CONSTITUTIONAL LAW- II [CLASS NOTES]1

Directive Principles of State Policy 2

Fundamental Duties 8

Fundamental Rights 10

ARTICLE 12 11

ARTICLE 13 25

ARTICLE 14 – RIGHT TO EQUALITY 34

ARTICLE 15(1) AND 16(2) IN CONTRAST TO 15(4) AND 16(4) 48

ARTICLE 19 61

ARTICLE 20 71

ARTICLE 21 76

ARTICLE 25 & 26 - RELIGION 86

Reference: Classes, Oxford Handbook, Indconlawphil.

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Yash Jain – II yr.
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 ● DIRECTIVE PRINCIPLES OF STATE POLICY
They are framed as a set of obligations upon the State. At the time of drafting, the only other
Constitution that contained anything analogous was the Irish Constitution.

The directive principles are best understood as providing the framework of values that
structure and constrain the interpretation and construction of fundamental rights; and
secondly, in giving teeth to the DPSPs, the Court has regularly adopted a limiting principle
that constrains its own role in interpretive exercise, one that is grounded in ideas of
institutional competence and legitimacy.

Article 37 – DPSPs are ‘non-enforceable’ (cannot be challenged in the Court of law). But
they are fundamental in the governance of the country and duty of the State to apply these
principles in the governance of the country. (There is some ambiguity over this Article – what
duty moral or legal. Also, some part overlap with FR).

HM Seervai sees no such ambiguity and argues that it has no political significance. This was
the Court's earlier position also.

⮚ State of Madras v. Champakam Dorairajan (1951)

Madras attempted to justify caste-based affirmative action policies, which conflicted with the
fundamental right to non-discrimination, on the basis of the DPSPs. The Supreme Court flatly
rejected the argument, pointing to the non-enforceable nature of the DPSPs in refusing to
accord them any weight in judging the constitutionality of the action.

The government’s affirmative action programme for admissions to medical and engineering
colleges was struck down on Article 15 grounds, and the State’s reference to the DPSPs
(Article 46) was rejected. In response, Parliament amended the Constitution to introduce
Article 15(4), specifically allowing for affirmative action in educational institutions.

The ‘colour-blind conception’ of equality. This holds that there is a specific harm whenever
the State classifies individuals on the basis of their caste, race, sex, etc—because historically,
it was these bases that were used to sort people into categories, and determine their worth.
Therefore, any distribution of benefits or burdens that classifies us into groups on such
grounds is presumptively suspect. Individuals are to be treated qua individuals, and not as
members of groups.

While the colour-blind conception of equality is individual-centric, there is a competing

vision. Call it the ‘group-subordination’ vision. This argues that groups have been the locus

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of historic discrimination. Thus, remedial action must take into account the subordinate status
of groups (such as women, or ‘lower caste’), and governmental policies are perfectly
legitimate if they make groups the site of redressing historic discrimination and achieving
genuine present-day equality. Article 46, which was cited and dismissed by the Court in
Champakam Dorairajan, specifically envisages this conception, when it refers to the interests
of the weaker sections of the people.

This is crucial, because the shift from the precedent-based, colour-blind vision of equality to
a group subordination conception is justified by invoking the DPSPs in general, and Article
46 in particular

⮚ Muir Mills v Suti Mills Mazdoor Union (1955)

DPSPs were invoked in an argument over workmen’s rights to bonus payments. Muir Mills
was not even a question of enforcement, involving only a question of interpretation.
Nonetheless, the Court refused to use the DPSPs even as interpretive guides, preferring to
adhere instead to traditional common law employment concepts of wages and bonuses.

⮚ Mohd Hanif Quraishi v. State of Bihar (1958)

Cow slaughter prohibition law was bought in – challenged on (i) On religious basis (ii) Right
to trade and commerce [Article 19].

SC- (i) Slaughtering is not absolute according to your religion, so this argument stands
nullified. (ii) Court interlinked Right to freedom of trade [19(1)(g)], with DPSP and said that
that article was subject to public interest [19(6)]. (What is ‘public interest’ has not been
defined anywhere). To justify element of ‘public interest’ in slaughter house ban, it was
linked to DPSP. The court used Article 48 [slaughter house ban - DPSP – Gandhian Legacy].
Court’s exhaustive economic analysis informing the application of Articles 19(1)(g) and
19(6) saw no reference to the DPSPs. Therefore, Court has not determined the course of
19(1)(g) but used DPSP to illustrate the restriction on FR (indirectly restrict FR). The Court
used DPSP to illustrate 19(6).(indirectly)

It was argued that because the ban was designed to give effect to Article 48, and because the
DPSPs were fundamental to the governance of the country, a rights-based challenge to
such a legislation must fail. The Court made short shift of this contention (used harmonious
interpretation): [para 12]

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[A] harmonious interpretation has to be placed upon the Constitution and so interpreted it
means that the State should certainly implement the directive principles but it must do so in
such a way that its laws do not take away or abridge the fundamental rights.

This clarified that DPSPs are relevant but subordinate to FR.

⮚ In Re Kerala Education Bill (1958)

Law dealt with the rights of minorities to run educational institutions. The court again put to
use DPSP to illustrate public interest. The court says that DPSP can serve as a qualifier to
determine public interest in 19(6). Hence, DPSPs are relevant but subordinate.

J. Qureshi’s harmony does not accord any interpretive role to the DPSPs. In Re Kerala
Education Bill, on the other hand, while reaffirming the primacy of the fundamental rights,
the Court nonetheless opens the gates for DPSPs to play a tangible — if subsidiary role — in
interpretation, holding that the ‘scope and ambit’ of the fundamental rights should be
determined in such a harmonious way that full effect is given both to Part III and Part IV.
This is the first hint that we have of that oft-repeated phrase, that is, that fundamental rights
must be interpreted in light of the DPSPs.

In the aftermath of Re the Kerala Education Bill, the Court made the DPSPs an integral part
of any inquiry into the validity of fundamental rights restrictions. This was the first—and
most basic way—in which fundamental rights came to be interpreted in light of the DPSPs.

⮚ Chandra Bhavan Boarding and Lodging v. State of Mysore (1969)

(J. KS Hegde, J. SM Sikri, J. GK Mitter, J. AN Ray, J. P Jaganmohan Reddy)

Law ensuring minimum wages for the employees.

The Court upheld State minimum wage legislation, cursorily dismissing the 19(1)(g) claims
of the employers by stating: ‘We are not convinced that the rates prescribed would adversely
affect the industry of even a small unit therein. If they do, then the industry or the unit as the
case may be has no right to exist. Freedom of trade does not mean freedom to exploit’.

This marked another shift in the Court’s jurisprudence by abandoning the ‘subordinate-but-
relevant’ doctrine of Re the Kerala Education Bill. In Chandra Bhavan, the Court observed
that the Bill of Rights (FR) and the DPSPs were ‘complementary and supplementary’ to
each other. The Court derived the justification for this from Article 37 (DPSP are
fundamental for the governance of the country and duty of the State......)

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The Court rationalised this approach by defining the DPSPs as ‘social goals’, and the
fundamental rights as ‘side constraints’ to be scrupulously adhered to by the government in
its pursuit of those goals.

⮚ State of Kerala v. NM Thomas (1975)

(Ray, A.N. (Cj), Khanna, Hans Raj, Mathew, Kuttyil Kurian, Beg, M.H. & Krishnaiyer, V.R.,
Gupta, A.C. & Fazalali, S.M.)

Earlier position: Reservation is exception to the rule of equality. And because reservation is
exception, therefore, max quantum of reservation cannot exceed 50% (reservation cannot
become greater than the rule) is. 15(4) and 16(4) exception to 15 (1) and 16 (1). In NM
Thomas, Court elucidated that reservation is not an exception to the rule rathr it is in
furtherance to the rule of equality. Therefore, there is no ceiling to the reservation although
subject to ‘reasonableness’. The Court engaged in Article 46 (uplift SC/ST) and based its
ruling on welfare mandate.

It’s the time of Indira Gandhi (70s). Parliament started using DPSPs extensively (Article 39
B, C). Parliament using DPSPs to pick up people’s properties. Then came Minerva Mills
(1978) which restricted some powers of the parliament.

In Balwant Raj v. UOI (1968), the Court adopted—arguably—a strong standard of review,
infusing an additional condition into a provision that was nowhere in evidence on its face.
Subsequently, however, it went even further: in Uttar Pradesh State Electricity Board v
Hari Shankar (1978) the Supreme Court was interpreting the phrase ‘Nothing in this Act
shall apply…’ The technical details of the case need not detain us here; it is this observation
of the Court that is striking: ‘That is the only construction which gives meaning and sense to
Sec. 13-B and that is a construction which can legitimately be said to conform to the
Directive Principles of State Policy proclaimed in Articles 42 and 43 of the Constitution.

In other words, the Court treated the DPSPs as constitutive of legislative meaning: the
maximum degree to which it could infuse Directive Principles into the law without directly
enforcing them.

In State of Gujarat v. Mirzapur Moti Kureshi (2005), where it held that a restriction aimed at
fulfilling the DPSPs will be reasonable insofar as it does not run in ‘clear conflict’ with the
fundamental right.

● The gradual transition of DPSP from irrelevant to subordinate to equal to FR. 

Parallelly in 1978-79 Maneka Gandhi v. UOI

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This case paved the way of expanding Right to life and liberty. This case was very simple
(impounding of Maneka Gandhi Passport) but it indulged in so many things and became
landmark. Entire FR discourse went into transformation. Jus. Bhagwati expanded the scope
of 21 so much and now things like privacy (which doesn't find any mention in the
constitution) is also there.

The fact that life include so many enumerated facets of life was propounded by J. Bhagwati
in Maneka Gandhi case. 

Many of the things which are not mentioned in Part III (basic medical care, earlier education)
this all they got from Part 4. 

Article 45 - free and compulsory education. 

We got numerous rights under the ambit of Art 21 by expanding part IV.

Q. Whether legislators were of the view that right to life just means right to life or did they
envisage that it include other things.

Sir BN Rau was going around the world to understand their experience of Constitution. 

He was in USA, he met Jus. Felix Frankfurter. He said to Sir BN Rau NOT to include ‘Due
Process of Law’. When he came back, Ambedkar was convinced not to include DPL but he
had to include something in Art. 21. They came across Art.31 of Japanese Constitution and
included 'Procedure established by Law' because DPL gave so much power to the courts and
it was a bad experience with USA SC.

MK Nambiar (lawyer of AK Gopalan) in one of the first case in SC (AK Gopalan v. UOI)
argued extensively for due process of law. But it was a 1950s court which followed Black
letter law. They couldn’t have gone beyond constitution. 

In Maneka Gandhi the tables were turned and the court ultimately went with Mr. Nambiar
arguments and ruled that it can't be any procedure but just, fair, and reasonable process.

⮚ Mithu Singh v. State of Punjab (1983)

Question on Section 303 IPC: Death penalty for those who commit murder while serving life
imprisonment. Argued that as a normal murder carries punishment of life imprisonment or
Capital punishment so why a differential treatment under section 303 IPC. That violates
Article 14.

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This was accepted by J. YV Chandrachud who held that it not only violates Article 14 but
also Article 21. The law in question has to be just, fair, and reasonable and section 303 does
not pass that threshold.

So, when courts gradually add things to Article 21 and expand its scope, the court is
ultimately making DPSPs enforceable. Like adding ‘right to legal aid’ (which was a DPSP)
was added by a SC judgement to article 21, now that has become enforceable.

● EDUCATION

⮚ Mohini jain v. State of Rajasthan (1985)

The Court held: Right to Education is a part to Right to Life.

After this was delivered, the court realised that this is impractical as they have holistically
implemented it and its beyond the capability of the State.

⮚ Unni Krishnan v. State of AP (1993)

Lowered down the scope of Mohini Jain. The Supreme Court held that the right to basic
education is implied by the fundamental right to life (Article 21) when read in conjunction
with the directive principle on education (Article 41 - the State shall within the limits of its
economic capacity and development, make effective provision for securing the right to work,
to education [...]). The Court held that the parameters of the right must be understood in the
context of the Directive Principles of State Policy, including Article 45 which provides that
the state is to endeavour to provide, within a period of ten years from the commencement of
the Constitution, for free and compulsory education for all children under the age of 14.

Then the seeds of RTE was sown and Article 21A was added in 2009.

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 FUNDAMENTAL DUTIES
From ancient times, we have prioritized duties over rights. Gandhian influence in FD. Gandhi
idea was that in a democracy we are entitled to some rights but are we following our duties.
(we owe some responsibility towards the State and Society).

Different ideologies said that the duties were implicit in the Constitution. So, initially it was
not given an exclusive place in the Constitution.

42nd Amendment 1975 – A new chapter on FD was added to the constitution (10 duties –
scientific temper, respect to national flag, [...])

52nd Amendment 2002 – added subclause (k) (11-education) to the FD chapter.

Fundamental Duties are NOT enforceable. They are mere guidelines which are expected to
be follow. But if these duties are not observed, nothing can be done.

When Indira Gandhi introduced FD, she was actually implying that I am telling you the
duties, first you follow that, then demand rights. Although, FD were of Gandhian idea but
this time it was more of an idea of an autocratic state.

2019-20 – year of FD (70th year of Constitution) (Kartavya program) – make people aware
about their duties.

FD are not of much use, for e.g., Sachidanand Pandey v. State of WB. 1980s –opposite to
Alipore zoo, there is Taj properties. Environmentalist raised concern on the ground that it was
a green place and if built it will deteriorate the environment, also many migratory birds come,
building huge building will obstruct the path of migratory birds which in turn will destroy the
ecological habitat of that area. Tata promised that we would have sustainable construction
(They actually did), but didn’t stopped construction. It came before SC; SC also framed an
issue that do we have look into Article 51A while examining a govt. policy?

The court said that whenever environmental question come, they look at 48A (DPSP) and
51A(g). But, as it a matter of policy making, we may remind them of the consideration that
they need to look into. So, the DPSP and FD only play a subordinate role. If there is no
malafide intention on the part of the State, there is no need to look at all these.

Shyamnarayan Chouksey v. State of MP (CJ. Dipak Mishra – MP HC) – Movie theatre –

National Anthem. Chouksey moved to SC at the time of KKKG to delete the National
Anthem scene as it was disrespecting the National flag and violating FD. Eventually, this
matter died down.
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Years later, again a case in SC (Shyamnarayan Chouksey) (CJI Dipak Mishra), disrespecting
National Anthem – violating FD – SC in its interim order said that it was people’s duty to
respect it because the need to respect the National Flag and Anthem is a facet of
Constitutional Patriotism. Formalise the playing of National anthem and flag in theatres.
Although in the final order he mellowed down but still put into use FD.

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 FUNDAMENTAL RIGHTS

- Most of the rights are Negative in nature (claim-denial mode, the state on its part
won’t deny you the rights and if you present a claim, state will try to resolve it). Court
infused the element of ‘positiveness’ to the FR.
- Enforceable primarily ‘only against the states. But there are rights that can be used
against non-state actor. For e.g., Article 17 (abolition of untouchability) – this kind
of right can be claimed against anyone practicing untouchability. Also, Article 23
(Right against exploitation), Article 15.

15 (1) - The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them. (Negatively worded)

15 (2) - No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to [...] (No
mention of State).

A person has cause of action against private entities if his/her article 15 is violated.

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 ARTICLE 12
In this Part, unless the context otherwise requires, “The State’’ includes the Government
and Parliament of India and the Government and the Legislature of each of the States and all
local or other authorities within the territory of India or under the control of the
Government of India.

- This meaning of State is specific to the FR chapter (Part III) alone. (unless the context
otherwise requires)
- The Union and the State Legislature + Executive is included
- Local Authorities – Panchayats and Municipal Corporations (third-tier of governance)
- Other Authorities – lot of debate around this. If you want other of the govt.
authorities to be a part of this, then the scope of the enforcement of FR would be
widen or else it could also be narrowed down. (like an accordion – instrument)

Over the time it has been interpreted differently by the court.

⮚ University of Madras v. Shanta Bai (1950)

State University – Should be under the ambit of State (common sense). Surprisingly, Madras
HC denied it to be under the ambit of State. HC said that to be under the ambit of State you
need to perform SOVEREIGN functions. University is not autonomous; it has to follow
Education ministry so it is not sovereign in any way and is not functioning like the State.
(Narrow interpretation of ‘sovereign functions’). Therefore, for the court to be ‘other
authorities’ you have to function ‘sovereign function’ (functions performed by the govt. -
autonomy). The court used ejusdem generis (of the same nature) doctrine to interpret
sovereign functions.

⮚ Rajasthan State Electricity Board v. Mohan Lal (1967)

The rule made in Shanta Bai was rejected. The fact that there is ‘other authorities’ mentioned
means that the law makers have to had this or else they could have omitted it. The court
rejected ejusdem generis. The court held that if it is a statutory body then it will come under
the ambit of ‘other authorities’ (so is Rajasthan State Electricity Board).

⮚ Sukhdev v. Bhagat Ram (1975)

Reasoning of Rajasthan Electricity Board but more elaborative manner. Majority Judgement
(Jus. Ray, Jus. YV Chandrachud, Jus. A Gupta); Concurring opinion (Jus. Mathew);
Dissenting (Jus. Alagiri Swami).
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Issue : Whether bodies like ONGC, LIC, IFCI be called State?

Contention around: Recognised by Statute vs. Created by Statute vs. Bodies functioning State
functions. Earlier position: Rajasthan case held that for being a State it has to be created by
Statute and not otherwise.

Majority Judges went with Rajasthan case but also added criteria for the body in question to
be: (i) Statutory body (ii) Statute confers them power to make binding rules (autonomy) (iii)
subject to pervasive Government control (funding, salaries,.......case to case basis –
engagement of the body with the State).

Although adding the third point is not much of a different as other two criteria have to be
followed.

Concurring Opinion (famous) – J. Mathew – He disregards the statutory question. He

didn’t look at the origin of the body and didn’t took the Structuralist view. He took the
Functionalist view and took two consideration for the body to be under the ambit of ‘State’:
(i) instrumentality or agency of the State (similar functions to that of government, look at its
‘functions’. There is no threshold of how much financial connection is between State and the
Body.); (ii) if it performs public functions. (technically majority of the companies are
performing public functions – have to link this test with the first prong).

Dissenting : Madras case position

⮚ Sabahjit Tiwari v. UOI (1975) Bench: Ray, A.N. (CJ), Mathew, Kuttyil Kurien,
Chandrachud, Y.V., Alagiri swami, A., Gupta, A.C. – Same day as above!

Whether CSIR is under the ambit of State?

Held: No, it is not State.

(i) Not a Statutory Body. – It failed to pass the first prong test (registered under Societies Act)

So, they are ultimately following the Rajasthan Case.

Not a Good Law anymore – overruled in Pradeep Kumar Biswas Case (Landmark)

⮚ Ramana Dayaram Shetty v. International Airport Authority (1979) – J. PN

Bhagwati

The Court did not take into account whether it was a ‘statutory body’ or not. The Court just
relied on the kind of function the body is performing.

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Bhagwati took the functionalist approach and decided solely on the basis of the functions
IAA is performing. Thus, ultimately overruling Sabahjit Tiwari. If on a consideration of
these relevant factors it is found that the corporation is an instrumentality or agency of
government, it would as point out in the International Airport Authority’s case, be an
‘authority’ and therefore, ‘State’ within the meaning of the expression in Article 12.

After RD Shetty, scholars started feeling that Bhagwati has gone overboard in the above case.
So, in the next case he tried to balance himself.

⮚ Ajay Hasia v Khalid Mujib (1981)

The Court gave 6 points fundamental framework – look the body into question – if it is in
compliance with 6 points, then it is State otherwise not. [READ: Handbook – Anant
Padmanabhan Article]. But does the satisfaction of one of the points make it State or not, J.
Bhagwati was unclear on this.

REC Srinagar had an admission policy, whereby there was a selection procedure and then
admission was given. Challenged the abysmal marks allotted to the interview (arbitrariness).
But to make arbitrariness challenge (Article 14) you have to prove that REC Srinagar as a
‘State’. But REC was not a statutory body.

J. Bhagwati gave 6 points:

1. One thing is clear that if the entire share capital of the corporation is held by
Government it would go a long way toward indicating assistance of the state is so much as
to meet almost entire expenditure of the corporation is an instrumentality or agency of
Government.

2. Where the financial assistance of the State is so much as to meet almost entire
expenditure of the corporation, it would afford some indication of corporation being
impregnated with governmental character.

3. It may also be relevant factor whether the corporation enjoys monopoly status which is
the State conferred or State protected.

4. “Existence of deep and pervasive State control may afford an indication that the
Corporation is a State agency or instrumentality.

5. “If the functions of the corporation of public importance and closely related to
governmental functions, it would be a relevant factor in classifying as an instrumentality or
agency of Government”.

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6. Specifically, if a department of Government is transferred to a corporation, it would be a
strong factor supportive of this inference of the corporation being an instrumentality or
agency of Government. If on a consideration of these relevant factors it is found that the
corporation is an instrumentality or agency of government, it would as point out in the
International Airport Authority’s case, be an ‘authority’ and therefore, ‘State’ within the
meaning of the expression in Article 12.

There was no elaboration on how many points have to be satisfied to come under the ambit of
‘State’. In subsequent cases, judges have cherrypicked some points and made the body in
question a ‘State’.

So, in a way now statutory origin was not much important now as non-statutory bodies are
bought under the ‘State’ using Ajay Hasia. But there was still confusion and different Courts
gave different rulings applying this case.

⮚ Pradeep Kumar Biswas v. Indian Institute of Chemical Biology – 7 Judge Bench

(5:2) - LANDMARK

Majority: J. Ruma Pal – She gave one liner test. Ajay Hasia case is indicative insignia.

She combined the Ajay Hasia Case points : Whether in light of the cumulative facts
established, the body is financially, functionally or administratively, dominated or
controlled by the Government.

But this test just ignores the functional approach (Mathew approach – control didn’t
matter, function matters). It focusses much on Structural approach (categorically states that
it must be dominated or controlled by the government.)

The dissenting opinion was that they wanted only ‘Statutory body’ to be State.

⮚ ZEE Telefilms v. UOI (2005) – Extra Case

Courts in India have consistently held that sports federations do not fall within the definition
of “state” under the Constitution of India. In 2005, the Supreme Court in the case of Zee
Telefilms v. Union of India had the occasion to address a dispute when BCCI decided to
terminate a television rights contract to telecast Test matches. A five-judge bench held that
the BCCI was not a “State” under the Constitution of India. However, the Supreme Court did
observe that the BCCI carries out “state-like” functions, such as selecting the Indian cricket
team. 

