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Manoj Rastogi neeRaj shRivastav guPta OF ADVISORSBoaRd oF advisoRs
jay PBOARD
Manoj Rastogi Adv. B.K Pal ACCOUNTS &
(Editor- In- Chief ) (Publisher) (Managing Editor) Iqbal Ahmed AnsariFINANCE
Editor- In- Chief (Columnist) Iqbal Ahmed Ansari
COO (Former Chief
(Former Chief Justice Patna High Court) Justice Patna High Court)
Neeraj Shrivastav Manish Singh Sajwan
Publisher
sudhir sudhakar ankit Mishra
Tarun Bhatnagar suB editoRs
Sr. Adv. Vikas Singh Sr. Adv. Vikas Singh
CA Rahul Sharma

Jay P Gupta
(Consulting Editor) (Editor News) Ahir Mitra (President
(President Supreme Court Bar Supreme
Association) CA Court
ShivamBar
Arora
SUB EDITORS
Managing Editor Vanshika Jaiswal Association) IT DEPARTMENT
Ahir Mitra
anjani Kumar Rajeev Bhadoria
Fazle gufran Aditee(Global
Arya HR expert)
Vanshika Jaiswal MPS Raghuvanshi Gaurav Upadhyay
Nazim Naqvi
(Special Editor) (Senior Editor)
(Consulting Editor) Aditee Arya (Additional Advocate General MP)
Uday Sahay
sushil adv. B.K Pal DIGITAL
SudhirRathore
Sudhakar SENIOR (IPS Rtd.) Rajeev Bhadoria
(Special Project)
(Consulting Editor) (Columnist)
CORRESPONDENTS Moshin Sheikh
(Global HR expert)
Major Tanul Singhal (Rtd.)
Fazle Gufran
(Special Editor)
Varun Jauhari Uday Sahay (IPS PHOTO
Rtd.)
Rajesh Shah
DESIGNER
Khurram Nizami Pragya Barnwal Major Tanul Singhal (Rtd.)Mittal
Madhuram
(Senior Editor) CORRESPONDENTS
Navank Shekhar Mishra SUPPORT STAFF
Priyanka Singh
Suraj, Sarvesh
(Legal Associate) Shambhavi Srivastava

PRODUCTION, VIDEO PRODUCTION

video editor it dePaRtMent
BuReau
CIRCULATION & ANCHOR/PRODUCERhR
Coo
QUALITY Amit Pandey Gaurav Upadhyay
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Shree Rastogi Shalinee Rai
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(Senior Correspondent) FinanCe digital
PRODUCER
PRoduCtion, video PRoduCtion
Rajesh
HR Shah Manish Singh Moshin Sheikh
CiRCulation
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(Senior
ShalineeCorrespondent)
Rai Sajwan (Accounts
Quality Shree Rastogi
Rashmita Das VIDEO EDITOR Manager) Photo
Piyush Srivastav Producer dePaRtMent
(Senior Correspondent) Amit Pandey Rahul Sharma (CA)
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(Senior Correspondent) Accounts)
oFFiCe Boy
Suraj, Sarvesh
 The Legal
Observer
JULY-2022 ISSUE-03

l
CONTENTS l

PAGE

16.
Decriminalising THE DELHI HIGH COURT IS HEARING A CHALLENGE
TO THE CONSTITUTIONAL VALIDITy OF THE

marital
‘MARITAL RAPE IMMUNITy’ PROVIDED FOR IN THE
INDIAN PENAL CODE. THE CASE HAS PUT THE
SPOTLIGHT ON CRUCIAL ISSUES CONCERNING
CONSENT, THE ExTENT OF STATE CONTROL ON
FEMALE SExUAL AUTONOMy, AND CORRECTING

rape
HISTORICAL PREJUDICES IN LAw. THE LEGAL
OBSERVER ExAMINES VARIOUS PERTINENT ISSUES
AND THE VALIDITy OF MARITAL RAPE ExCEPTION AS
CARVED OUT IN ExCEPTION 2 TO SECTION 375 OF
INDIAN PENAL CODE

POINT OF VIEw
10. MaPPing the FRee sPeech deBate
THERE IS PERHAPS GROUND TO CREATE A NEw JURISPRUDENCE
OF CUMULATIVE INCITEMENT. POLITICAL DISCOURSE IN INDIA
TODAy SEEMS TO INVITE THE FULL GAMUT OF SAFEGUARDS
AND RESTRICTIONS ON FREE SPEECH THAT THE CONSTITUTION
PRESCRIBES.
NEwS SNIPPETS
12. congRess accuses govt oF ‘inteRFeRing,
intiMidating, inFLuencing’ judiciaRy
THE CONGRESS ON TUESDAy ATTACKED THE GOVERNMENT OVER ITS
APPROACH TOwARDS JUDICIARy, ALLEGING THERE wAS “INTERFERENCE,
INTIMIDATION AND INFLUENCE”, AND ALSO AN ATTEMPT TO “SABOTAGE
AND SUBJUGATE” THE IMPORTANT PILLAR OF DEMOCRACy.
NEwS SNIPPETS
14. the judiciaRy shouLd have annuaL
PeRFoRMance RePoRts, too
IN A RARE ExHIBITION OF TRANSPARENCy, AT LEAST By THE STANDARDS
OF THE INDIAN JUDICIARy, THE ORISSA HIGH COURT HAS PUBLISHED AN
ANNUAL REPORT TAKING STOCK OF ITS PERFORMANCE IN A DIFFICULT
yEAR THAT wAS PUNCTUATED By THE RESURGENCE OF THE PANDEMIC.
By SUBJECTING ITSELF TO THE SCRUTINy OF THE COMMON CITIzEN, THE
COURT HAS SHOwN ExCEPTIONAL HUMILITy.
NEwS SNIPPETS
15. suPReMe couRt extends inteRiM BaiL oF aLt
news co-FoundeR MohaMMed ZuBaiR
THE SUPREME COURT ON TUESDAy ExTENDED THE INTERIM BAIL GRANTED
TO ALT NEwS CO-FOUNDER MOHAMMED zUBAIR TILL FURTHER ORDERS IN A
CASE IN wHICH HE wAS BOOKED By THE UTTAR PRADESH POLICE IN SITAPUR
FOR HURTING RELIGIOUS SENTIMENTS THROUGH TwEETS IN wHICH HE
CALLED SOME HINDU SEERS “HATE MONGERS”.

8 THE LEGAL OBSERVER JUNE 2022

 CONTENTS
VOLUME-01

CyBER CRIME
64. chinese cyBeR-esPionage thReat
ADEqUATE MEASURES NEED TO BE ADOPTED TO
STRENGTHEN INDIA’S CyBER DEFENCE AS IT HAS BECOME
INCREASINGLy SUSCEPTIBLE TO CHINESE CyBER ATTACKS,
INVESTIGATES SAMEER PATIL

NAxALISM LAST wORD

27. tackLing naxaLisM 70. judiciaRy and LegisLatuRe can’t Be in sync
FOR SOME IT IS A MISSION AND FOR SOME IT IS ANTI-NATIONAL.
wHILE SPEAKING AT THE CONSTITUENT ASSEMBLy, DR BR
THE ISSUES ON wHICH NAxALISM STARTED IN INDIA, IS ALL TOGETHER,
AMBEDKAR SAID, “…HOwEVER GOOD A CONSTITUTION MAy
HAS BEEN A DEBATABLE ISSUE. DR. PK AGRAwAL ELUCIDATES THE CAUSES
BE, IT IS SURE TO TURN OUT BAD BECAUSE THOSE wHO ARE
AND THE REMEDIES
CALLED TO wORK IT, HAPPEN TO BE A BAD LOT.”

TETE-E-TETE
56. indian judiciaRy PLaying PivotaL RoLe in
PRoMoting aLteRnative disPute ResoLution
MechanisMs
IN AN ExCLUSIVE TO PRAVEEN K SINGH OF THE LEGAL
OBSERVER, THE LAw MINISTER RIJIJU TALKED ABOUT HOw THE
INDIAN JUDICIARy HAS BEEN PROACTIVE IN PROMOTION OF
ADR MECHANISM. HE ALSO TALKED ABOUT THE ExTRAORDINARy
REFORMS wHICH HAVE BEEN BROUGHT IN THE LAST EIGHT
yEARS OF THE MODI GOVERNMENT.

CONFLICT
36. judiciaRy veRsus LegisLatuRe
NONE OF THE THREE ORGANS OF THE STATE CAN CLAIM TO BE SUPREME AS
ONLy THE CONSTITUTION IS SUPREME AND THE LEGISLATURE, THE ExECUTIVE
AND THE JUDICIARy ARE BOUND TO wORK wITHIN THE RESPECTIVE
DOMAINS AS DEFINED IN THE CONSTITUTION. VIPLAVA AwASTHI ExAMINES
THE CONFLICT BETwEEN JUDICIARy AND LEGISLATURE

POLICy
60. aRchaic Laws to Be sheLved
SINCE INDEPENDENCE, MULTIPLE COMMITTEES HAVE MADE
RECOMMENDATIONS TO REPEAL UNNECESSARy & OBSOLETE LAwS, AND
ALSO SUGGESTED MODIFICATIONS TO CERTAIN LAwS SO AS TO MEET THE
REqUIREMENTS OF THE PRESENT DESCRIBES THE LEGAL OBSERVER

JUNE 2022 THE LEGAL OBSERVER 9

 l POINT OF VIEw l
neeRaj sRivastava
Publisher
neeraj.advoker@gmail.com
mapping the Free
speech Debate
t
here is perhaps ground to create a new juris-
prudence of cumulative incitement. Political
discourse in India today seems to invite the
full gamut of safeguards and restrictions on
free speech that the Constitution prescribes.
Quite often, these are misused, and deciding
on a case-by- case basis is problematic. Recently, there
have been many instances that have stretched the envelope
of what we define as freedom of expression. On the one
hand, we have FIRs being filed against students for chant-
ing ‘azadi’. On the other, we have political leaders giving
hate speeches. Freedom of expression enshrined under Ar-
ticle 19 (1) of the Constitution is not an absolute right; it
comes with safeguards outlined under Article 19 (2).
Free speech is tricky business. No matter how enlightened
the political leaders of a society, they inevitably convince
themselves that now freedom of speech has gone too far.
No wonder that the first amendment made to the Indian
constitution, was with regard to freedom of speech. Iron-
ically, the plea for the change came from the very makers
of the Constitution, who had ratified it merely 16 months
back. Tabled by Jawaharlal Nehru, the proposal sought
10 THE LEGAL OBSERVER
to put restrictions on the clause guaranteeing freedom of
speech to all citizens on the grounds that it was restricting
social change. The Freedom of Speech and Expression is
a fundamental right guaranteed to all citizens under the
Constitution of India. However, the Constitution does not
guarantee an absolute individual right to freedom of ex-
pression. Instead, it envisages reasonable restrictions that
may be placed on this right by law.
Many laws that restrict free speech such as the laws pun-
ishing sedition, hate speech or defamation, derive their le-
gitimacy from Article 19(2). Inspection of movies, books,
paintings, etc, is also possible by way of this clause. Schol-
ars note that censorship in India was, and still is, histori-
cally rooted in the discourse of protecting Indian values
from outside forces and building and maintaining strong
national unity post independence. Scholars conclude that
any misuse of the law could be detrimental to arts and
ideas. The freedom to criticise and dissent are part of one’s
broader freedom of speech, which is seen as fundamental
to the functioning of a democracy. If a state’s citizenry is
not free to express themselves, then their other civil and
political rights are also under threat. The freedom of ex-
JULY 2022
 l POINT OF VIEwl
pression, however, is paramount to the working of a de-
mocracy and it includes the right to offend. For a little over
half a decade, questions of whether “hate speech” can be
excused under the right to freedom of speech, have been
raised by various quarters of society—their stance often
varying from one case to the other. The freedom of press is
also crucial to the functioning of participative democracy.
In the absence of a free press, citizens lose their ability to
make informed decisions in a free and fair electoral pro-
cess. In conclusion, “Intolerance of dissent from the or-
thodoxy of the day has been the bane of Indian society for
centuries. But it is precisely in the ready acceptance of the
right to dissent, as distinct from its mere tolerance, that a
free society distinguishes itself.” —A G Noorani, 1999 In
this resource kit, we have collated over 200 articles from
the EPW archive and built a repository of articles that
cover these debates.
Refer below the redacted text of Article 19 (1) (a) and
Article (19) (2) below to explore more.
19 (1) (a) All citizens shall have the right to freedom of
speech and expression .
19 (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 reason-
able 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 rela-
tions with foreign States, public order, decency or morality
or in relation to contempt of court, defamation or incite-
JULY 2022
ment to an offence.
Elon Musk’s ‘free speech’ statement has already caused
a division, as some human rights groups have raised con-
cerns about hate speech on Twitter The expected acqui-
sition of Twitter by billionaire Elon Musk has sparked a
debate in the United States over freedom of expression and
the role of social media platforms in regulating informa-
tion flow. Even though Musk has addressed himself as a
“free speech absolutist” and made it the core of his agen-
da after the Twitter takeover, some human rights groups
believe that this latest development may influence hate
speech on the microblogging platform.
Prior to his bid to take over Twitter, Musk had complained
about the company’s censorship of tweets it deemed of-
fensive or misinformation, but it’s unclear how the pro-
spective change of ownership will influence
the day-to-day user experience. He has stat-
ed that Twitter must evolve into a true venue
for free speech. Musk called free expression
“the backbone of a functioning democracy”
in a statement released after the deal was fi-
nalised. But some have expressed concern
that the platform could be used to propagate
hate speech and misinformation without pro-
tection. For example, Deborah Brown, a dig-
ital rights researcher and advocate at Human
Rights Watch, told media that regardless of
who controls Twitter, it has a human rights ob-
ligation to respect the rights of those who use
the network all around the world.
Changes to its policies, features, and algo-
rithms, big and small, can have dispropor-
tionate and sometimes devastating impacts,
including offline violence,” Brown stated. Ad-
ditionally, she said: “Freedom of expression is not an abso-
lute right, which is why Twitter needs to invest in efforts to
keep its most vulnerable users safe on the platform.”
The NAACP or the National Association for the Advance-
ment of Colored People, which is a civil rights advocacy
organisation in the US, said in a statement: “Musk: free
speech is wonderful, hate speech is unacceptable. Dis-
information, misinformation and hate speech have NO
PLACE on Twitter.”
Michael Kleinman, who is Amnesty International USA’s
director of technology and human rights, said that Twitter
has a responsibility to defend human rights, including the
right to live free of discrimination and violence, as well as
the right to freedom of expression and opinion, regardless
of who owns the company. n
THE LEGAL OBSERVER 11
 l NEwS SNIPPETS l

T
he congress on Tuesday
meDiation bill: attacked the government over congress accuses
house panel its approach towards judiciary,
govt oF ‘interFering,
alleging there was “interference, in-
recommenDs
against
timidation and influence”, and also an
attempt to “sabotage and subjugate” intimiDating,
compulsory the important pillar of democracy.
congress spokesperson Abhishek
inFluencing’ juDiciary
meDiation, role Singhvi told a press conference
For juDiciary that these have unfortunately have
become the insignia and spikes of
this government, which is deplorable.
“The Modi government’s approach
towards the judiciary smacks of
three ‘is’: influence, interference and
intimidation. The ruling party in this
government can equally be accused
of three ‘Ss’, an attempt to ‘sabotage,
subjugate and subvert’ the judicia-
ry. This deadly combination of 3 is
along with 3 Ss is deplorable,” he told
reporters. There was no official com-

P
arliamentary Stand- ment from the bJP on the charge. n
ing committee on
Law and Justice,
headed by veteran bJP we are answerable only to
leader Sushil Kumar
Modi, has recommended constitution, says cji

H
substantial changes to
the Mediation bill, meant itting out at “forces whose only aim is to run down
for institutionalisation of the only independent organ” in the country, chief
mediation and establish- Justice of india N V ramana said Saturday that the
ment of the Mediation judiciary is answerable only to the constitution. He said the
council of india. The party in power expects every action of the government to
panel cautioned against be endorsed by the judiciary while the opposition wants
making pre-litigation the judiciary to advance its positions and causes. Speaking
mediation compulsory at a felicitation ceremony organised by the Association of
and warned the centre indian Americans in San Francisco, cJi ramana said, “As we
against the provision to celebrate the 75th year of independence this year and as
give higher courts the our republic turned 72, i must add here, with some sense of
power to frame rules for regret, that we still haven’t learnt to appreciate wholly the
mediation. n roles and responsibilities assigned by the constitution to
each of the institutions.” n

inDian juDiciary wants a new bail law

“M
ore than 2/3rd of the inmates of the prisons constitute undertrial
prisoners. of this category of prisoners, majority may not even be
required to be arrested…,” the Supreme court noted in a judgment
on Monday, as it restated the law on bail and issued directions for states to
ensure compliance with the legal procedure laid down for arrests. it also asked
the centre to consider passing a separate law on bail to ensure that an objective
process is followed in the granting of bail by courts. However, several legal ex-
perts believe that the problem with the current bail system is not the absence of
adequate laws but the non-application of existing ones. Therefore, they suggest
that instead of laying down directions and clarifications, it would be more effec-
tive if courts upheld existing laws on bail and penalised investigation agencies
and lower courts for any breaches. n

