined in enabling the Government to represent its citizens in foreign
jurisdiction but empowered it to sue in local courts to the exclusion of the victims it cannot be said
to be in exercise of doctrine of 'parens patriae', according to her. We are unable to agree. As we have
indicated before conceptually and jurisprudentially there is no warrant in the background of the
present Act, in the light of circumstances of the Act in question to confine the concept into such
narrow field. The concept can be varied to enable the Government to represent the victims
effectively in domestic forum if.the situation so warrants. We also do not find any reason to confine
the 'parens patriae' doctrine to only quasisovereign right of the State independent of and behind the
title of the citizens, as we shall indicate later.
38. It was further contended that deprivation of the rights of the victims and denial of the rights of
the victims or the fights of the heirs of the victims to access to justice was unwarranted and
unconstitutional. She submitted that it has been asserted by the Government that the Act was
passed pursuant to Entry 13 of the List I of the Seventh Schedule to the Constitution. It was
therefore submitted that to the extent it was a law relating to civil procedure, it sets up a different
procedure for the Bhopal gas victims and denies to them equality before law, violating Article 14 of
the Constitution. Even assuming that due to the magnitude of the disaster, the number of claimants
and their disability they constituted a separate class and that it was permissible to enact a special
legislation setting up a special procedure for them, the reasonableness of the procedure has still to
be tested. Its reasonableness, according to her, will have to be judged on the touchstone of the
existing Civil Procedure Code of 1908 and when so tested, it is found wanting in several respects. It
was also contended by the Government that it was a legislation relating to "actionable wrongs"
under Entry 8 of the Concurrent List of the Seventh Schedule. But so read, she said, it could only
deal with the procedural aspects and not the substantive aspect of "actionable wrongs". If it does,
then the reasonableness of a law must be judged with reference to the existing substantive law of
actionable wrongs and so judged it is in violation of many constitutional rights as it takes away
from the victims the right to sue for actionable wrongs according to counsel for the victims.
According to her, it fails to take into account the law of strict liability for ultra hazardous activity as
clarified by this Court in M.C. Meh- ta's, case (supra). She further submitted that it is a bad Act as it
fails to provide for the right to punitive damages and destruction of environment.
39. It was contended on behalf of the Central Government that the Act was passed to give effect to
the Directive Principle as enshrined under Article 39-A of the Constitu- tion of India. It was, on the
other side, submitted that it is not permissible for the State to grant legal aid on pain of destroying
rights that inhere in citizens or on pain of demanding that the citizens surrender their rights to the
State. The Act in fact demands a surrender of rights of the citizens to the State. On the interpretation
of the Act, Ms. Indira Jaising submitted that sections 3 and 4 as noted above, give exclusive power to
the Government to represent the victims and there is deprivation of the victims' right to sue for the

wrongs done to them which is uncanalised and unguided and the expression "due regard" in section
4 of the Act does not imply consent and as such violative of the rights of the victims. The right to be
associated with the conduct of the suit is hedged in with so many conditions that it is illusory.
According to her, a combined reading of sections 3 and 4 of the act lead to the conclusion that the
victims are displaced by the Central Government which has constituted itself as the "surrogate" of
the claimants, that they have no control over the proceedings, that they have no right to decide
whether or not to compromise and if so on what terms and they have no right to be heard by the
court before any such compromise is effected. Therefore, section 3 read with section 4, according to
her, hands over to the Government all effective rights of the victims to sue and is a naked usurption
of power. It was submitted that in any event on a plain reading of the Act, section 3 read with section
4 did not grant the Government immunity from being sued as a joint tort-feasor.
40. It was further urged that section 9 makes the Gov- ernment the total arbitor in the matter of the
registration, processing and recording of claims. Reference was made to section 9(2)(a), (b) and (c)
and disbursal of claims under sections 9(2)(f) and 10. It was urged that the Deputy Com- missioner
and Commissioner appointed under the Act and the Scheme are subordinates and agents of the
Central Govern- ment. They replace impartial and independent civil court by officers and
subordinates of the Central Government. Clause 11 of the Scheme makes the Central Government,
according to counsel, judge in its own cause inasmuch as the Central Government could be and was
in fact a joint tort-feasor. It was submitted that sections 5 to 9 of the Act read with the Scheme do
not set up a machinery which is constitutionally valid. The Act, it was urged, deprives the victims of
their rights out of all proportion to the object sought to be achieved, namely, to sue in foreign
jurisdiction or to represent those incapable of representing themselves. The said object could be
achieved, according to counsel, by limiting the right to sue in foreign jurisdiction alone and in any
event representing only those victims incapable of representing themselves. The victims who wish to
sue for and on their own behalf must have power to sue, all proper and necessary parties including
Government of India, Government of Madhya Pradesh, UCIL and Shri Arjun Singh to vindicate
their right to life and liberty and their rights cannot and should not be curtailed, it was submitted.
Hence, the Act goes well beyond its objects and imposes excessive restriction amounting to
destruction of the rights of the victims, according to. counsel. In deciding whether any rights are
affected, it is not the object of the Act that is relevant but its direct and inevitable effect on the rights
of the victims that is material. Hence no matter how laudable the object of the Act is alleged to be by
the Government of India, namely, that it is an Act to give effect to Directive Principles enshrined in
Article 39-A of the Constitution, the direct and inevitable effect of section 3 according to counsel
for the victims is to deprive the victims of the right to sue for and on their own behalf through
counsel of their choice and instead empower the Central Government to sue for them.
41. The Act is, it was contended, unconstitutional because it deprives the victims of their right to life
and personal liberty guaranteed by Article 21. The right to life and liberty includes the right to sue
for violations of the right, it was urged. The right to life guaranteed by Article 21 must be interpreted
to mean all that makes life livable, life in all its fullness. According to counsel, it includes the right to
livelihood. Reference was made to the decision of Olga Tellis v. B.M.C., [1985] Supp. 2 SCR 51 at p.
78-83. This right, it was contended, is inseparable from the remedy. It was urged that personal
liberty includes a wide range of freedoms to decide how to order one's affairs. Reference was made

to Maneka Gandhi v. Union of India, (supra), The right to life and liberty also includes the right to
healthy environment free from hazardous pollutants. The right to life and liberty, it was submitted,
is inseparable from the remedy to judicial vindication of the violation of that right--the right of
access to justice must be deemed to be part of that right. Therefore, the importance is given to the
right to file a suit for an actionable wrong. See Ganga Bai v. Vijay Kumar, [1974] 3 SCR 882 at 886.
According to counsel appearing for the victims, the Act read strictly infringes the right to life and
personal liberty because the right to sue by the affected person for damages flowing from
infringement of their rights is taken away. Thus, it was submitted that not just some incidents of
the right to life, but the right itself in all its fullness is taken away. Such depravation, according to
counsel, of the right is not in accordance with procedure established by law inasmuch as the law
which takes away the right, i.e., impugned Act is neither substantively nor procedurally just, fair or
reasonable. A law which divests the victims of the right to sue to vindicate for life and personal
liberty and vests the said right in the Central Government is not just, fair or reasonable. The victims
are sui generis and able to decide for themselves how to vindicate their claims in accordance with
law. There is, therefore, no reason shown to exist for divesting them of that right and vesting that
on the Central Government.
42. All the counsel for the victims have emphasised that vesting of the right in Central Government
is bad and unreasonable because there is conflict of interests between the Central Government and
the victims. It was emphasised that the conflict of interest has already prejudiced the victims in the
conduct of the case inasmuch as a compromise unacceptable to the victims has been entered into
in accordance with the order of this Court of 14th/15th February, 1989 without heating the victims.
This conflict of interest will continue, it was emphasised, to adversely affect the victims inasmuch as
section 9 of the Act read with clauses 5, 10 and 11 of the Scheme empower the Central Government
to process claims, determine the category into which these fall, determine the basis on which
damages will be payable to each category and determine the amount of compensation payable to
each claimant. Learned counsel urged that the right to a just, fair and reasonable procedure was
itself a guaranteed fundamental right under Article 14 of the Constitution. This included right to
natural justice. Reference was made to Olga Tellis's. case (supra) and S.L. Kapoor v. Jagmohan,
[1981] 1 SCR 746 at 753, 766. The right to natural justice is included in Article 14 Tulsi Ram v. Union
of India, [1985] Supp. 2 SCR 131. Reference was also made to Maneka Gandhi's, case (supra). It was
contended by counsel that the right to natural justice is the right to be heard by Court at the
pre-decisional stage, i.e., before any compromise is effected and accepted. Reference was made to
the decision of this Court in Swadeshi Cotton v. Union of India, [1981] 2 SCR 533. It was submitted
that natural justice is a highly effective tool devised by the Courts to ensure that a statutory
authority arrives at a just decision. It is calculated to act as a healthy check on the abuse of power.
Natural justice is not dispensable nor is it an empty formality. Denial of that right can and has led to
the miscar-
riage of justice in this case. According to counsel, if the victims had been given an opportunity to be
heard, they would, inter alia, have pointed out that the amount agreed to be paid by UCC was
hopelessly inadequate and that UCC, its officer and agents ought not to be absolved of criminal
liability, that the Central Government itself was liable to have been sued as a joint tort-feasor and,
according to counsel, had agreed to submit to a decree if found liable under the order dated 31st

December, 1985, that suits had been filed against the State of Madhya Pradesh, Shri Arjun Singh
and UCIL which said suits cannot be deemed to have been settled by the compromise/order of
14th/15th February, 1989. It was also pointed out that Union of India was under a duty to sue UCIL,
which it had failed and neglected to do. It was submitted that to the extent that the statute does not
provide for a pre-decisional hearing on the fairness of the proposed settlement or compromise by
Court, it is void as offending natural justice hence violative of Articles 14 and 21 of the Constitution.
Alternatively, it was contended by the counsel that since the statute neither expressly nor by
necessary implication bars the right to be heard by Court before any compromise is effected such a
right to a pre- decisional hearing by Court must be read into section 3(2)(b) of the Act. Admittedly,
it does not expressly exclude the right to a hearing by Court prior to any settlement being entered
into. Far from excluding such a right by necessary implication, having regard to the nature of the
rights affected, i.e., the right to life and personal liberty, such a right to hearing must be read into
the Act in order to ensure that justice is done to the victims, according to all the counsel. The Act
sets up a procedure different from the ordinary procedure established by law, namely, Civil
Procedure Code. But it was submitted that the Act should be harmoniously read with the provisions
of Civil Procedure Code and if it is not so read, then the Act in question would be unreasonable and
unfair. In this connection, reliance was placed on the provisions of Order I, Rule 4, Order 23, Rule
1 proviso, Order 23, Rule 3-9 and Order 32, Rule 7 of CPC and it was submitted that these are not
inconsistent with the Act. On the contrary these are necessary and complementary, intended to
ensure that there is no miscarriage of justice. Hence these must be held to apply to the facts and
circumstances of the case and the impugned Act must be read along with these provisions.
Assuming that the said provisions do not directly apply then, provisions analogous to the said
provisions must be read with section 3(2)(b) to make the Act reasonable, it was submitted. It was
urged that if these are not so read then the absence of such provisions would vest arbitrary and
unguided powers in the Central Government making section 3(2)(b) unconstitutional. The said
provisions are intended to ensure the machinery of accountability to the victims and to provide to
them, an opportunity to be heard by court before any compromise is arrived at. In this connection,
reference was made to Rule 23(3) of the Federal Rules of Civil Procedure in America which provides
for a hearing to the victims before a compromise is effected. The victims as plaintiffs in an Indian
court cannot be subjected to a procedure which is less fair than that provided by a US forum initially
chosen by the Government of India, it was urged.
43. Counsel submitted that Section 6 of the Act is unreasonable because it replaces an independent
and impartial Civil Court of competent jurisdiction by an Officer known as the Commissioner to be
appointed by the Central Government. No qualification, according to counsel, had been prescribed
for the appointment of a Commissioner and clause 5 of the Scheme framed under the Act vests in
the Commis- sioner the judicial function of deciding appeals against the order of the Deputy
Commissioner registering or refusing to register a claim. It was further submitted that clause 11(2)
of the Scheme is unreasonable because it replaces an independent and impartial civil court of
competent jurisdiction with the Central Government, which is a joint tort-feasor for the purpose of
determining the total amount of compensation to be apportioned for each category of claims and
the quantum of compensation payable for each type of injury or loss. It was submitted that the said
function is a judicial function and if there is any conflict of interest between the victims and Central
Government, vesting such a power in the Central Government amounts to making it a judge in its

own cause. It was urged that having regard to the fact that amount received in satisfaction of the
claims is ostensibly pre-determined, namely, 470 million dollars unless the order of 14th/15th
February is set aside which ought to be done, according to counsel, the Central Government would
have a vested interest in ensuring that the amount of damages to be disbursed does not exceed the
said amount. Even otherwise, according to counsel, the Government of India has been sued as a
joint tort-feasor, and as they would have a vested interest in depressing the quantum of damages,
payable to the victims. This would, according to counsel, result in a deliberate under-estimation of
the extent of injuries and compensation payable.
44. Clause 11(4) of the Scheme, according to counsel, is unreasonable inasmuch as it does not take
into account the claims of the victims to punitive and exemplary damages and damages for loss and
destruction of environment. Counsel submitted that in any event the expression "claims" in section
2(b) cannot be interpreted to mean claims against the Central Government, the State of Madhya
Pradesh, UCIL, which was not sued in suit No. 1113/86 and Shri Arjun Singh, all of whom have been
sued as joint tort feasors in relation to the liability arising out of the disaster. Counsel submitted that
if section 3 is to be held to be intra vires, the word "exclusive" should be severed from section 3 and
on the other hand, if section 3 is held ultra vires, then victims who have already filed suits or those
who had lodged claims should be entitled to continue their own suits as well as Suit No. 1113/86 as
plaintiffs with leave under Order 1 Rule 8. Counsel submitted that interim relief as decided by this
Court can be paid to the victims even otherwise also, according to counsel, under clause 10(2)(b) of
the Scheme.
45. Counsel submitted that the balance of $ 470 million after deducting interim relief as determined
by this Court should be attached. In any event, it was submitted that, it be declared that the word
"claim" in section 2 does not include claims against Central Govt. or State of Madhya Pradesh or
UCIL. Hence, it was urged that the rights of the victims to sue the Government of India, the State of
Madhya Pradesh or UCIL would remain unaffected by the Act or by the compromise effected under
the Act. Machinery to decide suit expeditiously has to be devised, it was submitted. Other suits filed
against UCC, UCIL, State of Madhya Pradesh and Arjun Singh should to be transferred to the
Supreme Court for trial and disposal, according to counsel. It was submitted that the Court should
fix the basis of damages payable to different categories, namely, death and disablement mentioned
under clause 5(2) of the scheme. Counsel submitted that this Court should set up a procedure which
would ensure that an impartial judge assisted by medical experts and assessors would adjudicate the
basis on which an individual claimant would fall into a particular category. It was also urged that
this Court should quantify the amount of compensation payable to each category of claimant in
clause 5(2) of the Scheme. This decision cannot, it was submitted, be left to the Central Government
as is purported to be done by clause 11(2) of the Scheme.
This Court must set up, it was urged, a trust with independent trustees to administer the trust and
trustees to be accountable to this Court. An independent census should be carried out of number of
claimants, nature and extent of injury caused to them, the category into which they fall.
Apportionment of amounts should be set aside or invested for future claimants, that is the category
in clause 5(2)(a) of the Scheme, which is, according to counsel, of utmost importance since the
injuries are said to be. carcinogenic and ontogenic and wide affecting persons yet unborn.

47. Shri Garg, further and on behalf of some of the victims counsel, urged before us that deprivation
of the rights of the victims and vesting of those fights in the State is violative of the rights of the
victims and cannot. be justified or warranted by the Constitution. Neither section 3 nor section 4 of
the Act gives any right to the victims; on the other hand, it is a complete denial of access to justice
for the victims, according to him. This, according to counsel, is arbitrary. He also submitted that
section 4 of the Act, as it stands, gives no right to the victims and as such even assuming that in
order to fight for the rights of the victims, it was necessary to substitute the victims even then in so
far as the victims have been denied the right of say, in the conduct of the proceedings, this is
disproportionate to the benefit conferred upon the victims. Denial of rights to the victims is so great
and deprivation of the right to natural justice and access to justice is so tremendous that judged by
the well settled principles by which yardsticks provisions like these should be judged in the
constitutional framework of this country, the Act is violative of the fundamental rights of the vic-
tims. It was further submitted by him that all the rights of the victims by the process of this Act, the
right of the victims to enforce full liability against the multinationals as well as against the Indian
Companies, absolute liability and criminal liability have all been curtailed.
48. All the counsel submitted that in any event, the criminal liability cannot be subject matter of this
Act. Therefore, the Government was not entitled to agree to any settlement on the ground that
criminal prosecution would be withdrawn and this being a part of the consideration or inducement
for settling the civil liability, he submitted that the settlement arrived at on the 14th/l5th February,
1989 as recorded in the order of this Court is wholly unwarranted, unconstitutional and illegal.
49. Mr. Garg additionally further urged that by the procedure of the Act, each individual claim had
to be first determined and the Government could only take over the aggregate of all individual
claims and that could only be done by aggregating the individual claims of the victims. That was not
done, according to him. Read in that fashion, according to Shri Garg, the conduct of the Government
in implementing the Act is wholly improper and unwarranted. It was submitted by him that the
enforcement of the fight of the victims without a just, fair and reasonable procedure which is vitally
necessary for representing the citizens or victims was bad. It was further urged by him that the
Bhopal gas victims have been singled out for hostile discrimination resulting in total denial of all
procedures of approach to competent courts and tribunals. It was submitted that the Central
Government was incompetent to represent the victims in the litigations or for enforcement of the
claims. It was then submitted by him that the claims of the victims must be enforced fully against
the Union Carbide Corporation carrying on commercial activities for profit resulting in unprec-
edented gas leak disaster responsible for a large number of deaths and severe injuries to others. It
was submitted that the liability of each party responsible, including the Government of India, which
is a joint tort-feasor along with the Union Carbide, has to be ascertained in appropriate proceedings.
It was submitted on behalf of the victims that Union of India owned 22% of the shares in Union
Carbide and therefore, it was incompetent to represent the victims. There was conflict of interest
between the Union of India and the Union Carbide and so Central Government was incompetent.
It is submitted that pecuniary interest howsoever small disqualifies a person to be a judge in his own
cause. The settlement accepted by the Union of India, according to various counsel is vitiated by the
pecuniary bias as holders of its shares to the extent of 22%.

50. It was submitted that the pleadings in the court of the United States and in the Bhopal court
considered in the context of the settlement order of this Court accepted by the Union of India
establish that the victims' individuality were sacrificed wontedly and callously and, therefore, there
was violation, according to some of the victims, both in the Act and in its implementation of Articles
14, 19(l)(g) and 21 of the Constitution.
51. The principles of the decision of this Court in M.C. Mehta & Anr. v. Union of India, [1987] 1 SCR
819 must be so interpreted that complete justice is done and it in no way excludes the grant of
punitive damages for wrongs justifying deterrents to ensure the safety of citizens in free India. No
multinational corporation, according to Shri Garg, can claim the privilege of the protection of Indian
law to earn profits without meeting fully the demands of civil and criminal justice administered in
India with this Court functioning as the custodian. Shri Garg urged that the liability for damages, in
India and the Third World Coun- tries, of the multinational companies cannot be less but must be
more because the persons affected are often without remedy for reasons of inadequate facilities for
protection of health or property. Therefore, the damages sustainable by Indian victims against the
multinationals dealing with dangerous gases without proper security and other measures are far
greater than damages suffered by the citizens of other advanced and developed countries. It is,
therefore, necessary to ensure by damages and deterrent remedies that these multinationals are
not tempted to shift dangerous manufacturing operations intended to advance their strategic
objectives of profit and war to the Third World Countries with little respect for the right to life and
dignity of the people of sovereign third world countries. The strictest enforcement of punitive
liability also serves the interest of the American people. The Act, therefore, according to Shri Garg is
clearly unconstitutional and therefore, void.
52. It was urged that the settlement is without jurisdiction. This Court was incompetent to grant
immunity against criminal liabilities in the manner it has purported to do by its order dated
14th/l5th February, 1989, it was strenuously suggested by counsel. It was further submitted that to
hold the Act to be valid, the victims must be heard before the settlement and the Act can only be
valid if it is so interpreted. This is necessary further, according to Shri Garg, to lay down the scope of
heating. Shri Garg also drew our attention to the scheme of disbursement of relief to the victims. He
submitted that the scheme of disbursement is unreasonable and discriminatory because there is no
procedure which is just, fair and reasonable in accordance with the provisions of Civil Procedure
Code. He further submitted that the Act does not lay down any guidelines for the conduct of the
Union of India in advancing the claims of the victims. There were no essential legislative guidelines
for determining the rights of the victims, the conduct of the proceedings on behalf of the victims and
for the relief- claimed. Denial of access to justice to the victims through an impartial judiciary is so
great a denial that it can only be consistent with the situation which calls for such a drastic
provision. The present circumstances were not such. He drew our attention to the decision of this
Court in Basheshar v. Income Tax Commissioner, AIR 1959 SC 149; in Re Special Courts Bill, [1979]
2 SCR 476; A.R. Antulay v. R.S. Nayak & Anr., [1988] 2 SCC 602; Ram Krishna Dalmia v. Ten-
dulkar, [1955] SCR 279; Ambika Prasad Mishra etc. v. State of U.P. & Ors. etc., [1960] 3 SCR 1159
and Bodhan Chowdhary v. State of Bihar, [1955] 1 SCR 1045. Shri Garg further submitted that
Article 21 must be read with Article 51 of the Constitution and other directive principles. He drew
our attention to Lakshmi Kant Pandey v. Union of India, [1984] 2 SCR 795; M/s Mackinnon

Machkenzie & Co. Ltd. v. Audrey D'Costa and Anr., [1987] 2 SCC 469; Sheela Barse v. Secretary,
Children Aid Society & Ors., [1987] 1 SCR 870. Shri Garg submitted that in india, the national
dimensions of human rights and the international dimensions are both congruent and their
enforcement is guaranteed under Articles 32 and 226 to the extent these are enforceable against the
State, these are also enforceable against transnational corporations inducted by the State on
conditions of due observance of the Constitution and all laws of the land. Shri Garg submitted that
in the background of an unprecedented disaster resulting in extensive damage to life and property
and the destruction of the environment affecting large number of people and for the full protection
of the interest of the victims and for complete satisfaction of all claims for compensation, the Act
was passed empowering the Government of India to take necessary steps for processing of the
claims and for utilisation of disbursal of the amount received in satisfaction of the claims. The
Central Government was given the exclusive right to represent the victims and to act in place of, in
United States or in india, every citizen entitled to make a claim. Shri Garg urged that on a proper
reading of section 3(1) of the Act read with section 4 exclusion of all victims for all purpose is
incomplete and the Act is bad. He submitted that the decree for adjudication of the Court must
ascertain the magnitude of the damages and should be able to grant reliefs required by law under
heads of strict liability, absolute liability and punitive liability.
53. Shri Garg submitted that it is necessary to consider that the Union of India is liable for the torts.
In several decisions to which Shri Garg grew our attention, it has been clarified that Government is
not liable only if the tortious act complained has been committed by its servants in exercise of its
sovereign powers bY which it is meant powers that can be lawfully exercised under sovereign rights
only vide Nandram Heeralal v. Union of India & Anr., AIR 1978 M.P. 209 at p. 212. There is a real
and marked distinction between the sovereign functions of the government and those which are
non-sovereign and some of the functions that fall in the latter category are those connected with
trade, commerce, business and industrial undertakings. Sovereign functions are such acts which are
of such a nature as cannot be performed by a private individual or association unless powers are
delegated by sovereign authority of state.
54. According to Shri Garg, the Union and the State Governments under the Constitution and as per
laws of the Factories, Environment Control, etc. are bound to exercise control on the factories in
public interest and public purpose. These functions are not sovereign func-
tions, according to Shri Garg, and the Government in this case was guilty of negligence. In support
of this, Shri Garg submitted that the offence of negligence on the part of the Govt. would be evident
from the fact that--
(a) the Government allowed the Union Carbide factory to be installed in the heart of
the city;
(b) the Government allowed habitation in the front of the factory knowing that the
most dangerous and lethal gases were being used in the manufacturing processes;

(c) the gas leakage from this factory was a common affair and it was agitated
continuously by the people journalists and it was agitated in the Vidhan Sabha right
from 1980 to 1984. These features firmly proved, according to Shri Garg, the grossest
negligence of the governments. Shri Garg submitted that the gas victims had legal
and moral right to sue the governments and so it had full right to implead all the
necessary and proper parties like Union Carbide, UCIL, and also the then Chief
Minister Shri Arjun Singh of the State. He drew our attention to Order 2, rule 3, of
the Civil Procedure Code. In suits on joint torts, according to Shri Garg, each of the
joint tort feasors is responsible for the injury sustained for the common acts and they
can all be sued together. Shri Garg's main criticism has been that the most crucial
question of corporate responsibility of the people's right to life and their right to
guard it as enshrined in Article 21 of the Constitution were sought to be gagged by the
Act. Shri Garg tried to submit that this was an enabling Act only but not an Act which
deprived the victims of their right to sue. He submitted that in this Act, there is denial
of natural justice both in the institution under section 3 and in the conduct of the suit
under section 4. It must be seen that justice is done to all (R. Viswanathan v.
Rukh-ul-Mulk Syed Abdul Wajid, [1963] 3 SCR 22). It was urged that it was
necessary to give a reasonable notice to the parties. He referred to M. Narayanan
Nambiar v. State of Kerala, [1963] Supp. 2 SCR 724.
55. Shri Shanti Bhushan appearing for Bhopal Gas Peedit Mahila Udyog Sangathan submitted that if
the Act is to be upheld, it has to be read down and construed in the manner urged by him. It was
submitted that when the Bhopal Gas disaster took place, which was the worst industrial disaster in
the world which resulted in the deaths of several thousands of people and caused serious injuries to
lakhs others, there arose a right to the victims to get not merely damages under the law of the torts
but also arose clearly, by virtue of right to life guaranteed as fundamental right by Article 21 of the
Constitution a right to get full protection of life and limb. This fundamental right also, according to
Shri Shanti Bhushan, embodied within itself a right to have the claim adjudicated by the estab-
lished courts of law. It is well settled that right of access to courts in respect of violation of their
fundamental rights itself is a fundamental right which cannot be denied to the people. Shri Shanti
Bhushan submitted that there may be some justification for the Act being passed. He said that the
claim against the Union Carbide are covered by the Act. The claims of the victims against the Central
Government or any other party who is also liable under tort to the victims is not covered by the Act.
The second point that Shri Shanti Bhushan made was that the Act so far as it empowered the Central
Government to represent and act in place of the victims is in respect of the civil liability arising out
of disaster and not in respect of any right in respect of criminal liability. The Central Govt.,
according to Shri Shanti Bhushan, cannot have any right or authority in relation to any offences
which arose out of the disaster and which resulted in criminal liability. It was submitted that there
cannot be any settlement or compromise in relation to non-compoundable criminal cases and in
respect of compoundable criminal cases the legal right to compound these could only be possessed
by the victims alone and the Central Government could not compound those offences on their
behalf. It was submitted by Shri Shanti Bhushan that even this Court has no jurisdiction whatsoever
to transfer any criminal proceedings to itself either under any provision of the Constitution or
under any provision of the Criminal Procedure Code or under any other provision of law and,