The question involved was whether the Board of Cricket for Control in India was ‘State’
within the meaning of Article 12. The Board was not formed as part of the share capital held
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by the Government. It was also not created by any statute. There was practically no financial
assistance given to the Board by the Government and even then, the Board did enjoy a
monopoly status in the field of cricket. The control, if any, was only regulatory in nature as
applicable to other similar bodies. All the functions of the Board were not public functions
nor they were closely related to governmental functions. The Board was not created by the
transfer of a Government owned Corporation and was an autonomous body. The Board was
not financially, functionally or administratively dominated by or under the control of
Government so as to bring it within the expression ‘State’ in Article 12.

The judgement suffers majorly from two defects which will be dealt with in detail later in this
paper. Firstly, the court relied completely on single agency test laid down in “Pradeep
Kumar Biswas vs. Indian Institute of Chemical Biology” despite the fact that the authority in
question in this case has completely different characteristics as compared to BCCI. Secondly,
the court gave little importance to enormous authority withheld by BCCI and ignored the
public nature of its various functions. The court gave more importance to doctrinal
interpretation and failed to apply the liberal interpretation according to evolving societal
needs.

Facts: The BCCI as a society registered under the Tamil Nadu Societies Registration Act
invited tenders for the grant of exclusive television rights for four years. Many entertainment
groups including the Zee Telefilms made their offers to the Board. Pursuant to this, the
highest bid by Zee Telefilms was accepted. The competitive ESPN sports group filed writ
petition against the BCCI in Bombay High Court claiming its decision to be unfair and
discriminatory. Later, BCCI cancelled the contract with the petitioner Zee Telefilms stating
that no concluded contract had come into place.

Ruling: The majority decided in favour of BCCI as it failed to satisfy test laid down in
Pradeep Biswas, that the authority can be embodied as state if it is financially,
administratively and functionally controlled by the government and the control must be
pervasive. However, the court ruled that the writ petition could be filed under Article 226 of
the Indian Constitution. The minority opinion was given by Justice Sinha stating that due to
enormity of powers held by BCCI and public nature of its functions, it should be regarded as
part of ‘state’. This powerful dissent opened new questions left unanswered by the Supreme
Court.

The majority has been criticised as the objects under Memorandum of Association of BCCI
include the promotion and development of cricket in India. It formulates rules and regulations
covering all aspects of cricket in India under its Articles of Association. It makes laws related
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to state function under Entry 33 of Seventh schedule of Constitution of India under sports
category. It inter alia enjoys state aid by way of tax exemption, land grants and right to use
stadium at nominal annual rent. As a member of International Cricket Council [ICC], it also
represents the country in the international fora. 

● Lifting the corporate field : used in corporate thing, where you have to look who is
functioning for the company and will be liable for the acts of the company
● Lifting the jurisdictional veil : used in constitutional sense, where you have to look who
will be juridically liable for the acts done by a body.

⮚ Naresh Shridhar Mirajkar v. State of Bombay – Judicial functions are not subject to
fundamental rights but administrative functions are.

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 ● OXFORD HANDBOOK – CHAPTER 32 – Rights: Breadth, scope and applicability
- Arun Padmanabhan

The earliest decision on Article 12, that of the Madras High Court in University of Madras v
Shantha Bai (hereinafter Shantha Bai), reflected this by concluding that ‘other authorities’
would only include those exercising governmental functions, when construed ejusdem
generis.

Though Article 226 was not technically confined to ‘State’ actors, the fact that the body in
question was ‘State’ under Article 12 would foreclose challenges to the maintainability of the
writ petition.

- Structuralism, as a method of constitutional interpretation, attempts to derive

constitutional rules from the relationships and interactions between various
constitutional institutions or ‘structures. structuralism focuses on the structure of the
government and the relationship between the government and the governed
‘individuals. Structuralist modes of interpretation suffer from a major problem, this
being their failure to factor in the possibility of redundancy of the structure, with
efflux of time, to fulfil its intended objectives.
- Functionalism, in contrast, works inductively, shaping constitutional policy and
practice through the case-by-case application of independent normative values that the
law ought to promote. Functionalist judges perceive the Constitution as an evolving
document, and constantly refine established precedent to actualise preferred values.

Mathew J’s concurring opinion in Sukhdev Singh v Bhagat Ram (hereinafter Sukhdev)
sowed the seeds of functionalism in the Supreme Court’s interpretive approach to Article 12.
Previously, the Court had considered the meaning of ‘State’ in Rajasthan State Electricity
Board v Mohanlal (hereinafter RSEB), and found the Electricity Board to be within the
scope of ‘other authorities’ due to the presence of a single structural characteristic—its
creation by a statute. For Mathew J’s concurrence, Sukhdev would have ended up being a
similar exercise in narrow structuralism.

The facts here were simple. Two statutory corporations and a statutory commission had, in
accordance with powers conferred by their respective statutes, framed regulations pertaining
to removal of their employees from service. Contravening these regulations, they fired their
employees, leading to writ petitions that averred violation of fundamental rights.

The majority relied on the structural features of the three different bodies and their statutory
character, to eventually conclude on their status as ‘agencies’ of the Union government.
17
Mathew J straddled a different path to reach the same destination. He propelled the
discussion by presenting two conceptions of the State—one, a ‘coercive machinery wielding
the thunderbolt of authority’, and the other, a ‘service corporation’—and disclosed his
preference for the latter in setting the boundaries of Article 12. To him, even a body with no
financial funding from the government could qualify as ‘State’ if its functions were of high
public importance and closely related to, or allied with, those of the government. Conversely,
a body receiving financial support from the government could fall outside the purview of
‘State’ if its functions were purely private in character.

J. Matthew laid emphasis on the ‘agency or instrumentality’ character of the body in

question, thereby factoring in financial support coupled with an unusual degree of control
exercised by the government over a body’s management and policies.

Though he did not, in the ultimate analysis, rely on this doctrine to formulate the boundaries
of the ‘agency or instrumentality’ test, his conception of ‘State’ under Article 12 did extend
to even pure private bodies whose actions could be ‘fairly attributed to the State.

A more inflexible approach of narrow structuralism would, however, linger on in the

background, and the root cause for this was another decision of the same bench, issued on
the same day as Sukhdev. In Sabhajit Tewary v Union of India, the Court, in a poorly
reasoned two-page order, held that the Council of Scientific and Industrial Research (CSIR)
would not fall within the purview of ‘State’ simply because its legal form was that of a
society registered under the Societies Registration Act, and thus lacking in ‘statutory
character.

Despite Sabhajit Tewary, the wider notion of ‘agency or instrumentality’ of the State became
the judicially applicable standard to determine the ‘State’ character of a private body. In
Ramana Dayaram Shetty v International Airport Authority (hereinafter RD Shetty), 32 the
Court categorically held that ‘agencies or instrumentalities’ of the State would be amenable
to a fundamental rights-based review of their actions.

The growing inconsistency between the functionalist model, as articulated in welfare state
terms by the Court, and the economic changes that swept the nation post the early 1990s,
leading it to embrace what could arguably be branded a neo-liberal form of government,
plausibly contributed to the recoiling.

Ajay Hasia v Khalid Mujib Sehravardi (hereinafter Ajay Hasia). The Court in Ajay Hasia
introduced the juristic veil principle, thus disclosing for the first time a conceptual rationale
for the ‘agency or instrumentality’ approach. Specifically, the Court held that the juristic veil

18
of corporate personality, worn only ‘for the purpose of convenience of management and
administration’ could not be ‘allowed to obliterate the true nature of the reality.

By using juristic veil as the conceptual basis for the ‘agency or instrumentality’ framework,
Ajay Hasia replaced Mathew J’s functional approach to the meaning of ‘State’ with a
structuralist. Essentially, the Court continued to look at whether the relationship of the entity
in question with the citizen extended the government’s relationship with the latter through the
presence of government in the former’s structural setting. Laid down 6 principles (mentioned
above).

Chander Mohan Khanna v National Council for Educational Research and Training
involved another society, the National Council of Educational Research and Training
(NCERT), which enjoyed wide advisory and policy implementation powers in the field of
education. The Union government had fairly extensive supervisory authority over the
NCERT’s discharge of its functions. Various government officials were part of the Council
and its executive committee. Yet, the Court held the NCERT to be an autonomous body,
reasoning that governmental control existed merely to ensure proper utilisation of financial
grants made by the government. Had the Court applied its functionalist conception, the
contours of which have been outlined above, this was the prototypical authority to fall within
the expanded definition of ‘State.

The Court in any case soon moved to a narrow form of structuralism in Pradeep Kumar
Biswas v Indian Institute of Chemical Biology (hereinafter PK Biswas) and Zee Telefilms Ltd
v Union of India (hereinafter Zee Telefilms).

PK Biswas formally overruled Sabhajit Tewary, but more importantly, further narrowed the
‘agency or instrumentality’ test. Tracking the interpretation of ‘State’ from RSEB through
Sukhdev, Ajay Hasia, and up until Mysore Paper Mills, the Court held that a body would
qualify as ‘State’ under Article 12 where, in light of the cumulative facts, it was ‘financially,
functionally, and administratively dominated by or under the control of the Government.
Mere regulatory control over the body would not suffice.

These concerns played out in Zee Telefilms, when a writ petition under Article 32 was filed
against the Board of Control for Cricket in India (BCCI) due to a refusal on its part to deal
with a television broadcaster for the live broadcast of games organised by the Board. BCCI, a
registered society, enjoyed extensive powers in selecting cricketers to the national team
representing India in international tournaments, and a virtual monopoly in organising major
cricketing events in India.

19
The majority ruled in favour of BCCI because it did not fulfil the PK Biswas criteria, thus
making the doctrinal inquiry close-ended. Paradoxically, the majority took note of two
considerations that would typically present themselves in a functional approach, to fortify the
structurally aligned ‘functional, financial and administrative control’ test laid down in PK
Biswas. These considerations were (i) the ‘floodgates’ argument, explained above; and (ii)
the shift in socio-economic policy to usher in privatisation and the consequent distancing of
the State from the commercial realm.

Judiciary as a ‘State’ - Administrative functions and procedural rules of the Court certainly
open themselves up for challenge on the ground of fundamental rights violation, and attract
the issuance of appropriate writs to remedy the same.

Because the discharge of judicial functions, on the other hand, leads to no generally
applicable action and only decides lis inter partes, there cannot be a violation of fundamental
rights, goes the argument. This was broadly accepted by the Court in Naresh Sridhar
Mirajkar v State of Maharashtra.

20
 ● OXFORD HANDBOOK – CHAPTER 33 – Horizontal Effect - Stephen Gardboum

Rights with vertical effect apply only against the government, whereas horizontal rights also
apply against private actors.

Direct horizontal effect’ is the position within the basic dichotomy in which constitutional
rights bind private actors. Where it applies, individuals can be sued by their fellow citizens
for violating their constitutional rights.

‘indirect horizontal effect’ means that although constitutional rights do not directly regulate
and impose duties on private actors, they may nonetheless impact and indirectly regulate
them.

- By contrast, ‘weak’ indirect horizontal effect means that some or all private law is not
fully and equally subject to a bill of rights as compared with other types of
government action
⮚ DIRECT HORIZONTAL EFFECT

The Supreme Court has consistently adhered to the general position that the fundamental
rights contained in Part III of the Constitution apply only against the government and not
against private individuals.( Zoroastrian Cooperative Housing Society v District Registrar
(2005) 5 SCC 632 (‘The Fundamental Rights in Part III of the Constitution are normally
enforced against State action or action by other authorities who may come within the
provision of Article 12 of the Constitution’) This position is based on the original
understanding of the Constituent Assembly, 8 the text of the two ‘general’ or definitional
articles at the beginning of Part III, Articles 12 and 13.

At the same time, the Supreme Court has found several exceptions to this general position,
holding that the subject-less—although not expressly horizontal—provisions of Articles 17
(abolishing ‘untouchability’), 23 (prohibiting human traffic and forced labour), and 24
(prohibiting employment of children below fourteen years of age in factories, mines, or other
hazardous occupations) are ‘plainly and indubitably enforceable against everyone’.

The 2012 decision in Society for Unaided Private Schools of Rajasthan v Union of India,
upheld the constitutional validity of the Right of Children to Free and Compulsory Education
Act 2009 (RTE), which in relevant part required every school, including unaided private
schools, to admit 25 per cent of its class from children belonging to disadvantaged groups.

Dissent of Radhakrishnan J, whose argument in essence is that, as a statute, the RTE purports
to overrule two prior Supreme Court decisions holding it unconstitutional under Article 19(1)

21
(g) for the State to require unaided private schools to admit certain students, whereas only a
properly worded constitutional amendment can do so.

Somewhat less clearly, in the well-known and controversial case of Vishaka v State of
Rajasthan (hereinafter Vishaka), the Supreme Court might be understood to have held that
Articles 14, 15(1), 19(1)(g), and 21 apply horizontally in finding that they are violated by
every incident of serious sexual harassment that undermines a ‘safe working environment’
and the dignity of the victim.

In MC Mehta v State of Tamil Nadu, the Court found that the employment of children under
the age of fourteen in the matchmaking industry in Sivakasi violated Article 24, as well as
several statutory prohibitions on child labour, and ordered the offending employers to pay
compensation.

⮚ INDIRECT HORIZONTAL EFFECT:

In the context of a writ petition under Article 226 seeking damages for a fire in a cinema that
killed fifty-nine people, the Delhi High Court held that Article 21 imposes an affirmative
duty on the State to protect the lives of individuals, obliging it to properly and effectively
regulate the private property owners. By failing to protect life and provide safe premises, the
State was liable to pay compensation to the victims for its violation of their Article 21 right.

In Vishaka, it will be recalled that it is not entirely clear from the judgment whether or not the
Court held that the rights to equality, to pursue a profession, and to life/dignity applied
against private actors such as the rapists in the case or non-State employers. The Court was
far clearer about whether a violation of the victim’s rights had occurred than about who had
violated them or what precisely the violation consisted in. Author’s opinion: not that these
rights have direct horizontal effect, but rather that they impose a constitutional duty on the
State to protect individuals from sexual harassment in the workplace regardless of source.

The decision in Mohini Jain v State of Karnataka, the case that established both a right to
education as part of Article 21 and the obligation of the State to provide it, can also be seen as
a case in which Part III applies to the private law of contracts and impacts private
universities. This is because in holding that it was wholly arbitrary under Article 14 and a
violation of its duty under Article 21 for the State to permit such universities to charge a
capitation fee in consideration of admissions, the Constitution indirectly constrains their
freedom of contract to charge what the market will bear.

The 2005 decision in Zoroastrian Cooperative Housing Society v District Registrar

(hereinafter Zoroastrian Cooperative) suggests that there are wholly substantive (and not
22
only jurisdictional) limits to the impact of fundamental rights in this area of private law. In
this case, which involved private litigation concerning the buying and selling of land subject
to a restrictive covenant heard on appeal, the Court upheld the enforceability of the
Zoroastrian Cooperative Housing Society’s by-law preventing the sale of the respondent’s
land to a non-member of the Parsi religion against a claim that this violated Articles 14 and
15.

In Hariharan, the Court did bring the constitutional value of equality and non-discrimination
on the grounds of sex to bear on the interpretation of the relevant provision of private law,
finding a ‘capable’ meaning that was consistent with the right. The first is that Hariharan
concerns a ‘mandatory’ law in that the State is prescribing the compulsory terms of private
legal relationships; here, who is a minor’s guardian. The second way is to question the
reading of the Zoroastrian Cooperative decision as denying an interpretive role for
constitutional values. Although there is no real suggestion of this in the Court’s judgment, an
alternative reading of the case is that, far from holding the Constitution and its values not to
be engaged at all, the Court did take the various relevant constitutional values into account,
and that its narrow conception of public policy was the conclusion and not the premise of its
analysis.

23
 ● OXFORD HANDBOOK – CHAPTER 40 – Reservations - Vinay Sitapati

Done

24
04-01-2021

ARTICLE 13
● 13(1) – Pre-Constitutional Rights

“All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the
extent of such inconsistency, be void”.

As, the State has been made, all the inconsistent laws would be void.

● 13 (2) – Post-Constitutional Rights

“The State shall not make any law which takes away or abridges the rights conferred by this
Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void”

Now, it is expected from the State to not make any uncertain laws, or else it would be void.
(void from day 1)

⮚ State of Bombay v. Keshavan Madhavan Menon (1931)

Law by British govt to gag freedom of speech and expression. Menon was arrested for
violating this law. This law kept enforced even after independence. Menon was again arrested
in 1949 by the Indian Government. 1950 Constitution comes into force. Menon moves to
court (violation of art 19(1)).

Court struck down the law for violating article 19. But the Court didn’t bail him OUT OF
THE jail as ‘the law was violated prior to the commencement of constitution’ [NO VOID AB
INITIO – VOID FROM THIS MOMENT – No prospective overruling].

● Doctrine of Eclipse

The Doctrine of Eclipse is a doctrinal principle that advocates the concept of fundamental

rights being prospective. If any law made by the Legislature is inconsistent with Part III of
the Constitution, then that law is invalid and inoperative to the extent of it being
overshadowed by the Fundamental Rights.

During eclipse, for a brief period of time you cannot see moon/sun as it is not there. So e.g.:
s.307 IPC, SC feels it violates FR, which means it is ultra vires. So, this means that 307 had
been in contravention with FR since 26 Jan, 1950. (let’s say the judgement was in 1970), so
the time from when the court says the law is in violation of FR, this means that from 1950 till

25
the time of ruling, the law is there in the statue but is not applicable (Court cannot quash the
law as it is a parliamentary exercise).

Eclipse does not require reacting the law. For the temporary period it was there you cannot
see it (geographical application). Eclipse only operates when you make the law
unconstitutional.

On post-constitutional law eclipse applies or not is upon the court (on pre-constitutional it
always applies).

● Bhikaji Narain Dhakras v. State of MP (1950s)

Pre-constitutional laws related to motor transport laws – nationalisation of motor transport

(monopoly) – No private bus routes. Argument: Article 19 (1)(g) freedom of trade – allow me
to run bus services – monopoly was unconstitutional – MVA.

Meanwhile, 19 (6)(2) was added (1951) – restrictions on trade including creation of state
monopoly. So, when this amendment came.

Argument from Bhikaji : the day this law was found to be in contravention to the FR, this law
must be non-existent from 26 Jan, 1950. This law goes off. So, this law is dead. If you have
to nationalise motor services you have to re-enact the law. That law was dead on 26 Jan,
1950 (as it was pre-constitutional). He is not bound by the MVA, 1947 as it died on 26 Jan,
1950.

Court (J. SR Das): In order to decide this, they used doctrine of eclipse. It was
unconstitutional Jan 26, 1950 but this means that MVA, 1947 was not dead but only,
INEFFECTIVE, you could not use it from 1950 – 51 (when the amendment came). So,
when amendment came, eclipsed was removed. So, before 1951 it was there in the book but
you could not use it. But it was revived and was enforced.

Although the court did not elucidate on the law if it would have been post-constitutional.

● J. Subba Rao (In later case – Deep Chand v. St of UP)– said that eclipse doctrine can
only be used in pre-constitution law as they cannot be void ab initio as FR came into
existence in 1950. Only after you get FR, you can you eclipse and all. In 13 (2), State
shall not make any law in contravention [...].

● State of Gujarat v. Shri Ambika Mills (1976)

J. Mathews : Twist to the concept. – Law challenged violating 19(1)(f) – property (Post-
constitutional law). Law struck down (dead). However, J. Mathew posed a question Whether
26
this law is void in its entirety or relatively void? Look at art. 19, this is available to all
citizens.

A non-citizen doesn’t have art. 19 right. So, if this law is dead, it is void to citizens, but is it
also void vis a vis to the non-citizens also. So, therefore, it is relatively void.

For some scholars it is eclipse in a different kind. But for Mathews it remains a new concept.

Deletion is not a judicial task.

● Doctrine of Waiver

Whether you can waive your FR – I don’t want FR – I don’t need FR and FR should not
apply to me.

In the American Context, there is substantial jurisprudence which allows waiver to some
limited extent. According to American context, “Rights are of two kinds : rights for benefits
at large and Personal benefits rights. The latter can be waived by the individual. (e.g.: right
against indiscrimination)”.

In India, will the waiver right work? In Behram Khurshid Passikaka v. State of Bombay
(1955) J. VR Iyer discussed the applicability of waiver in Indian context. He followed the
American line of thinking. Rights in persona could be waived. As this case didn’t deal
directly with waiver, no substantial ruling on waiver.

● Basheshwar Nath v CIT - 1959

Case focusing on waivers.

Law which allowed a tax defaulter to settle his defaults by having negotiations with the govt.
BN entered into a settlement ad paid the amount in instalment’s. The section on which the
settlement was made was argued as unconstitutional as the govt discriminated between
different defaulter. This section was held unconstitutional for violating article 14. BN
stopped paying the instalments to the government.

CIT argued that by entering into the negotiation and started paying the instalment, BN has
waived his rights under article 14. When BN entered into the transaction, he knew that he is
being treated differently and not in accordance to article 14. The then Attorney-General (MC
Setalvad) took the plea that Mr. Nath had not challenged the validity of the statute and
voluntarily entered into a settlement whereby he had waived his right to take advantage of the
invalidity of the statute. Although the law was struck down in 1954, Mr. Nath continued to
make payments up to September, 1957.
27
Court (5 Judges): J. SR das and J. Kapoor: You cannot waive article 14, but they did not
comment on other FRs.

J. NH Bhagwati and J. Subba Rao : You can’t waive ANY FR, if you allow then exploitation
will happen in India. It’s an alien concept.

DISSENT J. SK Das: Agreed to the American doctrine. Rights in persona can be waived
but not the rights which are for the community at large.

● Arvind Datar Article

https://www.barandbench.com/columns/can-fundamental-right-waived-arvind-datar

In the recent nine-judge decision of the Supreme Court on the right to privacy, one argument
raised was that if the right to privacy was held to be a fundamental right, it could not be
waived. Such a finding would have unfortunate consequences, it was urged.

The decision in Basheshar Nath has been cited and followed in a number of  High Court
cases thereafter. In all these judgments, there is no examination as to why a person cannot
waive his fundamental rights. Hardly any case has examined the principle of waiver, estoppel
and acquiescence in detail and given a logical reason as to why a waiver is not permissible.

For example, a service rule which discriminates in matters of promotion may not be
challenged by an employee who may choose to resign his present job and take up another
employment. If waiver is not permissible, it will follow that he is under an obligation to
necessarily challenge the offending provision. If a right cannot be waived, then the logical
consequence is that necessary action must be taken for its enforcement.

Arvind Dattar’s view on Nath Case : Therefore, if a person had chosen to pay the instalments
but subsequently stopped paying, there is no question of any waiver of his fundamental
rights. The plea of acquiescence would also not arise to a statute which had been declared
as ultra vires  Article 14 or any other right in Part III. On such a declaration, the statute
becomes void  and any demand made thereafter was also not valid. In fact, it was the fault of
the Department which continued to collect instalments under an unconstitutional provision
and, indeed, Mr. Nath may be entitled for a refund.