12 THE LEGAL OBSERVER JULY 2022

 l NEwS SNIPPETS l

can trust
inDian juDiciary
For its absolute
inDepenDence: cji

i
ndian judiciary is rec-
interFerence in juDiciary ognised for giving srinagar Female
paramount importance
not acceptable: Former to the rule of law, said chief vlogger Dreams to
juDges & bureaucrats Justice of india N V ramana crack juDiciary exam

A
on Tuesday, as he empha-

A
group of former judges and bureau-
crats has urged the Supreme court
not to expunge any of its remarks
in the case of “Zakia Ahsan Jafri vs State of
Gujarat and Anr”, saying that “interference in
judiciary not acceptable”. This comes after a
“politically motivated” section of civil society
has made attempts to cast “aspersions on
the integrity of the judiciary” at large and in
this case relating to Teesta Setalvad follow-
ing her arrest in connection with a case
against her NGo which gave baseless infor-
mation about the 2002 Gujarat riots to the
police. “The Supreme court remarked that
Teesta Setalvad and others were vindictively
pursuing this suit for her ulterior design by
exploiting the emotions of Zakia Ahsan Jafri,
aggrieved by the events. n
sised that one can trust it
“for its absolute indepen-
dence and its inherent
constitutional strength to
treat all parties equally and
equitably”. Speaking at the
annual meet of indo-Ger-
man chamber of commerce
on the theme ‘Arbitration
in A Globalised world –
The indian experience’ in
Dortmund, Germany, the
cJi said, “The constitu-
tional courts of india – the
High courts and Supreme
court – have the power to
judicially review every act of
the government. n
20-year-old V-logger,Syeda Hubza from
HMT Srinagar has gained much popu-
larity in the valley for her daily lifestyle
vlogging. Speaking to media, Hubza said that
she started vlogging in December last year
and has gained a good response from all age
groups. She said, at first, she was making
videos randomly and there was no reaction
from the public. “After some time, people
started watching my videos and also started
following me on social media sites,” she said.
The young female blogger is perusing her
bachelor of LLb from bangalore and aspires
to crack the Judiciary exam to be a Judge.
before getting a huge number of followers
on instagram and Youtube, she was making
very few videos. After gaining followers, the
demand for videos was high. n

it’s now Fashion to make “Fair criticism”: no contempt case on

allegations against juDiciary : sc 3 critics oF supreme court’s nupur

T
he Supreme court on Monday sharma remarks

said stronger a judge turns out
to be the worse become the
allegations levelled at her or him.
A Vacation bench led by Justice
D.Y. chandrachud made the oral
remark while hearing an appeal by
a lawyer who acted contemptuously
by obstructing the execution of a
non-bailable warrant against
him issued by the Madras
High court. The bench said
it had become somewhat
of a “fashion” to make allegations against the judiciary.
“The stronger the judge, the worse the allegations. This
is happening in bombay, rampant in uttar Pradesh and
now even [in] Madras,” said Justice chandrachud. The
court did not intervene on behalf of the lawyer who
was sentenced to two weeks’ imprisonment and debar-
ment for a year in the contempt case. n
J
ustifying “fair and reasonable criti-
cism”, Attorney General KK Venugopal
has said there can be no contempt-of-
court proceedings against a former judge
and two lawyers who had criticised the
Supreme court’s observations on Nupur
Sharma for her comments against Proph-
et Mohammed and islam. A lawyer, cr
Jaya Sukin, had sought a contempt case
against former Delhi High court judge SN Dhingra, former additional
solicitor general Aman Lekhi, and senior advocate K rama Kumar. Law
says consent from the Attorney General is mandatory for it. The AG re-
fused, saying, “The Supreme court in a large number of judgments has
held that fair and reasonable criticism of judicial proceedings would
not constitute contempt of court.” The comments by these three men
were not abusive, he said. At the centre of the controversy are obser-
vations by a two-judge bench of the Supreme court, including that
Nupur Sharma “is single-handedly responsible for everything that is
happening in the country” after her statements.n

JULY 2022 THE LEGAL OBSERVER 13

 l NEwS SNIPPETS l

bcci moves
i
n a rare exhibition of transparency, at
supreme court least by the standards of the indian the juDiciary
judiciary, the orissa High court has
to seek urgent published an annual report taking stock shoulD have annual
hearing on of its performance in a difficult year that
was punctuated by the resurgence of perFormance
amenDments
oF inDian
the pandemic. by subjecting itself to the
scrutiny of the common citizen, the court
reports, too
has shown exceptional humility. The
cricket boarD report provides a district-wise breakup
constitution of cases and availability of judges. it
contains a section explaining the reasons
for delays and backlog at the level of the
district judiciary. The tendency of higher
courts to “stay” proceedings, the uneven
distribution of cases amongst judges in
trial courts and the non-availability of
witnesses due to transfers are among the
major reasons cited by it for delays. This
is a notable public introspection exercise
by the judiciary which, at most times, is
content with blaming delays on insuffi-
cient funds and shortage of judges. n

“iF chilDren can go to school at 7 am, why

T can’t we”: supreme court assembles early

he board of control
for cricket in india

T
(bcci), moved the he Supreme court should assemble at 9 am, the
Supreme court on Friday country’s next chief Justice, uu Lalit, said on Friday,
seeking urgent hearing as a three-judge bench sat down an hour ahead of
on a plea for approval schedule. Set to become chief Justice in August, Justice
to amend six rules of Lalit began hearing a case at 9:30 am this morning. Normal-
the board’s constitution. ly, the court begins its proceedings at 10:30 am. “if children
The matter is likely to can go to school at 7 am, then why can’t judges and lawyers
now be heard as early as start their day at 9 o’clock?” he said when former Attorney
next week. The tenure of
General Mukul rohatgi expressed happiness over the early
Sourav Ganguly as bcci
hearing. Along with Justice Lalit, court No. 2 was presided
president and Jay Shah
over by Justice S ravindra bhat and Justice Sudhanshu
as bcci secretary is set
Dhulia on Friday. “This time of 9:30 is more appropriate time
to expire in September
to start courts,” rohatgi said. n
2022.n

moDi government DeFies supreme court, seeks return oF

66a curbs on online speech via un treaty

S
even years after the Supreme court struck down Section 66A of the information
Technology Act as unconstitutional, the Narendra Modi government is trying to
bring the provision’s restrictions on online speech through the backdoor. During
ongoing negotiations to draft a new, legally-binding uN treaty on tackling cybercrime,
india has submitted a proposal for the “criminalisation of offensive messages”, which
is an exact duplication of the language of the Section 66A – language that had been
used to file cases across india against cartoonists, students, activists and others before
the court ruled it ultra vires of the constitution. while Ministry of external Affairs
officials did not respond to queries about the proposal, the legal thinking behind the
move may be to tell the apex court – if the restrictions pass muster at the uN – that
india now has an ‘international obligation’ to reintroduce the 66A curbs. n

14 THE LEGAL OBSERVER JULY 2022

 l NEwS SNIPPETS l

supreme court
extenDs interim
bail oF alt news
co-FounDer
mohammeD Zubair

T
he Supreme court on
Tuesday extended the
interim bail granted
supreme court explains to Alt News co-founder
Mohammed Zubair till
scope oF juDicial review further orders in a case in
oF aDministrative action which he was booked by
supreme court rejects plea

T
the uttar Pradesh Police in
he Supreme court explained the scope of Sitapur for hurting religious on common Dress coDe in
judicial review of action of administrative sentiments through
authority based on it’s subjective opinion tweets in which
eDucational institutes

or satisfaction. “The action based on the sub-
jective opinion or satisfaction can judicially be
reviewed first to find out the existence of the
facts or circumstances on the basis of which
the authority is alleged to have formed the
opinion”, the bench comprising Justices Surya
Kant and Jb Pardiwala observed. before the
Gauhati High court, the writ petition who was
rifleman in Assam rifles challenged the order
passed by Lt. col offg comdt discharging him
from service on the basis of the four red ink
entries received by him during his period of
service. The single bench set aside the order
of discharge and remitted the matter to the
authorities concerned for a fresh decision. Al-
lowing the writ appeal filed by union of india,
the Division bench of the High court set aside
the single bench judgment.n
he called some
Hindu seers
“hate
mongers”.
A bench of Justices D Y
chandrachud and A S
bopanna, which took up
his plea seeking quashing
of the Sitapur Fir, was told
by Additional Solicitor
General S V raju appearing
for the state that Zubair
had already been granted
interim bail by the court on
July 8 and the state would
need some more time to
file its counter-affidavit. n
T
he Supreme court today refused to ac-
cord urgent hearing to a PiL which seeks
a direction to the centre and states to im-
plement a common dress code for staffers and
students in registered educational institutions
for securing equality and promoting fraternity
and national integration. A bench headed by
chief Justice NV ramana was urged by lawyer
Ashwini upadhyay that his PiL be also listed
for hearing like the batch of appeals filed
against the Karnataka High court verdict on
the hijab row. on wednesday, the bench, also
comprising justices Krishna Murari and Hima
Kohli, took note of the submissions of lawyer
Prashant bhushan and agreed to list next week
the petitions challenging the Karnataka High
court verdict refusing to lift the ban on hijab
in educational institutions of the state. n

isro case: supreme court to hear woman willingly staying

cbi plea to cancel Former kerala with man can’t File rape case iF
Dgp’s anticipatory bail relationship Fails: sc

T A
he Supreme court on Fri-
day agreed to hear a cen-
tral bureau of investigation
(cbi) plea to cancel the anticipa-
tory bail granted to former Ker-
ala DGP Siby Mathews, who is
accused of conspiring to frame
iSro scientist Nambi Narayanan
and others in an espionage case
in 1994. A bench led by Justice A.M. Khanwilkar said the
plea would be tagged along with similar petitions filed by
the central agency challenging the Kerala High court’s de-
cision to grant bail to the other accused in the case, namely,
P.S. Jayaprakash, Thampi S. Durga Dutt, Vijayan and r.b
Sreekumar, who were either former intelligence or senior
police officers. The court listed the case on July 27. The cbi
has argued that it has to question Mr. Mathews in custody
to retrieve crucial evidence about the alleged conspiracy. n
woman in a relationship with a man and
willingly staying with him cannot file a
case of rape after the relationship has
gone sour, the Supreme court has said, allow-
ing pre-arrest bail to a man. A bench of Jus-
tices Hemant Gupta and Vikram Nath noted it
was an admitted case of the complainant that
she was in a relationship with the appellant
for a period of four years. Also, her counsel
admitted that she was 21 years old when the relationship started. “in
view of the said fact, the complainant has willingly been staying with
the appellant and had the relationship. Therefore, now if the relation-
ship is not working out, the same cannot be a ground for lodging an
Fir for the offence under Section 376(2)(n) iPc,” the bench said. one
Ansaar Mohammad challenged a rajasthan High court’s order passed
on May 19, 2022, which dismissed an application for pre-arrest bail
under Section 438 of the code of criminal Procedure, 1973 for the
offences under Section 376(2)(n), 377 and 506 iPc. n

JULY 2022 THE LEGAL OBSERVER 15

16 THE LEGAL OBSERVER JULY 2022
 l COVER STORY l

Decriminalising
marital
rape
The Delhi High Court is hearing a challenge to
the constitutional validity of the ‘marital rape
immunity’ provided for in the Indian Penal Code.
The case has put the spotlight on crucial issues
concerning consent, the extent of state control on
female sexual autonomy, and correcting historical
prejudices in law. The Legal Observer examines
various pertinent issues and the validity of marital
rape exception as carved out in Exception 2 to
Section 375 of Indian Penal Code

r
ape is one of the heinous crimes which can be committed against
the women in the society. Marital Rape is a disgraceful offence that
still exists in India in the age of feminism and gender equality and
has scarred the trust and confidence of the women in the institution
of the marriage. Although many laws are made to ensure the safety
of the women, but it has failed to criminalize the rape that happens
within the four walls of the house. Many women have to face the
brunt due to non-criminalisation of the marital rape. Exception II
to Section 375 of the Indian Penal Code explicitly states that sexual
intercourse by a man with his own wife, the wife not being under
the age of 15 years is not rape. Non-Consensual sexual act with an
unmarried girl amounts to rape but when it is committed against
a married woman, it no longer amounts to an offence. Legislators
and Courts have failed to give the justification for the same for the
reasons only known to them. The paper discusses the need for crimi-
nalising the marital rape in India and it should be a developed notion
that non-consensual sexual act will amount to rape whether commit-
ted against a married or unmarried women. The paper also focuses
on the legal and judicial framework of the marital rape in India.

JULY 2022 THE LEGAL OBSERVER 17

 l Cover StorY l

legislative Framework
The Indian Penal Code makes the sexual
abuse
offence of rape punishable under
Section 375 and 376. Section 375
provides for the offence of rape.
According to this section “A man is
said to commit rape if he penetrates
his penis or inserts, to any extent,
any object, or a part of the body, not
being the penis into the private part
of a woman or manipulates any part
of the body of a woman against her
will or without her consent.” A man
is also said to commit rape if the
sexual act is committed on a wom-
an whose consent was obtained by
putting her into fear of death or hurt
or in the state of unsound mind or
intoxication or when she is below
the age of 18 years or when she is
unable to communicate the consent.
Exceptions to Section 375 mentions
the circumstances where the inter-
course does not amount to rape. Ex-
ception 2 states that “A man who en-
gages in intercourse with his wife,
the wife not being under the age of
15 years is not said to have commit-
ted rape”. Section 376 of the Indi-
an penal Code prescribes the pun- the wife is above 15 years. Howev-
DoMesTic ishment for rape. It provides that
“Whenever a person has commit-
er, married women are given oth-
er remedies when it comes to the
vIOLeNCe IN INDIA ted rape he shall be punished with non-consensual sexual act commit-
IS AN eNTReNCheD PROBLeM, rigorous imprisonment which may ted by her husband.
AND IT hAS ONLY BeeN extend to life imprisonment and
Marital rape comes within the am-
shall also be liable for fine”
exACeRBATeD IN ReCeNT YeARS. bit of the “cruelty” as defined under
AccorDing To The nATionAL There is no specific legislation Section 498-A of the Indian Penal
crime recorDS BureAu’S which criminalises the marital Code. It provides that “Whoever,
rapes in India. Marital rape is ex- being the husband or the relative
(ncrB) ‘CRIMe IN INDIA’ 2019 cluded from being an offence un- of the husband of a woman, sub-
RePORT, ABOuT 70% OF wOMeN der the criminal laws and Excep- jects such woman to cruelty shall
IN inDia are vicTiMs of tion 2 of Section 375 of the Indian be punished with imprisonment for
DoMesTic vioLence. Penal Code explicitly mentions a term which may extend to three
that sexual intercourse by a man years and shall also be liable to
on his own wife is ‘not a rape’ if fine. Cruelty as defined under Sec-

18 THE LEGAL OBSERVER JULY 2022

 l Cover
a
major problem faced
by the women in
india and is most
prevalent in the
patriarchal society.
women in india are subjected
to criminal atrocities such as
rape, Domestic Violence, sexual
harassment, trafficking and forced
prostitution.”Domestic violence in
india is a serious issue and it has
only been increased in recent years.
According to the National crime
records bureau’s report “crime in
india, 2019”, about 70% of women
in india are victims of domestic
violence. one such aspect of this
domestic violence is marital rape.
Marital rape refers to forcible sexual
assault or by the threat of physical
violence committed by husband
without the consent of his wife.
The indiana university Press 1990
had reported that “More than 1 in
every 7 married women has been
subjected
to rape in their marriage”. The
marital rape has been increased in
few years. Across the world, only
tion 498 A refers to the acts which
can induce the woman to commit
suicide or causes danger to her life
or her physical and mental health.
” . It covers both aspects – mental
as well as physical cruelty. A man is
said to commit cruelty if engages in
non-consensual sexual intercourse
with her wife.
Another provision which is used by
the married women against the mar-
ital rape is Section 354 of Indian Pe-
nal Code which prescribes the pun-
ishment for outraging the modesty
of a woman. It provides that “Who-
ever assaults or uses criminal force
JULY 2022
Story l
52 countries have recognised the
marital rape as a crime. At
present, Marital rape has not been
recognised as a crime in many
countries including india.
one of the reasons for non-
criminalisation of marital rape is
that it would destroy the sacred
union of marriage and will create
the absolute anarchy in families.
in patriarchal society, women are
considered to be the property of
her husband. She doesn’t have
her own right and identity after
marriage; Therefore, marriage is
a license for the husband to have
sexual intercourse with his wife ToDay
even without her consent.
Legislations have been enacted to
MARITAL RAPe hAS
ensure the protection and BeeN IMPeACheD IN
safety of the women from the MORe ThAN 100
brutal crimes like rape and
domestic violence, but they have
COuNTRIeS BuT,
failed to criminalise the rape that unforTunaTeLy,
happens within the four walls of
the house. Non- criminalisation of
inDia is one of The
the marital rape violates the dignity onLy 36 COuNTRIeS
and fundamental rights of the wheRe MARITAL
women. n RAPe IS STILL NOT
criMinaLizeD.
to any woman, intending to outrage
or knowing it to be likely that he will
thereby outrage her modesty, shall
be punished with imprisonment of
either description for a term which
may extend to two years, or with
fine, or with both.” . Protection of
Section 354 can be taken as it pre-
scribes the punishment for anyone
who assaults or outrages the modes-
ty of any women whether married or
unmarried. In “NimeshbhaiBharat-
bhai Desai v. State of Gujarat” ,
the Court held that “A man cannot
be permitted to violate the dignity
by coercing his wife to engage in a
sexual act without her full and free
THE LEGAL OBSERVER 19