therefore, if the settlement in question was to be treated not as a compromise but as an order of the
Court, it would be without jurisdiction and liable to be declared so on the principles laid down,
according to Shri Bhushan, by this Court in Antulay's case (supra). Shri Shanti Bhushan submitted
that even if under the Act, the Central Government is considered to be able to represent the victims
and to pursue the litigation on their behalf and even to enter into compromise on their behalf, it
would be a gross violation of the constitutional rights of the victims to enter into a settlement with
the Union Carbide without giving the victims opportunities to express their views about the fairness
or adequacy of the settlement before any court could permit such a settlement to be made.
56. Mr. Shanti Bhushan submitted that the suit which may be brought by the Central Government
against Union Carbide under section 3 of the Act would be a suit of the kind contemplated by the
Explanation to Order 23, rule 3 of the Code of Civil Procedure since the victims are not parties and
yet the decree obtained in the suit would bind them. It was, therefore, urged by Shri Shanti Bhushan
that the provisions of Section 3(1) of the Act merely empowers the Central Government to enter
into a compromise but did not lay down the procedure which was to be followed for entering into
any compromise. Therefore, there is nothing which is inconsistent with the provisions of Order 23
Rule 3-B of the CPC to which the provisions Section 11 of the Act be applied. If, however, by any
stretch of argument the provisions of the Act could be construed so as to override the provisions of
Order 23 Rule 3-B CPC, it was urged, the same would render the provisions of the Act violative of
the victims' fundamental rights and the actions would be rendered unconstitutional. If it
empowered the Central Government to compromise the victims' rights, without even having to
apply the principles of natural justice, then it would be unconstitutional and as such bad. Mr.
Shanti Bhushan, Ms. Jaising and Mr. Garg submitted that these procedures must be construed in
accordance with the provisions contained in Order 23 Rule 3-B CPC and an opportunity must be
given to those whose claims are being compromised to show to the court that the compromise is not
fair and should not accordingly be permitted by the court. Such a hearing in terms, according to
counsel, of Order 23 Rule 3-B CPC has to be before the compromise is entered into. It was then
submitted that section 3 of the Act only empowers the Central Government to represent and act in
place of the victims and to institute suits on behalf of the victims or even to enter into compromise
on behalf of the victims.
57. The Act does not create new causes of action create special courts. The jurisdiction of the civil
court to entertain suit would still arise out of section 9 of the CPC and the substantive cause of
action and the nature of the reliefs available would also continue to remain unchanged. The only
difference produced by the provisions of the Act would be that instead of the suit being filed by the
victims themselves the suit would be filed by the Central Government on their behalf.
58. Shri Shanti Bhushan then argued that the cause of action of each victim is separate and entitled
him to bring a suit for separate amount according to the damages suffered by him. He submitted
that even where the Central Government was empowered to file suits on behalf of all the victims it
could only ask for a decree of the same kind as could have been asked for by the victims themselves,
namely, a decree awarding various specified amounts to different victims whose names had to be
disclosed. According to Shri Shanti Bhushan, even if all the details were not available at the time
when the suit was filed, the details of the victims' damages had to be procured and specified in the

plaint before a proper decree could be passed in the suit. even if the subject matter of the suit had to
be compromised between the Central Government and the Union Carbide the compromise had to
indicate as to what amount would be payable to each victim, in addition to the total amount which
was payable by Union Carbide, submitted Shri Shanti Bhushan. It was submitted that there was
nothing in the Act which permitted the Central Government to enter into any general compromise
with Union Carbide providing for the lumpsum amount without disclosure as to how much amount
is payable to each victim.
59. If the Act in question had not been enacted, the victims would have been entitled to not only sue
Union Carbide themselves but also to enter into any compromise or settlement of their claims with
the Union Carbide immediately. The provisions of the Act, according to Mr. Shanti Bhushan,
deprive the victims of their legal right and such deprivation of their rights and creation of a
corresponding right in the Central Government can be treated as reasonable only if the deprivation
of their rights imposed a corresponding liability on the Central Government to continue to pay
such interim relief to the victims as they might be entitled to till the time that the Central
Government is able to obtain the whole amount of compensation from the Union Carbide. He
submitted that the deprivation of the right of the victims to sue for their claims and denial of access
to justice and to assert their claims and the substitution of the Central Government to carry on the
litigation for or on their behalf can only be justified, if and only if the Central Government is
enjoined to provide for such interim relief or continue to provide in the words of Judge Keenan, as a
matter of fundamental human decency, such interim relief, necessary to enable the victims to fight
the battle. Counsel submitted that the Act must be so read. Shri Shanti Bhushan urged that if the Act
is construed in such a manner that it did not create such an obligation on the Central Government,
the Act cannot be upheld as a reasonable provision when it deprived the victims of their normal
legal rights of immediately obtaining compensation from Union Carbide. He referred to section
10(b) of the Act and clause 10 and 11(1) of the Scheme to show that the legislative policy underlying
the Bhopal Act clearly contemplated payment of interim relief to the victims from time to time till
such time as the Central Government was able to recover from Union Carbide full amount of
compensation from which the interim reliefs paid by the Central Government were to be deducted
from the amount payable to them by way of final disbursal of the amounts recovered.
60. The settlement is bad, according to Shri Shanti Bhushan if part of the bargain was giving up of
the criminal liability against UCIL and UCC. Shri Shanti Bhushan submitted that this Court should
not hesitate to declare that the settlement is bad because the fight will go on and the victims should
be provided reliefs and interim compensation by the Central Government to be reimbursed
ultimately from the amount to be realised by the Central Government. This obligation was over and
above the liability of the Central Government as a joint tort-feasor, according to Shri Shanti
Bhushan.
61. Shri Kailash Vasdev, appearing for the petitioners in Writ Petition No. 155 1/86 submitted that
the Act displaced the claimants in the matter of their right to seek redressal and remedies of the
actual injury and harm caused individually to the claimants. The Act in question by replacing the
Central Government in place of the victims. by conferment of exclusive right to sue in place of
victims, according to him, contravened the procedure established by law. The right to sue for the

wrong done to an individual was exclusive to the individual. It was submitted that under the civil
law of the country, individuals have rights to enforce their claims and any deprivation would place
them into a different category from the other litigants. The right to enter into compromise, it was
further submitted, without consultation of the victims, if that is the construction of section 3 read
with section 4 of the Act, then it is violative of procedure established by law. The procedure
substituted, if that be the construction of the Act, would be in violation of the principles of natural
justice and as such bad. It was submitted that the concept of 'parens patriae' would not be applicable
in these cases. It was submitted that traditionally, sovereigns can sue under the doctrine of 'parens
patriae' only for violations of their "quasi-sovereign" interests. Such interests do not include the
claims of individual citizens. It was submitted that the Act in question is different from the concept
of parens patriae because there was no special need to be satisfied and a class action, according to
Shri Vasdev, would have served the same purpose as a suit brought under the statute and ought to
have been preferred because it safeguarded claimants' right to procedural due process. In addition, a
suit brought under the statute would threaten the victims' substantive due process rights. It was
further submitted that in order to sustain an action, it was necessary for the Government of India
to have standing
62. Counsel submitted that 'parens patriae' has received no judicial recognition in this country as a
basis for recovery of money damages for injuries suffered by individuals. He may be right to that
extent but the doctrine of parens patriae has been used in India in varying contexts and
contingencies.
63. We are of the opinion that the Act in question was passed in recognition of the right of the
sovereign to act as parens patriae as contended by the learned Attorney General. The Government of
India in order to effectively safeguard the rights of the victims in the matter of the conduct of the
case was entitled to act as parens patriae, which position was reinforced by the statutory provisions,
namely, the Act. We have noted the several decisions referred to hereinbefore, namely,
Bhudhkaran Chankhani v. Thakur Prasad Shad, (supra); Banku Behary Mondal v. Banku Behari
Hazra, (supra); Medai Dalavoi T. Kumaraswami Mudaliar v. Medai Dalavai Rajammal, (supra) and
to the decision of this Court in Mahant Ram Saroop Dasji v. S.P. Sahi, (supra) and the decision of
the American Supreme Court in Alfred Schnapp v. Puerto Rico, (supra). It has to be borne in mind
that conceptually and jurisprudentially, the doctrine of parens patriae is not limited to
representation of some of the victims outside the territories of the country. It is true that the
doctrine has been so utilised in America so far. In our opinion, learned Attorney General was right
in contending that where citizens of a country are victims of a tragedy because of the negligence of
any multinational, a peculiar situation arises which calls for suitable effective machinery to
articulate and effectuate the grievances and demands of the victims, for which the conventional
adversary system would be totally inadequate. The State in discharge of its sovereign obligation
must come forward. The Indian state because of its constitutional commitment is obliged to take
upon itself the claims of the victims and to protect them in their hour of need. Learned Attorney
General was also right in submitting that the decisions of the Calcutta, Madras and U.S. Supreme
Court clearly indicate that parens patriae doctrine can be invoked by sovereign state within India,
even if it be contended that it has not so far been invoked inside India in respect of claims for
damages of victims suffered at the hands of the multinational. In our opinion, conceptually and

jurisprudentially, there is no bar on the State to assume responsibilities analogous to parens patriae
to discharge the State's obligations under the Constitution. What the Central Government has done
in the instant case seems to us to be an expression of its sovereign power. This power is plenary
and inherent in every sovereign state to do all things which promote the health, peace, morals,
education and good order of the people and tend to increase the wealth and prosperity of the state.
Sovereignty is difficult to define. See in this connection, Weaver on Constitional Law, p. 490. By the
nature of things, the state sovereignty in these matters cannot be limited. It has to be adjusted to the
conditions touching the common welfare when covered by legislative enactments. This power is to
the public what the law of necessity is to the individual. It is comprehended in the maxim salus
populi suprema lex--regard for public welfare is the highest law. It is not a rule, it is an evolution.
This power has always been as broad as public welfare and as strong as the arm of the state, this can
only be measured by the legislative will of the people, subject to the fundamental rights and
constitutional limitations. This is an emanation of sovereignty subject to as aforesaid. Indeed, it is
the obligation of the State to assume such responsibility and protect its citizens. It has to be borne in
mind, as was stressed by the learned Attorney General, that conferment of power and the manner of
its exercise are two different matters. It was submitted that the power to conduct the suit and to
compromise, if necessary, was vested in the Central Government for the purpose of the Act. The
power to compromise and to conduct the proceedings are not uncanalised or arbitrary. These were
clearly exercisable only in the ultimate interests of the victims. The possibility of abuse of a statute
does not impart to it any element of invalidity. In this connection, the observations of Viscount
Simonds in Belfast Corporation v. O.D. Commission, [1950] AC 490 at 520-21 are relevant where it
was emphasised that validity of a measure is not be determined by its application to particular cases.
This Court in Collector of Customs, Madras v. Nathella Sampathu Chetty, [1962] 3 SCR 786 at 825
emphasised that the constitutional validity of the statute would have to be determined on the basis
of its provisions and on the ambit of its operation as reasonably construed. It has to be borne in
mind that if upon so judged it passes the test of reasonableness, then the possibility of the powers
conferred being improperly used is no ground for pronouncing the law itself invalid. See in this
connection also the observations in P.J. Irani v. State of Madras, [1962] 2 SCR 169 at 178 to 181 and
D.K. Trivedi v. State of Gujarat, [1986] Supp. SCC 20 at 60-61
64. Sections 3 and 4 of the Act should be read together as contended by the learned Attorney
General, along with other provisions of the Act and in particular sections 9 and 11 of the Act. These
should be appreciated in the context of the object sought to be achieved by the Act as indicated in
the Statement of Objects and Reasons and the Preamble to the Act. The Act was so designed that the
victims of the disaster are fully protected and the claims of compensation or damages for loss of life
or personal injuries or in' respect of other matters arising out of or connected with the disaster are
processed speedily, effectively, equitably and to the best advantage of the claimants. Section 3 of the
Act is subject to other provisions of the Act which includes sections 4 and 11. Section 4 of the Act
opens with non- obstante clause, vis-a-vis, section 3 and therefore, overrides section 3. Learned
Attorney General submitted that the right of the Central Government under section 3 of the Act was
to represent the victims exclusively and act in the place of the victims. The Central Government, it
was urged, in other words, is substituted in the place of 'the victims and is the dominus litis. Learned
Attorney General submitted that the dominus litis carries with it the right to conduct the suit in the
best manner as it deems fit, including, the right to withdraw and right to enter into compromise.

The right to withdraw and the right to compromise conferred by section 3(2) of the Act cannot be
exercised to defeat the rights of the victims. As to how the rights should be exercised is guided by
the objects and the reasons contained in the Preamble, namely, to speedily and effectively process
the claims of the victims and to protect their claims. The Act was passed replacing the Ordinance at
a time when many private plaintiffs had instituted complaints/suits in the American Courts. In such
a situation, the Government of India acting in place of the victims necessarily should have right
under the statute to act in all situations including the position of withdrawing the suit or to enter
into compromise. Learned Attorney General submitted that if the UCC were to agree to pay a lump
sum amount which would be just, fair and equitable, but insists on a condition that the proceedings
should be completely withdrawn, then necessarily there should be power under the Act to so
withdraw. Accord- ing to him, therefore, the Act engrafted a provision empow- ring the Government
to compromise. The provisions under section 3(2)(b) of the Act to enter into compromise was
consistent with the powers of dominus litis. In this connection, our attention was drawn to the
definition of 'Dominus Litis' in Black's Law Dictionary, Fifth Edition, P. 437, which states as follows:
"'Dominus litis'. The master of the suit; i.e. the person who was really and directly
interested in the suit as a party, as distinguished from his attorney or advocate. But
the term is also applied to one who, though not originally a party, has made himself
such, by intervention or otherwise, and has assumed entire control and
responsibility for one side and is treated by the Court as liable for costs. Vir- ginia
Electric & Power Co, v. Bowers, ISI Va., 542, 25 S.E. 2d 361,263".
65. Learned Attorney General sought to contend that the victims had not been excluded entirely
either in the conduct of proceedings or in entering into compromise, and he referred to the
proceedings in detail emphasising the participation of some of the victims at some stage. He drew
our attention to the fact that the victims had filed separate consolidated complaints in addition to
the complaint filed by the Government of India. Judge Keenan of the Distt. Court of America had
passed orders permitting the victims to be represented not only 'by the private Attorneys but also by
the Govt. of India. Hence, it was submitted that it could not be contended that the victims had been
excluded. Learned Attorney General further contended that pursuant to the orders passed by Judge
Keenan imposing certain conditions against the Union Carbide and allowing the motion for forum
non convenience of the UCC that the suit came back to India and was instituted before the Distt.
Court of Bhopal. In those circumstances, it was urged by the learned Attorney General that the
private plaintiffs who went to America and who were represented by the contingency lawyers fully
knew that they could also have joined in the said suit as they were before the American Court along
with the Govt. of India. It was contended that in the proceedings at any point of time or stage
including when the compromise was entered into, these private plaintiffs could have participated in
the court proceedings and could have made their representation, if they so desired. Even in the
Indian suits, these private parties have been permitted to continue as parties represented by
separate counsel even though the Act empowers the Union to be the sole plaintiff. Learned Attorney
General submitted that Section 4 of the Act clearly enabled the victims to exercise their right of
participation in the proceedings. The Central Govt. was enjoined to have due regard to any matter
which such person might require to be urged. Indeed, the learned Attorney General urged very
strenuously that in the instant case, Zehreeli Gas Kand Sangharsh Morcha and Jana Swasthya

Kendra (Bhopal) had filed before the Distt. Judge, Bhopal, an application under Order I Rule 8 read
with Order I Rule 10 and Section 15 1 of the CPC for their-intervention on behalf of the victims. They
had participated in the hearing before the learned Distt. Judge, who referred to their intervention in
the order. It was further emphasised that when the UCC went up in revision to the High Court of
Madhya Pradesh at Jabalpur against the interim compensation ordered to be paid by the Distt.
Court, the intervener through its Advocate, Mr. Vibhuti Jha had participated in the proceedings. The
aforesaid Association had also intervened in the civil appeals preferred pursuant to the special leave
granted by this Court to the Union of India and Union Carbide against the judgment of the High
Court for interim compensation. In those circumstances, it was submitted that there did not exist
any other gas victim intervening in the proceedings, claiming participation under Section 4. Hence,
the right to compromise provided for by the Act, could not be held to be violative of the principles
of natural justice. According to the learned Attorney General, this Court first proposed the order to
counsel in court and after they agreed thereto, dictated the order on 14th February, 1989. On 15th
February, 1989 after the Memorandum of Settlement was filed pursuant to the orders of the court,
further orders were passed. The said Association, namely, Zehreeli Gas Kand Sangharsh Morcha was
present, according to the records, in the Court on both the dates and did not apparently object to the
compromise. Mr. Charanlal Sahu, one of the petitioners in the writ petition, had watched the
proceedings and after the Court had passed the order on 15th February, 1989 mentioned that he had
filed a suit for Rs. 100 crores. Learned Attorney General submitted that Mr. Sahu neither protested
against the settlement nor did he make any prayer to be heard. Shri Charan Lal Sahu, in the petition
of opposition in one of these matters have prayed that a sum of Rs. 100 million should be paid over
to him for himself as well as on behalf of those victims whom he claimed to represent. In the
aforesaid background on the construction of the Section, it was urged by the learned Attorney
General that Section 3 of the Act cannot be held to be unconstitutional. The same provided a just,
fair and reasonable procedure and enabled the victims to participate in the proceedings at all
stages--those who were capable and willing to do so. Our attention was drawn to the fact that
Section 11 of the Act provides that the provisions of the Act shall have effect notwithstanding
anything inconsistent therewith contained in any other enactment other than the Act. It was,
therefore, urged that the provisions of the Civil Procedure Code stood overridden in respect of the
areas covered by the Act, namely, (a) representation, (b) powers of representation; and (c) com-
promise.
66. According to the learned Attorney General, the Act did not violate the principles of natural
justice. The provisions of the CPC could not be read into the Act for Section 11 of the Act provides
that the application of the provision of the Civil Procedure Code in so far as those were inconsistent
with the Act should be construed as overridden in respect of areas covered by it. Furthermore,
inasmuch as Section 4 had given a qualified right of participation to the victims, there cannot be
any question of violation of the principles of natural justice. The scope of the application of the
principles of natural justice cannot be judged by any strait jacket formula. According to him, the
extension of the principles of natural justice beyond what is provided by the Act in Sections 3 & 4,
was unwarranted and would deprive the provisions of the Statute of their efficacy in relation to the
achievement of 'speedy relief', which is the object intended to be achieved. He emphasised that the
process of notice, consultation and exchange of information, informed decision-making process, the
modalities of assessing a consensus of opinion would involve such time that the Govt. would be

totally unable to act in the matter efficiently, effectively and purposefully on behalf of the victims for
realisation of the just dues of the victims. He further urged that the Civil Procedure Code before its
amendment in 1976 did not have the provisions of Order l Rules 8(4), (5) & (6) and Explanations
etc. nor Order XXIII Rules 3A and 3B. Before the amendment the High Court had taken a view
against the requirement of hearing the parties represented in the suit under Order 1, Rule 8 before it
before settling or disposing of the suit. Our attention was drawn to the decision of the Calcutta High
Court in Chintaharan Ghose & Ors. v. Gujaraddi Sheik & Ors., AIR 1951 Cal. 456 at 457-459,
wherein it was held by the learned Single Judge that the plaintiff in a representative suit had right to
compromise subject to the conditions that the suit was properly filed in terms of the provisions of
that Rule and the settlement was agreed bona fide. Learned Attorney General in that context
contended that when the suit was validly instituted, the plaintiff had a right to compromise the suit
and there need not be any provision for notice to the parties represented before entering into any
compromise. Reliance was placed on the decision of the Allahabad High Court in Ram Sarup v.
Nanak Ram, AIR 1952 Allahabad 275, where it was held that a compromise entered into in a suit
filed under Order 1 Rule 8 of the CPC was binding on all persons as the plaintiffs who had instituted
the suit in representative capacity had the authority to compromise. He further submitted that most,
if not all, of the victims had given their powers of attorney which were duly filed in favour of the
Union of India. These powers or attorney have neither been impeached nor revoked or withdrawn.
By virtue of the powers of attorney the Union of India, it was stated, had the authority to file the
suits and to compromise the interests of the victims if so required. The Act in question itself
contemplates settlement as we have noted, and a settlement would need a common spokesman.
67. It was submitted that the Govt. of India as the statutory representative discharged its duty and is
in a centralised position of assessing the merits and demerits of any proposed course of action. So
far as the act of compromise, abridging or curtailing the ambit of the rights of the victims, it was
submitted that in respect of liabilities of UCC & UCIL, be it corporate, criminal or tortious, it was
open to an individual to take a decision of enforcing the liability to its logical extent or stopping
short of it and acceding to a compromise. Just as an individual can make an election in the matter
of adjudication of liability so can a statutory representative make an election. Therefore, it is
wholly wrong to contend, it was urged, that Section 3(ii)(b) is inconsistent with individual's right of
election and at the same time it provides the centralised decision-making processes to effectively
adjudge and secure the common good. It was only a central agency like the Govt. of India, who could
have a perspective of the totality of the claims and a vision of the problems of individual plaintiffs in
enforcing these, it was urged. It was emphasised that it has to be borne in mind that a compromise
is a legal act. In the present case, it is a part of the conduct of the suit. It is, therefore, imperative
that the choice of compromise is made carefully, cautiously and with a measure of discretion, it was
submitted. But if any claimant wished to be associated with the conduct of the suit, he would
necessarily have been afforded an opportunity for that purpose, according to the learned Attorney
General. In this connection, reference was made to Section 4 of the Act. On the other hand, an
individual who did not participate in the conduct of the suit and who is unaware of the various
intricacies of the case, could hardly be expected to meaningfully partake in the legal act of
settlement either in conducting the proceedings or entering into compromise, it was urged. In those
circumstances, the learned Attorney General submitted that the orders of 14-15th February, 1989
and the Memorandum of Settlement were justified both under the Act and the Constitution.

According to him, the terms of Settlement might be envisaged as pursuant to Section 3(ii)(b) of the
Act, which was filed according to him pursuant to judical direction. He sought more than once to
emphasise, that the order was passed by the highest Court of the land in exercise of extraordinary
jurisdiction vested in it under the Constitution.
68. Our attention was drawn to several decisions for the power of this Court under Articles 136 and
142 of the Con- stitution. Looked closely at the provisions of the Act, it was contended that taking
into consideration all the factors, namely, possibilities of champerty, exploitation, unconscionable
agreements and the need to represent the dead and the disabled, the course of events would reveal a
methodical and systematic protection and vindication of rights to the largest possible extent. It was
observed that the rights are indispensably valuable possessions, but the rights is something which a
man can stand on, something which must be demanded or insisted upon without embarrassment
or shame. When rights are curtailed, permissibility of such a measure can be examined only upon
the strength, urgency and the preeminence of rights and the largest good of the largest number
sought to b,e served by curtailment. Under the circumstances which were faced by the victims of
Bhopal gas tragedy, the justifying basis, according to the learned Attorney General, or ground of
human rights is that every person morally ought to have something to which he or she is entitled. It
was emphasised that the Statute aimed at it. The Act provides for assumption of rights to sue with
the aim of securing speedy, effective and equitable results to the best advantage of the claimants.
The Act and the scheme, according to the learned Attorney General, sought to translate that
profession into a system of faith and possible association when in doubt. Unless such a profession is
shown to be unconscionable under the circumstances or strikes judicial conscience as a subversion
of the objects of the Act, a declaredly fair, just and equitable exercise of a valid power would not be
open to challenge. He disputed the submission that the right to represent victims postulated as
contended mainly by the counsel on behalf of the petitioners, a pre-determination of each individual
claim as a sine qua non for proceeding with the action. Such a construction would deplete the case of
its vigour, urgency and sense of purpose, he urged. In this case, with the first of the cases having
been filed in U.S. Federal Court on December 7, 1984 a settlement would have been reached for a
much smaller sum to the detriment of the victims. Learned Attorney General emphasised that this
background has to be kept in mind while adjudging the validity of the Act and the appropriateness
of the conduct of the suit in the settlement entered into.
69. He submitted that it has to be borne in mind that if the contentions of the petitioners are
entertained, the rights theoretically might be upheld but the ends of justice would stand sacrificed.
It is in those circumstances that it was emphasised that the claimant is an individual and is the best
person to speak about his injury. The knowledge in relation to his injury is relevant for the purpose
of compensation, whose distribution and disbursement is the secondary stage. It is fallacious to
suggest that the plaint was not based upon necessary data. He insisted that the figures mentioned in
the plaint although tentative were not mentioned without examination or analysis.
70. It was further submitted by the learned Attorney General that while the Govt. of India had
proceeded against the UCC, it had to represent the victims as a class and it was not possible to
define each individual's right after careful scrutiny, nor was it necessary or possible to do so in a
mass disaster case. The settlement was a substitute for adjudication since it involved a process of

reparation and relief. The relief and reparation cannot be said to be irrelevant for the purpose of the
Act. It was stated that the alleged liability of the Govt. of India or any claim asserted against the
alleged joint tort-feasor should not be allowed to be a constraint on the Govt. of India to protect the
interests of its own citizens. Any counter-claim by UCC or any claim by a citizen against the Govt.
cannot vitiate the action of the State in the collective interest of the victims, who are the citizens.
Learned Attorney General submitted that any industrial activity, normally, has to be licensed. The
mere regulation of any activity does not carry with it legally a presumption of liability for injury
caused by the activity in the event of a mishap occurring in the course of such an activity. In any
event, the learned Attor- ney General submitted the Govt. of India enjoys sovereign immunity in
accordance with settled law. If this were not the case, the Sovereign will have to abandon all
regulatory functions including the licensing of drivers of automobiles. Hence, we have to examine
the question whether even on the assumption that there was negligence on the part of the Govt. of
India in permitting/licensing of the industry set up by the Union Carbide in Bhopal or permitting
the factory to grow up, such permission or conduct of the Union of India was responsible for the
damage which has been suffered as a result of Bhopal gas leakage. It is further to be examined
whether such conduct was in discharge of the sovereign functions of the Govt., and as such damages,
if any, resulting therefrom are liable to be proceeded against the Govt. as a joint tort-feasor or not.
In those circumstances, it was further asserted on behalf of the Union of India that though
calculation of damages in a precise manner is a logical consequence of a suit in progress it cannot be
said to be a condition precedent for the purpose of settling the matter. Learned Attorney General
urged that the accountability to the victims should be through the court. He urged that the
allegation that a large number of victims did not give consent to the settlement entered into, is really
of no relevance in the matter of a compromise in a mass tort action. It was highlighted that it is
possible that those who do not need urgent relief or are uninformed of the issues in the case, may
choose to deny consent and may place the flow of relief in jeopardy. Thus, consent based upon
individual subjective opinion can never be correlated to the proposal of an overall settlement in an
urgent matter. Learned Attorney General urged further that if indeed consent were to be insisted
upon as a mandatory requirement of a Statute, it would not necessarily lead to an accurate reflection
of the victims' opinion as opinions may be diverse. No individual would be in a position to relate
himself to a lump sum figure and would not be able to define his expectations on a global criteria. In
such circumstances the value of consent is very much diminished. It was urged that if at all consent
was to be insisted it should not be an expression of the mind without supporting information and
response. To make consent meaningful it is necessary that it must be assertion of a fight to be exer-
cised in a meaningful manner based on information and com- prehension of collective welfare and
individual good. In a matter of such dimensions the insistence upon consent will lead to a process of
enquiry which might make effective consideration of any proposal impossible. For the purpose of
affording consent, it would also be necessary that each individual not only assesses the damages to
himself objectively and places his opinion in the realm of fair expectation, but would also have to
do so in respect of others. The learned Attorney General advanced various reasons why it is difficult
now or impossible to have the concurrence of all.
71. In answer to the criticism by the petitioners, it was explained on behalf of the Union of India that
UCIL was not impleaded as a party in the suit because it would have militated against the plea of
multinational enterprise liability and the entire theory of the case in the plaint. It was highlighted

that the power to represent under the Act was exclusive, the power to compromise for the Govt. of
India is without reference to the victims, yet it is a power guided by the sole object of the welfare of
the victims. The presence and ultimately the careful imprimatur of the judicial process is the best
safeguard to the victims. Learned Attorney General insisted that hearing the parties after the
settlement would also not serve any purpose. He urged that it can never be ascertained with
certainty whether the victims or groups have authorised what was being allegedly spoken on their
behalf; and that the victims would be unable to judge a proposal of this nature. A method of
consensus need not be evolved like in America where every settlement made by contingency fee
lawyers who are anxious to obtain their share automatically become adversaries of the victims and
the court should therefore be satisfied. Here the Court arrived at the figure and directed the parties
to file a settlement on the basis of its order of February 14, 1985 and the interveners were heard, it
was urged. It was also urged that notice to the victims individually would have been a difficult
exercise and analysis of their response time consuming.
72. The learned Attorney General urged that neither the Central Govt. nor the State Govt. of Madhya
Pradesh is liable for the claim of the victims. He asserted that, on the facts of the present case, there
is and can be no liability on their part as joint tort-feasors. For the welfare of the community
several socio-economic activities will have to be permitted by the Govt. Many of these activities may
have to be regulated by licensing provisions contained in Statutes made either by Parliament or by
State Legislatures. Any injury caused to a person, to his life or liberty in the conduct of a licensed
authority so as to make the said licensing authority or the Govt. liable to damages would not be in
conformity with jurisprudential principle. If in such circumstances it was urged on behalf of the
Govt., the public exchequer is made liable, it will cause great public injury and may result in
drainage of the treasury. It would terrorise the welfare state from acting for development of the
people, and will affect the sovereign governmental activities which are beneficial to the community
not being adequately licensed and would thereby lead to public injury. In any event, it was urged on
behalf of the Govt., that such licensing authorities even assuming without admitting could be held to
be liable as joint tort feasors, it could be so held only on adequate allegations of negligence with full
particulars and details of the alleged act or omission of the licensing authority alleged and its direct
nexus to the injury caused to the victims. It had to be proved by cogent and adequate evidence. On
some conjecture or surmise without any foundation on facts, Govt's right to represent the victims
cannot be challenged. It was asserted that even if the Govt. is considered to be liable as a joint tort
feasor, it will be entitled to claim sovereign immunity on the law as it now stands.
73. Reference was made to the decision of this Court in Kasturilal Kalia Ram Jain v. The State of
U.P., [1965] 1 SCR 375 where the conduct of some police officers in seizing gold in exercise of their
statutory powers was held to be in discharge of the sovereign functions of the State and such
activities enjoyed sovereign immunities. The liability of the Govt. of India under the Constitution
has to be referred to Article 300, which takes us to Sections 15 & 18 of the Indian Independence Act,
1947, and Section 176(1) of the Govt. of India Act, 1935. Reference was also made to the observations
of this Court in The State of Rajasthan v. Mst. Vidhyawati, & Anr., [1962] 2 Supp. SCR 989.
74. We have noted the shareholding of UCC. The circumstances that financial institutions held
shares in the UCIL would not disqualify the Govt. of India from acting as patens patriae and in

discharging of its statutory duties under the Act. The suit was filed only against the UCC and not
against UCIL. On the basis of the claim made by the Govt. of India, UCIL was not a necessary party.
It was suing only the multinational based on several legal grounds of liability of the UCC, inter alia.
on the basis of enterprise liability. If the Govt. of India had instituted a suit against UCIL to a certain
extent it would have weakened its case against UCC in view of the judgment of this Court in M.C.
Mehta's case (supra). Accord- ing to learned Attorney General, the Union of India in the present
case was not proceeding on the basis of lesser liability of UCC predicated in Mehta's case but on a
different jurisprudential principle to make UCC strictly and absolutely liable for the entire
damages.
75. The learned Attorney General submitted that even assuming for the purpose of argument
without conceding that any objection can be raised for the Govt. of India representing the victims,
to the present situation the doctrine of necessity applied. The UCC had to be sued before the
American courts. The tragedy was treated as a national calamity, and the Govt. of India had the
right, and indeed the duty, to take care of its citizens, in the exercise of its parens patriae jurisdiction
or on principle analogous thereto. After having statutorily armed itself in recognition of such
parens patraie right or on principles analogous thereto, it went to the American courts. No other
person was properly designed for representing the victims as a foreign court had to recognise a right
of representation. The Govt. of India was permitted to represent the victims before the American
courts. Private plaintiffs were also represented by their attorneys. A Committee of three attorneys
was formed before the case proceeded before Judge Keenan. It was highlighted that the order of
Judge Keenan permitted the Govt. of India to represent the victims. If there was any remote conflict
of interests between the Union of India and the victims from the theoretical point of view the
doctrine of necessity would override the possible violation of the principles of natural justice--that
no man should be Judge in his own case. Reference may be made to Halsbury's Laws of England,
Vol. 1, 4th Edn., page 89, para 73, where it was pointed that that if all the members of the only
tribunal competent to determine a matter are subject to disqualification, they may be authorised
and obliged to hear that matter by virtue of the operation of the common law doctrine of necessity.
Reference was also made to De Smith's Judicial Review of Administrative Action (4th Edn. pages
276-277. See also G.A. Flick--Natural Justice, [1879] pages 138-141. Reference was also made to the
observations of this Court in J. Mohapatra & Co.
& Anr. v. State of Orissa & Anr., [1984] 4 SCC 103, where at page 112 of the report, the Court
recognised 'the principle of necessity. It was submitted that these were situations where on the
principle of doctrine of necessity a person interested was held not disqualified to adjudicate on his
rights. The present is a case where the Govt. of India only represented the victims as a party and did
not adjudicate between the victims and the UCC. It is the Court which would adjudicate the rights of
the victims. The representation of the victims by the Govt. of India cannot be held to be bad, and
there is and there was no scope of violation of any principle of natural justice. We are of the opinion
in the facts and the circumstances of the case that this contention urged by Union of India is right.
There was no scope of violation of the principle of natural justice on this score.
76. It was also urged that the doctrine of de facto representation will also apply to the facts and the
circumstances of the present case. Reliance was placed on the decision of this Court in Gokaraju