Therefore, it is submitted that it is incorrect to state as a legal proposition that fundamental

rights cannot be waived. The right to file a petition to enforce the fundamental right includes
a right not to do so. In Excel Wear v Union of India, the Supreme Court held that the
fundamental right to carry on business under Article 19(1)(g) includes the right not to carry
on business. Similar examples can be given with regard to other rights.

28
In fine, the correct principle is that it will not be open to the State or to a defendant or
respondent to contend that a person is not entitled to enforce his fundamental right because
he has waived it. The nine-judge bench has recognized that the right to privacy includes
“decisional autonomy”. 

The decision in Basheshar Nath is yet another judgment that deserves to be overruled
even though it is almost 60 years old.

● Vikram Raghavan Article

https://lawandotherthings.com/2017/09/can-fundamental-rights-be-waived/

Datar believes that the Basheshwar Nath principle is plainly wrong. He faults the Court for
not adequately explaining its legal or constitutional basis. Advancing several hypotheticals,
Datar suggests that when a citizen chooses not to enforce or exercise a right, that right may
have been presumptively waived.

Vikram’s View:  It is true that citizens may expressly chose not to enforce or vindicate a
fundamental right when presented with the opportunity to do so. Yet, it would be extreme to
argue the citizens waive  their fundamental rights by deciding not to do anything about
them.  Moreover, the consequences of a waiver could possibly affect other citizens whose
rights were not subject to the waiver.

The better explanation for a citizen’s failure to exercise a right is that the citizen may have
simply forborne from exercising the relevant right. At any time, a citizen is free to end
forbearance and proceed to exercise or enforce the right. Of course, this will be neither easy
nor efficient. It may depend on a number of factors including applicable limitation and
laches rules. The end of forbearance could also lead to claims from third-parties based on
estoppel, detrimental reliance,   or legitimate expectations.

● ‘LAW’ under Article 13(1)

Whether Personal Laws are under the ambit of ‘law’ under Art. 13?

There are some personal laws which have been given statutory recognition – these laws are
not in question – for e.g., Triple talaq act made changes to some act of 1917 – So, it had a
statutory linkage.

This debate only refers to only those personal laws which does not have statutory backing.

⮚ State of Bombay v Narasu Appa Mali – Bombay HC - 1951

29
Bombay Prevention of Bigamous Hindu Marriages Act, 1946 – this law was challenged –
This law prevents only Hindu bigamous marriages but not about the Muslims bigamous
marriages (This is a pre-constitutional law) – This is discriminatory.

J. M.C. Chagla & J. Gajendra Gadkar : They held the law to be valid.

More importantly, the petitioner wanted this law to be unconstitutional. But the judges sought
to answer Whether we can intervene on bigamous Muslim marriages (can we step into the
Shariat Law and scrutinise its terms in on the lines of art. 13 – Fundamental Rights
Scrutiny).

The Judges held that NO, we cannot bring the personal laws under the ambit of FR
scrutiny.

1. The court looked GOI Act, Art. 112 (customs & personal laws). The Bombay HC says that
there was a distinction made b/w customs and personal laws, to treat them differently. You
cannot make personal laws subset of customs.

2. There are for say a protection of untouchability (17) and then if you make personal laws
liable for FR scrutiny, so why would you had art. 17 as in any case it would have been under
14, 15 but its not. Therefore, personal laws in general are outside the purview of FR scrutiny.

Gautam Bhatia : 17 is just due to abundant caution and nothing else and this case is horribly
incorrect. It does not imply that personal laws are outside FR scrutiny.

● https://ilg2.org/2018/10/03/a-transformative-approach-to-personal-laws/

In the Sabarimala judgement, Justice Chandrachud observed that the rationale used by the
Bombay High Court in Narasu Appa Mali v State of Bombay, which held that personal laws
should not be subject to fundamental rights, is not sustainable. Chandrachud, however, only
overrules Narasu on the point that customs are not subject to fundamental rights.

Narasu Appa Mali v State of Bombay - The petition in Narasu challenged validity of the
Bombay Prevention of Bigamous Hindu Marriages Act, 1946 which sought to render
bigamous marriages void as well as criminalize the offence of bigamy.  What the Court
ultimately ended up deciding was the question of whether coming into force of constitution,
Muslim polygamy is void because it violates Art. 15.

As Bhatia argues, Article 17 could have just been incorporated by way of abundant caution.
The corrosive and pervasive nature of caste discrimination could have made the framers
include a specific article prohibiting untouchability as an extra measure to leave nothing to
chance.  Moreover, the scope of Article 25 is way broader than personal laws. 
30
 ● http://indiatogether.org/combatlaw/vol3/issue4/flipflop.htm#:~:text=%2213.,of%20such
%20inconsistency%2C%20be%20void.

Any law in force at the time of coming into force of the Constitution of India or enacted after
that which is in conflict with the chapter on fundamental rights will be void to that extent.

The following decisions held that personal laws cannot be so challenged:

(a) Krishna Singh v. Mathura Ahir (AIR 1980 SC 707)

(b) Maharshi Avdhesh v. Union of India (1994 Supp (1) SCC 713)
(c) Ahmedabad Women Action Group & Ors. v. Union of India (1997 3 SCC 573)

However, a three-Judge Bench of the Supreme Court in the case of Masilamani Mudaliar v.
Idol of Sri Swaminathaswami Thirukoil (1996 8 SCC 525) has taken a contrary view and has
held that personal laws to the extent that they are in violation of the fundamental rights are
void.

Daniel Latifi v. Union of India (2001 7 SCC 740). A Constitutional Bench in this Court gave
a categorical finding that in view of their interpretation of the Muslim Women (Protection of
Rights on Divorce) Act, 1986 the provisions of this Act were not in violation of Articles 14 &
21 of the Constitution.

In the case of Narasu Appa Mali. In this case, the Bombay High Court held that personal
laws are not susceptible to the Chapter on fundamental rights for the following reasons:

- Personal laws are not 'laws' under Articles 13 and 372 of the Constitution
- Personal laws are not 'laws in force' under Articles 13 and 372 of the Constitution

● 19_Clearing the Decks for the Uniform Civil Code An Evolutionary Analysis of the
Supreme Courts Engagement with Religious Freedoms.pdf – Shameek Sen

Moreover, long-standing precedents like State of Bombay v. Narasu Appa Mali 3 and Sri
Krishna Singh v. Mathura Ahir 4 which have been instrumental in keeping personal laws
outside the ambit of the expression ‘laws’ in article 13(3) and thus ensured that they are not
amenable to fundamental rights review, can also be looked at one of the reasons as to the
reluctance to enact a UCC which would naturally have implications on a community’s
personal laws.

Professor Mahendra Pal Singh, taking note of the need to protect the pluralistic traditions,
observes that the UCC should not be considered to be one of the foremost constitutional
goals, and that if it should be achieved at all, such achievement should be consistent with the
fundamental duty enshrined in article 51A(e), which speaks about the need “to promote
31
harmony and the spirit of common brotherhood amongst all the people of India transcending
religious, linguistic and regional or sectional diversities.

ERP -ESSENTIAL RELIGIOUS PRACTICES [covered later under Article 25/26

discussion]

The court did not confine the recognition of such protection to the doctrines or beliefs of the
community alone, but extended it to cover ‘rituals, observances, ceremonies and modes of
worship.

Gajendragadkar J continued his tirade towards narrowing down the scope of the ERP doctrine
in Tikayat Shri Govindlalji Maharaj v. State of Rajasthan.19 In this case, the court relied on
historical antecedents to hold that the Nathdwara Temple Act, 1959 was constitutionally
valid. In doing so, the court made an emphatic articulation on the state’s regulatory ambit
over matters of religion. It gave a three-prong test to examine the ambit of such regulation:
first, whether the practice in question is religious in character; second, if the first answer is in
the affirmative, whether it can be recognised as an integral or essential part of religion; and
third, whether there is substantial evidence adduced before the court as to the conscience of
the community and the tenets of the religion.20

Sri Venkataramana Devuru v. State of Mysore. 30 In this case, the Supreme Court explores
the relationship between articles 25 and 26, and holds that the two provisions need to be
harmoniously interpreted. Thus, the court makes it very clear that the right of ‘all sections of
Hindus’ to entering a temple ‘of a public character’, as enshrined by article 25(2)(b) of the
Constitution cannot be considered subservient to the right of a denomination to ‘manage its
own religious affairs’, as provided for in article 26(b) of the Constitution.

D.Y. Chandrachud J., on the other hand, is a lot more direct in his approach towards this issue
in the Sabarimala judgement.50 In a clear assertion of constitutional supremacy over
religious normativity, he opines:

Custom, usages and personal law have a significant impact on the civil status of individuals.
Those activities that are inherently connected with the civil status of individuals cannot be
granted constitutional immunity merely because they may have some associational features
which have a religious nature. To immunize them from constitutional scrutiny, is to deny the
primacy of the Constitution.

Unmistakably, one conclusion emerges out of the catena of cases dealing with the issue –
with the passage of time, the courts have attached more and more importance to matters of

32
non-discrimination and civil liberties over pedantic religious practices and a perceived sense
of denominational autonomy.

● For the personal laws debate, read the above three articles – Shameek Sir is just
explaining them only.

33
 ARTICLE 14 – RIGHT TO EQUALITY
“The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India.”

“Right to equality does not means that everybody must be treated equally”

Preferential classification can be made but that classification should be reasonable.

● There are two qualifiers for reasonable classification.

- Intelligible Differentia

For e.g.: Tax slabs: There must be some basis on which classification is made (perceptible
basis).
- Rational nexus with the object

For instance, Tax Slabs : you’re classifying because people not earning much needs to save
more and people earning high can afford to pay tax.

If the above two things are satisfied, then, they are reasonable classification.

● Alongwith the aforementioned tests, there is one more classification : Presumption of

Constitutionality

Some degree of assumption lies with the States that they are operating constitutionally while
making classification. The petitioner has to prove that there is un-constitutionality in the
classification so made.

● State of WB v. Anwar Ali Sarkar & Kathi Raning Rawat v. State of Saurashtra (1952)

Both the cases heard in special courts. Almost similar facts. WB Special Act, 1950 –
classifies certain cases, classes of cases, offences, or classes of offences, to pick up any case
and refer to special bench.

Anwar Ali case in special court. He challenged. The two classifications were laid in these
cases.

Reasoning: On what basis was only these cases (45 cases) were picked up. If speedy justice is
the criteria then what was the basis on which only these cases were taken. No justifiable basis
for this. Law struck down.

In the latter case, same type of law, but in the preamble of the law, the State gave a
justification as to the application of the law. The court was satisfied by State’s reasoning and
therefore the Law survived.
34
In Re  The Special Courts Bill, 1978, the question referred to the supreme court under Article
143 for its advisory opinion was whether the Special Court’s bill, 1978 proposing to set up
Special Courts for the speedy trial of offences committed by the holders of high public
offices during the emergency of 1975-1977 is Constitutionally valid. The Supreme Court held
that Parliament had legislative competence to enact the law under Entries II-A of list III and
Entry 77 of List I. It also ruled that the classification made by the Bill was valid and it did not
infringe Article 14 as it classified both “offenses” and class of offenders, the former
concerning the period, and concerning the objective that it was imperative to decide such
cases speedily and the latter concerning their status i.e., holders of high public offices. It was
only when both these conditions existed the prosecution could be instituted in the Special
Courts. The Court held that the offenses alleged to have been committed during the period of
emergency constitute a class by themselves and so do the persons who have utilized the high
public offices by them as a cover or opportunity to commit those “offences. Thus, there was a
close relationship between the basis of classification and the object of (speedier trial) of the
Bill.

The recital of the 6th paragraph of the preamble shows the true nexus between the basis of
classification under Clause 4(1) and the object of the Bill. 

● Dipak Sibal v. Punjab University (1989)

Dipak wanted to study in Punjab Uni, but in the university, the evening classes were only for
state employees. Rule challenged.

There might be intelligible differentia but what is the Rational Nexus here? The govt. said
that the govt. people work in day and can’t study in day. But that holds true for any
employee. Court Struck this law.

● DS Nakara v UOI (1982)

Law : everyone retiring from a particular day will get some amount of new pension scheme.
What is the differentia in pensioners?

Court: How can you make categorisation on basis of retirement date? No substantial ground.
Struck Down

● Sukumar Mukherjee v. State of WB (1993)

Sukumar challenged a statute which differentiated between the doctors of the WB Health
Service (WBHS – State doctors) and WB Health Education Service (WBES – Prof of med
college). WBHS Doctors are allowed to carry out private practice but not the WBES doctors
35
who have full time employment are not allowed to carry private practice although contractual
teachers can do.

Court: There is an intelligible differentia. But what is the rational nexus? State said that they
want those teachers to spend their time in research for advancement of med. Petitioner said
this is not fair and a cosmetic distinction. Court found both the criteria to be satisfied and the
law survived.

● Chiranjit Lal Choudhary v. UOI (1951)

Facts: About a law in order to take over the management of Sholapur management company.
Single entity-oriented law. What was making Sholapur cotton company distinct from
everyone else? (It was the largest cotton producing mill that time)

The Court said that even single entity-oriented law can be held to be justified if that entity
forms a class in itself. So, this company is unique in itself due to its presence in the cotton
industry. Therefore, the law is justified.

● Ameerunnissa Begum v Mahboob Begum (1952)

Contrary to Chiranjit lal Choudhury

Both were the widows of Nizam of Hyderabad. Property dispute over Nizam’s property.
Hyderabad passed a specific law to deal with this particular Nizam’s property.

Two line of reasoning could be taken : (i) No need to pass law on specific property, it’s a
general property; (ii) The property forms a class in itself as it is Nizam’s property that is huge
and will affect many people.

Court said NO, although the property is huge but doesn’t form a class in itself and could be
solved through normal Muslim succession rule.

Whether an entity forms class in itself or not is subject to Judicial subjectivity.

● Air India v. Nargesh Mirza (1981) - IMP

NOTE: This case is not a good law anymore (new law Navtej Singh Johar) – part of this case
has been decided on equality arbitrariness. This case shows how NOT to approach equality.

Facts: Air India service rules: (i) Reg. 46, makes a distinction between Airhostesses’ (AH -
Female) and Air Flight Pursers (AFP -Male). AFP retirement 58 yrs. AH retirement 35 yrs.,
or if they get married within 4 yrs. of joining or if they get pregnant. (ii) Reg. 47, MD have
discretion to give extension to the regular retiring limit.

36
Rule challenged first before the service tribunal : Tribunal observed that “it is important to
have young and attractive AH to deal with temperamental passengers”. There should be
reasonable classification between men and women. (HTF this is ‘reasonable’)

Challenged before the SC (3-judge, J. Fazal Ali; J. Varadarajan; J. Sen) : The SC held that
“Art. 14 forbids hostile discrimination but not reasonable classification. Thus, where persons
belonging to a particular class in view of their special attributes, qualities, mode of
recruitment and the like, are differently treated in public interest to advance and boost
members belonging to backward classes, such a classification would not amount to
discrimination.”

(What is special attribute that the court is referring to? it’s not in your capacity to be a men or
women, how are they making distinction in class?) The Court said that they form different
cadres on the basis of promotion and retirement age. (lol, the criteria that the court is
backing upon is being challenged. How can you back your claim on something which is an
issue in the case?)

If you can prove that a rule is arbitrary you can challenge it on basis of art. 14. The court said
equals should be treated as equals, and they are not equals. Further, on arbitrariness, the court
ruled that “the court do not think the 4 yrs. criteria violate any constitutional provision. It
helps boost family planning programme (ROFL). ” The court told when they have to get
married, when to conceive and how to have a good family (LOL).

Pregnancy criteria for retirement : The Court said that losing job after first pregnancy is cruel
act and insult to Indian womanhood. Fali Nariman (representing Air India) said to make it
‘third pregnancy’. The court agreed (LMAO WTF). The Court then again give family
planning justification.

More on : https://indconlawphil.wordpress.com/2015/08/12/sex-discrimination-and-the-constitution-
vi-the-discontents-of-air-india-v-nargesh-mirza/ - Gautam Bhatia

37
 EQUALITY: LEGISLATIVE REVIEW UNDER ARTICLE 14 – TARUNABH KHAITAN – CH 39

There are two doctrines that have evolved to test the constitutionality of a measure when
faced with an Article 14 challenge: the ‘classification test’ or the ‘old doctrine’ (which I have
labelled ‘unreasonable comparison’) and the ‘arbitrariness test’ or the ‘new doctrine’
(labelled ‘noncomparative unreasonableness’).

(i) Traditional Narrative: (i) whether the classification made by the law in question was based
on an intelligible differentia; and (ii) whether the classification had a reasonable nexus with
the object the law sought to achieve. The conception of equality that informs the
classification doctrine may be weak, formalistic, and misguided, but it is a principle of
equality. This doctrine is highly deferential in the sense that the Court gives a lot of weight to
the State’s claim about what the facts are, how they ought to be evaluated, and whether they
breach certain norms. To give one extreme, but not entirely atypical, example, in Air India,
the Court found a government declaration to the effect that different wages for air hostesses
and assistant flight pursers was not based on sex as ‘presumptive proof’, which ‘completely
conclude[d] the matter. The doctrine is formalistic because these two questions are largely
content with the prima facie formulation of the rule, and ignore its real-world impact on
persons and groups.

To give an example, let us imagine a rule which says that ‘A contract of employment shall
stand terminated if the employee becomes pregnant.’ 23 First, the right to equality is clearly
engaged because of the differential comparative treatment of the two classes. The differentia
created by this rule is between those employees who become pregnant and those who don’t
(or can’t). Its objective is not evident from the rule itself, but let us assume that the admitted
objective is to avoid the expense and inconvenience involved in organising replacement cover
for the pregnant employee for the period that she needs to go on maternity leave. Finally, the
immediate and direct impact of the rule is that the employment of pregnant employees is
terminated. This, however, only presents a relatively superficial analysis of the classificatory
rule. For each of these elements of the rule, further questions may be asked:

1. Right: is the right to equality engaged?

2. Differentia: what classes does the rule create?

3. Objective: what end does it seek to achieve?

4. Impact: what consequences does it subject each of these classes to?

38
In our pregnancy example, the rule makes a direct classification on the basis of pregnancy.
But it also makes an indirect classification based on sex, since it is only women who can
become pregnant and will therefore be disproportionately affected by the rule

Sastri CJ’s judgment in Anwar Ali Sarkar, where he held that if the law is ‘designed’ to be
administered in a discriminatory way, or is actually ‘administered’ (rather than merely
‘applied’ once in a while) in a discriminatory way, it will be caught by Article 14, which does
not allow ‘colourable legislative expedient.

(ii) Non-comparative unreasonableness : In a much-quoted paragraph in EP Royappa v State

of Tamil Nadu (1974) 4 SCC 3. (which incidentally concerned executive action and could
have been treated as a matter of administrative law), Bhagwati J famously railed against the
classification doctrine and ‘emancipated’ the principle of equality from its confinement by
holding that mere ‘arbitrariness’ will suffice to constitute a violation of Article 14.

In Javed v State of Haryana (2003) 8 SCC 369, a law disqualified anyone with more than two
living children from holding any office in local government. 53 One of the arguments mooted
before the Court was that the legislative choice of basing the disqualification on two (rather
than one or three, for example) children made it arbitrary. This is a classic example of a rule
that is conceptually arbitrary, but not unreasonable (on the ground that the disqualification
proceeded on having two rather than three children—the law may well be unreasonable on
other grounds, such as excessive intrusion on privacy). The Court held the legislative choice
of two children was not arbitrary.

Seervai best articulated this criticism by suggesting that ‘The new doctrine hangs in the air,
because it propounds a theory of equality without reference to the language of Art. 14.

After all, Pal J did publicly acknowledge that rights like the right to equality were ‘empty
vessels’ into which ‘each generation pours its content by judicial interpretation. (Ruma Pal,
‘Judicial Oversight or Overreach’ (2008) 7 SCC J 9, J16.)

However, in Malpe Vishwanath (Malpe Vishwanath Acharya v State of Maharashtra (1998)

2 SCC 1 [16]–[17]), another three-judge bench held that a statutory provision had become
arbitrary (unreasonable) due to changed circumstances with the passage of time since its
enactment. 79 The third case in our quintet is Mardia Chemicals (Mardia Chemicals v Union
of India (2004) 4 SCC 311). Here, yet another three- judge bench struck down a statutory
provision as unreason- able. 80 None of these cases involved any classification.

39
Thus, the Court suggests that there are only two grounds to challenge legislation (or, at least
legislation that has been enacted by the traditional legislative process). These grounds are
unreasonable classification and excessive delegation (Air India).

● State of UP v. Pradip Tandon (1974)

Law giving reservation was given to the backward areas adjoining border areas of UP-Nepal
hilly areas (including Uttarakhand) and rural areas. Because of their geographically location
and backwardness, rural areas were given reservation. This was challenged in the SC.

Court: Agreed to provide reservation in hilly areas. Their geographical areas require
reservation to bring them at par with other people. But the SC had problem of reservation to
rural areas. Villages are not homogeneously backward. The all need not be ‘socially’ and
‘educationally’ (15(4)). Some people might be rich, educationally advanced or upper caste, so
you cannot give reservation to all. So, no reservation for rural areas but can be given to hilly
areas (due to their geographical backwardness).

● NEW EQUALITY APPROACH

- EP Royappa v State of Tamil Nadu (1974)

Some routine administrative transfer of Royappa as OSD. He objected the transfer as this was
an ad-hoc post (earlier he was additional CS of TN Assembly). The challenge was an
administrative challenge under service rule for non-application of mind while transferring
(writ petition). He in last added a point of Article 14 (He was treated differently from his
colleagues).

Court (5-judge Unanimous) – On the question of Article 14, 2 Judges (Ray J., Pallikar J.)
said that OSD position is not inferior to the post of CS. 3 Judges (Bhagwati J., Chandrachud
J., Krishna Iyer J.) said that the petitioner has not been able prove that OSD post is inferior to
CS. Bhagwati J. - A mere non-application of mind is not enough to show that you have been
discriminated against.

The following passage said to give birth to New Equality approach (widely quoted by
subsequent courts)

“Equality is a dynamic concept with many aspects and dimensions and it cannot be
‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From a
positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and
arbitrariness are sworn enemies… Where an act is arbitrary it is implicit in it that it is

40
unequal both according to political logic and constitutional law and is therefore violative
of Article 14…”

● REC Srinagar

Weightage to be given to admission and interview while admission. The interview part was
arbitrary. This was challenged.

Bhagwati said the interview can have a weightage of 15% but not more. How he arrived at
15% might also be arbitrary. So, the govt. arbitrariness is now Courts arbitrariness. He could
have compared but did not.

This is non-comparative arbitrariness.

● State of AP v. McDowell’s (1996)

Whether you can scrutinise legislation on arbitrariness test? Rohinton F. Nariman (lawyer)
argued that legislations should be subject to arbitrariness test. The Court did not accept the
argument and said no the Court cannot subject the legislation to arbitrariness’ test because,
we don’t have substantive due process and although it would have been in relation to article
21 but article 14 is outside the due process scope.