consent. If he commits such an
act, it will amount to outraging the
modesty of the woman and will be
punishable under Section 354 of
Indian Penal Code.”
Section 377 identifies certain acts
which if committed would consti-
tute an unnatural offence and such
a prohibition regulates the sexu-
al conduct regardless of gender
identity and orientation. Consent
is not the determining criterion in
the case of unnatural offences and
rather any offence which is against
the order of nature and can be de-
scribed as carnal penetration and
would constitute an offence under
Section 377, thereby making it
clear, that a wife can initiate pro-
ceedings against the husband un-
der Section 377 for unnatural sex.
The United Nations Declaration
on the Elimination of Violence
against Women defines violence
as “any act of gender-based vio-
lence that results in, or is likely
to result in, physical, sexual, or
mental harm or suffering to wom-
en, including threats of such acts,
coercion or arbitrary deprivation of
liberty, whether occurring in public
or private life.” Article 2 of the
Declaration on the Elimination of
the Women against Violence states
that “Violence includes Marital
Rape”. In 2013, the U.N Commit-
tee on Elimination of Discrimina-
tion Against Women recommend-
ed that it is the need of the hour for
India to criminalise marital rape.
There are various reports by the
Law Commission of India which
had discussed the issue of the
criminalisation of the marital rape.
42nd Law Commission Report
1971, 85th Law Commission Re-
port 1980 and 172nd Law Com-
20 THE LEGAL OBSERVER
l Cover StorY l
juDicial
approach
i
n india, marital rape is not
regarded as a criminal offence.
A husband cannot be guilty of
rape with his lawfully wedded
wife. in Queen emperor v.
HareeMythee , the court convicted
the husband under Section 338 of the
indian Penal code and observed that
“rape Laws does not apply between
husband and wife if the wife is above
the age of 15 years but recognised
that the husband has no right to
disregard the physical safety of the
woman even the wife is over 15 years”.
Similarly in the case of emperor
v. ShahuMehrab, the
husband was
convicted under Section 304 A of indian
Penal code for causing the death of
the minor wife by rash or negligent act
of sexual intercourse with her. There
are various judgments where court
recognised the women’s right to privacy
and bodily integrity but refused to
acknowledge the fact that husband can
commit rape or sexual assault on his
wife. in Sareetha v. T. Venkata Subbaih ,
the court held that “A woman’s right to
privacy will be equally violated in case
of non- consensual sexual intercourse
with her husband. rights and duties in
a marriage should be equally given to
both the partners. The right to privacy is
not lost by marital association”.
in Sakshi v. union of india , the Supreme
court recognised the
shortcoming prevalent
in the law relating
to rape in india and
suggested that it is the need
of the hour to bring the changes
in rape laws so that the safety of the
women can be ensured at all times in
public and in private sphere”. Supreme
court in “independent Thought v. union
of india & Another refused to debate
upon the issue of criminalisation of
the marital rape. it expressed that
they would not like to make remarks
on marital rape where the age of the
JULY 2022

wife is above the age of 18 years. The
court held that exception 2 of Section
375, indian Penal code is liable to be
struck down as it is discretionary and
violative of Article 14, 15 and 21 of
the constitution of india. The court
changed the ambit of exception 2 of
Section 375, and it is to be now read
as” Sexual intercourse or Sexual Acts
by a man with his own wife, the wife
not being under 18 years of age is not
rape.” There have been several recent
instances where courts dealt with
cases surrounding the central issue of
marital rape. in “Dilip Pandey v. State
of chattisgarh” , the court discharged
a man who was accused of raping his
own wife relying on the exception
mentioned in Section 375 of the indian
Penal code. The court held that “indian
Law does not recognise the marital
rape as exception ii of Section 375
explicitly states that sexual intercourse
or sexual act by a man with his own
wife, the wife not being under 18 years
of age is not rape.”
Kerala High court gave a landmark
order which states that “merely for the
reason that the law does not recognise
marital rape under penal law, it does
not inhibit the court from recognising
the same as a form of cruelty to grant
divorce”. The court is of the opinion
that marital rape is a good and
sufficient ground to claim divorce. it
falls within the ambit of physical and
mental cruelty although such cannot
be penalised.
in July 2019, the Delhi High court
dismissed a petition seeking a
direction to the central government
to declare marital rape as a ground
for divorce. The court was op the
opinion that it did not have the power
to legislate under Article 226 of the
constitution.
in the case of “Joseph Shine v.
union of india” , the Supreme court
decriminalised adultery by striking
down Section 497 of indian Penal
code and refused to acknowledge the
JULY 2022
l Cover Story l
argument of the marital entitlements
of the husband. Justice chandrachud
stated that “The right to say no to
sexual intercourse exist after the
marriage also”. These remarks may
work in the support for the petition
filed by the riT Foundation and All-
india Democratic women’s Association
in Delhi High court which argues that
exception 2 of Section 375 of the indian
Penal code is unconstitutional on the
ground of discrimination between
married and unmarried women.
The issue of the marital rape has
once again raised the question
whether the existing rape laws are
sufficient to protect the women or
new ones need to be introduced
fir the protection of adult married
women who are forced to engage in
non-consensual intercourse by their
partners. Presently, the Delhi High
court is in the process of hearing
the final arguments which are the
result of series of the public interest
litigations challenging the marital rape
exception as given under Section 375
of the indian Penal code. it can be
seen from the court arguments and
media discussions that the debate
mainly revolved around the ethical
and social complexities. it all started
in 2015 when the NGo riT Foundation
moved a petition to the Delhi High
court challenging the legality of the
“marital rape exception” as provided
under exception ii of Section 375
of the indian Penal code. The
judgment given by the Apex court
in “independent Thought v. union of
india” that a man is not guilty of the
rape if the wife is above 18 years of
age started the debate around the
issue of criminalisation of the marital
rape. Petitions challenging the marital
rape clause were filed by the ‘All india
Democratic women’s Association’
and 3 individuals who were victims of
domestic and sexual violence .
The centre filed an affidavit in
response to the petitions that the
consultation on the issue of the
criminalisation of the marital rape is
in the process keeping the view the
recommendations made by Justice JS
Verma committee report constituted
after the aftermath of Nirbhaya
Gang rape case in 2012. The issue
is currently being heard by 2 Judge
bench of Justices rajiv Shakdher
and c Harishankar . The Government
contended that “Amendment in the
indian Penal code is not necessary
in view of the criminalisation of the
marital rape as woman who is a victim
of sexual violence by her husband has
several other criminal remedies”.
Senior Advocate rajshekhar rao, who is
assisting the court as an amicus curiae
in a batch of petitions to criminalise
marital rape observed that “Status of
marriage between 2 parties cannot
be sufficient reason to deny a wife
the ability to prosecute her husband
for marital rape.” He illustrated that
the relationship between man and
woman can be divided among 3
stages- courtship, engagement, and
separation. if the man and woman
engage in a non-consensual sexual
act in the courtship period or before
marriage, it will be an offence. The
same act will not be considered as
an offence if it is committed after the
marriage. Also, if the man engages in
a sexual intercourse with his own wife
who is living separately, shall be guilty
of rape and is liable to be convicted
under Section 376b of the indian Penal
code. by giving such an illustration
he tried to highlight the anomalies in
the rape laws in india. Another amicus
curiae rebecca John argued before the
court that “if a woman is subjected to
sexual intercourse without her consent,
then the exception to Section 375
of the indian Penal code should be
viewed as an instrument of oppression.
She drew a parallel between the struck
down Section 497 which criminalised
adultery and Section 375 to argue
that both the provisions highlight the
dominance of one partner over the
other in marriage. n
THE LEGAL OBSERVER 21
 l Cover StorY l

mission Recommendation 2000 suggested

that the marital rape exception under the
Indian Penal Code needs to be retained as
according to the lawmakers the criminal-
isation of the marital rape would lead to
excessive interference with the institution
of marriage. After the nationwide protests
over Delhi Gang Rape Case in 2012, J. S
Verma Committee was set up to review the
criminal laws. It suggested that – Marital
Rape Exception should be deleted from
the ambit of the Indian Penal Code. It
further observed that“Consent will not be
presumed in the event of an existing mar-
ital relationship between the complainant
and accused”
the unconstitutionality
The trend of non- criminalisation of marital
rape emerged from the British era. When
the Indian penal Code was drafted, women
were not given equal rights to that of the
men. Married Women was not considered
an independent legal entity. Marital Rape permits reasonable classification and pro-
was largely influenced by the doctrine of hibits class legislation. Explanation 2 of
coverture. Under the “Doctrine of Cov- Section 375 states that “Sexual intercourse
erture”, it was considered that after mar- by a man with his wife, the wife not be-
riage, the identities of man and the woman
merges into one. Thus, Marital rape was
one such ing under the age of 15 years is not rape.”
When a girl or woman is raped by a man
not considered as an offence. In the age MANIFeSTATION it would amount to rape, an offence under
of the gender equality, the notion of one OF ThIS DOMeSTIC Section 375 of Indian Penal Code. But if
identity of husband and wife doesn’t seem vIOLeNCe IS they are married and the wife is above the
to be appropriate. Women has a separate MARITAL RAPe. age of 15 years, it would not amount to an
identity as that of men. Many Legislations MARITAL RAPe, offence under Section 375 of Indian penal
have been enacted for the safety and the
protection of the women.
The acT of Code.
forcing your Exception 2 of Section 375 clearly vio-
The Constitution of India provides sPouse inTo lates Article 14 as it discriminates between
certain safeguards for the protection of the having sex the married and unmarried woman. The
women. Marital Rape violates the basic wIThOuT PROPeR exception created two classes of women
principles of right to equality and right to
life and personal liberty guaranteed un-
CONSeNT, IS AN based on their marital status and there is no
uNjuST YeT NOT reasonable classification for the same. In
der Article 14 and Article 21 of the Con- “State of West Bengal v. Anwar Ali Sark-
stitution respectively. Article 14 of the uNCOMMON wAY ar” , the Supreme Court held that “Reason-
Constitution guarantees the right to equal- TO DegRADe AND able Classification under Article 14 should
ity to every person. It provides that “State DiseMPower be based on the intelligent differentia and
shall not deny to any person equality be- woMen. the State is violating the fundamental right
fore law and equal protection of the laws of equality guaranteed under Article 14 by
within the territory of India”. Article 14

22 THE LEGAL OBSERVER JULY 2022

 l Cover Story l

arTicLe 21
OF The CONSTITuTION
guARANTeeS The
LIFe AND PeRSONAL
LIBeRTY TO AN
INDIvIDuAL. IT
PROvIDeS ThAT
“no Person
shaLL be DenieD
his Life anD
LiberTy excePT
The ProceDure
esTabLisheD
by Law”.

not criminalising the marital rape”. Moreover, married women may ed the scope of right to life and
find it more difficult to leave the personal liberty as enshrined under
Exception 2 clearly defeats the abusive conditions because they Article 21. Right to life is not just
very purpose of Section 375 of the are legally and financially tied to limited to the mere existence of
Indian Penal Code. The spirit of their husband. On the other hand, an individual but also includes the
Section 375 lies in the protection since the husbands know they are right to health, privacy right to live
of the women whether married or immune from being penalized they
unmarried and to punish those who are more encouraged to engage in
engage in the barbaric act of rape. the sexual intercourse with their
Exempting the person from the wife against her will and without
punishment just because such per- her consent.
son is legally married to the victim
is entirely contradictory Article 21 of the Constitu-
to the objective men- tion guarantees the life
tioned in Section
375 of Indian Pe-
MarITaL and personal liber-
ty to an individ-
nal Code. Con- raPE ual. It provides
sequences of the vIOLATeS The BASIC PRINCIPLeS OF that “No person
rape are same RIghT TO equALITY AND RIghT TO LIFe shall be denied
whether a wom- AND PeRSONAL LIBeRTY guARANTeeD his life and lib-
an is married or uNDeR ARTICLe 14 AND ARTICLe erty except the
unmarried. It 21 OF The CONSTITuTION procedure estab-
causes the same ReSPeCTIveLY. lished by law”.
mental and physical The Supreme Court
agony to any woman. with time has expand-

JULY 2022 THE LEGAL OBSERVER 23

 l Cover
with human dignity, right to clean and safe
environment etc. Right to life with human
dignity is the basic right of every individual.
It has nothing to do with the race, gender,
religion, marital status, or caste.
In “Maneka Gandhi v. Union of India” , the
Supreme Court gave a new interpretation to
right to life guaranteed under Article 21. It
held that “Right to life encompasses not only
a bodily right but also right to life with hu-
man dignity”. Similarly in the case of “Fran-
cis Coralie v. Union Territory of Delhi” , the
Court observed that “Right to life includes
within its ambit the right to live with the hu-
man dignity and all the bare necessities of
the life such as adequate nutrition, clothing
and shelter”.
Marital rape is violative of the Article 21 i.e.,
right to live with the human dignity. In “Soka
v. Emperor” , the Court held that “Outraging
the modesty of the wife will be punishable
irrespective of the fact that she is of tender
age or developed enough maturity to under-
stand the gravity of the act. Modesty is an in-
herent characteristic of womanhood indepen-
dent of any individual’s personality”. Married
women has a fundamental right to live with
the dignity which is protected under Article
21 of the Constitution of India. Marital rape
undermines the basic dignity of a woman and
is therefore violating of Article 21.
24 THE LEGAL OBSERVER
StorY l
even
Though
MANY LegAL
AMeNDMeNTS
hAve BeeN DONe IN
CRIMINAL LAw FOR
The PROTeCTION
OF The wOMeN,
The non-
criminALiSATion
of mAriTAL
rApe in inDiA
uNDeRMINeS
The DIgNITY AND Right to life also includes within its ambit
huMan righTs the right to privacy. Privacy is considered
of woMen. as a fundamental right which is essential
for the freedom and protection of the hu-
man dignity. Right to privacy is not limited
to the “right to be let alone” but can also
be extended to other aspects, including
bodily integrity, personal freedom, data
protection, protection from state surveil-
lance, dignity, confidentiality, compelled
speech, and freedom to express own opin-
ions and thoughts. In “K.S Puttaswamy v.
union of India” , the Court held that Right
to privacy is a fundamental right of every
person which is protected under Article
21. The Apex Court observed that “Right
to privacy includes the right of an individ-
ual to make choices regarding his/ her sex-
ual choices”. Exception 2 of Section 375
is a clear violation of the right to life and
personal liberty of the woman who is sub-
jected forcefully to sexual intercourse by
her husband.
JULY 2022
 l Cover
In “State of Karnataka v. Krishnappa” , the Supreme Court
held that “Sexual Violence apart from being a dehumaniz-
ing act is an unlawful intrusion of the right to privacy and
dignity of a woman”. It also observed that non-consensual
sexual act amount to physical and sexual abuse. Similarly
in the case of Suchita Srivastava v. Chandigarh Administra-
tion , the Supreme Court held that right to personal liberty
includes within its ambit the right to sexual privacy. Also,
Justice DY. Chandrachud made the remarks in “Joseph
Shine v. Union of India” that “Husband is not the master
or owner of the sexuality of the wife”.
In “Bodhisattwa Gautam v. SubhraChakroborty” , the Su-
preme Court held that “Rape is the most barbaric act which
can be committed against any person and violates the vic-
tim’s fundamental right to live with the human dignity
which is protected under Article 21 of the Indian Consti-
tution.” This clearly reflects that non- consensual sexual
intercourse with a woman whether married or unmarried
amounts to rape. Thus, Exception 2 of Section 375 violates
the Article 14 and 21 of the Constitution respectively and
Marital Rape should be criminalised under Section 375 of
the Indian penal Code. n
JULY 2022
Story l
the roaD
aheaD
t
here is no denying in the truth that marital
rape still exists in the indian society and
laws have failed to provide any relief to the
women who have faced the brunt of the
marital rape. Non-criminalisation of marital
rape is the major concern in the indian legal system.
Marital rape violates the woman’s fundamental right to
privacy and right to live with dignity as enshrined under
Article 21 of the constitution. There is no legal and
ethical justification for distinguishing of rape between
married and unmarried woman. Act of non – consensual
sexual act will be rape whether it is committed against a
married or unmarried woman.
The major reason behind the non-criminalisation of
the marital rape is the conservative and patriarchal
society. women are expected to be always submissive.
She is considered as the property of her husband. in
india, marriage is seen as a license to engage in a sexual
intercourse even if it is without the consent of another
spouse. Non- consensual sexual intercourse is a direct
attack on right to live with the dignity and it is the
most barbaric act which can be committed against any
individual. There is an immediate need to criminalise
the marital rape under the indian Penal code. Mere
providing other criminal avenues is not sufficient. in the
age of the feminism and gender equality, the society
needs to debunk the prevailing myths that rape by the
spouse is not significant.
Due to lack of reporting of the cases of the marital rape,
the judiciary is hesitant to see this as a criminal offence.
Police authorities are reluctant to interfere in the issue of
marital rape as they are of the view that it is the private
domain of the parties and hence by interfering, they will
be violating the right of privacy of the individuals. Steps
must be taken by the judiciary and the police authorities
to sensitize the issue of the marital rape. Moreover, the
courts cannot be a mute spectator to the offence of the
marital rape and can not left the issue to the decided
by the Parliament. The notion that criminalising
marital rape will harm the sacred institution of the
marriage must be withered away with. what must be
understood by the courts and legislature that women
cannot be made to suffer in the pretext of maintaining
the social appearance and protecting the sanctity of the
marriage. n
THE LEGAL OBSERVER 25
 l Cover StorY l

The
naxaL
movement in western
ghats Karnataka
surfaced for the first
time in 2003 when
there was exchange of
fire between naxals
and police near
Kudre mukh. Later
on in udupi district left
wing activist Parvathi
and hajime were
killed by police in an
encounter.