Rangaraju etc. v. State of A.P., [1981] 3 SCR 474, where it was held that the doctrine of de facto
representation envisages that acts performed within the scope of assumed official authority in the
interest of public or third persons and not for one's own benefit, are generally to be treated as
binding as if they were the acts of officers de jure. This doctrine is rounded on good sense, sound
policy and practical expediency. It is aimed at the prevention of public and private mischief and
protection of public and private interest. It avoides endless confusion and needless chaos.
Reference was made to the observations of this Court in Pushpadevi M. Jatia v. M.L. Wadhawan,
[1987] 3 SCC 367 at 389-390 and M/s. Beopar Shayak (P) Ltd. & Ors. v. Vishwa Nath & Ors., [1987]
3 SCC 693 at 702 & 703. Apart from the aforesaid doctrine, doctrine of bona fide representation was
sought to be resorted to in the circumstances. In this connection, reference was made to Dharampal
Sing, v. Director of Small Industries Services & Ors., AIR 1980 SC 1888; N.K. Mohammad Sulaiman
v. N.C. Mohammad Ismail & Ors., [1966] 1 SCR 937 and Malkarjun Bin Shigramappa Pasara v.
Narhari Bin Shivappa & Anr., 27 IA 2
16.
77. It was further submitted that the initiation of criminal proceedings and then quashing thereof,
would not make the Act ultra vires so far as it concerned. Learned Attorney General submitted that
the Act only authorised the Govt. of India to represent the victims to enforce their claims for
damages under the Act. The Govt. as such had nothing to do with the quashing of the criminal
proceedings and it was not representing the victims in respect of the criminal liability of the UCC or
UCIL to the victims. He further submitted that quashing of criminal proceedings was done by the
Court in exercise of plenary powers under Articles 136 and 142 of the Constitution. In this
connection, reference was made to State of U.P. v. Poosu & Anr., [1976] 3 SCR 1005; K.M. Nanavati
v. The State of Bombay, [1961] 1 SCR 497. According to the learned Attorney General, there is also
power in the Supreme Court to suggest a settlement and give relief as in Ram Gopal v. Smt. Sarubai
& Ors., [1981] 4 SCC 505; India Mica & Micanite Industries Ltd. v. State of Bihar & Ors., [1982] 3
SCC 182.
78. Learned Attorney General urged that the Supreme Court is empowered to act even outside a
Statute and give relief in addition to what is contemplated by the latter in exercise of its plenary
power. This Court acts not only as a Court of Appeal but is also a Court of Equity. See Roshanlal
Kuthiala & Ors. v. R.B. Mohan Singh Oberoi, [1975] 2 SCR 49
1. During the course of heating of the petitions, he informed this Court that the Govt. of India and
the State Govt. of Madhya Pradesh refuted and denied any liability, partial or total, of any sort in the
Bhopal gas Leak disaster, and this position is supported by the present state of law. It was,
however, submitted that any claim against the Govt. of India for its alleged tortious liability was out-
side the purview of the Act and such claims, if any, are not extinguished by reason of the orders
dated 14th & 15th February, 1989 of this Court.
79. Learned Attorney General further stated that the amount of $ 470 million which was secured as
a result of the memorandum of settlement and the said orders of this Court would be meant
exclusively for the benefit of the victims who have suffered on account of the Bhopal gas leak disas-

ter. The Govt. of India would not seek any reimbursement on account of the expenditure incurred
suo motu for relief and rehabilitation of the Bhopal victims nor will the Govt. or its instrumentality
make any claim on its own arising from this disaster. He further assured this Court that in the event
of disbursement of compensation being initiated either under the Act or under the orders of this
Court, a notification would be instantaneously issued under Section 5(3) of the Act authorising the
Commissioner or any other officers to discharge functions and exercise all or any powers which the
Central Govt. may exercise under Section 5 to enable the victims to place before the Commissioner
or the Dy. Commis- sioner any additional evidence that they would like to be considered.
80. The Constitution Bench of this Court presided over by the learned Chief Justice has pronounced
an order on 4th May, 1989 giving reasons for the orders passed on 14th-- 15th February, 1989.
Inasmuch as good deal of criticism was advanced before this Court during the hearing of the
arguments on behalf of the petitioners about the propriety and validity of the settlement dated
14th-15th February, 1989 even though the same was not directly in issue before us, it is necessary to
refer briefly to what the Constitution Bench has stated in the said order dated 4th May, 1989. After
referring to the facts leading to the settlement, the Court has set out the brief reason on the
following points:
(a) How did the Court arrive at the sum of 470 million US dollars for an overall
settlement?
(b) Why did the Court consider the sum-of 470 millions US dollars as 'just, equitable
and reasonable'? (c) Why did the Court not pronounce on certain important legal
questions of far-reaching importance said to arise in the appeals as to the principles
of liability of monolithic, economically entrenched multinational companies
operating with inherently dangerous technologies in the developing countries of the
third world? These questions were said to be of great contemporary relevance to the
democracies of the third world. This Court recognised that there was another aspect
of the review pertaining to the part of the settlement which terminated the criminal
proceedings. The questions raised on the point in the review-petitions, the Court was
of the view, prima facie merit consideration and therefore, abstained from saying
anything which might tend to prejudge this issue one way or the other.
81. The basic consideration, the Court recorded, moti-
vating the conclusion of the settlement was the compelling need for urgent relief, and the Court set
out the law's delays duly considering that there was a compelling duty both judicial and humane, to
secure immediate relief to the victims. In doing so, the Court did not enter upon any forbidden
ground, the court stated. The Court noted that indeed efforts had already been made in this
direction by Judge Keenan and the learned District Judge of Bhopal. Even at the opening of the
arguments in the appeals, the Court had suggested to learned counsel to reach a just and fair
settlement. And when counsel met for re-scheduling of the hearings the suggestion was reiterated.
The Court recorded that the response of learned counsel was positive in attempting a settlement
but they expressed a certain degree of uneasiness and skepticism at the prospects of success in view

of their past experience of such negotiations when, as they stated, there had been uninformed and
even irresponsible criticism of the attempts at settlement.
82. Learned Attorney General had made available to the Court the particulars of offers and
counter-offers made on previous occasions and the history of settlement. In those circumstances,
the Court examined the prima facie material as the basis of quantification of a sum which, having
regard to all the circumstances including the prospect of delays inherent in the judicial process in
India and thereafter in the matter of domestication of the decree in the U.S. for the purpose of
execution and directed that 470 million US dollars, which upon immediate payment with interest
over a reasonable period, pending actual distribution amongst the claimants, would aggregate to
nearly 500 million US dollars or its rupee equivalent of approximately Rs.750 crores which the
learned Attorney General had suggested, be made the basis of settlement, and both the parties
accepted this direction.
83. The Court reiterated that the settlement proposals were considered on the premise that the
Govt. had the exclusive statutory authority to represent and act on behalf of the victims and neither
counsel had any reservation on this. The order was also made on the premise that the Act was a
valid law. The Court declared that in the event the Act is declared void in the pending proceedings
challenging its validity, the order dated 14th February, 1989 would require to be examined in the
light of that decision. The Court also reiterated that if any material was placed before it from which a
reasonable inference was possible that the UCC had, at any time earlier, offered to pay any sum
higher than an outright down payment of US 470 million dollars, this Court would straightaway
initiate suo motu action requiring the concerned parties to show cause why the order dated 14th
February'89 should not be set aside and the parties relegated to their original positions. The Court
reiterated that the reasonableness of the sum was based not only on independent quantification
but the idea of reasonableness for the present purpose was necessarily a broad and general estimate
in the context of a settlement of the dispute and not on the basis of an accurate assessment by
adjudication. The Court stated that the question was, how good or reasonable it was as a
settlement, which would avoid delay, uncertainties and assure immediate payment. An estimate in
the very nature of things, would not have the accuracy of an adjudication. The Court recorded the
offers, counter-offers, reasons and the numbers of the persons treated and the claims already made.
The Court found that from the order of the High Court and the admitted position on the plaintiff's
side, a reasonable prima facie estimate of the number of fatal cases and serious personal injury
cases, was possible to be made. The Court referred to the High Court's assessment and procedure to
examine the task of assessing the quantum of interim compensation. The Court referred to M. C
Mehta's case reiterated by the High Court, bearing in mind the factors that if the suit proceeded to
trial the plaintiff-Union of India would obtain judgment in respect of the claims relating to deaths
and personal injuries in the following manner:-
(a) Rs.2 lakhs in each case of death; (b) Rs.2 lakh in each case of total permanent disability; (c) Rs. 1
lakh in each case of permanent partial disablement; and (d) Rs.50,000 in each case of temporary
partial disablement.
84. Half of these amounts were awarded as interim compensation by the High Court.

85. The figures adopted by the High Court in regard to the number of fatal cases and cases of serious
personal injuries did not appear to have been disputed by anybody before the High Court, this Court
observed. From those figures, it came to the conclusion that the total number of fatal cases was
about 3,000 and of grievous and serious personal injuries, as verifiable from the records was
30,000. This Court also took into consideration that about 8 months after the occurrence a survey
had been conducted for the purpose of identification of cases. These figures indicated less than
10,000. In those circumstances, as a rough and ready estimate, this Court took into consideration
the prima facie findings of the High Court and estimated the number of fatal cases of 3,000 where
compensation could range from Rs. 1 lakh to Rs.3 lakhs. This would account for Rs.70 crores, nearly
3 times higher than what would have otherwise been awarded in comparable cases in motor vehicles
accident claims.
86. The Court recognised the effect of death and reiterated that loss of precious human lives is
irreparable. The law can only hope to compensate the estate of a person whose life was lost by the
wrongful act of another only in the way the law was equipped to compensate i.e. by monetary
compensation calculated on certain well-recognised principles. "Loss to the estate" which is the
entitlement of the estate and the 'loss of dependency' estimated on the basis of capitalised present
value awardable to the heirs and dependants, this Court considered, were the main components in
the computation of compensation in fatal accident actions, but the High Court adopted a higher
basis. The Court also took into account the personal injury cases, and stated that these
apportionments were merely broad considerations generally guiding the idea of reasonableness of
the overall basis of settlement, and reiterated that this exercise was not a pre-determination of the
quantum of compensation amongst the claimants either individually or catagory-wise, and that the
determination of the actual quantum of compensation payable to the claimants has to be done by
the authorities under the Act. These were the broad assessments and on that basis the Court made
the assessment. The Court believed that this was a just and reasonable assessment based on the
materials available at that time. So far as the other question, namely, the vital juristic principles of
great contemporary relevance to the Third World generally, and to India in particular, touching
problems emerging from the pursuit of such dangerous technologies for economic gains by multi-
nationals in this case, the Court recognised that these were great problems and reiterated that there
was need to evolve a national policy to protect national interests from such ultra-hazardous pursuits
of economic gain; and that Jurists, technologists and other experts in economics. environmen-
tology, futurology, sociology and public health should identify the areas of common concern and
help in evolving proper criteria which might receive judicial recognition and legal sanction. The
Court reiterated that some of these problems were referred to in M.C. Mehta's case (supra). But in
the present case, the compulsions of the need for immediate relief to tens of thousands of suffering
victims could not wait till these questions vital though these be, were resolved in due course of
judicial proceedings; and the tremendous suffering of thousands of persons compelled this Court to
move into the direction of immediate relief which, this Court thought, should not be subordinated to
the uncertain promises of the law, and when the assessment of fairness of the amount was based
on certain factors and assumptions not disputed even by the plaintiffs.
87. Before considering the question of constitutional validity of the Act, in the light of the
background of the facts and circumstances of this case and submissions made, it is necessary to

refer to the order dated 3rd March, 1989 passed by the Constitution Bench in respect of writ peti-
tions Nos. 164/86 and 268/89, consisting of 5 learned Judges presided over by the Hon'ble the
Chief Justice of India. The order stated that these matters would be listed on 8th March, 1989 before
a Constitution Bench for decision "on the sole question whether the Bhopal Gas Leak Disaster
(Process- ing of Claims) Act, 1985 is ultra vires". This is a judicial order passed by the said
Constitution Bench. This is not an administrative order. Thus, these matters are before this Court.
The question, therefore, arises; what are these matters? The aforesaid order specifically states that
these matters were placed before this Bench on the "sole question" whether the Act is ulta vires.
Hence, these matters are not before this Bench for disposal of these writ petitions. If as a result of
the determination, one way or the other, it is held, good and bad, and that some relief becomes
necessary, the same cannot be given or an order cannot be passed in respect thereof, except
declaring the Act or any portion of the Act, valid or invalid constitutionally as the decision might
be.
88. In writ petition No. 268/89 there is consequential prayer to set aside the order dated 14/15th
February, 1989. But since the order dated 3rd March, 1989 above only suggests that these matters
have been placed before this Bench 'on the sole question' whether the Bhopal Act is ultra vires or
not, it is not possible by virtue of that order to go into the question whether the settlement is valid or
liable to be set aside as prayed for in the prayers in these applications.
89. The provisions of the Act have been noted and the rival contentions of the parties have been set
out before. It is, however, necessary to reiterate that the Act does not in any way circumscribe the
liability of the UCC, UCIL or even the Govt. of India or Govt. of Madhya Pradesh if they are jointly or
severally liable. This follows from the construction of the Act, from the language that is apparent.
The context and background do not indicate to the contrary. Counsel for the victims plead that that
is so. The learned Attorney General accepts that position. The liability of the Government is,
however, disputed. This Act also does not deal with any question of criminal liability of any of the
parties concerned. On an appropriate reading of the relevant provisions of the Act, it is apparent
that the criminal liability arising out of Bhopal gas leak disaster is not the subject-matter of this Act
and cannot be said to have been in any way affected, abridged or modified by virtue of this Act. This
was the contention of learned counsel on behalf of the victims. It is also the contention of the
learned Attor- ney General. In our opinion, it is the correct analysis and consequence of the relevant
provisions of the Act. Hence, the submissions made on behalf of some of the victims that the Act was
bad as it abridged or took away the victims' right to proceed criminally against the delinquent, be it
UCC or UCIL or jointly or severally the Govt. of India, Govt. of Madhya Pradesh or Mr. Arjun Singh,
the erstwhile Chief Minister of Madhya Pradesh, is on a wrong basis. There is no curtailment of any
right with respect to any criminal liability. Criminal liability is not the subject-matter of the Act. By
the terms of the Act and also on the concessions made by the learned Attorney General, if that be so,
then can non-prosecution in criminal liability be a consideration or valid consideration for
settlement of claims under the Act?
This is a question which has been suggested and articulated by learned counsel appearing for the
victims. On the other hand, it has been asserted by the learned Attorney General that that part of the

order dated 14/15th February, 1989 dealing with criminal prosecution or the order of this Court was
by virtue of the inherent power of this Court under Articles 136 & 142 of the Constitution. These, the
learned Attorney General said, were in the exercise of plenary powers of this Court. These are not
considerations which induced the parties to enter into settlement. For the purpose of
determination of constitutional validity of the Act, it is however necessary to say that criminal
liability of any of the delinquents or of the parties is not the subject-matter of this Act and the Act
does not deal with either claims or rights arising out of such criminal liability. This aspect is
necessary to be reiterated on the question of validity of the Act.
90. We have set out the language and the purpose of the Act, and also noted the meaning of the
expression 'claim' and find that the Act was to secure the claims connected with or arising out of the
disaster so that these claims might be dealt with speedily, affectively, equitably and to the best
advantage of the claimants. In our opinion, Clause
(b) of Section 2 includes all claims of the victims arising out of and connected with the disaster for
compensation and damages or loss of life or personal injury or loss to the business and flora and
fauna. What, however, is the extent of liability, is another question. This Act does not purport to or
even to deal with the extent of liability arising out of the said gas leak disaster. Hence, it would be
improper or incorrect to contend as did Ms. Jaising, Mr Garg and other learned counsel appearing
for the victims, that the Act circumscribed the liability--criminal, punitive or absolute of the parties
in respect of the leakage. The Act provides for a method or procedure for the establishment and
enforcement of that liability. Good deal of argument was advanced before this Court on the question
that the settlement has abridged the liability and this Court has lost the chance of laying down the
extent of liability arising out of disaster like the Bhopal Gas Leak disaster. Submissions were made
that we should lay down clearly the extent of liability arising out of these types of disasters and we
should further hold that the Act abridged such liability and as such curtailed the rights of the
victims and was bad on that score. As mentioned hereinbefore, this is an argument under a
misconception. The Act does not in any way except to the extent indicated in the relevant provisions
of the Act circumscribe or abridge the extent of the rights of the victims so far as the liability of the
delinquents are concerned. Whatever are the rights of the victims and whatever claims arise out of
the gas leak disaster for compensation, personal injury, loss of life and property, suffered or likely to
be sustained or expenses to be incurred or any other loss are covered by the Act and the Central
Govt. by operation of Section 3 of the Act has been given the exclusive right to represent the victims
in their place and stead. By the Act, the extent of liability is not in any way abridged and, therefore, if
in case of any industrial disaster like the Bhopal Gas Leak disaster, there is right in victims to
recover damages or compensation on the basis of absolute liability, then the same is not in any
manner abridged or curtailed.
91. Over 120 years ago Rylands v. Fletcher, [1868] Vol. 3 LR E & I Appeal Cases 330 was decided in
England. There A, was the lessee of certain mines. B, was the owner of a mill standing on land
adjoining that under which the mines were worked. B, desired to construct a reservoir, and
employed competent persons, such as engineers and a contractor, to construct it. A, had worked his
mines up to a spot where there were certain old passages of disused mines; these passages were
connected with vertical shafts which communicated with the land above, and which had also been

out of use for years, and were apparently filled with marl and the earth of the surrounding land. No
care had been taken by the engineer or the contractor to block up these crafts, and shortly after
water had been introduced into the reservoir it broke through some of the shafts, flowed through the
old passage and flooded As mine. It was held by the House of Lords in England that where the
owner of land, without wilfulness or negligence, uses his land in the ordinary manner of its use,
though mischief should thereby be occasioned to his neighbour, he will not be liable in damages.
But if he brings upon his land any thing which would not naturally come upon it, and which is in
itself dangerous, and may become mischievous if not kept under proper control, though in so doing
he may act without personal wilfulness or negligence, he will be liable in' damages for any mischief
thereby occasioned. In the background of the facts it was held that A was entitled to recover
damages from B, in respect of the injury. The question of liability was highlighted by this Court in
M.C. Mehta's case (supra) where a Constitution Bench of this Court had to deal with the rule of strict
liability. This Court held that the rule in Ry- lands v. Fletcher, (supra) laid down a principle that if a
person who brings on his land and collects and keep there anything likely to do harm and such thing
escapes and does damage to another, he is liable to compensate for the damage caused. This rule
applies only to nonnatural user of the land and does not apply to things naturally on the land or
where the escape is due to an act of God and an act of a stranger or the default of the person injured
or where the things which escape are present by the consent of the person injured or in certain cases
where there is a statutory authority. There, this Court observed that the rule in Rylands v. Fletcher,
(supra) evolved in the 19th century at a time when all the developments of science and technology
had not taken place, and the same cannot afford any guidance in evolving any standard of liability
consistent with the constitutional norms and the needs of the present day economy and social
structure. In a modern industrial society with highly developed scientific knowledge and
technology where hazardous or inherently dangerous industries are necessary to be carried on as
part of the developmental process, Courts should not feel inhibited by this rule merely because the
new law does not recognise the rule of strict and absolute liability in case of an enterprise engaged in
hazardous and dangerous activity. This Court noted that law has to grow in order to satisfy the
needs of the fast changing society and keep abreast with the economic developments taking place in
the country. Law cannot afford to remain static. This Court reiterated there that if it is found
necessary to construct a new principle of liability to deal with an unusual situation which has
arisen and which is likely to arise in future on account of hazardous or inherently dangerous
industries which are concomitant to an industrial economy, the Court should not hesitate to evolve
such principle of liability merely because it has not been so done in England. According to this
Court, an enterprise which is engaged in a hazardous or inherently dangerous industry which poses
potential threat to the health and safety of the persons working in the factory and residing in the
surrounding areas owes an absolute and non-delegable duty to the community to ensure that no
harm results to anyone. The enterprise must be held to be under an obligation to provide that the
hazardous or inherently dangerous activity in which it is engaged must be conducted with the
highest standards of safety and if any harm results to anyone on account of an accident in the
operation of such activity resulting, for instance, in escape of toxic gas the enterprise is strictly and
absolutely liable to compensate all those who were affected by the accident as part of the social cost
for carrying on such activity, regardless of whether it is carried on carefully or not. Such liability is
not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability
under the rule in Rylands v. Fletcher. If the enterprise is permitted to carry on a hazardous or

dangerous activity for its profit, the law must presume that such permission is conditional on the
enterprise absorbing the cost of any accident arising on account of such activity as an appropriate
item of its overheads. The enterprise alone has the resources to discover and guard against hazards
or dangers and 'to provide warning against potential hazards.
This Court reiterated that the measure of compensation in these kinds of cases must be correlated to
the magnitude and capacity of the enterprise because such compensation must have a deterrent
effect. The larger and more prosperous the enterprise, the greater must be the amount of
compensation payable by it for the harm caused on account of an accident in the carrying on of the
hazardous or inherently dangerous activity by the enterprise. The determination of actual damages
payable would depend upon various facts and circumstances of the particular case.
92. It was urged before us that there was an absolute and strict liability for an enterprise which was
carrying on dangerous operations with gases in this country. It was further submitted that there was
evidence on record that sufficient care and attention had not been given to safeguard against the
dangers of leakage and protection in case of leakage. Indeed, the criminal prosecution that was
launched against the Chairman of Union Carbide Shri Warren Anderson and others, as indicated
before, charged them along with the defendants in the suit with delinquency in these matters and
criminal negligence in conducting the toxic gas operations in Bhopal. As in the instant adjudication,
this Court is not concerned with the determination of the actual extent of liability, we will proceed
on the basis that the law enunciated by this Court in M.C. Mehta's case (supra) is the decision upon
the basis of which damages will be payable to the victims in this case. But then the practical question
arises: what is the extent of actual damages payable, and how would the quantum of damages be
computed? Indeed, in this connection, it may be appropriate to refer to the order passed by this
Court on 3rd May, 1989 giving reasons why the settlement was arrived at at the figure indicated.
This Court had reiterated that it had proceeded on certain prima facie undisputed figures of death
and substantially compen- sating personal injury. This Court has referred to the fact that the High
Court had proceeded on the broader principle in M.C. Mehta's case (supra) and on the basis of the
capacity of the enterprise because the compensation must have deterrent effect. On that basis the
High Court had proceeded to estimate the damages on the basis of Rs.2 lakhs for each case of death
and of total permanent disability, Rs. 1 lakh for each case of partial permanent disability and
Rs.50,000 for each case or' temporary partial disability. In this connection, the controversy as to
what would have been the damages if the action had proceeded, is another matter. Normally, in
measuring civil liability, the law has attached more importance to the principle of compensation
than that of punishment. Penal redress, however, involve both compensation to the person injured
and punish-
ment as deference. These problems were highlighted by the House of Lords in England in Rookes v.
Barnard, [1964]AC 1129, which indicate the difference between aggravated and exemplary damages.
Salmond on the Law of Torts, 15th Edition at p. 30 emphasises that the function of damages is
compensation rather than punishment, but punishment cannot always be ignored. There are views
which are against exemplary damages on the ground that these infringe in principle the object of law
of torts, namely, compensation and not punishment and these tend to impose something
equivalent to fine in criminal law without the safeguards provided by the criminal law. In Rookes v.