This ratio was followed in various subsequent judgements. Like in Rajbala v. State of
Haryana (2015), Chelameshwar J. also upheld Mcdowell’s

● Shayara Bano v. UOI (2017)

J. Rohinton Nariman (Judge) - The Court struck the law on grounds of ‘Manifest
Arbitrariness’. “A provision of law would be manifestly arbitrary if it lacked a clear
determinative principle or encapsulated a capricious or irrational measure”. The court
decide irrationality. McDowell’s was wrongly decided. Nariman J. cited Ajay Hasia and
ruled: “It is merely a judicial formula for determining whether the legislative or executive
action in question is arbitrary and therefore constituting denial of
equality………….Wherever therefore there is arbitrariness in State action whether it be of
the legislature or of the executive or of an “authority” under Article 12, Article 14
immediately springs into action and strikes down such State action. In fact, the concept of
reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a
golden thread which runs through the whole of the fabric of the Constitution.”

41
Shayara Bano overturned McDowell’s and the concept of manifest arbitration was
strengthened. So, court now look at things which need not be horrendously irrational but even
at laws which are ordinarily arbitrary.

Shayara Bano was divorced by her husband through the Shariat practice of talaq-e-biddat
(triple talaq). She challenged the practice of talaq-e-biddat in the Supreme Court for violating
Article 14, 15, 21 and 25 of the constitution.

● MANIFEST ARBITRARINESS CONSIDERING NAVTEJ JOHAR AND

JOSEPH SHINE [Ch 42 Handbook]

⮚ Navtej Johar v. Union of India (2018)

Background:

Naz Foundation v. Govt. of Delhi (J. AP Shah, J. Murlidhar) - 2009 - constitutional morality
different from public morality, decriminalised section 377 IPC. Court went by the standard
by the former concept. If the majority section decides what is right or what is wrong, it is
problematic. Therefore, part of 377 was read down and decriminalised.

NUJS Law Review special issue after Naz and widely cited by SC in Navtej Johar.

Suresh Kaushal v. Naz Foundation (J. Singhvi, J. Mukhopadhyaya) – 2013 – Re-criminalised

section 377 – 150 yr. old law there was some sense implementing (we don’t know what sense
since no discussion on homosexuality) – we cannot remove legislature wisdom with courts.
(It should be decided by parliament). Question was further referred to 5-judge bench.

NAVTEJ JOHAR V. UOI (2018) – Landmark

- The concept of “Unnatural” under 377 I.P.C

J. Mishra – A person biological orientation is natural (whatever it may be)

J. Chandrachud – the whole concept of ‘natural’ is majoritarian bias and what currently is
‘natural’ is decided by majority. What is natural may not always be desirable (e.g., death),
what is unnatural may not be criminal (e.g., heart transplant). Therefore, the ‘unnatural’ word
is problematic.

- Constitutional Morality

42
Majority of people may be heterosexuals; therefore, the public morality is that he/she retains
his/her sexual orientation. The concept of popular comes from the social construct. But this
popular morality is different from constitutional morality, which may not be always in
consonance with public morality.

- Miniscule minority

Does not matter, even if it concerns a single person rights and existence, it has to be taken
seriously.

- Reasonable classification and manifest arbitrariness

J. Mishra - Two prongs (intelligible differentia and rational nexus). J. Mishra said that the
latter was not there. The object mentioned in Suresh Kaushal was ‘to protect women and
children’, but how was this achieved, no rational nexus, therefore violated Article 14.

J. Chandrachud – There was no intelligible differentia. No premise to distinguish ‘unnatural’

and ‘natural’ is flawed.

J. Indu Malhotra - You cannot make distinction on the basis on which the person does not
have self-control (intrinsic trait – very core). It cannot be a basis of intelligible differentia.

Manifest Arbitrariness: Read this https://indconlawphil.wordpress.com/2018/09/09/guest-post-

navtej-johar-v-union-of-india-key-highlights/ - Dr. Abhinav Chandrachud

● Manifest Arbitrariness:

All the judges found that Section 377 was manifestly arbitrary [Mishra CJ, paragraph 239,
Nariman J, paragraph 82; Chandrachud J, paragraph 29; Malhotra J, paragraph 14.9]. The
following were among the reasons given by the court in support of this conclusion: (i)
Section 377 does not distinguish between consensual and non-consensual sexual intercourse
among competent adults; (ii) it fails to recognize that such sexual intercourse is not harmful
to society; (iii) it inflicts a stigma on members of the LGBTQIA+ community; (iv) modern
psychiatric studies have shown that members of the LGBTQIA+ community are not persons
suffering from mental disorders; (v) Section 377 inflicts life imprisonment, which is
disproportionate; (vi) it is rooted in the belief that the sole aim of sexual intercourse is
procreation; (vi) it discriminates on the basis of sexual orientation, over which a person has
“little or no choice”; (vii) the phrase “carnal intercourse against the order of nature” is too
open ended and vague to be in a penal provision; (viii) after the 2013 amendment to the IPC,
some consensual sexual acts between heterosexual adults would no longer be considered rape

43
under Section 375, though they would still fall foul of Section 377 [Misra CJ, paragraph 220;
Nariman J, paragraph 94; Chandrachud J, paragraph 31 (at pp. 39-41)].

⮚ Joseph Shine v. Union of India (2018)

CJI Mishra, J. Khanwilkar, J. Nariman, J. Chandrachud, J. Malhotra.

In October 2017, Joseph Shine, a non-resident Keralite, filed public interest litigation under
Article 32 of the Constitution. The petition challenged the constitutionality of the offence of
adultery under Section 497 of the IPC read with Section 198(2) of the CrPC.

Section 497 – only applies to men and not women. ‘Consent’. Based on the concept that
women are considered as a ‘property’. Therefore, property = no consent.

Yusuf Abdul Azeez v. State of Bombay (1954) – Section 497 was upheld on the basis that it
protects women (protects under 15(3)).

Joseph Shine, the Judges build up on their Navtej Johar justifications.

J. Chandrachud – “Justness postulates equality. In consonance with constitutional morality,

substantive equality is “directed at eliminating individual, institutional and systemic
discrimination against disadvantaged groups which effectively undermines their full and
equal social, economic, political and cultural participation in society.” To move away from a
formalistic notion of equality which disregards social realities, the Court must take into
account the impact of the rule or provision in the lives of citizens. The primary enquiry to be
undertaken by the Court towards the realisation of substantive equality is to determine
whether the provision contributes to the subordination of a disadvantaged group of
individuals”.

44
 ● OXFORD HANDBOOK – CH 41 - GENDER EQUALITY – RATNA KAPOOR

Equality rights are formally guaranteed in Articles 14, 15, and 16 of the Indian Constitution. I
briefly discuss two different approaches to equality through which the constitutional
guarantees can be understood: a formal approach to equality, and a substantive approach to
equality.

In the formal approach, equality is seen to require equal treatment—all those who are the
same must be treated the same. It is based on treating likes alike. The constitutional
expression of this approach to equality in American and subsequently Indian equal protection
doctrine is in terms of the similarly situated test—that is, the requirement that ‘those [who
are] similarly situated be treated similarly. Indian constitutional law has been
overwhelmingly informed by a formal approach to equality. According to the Supreme Court,
the classification must meet two conditions in order to be found reasonable: (i) … the
classification must be founded on an intelligible differentiation which distinguishes persons
or things that are grouped together from others left out of the group (ii) that differentia must
have a rational relation to the object sought to be achieved by the statute in question (Budhan
Choudhry v State of Bihar AIR 1955 SC 191.).

Article 15(3) allows the State to make special provisions for women. Article 15(3) has largely
been interpreted as an exception to the principle of non-discrimination guaranteed by Article
15(1), or what has been described as ‘positive discrimination.

In contrast, the focus of a substantive equality approach is not simply with the equal
treatment of the law, but rather with the actual impact of the law. ‘Such inequality results
from provisions which though seemingly neutral in their application (and therefore
conforming to notions of formal equality) result in discrimination. Certain provisions have
the effect of discriminating between men and women because in practice they only affect
women.’ 8 It seeks to eliminate substantive inequality of disadvantaged groups in society. In
the substantive equality approach, Article 15(3) has been interpreted as part of the equality
provisions as a whole, so that the differential treatment authorised by this Article is not an
exception to, but a part of, equality. This approach was endorsed in Dattatraya Motiram
More v State of Bombay.

In State of Kerala v NM Thomas (hereinafter Thomas), 17 the Supreme Court

addressed the question of the appropriate relationship between Articles 16(1) and 16(4).
The Court held that Article 16(4) was not an exception to Article 16(1), and held that
Articles 15 and 16 must be seen as facets of Article 14. Further, in Thomas, the Supreme

45
Court began to articulate a substantive model of equality. 18 The clearest statement of this
doctrinal shift is found in the judgment of Mathew J, who noted that the formal approach to
equality requires criteria by which differences, and thus differential treatment, can be
justified. He observed that ‘[t]he real difficulty arises in finding out what constitutes a
relevant difference’. 19 Mathew J goes on to state, ‘Though complete identity of equality of
opportunity is impossible in this world, measures compensatory in character and which are
calculated to mitigate surmountable obstacles to ensure equality of opportunity can never
incur the wrath of Article 16(1).

In Indra Sawhney v Union of India, 21 the Supreme Court again emphasised that equality of
opportunity may require treating persons differently in order to treat them equally. According
to Sawant J, equality ‘is a positive right, and the State is under an obligation to undertake
measures to make it real and effectual … [t]o enable all to compete with each other on an
equal plane, it is necessary to take positive measures to equip the disadvantaged and the
handicapped to bring them to the level of the fortunate advantaged.

Three very different approaches to the question of gender difference have been developed:
protectionist, sameness, and compensatory.

In the first approach, women are understood as different from men—more specifically, as
weaker, subordinate, and in need of protection. In this approach, any legislation or practices
that treat women differently from men can be justified on the basis that women and men are
different, and that women need to be protected.

The second approach is an equal treatment or sameness approach. In this approach, women
are understood as the same as men—that is to say, for the purposes of law, they are the same,
and must be treated the same. In this approach, any legislation or practice that treats women
differently from men is seen to violate the equality guarantees.

In the third approach, women are understood as a historically disadvantaged group, and as
such, in need of compensatory or corrective treatment. Within this approach, gender
difference is often seen as relevant, and as requiring recognition in law. It is argued that a
failure to take difference into account will only serve to reinforce and perpetuate the
difference and the underlying inequalities.

The Protection of Women Against Domestic Violence Act 2005 (PWDVA) is one of the most
progressive laws enacted in favour of women’s rights in recent time. The Court held tha t
classifying women as a class in need of protection under this Act was not unconstitutional.
While cases of men being subjected to domestic violence did occur, these cases were very

46
few in number and did not call for the same protection under the Act. (Aruna Parmod Shah v
Union of India (2008) 102 DRJ 543).

In 1997 the Supreme Court in the case of Vishaka v State of Rajasthan (hereinafter Vishaka)
41 recognised the problem of sexual harassment at the workplace and accepted that the
failure to check this amounted to the violation of the equality rights of the woman. The
petition was filed when a State government employee who worked as a part of the Women
Development Programme was brutally raped by a group of landlords in a village in
Rajasthan. The Rajasthan High Court acquitted the rapists, which led to protests and the
subsequent filing of the petition by Vishakha, an organisation working for women’s rights.
The Supreme Court formulated guidelines to address sexual harassment at the workplace and
defined sexual harassment as an unwelcome sexual conduct that disadvantages a woman in
recruitment/promotion or creates a hostile work environment. However, in the Indian courts
the second requirement of hostile work environment has gradually been diluted and the focus
has been on the first leg, which is sexual conduct.

47
 ARTICLE 15(1) AND 16(2) IN CONTRAST TO 15(4) AND 16(4)
15. (1) The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.

15. (4) Nothing in this article or in clause (2) of article 29 shall prevent the State from
making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

16. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of, any
employment or office under the State.

16. (4) Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favour of any backward class of citizens which, in the
opinion of the State, is not adequately represented in the services under the State.

Both provides ground for grounds not to discriminate, but the latter also adds descent like
people having from this descent can only have this job, etc. And apart from public
employment you can have residence-based preferences. Although the grounds of 15 are not
exhaustive and what not covered by 15 is covered by 16 and even by 14, but reservation. E.g.,
Domicile quota in education. There is intelligible differentia and rational nexus in domicile
(DP Joshi v. State of Madhya Bharat).

If the govt. wants to reserve seats under private employment, they cannot do under 16 but can
do under 15 and even under 14.

In Rajendran,79 WANCHOO, C.J., speaking for the Constitution Bench pointed out that "if
the reservation in question had been based only on caste and had not taken into account the
social and educational backwardness of the caste in question, it would be violative of Art.
15(1). But it must not be forgotten that a caste is also a class of citizens and if the caste as a
whole is socially and educationally backward, reservation can be made in favour of such a
caste on the ground that it is a socially and educationally backward class of citizens within
the meaning of Art. 15(4)."

But where list was prepared solely with reference to castes, and no material was placed
before the Court to show that other factors besides caste had been considered in preparing it,
the list was quashed as violative of Art. 15(1). The Court observed in Sagar, "In determining
whether a particular section forms a class, caste cannot be excluded altogether. But in the

48
determination of a class a test solely based upon the caste or community cannot also be
accepted.

● MR Balaji v. State of Mysore

Whether Caste be the sole determinator of backwardness?

Court: NO, it cannot be the ‘sole’ determinator, it can be one of the factors not ‘sole’. Article
15(4) mentions socially and educationally backward classes which includes SC/STs.

● R. Chitra Lekha v. State of Mysore

Law making reservation on the basis of Economic condition and occupation

Government said ok. Caste not the sole factor to implement reservation. Caste is not the only
consideration while making reservation. It is one of the factors. Government can use

● P Rajendran v. State of Madras (1968)

The State’s test of backwardness was predominantly based on Caste.

SC 5-Judge Bench: The Court upheld the reservation criteria.

● State of A.P. v. P. Sagar (1968)

The State’s test of backwardness was predominantly based on Caste.

SC 3-Judge Bench: The Court denied this classification.

VISHAL’s NOTES – 29-01-2021

Articles 15 (4) and 16 (4)

15 (4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making
any special provision for the advancement of any socially and educationally backward classes
of citizens or for the Scheduled Castes and the Scheduled Tribes.]- not only reservations, but
other actions like relaxing qualifying marks etc.

SEBCs- not SCs and STs, apart from them. SEBCs same as OBCs since Indra Sawhney.

16 (4) Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favour of any backward class of citizens which, in the
opinion of the State, is not adequately represented in the services under the State

15 (4) – talks about special provision, 16 (4) talks about reservations.

15 (4) talks about SEBCs and 16 (4)- any backward classes of citizens.

49
Inadequacy of representation- mentioned in 16 (4) and not in 15 (4).

16 (4) was there in the constitution from the very inception (as a temporary provision). 15 (4)
was not originally there. 15 (4) came as a reaction to a decision. (Champakam Dorairajan
case). As a response to this decision, first constitutional amendment with which we got 15
(4).

Champakam Dorairajan- violation of 14 and 15, justification of DPSP was rejected.

15 (4) and 16 (4)- are they exceptions to 15 (1) and 16 (1) and what determines
backwardness? – two main questions.

What is maximum allowable quantum of reservations- connected to the above questions.

First Backwardness question till Indra Sawhney. Then the second question till Indra
Sawhney. Then till the end.

MR Balaji v. State of Mysore- 1963

Whether caste is an indicator of backwardness (sole indicator)? No, the court rejected. Caste
can be a relevant criterion but not sole determinant. 15 (4) talks about both S and E backward
Classes not castes. Other factors- poverty, occupation, place of habitation etc. Occupation and
caste closely interlinked, but not necessarily. This was a case on Article 15.

R Chitralekha v. State of Mysore

There was a government order- two bases of classification- economic and occupation. Not
relying on caste. Challenged in the SC (because caste not used as a relevant criterion). SC
said its not necessary to have caste at all, it can be relevant but not essential.

Two cases decided in same year- P Rajendran v. State of Madras (5 judge), State of AP v. P
Sagar (3 judge)

Both decided in 1968.

In the former, test of backwardness was predominantly based on caste- it was upheld, while
in the latter it was rejected.

In Rajendran, Wanchoo, C.J., speaking for the Constitution Bench pointed out that "if the
reservation in question had been based only on caste and had not taken into account the social
and educational backwardness of the caste in question, it would be violative of Art. 15(1).
But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is
socially and educationally backward, reservation can be made in favour of such a caste on the

50
ground that it is a socially and educationally backward class of citizens within the meaning of
Art. 15(4)."

But where list was prepared solely with reference to castes, and no material was placed
before the Court to show that other factors besides caste had been considered in preparing it,
the list was quashed as violative of Art. 15(1).81 The Court observed in Sagar, "In
determining whether a particular section forms a class, caste cannot be excluded altogether.
But in the determination of a class a test solely based upon the caste or community cannot
also be accepted.

Some interpretational ambiguity.

Pradeep Tandon- Reservation not based on caste- hilly areas, rural areas and Uttarakhand
areas. CJ Ray said, backwardness must be social and educational. This scheme cannot be
unconstitutional because it does not have caste as a factor. Traditional unchanging position is
a determinant for backwardness. So, terrain, habitat. Lack of accessibility, environment etc.
can be relevant factors.

If reservations looked at as exception to equality, then horizontal reservation (disability,

women etc.) not possible, only after it is looked at as a facet of equality then reservations
apart from 15 (4) and 16(4) grounds can be provided.

Summary: Caste in ONE of the determining factors and not the sole factor for determining
backwardness.

Feb 01, 2021:

● Kalelkar Committee (1954)

This committee considered caste as the predominating factor for backwardness. Nehru
rejected the report as caste cannot be made the sole criteria. He wanted other factors like
place of residence, poverty, etc. to be factors.

This notion of Nehru was changed by State of Kerala v. NM Thomas Case : “Caste can be
the ‘sole’ determinator for backwardness” This was again held by Jayshree v. State of
Kerala case which said that poverty and caste both are relevant factors.

● KC Vasant Kumar v. State of Karnataka (1985)

CJ. YV Chandrachud : (i) That person belongs to the backward class whose backwardness is
comparable to that of a SC/STs. (ii) This person should also satisfy the economic criteria.
Applicable to both 15(4) and 16(4).

51
J. Desai : Economic criteria is the sole criteria (no role of caste)

J. Chinappaa Reddy : Poverty is the main factor and other factors like caste, etc. are
secondary factor.

J. Sen : Poverty is predominant factor. Caste to be determined by Chandrachud Test

(comparable test).

J. Venkataramaiyya : Caste, means or economic condition and occupation as the criteria for
backwardness.

⮚ RESERVATION

In M.R. Balaji said that it can’t be more than 50 percent because if it exceeds the limit then
exception will become greater than the rule which will defeat the purpose of reservation. In
Devdasan v. UOI (1964), the Court gave the ‘Carry Forward Rule’ [CFR]. One of the
universities in Karnataka had 17.5 per cent reservation with an CFR. So, say, if only 10
percent seats are filled this year so the next 7.5 percent will be added to the next year’s
reservation. This CFR was held to be unconstitutional. J. Subba Rao in dissent said that the
CFR rule is valid until it does not exceed 50 percent.

● 2nd Backward ‘Class’ Commission – BP Mandal [1979]

Report placed in 1980 – gave a list of backward classes on basis of caste (reiterated
Kalelkar). Mandal commission took a Caste then analyse it on 20 pointers (educational,
economic, etc.), if you score say below 10 pointers then you were considered backward.
Based on 1931 Census. Recommended 27% reservation in Centre and State services and
education for the backward classes.

So, ultimately Mandal commission considered only backward caste for being a backward
class. It was a caste [and not class] based report. [Not going as per Article 340(1) which gives
the power to the Prez. to appoint backward class commission to study socially and backward
classes].

Indira Gandhi, Rajiv Gandhi did not implement the report. Implemented during VP Singh
tenure (implementing Mandal Commission was his major USP) [soon after implementing the
report, he had to resign – also due to some other reasons (Rath Yatra)]. VP Singh said every
State government will have its own OBCs list. So, the reservation list varied from State to
State. So, say X caste being OBC under a State and not mentioned under the Mandal list, will
also get the share under the 27% benefit in that State’s jobs and education.
52
27 percent was decided because we already had 22.5 percent for SC (15%) and ST (7.5%).
So, to be on a safe side, they kept it below 50 per cent.

25 Sept 1991 – office memorandum PMO – Out of the 27 percent reservation, preference to
be given to the poorer of the backward classes. Also, there will be additional 10 per cent
reservation to Economically Weaker Section [EWS].

● Indira Sawhney v. Union of India (1992)

9-Judge Bench - M Kania, M Venkatachaliah, S R Pandian, J. T Ahmadi, K Singh, P Sawant,

R Sahai, B J Reddy

The two decision of 27 per cent and the 10 per cent reservation was challenged in Indira
Sawhney.

Majority judgement (6 judges: Author B. Jeevan Reddy J.)

- What is the determinant factor for backwardness?

Till now, we had two approaches (i) Caste as one of the factors (ii) Caste as the sole factor. J.
Reddy said that Caste is a ‘dominant factor’ and BP Mandal’s technique to draw the list of
backward class was upheld.

- Reservation being facet of equality

He said that reservation is a facet of equality but you may not ordinarily breach the 50 per
cent ceiling. In ‘exceptional circumstances’ (like the area having majority SC/ST) it may be
allowed but not ordinarily. Although he did not explicitly highlight the exceptional
circumstances.

He initially was of the view that social and educational backwardness is different from
backwardness in general but ultimately blurred the line between 15(4) and 16(4).

Although he elucidated some exceptions to the reservation:

(i) Administrative efficiency (Art. 335)

(ii) Public offices which require highest level of intelligence, skill or calibre in
administration, you may not give reservation. [This shows the view of the court that
reservation sacrifices on meritocracy].

(iii) Cannot have reservation in Judiciary, Defence services (excluding civil posts), technical
posts in R&D establishment, Atomic energy and space, professors and above, posts in super-

53
specialities in Medicine, engineering and other scientific and technical subjects, posts of
pilots (and co-pilots) in Indian Airlines.

The Court is very fussy about some specific profession and did not gave any reason for
choosing these professions and not others. [Hegemonic idea that reservation compromises
meritocracy].

On EWS Reservation : The Court STRUCK down the EWS due to (i) It is not based on
Caste (A poor Brahmin getting reservation will defeat the purpose of reservation) (ii) The 50
per cent ceiling is getting breached.

On CREAMY LAYER : Among the beneficiaries of reservation there is a hierarchy, we

have to siphon out the CREAMY LAYER. They cannot be given reservation. The
government will decide the criteria for creamy layer. These are the people who do not need
reservation and are already at par with the other people. But this concept will only be
applicable to OBC and not SC/ST considering the historical aspect of caste system.