26 THE LEGAL OBSERVER JULY 2022

 l NAxALISM l

TaCKLIng
naxaLISM
For some it is a mission and for some it is anti-national. The issues on
which naxalism started in India, is all together, has been a debatable
issue. Dr. PK agrawal elucidates the causes and the remedies

t
The Naxal movement in Western Ghats Karnataka
surfaced for the first time in 2003 when there was
exchange of fire between Naxals and police near
Kudre mukh. Later on in Udupi district left wing
activist Parvathi and Hajime were killed by police
in an encounter. As a revenge, Naxals burnt Forest
Department’s Travellers, Bungalow in Nemmaru
Shringeri Taluk. In 2004, the head constable Mud-
dappa was kidnapped by Naxals. In 2005, Naxal
leader Saket rajan alias “Prem” was killed in an
encounter. In contrast, Naxal supporters increased
their violence and killed 7 policemen in Tumkur
District by hundreds of Naxals. In 2005, there
were eight Naxal incidents. In 2007, Congress
leader Venkatesh was killed by Naxals. In No-
vember, 2008, 3 Naxals were killed in Chikman-
glur district and Constable Guruprashad also died
in encounter. In December, 2013 Union Home
Ministry had sent an advisory to the Karnataka
Government that CPI (Mao) are trying to open
a new theatre in South India. Thus, the Naxalite
movement is grouping and regrouping in Karna-
taka and sporadic violence by Naxals surface here
and there. It has affected districts of Mysore, Ko-
dagu, Udupi, Chikmangalur and Shimonga. It is
high time that Karnataka Government gears up to
face the challenge posed by the Naxal movement.
Some non-governmental organizations function-
ing in Naxal affected areas say that the question
of livelihood is one of reasons behind youths in
the tribal areas embracing Naxalism. The tribals
are being prevented from collecting minor forest

JULY 2022 THE LEGAL OBSERVER 27

 l Cover StorY l

waste (MFW) and some farmers are also granted to any person should not exceed
being evicted from their small agricultural the prescribed limit, including land already
or horticultural lands in the Kudremukh
National Park (KNP) area in violation Thus, held by him.

of TORF Act, 2006 promulgated by the

Central Govt. Implementation of land re-
generaL The salutary principle in land distribution
is that the land should be given to the
forms is one surest way to tackle Naxalism CuLTIvATORS wILL COMe one who cultivates the land personally
permanently. uNDeR CONSIDeRATION so that production increases. Land is not
AFTeR BPL CATegORY. donation or gift. It is for landless people
Deficiencies in Distribution of Land in who are capable enough physically to
Karnataka. The eligibility for the grant of
STS AnD ScS Are cultivate land and have been habitually,
land for agricultural purpose is: The per- conSiDereD firST traditionally or practically doing the job of
son must have attained the age of 18;His for ALLoTmenT cultivation. Allotment of land to ex-ser-
gross annual income should not exceed of LAnD. TheSe BPL vicemen and political sufferers is now out
Rs. 4,800 as per Amendment Act, 2003. CATegORY LIST OF of context. The priority list for distribution
He should either be a bona-fide agricul- PeRSONS IS ReADY of land should be ideally laid down as
turist cultivating land personality or have MADe AvAILABLe AT follows like in West Bengal.
a bona-fide intention of utilizing land for
personal cultivation and;
eACh PANChAYAT LeveL First priority
AND CAN Be uSeD To Landless Scheduled Tribe
However, in case of the ex-servicemen and DrAW up prioriTY Second priority
soldier, land may be granted if the gross LiST for ALLoTmenT. Landless Scheduled Caste
annual income of the applicant does not
exceed Rs. 12,000/-. The extent of land The ceiling for allotment of land should be

28 THE LEGAL OBSERVER JULY 2022

 l NAxALISM l

however, following reservation of land

for distribution leaves no discretion with
the local authority or panchayat body to
deviate in deserving cases.

perSon BAcKWArD
ex-Servicemen BeLonging To
TriBeS

05%
AnD SoLDierS The ScS & STS

10% 50%
poLiTicAL
oTherS

25%
SuffererS

one acre. Persons who already hold less than one acre
of land may, however, be given land to an extent which
is equal to the difference between one acre and the land
already held by them.
In case of a sharecropper or tenant, half of the land cul-
tivated by him as a sharecropper is taken into account in
computing his total land up-to one acre.
The Sthayee Samiti or sub committee on land of the
Panchayat Samiti at the block or taluka level may ad-
vise local revenue official in the matter of allotment.
10%
scheduled caste cultivators or agricultural labourers or
the landless persons as because disturbance in posses-
sion may lead to a war between the two poor persons
which is not the aim of the land reform measures.
As the allotment of land and delivery of possession cut
links of the allottee with the landowner who is also his
money lender, the financial institution like banks, coop-
erative societies or service-cooperatives should immedi-
ately step in otherwise he will again mortgage the land
to the erstwhile landowner.

No settlement of land is to be made with a person who A survey by IAS probationers of the LBS National
is employed in a business trade, undertaking service or Academy of Administration brings out the following
industrial occupation etc. fallacies in land distribution in Karnataka.

Thus, general cultivators will come under consideration
after BPL category. STs and SCs are considered first for
allotment of land. These BPL category list of persons is
ready made available at each panchayat level and can
be used to draw up priority list for allotment. First pref-
erence is to be given to the person in possession of land
but only up-to one acre of land. In that case, he will get
priority even over and above scheduled tribe and
The norms of allotment in about half of the quantum of
land allotted have been violated.
The package of economic assistance along with land
allotment was lacking.
The encroachment of land mainly in Bangalore district
has been done by the powerful and ineligible persons.

JULY 2022 THE LEGAL OBSERVER 29


Thus, this is high time that injustice done
to the underprivileged persons should
be undone and they should be given
government surplus land. They should,
in a big way, be assisted for crop finance
loan on concessional rate of interest
and government subsidy or schemes to
reclaim and develop their barren or waste
land through various water harvesting
schemes including MNREGA.
It is surprising to note that as in Decem-
ber, 2007 about 1,15,765 acres of land
was not distributed out of a total area
of 2,41,710 acres of land which is the
poorest performance among all States
(as per GOI report). Even before taking
over possession, lot of land got involved
in litigation. This shows utter callous-
ness. The vesting of land and taking over
possession are simultaneous processes.
At least paper possession is taken by
the government which is also provided
generally in most of the land reforms
legislations. One fails to understand
30 THE LEGAL OBSERVER
l Cover StorY l
what State Government of Karnataka
has been doing with 45,343 acres of
land pending in 1,505 cases at the High
Court of Karnataka which is the highest
in the country. Even in revenue courts
15,682 acres of land is locked. Karna-
Deficiencies taka is the first State to set up the Land
Tribunal which should be an alterna-
IN DISTRIBuTION OF tive to the High Court but cases were
LAND IN KARNATAKA. not transferred to the Karnataka Land
The eLIgIBILITY FOR Tribunal. At present, unfortunately,
Land Tribunals are scrapped. It is not
The granT of LanD understood why 38,008 acres of land is
for agricuLTuraL not being distributed which is held up
PurPose is: The PeRSON for miscellaneous reasons. Failure of
MuST hAve ATTAINeD the State Government in this most im-
The Age OF 18;hIS gROSS portant field of land reform gives ample
reason why the Naxalism is raising its
ANNuAL INCOMe ShouLD head in otherwise peace loving, pro-ad-
noT exceeD rS. 4,800 ministration, prosperous and I.T. leader
AS per AmenDmenT State of Karnataka.
AcT, 2003. Karnataka has done well in promoting
distribution of homestead plots as per
study conducted by the Rural Develop-
JULY 2022
 l Cover
contract
Story l

Farming
i
n Karnataka, the contract farming has give some good
dividends specially in the field of exports of coffee, spices,
fresh fruits, flower, cashew, vegetables, gherkins and raisins.
Some of the even marginalized farmers have made tons of
money by adopting above types of crops and selling them
through the corporate or agri-export zones. Gherkins alone has got
rs. 140 to 150 crore export markets every year. rose, onions were
exported from the state during 2005-06 for rs. 50 crore. The total area
covered and the farmers involved in contract farming in Karnataka
is still less then one per cent. in the meantime, the corporates
have started seeking to lease out their lands which should not be
permitted creating new brand of zamindars and landlords. The
experiment is to be kept under watch for some more years. if the
benefits reach directly to the farmers in a substantial quantum, than
the contract farming can be further promoted by relaxation of ceiling
laws and tenancy laws on those farmers. it is still demanded from
the corporate lobby that they may involve farmers whose lands they
have acquired not as daily labourers but as shareholders or individual
owners in the form of cooperative farming or the registered society
etc. if Naxalism spreads due to contract farming, then the contract
farming will have to be discontinued. n

ment Institute. New York, USA. These homestead
plots upto 15/16 decimal have been successfully
used for vegetable and fruit cultivation and partly
evergreen cultivation. These plots at least save
the beneficiaries from starvation and put stability
in their minds. This scheme is known as Ashraya
scheme and even panchayats are purchasing land
from free markets and are distributing among the
landless persons from at least 2178 sq. feet to 6544
sq. feet. This scheme deserves serious consideration
and these are to be dovetailed with the Indira Avas
Yojna of the Ministry of Rural Development, Gov-
ernment of India.
Karnataka has also done well by distributing 13.72
lakh acres of government waste land which requires
to be developed further through various government
schemes like MNREGA or liberal financial grants
or loans.
tenancy reforms
Karnataka is in line with at least seven other States
in India which have banned land tenancy. After
conferment of ownership on about six lakh tenants,
the State is resting on its laurels that it has done
whatever was required for the tenant or the share-
croppers. But, in fact, informal tenancy exists all
over the State. The tenancy that persists in the field
is concealed/oral and the names of tenants are not
entered in the revenue records. In 1981-82, 6.04 per
cent of the operated area was leased-in in the State
despite legal abolition of tenancy. The average area
leased-in by the tenant was 4.76 acre.
The study by IAS probationers shows that of all ten-
ants, 62.5 per cent have leased-in on sharecropping
terms, 22.9 per cent on fixed cash rent terms, and
14.6 per cent on fixed rent terms in kind. Similarly,
of the total area leased-in 59.6 per cent is under
sharecropping 21.6 per cent under fixed rent terms
in kind, and 18.8 per cent under fixed cash rent
terms.
In a survey of agriculturists in Karnataka in 2000,
the Rural Development Institute, Bangalore found:
45 per cent of the respondents answering definitive-
ly state that tenancy prohibitions should be lifted.

JULY 2022 THE LEGAL OBSERVER 31


94 percent of respondents answering
definitively state that existing tenancy
restrictions harm the landless.
38 per cent respondents answering defin-
itively report that at least one farmer in
their village keep land fallow rather than
renting it out because renting may lead to
the loss of such land.
Benefits of Relaxation
There is a need for changing the existing
tenancy prohibition policy in Karnataka
into one regulating it instead of banning
it. Such regulating law will have, as
revealed in other states, more beneficial
effects, the significant ones being:
Removal of tenancy ban makes lands
available for the landless poor to culti-
vate, at least as tenants; Relaxation of
prohibition allows lease of land for more
productive use, diversification of agricul-
32 THE LEGAL OBSERVER
l NAxALISM l
ture and contract farming; Tenancy regulation
provides tenure security to cultivators and
regulates rentals and brings in transparency;
Karnataka Tenure security enables tenants to borrow
is in line credit, obtain input subsidies and other ex-
tension services easily;
with at least seven
Tenancy relaxation eliminates land left fal-
other States in India low for fear of losing it;
which have banned
land tenancy. After Having achieved removal of exploitative
intermediaries, zamindar, jagirdars and
conferment of inamdars, tenancy prohibition is no longer
ownership on about necessary. On the other hand, there is need
six lakh tenants, the to regulate commercial type of leases by
State is resting on its companies to prevent “new
baniyas” converting farmers into “new
laurels that it has done serfs.”
whatever was required
for the tenant or the The informal tenants or sharecroppers on the
basis of ‘barga operation’ of West Bengal
sharecroppers. can be recorded.
JULY 2022
 l NAxALISM l

the
outcomes

t
he balance ceiling surplus and government waste land should
be distributed without further delay giving top priority to the
scheduled tribes specially in the Naxalists affected areas/talukas
of the State. The priority list for the land reform beneficiaries
needs suitable amendment. Land is for those who cultivate
land personally. The existing tenancy prohibition policy should be changed
into agency regulation policy. informal tenants or sharecroppers should be
recorded in Karnataka on the pattern of ‘barga operation’ in west bengal and
Land Tribunal should be again made the final appellate tribunal. The scheme
for distribution of homestead cum kitchen garden plots requires further
encouragement and patronage by government and panchayats.
extensive schemes should be implemented for reclaiming and developing
waste land, government land also by dovetailing various rural development
schemes.efforts have been made to link up transfer of lands through
registration with updation of land records through normal processes of
mutation and conversion. Karnataka should attempt to give map of plots
along with the records-of-rights or copy of Khatian with respect to village
boundary and adjoining plot configuration as is being experimented in west
bengal. This will combine best points of both rayatwari system in south and
permanent settlement system in rest of the country. it is hoped
that the good network of revenue and
settlement administration will soon
tide over temporary show of discontent
updation of land in the form of Naxalism. The resurgent
records revenue administration led by requisite
‘political will’ will be able to contain
Karnataka is the leader in the field Naxalism in the State. n
and has been awarded by Govern-
ment of India in this regard. Kar-
nataka has good revenue set-up and
the machinery is quite motivated.
It is estimated that all records-of-
rights along-with maps of plots of
individual raiyats or owners have
been computerized in Karnataka
and people can have most updated
records-of-rights. Thus, it is clear
that Karnataka can venture success-
fully to bring about all types of land
reforms to tackle the problem of
Naxalism in the State.n
(The writer retired as Addl. Chief Secretary,
Govt. of West Bengal, is an expert in the field of
land reforms. He has five books on land reforms
to his credit. At present, Dr. Agrawal
is Managing Partner in VAS Global,
New Delhi, Law Firm.)

JULY 2022 THE LEGAL OBSERVER 33

 l Cover StorY l

34 THE LEGAL OBSERVER JULY 2022

 l Cover Story l

JULY 2022 THE LEGAL OBSERVER 35

 l CONFLICT l

juDiciary
versus
legislature
none of the three organs of the State can claim to be
supreme as only the Constitution is supreme and the
legislature, the executive and the judiciary are bound
to work within the respective domains as defined in the
Constitution. Viplava awasthi examines the conflict
between judiciary and legislature

t
he Indian Constitution as we all know is a perfect blend of
the notions of British Parliamentary sovereignty, the Irish
state policies authority and American judicial supremacy.
In order to strike a balance between these notions incor-
porated in our Constitution, there are checks and balances,
expressly and impliedly prescribed by it for maintaining
Constitutional supremacy alone, for the welfare of the
people.
Our Constitution under Article-50, expressly recognises
the separation of the judiciary from the executive and also
impliedly recognises the ‘Doctrine of separation of pow-
ers’, propounded by a French scholar Montesquieu, as a
part of the basic structure of the Constitution.
Montesquieu’s theory of Separation of Powers, states that:
There would be an end of everything, were the same man
or same body, whether of the nobles or of the people, to
exercise those three powers, that of enacting laws, that of

36 THE LEGAL OBSERVER JULY 2022

 our consTiTuTion
under Article-50, expressly recognises the
The consTiTuTion separation of the judiciary from the executive These aMenDMenTs
The Constitution of India, and also impliedly recognises the ‘Doctrine of made to our Constitution by
as on date, has undergone separation of powers’, propounded by a french the legislature has brought
amendments 104 times scholar montesquieu, as a part of the basic about a plethora of changes
over a period of 70 structure of the constitution. in the way the Articles of
years from the date its the constitution are to
commencement and now be interpreted and the
has 448 Articles, grouped way in which the nation at
into 25 parts with 12 large is to be administered
schedules. and benefited.

The 24th
amendment
1971
Affirmed the power
of the Parliament to
amend any part of
the constitution
including
fundamental rights
and also made it
compulsory for the
president to give
his assent to a
constitutional Bill.