Barnard (supra), the House of Lords in England recognised three classes of cases in which the award
of exemplary damages was considered to be justifiable. Awards must not only, it is said,
compensate the parties but also deter the wrong doers and others from similar conduct in future.
The question of awarding exemplary or deterrent damages is said to have often confused civil and
criminal functions of law. Though it is considered by many that it is a legitimate. encroachment of
punishment in the realm of civil liability, as it operates as a restraint on the transgression of law
which is for the ultimate benefit of the society. Perhaps, in this case, had the action proceeded, one
would have realised that the fall out of this gas disaster might have been formulation of a concept
of damages, blending both civil and criminal liabilities. There are, however, serious difficulties in
evolving such an actual concept of punitive damages in respect of a civil action which can be
integrated and enforced by the judicial process. It would have raised serious problems of pleading,
proof and discovery, and interesting and challenging as the task might have been, it is still very
uncertain how far decision based on such a concept would have been a decision according to 'due
process' of law acceptable by international standards. There were difficulties in that attempt. But as
the provisions stand these considerations do not make the Act constitutionally invalid. These are
matters on the validity of settlement. The Act, as such does not abridges or curtail damages or
liability whatever that might be. So the challenge to the Act on the ground that there has been
curtailment or deprivation of the rights of the victims which is unreasonable in the situation is
unwarranted and cannot be sustained.
93. Mr. Garg tried to canvass before us the expanding of horizons of human rights. He contended
that the conduct of the multinational corporations dealing with dangerous gases for the purpose of
development specially in the conditions prevailing under the Third world countries requires closer
scrutiny and vigilance on the part of emerging nations. He submitted that unless courts are alert and
active in preserving the rights of the individuals and in enforcing criminal and strict liability and in
setting up norms compelling the Govt. to be more vigilant and enforcing the sovereign will of the
people of India to oversee that such criminal activities which endanger even for the sake of
developmental work, economy and progress of the country, the health and happiness of the people
and damage the future prospects of health, growth and affect and pollute the environment, should
be curbed and, according to him, these could only be curbed by insisting through the legal adjudi-
cation, punitive and deterrent punishment in the form of damages. He also pleaded that norms
should be set up indicating how these kinds of dangerous operations are to be permitted under
conditions of vigilance and survillence. While we appreciate the force of these arguments, and en-
dorse his plea that norms and deterrence should be aspired for, it is difficult to correlate that aspect
with the present problem in this decision.
94. We do reiterate, as mentioned in the Universal Declaration of Human Rights that people are
born free and the dignity of the persons must be recognised and an effective remedy by competent
tribunal is one of the surest method of effective remedy. If, therefore, as a result of this tragedy new
consciousness and awareness on the part of the people of this country to be more vigilant about
measures and the necessity of ensuring more strict vigilance for permitting the operations of such
dangerous and poisonous gases dawn, then perhaps the tragic experience of Bhopal would not go in
vain.

95. The main question, however, canvassed by all learned counsel for the victims was that so far as
the Act takes away the right of the victims to fight or establish their own rights, it is a denial of
access to justice, and it was contended that such denial is so great a deprivation of both human
dignity and right to equality that it cannot be justified because it would be affecting right to life,
which again cannot be deprived without a procedure established by law which is just, fair and
reasonable.
96. On this aspect, Shri Shanti Bhushan tried to urge before us that sections 3 & 4 of the Act. in so
far as these enjoin and empower the Central Govt. to institute or prosecute proceedings was only
an enabling provision for the Central Govt. and not depriving or disabling provisions for the victim.
Ms. Jaising sought to urge in addition, that in order to make the provisions constitutionally valid, we
should eliminate the concept of exclusiveness to the Central Govt. and give the victims right to sue
along with the Central Govt. We are unable to accept these submissions.
97. In our opinion, Sections 3 & 4 are categorical and clear. When the expression is explicit, the
expression is conclusive, alike in what it says and in what it does not say. These give to the Central
Government an exclusive right to act in place of the persons who are entitled to make claim or have
already made claim. The expression 'exclusive' is explicit and significant. The exclusivily cannot be
whittled down or watered down as suggested by counsel. The said expression must be given its full
meaning and extent. This is corroborated by the use of the expression 'claim' for all purposes. If such
duality of rights are given to the Central Govt. along with the victims in instituting or proceeding for
the realisation or the enforcement of the claims arising out of Bhopal gas leak disaster, then that
would be so cumbersome that it would not be speedy, effective or equitable and would not be the
best or more advantageous procedure for securing the claims arising out of the leakage. In that
view of the matter and in view of the language used and the purpose intended to be achieved, we are
unable to accept this aspect of the arguments advanced on behalf of the victims. It was then
contended that by the procedure envisaged by the Act, the victims have been deprived and
denied.their rights and property to fight for compensation. The victims, it has been asserted, have
been denied access to justice. It is a great deprivation, it was urged. It was contended that the
procedure evolved under the Act for the victims is peculiar and having good deal of disadvantages
for the victims. Such special disadvantageous procedure and treatment is unequal treatment, it was
suggested. It was, therefore, violative of Article 14 of the Constitution, that is the argument
advanced.
98. The Act does provide a special procedure in respect of the rights of the victims and to that extent
the Central Government takes upon itself the rights of the victims. It is a special Act providing a
special procedure for a kind of special class of victims. In view of the enormity of the disaster the
victims of the Bhopal gas leak disaster, as they were placed against the multinational and a big
Indian corporation and in view of the presence of foreign contingency lawyers to whom the victims
were exposed, the claimants and victims can legitimately be described as a class by themselves
different and distinct, sufficiently separate and indentifiable to be entitled to special treatment for
effective, speedy, equitable and best advantageous settlement of their claims. There indubitably is
differentiation. But this differentiation is based on a principle which has rational nexus with the aim
intended to be achieved by this differentiation. The disaster being unique in its character and in

the recorded history of industrial disasters situated as the victims were against a mighty
multinational with the presence of foreign contingency lawyers. looming on the scene, in our
opinion, there were sufficient grounds for such differentiation and different treatment. In treating
the victims of the gas leak disaster differently and providing them a procedure, which was just, fair,
reasonable and which was not unwarranted or unauthorised by the Constitu- tion, Article 14 is not
breached. We are, therefore, unable to accept this criticism of the. Act.
99. The second aspect canvassed on behalf of the victims is that the procedure envisaged is
unreasonable and as such not warranted by the situation and cannot be treated as a procedure
which is just, fair and reasonable. The argument has to be judged by the yardstick, as mentioned
hereinbefore, enunciated by this Court in State of Madras v. V.G. Rao, (supra). Hence, both the
restrictions or limitations on the substantive and procedural rights in the impugned legislation will
have to be judged from the point of view of the particular Statute in question. No abstract rule or
standard of reasonableness can be applied. That question has to be judged having regard to the
nature of the rights alleged to have been infringed in this case, the extent and urgency of the evil
sought to be remedied, disproportionate imposition, prevailing conditions at the time, all these facts
will have to be taken into consideration. Having considered the background, the plight of the
impoverished, the urgency of the victims' need, the presence of the foreign contingency lawyers, the
procedure of settlement in USA in mass action, the strength for the foreign multinationals, the
nature of injuries and damages, and the limited but significant right of participation of the victims
as contemplated by s.4 of the Act, the Act cannot be condemned as unreasonable.
100. In this connection, the concept of 'parens patriae' in jurisprudence may be examined. It was
contended by the learned Attorney General that the State had taken upon itself this onus to
effectively come in as parens patriae, we have noted the long line of Indian decisions where, though
in different contexts, the concept of State as the parent of people who are not quite able to or
competent to fight for their rights or assert their rights, have been utilised. It was contended that the
doctrine of parens patriae cannot be applicable to the victims. How the concept has been understood
in this country as well as in America has been noted. Legal dictionaries have been referred to as
noted before. It was asserted on behalf of the victims by learned counsel that the concept of 'parens
patriae' can never be invoked for the purpose of suits in domestic jurisdiction of any country. This
can only be applied in respect of the claims out of the country in foreign jurisdiction. It was further
contended that this concept of 'parens patraie' can only be applied in case of persons who are under
disability and would not be applicable in respect of those who are able to assert their own rights. It is
true that victims or their representatives are sui generis and cannot as such due to age, mental
capacity or other reason not legally incapable for suing or pursuing the remedies for the rights yet
they are at a tremendous disadvantage in the broader and comprehensive sense of the term. These
victims cannot be considered to be any match to the multinational companies or the Govt. with
whom in the conditions that the victims or their representatives were after the disaster physically,
mentally, financially, economically and also because of the position of litigation would have to
contend. In such a situation of predicament the victims can legitimately be considered to be
disabled. They were in no position by themselves to look after their own interests effectively or
purposefully. In that background, they are people who needed the State's protection and should
come within the umbrella of State's sovereignty to assert, establish and maintain their rights against

the wrong doers in this mass disaster. In that perspective, it is jurisprudentially possible to apply the
principle of parens patriae doctrine to the victims. But quite apart from that, it has to be borne in
mind that in this case the State is acting on the basis of the Statute itself. For the authority of the
Central Govt. to sue for and on behalf of or instead in place of the victims, no other theory, concept
or any jurisprudential principle is required than the Act itself. The Act empowers and substitutes
the Central Govt. It displaces the victims by operation of Section 3 of the Act and substitutes the
Central Govt. in its place. The victims have been divested of their rights to sue and such claims and
such rights have been vested in the Central Govt. The victims have been divested because the victims
were disabled. The disablement of the victims vis-a-vis their adversaries in this matter is a
self-evident factor. If that is the position then, in our opinion, even if the strict application of the
'parens patriae' doctrine is not in order, as a concept it is a guide. The jurisdiction of the State's
power cannot be circumscribed by the limitations of the traditional concept of parens patriae.
Jurisprudentially, it could be utilised to suit or alter or adapt itself in the changed circumstances.
In the situation in which the victims were, the State had to assume the role of a parent protecting the
rights of the victims who must come within the protective umbrella of the State and the common
sovereignty of the Indian people. As we have noted the Act is an exercise of the sovereign power of
the State. It is an appropriate evolution of the expression of sovereignty in the situation that had
arisen. We must recognize and accept it as such.
101. But this right and obligation of the State has another aspect. Shri Shanti Bhushan has argued
and this argument has also been adopted by other learned counsel appearing for the victims that
with the assumption by the State of the jurisdiction and power as a parent to fight for the victims in
the situation there is an imcumbent obligation on the State, in the words of Judge Keenan, 'as a
matter of fundamental human decency' to maintain the victims until the claims are established and
realised from the foreign multinationals. The major inarticulate premise apparent from the Act and
the scheme and the spirit of the Act is that so long as the rights of the victims are prosecuted the
State must protect and preserve the victims. Otherwise the object of the Act would be defeated, its
purpose frustrated. Therefore, continuance of the payments of the interim maintenance for the
continued sustenance of the victims is an obligation arising out of State's assumption of the power
and temporary deprivation of the rights of the victims and divestiture of the rights of the victims to
fight for their own rights. This is the only reasonable interpretation which is just, fair and proper.
Indeed, in the language of the Act there is support for this interpretation. Section 9 of the Act gives
power to the Central Govt. to frame by notification, a scheme for carrying into effect the purposes of
the Act. Sub-section (2) of Section 9 provides for the matters for which the scheme may provide.
Amongst others, clause (d) of Section 9(2) provides for creation of a fund for meeting expenses in
connection with the administration of the Scheme and of the provisions of the Act; and clause (e) of
Section 9(2) covers the amounts which the Central Govt. "may after due appropriation made by
Parliament by law in that behalf, credit to the fund referred to in clause (d) and any other amounts
which may be credited to such fund". Clause (f) of Section 9(2) speaks of the utilisation, by way of
disbursal (including apportionment) or otherwise, of any amounts received in satisfaction of the
claims. These provisions are suggestive but not explicit. Clause (b) of Section 10 which provides that
in disbursing under the scheme the amount received by way of compensation or damages in
satisfaction of a claim as a result of the adjudication or settlement of the claim by a court or other
authority, deduction shall be made from such amount of the sums, if any, paid to the claimant by the

Govt. before the disbursal of such amount. The Scheme framed is also significant. Clause 10 of the
Scheme provides for the claims and relief funds and includes disbursal of amounts as relief
including interim relief to persons affected by the Bhopal gas leak disaster and Clause 11(1)
stipulates that disbursal of any amounts under the scheme shall be made by the Deputy
Commissioner to each claimant through credit in a bank or postal saving account, stressing that the
legislative policy underlined the Bhopal Act contemplated payment of interim relief till such time as
the' Central Govt. was able to recover from the Union Carbide full amount of compensation from
which the interim reliefs already paid were to be deducted from the amount payable to them for the
final disbursal. The Act should be construed as creating an obligation oh the Central Govt. to pay
interim relief as the Act deprives the victims of normal and immediate right of obtaining
compensation from the Union Carbide. Had the Act not been enacted, the victims could have and
perhaps would have been entitled not only to sue the Union Carbide themselves, but also to enter
into settlement or compromise of some sort with them. The provisions of the Act deprived the
victims of that legal right and opportunity, and that deprivation is substantial deprivation because
upon immediate relief depends often the survival of these victims. In that background, it is just and
proper that this deprivation is only to be justified if the Act is read with the obligation of granting
interim relief or maintenance by the Central Government until the full amount of the dues of the
victims is realised from the Union Carbide after adjudication or settlement and then deducting
therefrom the interim relief paid to the victims. As submitted by learned Attorney General, it is true
that there is no actual expression used in the Act itself which expressly postulates or indicates such a
duty or obligation under the Act. Such an obligation is, however, inherent and must be the basis of
properly construing the spirit of the Act. In our opinion, this is the true basis and will be in
consonance with the spirit of the Act. It must be, to use the well-known phrase 'the major
inarticulate premise' upon which though not expressly stated, the Act proceeds. It is on this promise
or premise that the State would be justified in taking upon itself the right and obligation to proceed
and prosecute the claim and deny access to the courts of law to the victims on their own. If it is only
so read, it can only be held to be constitutionally valid. It has to be borne in mind that the language
of the Act does not militate against this construction but on the contrary, Sections 9, 10 and the
scheme of the Act suggest that the Act contains such an obligation. If it is so read, then only meat
can be put into the skeleton of the Act making it meaningful and purposeful. The Act must,
therefore, be so read. This approach to the interpretation of the Act can legitimately be called the
'constructive intuition' which, in our opinion, is a permissible mode of viewing the Acts of
Parliament. The freedom to search for 'the spirit of the Act' or the quantity of the mischief at which
it is aimed (both synonymous for the intention of the parliament) opens up the possibility of liberal
interpretation "that delicate and important branch of judicial power, the concession of which is
dangerous, the denial ruinous". Given this freedom it is a rare opportunity though never to be
misused and challenge for the Judges to adopt and give meaning to the Act, articulate and
inarticulate, and thus translate the intention of the Par- liament and fulfil the object of the Act. After
all, the Act was passed to give relief to the victims who, it was thought, were unable to establish their
own rights and fight for themselves. it is common knowledge that the victims were poor and
impoverished. How could they survive the long ordeal of litigation and ultimate execution of the
decree or the orders unless provisions be made for their sustenance and maintenance, especially
when they have been deprived of the fight to fight for these claims themselves? We, therefore, read
the Act accordingly.

102. It was, then, contended that the Central Govt. was not competent to represent the victims. This
argument has been canvassed on various grounds. It has been urged that the Central Govt. owns
22% share in UCIL and as such there is a conflict of interest between the Central Govt. and the
victims, and on that ground the former is disentitled to represent the latter in their battle against
UCC and UCIL. A large number of authorities on this aspect were cited. However, it is not necessary
in the view we have taken to deal with these because factually the Central Govt. does not own any
share in UCIL. These are the statutory independent organisations, namely, Unit Trust of India and
Life Insur- ance Corporation, who own 20 to 22% share in UCIL. The Govt. has certain amount of
say and control in LIC and UTI. Hence, it cannot be said, in our opinion, that there is any conflict
of interest in the real sense of the matter in respect of the claims of Bhopal gas leak disaster between
the Cen- tral Govt. and the victims. Secondly, in a situation of this nature, the Central Govt. is the
only authority which can pursue and effectively represent the victims. There is no other organisation
or Unit which can effectively represent the victims. Perhaps, theoretically, it might have been
possible to constitute another independent statutory body by the Govt. under its control and
supervision in whom the claim of the victims might have been vested and substituted and that Body
could have been entrusted with the task of agitating or establishing the same claims in the same
manner as the Central Govt. has done under the Act. But the fact that that has not been done, in our
opinion, does not in any way affect the position. Apart from that, lastly, in our opinion, this concept
that where there is a conflict of interest, the person having the conflict should not be entrusted with
the task of this nature, does not apply in the instant situation. In the instant case, no question of
violation of the principle of natural justice arises, and there is no scope for the application of the
principle that no man should be a Judge in his own cause. The Central Govt. was not judging any
claim, but was fighting and advancing the claims-of the victims. In those circumstances, it cannot
be said that there was any violation of the principles of natural justice and such entrustment to the
Cen- tral Govt. of the right to ventilate for the victims was improper or bad. The adjudication would
be done by the courts, and therefore there is no scope of the violation of any principle of natural
justice.
103. Along with this submission, the argument was that the power and the right given to the Central
Govt. to fight for the claims of the victims, is unguided and uncanalised. This submission cannot be
accepted. Learned Attorney General is right that the power conferred on the Central Govt. is not
uncanalised. The power is circumscribed by the purpose of the Act. If there is any improper exercise
or transgression of the power then the exercise of that power can be called in question and set
aside, but the Act cannot be said to be violative of the rights of the victims on that score. We have
noted the relevant authorities on the question that how power should be exercised is different and
separate from the question whether the power is valid or not. The next argument on behalf of the
victims was that there was conflict of interest between the victims and the Govt. viewed from
another aspect of the matter. It has been urged that the Central Govt. as well as the Govt. of Madhya
Pradesh along with the erstwhile Chief Minister of the State of Madhya Pradesh Shri Arjun Singh
were guilty of negligence, malfeasance and non-feasance, and as such were liable for damages along
with Union Carbide and UCIL. In other words, it has been said that the Govt. of India and the Govt.
of Madhya Pradesh along with Mr. Arjun Singh are joint tort- feasors and joint wrong doers.
Therefore. it was urged that there is conflict of interest in respect of the claims arising out of the the
gas leak disaster between the Govt. of India and the victims and in such a conflict, it is improper,

rather illegal and unjust to vest in the Govt. of India the rights and claims of the victims. As noted
before, the Act was passed in a particular background and, in our opinion, if read in that
background, only covers claims against Union Carbide or UCIL. "Bhopal gas leak disaster" or
"disaster" has been defined in clause (a) of Section (2) as the occurrence on the 2nd and 3rd days of
December, 1984 which involved the release of highly noxious and abnormally dangerous gas from a
plant in Bhopal (being a plant of the UCIL, a subsidiary of the UCC of U.S.A.) and which resulted in
loss of life and damage to property on an extensive scale.
104. In this context, the Act has to be understood that it is in respect of the person responsible,
being the person in-charge-of the UCIL and the parent company UCC. This interpretation of the Act
is further strengthened by the fact that a "claimant" has been defined in clause (c) of Section 2 as a
person who is entitled to make a claim and the expression "person" in Section 2(e) includes the
Govt. Therefore, the Act proceeded on the assumption that the Govt. could be a claimant being a
person as such. Further- more, this construction and the perspective of the Act is strengthened if a
reference is made to the debate both in the Lok Sabha and Rajya Sabha to which references have
been made.
105. The question whether there is scope for the Union of India being responsible or liable as a joint
tort feasor is a difficult and different question. But even assuming that it was possible that the
Central Government might be liable in a case of this nature, the learned Attorney Gener- al was right
in contending that it was only proper that the Central Government should be able and authorised to
represent the victims. In such a situation, there will be no scope of the violation of the principles of
natural justice. The doctrine of necessity would be applicable in a situation of this nature. The
doctrine has been elaborated, in Hals- bury's Laws of England, 4th Edition, p, 89, paragraph 73,
where it was reiterated that even if all the members of the Tribunal competent to determine a matter
were subject to disqualification, they might be authorised and obliged to hear that matter, by virtue
of the operation of the common law doctrine of necessity,, An adjudicator who is subject to
disqualification on the ground of bias or interest in the matter which he has to decide may in certain
circumstances be required to adjudicate if there is no other person who is competent or authorised
to be adjudicator or if a quorum cannot be formed without him or if no other competent tribunal
can be constituted. In the circumstances of the case, as mentioned hereinbefore, the Government of
India is only capable to represent the victims as a party. The adjudication, however, of the claims
would be done by the Court. In those circumstances, we are unable to accept the challenge on the
ground of the violation of principles of natural justice on this score. The learned Attorney General,
however, sought to advance, as we have indicated before, his contention on the ground of de facto
validity. He referred to certain decisions. We are of the opinion that this principle will not be
applicable. We are also not impressed by the plea of the doctrine of bona fide representation of the
interests of victims in all these proceedings. We are of the opinion that the doctrine of bonafide
representation would not be quite relevant and as such the decisions cited by the learned Attorney
General need not be considered.
106. There is, however, one other aspect of the matter which requires consideration. The victims can
be divested of their rights i.e. these can be taken away from them provided those rights of the
victims are ensured to be established and agitated by the Central Govt. following the procedure

which would be just, fair and reasonable. Civil Procedure Code is the guide which guides civil
proceedings in this country and in other countries procedure akin to Civil Procedure Code. Hence,
these have been recognised and accepted as being in consonance with the fairness of the
proceedings and in conformity with the principles of natural justice. Therefore, the procedure
envisaged under the Act has to be judged whether it is so consistent. The Act, as indicated before.
has provided the procedure under sections 3 and 4. Section 11 provides that the provisions of the Act
and of any Scheme flamed thereunder shall have effect notwithstanding anything inconsistent
therewith contained in any enactment other than the Act or any instrument having effect by virtue
of any enactment other than the Act. Hence, if anything is inconsistent with the Act for the time
being, it will not have force and the Act will override those provisions to the extent it does. The Act
has not specifically contemplated any procedure to be followed in the action to be taken pursuant
to the powers conferred under section 3 except to the extent indicated in section 4 of the Act. Section
5, however, authorises the Central Government to have the powers of a civil court for the purpose of
discharging the functions pursuant to the authority vested under sections 3 and 4 of the Act. There
is no question of Central Government acting as a court in respect of the claims which it should
enforce for or on behalf or instead of the victims of the Bhopal gas leak disaster. In this connection,
it is necessary to note that it was submitted that the Act, so far as it deals with the claims of the
victims, should be read in conformity with Civil Procedure Code and/or with the principles of
natural justice; and unless the provisions of/the Act are so read it would be violative of Articles 14
and 21 of the Constitution in the sense that there will be deprivation of rights to/fife and liberty
without following a procedure which is just, fair and reasonable. That is the main submission and
contention of the different counsel for the victims who have appeared. The different view points
from which this contention has been canvassed have been noted before. On the other hand, on
behalf of the Government, the learned Attorney General has canvassed before us that there were
sufficient safeguards consistent with the principles of natural justice within this Act and beyond
what has been provided for in a situation for which the Act was enacted, nothing more could be
provided and further reading down the provisions of the Act in the manner suggested would defeat
the purpose of the Act. The aforesaid section 3 provides for the substitution of the Central
Government with the' right to represent and act in place of (whether within or outside India) every
person who has made, or is entitled to make, a claim in respect of the disaster. The State has taken
over the rights and claims of the victims in the exercise of sovereignty in order to discharge the
constitutional obligations as the parent and guardian of the victims who in the situation as placed
needed the umbrella of protection. Thus, the State has the power and jurisdiction and for this
purpose unless the Act is otherwise unreasonable or violative of the constitutional provisions, no
question of giving a hearing to the parties for taking over these fights by the State arises. For
legislation by the Parliament, no principle of natural justice is attracted provided such legislation is
within the competence of the legislature, which indeed the present Act is within the competence of
the Parliament. We are in agreement with the submission of the learned Attorney General that
section 3 makes the Central Government the dominus litis and it has the carriage of the proceedings,
but that does not solve the problem of by what procedure the proceedings should be carried.
107. The next aspect is that section 4 of the Act, which, according to the learned Attorney General
gives limited rights to the victims in the sense that it obliges the Central Government to have due
regard to any matters which such person may require to be urged with respect to his claim and shall,

if such person so desires, permit at the expense of such person, a legal practitioner of his choice to
be associated in the conduct of any suit or other proceeding relating to his claim". Therefore, it
obliges the Central Government to have 'due regard' to any matters, and it was urged on behalf of
the victims that this should be read in order to make the provisions constitutionally valid as
providing that the victims will have a say in the conduct of the proceedings and as such must have
an opportunity of knowing what is happening either by instructing or giving Opinions to the Central
Government and/or providing for such directions as to settlement and other matters. In other
words, it was contended on behalf of the victims that the victims should be given notice of the
proceedings and thereby an opportunity, if they so wanted, to advance their view: and that to make
the provisions of s. 4 meaningful and effective unless notice was given to the victim, disabled as he
is, the assumption upon which the Act has been enacted, could not come and make suggestion in the
proceedings. If the victims are not informed and given no opportunity, the purpose of s. 4 cannot be
attained.
108. On the other hand, the learned Attorney General suggested that s. 4 has been complied with,
and contended that the victims had notice of the proceedings. They had knowledge of the suit in
America, and of the order passed by Judge Keenan. The private plaintiffs who had gone to America
were represented by foreign contingency lawyers who knew fully well what they were doing and they
had also joined the said suit along with the Government of India. Learned Attor- ney General
submitted that s. 4 of the Act clearly.enabled the victims to exercise their right of participation in the
proceedings. According to him, there was exclusion of victims from the process of adjudication but
a limited participation was provided and beyond that participation no further participation was
warranted and no further notice was just- fied either by the provisions of the Act as read with the
constitutional requirements or under the general principles of natural justice. He submitted that the
principles of natural justice cannot be put into strait jacket and their application would depend upon
the particular facts and the circumstances of a situation. According to the learned Attorney General,
in the instant case, the legislature had formulated the area where natural justice could be applied,
and upto what area or stage there would be association of the victims with the suit, beyond that no
further application of any principle of natural justice was contemplated.
109. The fact that the provisions of the principles of natural justice have to be complied with, is
undisputed. This is well-settled by the various decisions of the Court. The Indian Constitution
mandates that clearly, otherwise the Act and the actions would be violative of Article 14 of the
Constitution and would also be destructive of Article 19(1)(g) and negate Article 21 of the
Constitution by denying a procedure which is just, fair and reasonable. See in this connection, the
observations of this Court in Maneka Gandhi's case (supra) and Olga Tellis's case (supra). Some of
these aspects were noticed in the decision of this Court in Swadeshi Cotton Mills v. Union of India
(supra). That was a decision which dealt with the question of taking over of the industries under the
Industries (Development and Regula- tion) Act, 1951. The question that arose was whether it was
necessary to observe the rules of natural justice before issuing a notification under section 18A(1) of
the Act. It was held by the majority of Judges that in the facts of that case there had been
non-compliance with the implied requirement of the audi alteram partem rule of natural justice at
the pre-decisional stage. The order in that case could be struck down as invalid on that score but the
court found that in view of the concession a heating would be afforded to the company, the case was

remitted to the Central Government to give a full, fair and effective hearing. It was held that the
phrase 'natural justice' is not capable of static and precise definition. It could not be imprisoned in
the straight-jacket or a cast-iron formula. Rules of natural justice are not embodied rules. Hence, it
was not possible to make an exhaustive catalogue of such rules. This Court reiterated that audi
ateram partem is a highly effective rule devised by the Courts to ensure that a statutory authority
arrives at a just decision and it is calculated to act as a healthy check on the abuse or misuse of
power. The rules of natural justice can operate only in areas not covered by any law validly made.
The general principle as distinguished from an absolute rule of uniform application seems to be that
where a statute does not in terms exclude this rule of prior hearing but contemplates a
post-decisional hearing amounting to a full review of the original order on merits then such a statute
would be construed as excluding the audi alteram partem rule at the pre-decisional stage. If the
statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the
person affected the administrative decision after post-decisional hearing was good.
110. The principles of natural justice have been examined by this Court in Union of India & Anr. v.
Tulsi Ram Patel & Ors., (supra). It was reiterated, that the principles of natural justice are not the
creation of Article 14 of the Constitution. Art. 14 is not the begetter of the principles of natural
justice but their constitutional guardian. The principles of natural justice consist, inter alia, of the
requirement that no man should be condemned unheard. If, however, a legislation or a Statute
expressly or by necessary implication excludes the application of any particular principle of natural
justice then it requires close Scrutiny of the Court.
111. It has been canvassed on behalf of the victims that the Code of Civil Procedure is an instant
example of what is a just, fair and reasonable procedure, at least the principles embodied therein
and the Act would be unreasonable if there is exclusion of the victims to vindicate properly their
views and rights. This exclusion may amount to denial of justice. In any case, it has been suggested
and in our opinion, there is good deal of force in this contention, that if a part of the claim, for good
reasons or bad, is sought to be compromised or adjusted without at least considering the views of
the victims that would be unreasonable deprivation of the rights of the victims. After all, it has to be
borne in mind that injustice consists in the sense in the minds of the people affected by any act or
inaction a feeling that their grievances. views or claims have gone 'unheeded or not considered. Such
a feeling is in itself an injustice or a wrong. The law must,be so construed and implemented that
such a feeling does not generate among the people for whose benefit the law is made. Right to a
hearing or representation before entering into a compromise seems to be embodied in the due
process of law understood in the sense the term has been used in the constitutional jargon of this
country though perhaps not originally intended. In this connection, reference may be made to the
decision of this Court in Sangram Singh v. Election Tribunal, Kotah, [1955] 2 SCR 1. The
Representation of the People Act, 1951 contains section 90 and the procedure of Election Tribunals
under the Act was governed by the said provision. Sub-section (2) of section 90 provides that
"Subject to the provisions of this Act and of any rules made thereunder, every election petition shall
be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under
the Code of Civil Procedure, 1908 to the trial of suits". Justice Bose speaking for the court said that it
is procedure, something designed to facilitate justice and further its ends, and cannot be considered
as a penal enactment for punishment or penalties; not a thing designed to trip people up rather then