- The Court also said that, you can have reservation only at the entry level and not at
the Promotion [for OBCs]. The court overruled Nagraj.
- Also, you can have ‘carry forward’ reservation only upto 50 percent. The court
overruled Devdasan.
- The test of backwardness is dominantly caste based
- Creamy layer introduced

● POST INDIRA SAWHNEY

The court’s bar on reservation on promotion would take effect from 1997 [because there were
on-going transfers and all going on so the court gave a time period to affect the bar].

In 1995, to overwrite the bar on reservation on promotion ruled by Indira Sawhney, the
Parliament through 77th amendment added 16(4)A which made reservation applicable to
promotions. The parliament specifically made Indira Sawhney promotion part redundant.

In 1996-97, Cases – Ajit Singh Januja v. State of Punjab, Virpal Singh Chauhan v. UOI,
seniority in reservation on promotion. For instance, A[Gen], B[SC] joined at same level and
A joined earlier than B. B through reservation gets promoted to higher level earlier than A
and A gets promoted later than B. Question of seniority: A or B? Rule to determine seniority
[i] Catch-up Rule: If and when A gets promoted to the same level, he would have been

54
deemed to be caught-up with B and A will be deemed to be Senior. [ii] Consequential
seniority : B is senior to A, although he joined later. Depends on the time of promotion.

Both the aforementioned cases said that you cannot give consequential seniority in order to
determine the seniority.

In another case S Vinod Kumar v. UOI. Where in some places there was apart from
reservation, the qualifying marks of the backward classes were lowered down and he argued
that this would compromise in administrative efficiency [Art. 335].

The Court ruled that you cannot lower the marks as this would undermine administrative
efficiency.

Mr. Vajpayee 1999 government passes a series of constitutional amendments targeting

reservation: 81st Amd [2000]: Article 16(4)B: You can carry forward beyond 50 per cent,
82nd Amd [2000]: Amend Article 335: proviso Lowering of qualifying marks would not be
considered as compromising the efficiency of administration, 85th Amd [2001]: Amends
16(4)A: From now on promotion in reservation [For SC/STs] and Consequential Seniority
can be applied to determine seniority.

● M. Nagraj v. UOI (2006)

The constitutional validity of these amendments was challenged. All the constitutional
amendments were upheld (Essence of right test).

On reservation in promotion: The court pushed for providing additional justification before
providing for reservation. Every time that the state wants to bring in reservation for
promotion, the State has to fulfil some parameters:

- Demonstrate the backwardness of the SC/ST

Basics
- Prove that the SC/ST is inadequately represented in relevant public employment
(Kapadia J. - The State has to prove that they are actually backward – quantifiable
evidence prove that each individual is the beneficiary – so maybe educational or
economic or any other criteria has to be proved – The court is looking for other
criteria’s apart from social backwardness. The Court didn’t directly say but was
underlying the fact that creamy layer should be applicable in promotion [Cuz the
earlier benches were larger and have ruled that creamy layer not in promotion])
- Maintain the overall efficiency of administration

55
 Accumulated adequacy – at all tiers of jobs should have adequate representation, so
until there is inadequate representation, the State can continue reservation, and there is
adequate representation, then no need of reservation. Primarily the adequacy is shown
by State, it varies from state to state and department to department.

By bringing these qualifiers, the court tries to mellow down the idea of reservation in
promotion.

“We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons,
namely, backwardness, inadequacy of representation and overall administrative efficiency are all
constitutional requirements without which the structure of equality of opportunity in Article 16 would
collapse.”

https://indconlawphil.wordpress.com/2018/09/30/the-nagaraj-creamy-layer-judgment-and-its-discontents/
#:~:text=The%20Court%20was%20essentially%20called,(4B)%20of%20the%20Constitution-Gautam Bhatia

- Suraj Bhan Meena vs. State of Rajasthan; UP Power Corporation vs. Rajesh
Kumar; S. Paneer Selvam vs. State of Tamil Nadu; Chairman & Managing Director, Central
Bank of India v. Central Bank of India SC/ST Employees Welfare Association. All these cases
struck the scheme of reservation in promotion as per Nagaraj criteria.

In response, the Parliament introduced 117th constitutional amendment bill in RS, but could
not be passed in LS and lapsed. Was to bring new 16(4)A where it mentioned that SC/STs
will be ‘deemed’ to be backward. Although it was never implemented but showed that the
government loathed Nagaraj criteria and felt it to be cumbersome. Therefore, they tried to
undermine Nagaraj.

● Post Nagaraj

2017 - BK Pavitra v. UOI (1) – The Court struck down a Karnataka reservation in promotion
policy based on Nagaraj’s criteria.

2018 – Jarnail Singh v. Laxmi Narayan Gupta – Is Nagaraj in laying down these criteria,
departed from Indira Sawhney ruling - On the validity of those three criterions.

The Court unanimously [Rohinton J. – 5 Judges] – Ruled that NO, it is not departing from
any ruling since the context is different. Those three criterions are valid. Since Nagaraj dealt
with the series of amendments which came after Indira Sawhney. Therefore, the backdrop is
different.

But the Court struck down the FIRST criteria. However, Nagaraj was 5-Judge and Jarnail
was also 5-Judge therefore, Jarnail striking down a part of Nagaraj in itself is not proper.

56
Now, State need not quantify social backwardness. So, it substantially mellowed down
Nagaraj.

Nevertheless, Jarnail Singh bought in CREAMY LAYER for SC/STs in promotion

(earlier only for OBCs). For entry level you don’t have creamy layer (Indira Sawhney),
but for promotion you can. Implication of this remains.

So, they ignored the economic aspect of the first Nagaraj criteria and fixated on the idea that
it has to be proven via data so we are removing it. They then introduced the same idea and
only removed the quantifiable idea while giving themselves the power to determine
backwardness.

● BK Pavitra v. UOI (2) - 2019

After the first BK Pavitra, where reservation was struck down , the Karnataka Govt.
appointed a committee (Ratna Prabhakar Comt.) which gave a quantifiable data and on the
basis of which the Karnataka Govt. gave 12 and 5 percent of reservation in promotion with
consequential seniority for SC and STs respectively.

This report was challenged. The Court held that this is legislative overruling of BK Pavitra
(1). The first one scrapped the entire thing due to lack of quantifiable data. Now the govt.
wrote what it lacked back then and no veracity of the report. Therefore, it is overruling the
earlier decision.

Also, in BK Pavitra (1) the Court struck down consequential seniority. But this law again
does this, therefore unconstitutional.

Chandrachud J. said that this is not a legislative overruling. The government went back and
constituted an expert committee and if they have used accepted norms, then the Court have
only limited application on that, and there is no reason to rule against it.

On Creamy Layer – Jarnail Singh introduced creamy layer in reservation in promotion and
not in consequential seniority. We cannot apply creamy layer to consequential seniority. The
court did not explain how this applies. The creamy layer will apply in general promotion but
not when the promotion is made through consequential seniority.

https://indconlawphil.wordpress.com/2019/05/10/reservations-in-promotions-and-the-idea-of-
efficiency-b-k-pavitra-v-union-of-india/ - Gautam Bhatia

J. DY Chandrachud:

57
“Efficiency of administration in the affairs of the Union or of a State must be defined in
an inclusive sense, where diverse segments of society find representation as a true
aspiration of governance by and for the people. If this benchmark of efficiency is
grounded in exclusion, it will produce a pattern of governance which is skewed against the
marginalised.”

● EV Chinniah v. State of AP (2000)

AP law making sub-classes among SCs. Court said that SCs were “homogenously” backward
and you can’t make sub-classes. Struck down. Heavily criticised as you can have lowest
among lowers.

● State of Punjab v. Davinder Singh (2014)

Punjab Govt. made laws which reserved seats for Valmiki’s of Mazhabi sect in Punjab. The
Court reconsidered the Chinnaiah decision as J. Arun Mishra considered that the notion of
“homogenously” defining SCs have to be relooked and sent it to a 5-judge bench which in
turn (as Chinnaiah was also 5-judge) was referred it to 11-judge bench (2020). So, maybe
this bench will overrule Chinnaiah.

In State of Punjab v. Davinder Singh (27 August 2020), a Constitution Bench of the Supreme
Court headed by Justice Arun Mishra recently referred E.V. Chinnaiah v. State of AP, (2005)
1 SCC 394, to a larger bench for reconsideration. In Chinnaiah, the court had held that
governments cannot introduce a special sub-quota, within the SC and ST quota, in favour a
few castes or tribes who are more backward than others on the list. Davinder Singh’s
judgment now disagrees with this view but raises some interesting questions.

Firstly, does Davinder Singh dilute M. Nagaraj v. Union of India, (2006) 8 SCC 212 and
Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396? In Nagaraj and Jarnail Singh, a
Constitution Bench of the Supreme Court had held that before the government introduces any
reservations for communities other than SCs and STs, it must collect quantifiable data which
show that those communities are, in fact, backward. 

Abhinav Chandrachud :

https://indconlawphil.wordpress.com/2020/09/03/guest-post-sub-classification-in-reservations/

https://indconlawphil.wordpress.com/2020/09/04/guest-post-sub-classification-in-reservations-ii/ -
While all this was happening, there was a separate controversy regarding reservation in
educational institutions – REFER TO THE PROJECT
Can you have reservation in the private sector? No, not until now.

58
In 2000s, the State wanted to introduce reservation in all institution public and private.

The state governments started introducing specific laws to implement this.

Three major judgements on this issue:

- T.M.A Pai v. State of Karnataka

- Islamic Academy v. U.O.I.
- PA Inamdar v. State of Maharashtra

In all these judgements the State’s imposition of reservation in private institution were
stroked down on the basis of 19(1)(g).

● The Parliament introduced 93rd amendment, 2005 and added Article 15(5) to the
constitution.

“Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the
State from making any special provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes or the Scheduled
Tribes in so far as such special provisions relate to their admission to educational
institutions including private educational institutions, whether aided or unaided by the
State, other than the minority educational institutions referred to in clause (1) of article
30.”

This categorically targeted the three judgements and now no bar on introducing reservation in
private educational institutions.

After this amendment the Parliament passed the Central Educational Institutions (Reservation
in Admission) Act, 2006, where they introduced reservation only in Institution controlled by
Central govt (does not cover private institutions).

This law and the amendment were together challenged in Ashok Kumar Thakur

The Court (CJ. Balakrishnan) said that since these law does not cover private institutions, so;
the Court will look this amendment only in relation to reservations in public educational
institutions. We shall not do basic structure scrutiny in relation to private institutions (VERY
WIERD). This decision is very limited in its scope and does not cover the main issue at hand.

The Court upheld both the amendment and the law. The amendment was valid on the ground
of reservation in state and state-aided institution (did not comment on private institutions).
Also, 15(5) does not violate 15(4) as it just spells out reservation on a particular sector
(educational sector).
59
Still the question of reservation in private educational institution was not resolved.

The question become relevant after Article 21 A and RTE Act. Provision that in all
educational institutions (inc. private unaided educational institutions), 25 % seats have to be
reserved for under-privileged. This section (12 (1) (c)) and Article 21 A were challenged in

● Society for Unaided Private Schools, Rajasthan v. UOI

In this particular case, law was upheld. Partial dissent. Can reserve seats except in minority
institutions. Later referred to a higher bench. Here amendment itself was not challenged.

● Pramati Educational Trust v. UOI

Here Article 21A amendment was challenged and private unaided institutions of Article 15
(5) was challenged. 5-Judge bench unanimously upheld all of these.

Education is ‘occupation’ not trade or business.

60
 ARTICLE 19

“(1) All citizens shall have the right—

      (a) to freedom of speech and expression;
      (b) to assemble peaceably and without arms;
      (c) to form associations or unions;
      (d) to move freely throughout the territory of India;
      (e) to reside and settle in any part of the territory of India;
      (g) to practise any profession, or to carry on any occupation, trade or business.”

- Does private corporations have 19(1)(a). How does a non-citizen espouse 19(1)(a)?
This question answered in:

● RC Cooper v. UOI
RC Cooper was a shareholder of a bank which was being nationalised. So, a bank’s right was
exercised by its people. The company’s rights are the sum of all the FRs of the people
associated with it. Same applies to media companies.
The media companies in itself does not have FRs but they exercise it through the editors,
journalist, other people and the viewers which if gagged can be challenged in light of
violations of FR’s.
- Restrictions on exercise of 19(1)(a) – 19 (2)
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 reasonable
restrictions on the exercise of the right conferred by the said sub clause in the interests of the
sovereignty and integrity of India, the security of the State, friendly relations with foreign
States, public order, decency or morality or in relation to contempt of court, defamation or
incitement to an offence”

Government can use these restrictions and can very well apply it to curb 19(1)(a). Whether
these restrictions are fair or not is to be decided by Courts.

● Devidas kurjapulkar v. State of Maharashtra

Some discourteous poem on M. Gandhi. CJ. Dipak Mishra said that there needs to be a
sacrosanct conduct for a ‘historically respected person’. But what is the threshold for being a
‘historically respected person’, ofc MG falls in that category but who else. What criteria?

Cinema has censorship but no other platforms?

K.A. Abbas v. Union of India (1970) - The impact what cinema has on people is way greater
than any other platform. It has more impact on people. Since cinema is more powerful than
Newspapers, will justify pre-censorship for cinema than any other platform (arbitrary
criteria).

- Requirement of LAW for imposing restrictions

61
Bijoy Emmanuel v. State of Kerala (1986) – National anthem compulsory in school. Some
group did not as their religion does not allowed. They did not create mischief but just did not
sung the National Anthem. The SC ruled that ‘Right to Express’ also includes ‘Right not to
Express’. The basis of this order was an office order issued by school authorities. There was
no LAW in place. It was just based on executive order. Article 19(2) requires that such
restrictions are flowing out of a law/legislation.

Navin Jindal v. UOI (2004) – Jindal prevented from flying national flag. The restrictions
were mentioned in the Flag Code and not a Law. Yes, it is a part of 19(1)(a). But the govt.
cannot use a flag code to impose restrictions on freedom of speech.

● PUBLIC ORDER UNDER 19(2)

Background: 1950 we didn’t have 19(2) like this. The OG article 19(2) restrictions did not
have “public order”, instead the state could restrict freedom of speech and expression if it
“undermines the security of state or overthrow the state.” The requirement of “reasonable”
restrictions was not there.

In 1950, periodical Crossroads (run by CPI-Romesh Thapar) – critical to Nehru’s external

policies. There were agitations in Madras on the basis of Crossroads critique. The Madras
State passed a Law and banned the publication and circulation of Crossroads.

In Punjab and Delhi, in 1950, RSS periodical Organizer critical of Nehru-Liaqat pact. Law to
restrict the publication and circulation. On grounds of Public order.

⮚ Romesh Thapar v. State of Madras

5:1 Same Judges: Fazal Ali (majority) - These restrictions do not find their validity in 19(2)
since no public order ground. If the writings would create serious concern to security of State
(civil war like), then 19(2). Mere disturbance in public order won’t suffice the requirement of
security of state. You are allowed to descent the government.

⮚ BrijBhushan v. State of Delhi

5:1 Same Judges: Same ruling

Case

First Amendment was made to the Constitution [1951]: (i) Public order was bought in and (ii)
incitement to an offence was also added to 19(2). The word ‘reasonable’ also came in.

On one hand you lowered the threshold by adding ‘public order’ but to balance the same,
‘reasonable’ was added.
62
https://ir.nbu.ac.in/bitstream/123456789/3623/1/Vol.%2010%2c%20No.%202%2c%20September
%202019_11.pdf

● Implications of Brijbhushan

Now, Government can use 19(2) on mere disturbance of public order but you have to pass the
“reasonable” test in the court of law.

Since, Press also comes under the ambit of ‘business’ as they also operate for profit, So, the
government instead of using 19(2) [because they had to pass ‘reasonable’ test], they used
19(6) restrictions on the conduct of trade and business. The 19(6) restrictions were to the
extent curbing 19(1)(a).

⮚ In 1950s, the government though to rationalise the labour conditions working in Press
industry. The government introduced a Working Journalist Act, the labours had to be paid
some set amount of wages, labour rights and guarantees. So, the law was good. The
newspapers basic profit was from Advertisement minus the expenses (including wage).

The implication of the law was that the company had to spend more on wages which means
they had to cut the area of operations to cut the costs to earn in order to sustain themselves.
Or the company had to hire novice journalists rather than pro people which would affect the
quality of news. So, the implication of this law basically curbed the 19(1)(a).

In cases like this, Express group case the court looked at the measures and not much on the
implication. The SC gave the “Direct and inevitable consequence test”, if you are imposing
restriction on some FR, and if there is indirect impact on other FR, then it should satisfy the
restriction not only on the former FR but also on the latter FR. In this case the govt. is
imposing restriction on 19(6) but it does not satisfy restriction on 19(1)(g) and (a), even if
this measure satisfies 19(6), it cannot impair the other FR’s.

● Sakal Papers Pvt Ltd. v. UOI

After the Indo-China war, lot of shortages, one of the things was new print paper. The govt.
declared np Paper a commodity under Essential Commodities Act – Rationing of the NP
Papers. From now on, every Newspaper will be given only a specific amount of printing
paper. So long it is ESA, the page number in the printed papers will be fixed. Sakal papers
challenged.

The Court looked at 19(6) and said that they can see the direct consequence of this on 19(1)
(a) which is a right inevitable for the existence of the newspapers. So, the law was struck
down.

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Many more instances of Indian Express challenging the adverse laws of the govts.

● ‘Public Order’ restriction under 19(2)

How ‘public order’ came into the constitution is discussed in the above paras (Romesh
Thapar and Brij Bhushan case)

⮚ Ramji Lal Modi v. State of U.P. (1957)

In this case, the infamous blasphemy s.295A was challenged (punishment for acts that create
religious enmity). The section was too broad and could cover any type of speech that resulted
in religious riot [e.g., films – they don’t create films to have riots but if a riot broke then
should they be held responsible?]. The petitioner contends that you’re holding me guilty
because my act has the potential to create riot, this is too broad interpretation.

The SC (CJ SR Das) rejected the petitioner contention and upheld 295A. Article 19(2) allows
state to impose restriction in the interest of [...] public order. This means that if the state
believes that restriction is in the interest of public then the state has the power to impose such
restrictions. If your speech has a bad tendency to just create riot although it may/may not
create riot, this will suffice the state interest to impose such restriction. The word used is “of”
and not “for”, in the former the existence of bad tendency will suffice but in the former, there
should be a causal link. Malicious intent to ‘speak’ ill about the religion is necessary but not
the intent to cause ‘riot’.

⮚ Virendra v. State of Punjab (1958)

In Punjab, there was a ‘Save Hindi’ (genesis for State of Haryana) agitation in 50s. The
agitation turned violent, to curb that, Punjab Govt. notified that newspapers, for the next two
months, are not allowed to cover news about the agitation. The other notification banned a
newspaper for indefinite period.

SR Das again took the bad tendency test and held the first restriction to be justified, since it
was in the interest of public. The court would only scrutinize the notification on the basis of
reasonability and not a distinct causal link (whether they actually caused is not important but
do they have the potential to cause is important). The second notification was struck down as
banning a paper of indefinite time was not in interest of public order as the newspaper not
just reports the agitation but also other things (op-ed, sports, other news) which don’t disturb
public order.

⮚ Superintendent Central Prisons v. Ram Manohar Lohia (1960) - 1

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UP Special Powers Act, 1932 said if you instigated to go against the govt (CDM) then the
govt, has power to curb your speech. Nehru’s govt used this law to punish RML while he was
protesting against govt. policies and agitating people not to pay tax if Nehru does not
withdraw his policy.

J. Subba Rao – the interest of public order does not entitle the state to make any draconian
step in light of public order. If the state takes step in the interest of ‘public order’, then the
State has to show Proximate Nexus (linkage) between the speech and the riot. Taken from
American Jurisprudence where they used ‘imminent lawless action’ which says that the State
before holding somebody guilty, has to prove a ‘clear and present danger’, that your speech
not only has the potential but also a nexus (likelihood) that your speech would create a riot.
So, the disturbance that happened or could have happened has a clear linkage to your
speech/writing.

⮚ Supdt. Central Prisons v. Ram Manohar Lohia (1966) - 2

RML continued his activities. Again, to the Court.

The Court distinguished between state order, law and order and public order. Public order is
of a higher threshold, mere law and order would not suffice. Public order is on a higher scale,
restrictions can be made to maintain public order and not mere law and order.

⮚ Kedar Nath Singh v. State of Bihar (1962)

Constitutionality of 124A (Sedition) was challenged.

CJ Sinha who agreed to the proximate nexus case earlier, in this case held that Sedition is
constitutional. He again goes back to the ‘bad tendency’ test. He did not even mention
‘proximate nexus’ in his judgement. Sedition was justified following bad tendency test.

In Shreya Singhal (2015) - the Proximate Nexus case was finally upheld – lex loci

● Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal

Indian Cricket Team – they went for some series – ESPN had broadcasting rights – ED found
some telegraphic equipment with the ESPN - the Telegraph act (Archaic law) required prior
permission which ESPN did not took and their equipment were confiscated. SC midnight
hearing.

The background facts that led to the landmark 1995 judgment of the Supreme Court of India
on the airwaves relate to a dispute between the Ministry of Information and Broadcasting and

65
the Cricket Association of Bengal (CAB) over whether or not the cricket organisation had the
right to grant exclusive telecast rights to a private agency instead of Doordarshan.

The claims made by Doordarshan in this case, for instance, were clearly premised on the fact
that they had the largest reach in terms of audience and, therefore, had a valid claim for a
monopoly as far as broadcasting was concerned.

Issues: What, if any, are the conditions that can be imposed by Government department
concerned -- in the present case the Ministry of Information and Broadcasting -- for: [a]
creating terrestrial signal of the event? [b] granting facilities of up linking to a satellite not
owned or controlled by the Government or its agencies? Does the Government or
Government agencies like DD -- in the present case -- have a monopoly over creating
terrestrial signals and telecasting them or refusing to telecast them?

Court: The Supreme Court held that the airwaves or frequencies were a public property. Their
use had to be controlled and regulated by a public authority in the interests of the public and
to prevent the invasion of their rights. Since the electronic media involved the use of the
airwaves, this factor creates an inbuilt restriction on its use, as in the case of any other public
property.

This limitation imposed by the nature of the public property involved in the use of the
electronic media is in addition to the restrictions imposed on the right to freedom of speech
and expression under Article 19 [2] of the Constitution.

“As a matter of fact, private broadcasting stations may perhaps be more prejudicial to the free
speech right of the citizens than government-controlled media, as explained in the body of the
judgment. The broadcasting media should be under the control of the public as distinct from
Government. This is the command implicit in Article 19(1)(a).”