JULY 2022 THE LEGAL OBSERVER 37

 l CONFLICT l

SUPrEME COUrT BEnCH-a PrOFILE

executing laws, that of executing

public resolutions, and of trying the
causes of individuals.
Though Montesquieu’s theory has
been well perceived across the
globe and impliedly accepted as a
part of the basic structure of the In-
dian Constitution also, but yet, we
see a constant threat to the same in
the Indian parlance, thereby causing
unrest amongst the three wings of
our Constitution.
The Constitution of India, as on
date, has undergone amendments
104 times over a period of 70 years
from the date its commencement
and now has 448 Articles, grouped
into 25 parts with 12 schedules.
These amendments made to our
Constitution by the legislature has
brought about a plethora of changes
in the way the Articles of the Con-
stitution are to be interpreted and
the way in which the nation at large
is to be administered and benefit-
ed. No doubt our Constitution is a FrOM LEFT TO rIgHT:-
‘Living Constitution’, as it is ever 1ST roW (SiTTing) : hON. R.v. RAveeNDRAN, j., hON.TARuN
ChATTeRjee, j., hON. S.B. SINhA, j., hON. B.N. AgRAwAL, j., at our Constitutional amendments
evolving, thereby capable of keep- hON. K.g. BALAKRIShNAN CjI., hON. ARIjIT PASAYAT, j., hON. would reveal the trend adopted by the
ing pace with the changing needs S.h. KAPADIA, j., hON. ALTAMAS KABIR, j., hON. DALveeR Parliament to abrogate the powers of
BhANDARI, j.
of our society but one should not the Judiciary, thereby defeating the
2nD roW : hON. P. SAThASIvAM, j., hON. v.S. SIRPuRKAR, j.,
lose sight of the legislature’s intent hON. MARKANDeY KATju, j., hON. LOKeShwAR SINgh PANTA, very spirit and essence of our Con-
behind bringing about a change in j., hON. D.K. jAIN, j., hON. h.S. BeDI, j., hON. B. SuDeRShAN stitution.
the perception of the core values ReDDY, j., hON. g.S. SINghvI, j.
of our Constitution and the impact 3rD roW : hON. MuKuNDAKAM ShARMA, j., hON. AFTAB The 1st Amendment, 1951: Provided
ALAM, j., hON. j.M. PANChAL, j., hON. CYRI j, AC jOSePh, j.
it would have on our society in the for a Ninth Schedule in our Constitu-
long run. tion to protect laws included under it
from judicial review. Primarily it was
In order to emphasise the need for incorporated in our Constitution to
separation of powers and the in- for a separate and an independent protect land reforms but is now being
dependence of the Judiciary to be judiciary. used to protect a variety of Acts.
maintained in accordance with our
Constitutional scheme, we would constitutional The 4th Amendment, 1955: Made
have to analyse Constitutional amendments the scale of compensation given in
amendments brought about by the Several amendments have bypassed lieu of compulsory acquisition of pri-
Parliament and the trend adopted the Judiciary. Let us take a keen look vate property beyond the scrutiny of
by the legislature to mar the lines the courts.

38 THE LEGAL OBSERVER JULY 2022


The 20th Amendment, 1966: Val-
idated certain appointments of dis-
trict judges in UP state which were
declared void by the Supreme Court
The 24th Amendment, 1971: Af-
firmed the power of the Parliament
to amend any part of the Constitution
including fundamental rights and also
made it compulsory for the President
to give his assent to a Constitutional
Bill. This amendment was effected to
abrogate the decision of the Supreme
Court in I.C.Golak Nath and others
vs State of Punjab.
The 25th Amendment, 1971: Cur-
tailed the Fundamental right to prop-
erty and compensation to be given in
case the state took over private prop-
JULY 2022
l CONFLICT l
erty. The amendment also provided
that any law made to give effect to
the Directive Principles contained in
Article 39 (b) or (c) cannot be chal-
lenged on the ground of violation of
the rights guaranteed by Articles 14,
19 and 31.
The 30th Amendment, 1972: Did
away with the provision which al-
lowed for an appeal to the Supreme
Court in civil cases involving an
amount of Rs.20,000/- and thereaf-
ter provided for filing of an appeal
only if the case involved a substantial
question of law. By this amendment
right of an individual to approach the
court of appeal, was taken away.
The 38th Amendment, 1975: This
amendment widened the powers of
the President, empowering him to
make proclamations or ordinances
or laws during national emergency
and also barring judicial review of
such proclamations made during
emergency.
The 39th Amendment, 1975:
Disputes relating to the election
of the President, Vice-President,
Prime Minister and Speaker were
put beyond the scope of judicial
review. This amendment was made
to negate the judgment of the High
Court of Allahabad, invalidating
the then Prime Minister’s election
to the Parliament. The amendment
came into force on 10th August,
1975 just a day before the Supreme
Court’s hearing of the matter, which
made the proceeding before the
Apex Court infructuous.
The 42nd Amendment, 1976: It
is by far the most horrendous of
amendments made to the Consti-
tution. By this amendment the Di-
rective Principles of the State Pol-
icy were to be given predominance
over Fundamental Rights and the
judiciaries powers were restricted
by prohibiting judicial remedy un-
aMenDMenT,
2014
ThIS AMeNDMeNT PROvIDeD
FOR The eSTABLiShmenT
of The nATionAL JuDiciAL
commiSSion, FOR The
APPOINTMeNT OF JuDgeS To
The higher JuDiciArY.
THE LEGAL OBSERVER 39

Hon’ble the Chief
Justice of India,
Hon’ble Justice
B.N. Agrawal and
Hon’ble Justice
Ashok Bhan with
the Chief Justices
of various States.
der Article 32, available when Fundamen-
tal Rights were denied under Central Laws.
Article 368 was also amended so as to ex-
clude the questioning of any further Con-
stitutional amendments to be made. In light
of this amendment to the Constitution, the
13 Judges bench judgment of the Supreme
Court in Kesavanada Bharati and others vs.
State of Kerala, had no relevance.
The 75th Amendment, 1994: Provided for
the establishment of Rent Tribunals by the
states in order to exclude the jurisdiction of
all courts except the Supreme Court under
Article 136 of the Constitution.
The 81st Amendment, 2000: This amend-
ment was brought about by the Parliament
to overrule the judgment of the Supreme
Court in Indira Sawhney and others vs. UOI
and others, which prescribed for protection
of a class of individuals in the form of reser-
vations to not exceed 50% of the total num-
ber of seats.
By this amendment the Parliament placed
Tamil Nadu Reservation Act,1994 in the
Ninth Schedule though it provided for 69%
reservation of seats in educational institu-
tions and state services, thereby protecting
the Act from judicial review.
The 93rd Amendment, 2005: Brought
about to nullify the Supreme Court’s judg-
ment in P.A. Inamdar & Ors vs. State Of
Maharashtra & Ors, where the Apex Court
held the reservation in unaided private pro-
40 THE LEGAL OBSERVER
l CONFLICT l
fessional educational institutions to be un-
constitutional and that the state cannot insist
on such institutions to implement the state’s
policy as it would constitute a serious en-
croachment on the right and autonomy of
such institutions.
The 99th Amendment, 2014: This amend-
ment provided for the establishment of the
National Judicial Appointment Commis-
sion, for the appointment of judges to the
higher judiciary. The new Act had a pro-
vision for two eminent members to be a
part of the judges selection committee in
addition to the Chief Justice of India, 2 se-
One such nior most judges of the Apex Court and the
Union Law Minister. The two eminent per-
mAJor eNACtmeNt sons on the selection committee, who could
IS tHe ArBItrAtIoN be laymen as far as the judiciary was con-
ANd CoNCIlIAtIoN cerned, were to be nominated by the Chief
(AmeNded) ACt, Justice of India, Prime Minister and opposi-
tion leader of LoK Sabha.
2015, which is
sought to be In addition to the above, the Parliament has
an alternative time and again used the Ninth Schedule of our
speedy dispute Constitution to protect a number of Acts from
judicial review, which now protects 284 Acts.
redressal
meCHANISm Current Scenario
tHAt purportS For over decades, we have had the Parlia-
to Be dIffereNt ment amending the Constitution and consti-
from the tuting Tribunals abrogating the powers of
conventional the High Courts, under the pretext of speedy
court system. justice for its people. The Parliament by do-
ing so, has taken conscious steps to keep the
High Courts from reviewing the Tribunals
JULY 2022
 l Cover Story l

RampanT
TRibunaliSaTion

T
ribunalisation in India became rampant second Appellate Tribunal abrogating the High Court’s
with the 42nd Constitutional Amendment, jurisdiction has not been appreciated by the judiciary and
1976, where Part XIV-A was added to the the Supreme Court reiterated that an appeal is a creature
Constitution and this facilitated for the of the statute and it can be done away with by the statute
establishment of Tribunals for dealing with but the jurisdiction to decide substantial question of law
administrative matters and other matters as per Article vests under our constitution, with the High Courts and the
323-A and 323-B, respectively. With this inclusion came the Supreme Court, and cannot be vested in any other body, as
derecognition or exclusion of the High Courts from looking the core constitutional value would be impaired.
into matters dealt with by the Tribunals. In the above decision the Supreme Court struck down
The Parliaments main reasoning for setting up a Tribunal the National Tax Tribunals Act as unconstitutional and has
was to remove the burden of the courts in decid- held that: In view of the constitutional scheme and
ing multiple cases of diverse subjects, within the jurisdiction conferred on this Court under
a short period. For this goal to be achieved we Article-32 and on the High Courts under
Article-226 of the Constitution, the power
there was a requirement for setting up
specialised Tribunals to deal with the now have of judicial review being an integral part of
developments in specific areas of law. the basic structure of the Constitution,
We now have a number of no Act of Parliament can exclude or
The Parliament in my opinion took this tribunals established as under
opportunity to divest powers, vested curtail the powers of the constitutional
solely with the judiciary and went
the Constitution and also under courts with regard to the enforcement
ahead with setting up Tribunals instead
statutes, which keep the High of fundamental rights. As a matter of
of Special Courts. The Tribunals could
Court’s away from looking into fact, such a power is essential to give
regulate their own procedure for speedy
matters dealt by it. practicable content to the objectives of the
disposal of cases and they were to be equiv- Constitution embodied in Part III and other
alently recognised as that of a High Court but parts of the Constitution.
on the flip side the Tribunals were to have mem- Moreover, in a federal constitution, the distribution
bers from the executive wing, appointed by the legislature, of legislative powers between Parliament and the State
for providing technical assistance in deciding matters. Legislature involves limitation on legislative powers and,
therefore, this requires an authority other than Parliament
We now have a number of Tribunals established as under
to ascertain whether such limitations are transgressed.
the Constitution and also under statutes, which keep the Judicial review acts as the final arbiter not only to give
High Court’s away from looking into matters dealt by it. In effect to the distribution of legislative powers between
the Supreme Court’s judgment in Madras Bar Association Parliament and the State Legislatures, it is also necessary to
vs. UOI and another, we see that the establishment of a show any transgression by each entity. n

JULY 2022 THE LEGAL OBSERVER 41


Parliamentary
Sovereignty
under
Constitution of
India
decisions or invalidating its dictum at the
grass root itself.
In the present scenario we see a slight
change in the way the Parliament has opted
to keep the Judiciary away from reviewing
or invalidating its Rule. The Parliament
has chosen to first shut out the active role
played by the High Courts in adjudicating
matters as provided for under Article 226
of the Constitution and secondly it has
sought to give primacy to the contract be-
tween the litigants with certain twists and
this can be evidenced from the different
Acts and amendments to Acts, enacted by
the Parliament since 2015.
One such major enactment is The Arbi-
tration and Conciliation (Amended) Act,
2015, which is sought to be an alternative
speedy dispute redressal mechanism that
purports to be different from the conven-
tional court system. It offers the litigants
full autonomy to appoint any person/per-
sons as arbitrators, as the Act does not
specify qualifications for an arbitrator who
is to adjudge the matter and pass an award.
42 THE LEGAL OBSERVER
l CONFLICT l
This Act spells out that the Courts are not
to intervene even in domestic arbitrations,
except in certain circumstances like grant-
ing interim measures and when the tribunal
requires the assistance of the court in taking
evidence.
The grounds for setting aside an arbitral
award, provided for under Section-34 of the
in Act are noting but ‘peep holes’ narrowing
down the scope of the Courts to set aside
The PresenT an arbitral award based on 8 grounds only.
However, very specifically a look at Sec-
SCeNARIO we See tion-34 (2)(b)(ii), we see that, for the first
time conflict with ‘Public Policy’ of India
A SLIghT ChANge as a ground for setting aside an arbitral
IN The wAY The award is statutorily recognised, thereby giv-
pArLiAmenT hAS ing greater emphasis and predominance to
opTeD To Keep ‘Public Policy of India’ which is the man-
The JuDiciArY date of the Parliament.
AwAY FROM Section-37 of the Act, relates to appeals and
RevIewINg OR prescribes for the Courts to take a rigid view
invALiDATing while dealing with appeals. The Act no-
where provides for the power of the Court
iTS ruLe to interfere with an award.
JULY 2022
 l CONFLICT l
Once again in the advent of setting up
of a Tribunal under the Finance Act,
2017, we see the 2014 judgment of
the Apex Court, being eclipsed by the
Parliamentary enactment. Although
the 2014 judgment of the Apex Court,
prescribed for predominant number of
members from the judiciary to sit on a
bench and also for a judicial member
with a certain qualification to be ap-
pointment as Chairpersons of the Tri-
bunal, the Rules of the said Finance
Act made it permissible for the Cen-
tral Government to appoint an enqui-
ry committee, trying to silently mar
the lines drawn by the judiciary in its
2014 judgment.
The Rules of the Finance Act remained
silent about the members to be ap-
pointed to the enquiry committee for
removal of the presiding officers or
members of the Tribunal. In addition
to the above, the Act also prescribed
for statutory appeal from the Tribunal
directly to the Supreme Court. This
Act brought out the legislature’s in-
tent to divest judicial power from the
judiciary in addition to curtailing the
powers vested with the High Courts,
which has been very neatly dealt with
by the Judiciary in Rojer Mathew vs.
South Indian Bank Ltd. and Ors.
The Model Tenancy Act, 2019, re-
leased by the Ministry of Housing
and Urban Affairs in furtherance of
the Union budget-2019, has under
clause-29 of the Model Act, pre-
scribed for the Rent Authority to be
an executive not below the rank of
the Deputy Collector and vested the
powers of the Court in dealing with
certain issues between landlord and
tenant.
From the above-mentioned clause,
it can be inferred that the Parliament
under the guise of speedy dispute re-
dressal between landlord and tenant
JULY 2022
policy vs
constitutional
scheme
t
he term ‘Public Policy, was explained for the first time in
renusagar Power co.Ltd vs. General electric company
and anr, as-some matter which concerns the public good
and the public interest. The term Public Policy of india has
gone from mere conceptualisation in renugasar’s case, to
the concept being fine-tuned in oil and Natural Gas ltd., vs. western
Geco international Ltd. and Associate builders case, thereafter being
statutorily recognised as a ground in The Arbitration and conciliation
(Amended) Act, 2015, even for domestic arbitrations.
Public Policy as we all know is a ‘Doctrine of Political question’ and
recognising it as a statutory ground would hamper the judiciary from
delving into the issues involved. when the judiciary is precluded in
such a way from dealing with an issue, this in turn would hinder a
litigant from succeeding, thereby affecting his rights and also weak-
ening the fundamentals of our constitution.
what needs to be analysed here, is whether the statutory recognition
of a Political doctrine in domestic cases also, is a means of curtailing
the responsibilities of the judiciary by the legislature.
would courts be prevented from enquiring into questions of Public
Policy ? if answered in the affirmative, how then can the courts fulfil
the mandate of the constitution?
Taking a look at Hirandra Kumar vs. High court of Judicature at Alla-
habad and others, the Apex court has held that:
essentially, the determination of cut-off dates lies in the realm of
policy. A court in the exercise of the power of judicial review does
not take over that function for itself. Plainly, it is for the rule making
authority to discharge that function while framing the rules.
we see that the Apex court considering it ‘not justiciable’ to delve
into a matter pertaining to a policy decision might be its way of re-
specting the scheme of the constitution and the separation of pow-
ers presumed under our constitution but in doing so it is recognising
and giving legal sanctity to an irrational policy decision, not based on
any scientific evidence or statistical data.
can the abuse of public morality or the legislature clipping the pow-
ers of the judiciary to delve into matters concerning public morality
over public security be questioned or would it be protected under
the guise of a notion of Public Policy?
Thus ‘in conflict with the Public Policy of india’ as a statutory ground
to deal with matters on a domestic front and an international front
cannot be construed and applied in the same sense, as when applied
in the domestic realm it would be averse to the stability of the society
and would pave the way for legislature’s dominion, which is contrary
to the scheme and the very ethos of our constitution. n
THE LEGAL OBSERVER 43

has brought in the executives to part
take in the first round of adjudication
of disputes, in a matter to be under the
purview of a Tribunal. This by itself is
violation of Article-50 of the Constitu-
tion and also the implied understand-
ing of separation of powers between
the three pillars of the Constitution.
To simply put it the Constitution does
not allow for usurping or divesting
of judicial functions by the legisla-
ture, even if it is under the pretext of a
policy decision of the Government to
provide for better regulation of rent-
ing premises, speedy disposal of cases
and relieving the judiciary from piling
up of cases, in public interest, the act
of the Parliament to delegate judicial
powers to the executive would amount
to being in derogation of the constitu-
tional scheme.
constitution stands
supreme
Right from the inception of our Con-
stitution, it has been the Parliament’s
endeavour to draw contours defining
and re-defining the boundaries of the
judges’ Library
44 THE LEGAL OBSERVER
l CONFLICT l
in furTherance
TO ThIS IDeOLOgY
CAMe The rAmpAnT
TriBunALiSATion, Where
The PARLIAMeNT hAD STARTeD
wORK ON eSTABLIShINg
NON-CONveNTIONAL wAYS
OF DISPeNSINg wITh The
poWerS of The JuDiciArY.
judiciary, which is ever shrinking but
on the other hand the Parliament has
sought to wield more power to itself.
The initial form of barricading the
judiciary’s expertise came with the
inclusion of the Ninth Schedule to
our Constitution and then on we have
seen Constitutional amendments to
nullify judicial decisions and abrogate
the powers vested with the judiciary,
thereby weakening the faith of the
people in the judiciary.
In furtherance to this ideology came
the rampant tribunalisation, where
the Parliament had started work on
establishing non-conventional ways
of dispensing with the powers of the
judiciary. By this, the aura with which
Court of the Chief justice of India
the multiple tires of the judiciary were
looked at by the common man slow-
ly began to disintegrate. By this ex-
periment, the legislature was unable
to disrupt the magnificent face of the
Apex Court. Then came the novel idea
for party (litigant) autonomy, that is
depicted as the central idea behind the
present-day enactments. The legisla-
ture by doing so has on one breath giv-
en the litigants full autonomy under
the enactments and on another breath
the legislature has sought to protect
its decisions alone under the guise of
‘Public Policy’, thereby ousting out
the real role of the judiciary.
With the persistent inventions by the
legislature in wielding excessive pow-
er to themselves, we see a pronounced
degree of action taken by the legisla-
ture to make their decisions the abso-
lute rule of the land.
Let us question that isn’t time for judi-
cial intervention to put an end to this
long-drawn battle of being the guard-
ians of our Constitution and having to
very cautiously walk the ever blurring
and narrowing lines set by the legisla-
ture for it. n
JULY 2022
 l Cover Story l

JULY 2022 THE LEGAL OBSERVER 45

 l SPECIAL STORY l

encountering
environment
challenges
46 THE LEGAL OBSERVER JULY 2022
 l ENVIRON l

There is no dearth of
legislations on environmental
protection in India but their
enforcement has been far from
satisfactory. There is need
for the effective and efficient
enforcement of the Constitutional
mandate and other environmental
legislations, writes VK agarwal

t
Today, the conservation, protection and improvement
of human environment are major issues all over the world.
Human environment consists of both physical environment
and biological environment. Physical environment covers land,
water and air. Biological environment includes plants, animals
and other organisms. Both physical and biological environment
are inter dependent. Industrialisation, urbanisation, explosion
of population, over-exploitation of resources, disruption of
natural ecological balances, destruction of a multitude of
animal and plant species for economic reasons are the factors
which have contributed to environmental deterioration. One
country’s degradation of environment degrades the global
environment for all the countries.
The problem of environmental pollution has acquired
international dimension and India is no exception to it. In this
article, an attempt has been made to briefly outline the Indian
laws which are primarily and more relevant to protect and
improve the environment. The enforcement of these laws has
also been examined and evaluated.