help them. It was reiterated that our laws of procedure are grounded on the principle of natural
justice which requires that men should not be condemned unheard, that decisions should not be
reached behind their backs, that proceedings that affect their lives and property should not continue
in their absence and that they should not be precluded from participating in them. Of course,
there may be exceptions and where they are clearly defined these must be given effect to. But taking
by and large, and subject to that proviso, our laws of procedure should be construed, wherever that
is reasonably possible, in the light of that principle. At page 9 of the report, Justice Bose observed
as under:
"But that a law of natural justice exists in the sense that a party must be heard in a
Court of laW, or at any rate be afforded an opportunity to appear and defend himself,
unless there is express provision to the contrary, is, we think, beyond dispute. See the
observations of the Privy Council in Balakrishna Udayar v. Vasudeva Ayyar, (ILR 40
Mad. 793, 800) and especially in T.M. Barter v. African Products Ltd., (AIR 1928 PC
261) where Lord Buckmaster said "no forms or procedure should ever be permitted
to exclude the presentation of a litigant's defence". Also Hari Vishnu's case which we
have just quoted. In our opinion, Wallace J. was right in Venka- tasubbiah v.
Lakshminarasimham, (AIR 1925 Mad. 1274) in holding that "One cardinal principle
to be observed in trials by a Court obviously is that a party has a right to appear and
plead his cause on all occasions when that cause comes on for hearing", and that "It
follows that a party should not be deprived of that right and in fact the Court has no
option to refuse that right, unless the Code of Civil Procedure deprives him of it".
112. All civilised countries accept the right to be heard as part of the due process of law where
questions affecting their rights, privileges or claims are considered or adjudicated.
113. In S.L. Kapoor v. Jagmohan & Ors., [1981] 1 SCR 746 at 765, Chinnappa Reddy, J. speaking for
this Court observed that the concept that justice must not only be done but must manifestly be seen
to be done, is basic to our system. It has been reiterated that the principles of natural justice know of
no exclusionary rule dependent on whether it would have made any difference if natural justice had
been observed. The non-observance of natural justice is itself prejudice to any man and proof of
prejudice independently of proof of denial of natural justice is unnecessary and it has been said that
it will come from a person who has denied justice that the person who has been denied justice, is not
prejudiced. Principles of natural justice must, therefore, be followed. That is the normal
requirement:
114. In view of the principles settled by this Court and accepted all over the world, we are of the
opinion that in case of this magnitude and nature, when the victims have been given some say by
Section 4 of the Act, in order to make that opportunity contemplated by section 4 of the Act,
meaningful and effective, it should be so read that the victims have to be given an opportunity of
making their representation before the court comes to any conclusion in respect of any settlement.
How that opportunity should be given, would depend upon the particular situation. Fair procedure
should be followed in a representative mass tort action. There are instances and some of these were

also placed before us during the hearing of these matters indicating how the courts regulate giving
of the notice in respect of a mass action where large number of people's views have to be
ascertained. Such procedure should be evolved by the court when faced with such a situation.
115. The Act does not expressly exclude the application of the Code of Civil Procedure. Section 11 of
the Act provides the overriding effect indicating that anything inconsistent with the provisions of the
Act in other law including the Civil Procedure Code should be ignored and the Act should prevail.
Our attention was drawn to the provisions of Order 1 Rule 8(4) of the Code. Strictly speaking, Order
1 Rule 8 will not apply to a suit or a proceeding under the Act. It is not a case of one having common
interest with others. Here the plaintiff, the Central Govt. has replaced and divested the victims.
116. Learned Attorney General submitted that as the provisions of the Code stood before 1976
Amendment, the High Courts had taken the view that hearing of the parties represented in the suit,
was not necessary, before compromise. Further reference was made to proviso to Order XXIII Rule
1. As in this case there is no question, in our opinion, of abandonment as such of the suit or part of
the suit, the provisions of this Rule would also not strictly apply. However, Order XXIII Rule 3B of
the Code is an important and significant pointer and the principles behind the said provision would
apply to this case. The said rule 3B provides that no agreement or compromise in a representative
suit shall be entered into without the leave of the court expressly recorded in the proceedings; and
sub-rule (2) of rule 3B enjoins that before granting such leave the court shall give notice in such
manner as it may think fit in a representative action. Representative suit, again, has been defined
under Explanation to the said rule vide clause (d) as any other suit in which the decree passed may,
by virtue of the provisions of this Code or of any other law for the time being in force, bind any
person who is not named as party to the suit. In this case, indubitably the victims would be bound by
the settlement though not named in the suit. This is a position conceded by all. If that is so, it would
be a representative suit in terms of and for the purpose of Rule 3B of Order XXIII of the Code. If the
principles of this rule are the principles of natural justice then we are of the opinion that the
principles behind it would be applicable; and also that section 4 should be so construed in spite of
the difficulties of the process of notice and other difficulties of making "informed decision making
process cumbersome", as canvassed by the learned Attorney General.
117. In our opinion, the constitutional requirements, the language of the Section, the purpose of the
Act and the principles of natural justice lead us to this interpretation of Section 4 of the Act that in
case of a proposed or contemplated settlement, notice should be given to the victims who are
affected or whose rights are to be affected to ascertain their views. Section 4 is significant. It enjoins
the Central Govt. only to have "due regard to any matters which such person may require to be
urged". So, the obligation is on the Central Govt. in the situation contemplated by Section 4 to have
due regard to the views of the victims and that obligation cannot be discharged by the Central Govt.
unless the victims are told that a settlement is proposed, intended or contemplated. It is not
necessary that such views would require consent of all the victims. The Central Govt. as the
representative of the victims must have the views of the victims and place such views before the
court in such manner it considers necessary before a settlement is entered into. If the victims want
to advert to certain aspect of the matter during the proceedings under the Act and settlement indeed
is an important stage in the proceedings, opportunities must be given to the victims. Individual

notices may not be necessary. The Court can, and in our opinion, should in such situation formulate
modalities of giving notice and public notice can also be given inviting views of the victims by the
help of mass media.
118. Our attention was drawn to similar situations in other lands , where in mass disaster actions of
the present type or mass calamity actions affecting large number of people, notices have been given
in different forms and it may be possible to invite the views of the victims by announcement in the
media, Press, Radro, and TV etc. intimating the victims that a certain settlement is proposed or
contemplated and inviting views of the victims within a stipulated period. And having regard to the
views, the Central Govt. may proceed with the settlement of the action. Consent of all is not a
pre-condition as we read the Act under Section
4. Hence, the difficulties suggested by the learned Attorney General in having the consent of all and
unanimity, do not really arise and should not deter us from construing the section as we have.
119. The next aspect of the matter is, whether in the aforesaid light Section 4 has been complied
with. The fact that there was no Learned Attorney General, however, sought to canvas the view that
the victims had notice and some of them had participated in the proceedings. We are, however,
unable to accept the position that the victims had notice of the nature contemplated under the Act
upon the underling principle of Order XXIII Rule 3B of the Code. It is not enough to say that the
victims must keep vigil and watch the proceeding. One assumption under which the Act is justified
is that the victims were disabled to defend themselves in an action of this type. If that is so, then
the Court cannot presume that the victims were a lot, capable and informed to be able to have
comprehended or contemplated the settlement. In the aforesaid view of the matter, in our opinion,
notice was necessary. The victims at large did not have the notice.
120. The question, however, is that the settlement had been arrived at after great deal of efforts to
give immediate relief to the victims. We have noticed the order dated 4th May, 1989 passed by this
Court indicating the reasons which impelled the Court to pass the orders on 14/15th February, 1989
in terms and manner as it did. It has been urged before us on behalf of some of the victims that jus-
tice has not been done to their views and claims in respect of the damages suffered by them. It
appears to us by reading the reasons given by this Court on 4th May, 1989 that justice perhaps has
been done but the question is, has justice appeared to have been done and more precisely, the
question before this Court is: does the Act envisage a procedure or contemplate a procedure which
ensures not only that justice is done but justice appears to have been done. If the procedure does
not ensure that justice appears to have been done, is it valid? Therefore, in our opinion, in the
background of this question we must hold that Section 4 means and entails that before entering into
any settlement affecting the rights and claims of the victims some kind of notice or information
should be given to the victims; we need not now spell out the actual notice and the manner of its
giving to be consistent with the mandate and purpose of section 4 of the Act.
121. This Court in its order dated 4th May, 1989 had stated that in passing orders on 14th/15th
February, 1989, this Court was impelled by the necessity of urgent relief to the victims rather than to
depend upon the uncertain promise of law. The Act, as we have construed, requires notice to be

given in what form and in what manner, it need not be spelled out, before entering into any
settlement of the type with which we are concerned. It further appears that that type of notice which
is required to be given had not been given. The question, therefore, is what is to be done and what is
the consequence? The Act would be bad if it is not construed in the light that notice before any
settlement under S. 4 of the Act was required to be given. Then arises the question of consequences
of not giving the notice. In this adjudication, we are not strictly concerned with the validity or
otherwise of the settlement, as we have indicated hereinbefore. But constitutional adjudication
cannot be divorced from the reality of a situation, or the impact of an adjudication. Constitutional
deductions are never made in the vacuum. These deal with life's problems in the reality of a given
situation. And no constitutional adjudication is also possible unless one is aware of the
consequences of such an adjudication. One hesitates in matters of this type where large conse-
quences follow one way or the other to put as under what others have put together. It is well to
remember, as did Justice Holmes, that time has upset many fighting faiths and one must always
wagar one's salvation upon some prophecy based upon imperfect knowledge. Our knowledge
changes; our perception of truth also changes. It is true that notice was required to be given and
notice has not been given. The notice which we have contemplated is a notice before the settlement
or what is known in legal terminology as 'pre- decisional notice'. But having regard to the urgency of
the situation and having regard to the need for the victims for relief and help and having regard to
the fact that so much effort has gone in finding a basis for the settlement, we, at one point of time,
thought that a post-decisional hearing in the facts and circumstances of this case might be consid-
ered to be sufficient compliance with the requirements of principles of natural justice as embodied
under s. 4 of the Act. The reasons that impelled this Court to pass the orders of 14th/15th February,
1989 are significant and compelling. If notice was given, then what would have happened? It has
been suggested on behalf of the victims by counsel that if the victims had been given an opportunity
to be heard, then they would have perhaps pointed out, inter alia, that the amount agreed to be paid
through the settlement was hopelessly inadequate. We have noted the evidence available to this
Court which this Court has recorded in its order dated 4th May, 1989 to be the basis for the figure at
which the settlement was arrived at. It is further suggested that if an opportunity had been given
before the settlement, then the victims would have perhaps again pointed out that criminal liability
could not be absolved in the manner in which this Court has done on the 14th/l5th February, 1989.
It was then contended that the Central Government was itself sued as a joint tort feasor. The Central
Government would still be liable to be proceeded in respect of any liability to the victims if such a
liability is established; that liability is in no way abridged or affected by the Act or the settlement
entered into. It was submitted on behalf of the victims that if an opportunity had been given, they
would have perhaps pointed out that the suit against the Central Gov- ernment, Government of
Madhya Pradesh and UCIL could not have been settled by the compromise. It is further-suggested
that if given an opportunity, it would have been pointed out that the UCIL should have also been
sued. One of the important requirements of justice is that people affected by an action or inaction
should have opportunity to have their say. That opportunity the victims have got when these appli-
cations were heard and they were heard after utmost publicity and they would have further
opportunity when review application against the settlement would be heard.
122. On behalf of the victims, it was suggested that the basis of damages in view of the observations
made by this Court in M.C. Mehta's case (supra) against the victims of UCC or UCIL would be much

more than normal damages suffered in similar case against any other company or party which is
financially not so solvent or capable. It was urged that it is time in order to make damages deterrent
the damages must be computed on the basis of the capacity of a delinquent made liable to pay such
damages and on the monitory capacity of the delinquent the quantum of the damages awarded
would vary and not on the basis of actual consequences suffered by the victims. This is an uncertain
promise of law. On the basis of evidence available and on the basis of the principles so far
established, it is difficult to foresee any reasonable possibility of acceptance of this yardstick. And
even if it is accepted, there are numerous difficulties of getting that view accepted internationally as
a just basis in accordance with law. These, however, are within the realm of possibility.
123. It was contended further by Shri Garg, Shri Shanti Bhushan and Ms. Jaising that all the further
particulars upon which the settlement had been entered into should have been given in the' notice
which was required to be given before a settlement was sanctified or accepted. We are unable to
accept this position. It is not necessary that all other particulars for the basis of the proposed
settlement should be disclosed in a suit of this nature before the final decision. Whatever data was
already there have been disclosed, that, in our opinion, would have been sufficient for the victims to
be able to give their views, if they want to. Disclosure of further particulars are not warranted by the
requirement of principles of natural justice. Indeed, such disclosure in this case before finality might
jeopar- dise luther action, if any, necessary so consistent with justice of the case.
124. So on the materials available, the victims would have to express their views. The victims have
not been able to show at all any other point or material which would go to impeach the validity of
the settlement. Therefore, in our opinion, though settlement without notice is not quite proper, on
the materials so far available, we are of the opinion that justice has been done to the victims but jus-
tice has not appeared to have been done. In view of the magnitude of the misery involved and the
problems in this case, we are also of the opinion that the setting aside of the settlement on this
ground in view of the facts and the circumstances of this case keeping the settlement in abeyance
and giving notice to the victims for a post-decisional hearing would not be in the ultimate interest
of justice. It is true that not giving notice, was not proper because principles of natural justice are
fundamental in the constitutional set up of this country. No man or no man's right should be
affected without an opportunity to ventilate his views. We are also conscious that justice is a psycho-
logical yearning, in which men seek acceptance of their view point by having an opportunity of
vindication of their view point before the forum or the authority enjoined or obliged to take a
decision affecting their right. Yet, in the particular situations, one has to bear in mind how an
infraction of that should be sought to be removed is accordance with justice. In the facts and the
circumstances of this case where sufficient opportunity is available when review application is heard
on notice, as directed by Court, no further opportunity is necessary and it cannot be said that
injustice has been done. "To do a great right" after all, it is permissible sometimes "to do a little
wrong". In the facts and circumstances of the case, this is one of those rare occasions. Though
entering into a settlement without the required notice is wrong, in the facts and the circumstances
of this case, therefore, we are of the opinion, to direct that notice should be given now, would not
result in dain justice in the situation. In the premises, no further consequential order is necessary by
this Court. Had it been necessary for this Bench to have passed such a consequential order, we
would not have passed any such consequential order in respect of the same.

125. The sections and the scheme dealing with the determination of damages and distribution of
the amount have also been assailed as indicated before. Our attention was drawn to the provisions
of the Act dealing with the payment of compensation and the scheme framed therefore. It was
submitted that section 6 of the Act enjoins appointment by the Central Government of an officer
known as the Commissioner for the welfare of the victims. It was submitted that this does not give
sufficient judicial authority to the officer and would be really leaving the adjudication under the
scheme by an officer of the executive nature. Learned Attor- ney General has, however, submitted
that for disbursement of the compensation contemplated under the Act or under the orders of this
Court, a notification would be issued under section 6(3) of the Act authorising the Commissioner or
other officers to exercise all or any of the powers which the Central Government may exercise under
section 6 to enable the victims to place before the Commissioner or Deputy Commissioner any
additional evidence that they would like to adduce. We direct so, and such appropriate notifica-
tion be issued. We further direct that in the scheme of categorisation to be done by the Deputy
Commissioner should be appealable to an appropriate judicial authority and the Scheme should be
modified accordingly. We reiterate that the basis of categorisation and the actual categorisation
should be justifiable and judicially reviewable-the provisions in the Act and the Scheme should be so
read. There were large number of submissions made on behalf of the victims about amending the
scheme. Apart from and to the extent indicated above, in our opinion, it would be unsafe to tinker
with the scheme piecemeal. The scheme is an integrated whole and it would not be proper to amend
it piecemeal. We, however, make it clear that in respect of categorisation and claim, the authorites
must act on principles of natural justice and act quasi-judicially.
126. As mentioned hereinbefore, good deal of arguments were advanced before us as to whether the
clause in the settlement that criminal proceedings would not be proceeded with and the same will
remain quashed is valid or invalid. We have held that these are not part of the proceedings under the
Act. So the orders on this aspect in the order of 14th/15th February, 1989 are not orders under the
Act. Therefore, on the question of the validity of the Act, this aspect does not arise whether the
settlement of criminal proceedings or quashing the criminal proceedings could be a valid
consideration for settlement or whether if it was such a consideration or not is a matter which the
court reviewing the settlement has to decide.
127. In the premise, we hold that the Act is constitutionally valid in the manner we read it. It
proceeds on the hypothesis that until the claims of the victims are realised or obtained. from the
delinquents, namely, UCC and UCIL by settlement or by adjudication and until the proceedings in
respect thereof continue the Central Government must pay interim compensation or maintenance
for the victims. In entering upon the settlement in view of s. 4 of the Act, regard must be had to the
views of the victims and for the purpose of giving regard to these, appropriate notices before arriving
at any settlement, was necessary. In some cases, however, post-decisional notice might be sufficient
but in the facts and the circumstances of this case, no useful purpose would be served by giving a
post-decisional hearing having regard to the circumstances mentioned in the order of this Court
dated 4th May, 1989 and having regard to the fact that there are no further additional data and facts
available with the victims which can be profitably and meaningfully presented to controvert the
basis of the settlement and further having regard to the fact that the victims had their say or on

their behalf their views had been agitated in these proceedings and will have further opportunity in
the pending review proceedings. No further order on this aspect is necessary. The sections dealing
with the payment of compensation and categorisation should be implemented in the manner
indicated before.
128. The Act was conceived on the noble promise of giving relief and succour to the dumb, pale,
meek and impoverished victims of a tragic industrial gas leak disaster, a concomitant evil in this
industrial age of technological advancement and development. The Act had kindled high hopes in
the hearts of the. weak and worn, wary and forlorn. The Act generated hope of humanity. The
implementation of the Act must be with justice. Justice perhaps has been done to the victims
situated as they were, but it is also true that justice has not appeared to have been done. That is a
great infirmity. That is due partly to the fact that procedure was not strictly followed as we have
understood it and also partly because of the atmosphere that was created in the country, attempts
were made to shake the confidence of the people in the judicial process and also to undermine the
credibility of this Court. This was unfortunate. This was perhaps due to misinformed public opinion
and also due to the fact that victims were not initially taken into confidence in reaching the
settlement. This is a factor which emphasises the need for adherence to the principles of natural
justice. The credibility of judiciary is as important as the alleviation of the suffering of the victims,
great as these were. We hope these adjudications will restore that credibility. Principles of natural
justice are integrally embedded in our constitutional framework and their pristine glory and
primacy cannot and should not be allowed to be submerged by the exigencies of particular situations
or cases. This Court must always assert primacy of adherence to the principles of natural justice in
all adjudications. But at the same time, these must be applied in a particular manner in particular
cases having regard to the particular circumstances. It is, therefore, necessary to reiterate that the
promises made to the victims and hopes raised in their hearts and minds can only be redeemed in
some measure if attempts are made vigorously to distribute the amount realised to the victims in
accordance with the scheme as indicated above. That would be a redemption to a certain extent. It
will also be necessary to reiterate that attempts should be made to formulate the principles of law
guiding the Government and the authorities to permit carrying on of trade dealing with materials
and things which have dengerous consequences within sufficient specific safeguards especially in
case of multinational corporations trading in India. An awareness on these lines has dawned. Let
action follow that awareness. It is also necessary to reiterate that the law relating to damages and
payment of interim damages or compensation to the victims of this nature should be seriously and
scientifically examined by the appropriate agencies.
129. The Bhopal Gas Leak disaster and its aftermath of that emphasise the need for laying down
certain norms and standards the Government to follow before granting permissions or licences for
the running of industries dealing with materials which are of dangerous potentialities. The Govern-
ment should, therefore, examine or have the problem examined by an expert committee as to what
should be the conditions on which future licences and/or permission for running industries on
Indian soil would be granted and for ensuring enforcement of those conditions, sufficient safety
measures should be formulated and scheme of enforcement indicated. The Government should
insist as a condition precedent to the grant of such licences or permissions, creation of a fund in
anticipation by the industries to be available for payment of damages out of the said found in case of

leakages or damages in case of accident or disaster flowing from negligent working of such
industrial operations or failure to ensure measures preventing such occurrence. The Government
should also ensure that the parties must agree to abide to pay such damages out of the said damages
by procedure separately evolved for computation and payment of damages without exposing the
victims or sufferers of the negligent act to the long and delayed procedure. Special procedure must
be provided for and the industries must agree as a condition for the grant of licence to abide by such
procedure or to abide by statutory arbitration. The basis for damages in case of leakages and
accident should also be statutorily fixed taking into consideration the nature of damages inflicted,
the consequences thereof and the ability and capacity of the parties to pay. Such should also
provide for deterrent or punitive damages, the basis for which should be formulated by a proper
expert committee or by the Govern- ment. For this purpose, the Government should have the matter
examined by such body as it considers necessary and proper like the Law Commission or other
competent bodies. This is vital for the future.
130. This case has taken some time. It was argued extensively. We are grateful to counsel who have
assisted in all these matters. We have reflected. We have taken some time in pronouncing our
decision. We wanted time to lapse so that the heat of the moment may calm down and proper
atmosphere restored. Justice, it has been said, is the constant and perpetual disposition to render
every man his due. But what is a man's due in a particular situation and in a particular
circumstances is a matter for appraisement and adjustment. It has been said that justice is
balancing. The balances have always been the symbol of even-handed justice. But as said Lord
Denning in Jones v. National Coal Board Ltd., [1957] 2 QB 55, at 64-let the advocates one after the
other put the weights into the scales--the 'nicely calculated less or more'--but the judge at the end
decides which way the balance tilts, be it ever so slightly. This is so in every case and every situation.
13 1. The applications are disposed of in the manner and with the direction, we have indicated
above. SINGH, J. 1 have gone through the proposed judgment of my learned brother, Sabyasachi
Mukharji, CJI. I agree with the same but I consider it necessary to express my opinion on certain
aspects.
Five years ago between the night of December 2-3, 1984 one of the most tragic industrial disasters in
the recorded history of mankind occurred in the city of Bhopal, in the State of Madhya Pradesh, as a
result of which several persons died and thousands were disabled and physically inca- pacitated for
life. The ecology in and around Bhopal was adversely affected and air, water and the atmosphere
waspol- luted, its full extent has yet to be determined. UnionCar- bide India Limited (UCIL) a
subsidiary of Union Carbide Corporation (a Transnational Corporation of United States) has been
manufacturing pesticides at its plant located in the city of Bhopal. In the process of manufacture of
pesticide the UCIL had stored stock of Methyl Isocyanate commonly known as MlC a highly toxic
gas. On the night of the tragedy, the MIC leaked from the plant in substantial quantity causing
death and misery to the people working in the plant and those residing around it. The
unprecedented catastrophe demonstrated the dangers inherent in the production of hazardous
chemicals even though for the purpose of industrial development. A number of civil suits for
damages against the UCC were filed in the United States of America and also in this Country. The
cases filed in USA were referred back to the Indian courts by Judge Keenan details of which are

contained in the judgment of my learned brother Mukharji, CJI. Since those who suffered in the
catastrophe were mostly poor, ignorant, illiterate and ill-equipped to pursue their claims for
damages either before the courts in USA or in Indian courts, the Parliament enacted the Bhopal Gas
Leak Disaster (Processing of Claims) Act 1985 (hereinafter referred to as 'the Act') conferring
power on the Union of India to take over the conduct of litigation in this regard in place of the
individual claimants. The facts and circumstances which led to the settlement of the claims before
this Court have already been stated in detail in the judgment of Mukharji, CJI, and therefore, I need
not refer to those facts and circumstances. The constitutional validity of the Act has been assailed
before us in the present petitions. If the Act is declared unconstitutional, the settlement which was
recorded in this Court, under which the UCC has already deposited a sum of Rs.750 crores for
meeting the claims of Bhopal Gas victims, would fall and the amount of money which is already in
deposit with the Registry of this Court would not be available for relief to the victims. Long and de-
tailed arguments were advanced before us for a number of days and on an anxious consideration
and having regard to the legal and constitutional aspects and especially the need for immediate help
and relief to the victims of the gas disaster, which is already delayed, we have upheld the
constitutional validity of the Act. Mukharji, CJI has rendered a detailed and elaborate judgment
with which I respectfully agree. However, I consider it necessary to say few words with regard to
the steps which should be taken by the Executive and the Legislature to prevent such tragedy in
future and to avoid the prolonged misery of victims of in industrial disaster.
We are a developing country, our national resources are to be developed in the field of science,
technology, industry and agriculture. The need for industrial development has led to the
establishment of a number of plants and factories by the domestic companies and under industries
are engaged in hazardous or inherently dangerous activities which pose potential threat to life,
health and safety of persons working in the factory, or residing in the surrounding areas. Though
working of such factories and plants is regulated by a number of laws of our country, i.e. the
Factories Act, Industrial Development and Regulation Act and Workmen's Compensation Act etc.
there is no special legislation providing for compensation and damages to outsiders who may
suffer on account of any industrial accident. As the law stands to-day, affected persons have to
approach civil courts for obtaining compensation and damages. In civil courts, the determination of
amount of compensation or damages as well as the liability of the enterprise has been bound by the
shackles of conservative principles laid down by the House of Lords in Ryland v. Herchief, [1868]
LR 3 HL page 330. The principles laid therein made it difficult to obtain adequate damages from the
enterprise and that too only after the negligence of the enterprise was proved. This continued to be
the position of law, till a Constitution Bench of this Court in M.C. Mehta v. Union of India, [1987] 1
SCC 420, commonly known as Sriram Oleum Gas Leak case evolved principles and laid down new
norms to deal adequately with the new problems arising in a highly industrialised economy. This
Court made judicial innovation in laying down principles with regard to liability of enterprises
carrying hazardous or inherently dangerous activities departing from the rule laid down in Ryland v.
Fletcher. The Court held as under:
"We are of the view that an enterprise which is engaged in a hazardous or inherently
dangerous industry which poses a potential threat to the" health and safety of the
persons working in the factory and residing in the surrounding areas owes an

absolute and non- delegiable duty to the community to ensure that no harm results to
any one on account of hazardous or inherently dangerous nature of the activity which
it has undertaken. The enterprise must be held to be under an obligation to provide
that the hazardous or inherently dangerous activity in which it is engaged must be
conducted with the highest standards of safety and if any harm results on account of
such activity, the enterprise must be absolutely liable to compensate for such harm
and it should be no answer to the enterprise to say that it had taken all reasonable
care and that the harm occurred without any negligence on its part. Since the persons
harmed on account of the hazardous or inherently dangerous activity carried on by
the enterprise would not be in a position to isolate the process of operation from the
hazardous preparation of substance or any other related element that caused the
harm the enterprise must be held strictly liable for causing such harm as a part of the
social cost of carrying on the hazardous or inherently dangerous activity. If the
enterprise is permitted to carry on an hazardous or inherently dangerous activity for
its profit, the law must presume that such permission is conditional on the enterprise
absorbing the cost of any accident arising on account of such hazardous or inherently
dangerous activity as an appropriate item of its overheads. Such hazardous or
inherently dangerous activity for private profit can be tolerated only on condition
that the enterprise engaged in such hazardous or inherently dangerous activity
indemnifies all those who suffer on account of the carrying on of such hazardous or
inherently dangerous activity regardless of whether it is carried on carefully or not.
This principle is also sustainable on the ground that the enterprise alone has the
resource to discover and guard against hazards or dangers and to provide warning
against potential hazards. We would therefore hold that where an enterprise is
engaged in a hazardous or inherently dangerous activity and harm results to anyone
on account of an accident in the operation of such hazardous or inherently
dangerous activity resulting, for example, in escape of toxic gas the enterprise is
strictly and absolutely liable to compensate all those who are affected by the accident
and such liability is not subject to any of the exceptions which operate vis-a-vis the
tortious principle of strict liability under the rule in Rylands v. Fletcher."
The law so laid down made a land-mark departure from the conservative principles with regard to
the liability of an enterprise carrying on hazardous or inherently dangerous activities.
In the instant cases there is no dispute that UCIL a subsidiary of UCC was carrying on activity of
manufacturing pesticide and in that process it had stored MIC a highly toxic and dangerous gas
which leaked causing vast damage not only to human life but also to the flora and fauna and ecology
in and around Bhopal. In view of this Court's decision in M.C. Mehta's case there is no scope for
any doubt regarding the liability of the UCC for the damage caused to the human beings and nature
in and around Bhopal. While entering into the settlement the UCC has accepted its liability and for
that reason it has deposited a sum of Rs.750 crores in this Court. The inadequacy of the amount of
compensation under the settlement was assailed by the counsel for the petitioners but it is not
necessary for us to express any opinion on that question as review petitions are pending before
another Constitution Bench and more so as in the present cases we are concerned only with the

constitutional validity of the Act.
The Bhopal Gas tragedy has raised several important questions regarding the functioning of
multi-nationals in third world countries.After the Second world war colonial rule came to end in
several parts of the globe, as a number of natives secured independence from foreign rule. The
political domination was over but the newly born nations were beset with various problems on
account of lack of finances and development. A number of multi-nationals and transnational
corporations offered their services to the under-developed and developing countries to provide
finances and technical know-how by setting up their own industries in those countries on their own
terms that brought problems with regard to the control over the functioning of the transnational
corporations. Multi-national companies in many cases exploited the under- developed nations and
in some cases they influenced political and economic policies of host countries which subverted the
sovereignty of those countries. There has been complaints against the multi-nationals for adopting
unfair and corrupt means to advance their interests in the host countries. Since this was a
worldwide phenomena the United Nations took up the matter for consideration. The Economic and
Social Council of the United Nations established a Commission on Transnational Corporations to
conduct research on various political, economic and social aspects relating to transnational
corporations. On a careful and detailed study the Commission submitted its Report in 1985 for
evolving a Code of Conduct for Transnational Corporations. The Code was adopted in 1986 to
which large number of countries of the world are signatories. Although it has not been fully finalised
as yet, the Code presents a comprehensive instrument formulating the principles of Code of
Conduct for transnational corporations carrying on their enterprises in under developed and
developing countries. The Code contains provisions regarding ownership and control designed to
strike balance between the competing interests of the Trans- national Corporation and the host
countries. It extensively deals with the political, economic, financial, social and legal questions. The
Code provides for disclosure of information to the host countries and it also provides guidelines for
nationalisation and compensation, obligations to international law and jurisdiction of courts. The
Code lays down provisions for settlement of disputes between the host States and an affiliate of a
Transnational Corporation. It suggests that such disputes should be submitted to the national courts
or authorities of host countries unless amicably settled between the parties. It provides for the
choice of law and means for dispute settlement arising out of contracts. The Code has also laid down
guidelines for the determination of settlement of disputes arising out of accident and disaster and
also for liability of Transnation- al Corporations and the jurisdiction of the courts. The Code is
binding on the countries which formally accept it. It was stated before us that India has accepted the
Code. If that be so, it is necessary that the Government should take effective measures to translate
the provisions of the Code into specific actions and policies backed by appropriate legislation and
enforcing machinery to prevent any accident or disaster and to secure the welfare of the victims of
any industrial disaster.
In the context of our national dimensions of human rights, right to life, liberty, pollution free air and
water is guaranteed by the Constitution under Articles 21, 48A and 5l(g), it is the duty of the State to
take effective steps to protect the guaranteed constitutional rights. These rights must be integrated
and illumined by the evolving international dimensions and standards, having regard to our
sovereignty, as highlighted by Clauses 9 and 13 of U.N. Code of conduct on Transnational