[Extras: DC Saxena v Hon'ble Chief Justice – For contempt of court]

● “Reasonable” restrictions

⮚ State of Madras v. VG Row (1952)

Some people society was banned. Challenged J. Patanjali Shastri: Some grounds to see
reasonableness

(i) Nature of the right which is infringed. Among the other FRs, 19(1)(a) is the worthiest, the
threshold of reasonableness varies.

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(ii) Purpose of the restrictions

(iii) The extent and the urgency of the evil sought to be restricted.

(iv) No disproportionate

In State of Madras vs V.G. Row, the Supreme Court held that a “reasonable restriction” under
Articles 19(2) to (6) would have to satisfy the requirements of proportionality: “the nature of
the right alleged to have been infringed, the underlying purpose of the restrictions imposed,
the extent and urgency of the evil sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at the time, should all enter into the judicial verdict.” It
is clear that if a statute proscribes conduct that is much broader than what is permitted under
Article 19(2), on the ground that there is some – tenuous – connection between the two, there
is good reason to argue that the restriction is disproportionate.

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23.02.21

● Article 19(1)(g)

“to practise any profession, or to carry on any occupation, trade or busines”

● Article 19(6) – Restriction on 19(1)(g)

Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in
so far as it imposes, or prevent the State from making any law imposing, in the interests of
the general public, reasonable restrictions on the exercise of the right conferred by the said
sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any
existing law in so far as it relates to, or prevent the State from making any law relating to,

(i) the professional or technical qualifications necessary for practising any profession or

carrying on any occupation, trade or business, or;

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any
trade, business, industry or service, whether to the exclusion, complete or partial, of citizens
or otherwise

[State can create Monopolies –like Railways, initially Airways, initially Telecom, etc. since
the govt. thought that some sectors are too important for the country’s welfare that if they
allow private players they’ll operate for profits and not for public welfare].

The implication of 19(6) - if a private corporation is making a monopoly for itself in the
sector, then the government always have the power under 19(6) to abolish its monopoly and
take over.

● Unni Krishnan v. State of AP (1993) - Right to establishment of educational institution

Educational institutions do not come under ‘business or trade’ since it is imparting education
and not operating for profit-making, therefore it should be under the ambit of ‘occupation’,
but still protected under 19(1)(g) and state can impose reasonable restrictions under 19(6).

● TMA Pai v. State of Karnataka (2002)

Private educational institution also under the ambit of ‘occupation’ and therefore enjoys 19(1)
(g) but also restrictions under 19(6).

● Islamic Academy v. UOI (2003)

The Court set up a committee to regulate admission and fee structure, this was done on the
basis of education come under the ambit of ‘trade’ and therefore State can regulate such
68
things under 19(6). Now, the distinction between ‘occupation’ and ‘business/trade’ is
becoming more important.

● PA Inamdar v. State of Maharashtra (2005)

The Court again held that non-minority institution, the govt can regulate them to such extent
of deciding upon fee structure, although the Reservation thing is debated. Minority
institutions have been given some protection under Art. 30.

● Whether a total prohibition under 19(6) be imposed?

(i) Reasonable test – whether the restriction so imposed in ‘reasonable’ or ‘not’?

⮚ Mohd Hanif Qureshi v. State of Bihar (1959)

Law prohibiting slaughter of Cow of all ages, calves of Cow and Buffalo. The Court upheld
the restriction, but, about the non-milk producing animals/non-lactating animals, the ban on
their slaughter is not justified. If they are at lactating stage, then you cannot slaughter,
otherwise you may. So, cow of any age cannot be slaughter unless they are lactating.

J. Mukherjee said that slaughtering of Cows is not an essential religious practice. (Bare
reading of Quran by some Brahman priest). [Bypassed the religious question and mainly
based the reasoning on dairy industry economy].

⮚ State of Gujarat v. Mirzapur Moti Qureshi (2005)

Same ban, the Court upheld the ban completely. The Court said that even after they stop
lactating then also, they have a significant use, like cow dung, some are used for agricultural
purpose. Therefore, complete prohibition is also justified. The slaughter house owners have
to relocate to other business.

[That’s why over 303 million cattle in India 2020 -_-].

(ii) Res Extra Commercium - There are some activities which by their nature so abhorrent
then they should be discouraged (E.g., Gambling, Brothels, sometime Liquor trade etc.)
- Such businesses are put outside the ambit of 19(1)(g). So, if its outside the FR, then no
protection under 19(1)(g) and therefore no need to have 19(6) application of reasonable
and all. Therefore, any type of restriction will be valid. Hence, no threshold of restriction
applicable to such businesses.

In The State Of Bombay vs R. M. D. Chamarbaugwala (1957) - Gambling outside the ambit

of 19(1)(g) - Sir taught this case under Territorial nexus topic – Refer.

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There is a difference between ordinary trade and gambling

Example, Fantasy Games (kinda Dream 11). Question on whether Fantasy Cricket leagues
are sort of ‘Gambling’.

Various HC ruled that no they are not Gambling. They relied on SC judgement of:

● State of AP v. K Satyanarayana - 1967

● KR Laxmanan v. State of TN - 1996

In both the cases, the SC said that ‘Gambling’ is basically a game which involves only luck
and not skill. Any game which is predominantly a game of ‘skill’ or involves at least some
degree of skill is outside the scope of gambling. For say, in horse trading, you must have
some degree of knowledge and skill is required, so that is not gambling.

So, the SCs reasoning is applied to the Dream 11 case. In Dream 11 you need the knowledge
of the bowler, pitch, other conditions before you bet on the team, etc. Therefore, can’t be said
to be gambling. Therefore, they’re under the ambit of 19(1)(g) unless the SC rules contrary
(The matter is pending before the SC).

AP and Telangana have imposed total prohibition on Dream 11 on the basis of 19(6).

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 ARTICLE 20

Protection in respect of conviction for offences:

(1)  No person shall be convicted of any offence except for violation of the law in force
at the time of the commission of the act charged as an offence, nor be subjected to a
penalty greater than that which might have been inflicted under the law in force at the
time of the commission of the offence

(2)  No person shall be prosecuted and punished for the same offence more than once

(3)  No person accused of any offence shall be compelled to be a witness against

himself

⮚ Hathisingh Manufacturing Co. v UOI (1960)

1957 Law – if an industry is shutting down its operations then they have to pay compensation
to their employees from a back date (one year). Failure to do so will attract penal term.
Hathisingh challenged on the grounds of 20(1).

The Court said that look at the nature of liability – it is a civil liability – paying compensation
is civil liability. Failure to oblige by a civil liability cannot be bought under Art. 22 since
‘offence’ under Article 20(1) is applicable to criminal offences. The liability was to
compensate the employees therefore no application of 20(1) here. Therefore, they had the
obligation to compensate.

⮚ Sajjan Singh v State of Punjab (1963)

Section 5(3) of the Prevention of Corruption Act. The section deals with disproportionate
income. If it is found that you have disproportionate high amount of assets, then the burden of
proof, to show that the assets are legitimately accumulated, lies on you.

Sajjan Singh challenged. He said the law came into force in 1947. If a raid happens in my
house in 1948, but disproportionate assets were being collected since 1920. But before 1947,
that was not a crime so I did not maintain the receipts of assets bought. You are asking me to
retrospectively produce the receipts of the assets.

The Court said NO, proving the receipts is not retrospective application of liability. 5(3) just
shift the burden of proof. 20(1) protects retrospective application of laws, burden of proof is
not covered under 20 (1).

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 ⮚ Ratanlal v. State of Punjab (1964)

A Boy [16 yrs.] trespassed somebody property and molested some girl. Magistrate found him
guilty imprisoned and some penalty imposed. HC revision petition gets rejected. Prohibition
of offenders Act came after the magistrate judgement. [New Law- person below 21 yrs. have
to send to juvenile home and not prison].

In the SC Appeal, the question of new law and the implementation of the new law in
retrospective manner?

Govt: The new law does not apply as he was given the punishment as per the law in force as
per day. As article 20 says that enhanced punishment cannot be given, the same there should
not be used for scaling down of punishment also.

Court: 2:1 majority. J. Subba Rao, you need to look at the larger intent of the law. 20(1) is
meant to protect the person not nab them. Therefore, the benefit under the law will be
extended to this case also. As it is a beneficial legislation, which reduce the punishment, so
ex-post-facto application applicable.

● Article 20(2)

It is not ‘double jeopardy’. Nobody should be prosecuted and punished twice. The bar is on
multiple prosecution and punishment. Cannot repeat prosecution of the case that resulted in
punishment.

Best Bakery Case: Burning down of Best Bakery killing Muslim family – Gujarat Riots – the
accused were acquitted due to police shady works. SC ordered re-trial in Maharashtra (and
not in Gujarat).

In USA and Britain, you cannot have re-trial because they have a bar on prosecuting more
than once. But, in India you can have retrial unless the prosecution has not resulted in
punishment. The bar is on prosecution leading to punishment. But if the prosecution still has
not ended in punishment, then you can again have prosecution.

⮚ Maqbool Hussain v. State of Bombay

Person carrying a lot of unaccounted gold – nabbed at the airport – Sea Customs Act, the
custom authority took all the unaccounted gold.

A criminal trial was initiated under FERA, the man appealed to SC saying that two trials
were going against him at the same time. The court said one trial is under Custom authorities
72
and the other is a Criminal Trial. There is only one criminal trial happening as Article 20 is
applicable to Criminal trials, since there is only one criminal trial then no double jeopardy.

CrPC exactly provides for these protections.

- Selvi v. State of Karnataka

Right against self-incrimination. Element of oral or written communication. As a witness, I

am asked to produce documents- this is different from written or oral communication.

Nandini Sathpathy- furnishing evidence can amount to being a witness. No hard difference.

Will also discuss brain mapping, polygraph etc.

MP Sharma v. Satish Chandra- 8 judge bench

Became relevant in Puttuswamy. This case said- no right to privacy. It also said- no oral or
documentary evidence

● Article 20 (3)- which can be incriminating. Document could mean- biological samples.

Also, there is an element of coercion- person can voluntarily produce documents (like blood
samples).

Because the court said this in MP Sharma- an eleven-judge bench reconstituted to revisit the
MP Sharma proposition.

- State of Bombay v Kathi Kalu Oghad (1961)

Article 20 (3) protection cannot be blanket- can extend to making oral or written statements,
but cannot be granted against production of documents.

The distinction between personal testimony and physical objects derives from the concern
that compelling personal testimonies may lead to non-voluntary statements, which will impair
the truth- seeking function of the criminal process. Conversely, the production of physical
objects does not raise this concern, and actually furthers the ability of State actors to find the
truth.

Personal testimony involves conveying facts that are within the personal knowledge of the
accused. Conversely, the Court held that a person is not a ‘witness’ when she produces
physical objects or provides thumb impressions, handwriting samples, or other bodily
substances using which she may be identified. These amount to ‘furnishing evidence’, but not
to ‘being a witness’, the distinguishing feature being personal knowledge of the relevant
facts.
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Read Oxford Handbook (Chapter 44).

- Nandini Sathpathy case

Former CM of Odisha. Very powerful in the state. She was asked to appear before a police
station and given a long list of questions – pertaining to assets in her possession. She didn’t
answer, under Section 179 of the IPC (refusing to answer a public servant) case was filed.
Magistrate sent her summons, she didn’t appear, she challenged before HC (based on 20 (3)
and Section 161 of the CrPC). HC didn’t accept, went on appeal to SC. Her case was heard
by Justice Krishna Iyer. He said- violation of CrPC as a woman asked to come and spend
long hours at a police station. This would anyway negate the voluntariness of the situation.

20 (3) protection starts from investigation stage itself, not trial.

In Nandini Satpathy, I YER, J., advocated an expansive interpretation of the phrase

‘compelled testimony’. According to him, it is evidence procured "not merely by physical
threats or violence" but also "by psychic torture, atmospheric pressure, environmental
coercion, tiring interrogative prolixity, over-bearing and intimidatory methods, and the like".
Any mode of pressure, "subtle or crude, mental or physical, direct or indirect, but sufficiently
substantial", applied by the police to obtain information from an accused strongly suggestive
of guilt becomes compulsion. However, legal perils following upon refusal to answer, or
answer truthfully, do not amount to compulsion within Art. 20(3). But "frequent threats of
prosecution if there is failure to answer may take on the complexion of undue pressure"
violating Art. 20(3)

Although Art. 20(3) does not in terms apply to the pre-trial stage, Nandini Satpathy’s case
sought to introduce it by way of interpretation relying upon the landmark decision of the U.S.
Supreme Court in Miranda v. Arizona which requires the police officer to inform the person
arrested of his right to consult a legal practitioner immediately upon arrest. Section 52(2) of
POTA which so provides is founded on the Miranda rule.

In Selvi v. State of Karnataka, the Supreme Court held that the compulsory administration of
certain scientific techniques, namely narcoanalysis, polygraph examination and the Brain
Electrical Activation Profile (BEAP) bear a ‘testimonial’ character and thereby triggers the
protection of Art. 20(3) of the Constitution. It’s a three-judge bench, so cannot overrule
Oghad. But deviates a bit.

Polygraph- lie detection test. Narco analysis- truth serum is given (speaking the truth when
inebriated, semi-conscious).

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Brain Mapping- Brain sends certain signals. Signifies re-collection.

When these were challenged, main defence- that accused not making a voluntary statement,
simply scientific tests carried out. Brain mapping specifically- just like blood test. So must be
okay.

In Selvi, this was rejected- cannot be compulsorily administered. They are more similar to
oral testimonies rather than blood test. As answers are, in a way, given by gadgets. The
accused himself is involved, unlike in blood test which is completely neutral.

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 ARTICLE 21
(MOOT WEEK – VISHAL’S NOTES – till Govind v. State of MP)

“No person shall be deprived of his life or personal liberty except according to procedure
established by law.”

- ‘procedure established by law’ has been the bone of contention. Does it mean due
process in the US? Even today, there is some confusion.

Mentioned previously- New Deal legislation struck down on due process. Two kinds of due
process- one looks at process, other at substantive content of the law. Lochner v. New York- a
law passed- employees of bakeries cannot be made to work overtime. This was struck down-
violates the liberty to contract. Employer has a liberty to contract with employee- can’t put
such conditions from above. When Lochner judgement was delivered and huge furore in
America, Government thought things were getting out of hand. President and CJ had a
meeting – Constitutional Revolution- will pack the SC with his own men. This gave a signal to
global community that due process in the constitution cannot be present- can be used
indiscriminately by the SC. In this backdrop, when BN Rau met J. Frankfurter, Rau was told-
not to have due process.

America uses substantive due process for life and liberty, not property (only procedural)

Three changes made- ‘property’ removed from Draft Article, ‘personal’ added ahead of
liberty and at the end, replaced ‘due process’ with ‘procedure established by law.’ (Japanese
Constitution)

Use of the word ‘due’ suggests some form of entitlement. Process has to be fair, just and
reasonable. Cannot be any process.

Procedural Due Process v. Substantive Due Process (Also read Abhinav Chandrachud article
in Oxford Handbook)

Example used from the Article- IPC makes a new offence- Drinking tea in evening
punishable and CrPC- anyone convicted of the former will not get right of legal hearing.
Former is a violation of substantive due process and latter is a violation of procedural due
process.

Both cases- what is being done is unjust, unfair and unreasonable.

‘Procedure established by law’- unfair, unreasonable etc. factors not seen, looked at from a
positive perspective.
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In Constituent Assembly, many argued that Government will pass arbitrary laws if due
process is removed. Alladi Krishnaswamy Iyer- Need not be overly suspicious of the
Government. Democratically elected.

In 1950- first constitutional case- AK Gopalan v. State of Madras. A Preventive Detention

law, using which AK Gopalan taken into custody. Lawyer of Gopalan—MK Nambiar. His
argument was - law which allows people to be taken into custody without reason, given a
chance of being heard etc. it’s an unreasonable violation of life and personal liberty. State
counters- Procedure need not be reasonable under Article 21- so long there is a law and it
has been followed, no violation of Article 21. It is not due process, but procedure established
by law. It’s similar to neutral due process (Chandrachud Article - Handbook).

Nambiar knew- he might not achieve a lot, given recent history. His argument- based on 19
(1) (d)- Right to Freedom of Movement- which is being violated. Restrictions need to be
reasonable.

State’s counter- no possibility of linking different Fundamental Rights, they are separate
silos. The law belongs to Article 21, since rights under 21 are being affected, so violation of
19 (1) (d) won’t be attracted.

On both counts- Court accepted each of them- due process obviously (5 judges out of 6
accepted, given the history of how due process was rejected). Can’t inject due process
through the backdrop. Procedure was duly established by law- that is enough.

Dissent by J. Fazl Ali- Even Article 21 contains procedural due process. Arguments rely on
coincidences. ‘Procedure established by law’ comes from Japanese Constitution – but there
was a distinct American influence. So, law means something which is just, fair and
reasonable and not law simplicitor. Basic Natural Justice guarantees cannot be abridged, are
sacrosanct, no law can deprive of these guarantees.

Second question- can be either 19 or 21, not both. FRs cannot be linked, distinct islands. 2 of
the judges – Article 21 is a simplicitor FR (not expansive), is a protection against being killed
(life) or being arrested (personal liberty). Since the law related to arrest- fell under 21.

CJ Kania- Article 21 would consist of some basic aspects of life.

CJ Das- Personal Liberty includes liberties which are very personal to him- non-intrusion,
non-arrest. Others fall under Article 19. These are distinct spheres.

All judges relying on proposition that FRs are distinct and therefore, if law falls under Article
21, can be scrutinised under 21 only.
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Overall, the law and his detention were upheld. These reasonings of AK Gopalan- positivist
interpretation of Article 21 and FRs are distinct silos, took time to change and develop.

The other end of the spectrum is Maneka Gandhi. We will go there gradually.

● Kharak Singh v. State of UP (1963)

There was a UP law (police regulation). Can maintain surveillance over history sheeters and
domiciliary visits at any time. Challenged on 19 (1)(d) (Freedom of Movement) and 21 rights
(personal liberty).

Court continued to look at FRs as isolated islands. Personal Liberty affected, so not on 19 (1)
(d). No reasonability check required. Procedure to be looked at. In most parts, law upheld.
Privacy rejected as part of personal liberty. Court did not acknowledge the presence. But the
part about domiciliary visits struck down, because dignity part of life and personal liberty –
which is being affected. Uses the Preamble as well.

J. Subba Rao dissent- privacy part of ‘personal liberty.’ Which is violated.

Puttaswamy set up as a 9-judge bench to overturn MP Sharma and Kharak Singh.

This case was a very gradual shift from the AK Gopalan position, since a ‘procedure
established by law’ was struck down on grounds of dignity and personal liberty.

https://main.sci.gov.in/judgment/judis/3641.pdf - Kharak Singh

RC Cooper case- Different FRs, but court said they can be linked. Huge breakthrough made
possible in RC Cooper. This also meant a lot for Article 21 discourse. Even if no ‘due
process’ , a law can be challenged on other grounds (Article 19 or 14).

So, something which violates personal liberty in 21 can also violate Article 19. Overlap
between FRs.

- Govind v State of MP (1975) (3-judge bench)

There was a similar law- to UP Police Regulation, framed by State of MP. (History sheeters
allowed surveillance, and domiciliary visits). In this case, the entire regulation found valid,
include domiciliary visits (in this case, such visits were more defined). In this case- life and
personal liberty in Article 21 constitutes a penumbral region which consists of several
components (which are not enumerated). One of these components- Right to Privacy.
Recognises the facts that Article 21 is more than what meets the eye. Privacy, in this case, not
violated as ‘procedure established by law.’ The case though, expanded Article 21.

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 ● Maneka Gandhi v. UOI

See Below Handbook

- Shift from just a procedure but ‘just, fair and reasonable due process’
- Right to Life

Post Maneka Gandhi

After Maneka Gandhi, numerous judgements flowed in propounding on due process.

e.g., case Sunil Batra v. Delhi administration (1979) – landmark CrPC case

The death row convicts used to be kept in solitary confinement. This was challenged on the
ground of merits since till his/her execution, it may take a lot of time and until then he/she
has to live in confinement which is violation of just, fair and reasonable procedure. Sunil
Batra is not challenging provision of IPC but Prisons Act s.30(2).

The Court (J. Krishna Iyer) says that everyone sentenced to death to be solitary confined is
cruel, so if the person has exhausted all the remedies of pardons (judiciary + executive) then
only the person can be sent to solitary confinement. This is just, fair and reasonable
procedure.

In Sunil Batra, a procedure was challenged and not a law (procedural nature and not
substantive nature). This shift was marked by Maneka Gandhi.

● Bachchan Singh v. State of Punjab (1980) 4:1 (Dissent J. Bhagwati (2 yrs. after the
majority judgement -_- )

The provision of death penalty was challenged under IPC s.302. It was a substantive
challenged. Challenged the inhumanity, unfair, unjust provision. So, after validating
procedural due process (Sunil Batra), it is now one step further (challenging substantive law).

The Court could have rejected the challenge as it was challenging substantive due procedure
(Maneka Gandhi only allowed procedural due process) but the Court looking into this matter
marked the substantive due process scrutiny. Although the Court found s.302 to be
constitutionally valid, and only gave some guidelines, yet the Court doing an Article 21
review marks a substantive check of substantive law.

Dissent based on procedural due process. Per se death penalty is cruel, unfair. J. Bhagwati
said that the law per se or the method should be just, fair and reasonable.

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Maneka Gandhi gave procedural due process cuz that case dealt with procedure (Passport
confiscation). But, after Maneka Gandhi, both procedural and substantive due process was
evolved.

● Mithu Singh v. State of Punjab (1983)

Challenged the constitutionality of s.303 IPC. (Punishment for murder by life-convict.—

Whoever, being under sentence of 1[imprisonment for life], commits murder, shall be
punished with death.)

Since there was no solid precedent to allow substantive due process so the law was
challenged on the ground of denying the convict the right under s.235(2); 354(3) CrPC. The
Court held that the section was unconstitutional. However, the mere fact that the Court struck
down a substantive provision of law does not mean that this was necessarily a ‘substantive
due process’ case. The reason the Court struck section 303 down in that case was because the
section deprived a convict of his procedural rights under sections 235(2) and 354(3) of the
Criminal Procedure Code. Under these provisions, a judge is required to hear the accused on
the question of sentence, and to write ‘special reasons’ for passing the death sentence.
Though section 303 of the Indian Penal Code was a substantive law, it excluded these ‘fair,
just and reasonable’ procedural safeguards, and thereby violated the doctrine of procedural
due process articulated in the Maneka Gandhi case. The Mithu case is therefore an authority
for procedural due process, not substantive due process, even though a substantive law was
invalidated in that case.

However, in the Mithu case, the Court also made certain observations which point out that
Indian constitutional law recognises the doctrine of substantive due process.

The Court in that case observed that the legislature cannot impose a ‘savage sentence’ under
the criminal law. ‘[I]f a law were to provide’, wrote the Chief Justice, ‘that the offence of
theft will be punishable with the penalty of the cutting of hands, the law will be bad as
violating Article 21.’