JULY 2022 THE LEGAL OBSERVER 47


constitutional and
legislative measures
Stockholm Declaration of 1972 was perhaps the
first major attempt to conserve and protect the
human environment at the international level. As
a consequence of this Declaration, the States were
required to adopt legislative measures to protect
and improve the environment. Accordingly,
Indian Parliament inserted two Articles, that
are 48A and 51A in the Constitution of India in
1976, Article 48A of the Constitution rightly
directs that the State shall endeavour to protect
and improve the environment and safeguard
forests and wildlife of the country.
Similarly, clause (g) of Article 51A imposes
a duty on every citizen of India, to protect and
improve the natural environment including
forests, lakes, river, and wildlife and to have
compassion for living creatures. The cumulative
effect of Articles 48A and 51A (g) seems to be
that the ‘State’ as well as the ‘citizens’ both are
now under constitutional obligation to conserve,
perceive, protect and improve the environment.
Every generation owes a duty to all succeeding
generations to develop and conserve the natural
resources of the nation in the best possible way.
The phrase ‘protect and improve’ appearing
in both the Articles 48A and 51A (g) seems to
contemplate an affirmative government action
to improve the quality of environment and not
just to preserve the environment in its degraded
form. Apart from the constitutional mandate
48 THE LEGAL OBSERVER
l ENVIRON l
to protect and improve the environment, there
are a plenty of legislations on the subject but
more relevant enactments for our purpose are
the Water (Prevention and Control of Pollution)
Act, 1974; the Water (Prevention and Control of
Pollution) Cess Act, 1977; the Air (Prevention
and Control of Pollution) Act, 1981; the
Environment (Protection) Act, 1986; Public
Liability Insurance Act, 1991; the National
in Environment Tribunal Act, 1995 and the
National Environment Appellate Authority Act,
DeLhi, 1997; the Wildlife (Protection) Act, 1972; the
The Forest (Conservation) Act, 1980. The Water Act
provides for the prevention and control of water
PubLic pollution and the maintaining or resorting of
the wholesomeness of water. The Act prohibits
transport system any poisonous, noxious or polluting matter
including buses from entering into any stream or well. The Act
provides for the formation of Central Pollution
and taxies are Control Board and the State Pollution Control
operating on Board. The new industries are required to obtain
a single fuel prior approval of such Boards before discharging
cng mode on any trade effluent, sewages into water bodies.
No person, without the previous consent of the
the directions Boards shall bring into use new or altered outlet
given by the for the discharge of sewage or trade effluent
Supreme Court. into a stream or well or sewer or on land. The
Initially, there consent of the Boards shall also be required for
continuing an existing discharge of sewage or
was a lot of trade effluent into a stream or well or sewer or
resistance from
land.
bus and taxi
In the Ganga Water Pollution case, the owners
operators. of some tanneries near Kanpur were discharging
their effluents from their factories in Ganga
JULY 2022
 l ENVIRON l

without setting up primary treatment plants. The pollution are industries, automobiles, domestic fires,
Supreme Court held that the financial capacity of the etc. The air pollution adversely affects heart and lung
tanneries should be considered as irrelevant while and reacts with hemoglobin in the blood.
requiring them to establish primary treatment plants.
The Court directed to stop the running of these According to Roggar Mustress, the American
tanneries and also not to let out trade effluents from Scientist, air pollution causes mental tension which
the tanneries either directly or indirectly into the river leads to increase in crimes in the society. The Air
Ganga without subjecting the trade effluents Act defines an air pollutant as any ‘solid, liquid
to a permanent process by setting up or gaseous substance including noise present
primary treatment plants as approved THE in the atmosphere in such concentration as
by the State Pollution Control Board. aIr aCT may be or tend to be injurious to human
The Water (Prevention and Control prevents and controls both beings or other living creatures or
of Pollution) Cess Act, 1977 aims these pollutions. The environment plants or property or environment.’
to provide levy and collection (Protection) Act, 1986 was enacted
to provide for the protection and The Act provides that no person shall
of a cess on water consumed by without the previous consent of the
persons carrying certain industries improvement of the quality of
environment and preventing, State Board establish or operate any
and local authorities to augment the industrial plant in an air-pollution
controlling and abating
resources of the Central Board and environmental pollution. control area. The Central Pollution
the State Boards constituted for the Control Board and the State Pollution
prevention and control of water pollution. Control Board constituted under the Water
The object is to realise money from those Act shall also perform the power and functions
whose activities lead to pollution and who must bear under the Air Act. The main function of the Boards
the expenses of the maintaining and running of such under the Air Act is to improve the quality of air and to
Boards. The industries may obtain a rebate as to the prevent, control and abate air pollution in the country.
extent of 25%7 if they set up treatment plant of sewage
or trade effluent.
The Air Act has been designed to prevent, control and
abatement of air pollution. The major sources of air

JULY 2022 THE LEGAL OBSERVER 49

 l ENVIRON l

The permission granted by the Board may be conditional ‘umbrella’ legislation designed to provide a frame work
one wherein stipulations are made in respect of raising of for Central Government coordination of the activities of
stack height and to provide various control equipments and various Central and State authorities established under
monitoring equipments. It is expressly provided that persons previous laws, such as the Water Act and the Air Act.
carrying on industry shall not allow emission of air pollutant The Parliament passed the Public Liability Insurance
in excess of standards laid down by the Board. Act, 1991 to provide for public liability insurance for
the purpose of providing immediate relief to the persons
In Delhi, the public transport system including buses and affected by accident occurring while handling any
taxies are operating on a single fuel CNG mode on the hazardous substance and for matters connected therewith.
directions given by the Supreme Court. Initially, there was The Act provides for mandatory public liability insurance
a lot of resistance from bus and taxi operators. But now they for installations handling any hazardous substance to
themselves realise that the use of CNG is not only environment provide minimum relief to the victims (other than
friendly but also economical. workers) through the mechanism of collector’s
decision. Such an insurance will be based
Noise has been taken as air pollutant within THE on the principle of ‘no fault’ liability as
the meaning of Air Act. Sound becomes
noise when it causes annoyance or irritates.
SUPrEME it is limited to only relief on a limited
There are many sources of noise pollution COUrT OF scale.10 Such insurance apart from
like factories, vehicles, reckless use of InDIa safeguarding the interests of the
victims of accidents would also
loudspeakers in marriages, religious in vellore Citizens welfare Forum v. union
ceremonies, religious places, etc. Use of provide cover and enable the industry
of India30, elaborately discussed the to discharge its liability to settle large
crackers on festivals, winning of teams concept of ‘sustainable development’
in the games, and other such occasions claims arising out of major accidents.
which has been accepted as part However, availability of immediate
causes not only noise pollution but also air of the law of the land.
pollution. relief under this law would not prevent
the victims to go to Courts for Claiming
The Air Act prevents and controls both these
pollutions. The Environment (Protection) Act, 1986
was enacted to provide for the protection and improvement
of the quality of environment and preventing, controlling and
abating environmental pollution. The Act came into existence
as a direct consequence of the Bhopal Gas Tragedy. The term
‘environment’ has been defined to include water, air and land,
and the inter-relationship which exists among and between
water, air and land and human beings, other living creatures,
plants, micro-organism and property. The definition is wide
enough to include within its purview all living creatures
including plants and micro-organism and their relationship
with water, air and land. The Act has given vast powers
to the Central Government to take measures with respect
of planning and execution of a nation-wide programme
for prevention, control and abatement of environmental
pollution. It empowers the Government to lay down standards
for the quality of environment, emission or discharge of
environmental pollutants; to regulate industrial locations;
to prescribe procedure for managing hazardous substances,
to establish safeguards for preventing accidents; and to
collect and disseminate information regarding environmental
pollution. Any contravention of the provisions of the Act,
rules, orders or directions made thereunder is punishable with
imprisonment for a term which may extend to five years or
with fine upto one lakh rupees or with both. The Act is an

50 THE LEGAL OBSERVER JULY 2022

 l ENVIRON l
pollution in Delhi

i
n Almitra H.Patel v. union
of india, the Supreme court
reiterated the observations
made in wadehra’s case. Historic
city of Delhi, the capital of india,
is one of the most polluted cities in
the world. The authorities, responsible
for pollution control and environment
protection have not been able to
provide clean and healthy environment
to the residents of Delhi. The ambient
air is so much polluted that it is difficult
to breathe. More and more Delhites
are suffering from respiratory diseases
and throat infections. river Yamuna-
the main source of drinking water
supply- is the free dumping place for
untreated sewerage and industrial
waste. Apart from air and water
pollution, the city is virtually an open
dustbin. Garbage strewn all over Delhi
is a common sight. The court directed
the authorities to take immediate
necessary steps to control pollution
and protect the environment.
Sri ram food and fertilizer case: in that
case24, a major leakage of oileum Gas
affected a large number of persons,
both amongst the workmen and
public. The Supreme court held that
where an enterprise is engaged in a
hazardous or inherently dangerous
activity and harm results to any one on
account of an accident in the operation
of such hazardous and inherently
dangerous activity resulting in the
escape of toxic gas the enterprise
is strictly and absolutely liable to
compensate all those who are affected
by the accident and such a liability is
not subject to any exception. n

Large Compensation. authority shall have jurisdiction to entertain an appeal

The National Environment Tribunal Act, 1995 was
enacted to provide for strict liability for damages arising
out of any accident occurring while handling any
hazardous substance. The Act provides for establishment
of a National Environment Tribunal for effective and
expeditious disposal of cases arising from such accident.
It imposes liability on the owner of an enterprise to pay
compensation in case of death or. injury to any person;
or damage to any property or environment resulted from
an accident. The accident must have occurred while
handling any hazardous substance. A claimant may also
make an application before the Tribunal for such relief as
is provided in the Public Liability Insurance Act, 1991.
The National Environment Appellate Authority Act,
1997 has been enacted to provide for the establishment
of a National Environment Appellate Authority to hear
appeals with respect to restriction of areas in which any
industries, operations or processes shall not be carried
out or shall be carried out subject to certain safeguard
under the Environment (Protection) Act, 1986. After the
establishment of the Authority, no Civil Court or other
on matters on which the Authority is so empowered
under the Act. It is evident that this Act has been made
with objective to provide speedy justice on environ-
mental issues.
The Wild Life (Protection) Act, 1972 was enacted with
a view to provide for the protection of wild animals,
birds and plants. The Act prohibits hunting of animals
and birds as specified in the schedules. The Act also
prohibits picking, uprooting, damaging, destroying etc.
any specified plant from any forest. The Act provides
for State Wildlife Advisory Board to advise the State
Government in formulation of the policy for protection
and conservation of the wildlife and specified plants;
and in selection of areas to be declared as Sanctuaries,
National parks, etc. The Act is administered by a Director
of Wildlife Preservation with Assistant Directors; and a
Chief Wildlife Warden with other Wardens and their staff.
The Forest (Conservation) Act, 1986 was passed with a
view to check deforestation of forests. The Act provides
that no destruction of forests or use of forestland for non-
forest purposes can be permitted without the previous

JULY 2022 THE LEGAL OBSERVER 51

 l ENVIRON l

approval of the Central Government. The

conservation of forests includes not only
preservation and protection of existing forests
but also re-afforestation. Re-afforestation DehraDun
should go on to replace the vanishing forests.
It is a continuous and integrated process. valley case
The Act is intended to save a laudable
purpose and it must be enforced strictly
for the benefit of the general public. It is
evidently clear that there is no dearth of
legislations on environment protection
in India. But the enforcement of these
legislations has been far from satisfactory.
What is needed is the effective and efficient
enforcement of the constitutional mandate
and the other environmental legislations.
administrative stucture
The Water Act and the Air Act are
administered by the Central and State
Governments and the Central Pollution
Control Board and the Stale Pollution
Control Board. The Boards have been vested down as stipulated under the respective Pollution Control Acts, may
with wide powers to issue any direction be due to non-availability of instrument to measure the parameters
including the direction to order closure or of pollution. This will adversely affect the process of enforcement
stoppage of the supply of electricity, water of laws.
or any other service to the polluting unit. judicial contribution
It may be noted that similar powers are
vested to the Central Government under The right of a person to pollution free environment is a part of basic
the Environment (Protection) Act. Further, jurisprudence of the land. Article 21 of the Constitution of India
under the Environment (Protection) Act, guarantees a fundamental right to life and personal liberty. The
the Central Government has framed the Supreme Court has interpreted the right to life and personal liberty
Environment (Protection) Rules, 1986 laying to include the right to wholesome environment. The Court through
down standards for the emission or discharge its various judgments has held that the mandate of right to life
of environmental pollutants with respect includes right to clean environment, drinking-water and pollution-
to some major industries. There are some free atmosphere.
other agencies also framing the standards,
namely-Central Pollution Control Board, Taj Mahal Case : In Taj Mahal case, the Supreme Court issued
State Pollution Control Board, Bureau of directions that coal and coke based industries in Taj Trapezium (TTZ)
Indian Standard and Local Authorities, i.e., which were damaging Taj should either change over to natural gas or to
Municipal Corporation. Apparently, there is be relocated outside TTZ. Again the Supreme Court directed to protect
multiplicity of pollution control standards the plants planted around Taj by the Forest Department as under: The
for the same type of industries. However, Divisional Forest Officer, Agra is directed to take immediate steps for
under the Environment (Protection) Act, seeing that water is supplied to the plants... The Union Government is
1986, the power has been conferred upon directed to release the funds immediately without waiting for receipt of
the Central Government to lay down the the proposal from the U.P. Government on the basis of the copy of the
standards of quality of air, water, soil, etc.
report. Funding may be subsequently settled with the U.P. Government,
It is hoped that this will ensure uniformity
but in any set of circumstances for want of funds the officer is directed
of standards throughout the country. Further,
to see that plants do not wither away.
many of the standards have not yet been laid