Corporations. The evolving standards of international obligations need to be respected, maintaining

dignity and sovereignty of our people, the State must take effective steps to safeguard the
constitutional rights of citizens by enacting laws. The laws so made may provide for conditions for
granting licence to Transnational Corpora- tions, prescribing norms and standards for running
industries on Indian soil ensuring the constitutional rights of our people relating to life, liberty, as
well as safety to environment and ecology to enable the people to lead a healthy and clean life. A
Transnational Corporation should be made liable and subservient to laws of our country and the
liability should not be restricted to affiliate company only but the parent corporation should also be
made liable for any damage caused to the human being or ecology. The law must require
transnational corporations to agree to pay such damages as may be determined. by the statutory
agencies and forum constituted under it without exposing the victims to long drawn litigation.
Under the existing civil law damages are determined by the Civil Courts, after a long drawn
litigation, which destroys the very purpose of awarding damages. In order to meet the situation, to
avoid delay and to ensure immediate relief to the victims we would suggest that the law made by the
Parliament should provide for constitution of tribunals regulated by special procedure for
determining compensation to victims of industrial disaster or accident, appeal against which may lie
to this Court on limited ground of questions of law only after depositing the amount determined by
the Tribunal. The law should also provide for interim relief to victims during the pendency of
proceedings. These steps would minimise the misery and agony of victims of hazardous enterprises.
There is yet another aspect which needs consideration by the Government and the Parliament.
Industrial development in our country and the hazards involved therein, pose a mandatory need to
constitute a statutory "Industrial Disas- ter Fund", contributions to which may be made by, the Gov-
ernment, the industries whether they are transnational corporations or domestic undertakings
public or private. The extent of contribution may be worked out having regard to the extent of
hazardous nature of the enterprise and other allied matters. The Fund should be permanent in
nature, so that money is readily available for providing immediate effective relief to the victims. This
may avoid delay, as has happened in the instant case in providing effective relief to the victims. The
Government and the Parliament should therefore take immediate steps for enacting laws, having
regard to these suggestions, consistent with the international norms and guidelines as contained in
the United Nations Code of Con- duct on Transnational Corporations.
With these observations, I agree with the order proposed by my learned brother, Sabyasachi
Mukharji, CJI. RANGANATHAN, J. Five years ago, this country was shaken to its core by a national
catastrophe, second in magnitude and disastrous effects only to the havoc wrought by the atomic
explosions in Hiroshima and Nagasaki. Multitudes of illiterate and poverty-stricken people in and
around Bhopal suffered damage to life and limb due to the escape of poisonous Methyl Isocyanate
(MIC) gas from one of the storage tanks at the factory of the Union Carbide (India) Limited (UCIL)
in Bhopal, a wholly owned subsidiary of the multinational giant, the Union Carbide Corporation
(UCC). A number of civil suits claiming damages from the UCC were filed in the United States of
America and similar litigation also followed in Indian courts. Fearing the possibilities of the
exploitation of the situation by vested interests, the Government of India enacted, the Bhopal Gas
Leak Disaster (Processing of Claims) Act, 1985 ('the Act') to regulate the course of such litigation.
Briefly speaking, it empowered the Union of India to take over the conduct of all litigation in this

regard and conduct it in place of, or in association with, the individual claimants. It also enabled
the Union to enter into a compromise with the UCC and UCIL and arrive at a settlement. The writ
petitions before us have been filed challenging the constitutional validity of this statute on the
ground that the divestiture of the claimants' individual rights to legal remedy against the
multinational for the consequences of carrying on dangerous and hazardous activities on our soil
violates the fundamental rights guaranteed under article 14, 19 and 21 of the Constitution. In
consequence of certain proceedings before Judge Keenan of the U.S. District Courts, the venue of
the litigation shifted to India. In the principal suit filed in India by the Union (Civil Suit No.
1113/86) orders were passed by the trial court in Bhopal directing the UCC to deposit Rs.370 crores
(reduced to Rs.250 crores by the Madhya Pra- desh High Court) as interim payment to the gas
victims pending disposal of the suit. There were appeals to this Court in which the UCC contested
the Court's jurisdiction to pass an order for an interim payment in a suit for money, while the Union
pleaded that a much higher interim payment should have been granted. When the matter was being
argued in this Court, a settlement was arrived at between the Union and the UCC under which a sum
of Rs.750 crores has been received by the Union in full settlement of all the claims of all victims of
the gas leak against the UCC. The Union also agreed to withdraw certain prosecutions that had been
initiated against the officials of the UCC and UCIL in this connection. This settlement received the
imprimatur of this Court in its orders dated 14th & 15th February, 1989. It is unfortunate that,
though the writ petitions before us were pending in this Court at that time, neither their contents
nor the need for considering first the issue of the validity of the Act before thinking of a settlement
in pursuance of its provisions seem to have been effectively brought to the notice of the Bench which
put an end to all the litigation on this topic in terms of the settlement. The settlement thus stood
approved while the issue of validity of the Act under which it was effected stood undecided. When
this was brought to the notice of the above Bench, it directed these writ petitions to be listed before
a different Bench 'to avoid any possible feeling that the same Bench may be coloured in its views on
the issue by reason of the approval it had given to the fait accompli viz. the settlement. That is now
these matters came before us. The petitioners, claiming to represent a section of the victims are,
firstly, against any settlement at all being arrived at with the UCC. According to them, it is more
important to ensure by penal action that multinational corporations do not play with the lives of
people in developing and under developed countries than to be satisfied with mere compensation
for injury and that the criminal prosecutions initiated in this case should have been pursued.
Secondly, they are of the view that the amount for which the claims have been settled is a pittance,
far below the amount of damages they would have been entitled to, on the principles of strict,
absolute and punitive liability enunciated by this Court in Mehta's case [1987] 1 S.C.R.
819. Thirdly, their grievance is that no publicity at all was given, before this court passed its order, to
enable individual claimants or groups of them to put forward their suggestions or objections to the
settlement proposed. Their interests were sealed, they say, without complying with elementary
principles of natural justice. They contend that the provisions of an Act which has made such a
settlement possible cannot be constitutionally valid.
The arguments before us ranged over a very wide ground, covered several issues and extended to
several days. This Bench has been placed in somewhat of a predicament as it has to pronounce on
the validity of the provisions of the Act in the context of an implementation of its provisions in a

particular manner and, though we cannot (and do not) express any views regarding the merits of the
settlement, we are asked to consider whether such settlement can be consistent with a correct and
proper interpretation of the Act tested on the touchstone of the fundamental rights guaranteed
under the Constitution. Mukharji, C.J., has outlined the issues, dealt elaborately with the
contentions urged, and given expression to his conclusions in a learned, elaborate and detailed
judgment which we have had the advantage of perus- ing in draft. Our learned brother K.N. Singh,
J., has also highlighted certain aspects in his separate judgment. We are, in large measure, in
agreement with them, but should like to say a few words on some of the issues in this case,
particularly those in regard to which our approach has been somewhat different:
1. The issue regarding the validity of the Act turns principally on the construction of sections 3 and 4
of the Act. We are inclined to hold that the fact that a settlement has been effected, or the
circumstances in which or the amount for which the claims of the victims have been settled, do not
have a bearing on this question of interpretation and have to be left out of account altogether
except as providing a contextual background in which the question arises. Turning therefore to the
statute and its implications, the position is this. Every person who suffered as a consequence of the
gas leak had a right to claim compensation from the persons who, according to him, were liable in
law for the injury caused to him and also a fight to institute a suit or proceeding before any court or
authority with a view to enforce his right to claim damages. In the normal course of events, such a
claimant who institute a suit or proceeding would have been at complete liberty to withdraw the said
suit or proceeding or enter into any compromise he may choose in that regard. Section 3
undoubtedly takes away this fight of the claimant altogether: (a) except to the limited extent
specified in the proviso to S. 3(3) and (b) subject to the provisions of S. 4, for this section clearly
states that it is the Central Government and the Central Government alone which has the right to
represent and act in place of the claimants, whether within or outside India, for all purposes in
connection with the enforcement of his claims. We may first consider how far the main provision in
S. 3 (leaving out of account the proviso as well as section 4) is compatible with the Constitution The
first question that arises is whether the legislature is justified in depriving the claimants of the
right and privilege of enforcing their claims and prosecuting them in such manner as they deem fit
and in compulsorily inter- posing or substituting the Government in their place. We think that, to
this question, there can be only one answer. As pointed out by our learned brother, the situation was
such that the victims of the tragedy needed to be protected against themselves as their adversery
was a mighty multinational corporation and proceedings to a considerable extent had been
initiated in a foreign country, where the conduct of the cases was entrusted to foreign lawyers under
a system of litigation which is unfamiliar to us here. In the stark reality of the situation, it cannot
even be plau- sibly contended that the large number of victims of the gas leak disaster should have
been left to fend for itself and merely provided with some legal aid of one type or another. It is
necessary to remember that, having regard to the identity of the principal ground of claim of all the
victims, even if a single victim was not diligent in conducting his suit or entered into a compromise
or submitted to a decree judging the issues purely from his individual point of view, such a decision
or decree could adversely affect the interests of the innumerable other victims as well. In fact, it
appears that a settlement between one set of claimants and the adversary corporation was almost
imminent and would perhaps have been through out for the timely intervention of the Government
of India. The battle for the enforcement of one's rights was bound to be not only prolonged but also

very arduous and expensive and the decision of the legislature that the fight against the adversary
should be consolidated and its conduct handed over to the Government of India--it may perhaps
have been better if it had been handed over to an autonomous body independent of the Govern-
ment but, as pointed out by our learned brother, the course adopted was also not objectionable--was
perhaps the only decision that could have been taken in the circumstances. This is indeed a unique
situation in which the victims, in order to realise to the best advantage their rights against UCC, had
to be helped out by transposing that right to be enforced by the Government.
We did not indeed understand any learned counsel before us to say that the legislature erred in
entrusting the Government of India with the responsibility of fighting for the victims. The only
grievance is that in the process their right to take legal proceedings should not have been completely
taken away and that they should also have had the liberty of participating in the proceedings right
through. In fact, though the Act contemplates the Central Government to completely act in place of
the victims, the Government of India has not in fact displaced them altogether. In all the
proceedings pending in this country, as well as those before Judge Keenan, the Government of India
has conducted the proceedings but the other victims or such of them as chose to associate
themselves in these proceedings by becoming parties were not shut out from taking part in the
proceedings. In fact, as the learned Attorney General pointed out, one of the groups of litigants did
give great assistance to the trial judge at Bhopal. But even if the provisions of S. 3 had been
scrupulously observed and the names of all parties, other than the Central Government, had been
got deleted from the array of parties in the suits and proceedings pending in this country, we do not
think that the result would have been fatal to the interests of the litigants. On the contrary, it
enabled the litigants to obtain the benefit of all legal expertise at the command of the Government of
India in exercising their rights against the Union Carbide Corpora- tion. Such representation can
well be justified by resort to a principle analogous to, if not precisely the same as that of, "parens
patriae". A victim of the tragedy is compelled to part with a valuable right of his in order that it
might be more efficiently and satisfactory 'exploited for his benefit than he himself is capable of. It is
of course possible that there may be an affluent claimant or lawyer engaged by him, who may be
capable of fighting the litigation better. It is possible that the Government of India as a litigant may
or may not be able to pursue the litigation with as much determination or capability as such a
litigant. But in a case of the present type one should not be confounded by such a possibility. There
are more indigent litigants than affluent ones. There are more illiterates than enlightened ones.
There are very few of the claimants, capable of finding the financial wherewithal required for
fighting the litigation. Very few of them are capable of prosecuting such a litigation in this country
not to speak of the necessity to run to a foreign country. The financial position of UCIL was
negligible compared to the magnitude of the claim that could arise and, though eventually the battle
had to be pitched on our own soil, an initial as well as final recourse to legal proceedings in the
United States was very much on the cards, indeed inevitable. In this situation, the legislature was
perfectly justified in coming to the aid of the victims with this piece of legislation and in asking the
Central Government to shoulder the responsibility by substituting itself in place of the victims for all
purposes connected with the claims. Even if the Act had provided for a total substitution of the
Government of India in place of the victims and had completely precluded them from exercising
their rights in any manner, it could perhaps have still been contended that such deprivation was
necessary in larger public interest.

But the Act is not so draconian in its content. Actual- ly, as we have said a little earlier, the grievance
of the petitioners is not so much that the Government was entrusted with the functions. of a
dominus litis in this litigation. Their contention is that the whole object and purpose of the litigation
is to promote the interests of the claimants, to enable them to fight the UCC with greater strength
and determination, to help them overcome limitations of time, money and legal assistance and to
realise the best compensation possible consistent not only with the damage suffered by them but
also consistent with national honour and prestige. It is suggested that the power conferred on the
Gov- ernment should be construed as one hedged in by this dominant object. A divestiture of the
claimant's right in this situation would be reasonable, it is said, only if the claimant's rights are
supplemented by the Government and not supplanted by it.
Assuming the correctness of the argument, the provisions of the proviso to S. 3(3) and of section 4
furnish an answer to this contention. While the provision contained in the main part of section 3
may be sufficient to enable the Government of India to claim to represent the claimants and initiate
and conduct suits or proceeding on their behalf, the locus standi of the Government of India in suits
filed by other claimants before the commencement of the Act outside India would naturally depend
upon the discretion of the court enquiring into the matter. That is why the proviso to section 3
makes the right of the Government of India to represent and act in place of the victims in such
proceedings subject to the permission of the court or authority where the proceedings are pending.
It is of course open to such court to permit the Central Government even to displace the claimants if
it is satisfied that the authority of the Act is sufficient to enable it to do so. In the present case it is
common ground that the proceedings before Judge Keenan were being prosecuted by the Central
Government along with various individual claimants. Not only did Judge Keenan permit the
association of the Government of India in these proceedings but the Government of India did have a
substantial voice in the course of those proceedings as well. Again section 4 mandates that,
notwithstanding anything contained in section 3, the Central Government, in representing and
acting in place of any person in relation to any claim, shall have due regard to any matters which
such person may require to be urged with respect to his claim. It also stipulates that if such person
so desires, the Central Government shall permit, at the expense of such person, a legal practitioner
of his choice to be associated in the conduct of any suit or other proceeding relating to his claim. In
other words, though, perhaps, strictly speaking, under section 3 the Central Government can totally
exclude the victim himself or his legal practitioner from taking part in the proceedings (except in
pending suits outside India), section 4 keeps the substance of the rights of the victims in tact. It
enables, and indeed obliges, the Govern- ment to receive assistance from individual claimants to the
extent they are able to offer the same. If any of the victims or their legal advisers have any specific
aspect which they would like to urge, the Central Government shall take it into account. Again if any
individual claimant at his own expense retains a legal practitioner of his own choice, such legal
practitioner will have to be associated with the Government in the conduct of any suit or proceeding
relating to his claim. Sections 3 and 4 thus combine together the interests of the weak, illiterate,
helpless and poor victims as well as the interests of those who could have managed for themselves,
even without the help of this enactment. The combination thus envisaged enables the Government
to fight the battle with the foreign adversary with the full aid and assistance of such of the victims or
their legal advisers as are in a position to offer any such assistance. Though section 3 denies the
claimants the benefit of being eo nominee parties in such suits or proceedings, section 4 preserves to

them substantially all that they can achieve by proceeding on their own. In other words, while
seeming to deprive the claimants of their right to take legal action on their own, it has preserved
those rights, to be exercised indirectly. A conjoint reading of sections 3 and 4 would, in our opinion,
therefore show that there has been no real total deprivation of the right of the claimants to enforce
their claim for damages in appropriate proceedings before any appropriate forum. There is only a
restriction of this right which, in the circumstances, is totally reasonable and justified. The validity
of the Act is, therefore, not liable to be challenged on this ground.
The next angle from which the validity of the provision is attacked is that the provision enabling the
Government to enter into a compromise is bad. The argument runs thus: The object of the
legislation can be furthered only if it permits the Government to prosecute the litigation more
effectively and not if it enables the Government to withdraw it or enter into a compromise.
According to them, the Act fails the impecunious victims in this vital aspect. The authority conferred
by the Act on the Government to enter into a settlement or compromise, it is said, amounts to an
absolute negation of the rights of the claimants to compensation and is capable of being so exercised
to render such rights totally valueless, as in fact, it is said, has happened.
It appears to us that this contention proceeds on a misapprehension. It is common knowledge that

any authority given to conduct a litigation cannot be effective unless it is accompanied by an
authority to withdraw or settle the same if the circumstances call for it. The vagaries of a litigation of
this magnitude and intricacy could not be fully anticipated. There were possibilities that the litiga-
tion may have to be fought out to the bitter finish. There were possibilities that the UCC might be
willing to adequately compensate the victims either on their own' or at the insistence of the
Government concerned. There was also the possibility, which had already been in evidence before
Judge Keenan, that the proceedings might ultimately have to end in a negotiated settlement. One
notices that in most of the mass disaster cases reported, proceedings finally end in a compromise if
only to avoid an indefinite prolongation of the agonies caused by such litigation. The legislation,
therefore, cannot be considered to be unreasonable merely because in addition to the right to
institute a suit or other proceedings it also empowers the Government to withdraw the proceedings
or enter into a compromise. Some misgivings were expressed, in the course of the hearing, of the
legislative wisdom (and, hence the validity) of entrusting the carriage of these proceedings and, in
particular, the power of settling it out of Court, to the Union of India. It was contended that the
union is itself a joint tort-feasor (sued as such by some of the victims) with an interest (adverse to
the victims) in keeping down the amount of compensation payable to the minimum so as to reduce
its own liability as a joint tort-feasor. It seems to us that this contention in misconceived. As pointed
out by Mukharji, C.J., the Union of India itself is one of the entities affected by the gas leak and has a
claim for compensation from the UCC quite independent of the other victims. From this point of
view, it is in the same position as the other victims and, in the litigation with the UCC, it has every
interest in securing the maximum amount of compensation possible for itself and the other
victims. It is, therefore, the best agency in the circumstances that could be looked up to for fighting
the UCC on its own as well as on behalf of the victims. The suggestion that the Union is a joint
tort-lessor has been stoutly resisted by the learned Attorney General. But, even assuming that the
Union has some liability in the matter, we fail to see-how it can derive any benefit or advantage by
entering into a low settlement with the UCC. as is pointed out later in this judgment and by

Mukharji, C.J., the Act and Scheme thereunder have provided for an objective and quasi-judicial
determination of the amount of damages payable to the victims of the tragedy. There is no basis for
the fear expressed during the hearing that the officers of the Government may not be objective and
may try to cut down the amounts of compensation, so as not to exceed the amount received from the
UCC. It is common ground and, indeed, the learned Attorney General fairly conceded, that the
settlement with the UCC only puts an end to the claims against the UCC and UCIL and does not in
any way affect the victims' rights, if any, to proceed against the Union, the State of Madhya Pradesh
or the ministers and officers thereof, if so advised. If the Union and these officers are joint tort-
lessors, as alleged, the Union will not stand to gain by allowing the claims against the UCC to be
settled for a low figure. On the contrary it will be interested in settling the claims against the UCC at
as high a figure as possible so that its own liability as a joint tort-feasor (if made out) can be
correspondingly reduced. We are, therefore, unable to see any vitiating element in the legislation
insofar as it has entrusted the responsibility not only of carrying on but also of entering into a
settlement, if thought fit.
Nor is there basis for the contention that the Act enables a settlement to be arrived at without a
proper opportunity to the claimants to express their views on any proposals for settlement that may
be mooted. The right of the claimant under section 4 to put forward his suggestions or to be
represented by a legal practitioner to put forth his own views in the conduct of the suit or other
proceeding certainly extends to everything connected with the suit or other proceeding. If, in the
course of the proceedings there should arise any question of compromise or settlement, it is open to
the claimants to oppose the same and to urge the Central Government to have regard to specific
aspects m arriving at a settlement. Equally it is open to any claimant to employ a legal practitioner
to ventilate his opinions in regard to such proposals for settlement. The provisions of the Act, read
by themselves, therefore, guarantee a complete and full protection to the rights of the claimants in
every respect. Save only that they cannot file a suit themselves, their right to acquire redress has not
really been abridged by the provisions of the Act. Sections 3 and 4 of the Act properly read, in our
opinion, completely vindicate the objects and reasons which compelled Parliament to enact this
piece of legislation.
Far from abridging the rights of the claimants in any manner, these provisions are so worded as to
enable the Govern- ment to prosecute the litigation with the maximum amount of resources,
efficiency and competence at its command as well as with all the assistance and help that can be
extended to it by such of those litigants and claimants as are capable of playing more than a mere
passive rule in the litigations But then, it is contended, the victims have had no opportunity of
considering the settlement proposals mooted in this case before they were approved by the Court.
This aspect is dealt with later.
2. One of the contentions before us was that the UCC and UCIL are accountable to the public for the
damages caused by their industrial activities not only on a basis of strict liability but also on the
basis that the damages to be awarded against them should include an element of punitive liability
and that this has been lost sight of while approving of the proposed settlement. Reference was
made in this context to M.C. Mehta's case (supra). Whether the settlement should have taken into
account this factor is, in the first place, a moot question. Mukharji, C.J. has pointed out--and we are

inclined to agree-that this is an "uncertain province of the law" and it is premature to say whether
this yardstick has been, or will be, accepted in this country, not to speak of its international
acceptance which may be necessary should occasion arise for executing a decree based on such a
yardstick in another country. Secondly, whether the settlement took this into account and, if not,
whether it is bad for not having kept this basis in view are questions that touch the merits of the
settlement with which we are not concerned. So we feel we should express no opinion here on this
issue. It is too far-fetched, it seems to us, to contend that the provisions of the Act permitting the
Union of India to enter into a compromise should be struck down as unconstitutional because they
have been construed by the Union of India as enabling it to arrive at such a settlement.
The argument is that the Act confers a discretionary and enabling power in the Union to arrive at a
settlement but lays down no guidelines or indications as to the stage at which, or circumstances in
which, a settlement can be reached or the type of settlement that can be arrived at; the power
conferred should, therefore, be struck down as unguided, arbitrary and uncanalised. It is difficult to
accept this contention. The power to conduct a litigation, particularly in a case of this type, must, to
be effective, necessarily carry with it a power to settle it at any stage. It is impossible to provide
statutorily any detailed catalogue of the situations that would justify a settlement or the basis or
terms on which a settlement can be arrived at. The Act. moreover, cannot be said to have conferred
any unguided or arbitrary discretion to the Union in conducting proceedings under the Act.
Sufficient guidelines emerge from the Statement of Objects and Reasons of the Act which makes it
clear that the aim and purpose of the Act is to secure speedy and effective redress to the victims of
the gas leak and that all steps taken in pursuance of the Act should be for the implementation of the
object. Whether this object has been achieved by a particular settlement will be a different question
but it is altogether impossible to say that the Act itself is bad for the reason alleged. We, therefore,
think it necessary to clarify, for our part, that we are not called upon to express any view on the
observations in Mehta's case and should not be understood as having done so.
3. Shri Shanti Bhushan, who supported the Union's stand as to the validity of the Act, however,
made his support conditional on reading into its provisions an obligation on the part of the Union to
make interim payments towards their maintenance and other needs consequent on the tragedy,
until the suits filed on their behalf ultimately yield tangible results. That a modern welfare State is
under an obligation to give succour and all kinds of assistance to people in distress cannot at all be
gainsaid. In point of fact also, as pointed out by the learned Chief Justice, the provisions of the Act
and scheme thereunder envisage interim payments to the victims; so, there is nothing objectionable
in this Act on this aspect. However, our learned brother has accepted the argument addressed by
Shri Shanti Bhushan which goes one step further viz. that the Act would be unconstitutional unless
this is read as "a major inarticulate promise" underlying the Act. We doubt whether this extension
would be justified for the hypothesis underlying the argument is, in the words of Sri Shanti
Bhushan, that had the victims been left to fend for themselves, they would have had an "immediate
and normal right of obtaining compensation from the Union Carbide" and, as the legislation has
vested their rights in this regard in the Union, the Act should be construed as creating an
obligation on the Central Government to provide interim relief. Though we would emphatically
reiterate that grant of interim relief to ameliorate the plight of its subjects in such a situation is a
matter of imperative obligation on the part of the State and not merely 'a matter of fundamental