Wrote the Chief Justice, ‘A savage sentence is anathema to the civilized jurisprudence of
Article 21’. In short, though the Mithu case was a procedural due process case where a
substantive law was struck down, the Court’s observations in that case point out that the
substantive due process doctrine is also a part of Indian constitutional law.

More in: Abhinav Chandrachud – Handbook ch. 43

80
Even in the Gian Kaur case, the Court acknowledged that it had the power to use substantive
due process doctrine, because it could interpretively limit the contours of section 309 of the
Indian Penal Code to potentially exclude mercy killings under certain circumstances. That
was exactly what eventually happened in a case decided in 2011, where the Court held that
‘passive’ euthanasia would be permitted under certain circumstances, notwithstanding the bar
against abetting suicide under section 306 of the Indian Penal Code. In that case the Court
also opined that the time had come for Parliament to delete section 309 of the Indian Penal
Code as it had become ‘anachronistic’.

In 2009, the Delhi High Court’s holding in the case of Naz Foundation v Government of
National Capital Territory of Delhi was a clear substantive due process case. There, the
petitioners challenged section 377 of the Indian Penal Code, a substantive law, which made it
an offence to perform ‘carnal intercourse against the order of nature’, as it applied against the
LGBT community. The Court held that the provision ‘insofar as it criminalises consensual
sexual acts of adults in private’ violated Article 21 of the Constitution. This was not a
procedural law that was invalidated, but a substantive law, on substantive grounds.

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 ● Chapter 43 – OXFORD HANDBBOK – DUE PROCESS – ABHINAV
CHANDRACHUD

Consider the following hypothetical. Assume that India’s Parliament enacts a law called the
Criminal Laws Amendment Act 2014 (the ‘Act’). The Act has two sections. Section 1 of the
Act amends the Indian Penal Code, inserting a provision into it that makes it a crime to drink
tea in the afternoon, punishable by a sentence of imprisonment. Section 2 of the Act amends
the Criminal Procedure Code and provides that anyone tried for the offence of drinking tea in
the afternoon will be denied the right to be represented in court by legal counsel. In short,
section 1 is a substantive law, while section 2 is a procedural law.

In the Court’s most famous case during that time, Lochner v New York, the Court invalidated
a New York statute which prohibited bakers from making their employees work for more
than sixty hours per week or more than ten hours in any one day, because the Court believed
that the statute interfered with a person’s liberty of contract.

Based on Rau’s report upon his return, the Drafting Committee deleted the phrase ‘due
process of law’ and replaced it with ‘procedure established by law’ borrowed from Article 31
of the Japanese Constitution.

In the first ‘fundamental rights’ case which came to the Supreme Court of India, AK Gopalan
v State of Madras, 31 the petitioner argued that the Preventive Detention Act 1950 did not
provide some of the most important procedural safeguards against arbitrary detention. A
majority of the judges (5 Judges) of the Court rejected the petitioner’s argument that
‘procedure established by law’ meant procedural due process. Reading ‘procedure established
by law’ to mean procedural due process or natural justice was therefore impermissible.

In short, the Gopalan Court found that Article 21 only imposed ‘pure form’ due process
limitations on the other branches of government. Only one judge, Fazl Ali J, dissented on the
question of whether ‘procedure established by law’ meant procedural due process.

The Gopalan Court in short elucidated that, even the substantive law (not merely the
procedural law) that deprives a person of his life or personal liberty must be validly enacted
according to Article 21 of the Constitution.

● Maneka Gandhi v Union of India

The passport of the petitioner in this case had been impounded in the ‘public interest’,
without giving her any reasons. Among other grounds raised before the Court, the petitioner

82
contended that the procedure prescribed by the act was arbitrary and unreasonable, and that
the provision therefore fell afoul of Article 21 of the Constitution.

A majority of the judges of the Court found that a procedural law which deprived ‘personal
liberty’ had to be ‘fair, just and reasonable, not fanciful, oppressive or arbitrary’-words
remarkably reminiscent of the US Supreme Court’s decision in the Lochner case. The
majority found that before (or after) taking away a person’s right to go abroad (which,
according to the Court, was a part of the right to ‘personal liberty’), a passport officer had to
give the person a hearing. The right to be heard before having one’s passport impounded was
read into the Passports Act, by implication. In short, where the Gopalan Court had held that
procedural due process was not included in Article 21, the Court in the Maneka Gandhi case
held that it was.

Importantly, even if a law meets the requirements of procedural due process, it is still open
for a person to challenge it for violating other provisions of the Constitution—for example,
Articles 14 or 19. In other words, it is only the procedural law that deprives the right to life or
personal liberty, not the substantive law, which has to satisfy the requirement of being ‘fair,
just and reasonable’.

● Substantive Due Process

One of the most significant procedural due process cases was decided by the Court only a few
months after the Maneka Gandhi case. The case, Sunil Batra v Delhi Administration,
involved a challenge to section 30(2) of the Prisons Act 1894, which provided that a prisoner
‘under sentence of death’ was to be kept in ‘in a cell apart from all other prisoners.’ The
question was whether this permitted jail authorities to keep death row prisoners in solitary
confinement. This case is important because it brings out the distinction between the
doctrines of procedural and substantive due process. Since section 30(2) of the Prisons Act
did not impose a punishment, but only dealt with how a person sentenced to death was to be
procedurally treated, it was a procedural law, not a substantive law.

As the Court in the Sunil Batra case repeatedly pointed out, sections 73 and 74 of the Indian
Penal Code contain the substantive punishment of solitary confinement, and the Court in the
Sunil Batra case was not examining the constitutional validity of these provisions.

Using Article 21 of the Constitution, the Court ‘read down’ the provision. It was held that a
prisoner was only ‘under sentence of death’ once the entire appellate process had been
concluded and the clemency petition was denied.

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Since the Sunil Batra case dealt with a procedural law, not a substantive one, it was a
procedural due process case, not a substantive due process case.

● Bachan Singh v State of Punjab

Where section 302 of the Indian Penal Code, a substantive provision of criminal law that
permits a court to impose the sentence of death for the offence of murder, was challenged as
being unconstitutional.

The majority of the judges of the Court tested section 302 of the Indian Penal Code on the
touchstone of Article 21 of the Constitution, and found that it was neither substantively nor
procedurally unconstitutional.

Bhagwati J dissented from the majority in this case, and issued a separate opinion two years
after the majority judgment had been delivered. ‘The word “procedure” in Article 21’, wrote
Bhagwati J, ‘is wide enough to cover the entire process by which deprivation is effected and
that would include not only the adjectival but also the substantive part of the law’.

Thus, the majority judges in the case and the dissenting judge all seemed to agree that
substantive laws could be tested on the touchstone of Article 21.

In the case of Mithu v State of Punjab, the Supreme Court was considering the constitutional
validity of section 303 of the Indian Penal Code, a substantive law that imposed a mandatory
death penalty on any person who committed murder while undergoing a sentence of life
imprisonment. The Court held that the section was unconstitutional. However, the mere fact
that the Court struck down a substantive provision of law does not mean that this was
necessarily a ‘substantive due process’ case. The reason the Court struck section 303 down in
that case was because the section deprived a convict of his procedural rights under sections
235(2) and 354(3) of the Criminal Procedure Code. The Mithu case is therefore an authority
for procedural due process, not substantive due process, even though a substantive law was
invalidated in that case.

In P Rathinam v Union of India, the Court held that section 309 of the Indian Penal Code,
which made it a criminal offence to attempt to commit suicide, violated Article 21 of the
Constitution, because it was a ‘cruel and irrational provision’, which punished a person who
was in agony. The case was subsequently overruled by a constitutional bench of the Court,
two years later, in Gian Kaur v State of Punjab. There, the Court held that a legislative
provision could only be invalidated if it fell afoul of some provision of the Constitution, but
not if it was merely considered undesirable by a court. In the Gian Kaur case, it was held that

84
the Rathinam case was incorrectly decided because its central holding, namely, that the right
to life did not include the right to die, was incorrect.

In 2009, the Delhi High Court’s holding in the case of Naz Foundation v Government of
National Capital Territory of Delhi was a clear substantive due process case. Section 377
IPC - The Court held that the provision ‘insofar as it criminalises consensual sexual acts of
adults in private’ violated Article 21 of the Constitution. This was not a procedural law that
was invalidated, but a substantive law, on substantive grounds.

The expansion of the term’s ‘life’ and ‘personal liberty’ under Article 21 of the Constitution
serves two purposes. First, it brings within the purview of Article 21 government actions that
do not have anything to do with arrest or detention.

In case of Olga Tellis v Bombay Municipal Corporation. There, the petitioners contended
that the forcible eviction of pavement and slum dwellers, under section 314 of the Bombay
Municipal Corporation Act 1888, without giving them alternative accommodation, violated
their rights to life, because it deprived them of their livelihood. To bring the government
action within the ambit of Article 21, the Court held that the right to livelihood was a part of
the right to life under Article 21, and that section 314 of the statute was therefore subject to
the requirements set under Article 21.

Chandrachud: However, there appear to be no judicially defined limits as to which

substantive values a court will apply in an exercise of substantive due process. Thus,
substantive due process is a dangerous doctrine, because it involves a court imposing its
own values on the other branches of government.

However, when a court chooses to apply the doctrine of substantive due process, it
aggressively challenges the very value choices of the popular branches of India’s
government, which is a remarkably counter majoritarian and democratically illegitimate
exercise. Bearing this in mind, perhaps the doctrine of substantive due process ought only to
be applied by courts to protect ‘discrete and insular minorities’—who are theoretically
incapable of protecting their rights through the majoritarian process.

85
 ARTICLE 25 & 26 - RELIGION

25. Freedom of conscience and free profession, practice and propagation of religion

(1)  Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practise
and propagate religion

(2)  Nothing in this article shall affect the operation of any existing law or prevent the State
from making any law

- (a)  regulating or restricting any economic, financial, political or other secular

activity which may be associated with religious practice;

- (b)  providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus

Explanation I: The wearing and carrying of kirpans shall be deemed to be included in

the profession of the Sikh religion

Explanation II: In sub clause (b) of clause reference to Hindus shall be construed as
including a reference to persons professing the Sikh, Jain or Buddhist religion, and
the reference to Hindu religious institutions shall be construed accordingly.

26. Freedom to manage religious affairs Subject to public order, morality and health,
every religious denomination or any section thereof shall have the right:

(a)  to establish and maintain institutions for religious and charitable purposes;

(b)  to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d)  to administer such property in accordance with law

86
Protection from Article 25 applicable to only the Essential Religious Practices (‘ERP’). If
that’s a secular function then under the ambit of 25(2)(a). Article 25 has more of a face value
rather than a substantive value (historic caste problem – partition – have to add this article).
Nehru was against religion which act as a blockade to progress/change. Constituent
Assembly was of the view that give the right to religion but have sufficient state control over
it. Until you prove its ERP, State can regulate/restrict that practice.

Article 26 gives protection to religious denomination. Some groups have been given some
more rights a, b, c, d. Article 26 is subject to public order, morality and health but not subject
to Part III. Denominations has right to owning and administrating property. This right to
property still remains under Part III.

- “Propagate” under Article 25

Regulation/prevention of religious conversions. First Bill in parliament - Indian Converts

regulation and registration Bill, 1954

First states – Odisha [Odisha Freedom of Religion Act] and MP [MP Swatantra Adhiniyam].
Force/Fraud conversion was banned under both the Acts. Odisha act added inducement and
MP added allurement as criteria for conversion. Challenged in respective HCs on grounds of
(i) legislative competence (not in state list); (ii) Right to propagate religion.

● Odisha HC – Struck down the law, (i) No legislative competence (ii) ‘Inducement’ is
vague and violation of Article 25.
● MP HC – Upheld the law, (i) State is competent. State can regulate public order and this
comes under the ambit of public order. (ii) Right to propagate does not include right to
convert. Propagation is preaching, does not include alluring and all.

Both the appeals collectively went to SC.

● SC (5 judge: CJ Ray) – Rev. Stainslaus v. State of MP (1977)

SC said that MP court is right. Right to religion does not include the right to convert. CJ Ray
said that under Art.25 every person has a freedom of conscience and can choose/not choose
any religion. Religion may propagate but it’s upon the conscience of the person whether to
convert or not.

Seervai critique of the Judgement : The right to propagate religion gives a meaning to
freedom of choice (of religion), for choice involves not only knowledge but an act of will. A
person cannot choose if he does not know what choices are open to him. To propagate
religion is not to impart knowledge and to spread it more widely, but to produce intellectual
87
and moral conviction leading to action, namely, the adoption of that religion. Successful
propagation of religion would result in conversion . . . Conversion does not in any way
interfere with the freedom of conscience but is a fulfilment of it and gives a meaning to it.
The Supreme Court judgment is clearly wrong. It is productive of the greatest public mischief
and ought to be overruled.

The MP Law was based on a report which justifies the position of the Court: As a precursor
to the Madhya Pradesh Bill, the State Government in 1954 had appointed a committee
headed by a former Chief Justice of the Nagpur High Court, MB Niyogi, to inquire into
Christian missionary activities. In its report submitted in 1956, the committee said,
‘Conversions are mainly brought about by undue influence, misrepresentation, etc. or in
other words not by conviction but by various inducements offered for proselytization in
various forms.’ Report of the Christian Missionary Activities Enquiry Committee
(Government Printing 1956) 131. Among its recommendations was the prohibition of
conversion through ‘force or fraud, or threats of illicit means’. Report of the Christian
Missionary Activities Enquiry Committee (Government Printing 1956) 167. It also
recommended an amendment to the Constitution clarifying that the right to propagation was
subject to the above conditions. The Orissa Act, which preceded the Madhya Pradesh
legislation by a year, made its intent very clear when it stated in its statement of objects and
reasons: ‘Conversion in its very process involves an act of undermining another faith.’

- Religious Denomination

Factors to identify denomination given in Shirur Mutt Case (Commissioner, Hindu

Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri “Shirur
Mutt”).

1. Collection of individuals having common faith and belief

2. Organisation

3. Designation by a single name

e.g., Ramakrishna mission demanded minority religion status, Cal HC agreed, SC said that
no it’s a philosophy and improvement on the general tenets of Hinduism but that does not
mean that they are distinct religion. It is a group within a group.

Book: Supreme but Not infallible – Dhavan and Nariman

e.g., Auroville, they say that they are denomination, they have the freedom to manage their
own property under 26(c) and therefore, no government control over Auroville. SC – Sri
88
Aurobindo speaking are philosophical but it can’t be termed as religious denomination since
it is not ‘religious. Aurobindo never wanted to form ‘religious’ group. They can’t be given
religious status. SC said we haven’t heard of anything about ‘Aurobindoism’, so, STFU.

[Criticism – Court created complication by differentiating between philosophy and religion].

- Whether 26 rights overwrite rights under 25(2)? So, if you get a religious
denomination status, can you like exclude Dalits or any other group since they have
the right to manage their religion?

Arguments that religious denomination takes:

(i) We can manage our own Affairs of religion (26(b)).

(ii) 26 is circumscribed by public welfare, morality, health and not bound by other articles in
part III.

(iii) Ours is a private temple (26 is an individual right), we can restrict/regulate entry.

In short, ABSOLUTE AUTONOMY.

Sir will answer elaboratively in Sabarimala.

- “Essential Religious Practice” Doctrine

In Shirur Mutt, the petitioner, the superior or Mathadhipati (also referred to as mahant) of
Shirur Mutt, challenged the Madras HRCE Act 1951, 11 on the principal ground that it
infringed Article 26 of the Constitution. The Madras Hindu Religious and Charitable
Endowment Act (HRCE Act) in 1951, where a new department headed by a commissioner
was created to supervise temples and maths.

J. Mukherjee in Shirur Mutt case, laid the genesis of ERP but it was later evolved and
interpreted differently in subsequent cases. J. Mukherjee said that we need to find out that
whether the subject matter of the law is essential to the religion or not. Any intervention by
the state will be scrutinised on the threshold that whether the law is intervening on religious
space or not. ERP should be located in the tenets of the religion. State can regulate all the
secular activities but cannot regulate ERPs. The Court among the religious practices will
carve out a Essential domain and a non-essential domain, the latter can be regulated and not
the former.

Mukherjee J. - A religion may not only lay down a code of ethical rules for its followers to
accept, it might prescribe rituals and observances, ceremonies and modes of worship which
are regarded as integral parts of religion.
89
 ● Durgah Committee Ajmer v. Hussain Ali (1961)
● Shri Govindlalji v. State of Rajasthan (1963)

In both the cases, two laws, Durgah Khwaja Act, 1975 and in the latter case the Nathdwarka
Temple Act, 1955, regulated some basic functioning of the mentioned places. Both the places
are regulated by different ‘religious denomination’ (Article 26 applicable).

Issue: Whether the rights under Art. 26 are absolute? Can state bring other restrictions apart
from public order, morality and health? Art. 25 and 26 are two different provisions, religious
denominations are covered under Art. 26 exclusively. Whether 25 and 26 are read separately
or whether they should be harmoniously read? The moment a religious denomination is
proved, whether the application of Art. 25 stops?

Gajendragadkar J. – He relies on historic precedents to upheld the constitutionality of the

Laws. He found that there was a long history (pre-Mughal) of the State running theses shrines
and temples. There was some form of regulation since a long time. So, these laws apparently
continued the State regulations, so constitutional. The regulations although regulating some
religious practices, are not regulating practices that are ‘essential’ to the religion. [this is a
departure from Shirur Mutt, there you looked at essential practices of the religion now you
are looking at the practices essential and integral to the religion. Even in essential practices it
differentiated superstitious practice and essential practice. Although it’s upon the court to
interpret this].

Gajendragadkar J. in Govindlalji - In cases where conflicting evidence is produced in respect

of rival contentions as to competing religious practices the Court may not be able to resolve
the dispute by a blind application of the formula that the community decides which practice
is an integral part of its religion, because the community may speak with more than one
voice and the formula would therefore break down. The question will always have to be
decided by the Court and in doing so, the Court may have to enquire whether the practice in
question is religious in character and if it is, whether it can be regarded as an integral or
essential part of religion, and the finding of the Court on such an issue will always depend
upon the evidence adduced before it as to the conscience of the community and the tenets of
its religion.

The Court harmonized 25(2)(a) with 26(b), that you may regulate your religious practices but
subject to only the essential practices and in that only the practices which are not
superstitious and integral and essential to the religion.

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So, protection under Art. 26 if:

(i) ERP.

(ii) those ERP should not bear out of superstition.

(iii) If that ERP is a discriminatory practice – then, State will regulate.

● Yagnapurushdasji v Muldas (1966)

They apprehended that the respondent Muldas Brudardas Vaishya, who was the president of
the Maha Gujarat Dalit Sang at Ahmedabad intended to assert the rights of the non- satsangi
harijans to enter the temple of Swaminarayan sect situated in Northern diocese at Ahmedabad
in exercise of the legal rights conferred on them by Section 3 of the Bombay Harijan Temple
(Entry Authorization Act 1947). Section 3 of the said act provided inter alia, that every
temple on which the act applied shall be open to Harijans for worship in the same manner and
at the same extent as other Hindus in general. 

- Essential for the faith

- Essential for the religion
- Civil functions should not be affected by the ERP

Step by step have to be followed.

Three tests will determine the validity of the state regulation.

● Sardar Syedna Saifuddin Saheb v State of Bombay (1962)

Law – Bombay Act – One is not allowed to excommunicate anybody from the religious
group. [excommunicate – If you go against the basic tenets of religion, you’ll be chucked out
of the religious group]. Specifically, for Daudi Bohra community who were regularly
excommunicating people from their group. So excommunicated people were denied some
basic things also like not allowed to pray in the mosque, not allowed to use the community
burial ground. Law challenged.

SC – Daudi argued : Excommunication is an ERP (They are religious denomination).

Therefore, State not allowed to regulate the practices.

J. Dasgupta – Agreed that the excommunicating practice was ERP and State was wrong in
regulating that.
91
J. Ayyangar (concurring opinion) – Community has right to decide about its practices.

C.J. Sinha (dissent) : It’s a valid law. This law protects the basic human rights. Despite the
ERP, if it is violating the basic human rights, then State can regulate.

This judgement has been challenged [pending] and to be reconsidered by a larger bench on
the lines of C.J. dissent.

● Acharya Jagadishwarananda Avadhoot v Commissioner of Police, Calcutta (1983)

The Court refused to accept the Tandava dance as an essential practice of the Ananda Margis,
reasoning that the ‘Ananda Marga as a religious order is of recent origin and Tandava dance
as a part of religious rites of that order is still more recent. Ananda Marga: SriSri
Anandpurtiji, they said to propagate their practice they will be taking out procession and
doing ‘Tandava’. They were denied permission by the Police on the ground of disruption of
public order. Challenged.

Ananda Marga group: (i) Tandava is ERP (ii) We are religious denomination and anyways,
not doing anything that would disrupt public order.

The Court observed that (i) “what would constitute an essential practice of religion or
religious practice is to be determined with reference to the doctrine of a particular religion
which includes practices which are regarded by the community as part and parcel of that
religion”. So, no ERP as we could not find such tenets in the text of the religion. The court
upholds the denial but the way it did was flawed. [Can you just look at some texts and judge
whether it was ERP or not?]. Since it is not an ERP, therefore, we are considering public
order restriction [flawed reasoning : what if it was ERP, you’ll allow?]

Ideally, it should not matter whether it is a religious denomination or not, public order comes
first. However, the court didn’t took this reasoning.

● Commissioner of Police, Calcutta v. Acharya Jagadishwarananda Avadhoot (1984)

After the previous judgement, Ananda Marga founder SriSri... added Tandava into their text
so as to make it ERP.

Judgement (J. Rajendra Babu): It was not essential, Essential can’t be changed or added like
this. They did it after the previous judgement. This cannot be considered as ERP.

J. Laxmanan (partial dissent): The Court (as it’s an outsider) should not decide on the ERP of
the religion, it should be left upon the religion to decide their ERP. He doesn’t have problem
with amending the text and adding that ERP, however, then also, the State can regulate on

92
grounds of “Public Order”, since Art. 26 is subject to public order, .... [Ideally, this should be
the Court’s position over the time]. He said to allow the Tandava procession but adequate
arrangement should be made so as not to disturb the public order.

● Indian Young Lawyers’ Association v. State of Kerala [“Sabarimala Case”] –

LANDMARK CASE (2018)

Bench: CJ. Dipak Mishra, J. AM Khanwilkar, J. R. Nariman, J. DY Chandrachud, J. Indu

Malhotra [4:1(J. Malhotra)]. The four opinions:
● Chief Justice Misra (on behalf of himself and Khanwilkar J.)
● Justice Nariman
● Justice Chandrachud
● Justice Malhotra

Read this: Sir repeating this only

Gautam Bhatia:

1. https://indconlawphil.wordpress.com/2018/09/28/the-sabarimala-judgment-i-an-overview/

2. https://indconlawphil.wordpress.com/2018/09/29/the-sabarimala-judgment-ii-justice-
malhotra-group-autonomy-and-cultural-dissent/

3. https://indconlawphil.wordpress.com/2018/09/29/the-sabarimala-judgment-iii-justice-
chandrachud-and-radical-equality/

The Sabarimala Temple, considered the abode of Lord Ayyappa. It prohibited the entry of
women in their ‘menstruating years’ (between the ages of 10 to 50), on the grounds that it is a
place of worship.