52 THE LEGAL OBSERVER JULY 2022

 l ENVIRON l
i
n that case, carrying haphazard
and dangerous limestone quarry-
ing in the Mussorie Hill range of
the Himalaya, mines blasting out
the hills with dynamite, extract-
ing limestone from thousands of acres
had upset the hydrological system of
the valley. The Supreme court ordered
the closing of limestone quarrying in
the hills and observed: This would un-
doubtedly cause hardship to hem, but it
is a price that has to be paid for protect-
ing and safeguarding the right of the
people to live in healthy environment
with minimal disturbance of ecological
balance.
Smoking in Public Places: in 2001, the
Supreme court of india imposed ban
on smoking of tobacco in public plac-
es all over the country. Smoking causes
public park
A place which is reserved for public park cannot
be converted for use into a private nursing-home.
In Banglore Medical Trust v. B.S. Muddappa, the
Supreme Court set aside the decision of the Banglore
Development Authority granting permission for
converting the place reserved for public-park for the
establishment of a nursing home and observed thus: The
public interest on reservation and preservation of open
spaces for parks and playgrounds cannot be sacrificed
by leasing or selling such sites to private persons
for conversion to some other use. In another case, a
park was in existence for many years. Because of the
construction of underground shopping complex and
parking, irreversible changes were made. The Supreme
Court ordered for the demolition of the building on the
site of the park and held that no authority has power
to grant permission to change the land use of a site
reserved for Public Park. Sustainable Development
‘Sustainable development’ means development that
meets the needs of the present without compromising
the ability of the future generations to meet their
own needs. The Supreme Court of India in Vellore
Citizens Welfare Forum v. Union of India, elaborately
discussed the concept of ‘sustainable development’
which has been accepted as part of the law of the
land. The ‘precautionary principle’ and the ‘polluter
pays principle are essential features of ‘sustainable
JULY 2022
The
harm not only to the smokers but also
to non-smokers who are forced to in-
hale the second hand smoke. More than ProbLeM
3 million people die every year in india
as a result of smoking tobacco including
of environmental
bidis and cigarettes. one lakh indians pollution has acquired
get lung cancer every year because of international
smoking. indeed, lung cancer kills 95%
of its victims.
dimension
That is why the apex court ruling has
and india is no
immense social value. but no one cares exception to it. In
for the ban. As you know the cigarettes this article, an attempt
and bidis are openly sold in tobac-
co-free railway stations, bus stands, cin- has been made to
ema houses, etc. The statutory warning briefly outline the
‘smoking is injurious to health’ is print-
ed in such small prints and colour that
Indian laws which are
hardly it is readable. even, if it is read- primarily and more
able, it has not served any purpose. So relevant to protect
it is the social awakening which can only
help us to prevent smoking. n
and improve the
environment.
development’. The ‘precautionary principle’ makes
it mandatory for the State Government to anticipate
prevent and attack the causes of environment
degradation. The Supreme Court in M.C. Melna v.
Union of India observed thus: We have no hesitation
holding that in order to protect the two lakes (Badhkal
and Suraj Kund) from environmental degradation, it is
necessary to limit the construction activity in the close
vicinity of the lakes.
The ‘polluter pays principle’ demands that the financial
costs of preventing or remedying damage caused by
pollution should lie with the undertakings which
cause pollution. The ‘polluter pays principle’ has been
held to be a sound principle and as interpreted by the
Supreme Court of India, it means that the absolute
liability for harm to the environment extends not only
to compensate the victims of pollution but also the cost
of restoring the environment degradation. Remediation
of the damaged environment is part of the process of
‘sustainable development’ and as such polluter is liable
to pay the cost to the individual sufferers as well as the
cost of reversing the damaged ecology.
The aforesaid study of cases clearly reveals that the
Supreme Court of India has played a vital role for
protection and improvement of environment. The
jurisdiction of the Court has been expanded by way of
Public Interest Litigation. The creative role of judiciary
has been significant and laudable.
THE LEGAL OBSERVER 53
 l ENVIRON l
environment court
We have noticed that in the past few years there is
an increasing trend to the number of cases based on
environmental pollution, ecological destruction and
conflicts over natural resources coming up before the
Courts. In most of these cases there is need for natural
scientific expertise as an essential input to inform
judicial decision-making. These cases require expertise
at a high level of scientific and technical sophistication.
The experience shows that the prosecution launched in
ordinary Criminal Courts under the provisions of the
Water Act, Air Act and the Environment (Protection)
Act never reach their conclusion either because of the
work load in these Courts or because there is no proper
appreciation of the significance of the environment
matters on the part of those in charge of conducting
of those cases. Moreover, any orders passed by the
Authorities under Water Act, Air Act and Environment
(Protection) Act are immediately questioned by the
industries in Courts. Those proceedings take years and
years to reach conclusion. Very often interim orders
are granted meanwhile which effectively disable the
authorities from ensuring the implementation of their
orders. It is, therefore, absolutely essential to set up a
separate machinery to cut down the delays which are
hindering the implementation of environmental laws.
Further, the judicial officers alone may not be able
to appreciate scientific and technical aspects. It is,
therefore, submitted that the provisions be made for the
establishment of the Environment Courts with one judge
and two experts from the ecological and other sciences.
To begin with, we may have a two-tier system one at the
State level and the other at the National level which may
later be extended even at the District level. Such Courts
may be vested with the jurisdiction to decide both criminal
prosecution cases under the various environmental laws
and civil cases for compensation to victims of any
activity leading to environmental damage or pollution.
These Courts should be allowed to adopt summary
proceedings for speedy disposal of the cases. The appeal
from decision of the State Environment Courts may be
preferred to the National Environment Court and appeal
from the decision of the National Environment Court to
the Supreme Court. The provisions should be confined to
single appeal.
the road map
The aforesaid study leads us to the following conclusion
and suggestions: i) We have more than 200 Central
and State legislations which deal with environmental
54 THE LEGAL OBSERVER
public
health
t
he Supreme court has emphasised the
importance of preservation of public health.
in Subba rao v. State of Himachal Pradesh, the
Supreme court ordered the closure of a bone
factory which was polluting the environment
by its pungent smell and making the life of the people
miserable. No one can do business at the cost of public
health. with a view to preserve the environment and control
pollution within the vicinity of tourist resorts of badkhal
and Suraj Kund, the Supreme count directed the stoppage
issues. More legislation means more difficulties in
enforcement. There is a need to have a comprehensive
and an integrated law on environmental protection
for meaningful enforcement. ii) It is not enough to
enact the legislations. A positive attitude on the part of
everyone in society is essential for effective and efficient
enforcement of these legislations. iii) The powers vested
to the Pollution Control Boards are not enough to prevent
pollution. The Boards do not have power to punish the
violators but can launch prosecution against them in the
Courts which ultimately defeat the purpose and object of
the Environmental Laws due to long delays in deciding
the cases. Thus, it is imperatively necessary to give more
powers to the Boards. iv) The Environment Protection
Laws have failed to bring about the desired results.
Consequently, for the purpose of efficient and effective
enforcement of these laws, it is necessary to set up the
Environment Courts; with one Judge and two technical
experts from the field of Environmental Science and
JULY 2022
 l ENVIRON l
of mining activity within two Kilometers radius of these two
tourist resorts. in Municipal council, ratlam v. Vardhichand
& others, the Supreme court held that the grievous failure
of local authorities to provide the basic amenity of public
conveniences drives the miserable slum-dwellers to ease
in the streets, on the sly for a time, and openly thereafter,
because under nature’s pressure, bashfulness becomes a luxury
and dignity a difficult art. A responsible Municipal council
constituted for the purpose of preserving public health cannot
run away from its duty by pleading financial inability. n
Ecology. These Courts should be allowed to adopt summary
proceedings for speedy disposal of the cases. To begin with
we may have such Courts at the State and National levels
that may later be extended to district level on need-based
principle. In order to discourage prolonged litigation, the
provisions should be confined to single appeal.
v) There is a multiplicity of environment pollution control
standards for the same type of industries. However, under the
Environment (Protection) Act, 1986 now the power has been
conferred upon the Central Government for laying down the
standards for the quality of air, water and soil. It is hoped
that this will ensure uniformity of standards throughout
the country. vi) In order to enforce the environmental laws
stringently, mere mis-description and technical flaws should
be disregarded by the Courts. The creative role of judiciary
has been ignificant and laudable. The jurisdiction of the Courts
has been expanded by way of Public Interest Litigation. The
Supreme Court of India has played a vital role in giving
JULY 2022
directions from time to time to the administrative
authorities to take necessary steps for improving the
environment.
vii) The Public Liability Insurance Act, 1991 which
provides for mandatory public liability insurance
for installation and handling hazardous substance to
provide minimum relief to the victims, is a welcome
step in the right direction. Such an insurance apart from
safeguarding the interests of victims of accident will
also provide cover and enable the enterprise to meet its
liability. viii) What we need is social awareness from
below, not laws from the above. No law works out
smoothly unless the interaction is voluntary. In order
to educate people about the environmental issues, there
should be exhibition of slides in the regional languages
at cinema houses and television free of cost. Further, as
directed by the Supreme Court of India, Environment
studies shall be made a compulsory subject at school
and college levels in graded system so that there should
be general growth of awareness.
ix) It needs to be appreciated that keeping in view
the magnitude of finance required, a judicious mix
of incentives, phasing and awareness creating,
programmes about cost effective technologies is
essential as the first prong of the strategy to control
environment degradation.
x) The traditional concept that development and ecology
are opposed to each other, is no longer acceptable, since
‘sustainable development’ is the answer. The Supreme
Court has accepted sustainable development as part of
the laws of the land and has affirmed the ‘precautionary
principle’ and the ‘polluter pays principle’ are essential
features of sustainable development.
xi) The tapping of natural resources must be done
with requisite attention and care so that ecology and
environment may not be affected in any serious way.
A long-term planning must be undertaken by the
Central Government in consultation with the State
Governments to protect and improve the environment
and to keep up the national wealth.
xii) Finally, protection of the environment and keeping
ecological balance unaffected is a task which not only
the government but also every individual, association
and corporation must undertake. It is a social obligation
and fundamental duty enshrined in Article 51 A (g) of
the Constitution of India. n
(The writer is Professor of Law, and Dean,
Academic Affairs, Kurukshetra University)
THE LEGAL OBSERVER 55
 UnIOn Law
MInISTEr

KIrEn
rIjIjU
has said that the
Indian judiciary is
playing a pivotal role
in promoting alternative
dispute resolution
mechanisms,
particularly in
arbitration and
mediation and the
country’s courts have
consistently adopting
an arbitration-friendly
approach which is
strengthening the
confidence of the
stakeholders.

56 THE LEGAL OBSERVER MAY 2022

 l TETE-E-TETE l

InDIan
jUDICIary
PLayIng PIVOTaL
rOLE In PrOMOTIng
aLTErnaTIVE
DISPUTE rESOLUTIOn
MECHanISMS
In an exclusive to PraVEEn K SIngH of
The Legal Observer, the Law Minister rijiju
talked about how the Indian judiciary has been
proactive in promotion of aDr mechanism. He also
talked about the extraordinary reforms which have
been brought in the last eight years of the
Modi government.

JULY 2022 THE LEGAL OBSERVER 57

 l TETE-E-TETE l

Excerpts:
The judicial system in India is under tremendous
With the continuous rise in the load of cases pressure. As of May 2022, over 4.7 crore cases
in Indian courts, how do you see the future are pending in courts across different levels of
of mediation law and alternate dispute the judiciary. How do you react to this and
resolution mechanism in the country? what solutions do you have in your mind as
Indian judiciary is playing a pivotal role the Minister?
in promoting alternative dispute resolution The pandemic brought a number of disruptions in
mechanisms, particularly in arbitration and day to day life. Even then, we managed to run our
mediation and the country’s courts have consis- courts effectively through our efforts of digitalisation
tently adopted an arbitration-friendly approach having e-filing and e-payment facilities. Summons
which has strengthened the confidence of were being issued digitally and judgments have
the stakeholders. Recently the Supreme been made and online copies are available
Court paved the way for enforcement
of emergency arbitral awards in POST on the website. In the last eight years of
the government, 46 judges have been
India seated arbitrations in the May 2014 appointed in the apex court and 743 in
Amazon-Future Group case. The the high courts. Over 300 new posts
Indian judiciary has always been my government has have been created in the 25 high courts
proactive in promotion of ADR implemented a number across the country. There has also
mechanism and this is bringing initiatives ensuring been increase in the approved strength
faith of all the stake holders. The both ease of living of judges from 984 in 2014 to 1104
courts in our country have consis- and ease of doing in 2022.
tently adopted arbitration friendly business.
approach. I have a firm belief that
the mediation law will prove to be an
pivotal reform towards providing compre-
hensive recognition to mediation and enabling
the growth of a culture of amicable settlement
of disputes out of court. To keep pace with
current developments in the arbitration space
and to enable arbitration as a viable dispute
resolution mechanism, the Indian arbitration law
has undergone significant amendments in 2015,
2019 and 2021.
The changes in law signal a paradigm shift
for ensuring timely conclusion of arbitration
proceedings, minimising judicial intervention in
the arbitral process and enforcement of arbitral
awards. The amendments are further aimed at
promoting institutional arbitration, updating the
law to reflect best global practices and resolve
ambiguities thereby establishing an arbitration
ecosystem where arbitral institutions can flour-
ish. The legislative framework has been enabled
to promote institutional arbitrations by the
proposed establishment of Arbitration Council
of India (ACI) which would grade arbitral insti-
tutes in the country.

58 THE LEGAL OBSERVER JULY 2022

 l TETE-E-TETE
At the global level how do you see the rise
of India in terms of its role in solving inter-
national disputes?
India has made a great progress in areas of
development and governance at domestic level
it has left a mark in encouraging cooperation
amongst the countries at a global level. For the
first time India will assume the presidency of
the G-20 from December 1 this year till No-
vember 30, 2023 culminating with the holding
of G-20 Summit in India in 2023. As we know
the G-20 nations, of which India is a found-
ing member, hold a strategic role in securing
future global economic growth and prosper-
ity. To achieve this objective, a continuous
exercise is required in respective jurisdictions
inter-alia to strengthen enforcement of con-
tracts and related alternative dispute resolution
mechanism. Such measures will promote
increased economic and financial cooperation
amongst the various countries.
A successful settlement not only helps in
preserving the relationship amongst the parties
offering ease of living but also contributes in
the growth of the economy.
Now with eight years of BJP in power, what
all do you see as the major achievements of
the government?
We have brought in several changes in the
system. A digital ecosystem has been created
for the next generation justice delivery system
in the country where each court is connected
through broadband, having a video conferenc-
ing facility that helps judges to hold online
court proceedings. The e-courts phase II are
also been delivering on its targets. Digitisa-
tion has brought in an immense relief in the
judiciary sector. It has also helped in connect-
ing courtrooms to prisons. Virtual courts have
helped in disposing off cases, where without
the presence for the citizens in a physical
courtroom.
Post May 2014, my government has imple-
mented a number initiatives ensuring both ease
of living and ease of doing business. At least
JULY 2022
l
722 fast-track courts have been operation-
alised, which includ 406 Posco courts, lead-
ing to disposal of more than 87,000 pending
rape and Posco Act cases. An ecosystem has
been created to make India an arbitration hub.
Towards ease of doing business and faster dis-
posal of disputes, dedicated commercial courts
have been started at the district level. Judicial
infrastructure has been upgraded at a massive
scale, providing hundreds of new court-halls
and living quarters for judges.
Having the colonial roots, the sedition law
has served as an effective tool in the hands
of the British imperialist rulers to criminal-
ise dissent against its actions and policies.
Even the Supreme Court has asked the
Central Government for repealing the
provision. How do you see this and do you
think that even state governments are mis-
using provisions of sedition laws?
No, I don’t think that from the government
side this has been misused ever. Our govern-
ment position has been clear that any provi-
sions under the Constitution or any act of law
are being invoked appropriately as per the
requirement of the law. If any court is inter-
preting it differently, I cannot comment on
that. But, from government’s side there has
been no misuse of the law.
There have been several instances where such
matter have been challenged in courts and dis-
missal of the cases and actions of the govern-
ment vacated by the courts. If by the judiciary
THE such stands have been taken, it can be well
CHangES understood. However, as far as the Central
in law signal a Government is concerned, I can vouch that we
paradigm shift have never misused any law. There has been
for ensuring never ever any instance that the law have been
timely conclusion
invoked. Government has taken steps only
of arbitration
proceedings, when they observed that someone has acted
minimising judicial against the nation. Anti-national activities
intervention in the all together.
arbitral process
and enforcement The nation is first, its sanctity is more
of arbitral awards. important. Government’s objectivity is to
secure the national interests. That cannot be
compromised with.n
THE LEGAL OBSERVER 59
 l POLICy l

archaic
laws to be
shelveD
Since independence, multiple committees have made
recommendations to repeal unnecessary & obsolete laws,
and also suggested modifications to certain laws so as to
meet the requirements of the present describes
The Legal Observer