human decency' as Judge Keenan put it, we think that such obligation flows from its character as a
welfare State and would exist irrespective of what the statute may or may not provide. In our view
the validity of the Act does not depend upon its explicitly or implicitly providing for interim
payments. We say this for two reasons. In the first place, it was, and perhaps still is, a moot question
whether a plaintiff suing for damages in tort would be entitled to advance or interim payments in
anticipation of a decree. That was, indeed, the main point on which the interim orders in this case
were challenged before this Court and, in the context of the events that took place, remains
undecided. It may be mentioned here that no decided case was brought to our notice in which
interim payment was ordered pending disposal of an action in tort in this country. May be there is a
strong case for ordering interim payments in such a case but, in the absence of full and detailed
consideration, it cannot be assumed that, left to themselves, the victims would have been entitled to
a "normal and immediate" right to such payment. Secondly, even assuming such right exists, all that
can be said is that the State, which put itself in the place of the victims, should have raised in the suit
a demand for such interim compensation--which it did--and that it should distribute among the
victims such interim compensation as it may receive from the defendants. To say that the Act would
be bad if it does not provide for payment of such compensation by the Government irrespective of
what may happen in the suit is to impose on the State an obligation higher than what flows from its
being subrogated to the rights of the victims. As we agree that the Act and the scheme thereunder
envisage interim relief to the victims, the point is perhaps only academic. But we felt that we should
mention this as we are not in full agreement with Mukharji, C.J., on this aspect on the case.
4. The next important aspect on which much debate took place before us was regarding the validity
of the Act qua the procedure envisaged by it for a compromise or settlement. It was argued that if
the suit is considered as a representative suit no compromise or settlement would be possible
without notice in some appropriate manner to all the victims of the proposed settlement and an
opportunity to them to ventilate their views thereon (vide Order XXIII, r. 3B, C.P.C.). The argument
runs thus: S. 4 of the Act either incorporates the safeguards of these provisions in which event any
settlement effected without compliance with the spirit, if not the letter, of these provisions would be
ultra vires the Act. Or it does not, in which event, the provisions of S. 4 would be bad as making
possible an arbitrary deprivation of the victims' rights being inconsistent with, and derogatory of,
the basic rules established by the ordinary Law of the land viz. the Code of Civil Procedure. We are
inclined to take the view that it is not possible to bring the suits brought under the Act within the
categories of representative action envisaged in the Code of Civil procedure. The Act deals with a
class of action which is sui generis and for which a special formula has been found and encapsuled
in S.
4. The Act divests the individual claimants of their right to sue and vests it in the Union. In relation
to suits in India, the Union is the sole plaintiff, none of the others are envisaged as plaintiffs or
respondents. The victims of the tragedy were so numerous that they were never defined at the stage
of filing the plaint nor do they need to be defined at the stage of a settlement. The litigation is car-
ried on by the State in its capacity, not exactly the same as but somewhat analogous to that of a
"parens patriae". In the case of a litigation by karta of a Hindu Undivided Family or by a guardian on
behalf of a ward, who is non-sui juris, for example, the junior members of the family or the wards,
are not to be consulted before entering into a settlement. In such cases, the Court acts as guardian

of such persons to scrutinise the settlement and satisfy itself that it is in the best interest of all
concerned. It is later discovered that there has been any fraud or collusion, it may be open to the
junior members of the family or the wards to call the karta or guardian to account but, barring such
a contingency, the settlement would be effective and binding. In the same way, the Union as "parens
patriae" would have been at liberty to enter into such settlement as it considered best on its own
and seek the Court's approval therefore.
However, realising that the litigation is truly fought on behalf and for the benefit of innumerable,
though not fully identified victims the Act has considered it necessary to assign a definite role to the
individual claimants and this is spelt out in S. 4. This section directs:
(i) that the union shall have due regard to any matters which such person may
require to be urged with respect to his claim; and
(ii) that the Union shaH, if such person so desires, permit at the expense of such
person, a legal practitioner of his choice to be associated in the conduct of any suit or
other proceeding relating to his claim.
This provision adequately safeguards the interests of individual victims. It enables each one of
them to bring to the notice of the Union any special features or circumstances which he would like to
urge in respect of any matter and if any such features are brought to its notice the Union is obliged
to take it into account. Again, the individual claimants are also at liberty to engage their own counsel
to associate with the State counsel in conducting the proceedings. If the suits in this case had
proceeded, in the normal course, either to the stage of a decree or even to one of settlement the
claimants could have kept themselves abreast of the developments and the statutory provisions
would have been more than adequate to ensure that the points of view of all the victims are
presented to the court. Even a settlement or compromise could not have been arrived at without the
court being apprised of the views or any of them who chose to do so. Advisedly, the statute has
provided that though the Union of India will be the dominus litis in the suit, the interests of all the
victims and their claims should be safeguarded by giving them a voice in the proceedings to the
extent indicated above. This provision of the statute is an adaptation of the principle of O.I.r. 8 and
of Or. XXIII r. 3 of the Code of Civil Procedure in its application to the suits governed by it and,
though the extent of participation allowed to the victims is somewhat differently enunciated in the
legislation, substantially speaking, it does incorporate the principles of natural justice to the extent
possible in the circumstances. The statute cannot, therefore, be faulted, as has been pointed out
earlier also, on the ground that it denies the victims an opportunity to present their views or places
them at any disadvantage in the matter of having an effective voice in the matter of settling the suit
by way of compromise.
The difficulty in this case has arisen, as we see it, because of a fortuitous circumstance viz. that the
talks of compromise were mooted and approved in the course of the hearing of an appeal from an
order for interim payments. Though compromise talks had been in the air right from the beginning
of this episode, it is said that there was an element of surprise when they were put forward in Court
in February, 1989. This is not quite correct. It has been pointed out that even when the issue

regarding the interim relief was debated in the courts below, attempts were made to settle the whole
litigation. The claimants were aware of this and they could--perhaps should--have anticipated that
similar attempts would be made in this Court also. Though certain parties had been associated with
the conduct of the proceedings in the trial court--and the trial judge did handsomely acknowledge
their contribution to the proceedings--they were apparently not alert enough to keep a watch- ing
brief in the Supreme Court, may be under the impression that the appeal here was concerned only
with the quantum of interim relief. One set of parties was present in the Court but, apart from
praying that he should be forthwith paid a share in the amount that would be deposited in Court by
the UCC in pursuance of the settlement, no attempt appears to have been made to put forward a
contention that the amount of settlement was inade-
quate or had not taken into account certain relevant considerations. The Union also appears to
have been acting on the view that it could proceed ahead on its own both in its capacity as "parens
patraie" as well as in view of the powers of attorney held by it from a very large number of the
victims though the genuineness of this claim is now contested before us. There was a day's interval
between the enunciation of the terms of the settlement and their approval by the Court. Perhaps
the Court could have given some more publicity to the proposed settlement in the newspapers, radio
and television and also permitted some time to lapse before approving it, if only to see whether there
were any other points of view likely to emerge. Basically speaking, however, the Act has provided an
adequate opportunity to the victims to speak out and if they or the counsel engaged by some of them
in the trial court had kept in touch with the proceedings in this court, they could have most certainly
made themselves heard. If a feeling has gained ground that their voice has not been fully heard, the
fault was not with the statute but was rather due to the developments leading to the finalisation of
the settlement when the appeal against the interim order was being heard in this Court. One of the
points of view on which considerable emphasis was laid in the course of the arguments was that in a
case of this type the offending parties should be dealt with strictly under the criminal law of the
Land and that the inclusion, as part of the settlement, of a term requiring the withdrawal of the
criminal prosecutions launched was totally unwarranted and vitiates the settlement. It has been
pointed out by Mukharji, C.J. ,--and we agree--that the Act talks only of the civil liability of, and the
proceedings against, the UCC or UCIL or others for damages caused by the gas leak. It has nothing
to say about the criminal liability of any of the parties involved. Clearly, therefore, this part of the
settlement comprises a term which is outside the purview of the Act. The validity of the Act cannot,
therefore, be impugned on the ground that it permits--and should not have permitted-the
withdrawal of criminal proceedings against the delinquents. Whether in arriving at the settlement,
this aspect could also have been taken into account and this term included in it, is a question
concerning the validity of the settlement. This is a question outside the terms of reference to us and
we, therefore, express no opinion in regard thereto.
5. A question was mooted before us as to whether the actual settlement--if not the statutory
provision--is liable to be set aside on the grounds that the principles of natural justice have been
flagrantly violated. The merits of the settlement as such are not in issue before us and nothing we
say can or should fetter the hands of the Bench hearing a review petition which has already been
filed, from passing such orders thereon as it considers appropriate.

Our learned brother, however, has, while observing that the question referred to us is limited to the
validity of the Act alone and not the settlement, incidentally discussed this aspect of the case too. He
has pointed out that justice has in fact been done and that all facts and aspects relevant for a
settlement have been considered. He has pointed out that the grievance of the petitioners that the
order of this Court did not give any basis for the settlement has since been sought to be met by the
order passed on 4th May, 1989 giving detailed reasons, This shows that the Court had applied its
mind fully to the terms of the settlement in the light of the data as well as all the circumstances
placed before it and had been satisfied that the settlement proposed was a fair and reasonable one
that could be approved. In actions of this type, the Court's approval is the true safety valve to
prevent unfair settlements and the fact is that the highest Court of the land has given thought to the
matter and seen it fit to place its seal of approval to the settlement. He has also pointed out that a
post-decisional hearing in a matter like this will not be of much avail. He has further pointed out
that a review petition has already been filed in the case and is listed for hearing. The Court has
already given an assurance in its order of May 4, 1989, that it will only be too glad to consider any
aspects that may have been overlooked in considering the terms of the settlement. Can it be said, in
the circumstances, that there has been a failure of justice which compels us to set aside the
settlement as totally violative of fundamental rights? Mukharji, C.J., has pointed out that the answer
to this question should be in the negative. It was urged that there is a feeling that the maxim:
"Justice must not only be done but must also appear to be done" has not been fully complied with
and that perhaps, if greater publicity had attended the hearing, many other facts and aspects could
have been highlighted resulting in a higher settlement or no settlement at all. That feeling can be
fully ventilated and that deficiency can be adequately repaired, it has been pointed out by
Mukharji, C.J., in the hearing on the review petition pending before this Court. Though we are
prima facie inclined to agree with him that there are good reasons why the settlement should not
be set aside on the ground that the principles of natural justice have been violated, quite apart
from the practical complications that may arise as the result of such an order, we would not express
any final opinion on the validity of the settlement but would leave it open to be agitated, to the
extent permissible in law, in the review petition pending before this Court.
There is one more aspect which we may perhaps usefully refer to in this context. The scheme of the
Act is that on the one hand the Union of India pursues the litigiation against the UCC and the UCIL;
on the other all the victims of the tragedy are expected to file their claims before the prescribed
authority and have their claims for compensation determined by such authority. Certain infirmities
were pointed out on behalf of the petitioners in the statutory provisions enacted in this regard. Our
learned brother has dealt with these aspects and given appropriate directions to ensure that the
claims will be gone into by a quasi judicial authority (unfettered by executive prescriptions of the
amounts of compensation by categorising the nature of injuries) with an appeal to an officer who
has judicial qualifications. In this manner the scheme under the Act provides for a proper
determination of the compensation payable to the various claimants. Claims have already been filed
and these are being scrutinised and processed. A correct picture as to whether the amount of
compensation for which the claims have ben settled is meagre, adequate or excessive will emerge
only at that stage when all the claims have been processed and their aggregate is determined. In
these circumstances, we feel that no useful purpose will be served by a post-decisional hearing on
the quantum of compensation to be considered adequate for settlement.

For these reasons, it would seem more correct and proper not to disturb the orders of 14-15
February, 1989 on the ground that the rules of natural justice have not been complied with,
particularly in view of the pendency of the review petition.
6. Before we conclude, we would like to add a few words on the state of the law of torts in this
country. Before we gained independence, on account of our close association with Great Britain, we
were governed by the common law principles. In the field of torts, under the common law of
England, no action could be laid by the dependants or heirs of a person whose death was brought
about by the tortious act of another on the maxim actio personalis moritur cum persona, although a
person injured by a similar act could claim damages for the wrong done to him. In England this
situation was remedied by the passing of the Fatal Accidents Act, 1846, popularly known as Lord
Campell's Act. Soon thereafter the Indian Legislature enacted the Fatal accidents Act, 1855. This
Act is fashioned on the lines of the English Act of 1846. Even though the English Act has undergone
a substantial change, our law has remained static and seems a trifle archaic. The magnitude of the
gas leak disaster in which hundreds lost their lives and thousands were maimed, not to speak of the
damage to livestock, flora and fauna, business and property, is an eye opener. The nation must learn
a lesson from this traumatic experience and evolve safeguards atleast for the future. We are of the
view that the time is ripe to take a fresh look at the outdated century old legislation which is out of
tune with modern concepts.
While it may be a matter for scientists and technicians to find solutions to avoid such large scale
disasters, the law must provide an effective and speedy remedy to the victims of such torts. The
Fatal Accidents Act, on account of its limited and restrictive application, is hardly suited to meet
such a challenge. We are, therefore, of the opinion that the old antiquated Act should be drastically
amended or fresh legislation should be enacted which should, inter alia, contain appropriate
provisions in regard to the following matters:
(i) The payment of a fixed minimum compensation on a "no-fault liability" basis (as
under the Motor Vehicles Act), pending final adjudication of the claims by a
prescribed forum;
(ii) The creation of a special forum with specific power to grant interim relief in
appropriate cases;
(iii) The evolution of a procedure to be followed by such forum which will be

conducive to the expeditious determination of claims and avoid the high degree of
formalism that attaches to proceedings in regular courts; and
(iv) A provision requiring industries and concerns engaged in hazardous activities to

take out compulsory insurance against third party risks.
In addition to what we have said above, we should like to say that the suggestion made by our
learned brother, K.N. Singh J., for the creation of an Industrial Disaster Fund (by whatever name
called) deserves serious consideration. We would also endorse his suggestion that the Central

Govern- ment will be well advised if, in future, it insists on certain safeguards before permitting a
transnational company to do business in this country. The necessity of such safeguards, atleast in
the following two directions, is highlighted in the present case:
(a) Shri Garg has alleged that the processes in the Bhopal Gas Plant were so much
shrouded in secrecy that neither the composition of the deadly gas that escaped nor
the proper antidote therefore were known to anyone in this country with the result
that the steps taken to combat its effects were not only delayed but also totally
inadequate and ineffective. It is necessary that this type of situation should be
avoided. The Government should therefore insist, when granting licence to a
transnational company to establish its industry here, on a right to be informed of
the nature of the processes involved so as to be able to take prompt action in the
event of an accident.
(b) We have seen how the victims in this case have been considerably handicapped on
account of the fact that the immediate tort-feasor was the subsidiary of a
multi-national with its Indian assets totally inadequate to satisfy the claims arising
out of the disaster. It is, therefore, necessary to evolve, either by international
consensus or by unilateral legislation, steps to overcome these handicaps and to
ensure (i) that foreign corporations seeking to establish an industry here, agree to
submit to the jurisdiction of the Courts in India in respect of actions for tortious acts
in this country; (ii) that the liability of such a corporation is not limited to such of its
assets (or the assets of its affiliates) as may be found in this country, but that the
victims are able to reach out to the assets of such concerns anywhere in the world;
(iii) that any decree obtained in Indian Courts in compliance with due process of law
is capable of being executed against the foreign corporation, its affiliates and their
assets without further procedural hurdles, in those other countries.
Our brother, K.N. Singh, J., has in this context dealt at some length with the United Nations Code of
Conduct for multi-national Corporations which awaits approval of various countries. We hope that
calamities like the one which this country has suffered will serve as catalysts to expedite the
acceptance of an international code on such matters in the near future.
With these observations, we agree with the order proposed by the learned Chief Justice.
G.N. Petitions dis-

posed of.

Prabhakar Rao N. Mawle vs State Of Andhra Pradesh on 9 April, 1965

Author: Hidayatullah
Bench: Subbarao, K., Wanchoo, K.N., Hidayatullah, M., Shah, J.C., Sikri, S.M.
PETITIONER:
PRABHAKAR RAO N. MAWLE
Vs.
RESPONDENT:
STATE OF ANDHRA PRADESH
DATE OF JUDGMENT:
09/04/1965
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
SUBBARAO, K.
WANCHOO, K.N.
SHAH, J.C.
SIKRI, S.M.
CITATION:
1965 AIR 1827 1965 SCR (3) 743
ACT:
Madras Vexatious Litigation (Prevention) Act, (Act 8 of
1949) s. 2(1) and States Reorganisation Act (37 of 1956),
ss. 65, 119 and 121-Applicability of Madras Act in Telangana
area of Andhra Pradesh State.
HEADNOTE:
By s. 2(1) of the Madras Vexatious Litigation
(Prevention) Act 1949, the High Court of Madras was
competent to issue an order against any person that no
proceedings shall be instituted by him in any court (i) in
the Presidency-town without the leave of the High Court, and
(ii) 'elsewhere without the leave of the District and
Sessions Judge. On the application of the Advocate-General
of Andhra Pradesh the High Court of Andhra Pradesh ordered
that no proceeding should be instituted by the appellant in
the City of Hyderabad without leave of the High Court, in
the City of Secunderabad without leave of the Chief City
Civil ;Judge and elsewhere, without leave of the concerned
District and Sessions Judge.
In his appeal to this Court, the appellant contended

that: (i) the High Court had no jurisdiction to take

action under the Act as its provisions were not extended
to the Telangana area of the State, which formed part of the
former State of Hyderabad; and (ii) the Act was
unconstitutional because it prevented some citizens from
approaching the Court, which everyone is entitled to in a
State governed by the rule of law.
HELD: (i) (Per K. Subba Rao, K.N. Wanchoo, M.
Hidayatullah and S.M. Sikri, J5.) The High Court was in
error in holding that the Act merely created a procedural
jurisdiction to put persons who indulge habitually in
vexatious litigation under a procedural restraint in the
former High Court of Madras, which jurisdiction, on its
division into the two High Courts of Madras and Andhra
Pradesh inhered in both the High Courts and continued to
inhere in the High Court of Andhra Pradesh even for the
purposes of those areas to which the Act had not been
extended. [752 D-F]
The Act was passed by the Madras Provincial
Legislature,and conferred jurisdiction upon the Madras High
Court to deal with habitual litigants indulging in vexatious
litigation. It was not an inherent jurisdiction of the
Madras High Court. By ss. 30 and 53 of the Andhra State Act,
1953, the Vexatious Litigation (Prevention) Act continued to
be in force in the Andhra State, and the Andhra High Court
possessed the same jurisdiction as the former Madras High
Court. But the Act is unworkable in the State of Andhra
Pradesh which is formed under the States Reorganisation Act,
1956, by adding the Telangana area of the former Hyderabad
State to the State of Andhra; and s. 65 of the States
Reorganisation Act does not alter the position. [753-H]
744
All laws are intended to operate territorially and no
Provincial Legislature in India, possesses extra-territorial
jurisdiction. What the Madras Legislature enacted was to
operate in its own territory and it said so in the Vexatious
Litigation (Prevention) Act. In its operative part also, the
order under the Act was to be made with a territorial
distinction between the Presidency town and the rest of the
Presidency of Madras. The Act vested a jurisdiction in the
High Court to deal with a particular type of litigant, but
the Act made the High Court deal with the matter
territorially and if new territories we're to be governed by
it had to be extended to the new territories and till so
extended, the Act can only operate within the old
territories. Under s. 119 of the States Reorganisation Act,
no law of one of the amalgamating States is to be extended
to the area of the other amalgamating States, except by a
competent legislative or other competent authority, and
further, the law shall be construed as restricted to the
territories within each State immediately before the
reorganisation. Since the Act has not been extended to the
Telangana area, the application of the Act in that area is

made impossible by s. 119, and it cannot be extended by

judicial construction. No doubt, the Court possesses a
power, under s. 121 of the States Reorganisation Act, to
construe laws by adapting them in such a manner as to
facilitate their application to the newly formed State, but
the power is of adaptation and not legislation. An increase
in the territories in which an Act is to apply is dependent
on legislation such as is contemplated by s. 119. [753 F-H;
754 A-C]
Moreover, there being no Presidency town in the State of
Andhra Pradesh, s. 2(1)(i) of the Act is inapplicable in the
State of Andhra Pradesh. The mention of the Presidency town
in the sub-section was not with a view to indicate the seat
of the High Court, but because the Madras High Court,
possessed original jurisdiction in the Presidency town.
Therefore, the distinction between the City of Hyderabad and
other parts of Andhra Pradesh, drawn by the High Court as if
the City of Hyderabad was a Presidency town, was an
artificial distinction which should not have been drawn by
the High Court. Section 2(1)(ii) is also inapplicable
because, the contention that the entire State may be taken
to be governed by that sub-clause would lead to the strange
result that the District and Sessions Judge would decide
whether a particular litigant should be allowed to move the
High Court in, appeal, revision or in an original
proceeding. [754 E-H]
Per Shah, J. (Dissenting): Parliament having by the
Andhra State Act invested the High Court of Andhra with
authority to exercise all jurisdiction which the High Court
of Madras possessed, within the territories of the State of
Andhra, and thereafter, having by s. 65(1)(a) of the States
Reorganisation Act extended the exercise of that authority
over the entire territory of Andhra Pradesh, it would be
impossible to accept the argument that in respect of the
jurisdiction conferred by the Vexatious Litigation
(Prevention) Act, the High Court of Andhra Pradesh was
incompetent to pass the order which it did against the
appellant. [759 A-C]
The Andhra High Court was a successor of the Madras High
Court and exercised all the powers and administered the same
law which the latter exercised in the territories comprised
in the Andhra State. Since Parliament expressly provided by
s. 55 of the Andhra State Act, that a court may construe a
law which it has to enforce, with such alterations not
affecting the substance as may be necessary or proper to
adapt it to the matter before the court, the expression
"Presidency town" must, in the context of the constitution
of a separate Andhra High Court, mean the town of the State
in which the
745
High Court was located. If it be granted that the High Court
of: Andhra had jurisdiction to pass orders under the
Vexatious Litigation (Prevention) Act, it would be difficult

to hold that s. 119 of the States Reorganisation Act

restricts the exercise of the power by the High Court of
Andhra Pradesh to prevent a vexatious litigant from
instituting proceedings in 'and from Certain areas of the
Andhra Pradesh and not elsewhere. Section 65(1) of the
States Reorganisation Act which must be read harmoniously
with s. 119 authoring the High Court of Andhra Pradesh to
exercise all jurisdiction, which the High Court of Andhra
could exercise, over all the territories transferred to the
State of Andhra Pradesh from the existing State of
Hyderabad. The Vexatious Litigation (Prevention) Act, does
not require that the person to be restrained must be
residing in or have a domicile within the jurisdiction of
the Court, nor has the order contemplated to be passed, any
direct territorial operation. It is a personal direction
which imposes restrictions upon the person restrained. Once
the High Court pronounces an order, it may be removed in
appropriate cases only by the High Court, where the
proceeding is to be instituted in any court in the town in
which the High Court is located, and elsewhere, by order of
the District and Sessions Court; and so, there is no
conflict of jurisdiction between the High Court and the
District Court. [756 D-H] z
(ii) (By Full Court): The Act is not unconstitutional.
The litigants who are prevented from approaching the
court without proper sanction are persons who habitually
file vexatious actions. Even they are not deprived of their
right to go to a court in genuine and bona fide actions, but
the Act only creates a check. The object of the Act is to
promote public good, because, it cannot be claimed that it
is an inviolable right of any citizen to bring vexatious
actions without control.
JUDGMENT:
CIVIL AppELLATE JURISDICTION / ORIGINAL JURISDICTION: Civil Appeal No. 900 of 1963.
Appeal by special leave from the judgment and order dated April 21, 1961 of the Andhra Pradesh
High Court in C.M.P. No. 239 of 1950.
WITH Writ Petition No. 146 of 1961.
Petition under Art. 32 of the Constitution of India for the enforcement of the fundamental rights.
AND Civil Miscellaneous Petition No. 186 of 1962. Appeal against the order of the Registrar dated
November 21, 1961 refusing to receive the petitioner's application for refund of Court-fees.
The appellant appeared in person.

K.R. Chaudhuri and B.R.G.K. Achar, for the respondent (in C.A. No. 900/63 and W.P. No.
146/1961).
The Judgment of Subba Rao, Wanchoo, Hidayatullah and Sikri, JJ. was delivered by Hidayatullah,
J. Shah, J. delivered a separate Opinion.
Hidayatullah, J. On January 11, 1960, the Advocate General applied to the High Court of Andhra
Pradesh, Hyderabad for action against the appellant Prabhakar Rao H. Mawle under s. 2 of the
Vexatious Litigation (Prevention) Act 1949 (Madras Act VIII of 1949), on the allegation that Mawle
had been "habitually" and without any reasonable ground instituting "vexatious proceedings" in the
courts within the cities of Hyderabad and Secunderabad and also in the High Court and appearing
in the cases in person; that he was responsible for a considerable amount of litigation or, in other
words, that he was a vexatious and habitual litigant. In support of the petition for the invocation of
the punitive provisions of the Act, the Advocate-General referred to the following cases:--
(1) In C.R.P. No. 176.5/58 Mawle described the judgment of the lower court as: "
.................. shocking to the sense of justice, a grave dereliction of duty, flagrant abuse
of fundamental principles of law and the natural justice, full with errors patent on the
face, showing a gross manifest injustice done through the tyrannical arbitrary acts."
It was stated that Mawle apologised to the High Court to escape proceedings for
contempt of court.
(ii) He filed a writ petition No. 1369/18 after the above Civil Revision Petition was
dismissed and then preferred an appeal CCCA 42/59.'
(iii) He filed a stay petition against an intended execution before steps were taken
and when the petition was dismissed he filed an appeal C.M.A. 86/59 and obtained
stay.
(iv) He filed an appeal against the dismissal of the writ petition 1369/58. He was thus
said to have asked for five remedies in one suit (O.S. 200 of 1958).
(v) In an appeal filed on 3-6-1959 he did not pay court fee of Rs. 995 as stamps were
not available undertaking to pay the balance which he did not pay.
(vi) In S.R. 38516 and S.C.C.M.P. Mawle stated that as he had appeared in person-
"without any weightage to his submissions though of law, for in the ends of justice, as
against the professional privileges claimed by both these veteran advocates (Mr. O.V.
Subbanayadu and Mr. Hari Narayanalal) even though they had taken the role of a
party, sole witnesses, swearing false affidavits ............ ".

(vii) In S.R. 12409/59 against decree in O.S. 109/1958, though himself the sole
defendant, Mawle caused to be preferred an appeal in forma pauperis by his wife and
children, getting the judgments under appeal privately printed and certifying them as
true.
(viii) C.R.P. No. 1094/59 against the judgment in suit No. 198/2 dismissed against
his tenant he filed a revision petition which was dismissed in limini.
(ix) C.R.P. No. 988/1959 filed against I.A. 230/58 in O.S. 99/2 of 1957 of the City
Civil Court, Hyderabad was dismissed in limini.
(x) He has filed S.R. 31845/59 as L.P.A. against an order refusing to review C.R.P.
against a Small Cause Suit and S.R. No. 27605/59 as a L.P.A. against an order in a
petition refusing to condone the delay in filing a review petition in a C.R.P.
(xi) C.R.P. 954/1959 filed against an order in L.R. petition in a Small Cause Suit,
originally attempted to be filed as an appeal, C.M.P. 55-18 filed and stay ordered on
condition that Mawle should deposit the decretal amount. He then withdrew the
C.M.P.
(xii) Several criminal matters in High Court. Complaint in Cr. App. 406/58 and Crl.
R.C. 506/59.
(xiii) C.M.P. 1858/57 for taking action against the respondent for alleged contempt of
court.
(xiv) S.R. No. 43198/59, a L.P. Appeal.
The Advocate General claimed that though the Act was not extended to the area covered by the
former Hyderabad State, it must be treated as the law in force there by reason of the States
Reorganisation Act, 1956.
Mawle was heard on notice and, as was to be expected from a litigant of his sort, flied a fairly long
statement in reply denying each accusation and explaining his conduct. He questioned the
jurisdiction of the High Court of Andhra Pradesh to take action under the Act as its provisions were
not extended to the area comprised in the former State of Hyderabad. He challenged the Act as ultra
vires and unconstitutional on the ground that it abridged the right of citizens to seek redress in a
court of law. He stated that he was a businessman and a landlord and owned considerable
properties in the city of Hyderabad and other cities in the District and the State. He produced a
certificate from the District Magistrate. He explained that owing to unpleasant experience he had
L/P(D)5SCI--9 to take away his work from advocates and since 1952 he had started conducting his
own cases. He alleged that he had to recover a couple of lakhs of rupees from his clients/tenants etc.
and had, therefore to file a large number of cases. He attempted an explanation of the cases to which
the Advocate General had referred in his petition.