In 2006, Indian Young Lawyers Association filed a public interest litigation petition before

the Supreme Court challenging the Sabarimala Temple's custom of excluding women. The
exclusion of (a class of) women from the Sabarimala Temple was justified on the basis of
ancient custom, which was sanctioned by Rule 3(b), framed by the Government under the
authority of the 1965 Kerala Hindu Places of Worship (Authorisation of Entry Act).

Section 3. of the Act required that places of public worship be open to all sections and
classes of Hindus, subject to special rules for religious denominations.

Section 4. Power to make regulation for the maintenance of order and decorum and the due
performance of rules and ceremonies in place of worship. Based on these parent act, women
were excluded from entering into the temple.

93
Rule 3b: “Women at such time during which they are not by custom and usage allowed to
enter a place of worship” was the basis of the practice of excluding women of the age group
of 10 through to 50 years to the temple.” 

The Association argued that the custom violates the rights to equality under Article 14 and

freedom of religion under Article 25 of female worshippers.

The State contended that the Temple's priests have the final authority in this matter. The
Travancore Devaswom Board has the legal authority to manage the Sabarimala Temple's
administration. Article 26 of the Constitution, guarantees a religious denomination the right
to manage its own internal religious affairs.

- Gautam Bhatia’s Questions:

“(1) Is Rule 3(b) of the 1965 Rules ultra vires the 1965 Act?

(2) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the
exclusion of women from temples – constitutionally valid?

(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed
under Article 25(1) of the Constitution?

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from
Sabarimala an “essential religious practice” protected by Article 25(1)?

(5) If the answer to (4) is “yes”, then is the exclusion of women nonetheless barred by
reasons of “public order”, “health”, “morality”, or because of “other clauses of Part III”,
which take precedence over Article 25(1)?

(6) Do Sabarimala worshippers constitute a separate religious denomination under

Article 26?

(7) If the answer to (6) is yes, then is temple entry a pure question of religion?”

- The Court framed 5 questions: (almost same as Bhatia’s)

“1. Whether the exclusionary practice which is based upon a biological factor exclusive
to the female gender amounts to “discrimination” and thereby violates the very core of
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Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of
the Constitution?

2. Whether the practice of excluding such women constitutes an “essential religious

practice” under Article 25 and whether a religious institution can assert a claim in that
regard under the umbrella of right to manage its own affairs in the matters of religion?

3. Whether Ayyappa Temple has a denominational character and, if so, is it permissible

on the part of a ‘religious denomination’ managed by a statutory board and financed
under Article 290-A of the Constitution of India out of Consolidated Fund of Kerala and
Tamil Nadu can indulge in such practices violating constitutional principles/ morality
embedded in Articles 14, 15(3), 39(a) and 51-A(e)?

4. Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry)

Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to
50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by
restricting entry of women on the ground of sex?

5. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry)
Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of
Entry) Act, 1965 and , if treated to be intra vires, whether it will be violative of the
provisions of Part III of the Constitution?”

- Judgement:

(1) Does the phrase “all classes” under the Act include “gender”? By Majority: Yes.

(2) Do Sabarimala worshippers constitute a separate religious denomination under Article 26,
and are therefore exempted under the Act from the operation of Section 3? By Majority: No.
Malhotra J. dissents.

2(a) Is Rule 3(b) of the 1965 Rules therefore ultra vires the 1965 Act? By Majority, logically
following from (1) and (2): Yes. However, Nariman J., instead of holding it ultra vires,
straightaway holds it unconstitutional under Articles 14 and 15(1). Malhotra J. – also
logically following from 2 – dissents. 

(2b) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion
of women from temples – constitutionally valid? Does not arise.  

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(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under
Article 25(1) of the Constitution? Per Misra CJI and Khanwilkar J.: Yes, in theory. Per
Chandrachud J.: No, because it violates constitutional morality. Per Nariman J.: No,
because it violates Article 25(1), which stipulates that all persons are “equally entitled to
practice religion.” Malhotra J.: Yes. 

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from
Sabarimala an “essential religious practice” protected by Article 25(1)? Per Misra CJI and
Khanwilkar J.: No, on facts. Per Nariman J.: Assuming the answer is yes, (3) answers
the point. Per Chandrachud J.: No, on facts. Per Malhotra J.: Yes, on facts.  

- Specifics 

- CJ. Mishra & J. Khanwilkar

The devotees of Lord Ayappa at Sabarimala have failed to establish that they constitute a
“separate religious denomination”. The test for “separate denomination” is a stringent
one, and requires a system of distinctive beliefs, a separate name, and a common
organisation. Women have an enforceable Article 25(1) right to entry. This right is not
undermined by a contrary right of exclusion because, on facts, excluding women does not
constitute an “essential religious practice” that is protected by Article 25(1). This is because
no scriptural or textual evidence has been shown to back up this practice (paragraph 122), and
it is not possible to say that the very character of Hinduism would be changed if women were
to be allowed entry into Sabarimala. On facts, this practice appears to have commenced only
in 1950, and therefore lacks the ageless and consistent character that is required of an
“essential religious practice”. Therefore – Misra CJI and Khanwilkar J. hold – since Section 3
of the 1965 Act prohibits discrimination against “any class” of Hindus, and the Temple is not
a denominational temple, Rule 3(b) is ultra vires the parent Act, and therefore must fall.

- J. RF Nariman

Accepts the 25(1) reasoning. He agrees with Misra CJI and Khanwilkar J that Sabarimala
fails the rigorous test for a “separate denomination.” Article 26, therefore, is not attracted,
and the proviso to S. 3 of the Act is not attracted. Therefore, even if there is an essential
religious practice excluding women, this practice is hit by Section 3 of the Act, which
provides for non-discriminatory access to all “classes” of Hindus. Nariman J. adds that even
otherwise, this case involves a clash of rights under Article 25(1): the right of women to
worship, and the right of the priests to exclude them. The text of Article 25(1) – which uses
the phrase all persons are “equally entitled” to practice religion, decides the clash in favour of
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the women. And insofar as Rule 3(b) is concerned, Nariman J. holds it directly contrary to
Article 15(1), and strikes it down.

- J. Malhotra [DISSENT]

(i) Maintainability

The right to move the Supreme Court under Article 32 for violation of Fundamental Rights,
must be based on a pleading that the Petitioners’ personal rights to worship in this Temple
have been violated. The Petitioners do not claim to be devotees of the Sabarimala Temple
where Lord Ayyappa is believed to have manifested himself. The right to equality under
Article 14 in matters of religion and religious beliefs has to be viewed differently. It has to be
adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by
certain practises which are found to be oppressive or pernicious. 

Malhotra J. articulates a crucial point, which demonstrates why, even in the PIL era, the issue
of maintainability is particularly crucial to this case. Case of Cultural Dissent. What is under
challenge – as Justice Malhotra recognises – is the question of whether certain practices
– internal to the religion – are “oppressive” or not. when marginalised groups within cultures
or religions challenge oppressive norms or practices, more often than not, they will need an
external authority (such as Courts, acting under the Constitution) to support them in that
struggle. But what I am saying is that the claim must originate from the marginalised groups
themselves. An external authority cannot assume the mantle of speaking on their behalf.

(ii) Group Autonomy

It would compel the Court to undertake judicial review under Article 14 to delineate the
rationality of the religious beliefs or practises, which would be outside the ken of the Courts.
It is not for the courts to determine which of these practises of a faith are to be struck down,
except if they are pernicious, oppressive, or a social evil, like Sati.

Judicial review of religious practises ought not to be undertaken, as the Court cannot
impose its morality or rationality with respect to the form of worship of a deity. Worship has
two elements – the worshipper, and the worshipped. The right to worship under Article 25
cannot be claimed in the absence of the deity in the particular form in which he has
manifested himself. 

Bhatia : Malhotra J. concedes that practices that are “pernicious, oppressive, or a social
evil” can be reviewed by Courts. But that, indeed, was  the Petitioners’ argument
in Sabarimala: excluding women from the temple was a pernicious and oppressive practice,

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even though it did not (of course) reach the level of Sati. For Malhotra J., therefore,
unlike Sati, Sabarimala is a pure question of faith, and therefore immune from judicial review
and the application of constitutional norms of equality and non-discrimination.

ERP : Malhotra J. takes strong issue with the Majority for holding that the exclusion of
women is not an essential religious practice (and therefore not protected by Article 25(1)),
and argues, instead, that this determination should be left solely to the religious community
itself. In the present case, Malhotra J. relies upon the statements of the
Sabarimala Thanthri and the Travancore Devaswom Board to the effect that “the limited
restriction on access of women during the notified age of 10 to 50 years, is a religious
practise which is central and integral to the tenets of this shrine, since the deity has
manifested himself in the form of a ‘Naishtik Brahmachari’.” This is an important point,
because it goes entirely against the grain of six decades of ERP jurisprudence, where the
Court – relying upon textual and scriptural materials – makes this determination. It is also, in
my opinion, correct the Courts – as a number of scholars have argued for a while now – is
entirely unequipped to make determinations about what practice is or is not “essential” to
religion: it lacks both the competence and the legitimacy to do so. 

Pluralism : Malhotra J. turns this argument on its head, noting that constitutional morality in
India’s plural society requires respect and tolerance for different faiths and beliefs, which
have their own sets of practices that might nevertheless appear immoral or irrational to
outsiders. our Constitution respects religious pluralism. Pluralism entails granting to the
diverse religious groups and communities within our nation, the freedom of internal self-
government, and the freedom to decide what norms and practices are integral to their
existence and functioning.

(iii) Religious Denomination

Malhotra J. then addresses the statutory point: that is, the question of whether, in view of
Section 3 of the 1965 Act (guaranteeing non-discriminatory access to “all” classes), whether
Rule 3(b) (that allows for excluding women if custom demands it) is ultra vires. Malhotra J.
holds that it is not, on the ground that the worshippers of Lord Ayappa at Sabarimala
constitute a separate “religious denomination”, and is therefore exempted from the
operation of Section 3 as per the Act itself (through a specific proviso). However, J. Malhotra
said that The proper forum to ascertain whether a certain sect constitutes a religious
denomination or not, would be more appropriately determined by a civil court, where both
parties are given the opportunity of leading evidence to establish their case.

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Malhotra J. makes two further findings. She rejects the argument – advanced by Amicus
Curae – that Article 15(2) includes temples under the definition of “places of public resort.”
And she also rejects the argument – advanced by the Interveners – that exclusion of women
on grounds of menstruation amounts to “untouchability” under Article 17 of the Constitution.

- J. DY Chandrachud

The reference to caste and patriarchy is important, because it acknowledges that

discrimination is not limited to State action, or even to hostile individual action, but that it
also flows from institutional design. And because they are social institutions, their impact
upon the lives of the people that they touch is not merely a private matter.

(i) ERP

Chandrachud J.’s judgment has a section titled “The engagement of essential religious
practices with constitutional values.” At the threshold, Chandrachud J. finds that the
Respondents have failed to establish that the exclusion of women from Sabarimala is either
an obligatory part of religion, or has been consistently practiced over the years. The evidence,
at best, demonstrates the celibate nature of Lord Ayappa, but this in itself does not establish
that exclusion of women is part of ERP.

The test of essentiality is infused with … necessary limitations” (paragraph 50), limitations
that are grounded in constitutional morality, and the constitutional values of dignity and
freedom. To suggest that women cannot keep the Vratham is to stigmatize them and
stereotype them as being weak and lesser human beings. A constitutional court such as this
one, must refuse to recognize such claims. The exclusion of women from Sabarimala on the
grounds of celibacy and menstruation is one among countless ways in which patriarchy – as
a social institution – works to keep women in a position of subordination.

Bhatia : Justice Malhotra and Justice Chandrachud, therefore, come at the issue from opposite
angles. What Malhotra J. sees as a claim requiring that religion be subordinated to the diktats
of morality, Chandrachud J. understands as challenge to one manifestation of patriarchal
subordination itself. According to Chandrachud J., you cannot divide social life into different
silos, and say that discrimination and subordination are fine as long as they stay within a
defined silo. At least as far as religion and society are concerned, in the context of India, the
silos are forever merged.

(ii) Untouchability

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Besides the struggle for independence from the British rule, there was another struggle going
on since centuries and which still continues. That struggle has been for social emancipation.
It has been the struggle for the replacement of an unequal social order. It has been a fight for
undoing historical injustices and for righting fundamental wrongs with fundamental rights.
The Constitution of India is the end product of both these struggles. It is the foundational
document, which in text and spirit, aims at social transformation namely, the creation and
preservation of an equal social order. The Constitution represents the aspirations of those,
who were denied the basic ingredients of a dignified existence.

The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries’ old
struggle of social reformers and revolutionaries. It is a move by the Constitution makers to
find catharsis in the face of historic horrors. It is an attempt to make reparations to those,
whose identity was subjugated by society. Article 17 is a powerful guarantee against
exclusion. As an expression of the anti-exclusion principle, it cannot be read to exclude
women against whom social exclusion of the worst kind has been practiced and legitimized
on notions of purity and pollution.

J. Chandrachud examines – and overrules – the Narasu Appa Mali judgment on the specific

point that customs are not subject to fundamental rights. Because Narasu also held that
“personal law” – that is, uncodified religious law – was outside the scope of fundamental
rights review. The reasoning for that was the same, and so, also stands discredited. As
Chandrachud J. points out, the reasoning given by the Bombay High Court in Narasu – that,
for example, the existence of Article 17 shows that the framers intended to specifically
include customs that they wished to proscribe – does not hold water.

And indeed, Chandrachud J. goes on step further with this thought, noting that the ERP test
itself ought – in future – give way to a test that asks not whether a practice is “essential”
(which is, after all, a question that the believers, and not the Court, should answer), but asks
whether the impugned practice is socially exclusionary, and denies individuals access to the
basic goods required for living a dignified life.

Bhatia : To take an example: think of a Whites-Only signboard outside a restaurant in

Apartheid South Africa. The point is not that one private restaurant owner has decided to
exclude blacks from his private property. The point, rather, is how that signboard is an
integral element of the practice and institution of apartheid. The crucial insight that
Chandrachud J. brings in his judgment is that recognition of the institutional character of
discrimination and inequality, and how that must be constitutionally combatted. 

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 ● CH. 49 - OXFORD HANDBOOK – RONOJOY SEN – SECULARISM AND RELIGIOUS
FREEDOM
- Essential Religious Practices

The ‘essential practices doctrine’ has become the court’s standard method to distinguish
between the religious and the secular. Firstly, the Court has taken recourse to this test to
decide which religious practices are eligible for constitutional protection. Secondly, the Court
has used the test to adjudicate the legitimacy of legislation for managing religious
institutions. Finally, the Court has employed this doctrine to judge the extent of independence
that can be enjoyed by religious denominations.

ERP doctrine was first articulated in Commissioner, Hindu Religious Endowments, Madras
v Sri Lakshimindra Thirtha Swamiar of Sri “Shirur Mutt”. In Shirur Mutt, the petitioner,
the superior or mathadhipati (also referred to as mahant) of Shirur Mutt, challenged the
Madras HRCE Act 1951, 11 on the principal ground that it infringed Article 26 of the
Constitution. The Madras Hindu Religious and Charitable Endowment Act (HRCE Act) in
1951, where a new department headed by a commissioner was created to supervise temples
and maths.

The Court opined that: A religion may not only lay down a code of ethical rules for its
followers to accept, it might prescribe rituals and observances, ceremonies and modes of
worship which are regarded as integral parts of religion.

According to the Court, ‘what constitutes the essential part of a religion is primarily to be
ascertained with reference to the doctrines of that religion itself. (Ratilal Panachand v State
of Bombay AIR 1954 SC 388).

The primary contribution of Shirur Mutt to the legal discourse on religion was the recognition
that ‘protection under Articles 25 and 26 was not limited to matters of doctrine or belief only
but extended to acts done in pursuance of religion and therefore contained guarantees for
rituals, observances, ceremonies and modes of worship’.

Durgah Committee v Syed Hussain Ali. In this case, the khadims of the shrine of Moinuddin
Chishti in Ajmer challenged the Durgah Khwaja Saheb Act of 1955. khadims contended that
the Act abridged their rights as Muslims belonging to the Sufi Chishtia order. The khadims
challenged on the grounds of violation of Articles 25 and 26.

After surveying the history of the shrine from the pre-Mughal to the contemporary period, the
Court concluded that the administration of the shrine ‘had always been in the hands of the
official appointed by the State’. Upheld the validity of the Durgah Khwaja Saheb Act and
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dismissed the constitutional challenges to the Act. J. Gajendragadkar issued a ‘note of
caution’ that would not only highlight the role of the Court in deciding what was an ‘essential
and integral’ part of religion but also make a distinction for the first time between
‘superstitious beliefs and religious practice. The protection must be confined to such
religious practices as are an essential and integral part of it and no other. The Gajendragadkar
rulings went further and specified that even practices that can be accepted as religious might
be classified as superstition or irrational.

Another significant effect of the essential practices doctrines has been the marked
disinclination of the Court to accept the practices of religious groups of recent origin. In a
case involving the Ananda Margis, the Court decided that the Ananda Margis were a
religious denomination. However, in Acharya Jagdishwaranand v Commissioner of Police,
the Court refused to accept the tandava dance as an essential practice of the Ananda Margis,
reasoning that the ‘Ananda Marga as a religious order is of recent origin and tandava dance as
a part of religious rites of that order is still more recent. The Court observed that “what would
constitute an essential practice of religion or religious practice is to be determined with
reference to the doctrine of a particular religion which includes practices which are regarded
by the community as part and parcel of that religion”.

- Hinduism

Sastri Yagnapurushdasji v Muldas Bhudardas Vaishya, also known as the Satsangi case.
The 1966 case involved the Satsangis or followers of Swaminarayan (1780–1830) who
claimed that their temples did not fall under the purview of the Bombay Harijan Temple
Entry Act 1948. The Act provided that every Hindu temple shall be open to Harijans or
untouchables. By the time the case reached the Supreme Court via a trial court and the
Bombay High Court, the Central Untouchability (Offences) Act of 1955 had already come
into effect. The case made by the Satsangis was that the ‘Swaminarayan sect represents a
distinct and separate religious sect unconnected with the Hindus and Hindu religion, and as
such, their temples were outside the purview of the said Act’.

Drawing primarily from English language sources, the Court put forward the view that
Hinduism was ‘impossible’ to define: it does not subscribe to any one dogma; it does not
believe in one philosophic concept; it does not follow any one set of religious rites. It may
broadly be described as a way of life and nothing more.

Among the more prominent cases was the denial of the status of a separate religion status to
the Arya Samaj 64 and Ramakrishna Mission, 65 the latter being accorded a ‘religious

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minority’, that is, separate religion, status, by the Calcutta High Court, only to have it
changed to a religious denomination status by the Supreme Court

Similarly, the followers of Sri Aurobindo were told that they were not members of a religious
group. Ruling on the legitimacy of the Auroville 66 (Emergency Provisions Act) Act of 1980,
RB Misra J, writing for the majority, wrote that ‘there is no room for doubt that neither the
Society nor Auroville constitutes a religious denomination and the teachings of Sri
Aurobindo only represented his philosophy and not a religion (SP Mittal v Union of India
(1983) 1 SCC 51).

In the mid-1990s the Court in the controversial ‘Hindutva’ ruling 69 conflated the inclusivist
discourse on Hinduism, outlined in Yagnapurushdasji, with the exclusivist version of
Hinduism propounded by Hindu nationalists. J. Verma proceeded to conflate Hindutva with
Hinduism by arguing that Hindutva was a ‘way of life’ and could not be equated with
‘narrow fundamentalist Hindu religious bigotry.

- Propagate Religion

Chatturbhuj Vithaldas Jasani v Moreshwar Parashram - Here the case involved the
disqualification of a candidate belonging to the Mahar caste, Gangaram Thaware, who was
contesting a reserved seat for Scheduled Castes, for having converted to the Mahanubhava
Panth. The Court ruled that the conversion did not mean that Thaware had lost his Scheduled
Caste status.

Rev Stanislaus v State of Madhya Pradesh case. Here two State legislation—Madhya
Pradesh Swatantra Adhinayam and the Orissa Freedom of Religion Act, aimed at regulating
conversions— were being challenged. These legislations had one thing in common: they
prohibited religious conversion by the use of force, allurement, or fraudulent means.

The Madhya Pradesh High Court upheld the Act, ruling that penalising conversion by force,
fraud, or allurement did not contravene Article 25. Another petitioner, Yulitha Hyde, had
challenged the Orissa Act. The Orissa High Court took an opposite stance, saying that the
term ‘inducement’ was too vague and could not be covered under the restrictions in Article
25. It also ruled that the State legislature had no power to enact a law related to religion.

In SC, on the critically important question of infringement of the right to propagate

guaranteed in Article 25, AN Ray CJ, who delivered the judgment, followed an odd line of
reasoning: What the Article grants is not the right to convert another person to one’s own
religion by an exposition of its tenets. It has to be remembered that Article 25(1) guarantees
freedom of conscience to every citizen, and not merely to the followers of one particular
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religion, and that, in turn, postulates that there is no fundamental right to convert another
person to one’s own religion because if a person purposely undertakes the conversion of
another person to his religion, as distinguished from his effort to transmit or spread the tenets
of his religion, that would impinge on the ‘freedom of conscience’ guaranteed to all the
citizens of the country alike.

Seervai criticised : To propagate religion is not to impart knowledge and to spread it more
widely, but to produce intellectual and moral conviction leading to action, namely, the
adoption of that religion. Successful propagation of religion would result in conversion.
Conversion does not in any way interfere with the freedom of conscience but is a fulfilment
of it and gives a meaning to it.

- Teaching religion

Aruna Roy v Union of India, where public interest litigation challenged (NCERT) and
(NCFSE) on the ground that it violated the constitutional principles of secularism among
other things. The Cout agreed to the committee report which stated that religion is the ‘most
misused and misunderstood concept’ and that ‘the basics of all religions, the values therein
and also a comparative study of the philosophy of all religions should begin at the middle
stage in schools and continue up to the university level’. The Court was in full agreement
with this view and said ‘religion is the foundation for value-based survival of human beings
in a civilized society’. Secondly, the Court said that study of religions was in consonance
with Article 51- A of the Constitution, which among other things declares that it shall be the
duty of every citizen to ‘promote harmony and the spirit of common brotherhood amongst all
the people of India transcending religious, linguistic and regional or sectional diversities.

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