60 THE LEGAL OBSERVER JULY 2022

 l POLICy l
t
he Indian Aircraft Act, 1934 categorizes
balloons and kites as aircrafts thereby
making negligible flying an offence.
Such ludicrously outdated laws continue
to exist in Indian Law Books. There are
numerous laws, both central and state
laws, existent in India which date back to
the 1800s and the colonial-era despite India
becoming an Independent nation in 1947.
Such archaic laws which are obsolete,
redundant, repetitive, and irrelevant to the
current times, make the legal process long,
expensive, and time-consuming. Not just
the common public, even lawyers and law
enforcement agencies may be unaware of
these obsolete laws sometimes.
Various committees have been constituted
to recommend repeal of obsolete laws
Since independence, multiple committees
have made recommendations to repeal
unnecessary & obsolete laws, and also
suggested modifications to certain laws so
as to meet the requirements of the present.
The Law Commission of India came
up with recommendations for repealing
archaic laws in 1957, 1984, 1993, and the
JULY 2022
latest one in 2014.
Besides the Law Commission, in 1998, a
committee under the chairmanship of PC
Jain was constituted by the Department
of Administrative Reforms and Public
Grievances to make recommendations
for repeal or amendment of laws. The
Commission suggested the repeal of over
1300 Central laws alone, out of around
2500 such laws. Later in 2014, the Prime
Minister’s Office set up a two members
committee to identify Central Acts to be
repealed or re-enacted since they are no
longer necessary or relevant in the present
socio-economic context. This committee
listed a total of 1741 Central Acts for repeal
out of 2781 Central Acts existing as of 15
October 2014.
Repeal of obsolete laws was a part of
BJP’s 2014 election manifesto Elimination
of whatever was obsolete in laws,
regulations, administrative structures,
and to reduce and simplify obsolete and
multiple laws as part of the Bharatiya
Janata Party’s election manifesto in the
THE LEGAL OBSERVER 61
 l POLICy
The Sonthal
Parganas Act,
1855
The Indian
Treasure Trove
Act, 1878
2014 general elections. According to PIB in January
2021, ‘successive governments could remove just
1,301 obsolete laws which came in the way of smooth
administration in 66 years, the present central government
has managed to weed out as many as 1,500 laws in
six years’.
Some of the laws that have been repealed over the years
are- Dramatic Performances Control Act, 1876 was passed
as a measure to curb theatrical representation in India. It
gave power to the government to prohibit any theatrical
performance if it found the performance to be against it.
Further powers to conduct arbitrary search and seizure
procedures, control of an area, etc. were part of the law.
The draconian law was repealed in 2018.
The Bangalore Marriages Validating Act, 1936 was passed
solely for recognizing certain marriages solemnized by
missionary Walter James Mc. Donald Redwood who did so
under the belief that he was duly authorized to do it. Since
the purpose of the law was met, it was also repealed in 2018.
The Ganges Tolls Act, 1867 was enacted to levy tolls on
62 THE LEGAL OBSERVER
l
epidemic
Diseases Act,
1897
The government Buildings
Act, 1899
steamers and boats that plied on the river Ganges for
defraying the expenses of improving and facilitating
the navigation of the Ganges between the then
Allahabad and Dinapore. Meanwhile, the National
Waterway (Allahabad-Haldia Stretch of the Ganga-
Bhagirathi Hooghly River) Act, 1982 was enacted, to
levy toll in the same region and for the same purpose,
thereby raising the possibility of double taxation.
Hence, the Ganges Tolls Act was repealed in 2018.
Salt Cess Act, 1953 was repealed in 2016. The Act
was passed for levying tax on salt in order to meet the
expenses incurred on salt organization maintained
by the government. However, over the years, it was
observed that the cost of collecting the cess alone
was more than the cess collected.
Nonetheless, there are still a myriad of laws that need
to be either repealed or re-enacted after modifying.
We look at few such archaic laws, the context
behind passing the same, and why it is irrelevant in
the current context.
JULY 2022
 l POLICy l

sonthal parganas act is discriminatory private sector services

The Sonthal Parganas Act, 1855 removes the operation The Government Buildings Act, 1899 exempt the
of general laws and regulations in certain districts where buildings and lands owned or in possession of the
the Sonthal tribe inmates inhabit. The act came into force Government in municipality limits from adhering to the
after the Sonthal rebellion against the British colonial municipal building laws. However, with the exception of
authority and the Zamindari system. The Preamble of the buildings connected with defence or confidential/secret
Act refers to Sonthals as an ‘uncivilized race of people’ buildings of the government, a notice of the proposed
as the reason behind removing the operation of generals work should be submitted to the municipal authority
laws in the areas inhabited by Sonthal tribe members. before starting the work. Municipal authority or
This is discriminatory in nature and contrary to the spirit authorized person has the power to inspect the land and
of the Constitution and hence must be repealed. building. Though the PC Jain Commission recommended
the repeal of the act by state governments, the Law
indian treasure Commission report has suggested modifications for re-
The Indian Treasure Trove Act, 1878 defines ‘treasure’ enacting the act in the current socio-economic context.
specifically as “anything of any value hidden in the soil” For instance, government services are being carried out
and worth as little as 10 rupees. The law entails that the in PPP mode or through outsourcing to the private sector.
finder of any such treasure, according to this law, This should also be considered in the legal statute.
needs to inform the Collector of the “nature and comprehensive act
amount or approximate value of such treasure
and the place where it was found.” Prior to VarIOUS Epidemic Diseases Act, 1897 is a
1937, the law stated that a share of the COMMITTEES 124-year-old legislation that was
treasure or the money in lieu of it, for have been constituted to recommend enacted by the British to deal with
concealing the information or abetting repeal of obsolete laws Since the plague epidemic that had
offense, would go to ‘Her Majesty’. independence, multiple committees significantly affected Bombay. The
have made recommendations to repeal Central Government is conferred
However, the punishment involved unnecessary & obsolete laws, and with the power to take measures in
is imprisonment for a year and/or also suggested modifications to the case of an outbreak of epidemic
penalty. Also, the low value of treasure certain laws so as to meet the diseases such as inspection of ships
mentioned, Rs. 10, may be used to harass requirements of the or vessels entering or leaving Indian
farmers and other economically deprived present. ports. Disobeying the law results in
persons. Thus, the law may be modified to meet imprisonment for one month and a fine of up
the current requirements. to Rs. 200. This Act was recently invoked in India
Telegraph services stopped in India in 2013 while in 2020 during the COVID-19 outbreak which revealed
committee has recommended combining the laws in 2014 the lacunae in the legislation. To summarize, nothing
has been mentioned with respect to the magnitude or
The Telegraph Wire (Unlawful Possession) Act, 1950 was severity of the disease, possible spread, international
enacted for regulating the possession of telegraph wires travel, dissemination of vaccines or drugs, and more. It
of specified dimensions. The sole purpose of the Act was only speaks of the government’s power. The P.C. Jain
to ensure that wires of the specified dimensions are not Commission recommended its repeal whereas the Law
used for other purposes and to control theft. However, Commission felt that it needs to be re-enacted in view of
the Act in the present times in spite of the Ramanujan today’s socio-economic context.
Committee report’s recommendation to combine this
Act and the Indian Wireless Telegraphy Act, 1933 that Overall, it is seen that some of these archaic laws are
regulates the possession of the apparatus makes no sense redundant, outdated, and even discriminatory in nature
as the telegraph services in India were completely shut as they were made in the pre-independence era. Regular
down in 2013. review of laws is necessary as was done in the last few
years. However, this must become a periodic affair. n

JULY 2022 THE LEGAL OBSERVER 63

 l CYBER CRIME l

chinese
cyber-
espionage
threat
aDEqUaTE
MEaSUrES
NeeD TO Be
ADOPTeD TO
sTrengThen
inDia’s cyber
Defence AS
IT hAS BeCOMe
INCReASINgLY
SuSCePTIBLe
TO ChINeSe
CYBeR ATTACKS,
INveSTIgATeS
SaMEEr
PaTIL

64 THE LEGAL OBSERVER JULY 2022

 l CUTTING EDGE l

CHIna
uSeS INFORMATION
FeRReTeD FROM TheSe
SOuRCeS I) TO BOOST ITS DOMeSTIC
MANuFACTuRINg CAPABILITIeS, AND II)
TO PRODuCe LOweR-COST IMITATIONS
OF POPuLAR weSTeRN BRANDS/
PRODuCTS AND, TheReBY,
ATTAIN A COMPeTITIve
ADvANTAge.

JULY 2022 THE LEGAL OBSERVER 65

 l CYBER CRIME l

o
the way
outs

On 6 April 2022, American cybersecurity

firm, Recorded Future revealed that Chinese
state-sponsored hackers had targeted India’s
power grids in Ladakh. A part of China’s cyber
espionage campaign, the sustained targeting of
the power grids was possibly aimed at collecting
information on India’s critical infrastructure[1]
or preparing for their sabotage in the future.
What technical information the hackers had col-
lected through this breach remains unknown.
However, this targeting of the power grids and
cyber-espionage campaign fits in the broader
pattern of China’s systematic pursuit of offensive
cyber operations against India for more than a
decade.

India is not alone. Several countries, including
the Netherlands, United Kingdom, Australia, and
the United States, and businesses like Vodafone
and Microsoft have revealed China’s unabated
campaign to steal trade and other sensitive data.
chinese espionage against
its adversaries
The US Cybersecurity and Infrastructure Security
Agency, for instance, in its overview of China’s cy-
ber activities, has noted that Beijing conducts exten-
sive hacking operations globally, targeting the health
and telecom sector, critical infrastructure providers,
and enterprise software providers, stealing intellec-
tual property and confidential information. These
targets provide valuable leads for subsequent “intel-
ligence collection, attack, or influence operations”.
The biggest and most recent such hack for cyber-es-
pionage purpose was the breach of the Microsoft
Exchange Server by the Hafnium state-sponsored
hacking group in March 2021. The group exploited
Microsoft’s email software vulnerabilities to target
US government departments, defence contractors,
i
n responding to this widening chinese cyber-
espionage activity, india is hardening its cyber
defences and undertaking its own offensive cyber
operations. but it needs to do more. For one, it
needs to start outlining technical evidence to
attribute these attacks to chinese state-sponsored
hackers—something which the national security
establishment has resisted, even as the technical
community in india and abroad has presented that
evidence.
New Delhi also needs a dedicated mechanism to monitor
these offensive operations. while respective intelligence
policy think tanks, and infectious disease researchers,
amongst others.
Not just cyber attacks, China has even utilised overseas
business contracts and activities to pursue its cyber-es-
pionage campaign. A crucial part of this campaign is
the telecom network and fibre optic communications in-
frastructure provided by Chinese companies like China
Telecom, Huawei, and ZTE. The litany of spying in-

66 THE LEGAL OBSERVER JULY 2022

 l CYBER CRIME
and security agencies do trace foreign spying campaigns
against india, this kind of cyber activity is often treated
as a cyber breach or incident, focusing on the target
and activity, but without linking it to the broader
chinese cyber-espionage campaign, the involvement
of state-sponsored hacking groups and the trends in
their targeting of indian computer networks. Perhaps
the Defence cyber Agency can take the initiative to
collaborate with the civilian technical community to track
these operations. This will send a definite message that
beijing’s mischief is not going unnoticed and is being
systematically tracked as part of india’s comprehensive
cyber posture. n
The us cybersecurity
and Infrastructure Security Agency, for instance, in its
overview of China’s cyber activities, has noted that beijing
conducts extensive hacking operations globally,
targeting the health and telecom sector, critical infrastructure
providers, and enterprise software providers, stealing
intellectual property and confidential information.
JULY 2022
l
stances involving Chinese companies, mostly Hua-
wei, as listed in Table 1, establishes this trend. No
wonder, for a long time, policymakers in the United
States had been warning and recommending to ex-
clude Chinese firms such as Huawei and ZTE from
any critical communication backbone.
China uses cyber espionage to fulfil several
objectives. According to the latest US intelligence
community assessment, these cyber-espionage
operations often target those sectors which provide
potentially rich “follow-on opportunities for intel-
ligence collection, attack, or influence operations.”
China uses information ferreted from these sources
i) to boost its domestic manufacturing capabilities,
and ii) to produce lower-cost imitations of popular
western brands/products and, thereby, attain a com-
petitive advantage.
The example of China’s theft of US’ F-35 stealth
fighter aircraft data is well-documented. But there
are many other cases where China has sought com-
petitive intelligence on the foreign business rivals
of Chinese companies in multiple sectors, includ-
ing defence, technology, oil and energy, automobile,
and telecommunications.
attack on india
While India has so far not proved such an attrac-
tive target for China’s commercial cyber espionage,
things may be changing. In March 2021, a Singa-
pore-based company, CyFirma, revealed that a
Chinese state-backed hackers’ group had targeted
the information technology systems of two Indian
THE LEGAL OBSERVER 67
 l CYBER CRIME l

vaccine makers—Bharat Biotech and

the Serum Institute of India (SII). These
companies’ vaccines have been the most
critical element of India’s national vac-
cination programme and vaccine diplo-
macy. Chinese hackers’ targeting of SII
is significant when examining the reach
of its vaccine, Oxford-AstraZeneca/
Covishield, which is being used in 183
countries, as against almost half-reach
of China’s flagship Sinopharm vaccine
(used in 90 countries). Prime Minister
Narendra Modi’s description of India
as the “pharmacy of the world” vivid-
ly brings the country’s comparative ad-
vantage over China. Therefore, Chinese
hackers may be trying to bridge that gap
by targeting the vaccine makers to steal
commercially valuable data.
Therefore, we can expect China to
broaden its range of targets for com-
mercial cyber-espionage reasons to in-
clude sectors like services where India
has a comparative advantage. Another futed by a Maharashtra government’s
potential target includes India’s start-up technical audit committee examining
innovation ecosystem, where India has the incident. But Recorded Future added
barred Chinese investments. But be- that besides the power sector, Chinese
yond commercial considerations, Chi- hackers also targeted two Indian ports
na’s cyber-espionage campaigns also
demonstrate its coercive tactics.
in and some parts of the railway infrastruc-

The targeting of the power grids in
Ladakh in the middle of the prolonged
border stand-off is clearly aimed at send-
ing a political message and signalling
that Beijing can open other non-military
fronts in the bilateral security competi-
tion. Pertinently, this is the second such
attack on India’s power sector by Chi-
nese hackers.
In October 2020, in one of the worst
power outages, large parts of Mumbai
witnessed a widespread blackout, which
affected suburban train services and
hospitals. Months later, Recorded Future
noted that a China-linked hacker group,
“RedEcho,” had breached the Indian
power sector, which may have caused
Mumbai’s power outage—a charge re-
ocTober ture. Coming in the wake of the violent
Galwan Valley clash between the Indian
2020, and Chinese militaries in June 2020, this
targeting of India’s critical infrastructure
IN ONe OF The suggested a combination of intimidation
wORST POweR and retribution.
OuTAgeS, Moreover, the extent of Chinese per-
Large ParTs sistence in targeting India is shown
by the Advanced Persistent Threat 30
of MuMbai
(APT30) vector. This threat actor’s
wiTnesseD A espionage operation ran for a decade
wIDeSPReAD
before its discovery in 2015. It harvested
BLACKOuT, information from the Indian computer
whICh AFFeCTeD networks on geopolitical issues relevant
SuBuRBAN Train to the Chinese Communist Party, such as
the India–China border dispute, Indian
services anD naval activity in the South China Sea,
hosPiTaLs. and India’s relations with its South Asian
neighbours.n

68 THE LEGAL OBSERVER JULY 2022

 l MEDIATION l

JULY 2022 THE LEGAL OBSERVER 69

 l LAST wORD l
Judiciary and
LegisLaTure can’T
be in sync
w
hile speaking at the Constituent Assembly,
Dr BR Ambedkar said, “…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.” If we observe
the achievement of the constitution in the
country, it will become clear in the last
few years that what Dr. Ambedkar has said seems to be true,
especially since the BJP came to power. Governments have
been changing since then and they have often made decisions
according to their agenda but their decisions seem to be in
conflict with the constitution. The job of the judiciary is to
protect the democratic rights given by the constitution but
seeing the way the judiciary is issuing decisions in the present
times, it is sad to say that the judiciary is also following the
worries voiced by Dr. Ambedkar.
It seems to be that the decisions of the judiciary and the
government are in harmony with each other; which is not only
violative of our constitutional rights but further, the image of
the country’s courts is being badly affected and the decisions of
the judiciary are being criticized. In the Babri Masjid case, the
judiciary killed the constitutional rights and upheld the verdict
in favour of the government. Surprisingly, the court itself said
that it was not proved from anywhere that the temple was
demolished and the mosque was built illegally. It was an illegal
act to martyr the mosque but still, the judiciary used its special
power to replace the mosque with the temple.
Following the expiration of the term of the Chief Justice under
whom the case was pending in the Supreme Court, the Central
government made him a member of the Rajya Sabha. The
Supreme Court had allowed women to enter the Sabarimala
temple on the basis of gender equality, on which the Sangh
Parivar lamp was found, and the country’s Home Minister Amit
Shah told the court. Expressing displeasure over the verdict, he
said that the court should refrain from interfering in religious
affairs. A petition against the decision had to be accepted. One
of India’s most highly regarded Supreme Court lawyers has said
that in applying the “so-called” essentiality test to the question
of whether hijab is an integral part of Islam, the Karnataka high
court has misunderstood the Supreme Court’s 1954 Shirur Mutt
judgment (which established the test) and, therefore, wrongly
applied this test. Advocate Dushyant Dave, who is also the
former president of the Supreme Court Bar Association, says
70 THE LEGAL OBSERVER
PRaveen k singh
Managing editor
pks.advoker@gmail.com
that the 1954 judgment also contains a definition of
religion that is so wide and all-embracing that it includes
different types of food and dress that believers consider
essential to their faith. He says that if Muslim girls
consider the hijab as integral to their faith, then it is. The
hijab is clearly covered by the 1954 judgment’s definition
of religion. Dave pointed out that if the Karnataka high
court sought to apply the essentiality test contained in
the 1954 Shirur Mutt judgment, then it should also have
applied the definition of religion contained in that same
judgment. He also pointed out that this definition of
religion has been repeatedly accepted by the Supreme
Court over the roughly 70 years since the judgment was
delivered. “Advocate Gautam Bhatia is an excellent
writer and expert in constitutional law. Bhatia, in an
article titled, Between Agency and Compulsion: On the
Karnataka High Court’s Hijab Judgment said that it is an
old adage that the manner in which you choose to frame
a question will decide the answer that you will choose
to give yourself. In today’s judgment by the Karnataka
High Court upholding a ban on the wearing of the hijab
within classrooms, that giveaway can be seen on page
39 of the judgment, where the Full Bench frames four
questions for consideration. He further writes that it is
notable that the Court asks itself a question that nobody
else had asked.
The English newspaper The Hindu has written in its
editorial on the subject of Essentially flawed: On the
Karnataka High Court’s hijab verdict. In the editorial,
it was argued that the Karnataka High Court verdict
upholding the ban on the wearing of headscarves by
students in educational institutions is wrong on many
levels. The manner in which it framed the questions
arising from the controversy over Muslim girl students
wearing the hijab undermines constitutional principles.
The court failed to examine whether the wearing of the
hijab, in addition to the prescribed uniform, but without
any variation in colour, was a ground to refuse entry into
a school or college. n
JULY 2022