The High Court by its judgment dated April 21, 1961, now under appeal, held that the Act was both
constitutional and intra vires, that the High Court had jurisdiction to make the order and that action
under the Act was called for. The High Court ordered that no proceeding, civil or criminal, should be
instituted by Mawle in the City of Hyderabad without the leave of the High Court, in the city of
Secunderabad, without the leave of the Chief City Civil Judge and elsewhere without the leave of the
District and Sessions Judge concerned. A copy of the order of the High Court was published in the
Gazette of Andhra Pradesh as required by the Act. Mawle sought a certificate under Articles 132,
133, or 134 of the Constitution but the certificate was refused on the ground that no substantial
question of law as to the interpretation of the Constitution or otherwise was involved. The petitioner
then applied for and obtained special leave from this Court and filed the present appeal.
The Act with which we are concerned, though a copy substantially of 16 and 17 Vict. Ch. 30 (now
replaced by section 51 of the Supreme Court of Judicature Consolidation Act, 1925:15 & 16 Geo V c.
49) is perhaps the only one of its kind in India. Its provisions are extremely brief and they may be
read here:
"1. Short title, extent and commencement. (1) This Act may be called the Vexatious
Litigation (Prevention) Act, 1949. (2) It extends to the whole of the State of Madras.
(3) It shall come into force at once.
2. Leave of court necessary for vexatious litigant to institute proceedings. (1) If, on an
application made by the Advocate-General, the High Court is satisfied that any
person has habitually and without any reasonable ground instituted vexatious
proceedings, civil or criminal, in any Court or Courts, the High Court may, after
giving that person an opportunity of being heard. order that no proceedings, civil or
criminal, shall be instituted by him in any Court-
(i) in the Presidency-town, without the leave of the High Court; and
(ii) elsewhere, without the leave of the District and Sessions Judge.
(2) If it appears to the High Court that the person against whom an application is
made under subsection (1) is unable, on account of poverty, to engage a pleader, the
High Court may engage- a pleader to appear for him. Explanation---For the purpose
of this section 'pleader' has the same meaning as in section 2, clause (15) of the Code
of Civil Procedure, 1908.
3. Leave to be granted only if prima facie ground exits The leave referred to in section
2, sub-sect=on (1), shall not be given in respect of any proceedings unless the High
Court or, as the case may be, the District and Sessions Judge, is satisfied that there is
prima facie ground for such proceedings.
4. Proceedings instituted without leave to be dismissed.

Any proceedings instituted by a person against whom an order under section 2,

sub-section (IL has been made, without obtaining the leave referred to in that
sub-section shall be dismissed:
Provided that this section shall not apply to any proceedings instituted for the
purpose of obtaining such leave. (5) Publication of orders.
A copy of every order made under section 2, sub-
section (1) shall be published in the Fort St. George Gazette."
The High Court of Andhra Pradesh has held that it enjoys all the jurisdiction of the former High
Court of Madras and thus the provisions of the Act create a jurisdiction in the High Court capable of
being exercised in Telangana area even though the Act as such, 'has not been extended to this part of
the territory of the State. The High Court also holds that the Act is perfectly valid.
In this appeal in addition to questioning the order on the above ground and also merits the
appellant contends that the Madras Act itself was invalid inasmuch as it was not covered by any
Entry in List II or III of the Government of India Act, 1935 and had not received the assent of the
Governor-General. This argument is without substance. The Act had received the assent of the
Governor-General and the subject of the legislation was covered by Entries 2 of List II and 2 and 4 of
List III of the Government of India Act, 1935. The next argument of the appellant before us is that
this Act is unconstitutional because it prevents some citizens from approaching the court and
obtaining relief to which everyone is entitled in a State governed by Rule of Law. This argument
really invokes Art. 19 and Art. 14. The latter Article is invoked because the Act, according to the
appellant, seeks to create an unreasonable distinction between litigant and litigant. This argument is
also not acceptable to us because the litigants who are to be prevented from approaching the court,
without the sanction of the High Court etc., are in a class by themselves. They are described in the
Act as persons who 'habitually' and 'without reasonable cause' file vexatious actions, civil or
criminal. The Act is not intended to deprive such a person of his right to go to a court. It only creates
a check so that the court may examine the bona fides of any claim before the opposite party is
harassed. A similar Act, passed in England, has been applied in several cases to prevent an abuse of
the process of court. In its object the Act promotes public good because it cannot be claimed that it
is an inviolable right of any citizen to bring vexatious actions without control, either legislative or
administrative. The Act subserves public interest and the restraint which it creates, is designed to
promote public good. The Act does not prevent a person declared to be habitual litigant from
bringing genuine and bona fide actions. It only seeks to cut short attempts to be vexatious. In our
judgment, the Act cannot be described as unconstitutional or offending either Art. 19 or Art. 14. The
next contention of the appellant is that the Act has not been extended to the area of the former State
of Hyderabad and the High Court cannot exercise jurisdiction in that area. This contention merits
close scrutiny. The High Court has given a history of the evolution of the State and of the High Court
of Andhra Pradesh. It is common knowledge that the High Court of Madras was rounded by Letters
Patent of 1865 and exercised all original, appellate and other jurisdictions conferred by that Letters
Patent. The Act, which was passed by the Madras Provincial Legislature in 1949 conferred

jurisdiction upon the Madras High Court to deal with cases of habitual litigants who were
persistently filing vexatious actions and were guilty of an abuse of the process of court. This
jurisdiction belonged to the High Court of Madras by virtue of the Act and was not an inherent
jurisdiction whether as a Court of Record or otherwise. When the State of Andhra was formed in
1953 by the Andhra State Act of 1953, the High Court of Madras ceased to exercise jurisdiction over
the territory of the State of Andhra. This jurisdiction was then to be exercised by the High Court of
Andhra from a date to be appointed by the President. The jurisdiction of the Andhra High Court was
to be the' same as that of the Madras High Court. Section 30 of the Andhra State Act read as
follows:--
"30. Jurisdiction of Andhra High Court. The High Court of Andhra shall have, in
respect of the territories for the time being included in the State of Andhra, all such
original, appellate and other jurisdiction as, under the law in force immediately
before the prescribed day, is exercisable in respect of the said territories or any part
thereof by the High Court at Madras."
By virtue of this section the new High Court possessed the same powers and jurisdiction as the
original Madras High Court in its territory. But by s. 53 of the Andhra Act no change was effected in
the territorial extent of the laws and references in all laws to the State of Madras were to be adapted
to refer to the new State in its application to the new State of Andhra. In other words, the Act
continued to be an Act in force in the Andhra State and the Andhra High Court possessed the same
jurisdiction as the former Madras High Court. So far no difficulty can be seen, but it is obvious that
the original jurisdiction of the High Court of Madras in the Presidency Town could not be exercised
at Guntur and did not follow the High Court.
The next change came in 1956 by the States Reorganisation Act, 1956. By that Act certain territories
were amalgamated with the State of Andhra and prominent among those territories was the former
Hyderabad State which for convenience may be referred to here as 'the Telangana Area'. The city of
Hyderabad and the city of Secunderabad are in that area. The States Reorganisation Act, 1956
contained a special provision to limit the territorial extent of the laws in force in the different areas
which were combined to form the State of Andhra Pradesh. Section 119 of the States Reorganisation
Act provided as follows:-
" 119. Territorial extent of laws. The provisions of Part II shall not be deemed to have
effected any change in the territories to which any law in force immediately before
the appointed day extends or applies. and territorial reference in any such law to an
existing State shall, until otherwise provided by a competent Legislature or other
competent authority, be construed as meaning the territories within that State
immediately before the appointed day."
The appellant relies upon this provision to state that the area of operation of the Act can only be the
former territories of the State of Andhra and the Act is not applicable in the territory comprised in
the Telangana Area. The other side contends that by virtue of s. 65 the High Court of Andhra
Pradesh acquires all the jurisdiction of the High Court of the State of Andhra and therefore it

acquires the jurisdiction invested by the Act in the former Andhra High Court. Section 65 of the
States Reorganisation Act 1956 reads as follows:-
"65. High Court of Andhra Pradesh.
(1) As from the appointed day,--
(a) the jurisdiction of the High Court of the existing State of Andhra. shall extend to the whole of the
territories transferred to that State from the existing State of Hyderabad;
(b) the said High Court shall be known as the High Court of Andhra Pradesh; and The question that
arises is whether the application of the Act in the Telangana area-is made impossible by s. 119 of the
Act of 1956 or depends upon s. 65 of that Act. If the Act under which action is purported to be taken
can be said to have operated territorially then it is obvious that the extent of territory in which it was
to apply was not only not enlarged by the States Reorganisation Act but under s. 119 was kept rigid
by limiting it to the territory of the former Andhra State. If, however, that Act created a jurisdiction
in the High Court to deal with a particular class of litigants, who were habitually bringing vexatious
suits it may be then possible to contend that jurisdiction continues to vest in the High Court of
Andhra Pradesh. The High Court has viewed this matter from the latter angle and come to the
conclusion that s. 65 and not s. 119 controls the matter.
The argument of the High Court is that the Act controls litigation and creates a new procedure in
respect of persons who indulge habitually in vexatious litigation. The Act confers a jurisdiction to
put such persons under a procedural restraint and this jurisdiction, the High Court holds. inhered in
the former Madras High Court and later in the Madras and the Andhra High Courts separately and
now it inheres in the Andhra Pradesh High Court. In the opinion of the High Court, the jurisdiction
can be exercised within all the territories subject to the Andhra Pradesh High Court including the
Telangana Area, Mr. K.R. Choudhury in supplementing this reasoning points out that the High
Court of Madras could take action against any person who acted in a manner to attract the
provisions of the Act, irrespective of where the person came from. He contends that a vexatious
litigant from Bengal or Bombay could be visited with the punitive provisions of the Act and submits
that there is no reason why the Andhra Pradesh High Court cannot control the practice and
procedure in the courts of the Telangana area in the same way. According to him, the Act must be
treated as extended to the Telangana area as the Andhra Pradesh High Court continues to possess
all the jurisdiction of the former Madras High Court. This was also the original plea of the Advocate-
General in his petition in the High Court, though not apparently accepted by the High Court.
We do not accept the argument of Mr. Choudhury. The Madras Act was applied by the legislature
only to the Madras Presidency. Suppose it had been applied to one district only. Could the High
Court have said that notwithstanding the limited application, it would take action in the other
districts of the Madras Presidency? If it could not have extended the territorial limits of the
application of the Act in Madras Presidency, the position is not any different now, in view of the
provisions of s. 119 of the States Reorganisation Act which clearly lay down that no law of one of the
amalgamating States is to be extended to the area of the other amalgamating States except by a

competent legislative or other competent authority and further that the law shall be construed as
restricted to the territories within each State immediately before the Reorganisation. The territorial
area is thus not only not enlarged but is frozen. We may now consider whether s. 65 of the States
Reorganisation Act makes any difference to this position.
The Act was designed to control vexatious litigation and it created for the purpose, a new procedure
which applied to persons whose visits to courts, as litigants, were not only frequent but were also
habitually vexatious. The Act enabled the Advocate-General to apply to the High Court and the High
Court on being satisfied that a person had been acting in this manner, could make an order that no
proceeding there forward was to be filed by that person in the Presidency town without the leave of
the High Court and elsewhere without the leave of the District & Sessions Judge. The Act was
intended to apply in the whole of the Presidency of Madras including the area carved away from the
Presidency of Madras and made into the State of Andhra in 1953 and which is now a part of the
State of Andhra Pradesh after 1956. The Act was intended to operate territorially as indeed the
clause dealing with the extent of application of the Act itself shows. In its operative part also the
order was to be made with a territorial distinction between the Presidency Town and the rest of the
Presidency of Madras. The order to be passed under the Act contemplated leave of the High Court
before a suit was filed in the Presidency Town and the leave of the District & Sessions Judge
elsewhere. It is plain that on its terms the Act cannot apply in the State of Andhra Pradesh atleast in
so far as the Presidency Town mentioned in s. 2(1)(i) is concerned. That Presidency Town was the
city of Madras and therefore s. 2(1)(i) of the Act cannot apply in Andhra Pradesh, because there is
no Presidency Town in Andhra Pradesh to which s. 2(1)(i) can now refer. The distinction between
the city of Hyderabad and other parts of the State of Andhra Pradesh has been artificially brought
into existence by the High Court by making the order in respect of the city of Hyderabad as if it was
a Presidency Town. This is legislation pure and simple and it cannot be undertaken by the High
Court. Section 2(1)(i) of the Act can no longer apply without a proper amendment. It may, however,
be contended that s. 2(1)(ii) can apply and the whole of the new State of Andhra Pradesh may be
taken to be governed by sub-cl. (ii). It would, however, be somewhat strange to make the District &
Sessions Judge decide whether a particular litigant should be allowed to move the High Court in
appeal, revision or in an original proceeding. The Act is unworkable in the State of Andhra Pradesh
without substantial modifications to it.
This is not a question merely of procedural jurisdiction as the High Court has reasoned. No doubt
the Act as it stood, vested a jurisdiction in the High Court to deal with a particular type of litigant
but the Act made the High Court to deal with the matter territorially. It ,is because the territory has
changed that the question arises whether the old jurisdiction of the High Court can now' take in new
territory. All laws are intended to operate territorially and no Provincial Legislature in India
possessed extra- territorial jurisdiction. That the Madras Legislature enacted was to operate in its
own territory and it said so in the Act. If new territories are to be governed by the Act it must be
extended to the new territories and till it is extended the Act can only operate within the old
territories and this is the obvious result of s. 119 of the States Reorganisation Act.
Thus there are two difficulties in the way of holding that this Act is operative in the TeIangana area
of the new State of Andhra Pradesh. To begin with it has not been extended to the area known as the

TeIangana area and, till extended, s. 119 of the States Reorganisation Act expressly prohibits an
extension to the Telangana area by judicial construction. Secondly, there being no Presidency Town
as such in the new State of Andhra Pradesh, s. 2(1)(i) cannot now be made applicable to the new
State of Andhra Pradesh, until some other town is substituted by the Legislature in its place. The
mention of the Presidency Town in s. 2(1)(i) was not with a view to indicate the seat of the High
Court but was so made because the High Court possessed original jurisdiction in that area. The
words 'Presidency Town' might, of course, have been amended to read Hyderabad, the seat of the
Andhra Pradesh High Court, but this has not been done. No doubt the court under s. 121 of the
States Reorganisation Act possesses a power to construe laws by adapting them in such a manner as
to facilitate their application to the newly formed State, but the power which is exercisable is only a
power of simple adaptation and not a power of legislation. An increase in the territories in which an
Act is to apply is dependent on legislation such as is contemplated by s. 119 of the States
Reorganisation Act. What the High Court has done is more than an adaptation. It has not only
substituted the city of Hyderabad for the Presidency town but it has also made the law applicable to
Telangana courts contrary to the intendment of s. 119 of the States Reorganisation Act. Formerly the
seat of the High Court was different and the Act must, on the same reasoning have applied there, so
that the words 'Presidency Town' must have read as Guntur at first and now they read Hyderabad.
In our opinion, the High Court was in error in holding that the Act merely created a procedural
jurisdiction in the High Court of Madras which on its division into two High Courts, inhered in both
the High Courts and continues to inhere in the High Court of Andhra Pradesh even for purposes of
areas to which the Act has not been extended. In this view of the matter the order made by the High
Court cannot be sustained and it must be discharged.
We have not gone into the merits and there is much that justified action against Mawle. He has filed
dozens of cases and has flooded courts with litigation often by way of repeated petitions on the same
matter. As we find that the Act is not available against him we say nothing more. We may place on
record that Mawle expressed his willingness before us to be restrained in his litigation and we hope
that he will now make amends for his past conduct. We expect him to behave properly in future.
The appeal is allowed but in the circumstances of the case we make no order about costs.
Shah, J. The Provincial Legislature of Madras exercising power under the Government of India Act,
1935 enacted the Vexatious Litigation (Prevention) Act 8 of 1949, The material provisions of the Act
are:-
"2. (1) If, on an application made by the Advocate-General, the High Court is satisfied
that any person has habitually and without any reasonable ground instituted
vexatious proceedings civil or criminal, in any Court or Courts, the High Court may,
after giving that person an opportunity of being heard, order that no proceedings,
civil or criminal, shall be instituted by him in any Court-
(i) in the Presidency-town, without the leave of the High Court; and
(ii) elsewhere, without the leave of the District and Sessions Judge.

(2) * *
*
3. The leave section
referred 2,
to in
sub-section (1), shall not be given in respect of any proceedings unless the High Court
or, as the case may be, the District and Sessions Judge, is satisfied that there is prima
facie ground for such proceedings.
4. Any proceedings instituted by a person against whom an order under section 2,

sub- section (1), has been made, without obtaining the leave referred to in that
subsection shall be dismissed:
Provided that this section shall not apply to any proceedings instituted for the
purpose of obtaining such leave.
5. A copy of every order made under section 2, subsection (1), shall be published in
the Fort St. George Gazette."
By this Act the High Court of Madras was invested with power to place restrictions upon vexatious
litigants. The principle of this legislation, it appears, was borrowed from statute 16 & 17 Vict. Ch. 30
enacted by the British Parliament. By Art. 225 of the Constitution, the jurisdiction of the High Court
of Madras, subject to the provisions of the Constitution and to the provisions of any law of the
appropriate Legislature remained the same as immediately before the commencement of the
Constitution. On September 14. 1953 the State of Andhra was carved out of the territories of the
State of Madras by the Andhra State Act 30 of 1953. Section 28 of that Act provided: "(1) As from the
1st day of January, 1956, or such earlier date as may be appointed under sub-section (2) there shall
be a separate High Court for the State of Andhra." The High Court of Andhra which was constituted
by a notification issued by the President had by s. 30, in respect of the territories included in the
State of Andhra, all such original, appellate and other jurisdiction as under the law in force
immediately before the prescribed day was exercisable in respect of the territories or any part
thereof by the High Court at Madras. The Andhra High Court was therefore a successor of the High
Court of Madras and exercised all the powers and administered the same law which the Madras
High Court exercised in the territories comprised in the Andhra State. By s. 2(1) of Act 8 of 1949 the
High Court of Madras was competent to issue an order against any person that no proceedings, civil
or criminal, shall be instituted by him in any Court (i) in the Presidency-town without the leave of
the High Court, and (ii) elsewhere, without the leave of the D:strict and Sessions Judge; and this
power, by virtue of s. 30 of Act 30 of 1953 became exercisable by the Andhra High Court. The
expression "Presidency-town" means by the General Clauses Act, 1897 (s. 3(44)). the local limits of
ordinary original jurisdiction of the High Court of Judicature at Calcutta, Madras or Bombay ,as the
case may be, and there was no Presidency-town within the area of the Andhra State as constituted
by Act 30 of 1953. The Parliament had. however, with a view to meet anomalies of the present
nature expressly provided by s. 55 that "Notwithstanding that no provision or insufficient provision
had been made under s. 54 for the adaptation of a law made before the appointed day, any court,
required or empowered to enforce such law may, for the purpose of facilitating its application in
relation to the State of Andhra. * * construe the law with such alterations not affecting the substance

as may be necessary or proper to adapt it to the matter before the court * *." The expression
"Presidency town" must in the context of the constitution of a separate High Court for Andhra, after
the State of Andhra was formed, mean the Capital town of the State in which the High Court was
located Such an adaptation does not affect the substance of the Act, and it would facilitate
application thereof to the changed circumstances..
The new State of Andhra Pradesh was constituted under the States Reorganisation Act 37 of 1956 by
incorporating certain areas specified in s. 3 to the territory of the old State of Andhra. By s. 65(1)(a)
from the appointed day i,e. November 1, 1956 'the jurisdiction of the High Court of the existing State
of Andhra was,, it was declared, to extend to the whole of the territories transferred to that State
from the existing State of Hyderabad, the High Court was to be known as the High Court of Andhra
Pradesh, and the principal seat of' the High Court was to be at Hyderabad. The jurisdiction of the
High Court of Andhra was by the express provision made in s. 65(1)(a) exercisable over the whole of
the territory transferred to that State from the existing State of Hyderabad. The phraseology used by
the Legislature, in my judgment, authorises the new High Court of Andhra Pradesh to exercise all
jurisdiction which the High Court of Andhra could exercise before the appointed day. The High
Court of Andhra Pradesh made an order against the appellant on April 21, 1961 that no proceedings,
civil or criminal shall be instituted by the appellant in the city of Hyderabad without the leave of the
High Court; in the city of Secunderabad without the leave of the Chief City Civil Judge; and
elsewhere without the leave of the District and Sessions Judge concerned. This was manifestly a
personal direction 'which imposed restrictions upon the appellant. The power to impose a ban under
s. 2, it may be noticed, vests only in the High Court: the power to remove the ban in specific cases is
exercisable by the High Court, or a Judge of the District and Sessions Court according as the
proceeding is to be instituted in a Court in the capital of the State where the High Court is located, or
in any Court in the mofussil. There can therefore be no question of conflict of jurisdiction between
the High Court and the District Court. Once the High Court pronounces an order under s. 2, it may
be removed in appropriate cases only by the High Court where the proceeding is to be instituted in
any Court in the Capital town in which the High Court is located and elsewhere by order of the
District and Sessions COurt. The Act confers jurisdiction upon the High Court and does not as a
condition of its exercise require that the person to be restrained must be residing or have a domicile
in any area within the jurisdiction of the Court invested with jurisdiction. Nor has the order
contemplated to be passed any direct territorial operation: it is issued against a person individually
and restrains him from instituting proceedings without leave of the Court specified in that behalf. A
person wherever residing or domiciled may' therefore be restrained ,by an order under s. 2.
But it is said that notwithstanding the comprehensive phraseology used by the Legislature in s. 65,
because of s. 119 of the States Reorganisation Act 37 of 1956 a somewhat anomalous situation has
resulted. It is claimed that the power with which the High Court is invested to prevent a litigant
from instituting proceedings -which are vexatious may be exercised in respect of proceedings to be
instituted in courts within the limits of the former State of Andhra or which arise from proceedings
decided by Courts in that area. The upshot of the argument is that a litigant may be treated as
vexatious only in respect of proceedings to be instituted by him in the Courts of the Districts within
the former State of Andhra and in respect of proceedings sought to be brought before the High
-Court in exercise of its appellate, revisional or superintending jurisdiction from orders made by

Courts within the territory of the former State of Andhra: he 'may therefore be subjected to a
disability in respect of proceedings to be instituted in some districts in the State and also in respect
of proceedings reaching the High Court from cases instituted in those districts, and not in respect of
the rest. What the effect of such a view may be upon the exercise of the High Court's jurisdiction
under Arts. 226 and 227 of the Constitution. or the original jurisdiction, for instance, under the
Companies Act or the Banking Companies Act, the appellant who has argued his case personally did
not attempt to tackle. Section 119 of the States Reorganisation Act, 1956 provides:
"The provisions of Part II shall not be deemed to have effected any change in the
territories to which any law in force immediately before the appointed day extends or
applies, and territorial references in any such law to an existing State shall, until
otherwise provided by a competent Legislature or other competent authority, be
construed as meaning the territories within that State immediately before the
appointed day."
By that section the territorial extent of the laws in operation prior to the appointed day, until
amended by a competent Legislature or other competent authority, continues. But s. 119 must be
read harmoniously with s. 65(1)(a). The latter clause declares in unambiguous terms that the
jurisdiction of the High Court of the existing State of Andhra shall extend to the whole of the
territories transferred to that State from the existing State of Hyderabad. If it be granted that the
High Court of the State of Andhra had jurisdiction to pass orders under the Vexatious Litigation
(Prevention) Act, it would be difficult to hold that s. 119 of Act 37 of 1956 still restricts the exercise of
the power by the High Court to prevent a vexatious litigant from instituting proceedings in certain
areas in the mofussil and not in others or from instituting proceedings by way of appeals or
revisions from orders and decrees in proceedings instituted in the Courts in the area within the
former State of Andhra and not elsewhere. The Parliament having by Act 30 of 1953 invested the
High Court of Andhra with authority to exercise all jurisdiction which the High Court of Madras
possessed within the territories of the State of Andhra as constituted and thereafter having by s.
65(1)(a) of Act 37 of 1956 extended the exercise of that authority over the entire territory of Andhra
Pradesh, and in my judgment, it would be impossible to accept the argument that in respect of the
jurisdiction conferred by the Vexatious Litigation (Prevent;on), Act 8 of 1949 the High Court was
incompetent to pass the order which it did against the appellant.
I need not add anything to what Hidayatullah, J., has said in upholding the constitutionality of the
provisions of the Act, for 1 agree with him that the Act is not unconstitutional as offending either
Art. 19 or Art. 14 of the Constitution.
On the merits, however, I am of the opinion that the cases which the appellant had instituted in the
various Courts did not justify a drastic order of the nature passed against him. The appellant claims
that he is the owner of a large estate in the city of Hyderabad, and that is not denied: he also carries
on an extensive business and in the course of carrying on his business and managing his estate, he
has often to seek recourse to courts of law. The appellant says that because of certain reasons (which
need not be set out) he conducts his litigation before the Courts without any professional assistance.
Assuming that the appellant has in instituting and prosecuting cases which he had instituted shown

less objectivity and more enthusiasm than a lawyer may in similar cases show, and had attempted to
obtain benefit of what he thought were lacunas in the law, imposition of a blanket restriction against
him of the nature imposed by the High Court may not seem to be warranted. I am unable to agree
having carefully considered the nature of the Various cases filed by the appellant or from the general
progress of those cases as set out in the list of cases filed in this Court and the orders passed therein
that those proceedings are vexatious or frivolous. I would therefore allow the appeal, but not on the
grounds which are set out by Hidayatullah, J. Appeal allowed.

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
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 identi-
fication 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 employ-
ees. Both were interviewed but were not. selected, although
their positions in the merit list were 29 and 19 respective-
ly, 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 employ-
ees, 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 classifi-
cation 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 differ-
entia 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, necessari-
ly 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 differ-
ence between the persons or things which have been grouped
together and those left out of the group, then the classifi-
cation cannot be said to be a reasonable one. [700C]
1.4 Surrounding circumstances may be taken into consid-
eration 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 employ-
ment. 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 differ-
ent footing from the employees of private concerns, insofar
as the question of admission to evening classes is con-
cerned. [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 establish-
ments and the employees of Government/Semi-Government insti-
tutions 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 speci-
fied, 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 clas-
sified 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 certif-
icates and insecurity of their services are not such circum-
stances 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 employ-
ees 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 employ-
ees 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 insti-
tution 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 institu-
tions 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 unsat-
isfactory 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:
"Admission to evening classes is open only to regular employees 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 nexus 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 experience 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
only those who will be genuine and regular employee. Since the
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-
sion of private employees restricting admission to evening classes 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 extent 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 exclusion of the employees of private establishments from the

evening classes.
We are also unable to accept the contention of the respondents that such exclusion 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 examination 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 exercised 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 exclusion 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 excluded 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-extensive with the period
of the Three-Year LL.B. Degree Course. The expression "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 exclusion 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 next 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 nexus 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 inextricably 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 inextricably 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 next 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 educa- tionally 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 extremely 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 expressed 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 extent 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 exceed 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 exclusive 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 unsat- isfactory 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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Narmada Bachao Andolan vs Union Of India And Others on 18 October, 2000

Supreme Court of India

DATE OF JUDGMENT: 18/10/2000

Indian Kanoon - http://indiankanoon.org/doc/1938608/ 1

2. Tawa Project near Hoshangabad

3. Punasa Project and

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iv) Making recommendations of any other ancillary matters.

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3. Requirements of irrigation should have priority over those of power;

1. The terminal dam should be located at Navagam.

2. The optimum FRL of the Navagam worked out to RL 500 ft..

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A) DETERMINATION OF THE HEIGHT OF SARDAR

b) Geological and Seismological aspects of the dam site.

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c) RELIEF AND REHABILITAION:

D) ALLOCATION OF THE NARMADA WATERS:

Madhya Pradesh : 18.25 MAF

E) PERIOD OF NON REVIEWABILITY OF CERTAIN AWARD

Relavant Details of the Sardar Sarovar Dam:

Indian Kanoon - http://indiankanoon.org/doc/1938608/ 9

Expected benefits from the project:

Power Generation: 1450 Megawatt.

Annual Employment Potential:

7 lac man-years during construction 6 lac man-years in post construction.

Protection against advancement of little Rann of Kutch and Rajasthan desert.

a) Dhumkhal Sloth Bear Sanctuary.

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b) Wild Ass Sanctuary in Little Rann of Kachchh

c) Black Buck Sanctuary at Velavadar.

d) Great Indian Bustard Sanctuary in Kachchh

e) Nal Sarovar Bird Sanctuary.

Facilities of sophisticated communication system in the entire command.

POST AWARD CLEARANCES:

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2. On the basis of examination of details on these projects by the Environmental Appraisal

1. Rehabilitation Master Plan

2. Phased Catchment Area Treatment Scheme

3. Compensatory Afforestation Plan

4. Command Area Development

5. Survey of Flora and Fauna

6. Carrying capacity of surrounding area.

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(S.MUDGAL) DIRECTOR(IA) In November, 1987 for monitoring and implementation of various

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c) Resettlement and Rehabilitation and environmental matters.

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Indian Kanoon - http://indiankanoon.org/doc/1938608/ 15

Indian Kanoon - http://indiankanoon.org/doc/1938608/ 16

Indian Kanoon - http://indiankanoon.org/doc/1938608/ 17

Indian Kanoon - http://indiankanoon.org/doc/1938608/ 18

GENERAL ISSUSES RELATING TO DIS-PLACEMENT OF TRIBALS AND ALLEGED VIOLATION

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